Criminal Justice (Amendment) Bill 2009: Committee Stage (Resumed).

SECTION 3.
Question again proposed: "That section 3, as amended, stand part of the Bill."

I do not wish to detain the House but the Minister engaged in some general debate on the background to the legislation and said that he was accused of plucking it out of the sky. I do not know who made that accusation. I have not heard it but the Minister has shown himself to be a dab hand at manipulating many of the comments on this legislation for partisan purposes, which is a pity because we could have a good debate as we are charged with the responsibility of having. It is important to get it right because section 3 is remarkably similar to section 70 of the 2006 Act, which is not working. The Minister has failed to provide the House with a detailed rationale for this. It has been tried only once and on that occasion it was not successful in garnering a solitary conviction. I would like to see a proposal from the Minister that would deal with the weakness or inadequacy of section 70. It is somewhat less than clear. We must get it right.

The Minister said that resources are not an issue but the Garda is operating on a budget of €35 million less than was at its disposal last year. That is a resource reduction. I do not know how that gap is to be filled without there being a resource issue. The Minister mentioned the letter that he wrote to me on 3 July and I share the concern of Deputy Rabbitte because at no stage does the Minister adduce any evidence for any degree of intimidation of jurors and the figures he produced show sets of proceedings and years but it is not possible to separate the witnesses from the jurors. The only reason that I can see for that is that there have been no figures on the table dealing with the number of proceedings that have commenced for offences under section 41 of the 1999 Act between 2002 and 2009 that have referred to the juries.

I take seriously what the Minister has said. I have heard it from Deputy O'Donnell and am satisfied that what has been said has a basis and we should take seriously the claims of the State solicitor for Limerick, Mr. Murray, who has spoken publicly on numerous occasions. In addition to talking about the criminal fraternity he made a serious charge recently. I call on the appropriate agencies of the State, the State prosecution office, and the Garda Síochána to investigate a charge he made when he said:

This unusual piece of legislation was promoted by concern within certain official circles that a tiny minority of solicitors are harvesting information on operational matters and passing them on to the criminal fraternity and effectively acting as criminal intelligence officers for criminal gangs.

That is a most serious charge. The article cites a Garda source who said there was "merit" in Mr. Murray's claims because "gardaí interviewing suspects, under arrest, have matters repeated to them which they feel could only have come from legal people dealing with criminals". I would like these serious issues to be investigated. In addition to the Garda investigating these most disturbing claims the professional bodies, particularly the Incorporated Law Society, should play their part in investigating these most serious charges against members of the legal profession. Later in the course of this legislation we will be dealing with situations in which a judge, often a junior and inexperienced member of the judicial hierarchy, no disrespect to any member of that body, might deal with aspects of this legislation while everyone else is barred, apart from a member of the Garda.

According to the Minister's latest amendment, circulated some moments ago, that judge on his or her own can make a decision based on the evidence of a former garda, someone who is not a member of the Garda Síochána, without the benefit of any legal advice. One reason for this is that members of the legal profession have been "harvesting information on operational matters and passing them on to the criminal fraternity and effectively acting as criminal intelligence officers for criminal gangs". Is that why legal officers will be debarred from certain portions——

They may be. If the Minister acts on this in the same way as he acts on the anecdotal evidence of his colleague, the Minister for Defence, the point made by Members on all sides of the House, and beyond, that we should deal with the small print in a way that ensures we get it right is valid because the Supreme Court will test every line of this legislation.

I ask the Minister to give us every opportunity to deal with each section of the Bill. He should refrain from making statements to the effect that people say he plucked this out of the sky. He did not pluck it out of the sky but the manner of, and the timeframe and the process for dealing with, this Bill are less than they should be. Having regard to the failings of the 2006 Act, which he is trying to address, it is important that he answer the questions that arise in the House.

I thank the Ceann Comhairle for the opportunity to speak on section 3 of this Bill. This is an important debate on crucial legislation but we are going away from the core issue. We are also forgetting about the real world as it was played out in this city of Dublin over the past few days. I ask my colleagues to listen to the voices of the people and victims before any final comments on the legislation are made. Those of us familiar with the drug and gangland issue through our constituents and work over 20 years know there is a war going on between gangland criminals and sections of the State. We must deal with the matter head on as it is unacceptable that victims in communities are being intimidated. That is the core issue in this debate.

Some of us have always taken a very strong pro-civil liberties and human rights position. The right to life and to be able to express views and opinions in a free democracy is an important human right. This legislation is about that, and we should deal with the intimidation of jurors in an objective and professional way.

From my experience I know it is a real problem. I spoke to 13 of my constituents in the past hour and a half and they all expressed major concerns about being intimidated or threatened if they were on a jury in a case dealing with gangland crime. These are a mix of people working in the private and public sectors, some of whom are tradesmen. These people would worry about the protection of themselves and their families in such scenarios. Such a problem is real and forms an important part of this debate.

I have met people who have suffered fear with a capital "F". Many witnesses over the years, and not just recently, have been intimidated by some of these gangs and criminals. It is horrific to hear about some of the positions innocent people have been in while they have tried to do their civic duty. We should face up to the issue and listen to what people are saying about it.

Deputy Charles Flanagan commented on resources and I agree this is a crucial issue. Another important element in the debate concerns the management of Garda resources. There should be examples of good practice in policing and good management. I remember when serving on a previous Oireachtas committee on justice hearing about some of the experiences of gardaí and from other international police forces. We saw some of the great work done both in this country and elsewhere.

I pay tribute to the sections of the Garda Síochána which do an excellent job, particularly those fighting gangland crime and involved in Operation Anvil. There are people on the front line dealing with the armed people who intimidate others, and there are other members of the Garda in the drug squad. The drug squad is made up of young men and women who take a major risk, and they fight battles every day that often do not make the headlines.

As Members of the Oireachtas we must support the efficient management of the resources within the Department of Justice, Equality and Law Reform and the Garda. We must eliminate any kind of political cronyism in promotion and I would like to see the people who do a good job and show examples of good practice leading the Garda Síochána.

We have heard much about Limerick but in reality, the problem is widespread. Intimidation is not just confined to Limerick and people are living in fear all over the country. I see it regularly in my own constituency where people do not even have the courage to drop into the local Garda station when they know drug dealing is ongoing and there are people with guns up the street from their house. They are afraid of being burned out of their house. With regard to the minority of solicitors allegedly acting on intelligence for gangs, if that is the case they should be rooted out. I see a strong role in this for the Law Society. Such action is unacceptable; it is a scandal and a disgrace.

There is much discussion on the rank of gardaí with regard to evidence being provided. I have no problem with this being provided by good quality gardaí who may not necessarily be superintendents or chief superintendents. These should be people who know the issue on the ground and who have the ability and intelligence to provide credible evidence.

A very important part of this debate is often missed. We can go around the houses on particular aspects of legislation but it is very important that we listen to the voices of victims of crime. We saw the plight of one victim over the past few days and that incident was absolutely appalling. People should not think I will stand as a Member of the Oireachtas and stay silent on this. It is absolutely disgraceful that a young man in his own community could be gunned down outside his house. Two days from now that death will be forgotten. We must act on this, consider the facts and listen to the people on the ground who are demanding that we deal with gangland crime.

I remind Deputies that we are dealing with whether section 3, as amended, should stand part of the Bill. It is concerned with the definition of criminal organisations and structured groupings. The Chair has allowed latitude but matters extraneous to that question may be more relevant later.

I will speak with reference to Limerick as I represent that area. This legislation is very welcome but I would like extra time to go through the various sections and consider the Bill in detail to ensure we get it right. I commented previously on an issue which goes to the heart of the matter. As a result of the mindless murders of Roy Collins and Shane Geoghegan recently, victims and the general public in Limerick want extra resources for An Garda Síochána on the ground. They want us to overcome the intimidation of both jurors and witnesses. Will the Minister give a clear response on that?

The following point may seem straightforward but it cuts to the heart of the matter. In this legislation, under the Special Criminal Court that is to be provided, can a conviction be achieved based on the opinion evidence of what we would like to be a chief superintendent and evidence that would arise from the surveillance legislation? This would mean witnesses would not be required to go before the Special Criminal Court. It is critical that we can get to the structured groups in gangland crime, so this must hold up legally. Will the Minister give an assurance that we will not see a case where witnesses may still face the possibility of continued intimidation?

This debate concerns section 3 and as I stated earlier, one of the reasons for opposition to the section is that I believe it to be superfluous. We have existing legislation which has not been used. There is more related to it and consideration must be given as to whether this is a proportionate measure.

It is difficult to say if the section is proportionate because we have not yet taken other practical steps, which I will list in a moment. If such steps had been taken and failed, or they did not have the required success, we could then turn around and say that as a society we must consider quite draconian steps in legislation. We would also then need to change definitions and particular sections by beefing them up, for example.

To my knowledge section 70 of the Criminal Justice Act 2006 has not been used to the extent to which it should have been used. A long list of crimes was provided to justify the need for that legislation. Limerick State solicitor, Mr. Michael Murray, is reported to have made several comments in respect of solicitors. If he or the Minister have evidence in respect of certain activities being carried out by particular solicitors, these individuals should be charged. Under the law, quite an array of charges can be brought against people suspected of perverting the course of or hampering the delivery of justice or of assisting others in the commission of crimes.

There may perhaps be too much legislation and the DPP, the Garda Síochána and the Judiciary are becoming confused as a result. We should simplify the position and ensure that people can be convicted. What is the reason behind the collapse of cases? If one were to believe what the Minister is stating, then cases are either not going to court or are collapsing on the basis of witness intimidation. I will not state that witness or juror intimidation does not occur. I commend witnesses and jurors on their bravery.

Practical steps need to be taken in respect of such intimidation. In fairness to the organs of the State, when intimidation of this nature was highlighted in Limerick, the relevant trial was moved to a different location. I accept that this might not be viable in every case. However, the witness protection programme has not even been placed on a statutory footing. In addition, the concerns to which Deputy Finian McGrath referred have not been addressed. If we had a proper witness protection programme, it would address the concerns of those people who are being harassed on a daily basis.

We have a responsibility to ensure that legislation stands the test of time. The Criminal Justice Act 2006 has not done so, which attests to the difficulties involved in rushing through legislation. In that context, I object to the way the Bill is being rushed through. I refer to the practical steps that might be taken. I will now do so in respect of a later section. I also wish to move on to deal with some of the other provisions in the legislation which are odious.

I welcome the legislation but I do not welcome the manner in which it is being dealt with in the House. Once again, the Minister ran to the media before revealing the detail of the legislation to the Members of this House, particularly the Opposition spokespersons on justice. This shows that he has very little regard for the House.

Intimidation is certainly taking place in certain communities. There are areas in which people are living in fear and where gangs rule the roost. Those gangs must be taken on. Tragically, 16 people throughout the country — many of them in the greater Dublin area and Limerick — have lost their lives as a result of gangland activity this year. As Members of the Oireachtas, we have an obligation to do everything in our power to combat such activity. In addition to legislation, we must also ensure that adequate resources are provided. It is outrageous that, in 2009, only 50% of all Garda stations have access to e-mail. How will we take on gangland criminals and drug lords if such basic resources are not available? In the past two years, no new Garda cars have been purchased. Members of the force are obliged to take on gangland criminals who drive around in souped-up cars or armoured or bullet-proof vehicles. We are not putting in place the necessary resources to allow the Garda to fight gangland crime. That is the real difficulty.

Fine Gael has continually suggested that a new rank of community garda be created. That would make sense because there is a need to nip in the bud the type of activity to which I refer. If we do not proceed in this way, we will not deal with the problem. There must be a clear line of promotion within the force for community gardaí.

I welcome the legislation but not the manner in which it is being dealt with in the House. What is happening is typical of the way in which the Minister for Justice, Equality and Law Reform operates. He uses the media to further his cause rather than relying on the Members of the Oireachtas.

I already made a contribution to the debate on the Bill on Second Stage and, therefore, I will speak specifically to section 3.

That will make a change in any event.

The Minister indicated that the amended definitions are merely a simpler formulation but that they will nonetheless make it easier to charge persons with the offences in question. The Bill does not substantially change the definition of what constitutes a criminal organisation which is contained in the 2006 Act. If it was never deemed practicable to bring the 2006 definition into play and if no convictions were secured on the basis of it, we must ask whether convictions can be secured on the basis of that which is contained in the legislation before the House.

Is there a requirement that sufficient evidence to be provided to allow a judge, of the Special Criminal Court or any other court, to decide to convict someone on the basis of his or her membership of an organisation? This is particularly relevant in view of the fact that the provision in the 2006 Act has not been implemented. Further consideration must be given to this matter. I am of the view that section 3 is not practical. It is so vague that if one were a criminal lawyer of some standing, one could pick holes in it.

I have witnessed the intimidation of many people in Limerick, the city in which I live. I have seen elderly people and the mothers of young children being intimidated to such an extent that they were obliged to leave their homes. I know people who cannot go to bed at night because they are afraid of certain individuals who live in their communities. I am aware that certain people have withdrawn evidence they provided at Garda stations because they were called as witnesses and subsequently were intimidated. However, I have not been informed of jury members or potential jury members in the Limerick area being intimidated. I am not stating that this has not happened and I understand that one case has been brought to the attention of the authorities. However, I am not aware that intimidation of jury members is occurring.

If jurors or potential jurors are being intimidated, there is a provision whereby the DPP — if instances of intimidation are brought to his attention — may refer cases to the Special Criminal Court. Is the Minister for Justice, Equality and Law Reform or anybody in Limerick — including the Minister for Defence — bringing evidence of intimidation of jury members or potential jury members to the attention of the DPP? If such evidence has been provided, what action has been taken? While I am aware of intimidation, it is intimidation of people in communities. It is the kind of appalling intimidation the Collins family and other families in Limerick have been obliged to endure.

As for the issue raised by Deputy O'Donnell, witnesses undoubtedly must be called in the Special Criminal Court and I cannot discern how this legislation will protect them in any way. I refer to the Criminal Justice (Surveillance) Bill that was proposed initially by my colleague, Deputy Rabbitte, as the Garda Síochána (Powers of Surveillance) Bill and which subsequently was brought before the House by the Minister for Justice, Equality and Law Reform. In providing that information and intelligence gained through covert surveillance can be used in a court of law against potential or alleged gangland criminals, it is a strong legislative measure that will be able to protect witnesses in the sense that such evidence may be used in court, perhaps as a substitute for witnesses or people being obliged to come forward to give evidence.

That was the point I was making.

The Labour Party has no problem in supporting strong criminal justice legislation that will protect the public and that will put such gangland criminals behind bars for as long as is necessary. However, bad law will not address this problem nor will rhetoric of the kind I have just heard from Deputy Finian McGrath. Effective legislation and policing, as well as honesty with the people, are what is required.

I am a representative for Limerick, which has been referred to many times in the course of this debate. I conduct a clinic once a week in each of the areas that frequently are referred to and in which many of these gangland criminals hold sway over innocent people in their own communities. I assure the Ceann Comhairle that I am willing to support any legislation that I consider will improve the situation in such communities and that will lock up anyone who is guilty in this regard. However, there is no point in fooling people that this legislation will somehow address this problem, as I do not believe it will. I believe this legislation could be effective if it is amended. In particular, I suggest that were amendment No. 6, tabled by my colleagues, Deputies Rabbitte and Sherlock, to be taken on board by the Minister for Justice, Equality and Law Reform, it would put into statute the power of the Director of Public Prosecutions to refer cases in which there is real evidence that juries are likely to be intimidated to the Special Criminal Court. In that case, this legislation could be effective. However, it simply is not telling the truth to suggest this cannot already be done, as I understand it can. Putting it into statute by way of this amendment certainly would strengthen the present position.

Moreover, the Labour Party did not oppose this legislation on Second Stage because it believes it can be amended. However as it stands at present, asking the Oireachtas to declare that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in respect of gangland offences is offering up this legislation to all kinds of litigation and to possible constitutional challenge. That is not doing a service to the people of my city, who want the issues that must be dealt with to be dealt with effectively. However, I reiterate that the Criminal Justice (Surveillance) Bill constitutes genuine criminal justice legislation that the Garda has been seeking and which can be effective in this regard.

Having listened to Mr. Murray on the recent "The Week In Politics" television programme, I do not believe he gave a great endorsement to the comments of the Minister for Defence during his Second Stage contribution. Mr. Murray noted that the Minister, Deputy O'Dea, spends much time walking around the constituency, which he does. In that regard, he probably knows a lot about what is going on.

That must be how he became so fit.

Yes, I acknowledge he is a very fit man. However, a much more worrying aspect of Mr. Murray's contribution to the aforementioned programme is the issue raised by Deputy Charles Flanagan regarding his remarks on practitioners of the law and what they might be engaged in with regard to criminals. That matter certainly requires a response.

I have not heard anything thus far from either the Minister or anyone else in support of this legislation to suggest there is hard evidence of intimidation or that if there is, that the power of the Director of Public Prosecutions to refer cases to the Special Criminal Court is not adequate to deal with the issue. The Minister for Justice, Equality and Law Reform should tell Members who has raised this issue. He should outline what specific cases have been raised by anyone in Limerick or anywhere else regarding the intimidation or possible intimidation of juries. Moreover, if hard facts exist, he should state whether they have been brought to the attention of the Director of Public Prosecutions.

Initially, I responded to Deputy Ó Snodaigh's broad objection to this legislation. I repeat this is not a monumental change to the criminal law. As I noted previously, it proposes to treat criminal gangs in the same manner that we have for decades treated the issue of paramilitary organisations. I reiterate that the Cabinet considered this matter a number of times. It specifically considered the legislation over three meetings, that is, over substantial parts of two meetings and at one meeting that was devoted exclusively to the finalisation of the drafting of this legislation. It did so on the basis of advice that I had tendered to the Cabinet with regard to the assessment made by the Garda Commissioner and the Garda Síochána in general, in respect of the changed situation that has arisen in recent years, particularly in the aftermath of the Shane Geoghegan and Roy Collins murders.

While I can answer all the questions raised by Members, although this does not pertain exclusively to Limerick, the Garda Commissioner particularly indicated that gardaí on the ground in Limerick are conscious of a natural reluctance by people to serve on juries in criminal trials, including gang-related trials, against a background of a perception of fear and intimidation. The Limerick State solicitor, Mr. Murray, gave one instance of which he was aware and there are others of which the Garda Síochána is aware, particularly in Dublin, as well as in Limerick. Consequently, all the Garda's hard evidence is that there is a strong fear, particularly in the aforementioned geographical areas, of people bringing themselves forward.

I chose my words carefully previously, when I stated that each issue dealt with in this legislation is a response to issues that have been of concern. While the Limerick State solicitor, Mr. Murray, has instanced some grave misgivings regarding the activities of some solicitors, I repeat the legislation was drafted carefully before Mr. Murray made his statements and before Members made statements in this House regarding the intimidation of jurors. The legislation is based on the hard information that been brought to my attention by the Garda Síochána in respect of the intimidation of jurors.

The Garda Commissioner indicated to the Cabinet, through me, that it was his firm view that in dealing with gangland crime, the effective administration of justice would be best served by scheduling the offences in the proposed Bill for the purpose of the Offences against the State Act. He also stated that it was his considered assessment that the established pattern of ruthless behaviour on the part of criminal gangs in their attempts to thwart the operation of the criminal justice system has created a situation where in practice, the ordinary courts will face great difficulties in securing the effective administration of justice in the case of the offences in question and that there is a compelling case for the proposed scheduling of such offences. That assessment was based on hard evidence of intimidation of jurors and is confirmed by the anecdotal evidence of the Minister for Defence, Deputy Willie O'Dea, the Minister of State at the Department of Foreign Affairs, Deputy Peter Power, the State solicitor and Mr. John Hennessy, who has a very good article in theIrish independent, in which he writes that, as someone who has been the subject of Garda protection, “there is absolute evidence that people are extremely reluctant to serve on a jury in a gangland criminal case, and it is proving increasingly difficult to secure a jury for these trials”. We are not relying on his word, nor on the word of the State solicitor. We made the decision on hard information given by the Garda Commissioner.

This is an issue on which the House should unite. I do not suggest there are Deputies who do not want to see the back of these people. In the context of the Roy Collins murder, the Oireachtas must act in a substantial way.

For people to suggest this is a dramatic change is not correct. At the moment the DPP has the right to send people to the Special Criminal Court and has done so on occasions in cases that have nothing to do with paramilitary organisations. He did so in respect of those involved in the murder of Veronica Guerin and in substantial drug offences. The Oireachtas is sending a strong signal based on the information tendered to the Government by the Garda Commissioner and the evidence and testimony of people a few minutes ago in this House, who understand the level of fear and intimidation of the population in their respective areas. The Oireachtas is making a strong statement that in all of these cases, in respect of two specific offences of directing and participating in criminal organisations, cases should go to the Special Criminal Court to remove any perception of difficulty with jurors, unless the DPP directs otherwise. It may be the case that the DPP will decide that the ordinary courts are sufficient in every case. That is an option. The DPP is completely independent of the political process. The Government believes the Oireachtas should send a strong signal that specific offences with which we are dealing should be raised to the same level as a threat to the State posed by paramilitary organisations.

Deputy O'Donnell referred to opinion evidence. I emphasise that this legislation concerns expert evidence on the existence of a criminal gang. It is not directed at the guilt or innocence of the accused. That is not possible. After the Shane Geoghegan murder, Members such as Deputy Noonan, a former Minister for Justice, raised the matter of opinion evidence and whether we can convict on the basis of the evidence of a chief superintendent. The advice of the Attorney General confirmed the advice given by the previous Attorney General in 2006 to the then Minister for Justice, Equality and Law Reform to the effect that the courts will not convict solely on the opinion evidence of a chief superintendent and that there had to be substantial corroborative evidence in this regard.

Would surveillance legislation suffice?

Deputy Dermot Ahern: This legislation has no measures about the opinion of the chief superintendent about the guilt of the person because of the advice given. The expert evidence given by a member of the Garda Síochána or a former member concerns the existence of a gang in a particular locality. It is then up to the Garda Síochána to prove that the person was part of the gang and involved in criminal intent. I wish to dispel some of the misunderstanding, which may be on purpose, and the twisting of this legislation. It is important to examine this legislation so that we understand each section as it is agreed to.

What about the use of covert surveillance?

Covert surveillance can be used very successfully but I am not saying that it is a silver bullet. Deputies should not make out that I am suggesting this. I am not naive enough to think that this legislation——

Can people be convicted without witnesses?

No, in the Special Criminal Court one must tender the same evidence and prove beyond reasonable doubt that someone is guilty. The standard of proof is the same as in an ordinary court.

On a point of clarification, the Minister has stated that the evidence of a member of the Garda Síochána with the appropriate experience and knowledge of the existence of a criminal organisation will not go to the guilt or otherwise of the defendant. Is that not a point of law that is already well established? This legislation does not give a new voice to it because it is an established principle.

It is not an established principle, it is an established fact in regard to terrorist offences but not for anything else. For ordinary crime a chief superintendent cannot give evidence that he believes one is guilty of an offence. He can do so in respect of certain offences under the Offences against the State Act. We had not gone that far in this legislation.

Deputy O'Donnell wants to know if convictions can be secured in the Special Criminal Court without producing witnesses and the short answer is that it is not possible.

One cannot do so but because of the passing of the surveillance legislation, it obviates the necessity for witnesses in some cases. The combination of the surveillance legislation and this Bill will give the Garda Síochána far greater powers than it had heretofore in respect of criminal gangs.

The problem since 2006 has been how to establish the existence of a criminal gang. This is what we are endeavouring to do in the section that deals with expert evidence. People asked why this is not given by a chief superintendent but a chief superintendent would have to be briefed by somebody on the ground as to the existence of a gang. The chief superintendent may not even be resident in the particular area and would not be able to give evidence of his own knowledge in court. It is important that the person who gives evidence is someone who has worked in the geographic area on a daily basis for a number of years. Hence the inclusion of former members of the Garda Síochána. The former Assistant Garda Commissioner, Mr. Tony Hickey, who was instrumental in giving evidence on some of the culprits in the Veronica Guerin case comes to mind. It is important that such people, with a wealth of knowledge, are available.

Under this legislation, is it possible that, with the discretion of the presiding judges in the Special Criminal Court, opinion evidence from the chief superintendent and corroborative evidence obtained under surveillance legislation could lead to a conviction without the witnesses being required to give evidence?

There is no provision in this legislation for opinion evidence of the chief superintendent. Of course it would be possible for them to convict on the basis of surveillance evidence if in their opinion it was substantial enough to pass the burden of proof of beyond all reasonable doubt. There may be no civilian witnesses required.

On that point, the Criminal Justice (Surveillance) Bill is already law; it is now an Act. If it were possible to do what the Minister is suggesting under pressure from Deputy O'Donnell one could do it already. It is dubious in the extreme that one could bring home a conviction before three judges on the basis of not producing any witness. It is remotely possible theoretically that a combination of material gathered through covert surveillance and access to the Special Criminal Court with a garda testifying to the existence of a gang would bring home a conviction. However, it is so remote that I suggest, with respect, that it really does not give any comfort to Deputy O'Donnell. If Deputy O'Donnell is seeking to be satisfied that he has participated in a debate today which means witnesses might not have to be produced there is only cold comfort for him. Unfortunately, there is intimidation of witnesses but witnesses will still have to be paraded in the Special Criminal Court and that is the short and the tall of it.

I come from a very straightforward perspective on this; Limerick in particular has to deal with gangland crime, as Deputy Jan O'Sullivan knows. There is intimidation of witnesses and we have heard people like Michael Murray, the State solicitor, on the intimidation of jurors, about which I know. I welcome the Bill but I want to ensure that we give as much protection as possible to jurors and witnesses to ensure we get convictions and that those who have killed people and who are engaged in activities with regard to drugs and a range of areas are brought to justice as quickly as possible. This Bill goes in that direction but the intimidation of witnesses is a fundamental point and the Minister appreciates that. I seek assurances that we are moving in a direction whereby we have legislation in place to deal head on with gangland crime. It is nationwide but I can only speak from my personal experience of Limerick, the constituency and people I represent. This is the thrust of my argument. I welcome the Bill; I want this form of legislation and we have been calling for it for a long time. This question needs to be raised and debated which is why it is so important that we give it time, tease it out and examine ways to deal with these issues.

With regard to juries in Limerick, we have heard the testimony of the two Deputies on their experience in this respect. Court officials from Limerick are on record as stating there is a tacit understanding that there is no point in having gangland jury trials in Limerick. I have seen suggestions on alternative methods. We have asked the Garda Síochána about them and the Garda Commissioner clearly stated that he does not consider that moving trials would put jurors beyond the reach of intimidation of highly organised and ruthless gangs. He also stated that he is aware of suggestions that witness anonymity could be useful and that leaving aside any constitutional issues that might arise in that regard, we have to take into account the size of the country and the reality that the nature of the offences involved is such that in many instances witnesses can be identified in practice from the details of the evidence which they would be in a position to give.

The witness protection programme is relatively unsuccessful because of the smallness of the country and the unwillingness of our people to participate in a programme where they must uproot and go to a foreign country, set up a new life there and arrange to meet their family in an unknown destination in, for instance, Germany or France on a six-monthly basis. They are not willing to do that. The experience of the witness protection programme is that people have come off it and have come home because they miss their families and community and the Garda must put a significant number of people under watch 24 hours a day, seven days a week. Unfortunately, that is what happened in the case of Roy Collins. On Second Stage I quoted a letter sent to my predecessor prior to the death of Roy Collins from Stephen Collins dated 8 February 2008, in which he states that they are praying the State can improve the quality of their lives which is a living hell. He stated this in a letter prior to his son being killed. After his son was killed he wrote another letter and I met him and listened to his testimony. I genuinely state that whatever doubts I had about stretching the limit of legislation were put to bed once I met that man.

The point I want to put to the Minister is that nothing will change in the matter of the protection of witnesses as a result of the Bill. Is that not the case? There is no point in us confusing that with the intimidation of jurors. The Irish Human Rights Commission made a submission to the Minister and it stated that in the absence of supporting data it queried a blanket assumption about the actual or potential level of jury intimidation in Ireland. Dr. Carol Coulter, who covers this on a daily basis forThe Irish Times, wrote:

. . . the Bill has not been accompanied by any evidence of a failure on the part of the courts or any reluctance on the part of jurors to face up to their responsibilities. Indeed, the principal judge in the Central Criminal Court, Mr Justice Paul Carney, is on the record as stating that when gang members are brought before his jury court there is no difficulty convicting.

Why are juries not delivering perverse acquittals if there is intimidation of juries? Do we know of any single jury trial that collapsed in this country because jurors were got at? Somewhere along the line, when the record of this debate is being examined by jurists, jurors, archivists, historians or whatever, the thread of truth must be present. We can all agree with the Minister about the phenomenon that is out there and that the atmosphere is being poisoned in certain limited geographical areas.

I am sorry I do not have with me the figures for jurors in the normal course of events not only with regard to not serving but with regard to not turning up. A huge proportion of jurors in the day to day business of the courts do not even turn up. Many Members have a difficult time writing letters about guys who come to them in Saturday clinics stating they are deaf or that they have imperfect hearing. People have been trying to get off jury service for as long as I have been around. However, it is a different issue in certain parts of urban Ireland where people are intimidated and there is a difference between empanelling a jury and a jury actually discharging its responsibility.

I am asking whether the Minister has the evidence of intimidation. All we are asking for is the evidence. I ask the Minister to give the House the evidence of where there is a record or even one case of a perverse acquittal. I know of no such case. I have taken time out with the people I mentioned on Second Stage debate to get information on that. I waited with some interest for the letter promised by the Minister to Deputy Charles Flanagan. I read that letter, but there is no evidence in it of juries being intimidated. We can hold a different view on this for the duration of this Bill.

However, taking the Bill as it stands, there is nothing in it that alters the position or provides more protection to witnesses next week than they had last week. This is very important. I feel from talking to colleagues casually in the corridors that some of them would like to be able to go home and say in their home communities that everything was great now because we had dealt with this gangland legislation and that witnesses would not have to appear any more. However, those of us who follow this closely know that is not true.

At no stage did I say the legislation would obviate the necessity for witnesses in the Special Criminal Court. It is theoretical, but highly unlikely that there will be a need for witnesses——

——but what the surveillance legislation will do is lessen, in certain but not all circumstances, the necessity for civilian witnesses to be brought forward. We can never say we will be able to prove any case beyond a reasonable doubt in any court, whether a jury or non-jury case, if we do not have the required evidence and standard of proof. Normally, that is done by people giving evidence as to what they saw on a particular occasion. There is no doubt there is a new fear of intimidation, particularly in such geographic areas as Finglas and Limerick.

The Deputy asked for a case demonstrating intimidation. Cases have been brought to my attention by the Garda where jurors have been interfered with and these are cases involving gangland crime. There is one such case already on record. The Deputy obviously did not hear Michael Murray on RTE when he said, "They started intimidating witnesses, they made life uncomfortable for jurors". He went on to speak about his own experience. He said that in the recent past he had certainly one case where he was very concerned at the level of intimidation of the jury, so much so that he made a report to the Garda authorities and asked them to investigate the matter where a person was acquitted in circumstances where it was clear to him that the jury was afraid. That is one case, and I am aware of other cases where people were interfered with.

I heard him say that.

People were interfered with in such a way that they had acted out of a sense of duty and complained and investigations are now ongoing for a number of recent cases.

I heard him say that, but the DPP had the power in that case to refer it to the Special Criminal Court if he so wished.

Yes. I will go back to the central point. I and the Government believe it is necessary for the Houses of the Oireachtas to give a strong statement that the two offences of directing and participation in organised gangs go to the core of the attack by certain individuals on our society and that we should treat those offences with that gravity and send a strong signal that these offences should be tried in the Special Criminal Court unless the DPP decides otherwise.

We have said enough on the matter. While Fine Gael and the Government agree on the issue, we do not necessarily agree with the Labour Party on it.

I will call on Deputy Charles Flanagan to make a brief contribution. We must move on to the next section. We have had the opening positions and I have allowed significant latitude. This section deals with definitions and we should move on from it and deal with the amendments before the House. Otherwise, we will get bogged down in argument.

I agree and accept the Chair's comment. I have a specific question on the section. We are dealing with section 3 and are inserting a new section 71, from the 2006 Act, an Act that has never been brought into force or used in any way that could be described as successful.

To what section is the Deputy referring?

I am talking about the change being made to the old section 70. The Minister said we are changing it in order to simplify the definition. How does the Minister believe that by changing it from a gang of three to where two persons can be acting in concert will simplify matters? Now there is no need to prove there were three members acting in concert but evidence can be given there were two members and there is no need for formal rules or a hierarchical leadership structure for the gang.

How can the Minister satisfy us the changes he has made will make a significant difference or any difference at all considering the failure or unworkable nature of section 70, which has not featured in any prosecution to any extent? Therefore how can he say the changes he is now bringing into this new section 3 will work? Is there similar legislation anywhere in the world that would suggest we should use this new test because it is better? If not, the Minister has not surmounted any hurdle and there is no meaningful improvement in the situation from the original Act.

The 2006 Act had a convoluted requirement from an evidential point of view to prove participation. What we have decided to do, as a result of the fact that few or no charges had been proffered under section 70, is to look again at the proofs that would be required with regard to participation. It must also be remembered that we have added an additional offence of directing a criminal organisation.

My concern related to section 3.

Yes, but it is a combination of everything. We are also including the issue of expert evidence of the existence of a gang, witness evidence and, now with the passing of the surveillance legislation, if it is used properly, the ability to use that evidence in court. This will make the proof of participation and the proof of directing a criminal organisation a lot easier.

Question put and declared carried.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

I oppose section 5 of the Bill. These supposedly new offences are unnecessary and simply part of an attempt to hoodwink the public into thinking that something is being done. The common law offence of conspiracy and the statutory offence of accessory make sufficient provisions for these activities or activities of this nature already. I said this previously when the Bill was first published. The Irish Council for Civil Liberties agreed with me and made a submission on the Bill. If we had a proper Committee Stage, we would be able to bring in witnesses and the Minister could also have brought in witnesses to help his case. For example, the Garda Commissioner or the Chief State Solicitor could have come before us and we could have teased out some of the evidence or lack of it in terms of the issues he raised.

The submission of the Irish Council for Civil Liberties states that it is unclear how or why these new offences are required, given the current criminal law contains measures which allow the conviction of people on conspiracy charges and for the offence of acting in concert. In addition, as with the definition contained in section 3 which we have already discussed, these offences are too vague to satisfy the Constitution or the European Convention on Human Rights. The Constitution requires certainty of law, that is, that offences created by statute must be expressed without ambiguity, but there is ambiguity in this case. The European Convention on Human Rights requires foreseeability of the law, that is, that the law must be formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail. The proposed new offences are so vague that they do not satisfy this criteria.

The Irish Human Rights Commission agrees with me in this respect. On examining the case law, it states that Coxv. Ireland suggested the State’s obligation to protect and vindicate constitutional rights meant that such penalties must be neither arbitrary nor disproportionate in their operation. In that case, section 34 of the 1939 Act was struck down because the penalty imposed by that section — mandatory loss of office, pension and other emoluments in respect of all public servants convicted of scheduled offences — was held to be impermissibly wide and indiscriminate. The IHRC suggests section 5 may give rise to arbitrary or disproportionate sentences for an accused who is proved to have played a more minor role in a criminal organisation, and that the potential for arbitrary or disproportionate sentences is enhanced because of the broad definition of a criminal organisation and the loose nature of its structure.

The IHRC also reflected on the position in advance of the 2006 Act, which at this time holds all the more true in the context of the Act's existence. It questioned whether the proposals contained in the 2006 Act were either:

. . . necessary or proportionate responses to the problem of organised crime. The IHRC is of the view that the activity which is targeted here is already subject to appropriate criminal sanction, through existing common law and statute which prohibit conspiracy to commit an offence and prohibit the aiding, abetting, counselling or procuring of an offence.

In the context of the debate leading to the relevant provisions of the 2006 Act, I urged the Minister to accept, in response to the very real problem of crime, gangland crime in particular, that introducing surplus legislation misses the mark and, as I noted earlier, adds to the confusion for those trying to prosecute these crimes. The introduction of a new offence will not deter would-be criminals. Fear of detection is what deters them, as I have argued in the past. Instead of assaulting the fundamental rights underpinning the justice system, the Minister should reform, restructure and resource the Garda. In response to my points on section 3, the Minister said there was no problem in terms of the State's response and that the Garda had the resources required. However, the Garda no longer has overtime or the freedom to recruit and promote, and it does not have the telecommunications system that is required.

For example, one of the reasons witnesses in some areas will not communicate with the Garda Síochána is that their names were broadcast on the existing telecommunications system. There are parts of this city and other places where people are tuned in on an ongoing basis to the Garda frequency. If gardaí are broadcasting that there is a robbery on a certain street and Mrs. So and So gave the information, they have handed to those engaged in intimidation the witness's name and address and so on. This is not anecdotal. A person who has been a victim in very recent times of one of these criminal gangs, despite being involved in valuable community work, came to the attention of that gang because he made a phone call to his local Garda station. Although he asked the gardaí not to respond immediately because he had just walked past the gang, which was involved in drug dealing at a certain location, the Garda response was to immediately send a car to the exact location. While it was good to see the speedy Garda response, the gang knew the only person to have passed in the previous ten minutes was the individual in question, and he was targeted and has suffered the consequences for his civic action and the bravery he showed.

In addition to problems with overtime, recruitment and telecommunications, the Dial to Stop Drug Dealing programme, which I have harped on about since——

We must deal with section 5.

I am dealing with section 5. I am suggesting that the measures in section 5 will not deter would-be criminals. I am perhaps pre-empting the Minister's reply that the Garda has the required resources, which he said in response to my last question. The Garda Síochána and the wider system, including the courts system, does not have the required resources. What the Minister is doing in this section is to introduce more confusion.

If more gardaí were released from desk duties or other tasks that could be civilianised, they could be used to properly tackle and implement the existing law, which has not been properly utilised. The laws are in place but, for some reason, they have not been used. We must ask how many court cases actually collapse. We keep coming back to this question because it is what we are told is the reason for these new laws and why such cases will be heard in the Special Criminal Court. How many cases collapse on a technicality because the DPP, the Garda Síochána or someone else makes a simple mistake? How many cases collapse due to lack of evidence or having witnesses who are not credible? How many cases collapse because of a hung jury? As other Deputies have asked, how many cases collapse on the basis of intimidation of witnesses or juries?

This is the type of information we would have if we had sat down and teased this out on an ongoing basis over a month or even over a full week in committee, where we could have called witnesses to ascertain whether what is being proposed is proportionate. What we have at present falls short of the standards we should have in the justice system in terms of protection of witnesses and protection of juries. If we had taken that road, we might have progressed further.

I believe the arguments I put forward in 2006 stand in regard to these issues. We have not tried the simple steps first, namely, one does not go down the road of introducing new laws and concepts when the existing laws and concepts are adequate but have not been properly used. While I could say more, I will conclude on that point.

I will do my level best not to stray off the point. I realise the Deputy went all over the shop on this section.

The whole Bill is all over the shop.

The section seeks to prosecute those who control and organise the activities of criminal organisations but who are not necessarily directly involved in the commission of a particular offence. It does not address a whole new area of law. Similar provisions have worked very well in combating illegal organisations under the Offences against the State Act. The definition of directing such activity has been accepted in a substantial number of trials in the Special Criminal Court dealing with paramilitary organisations under the Offences against the State Act. One reason for the inclusion of this offence is an international obligation under the UN Convention against Transnational Organised Crime, to which Ireland is a signatory and, therefore, we are committed to introduce it. However, that is not the only reason. It is clear there are people directing organisations similar to the way in which paramilitary organisations were directed. Previously, people were sent out to carry out particular crimes but there were others behind such activity.

That is exactly what is taking place here. The logic behind scheduling these offences is that the very people directing such organisations but not carrying out the events have a very significant interest and incentive to ensure the trial of an accused person is in some way interfered with. That is the whole point of scheduling directing and participation offences. The faceless people or gang lords oversee these organisations in such a way that they sit pretty while some old patsy is before the court. It is in the interests of such people to ensure the accused person gets off. This is why there is a logic to the scheduling of such offences. The measures are very important and I disagree implacably with the Deputy that there should not be a directing offence. Any Deputy who represents the constituencies where this is a problem will be aware of the presence of people who do not pull the trigger but who direct how, when and who is to be taken out of existence.

I welcome section 5, which targets those in criminal organisations who give the orders. The legislation is part of the solution to dealing with this. Earlier, I referred to other aspects of dealing with organised crime. Section 5 zooms in on those who give the orders. Some of these people may not directly participate in the commission of criminal offences but operate at some level of the organisation's structure. Section 5(2) suggests those who direct need not necessarily be at the top of a given organisation and it recognises the different layers within such organisations. There is a person or group at the top who makes the money and issues the orders and such people must be top of the Garda's list.

I welcome that we will comply with international UN regulations because that is important.

I refer to a question which has been put to me regularly. Section 5 states the maximum penalty following conviction on indictment is imprisonment for life. Does the Minister really believe this is likely to take place? Many people see bad decisions being made every day in the justice system related to serious violent acts. There is a belief that some people who commit very violent acts do not necessarily get adequate time. I subscribe very strongly to the old fashioned view that if one does the crime one should do the time. Does the Minister really believe the assertion in section 5 that the maximum penalty following conviction will be life imprisonment? Many people have asked that question.

Recent days have seen the horrific murders of young fathers. I also refer to the case in Dublin North Central of the horrific murder of Donna Cleary who was gunned down by a particular gang. Although they do not seek revenge families and victims are calling out for justice and equality.

The Deputy should speak on the section.

I trust section 5 deals with these issues.

The Minister read from a document which he stated was from the Garda Commissioner. Is there any basis on which that document could be made available to the Opposition spokespersons or laid in the Library? We do not operate a privy council system but if there is information contained in that document it may be influential in the debate. Earlier, the Minister stated he proceeded in a certain way following a discussion with the unfortunate Roy Collins's father and he has now referred to a submission from the Garda Commissioner. When the Garda Síochána (Powers of Surveillance) Bill was published the Garda did not want it and the Minister's predecessor, Deputy Brian Lenihan, stated it would only serve to alert criminals to Garda investigative techniques. Why have the views at the top of the Garda changed?

That document formed part of the Cabinet discussions and considerations; it was part of the brief and I referred to the conclusion of that document. The strong and hard evidence from the Garda is that in Limerick and other areas there has been intimidation of jurors. This has been confirmed by such people as the Limerick State solicitor who has indicated in recent years there is hard evidence of the drop in juror numbers during gangland trials which have taken place, especially in Limerick. There is a suite of evidence in that respect. I suggest such information is subject to Cabinet confidentiality since it was part of the decision making process and the Cabinet's deliberations.

The matter of the surveillance Bill has arisen previously. The Garda believed the time had come for the use of certain evidence obtained by existing electronic surveillance and that this would be relevant in certain circumstances or on some but not necessarily all occasions. We have reached such a circumstance now with these offences and we seek to obviate as much as possible the necessity for reliance on civilian witnesses in many cases. Civilian witnesses are becoming more difficult to obtain because of the fear of intimidation in such areas as Limerick and certain areas of this city.

I welcome the section. We are dealing with people involved in criminal activity. There is anecdotal evidence that many of the operations of criminals are directed from prison via mobile phones. What is the position of the Minister in terms of scrambling mobile phones and the phone network within prisons given that it is generally acknowledged that a good deal of the operations of such activity are now directed from prison? What plans does the Minister have to complement the legislation in terms of mobile phones in prisons?

The Minister accused me of being all over the shop but it is he who is all over the shop.

The Deputy is all right.

I could go all over the shop if he wishes and still remain within Standing Orders. The reason I dealt with such a range of issues is that before the Minister goes down the road of introducing new offences, moving offences, he must address the simple things first. We have not addressed the simple things and I listed quite a number of them. I could have highlighted these at greater length to the Minister but I know he has received a copy of the ICCL report and the report of the Human Rights Commission. I could have put the whole lot on the record of the House. I am trying to accommodate the debate in the short time available. I still believe that what is being done here will create a duplication. The existing laws have not been used to their full effect and this is the key point I made in 2006. I ask why the existing laws are not being used. This question has not been answered.

On the issue of mobile phones, I have answered parliamentary questions about the use of mobile phones in prisons. It would be wrong to say that many offences are organised from within prisons but this is not to say it has not happened. I can assure the Deputy that the prison service has installed the most sophisticated X-ray equipment in every prison and it has had an effect. Many of the difficulties in the prisons which are attributed to overcrowding are in fact due to the much tighter security regime on issues such as mobile phones. I understand the mobile phone premium is very high in the prison context. The BOSS chairs have also been installed in some prisons; they are proving to be very successful and will be installed in other prisons. There is a blocking of the use of mobile phones in prisons. This project commenced at the Midlands Prison and results to date have been sufficiently positive to convince the prison service of the merit of extending the inhibition system at the Midlands Prison into the new C block——

The director told us a couple of months ago that this could not be done because the hospital is across the road.

What does "sufficiently positive" mean?

The difficulty is with regard to Portlaoise and also to Mountjoy and the proximity of hospitals. They have been endeavouring to get around that problem and have had some success. Mountjoy is a particular problem; Portlaoise is not. The inhibition system is being extended into the new C block at Portlaoise and also to the nearby segregation unit. A contract to provide an inhibition system at those locations within Portlaoise Prison was signed on 12 March and works are now due to be completed and the system commissioned on 20 July. Other tests are undertaken in other prison locations such as Mountjoy medical unit, Limerick A wing and Cloverhill D1. The system in Limerick has been installed and is being evaluated since January. The medical unit in Mountjoy has been commissioned since 29 June and is currently undergoing evaluation. A company is due to commence installation in Cloverhill of the inhibition system shortly and works are expected to be completed by the end of July 2009. The intention is that particular prisoners who would be suspected of directing crime from within prison would be housed as much as possible in those prisons or parts of prisons where mobile phones have been successfully inhibited.

I cannot let the Minister away with an assertion that this blocking technology can be successful on a pilot basis in the Midlands Prison and not in Portlaoise because of the hospital. The Midlands Prison in which the pilot project is working is actually in closer proximity to the hospital than is Portlaoise Prison where the gangsters are. Any evidence of operating criminal activities from within prison comes from Portlaoise Prison. That is where the gang lords are; that is where Deputy O'Donnell's and Deputy Jan O'Sullivan's former constituents are and that is where the problem is. Portlaoise Prison is actually further away from a hospital than is the Midlands Prison and therefore that argument does not hold water. There is not the will, between the Minister and the Irish Prison Service, to deal with this issue of mobile phones in prisons.

I have two questions for the Minister about the Prison Service. Will he agree that some of these crime gangs got at some members of the prison staff and there has been massive intimidation? Have there been many recent cases of intimidation of staff? To follow on from Deputy Ó Snodaigh's question, why is the existing legislation not being used more often?

It is not for me to decide what legislation is used. The Oireachtas provides the legislation and it is up to the Director of Public Prosecutions, based on the evidence in each individual case, to decide on how to direct charges against people and under which legislative provisions.

On the question about the intimidation of prison staff, our prison staff are very professional and to the best of my knowledge, despite difficult circumstances they operate to the best of their ability. I am not aware of any cases of intimidation but I am not saying it has not happened in the past or does not happen now.

In reply to Deputy Flanagan, the results in the Midlands Prison have been very good. The inhibitor is now being moved into the C block and the segregation unit in Portlaoise Prison and it will be commissioned on 20 July. There has been a problem with the original type. The practice in other countries has been examined and we are way ahead of any other country in the inhibition of mobile phones; many countries are now coming here to see the system we have put in place. We have come to the conclusion that while it might not be possible to blanket an entire prison, at least one can deal with certain sections of prisons and house the significant people in those sections and ensure the mobile phones do not operate in those areas.

Question put and declared carried.
SECTION 6.

I move amendment No. 2:

In page 8, to delete lines 16 to 50 and in page 9, to delete lines 1 to 17 and substitute the following:

"(a) involved either—

(i) the possession by the defendant, whilst in the presence of one or more other persons, of any article or item referred to in the Table to this section, or

(ii) there being present in (or, in the case of a false registration plate referred to in paragraph 8 of that Table, present in or affixed to) any vehicle—

(I) the use of which appears connected with the relevant act, and

(II) of which the defendant and one or more other persons were occupants on or about the date of commission of the relevant act, any such article or item,

and

(b) those circumstances are such as give rise to a reasonable suspicion that the defendant’s state of mind was as aforesaid at the time of the relevant act’s commission.

Table

1. Any balaclava, boiler suit or other means of disguise or impersonation, including any article of Garda uniform or any equipment supplied to a member of the Garda Síochána or imitation thereof.

2. Any firearm (within the meaning of section 1 of the Firearms Act 1925), ammunition for a firearm or device that appears to the ordinary observer so realistic as to make it indistinguishable from a firearm.

3. Any knife to which section 9(1) of the Firearms and Offensive Weapons Act 1990 applies, weapon of offence within the meaning of section 10(2) of that Act or weapon to which section 12 of that Act applies.

4. Any implement for burglary or other article or item for gaining access to any premises or other structure without the permission of the owner or occupier thereof, including any key or card that has been stolen or any access code unlawfully procured.

5. Any plan of any premises or other structure unrelated to any lawful activity, trade or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).

6. Any controlled drug (within the meaning of the Misuse of Drugs Act 1977).

7. Any substantial amounts, in cash, of any currency unrelated to any lawful activity, trade, transaction or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).

8. Any false vehicle registration plate, that is to say, any plate purporting to be a plate for a mechanically propelled vehicle registered under section 131 of the Finance Act 1992 and displaying an identification mark other than that duly assigned by the Revenue Commissioners under Chapter IV of Part II of that Act and regulations thereunder.

9. Any article or item for making a counterfeit of any currency note or coin or making a counterfeit or otherwise for making a forgery of any credit or debit card.

10. Any article or item for making copies of any work, being an article or item of a design enabling, and held in circumstances indicating that it would likely be used for, the making, on a substantial scale, of infringing copies (within the meaning of Part II of the Copyright and Related Rights Act 2000) of the work without the copyright owner's consent.

11. Any other article or item prescribed for the purposes of subsection (6).".".

This is an amendment to section 72(6) of the Criminal Justice Act 2006 as inserted by section 6 of the Bill providing for an amended participation offence. Subsection (6) provides that where a defendant is found in the possession of certain items, there shall be a presumption as to the required intention of the defendant to commit the offence of participation. Amendment No. 2 redrafts subsection (6) towards two ends. The first is to improve comprehension of the subsection by removing the list from the body of the text and appending it to the subsection in the form of a table. The second purpose of the amendment is to extend the list of items which can give rise to the specified presumption. The possession of the items listed would rightly give rise to some suspicion.

Possession of the following items is to be included in the subsection by way of this amendment — Garda uniform or Garda equipment; burglary tools or implements; false vehicle registration plates; counterfeiting equipment; and equipment which would facilitate copyright infringement. As can be seen from the section, possession of a balaclava, firearm, knife or an implement for burglary, are all items which an organised gang would have in its possession in the normal course of events.

I do not have any real or substantive objection to this amendment. I note this is an additional list. I take it from what the Minister has read that is an additional amendment he has brought forward on the Garda uniform and items of Garda equipment.

Yes, it will be in the form of a table.

The difficulty with that is that the list goes on and on. It is indicative of rushed legislation if, before we have agreed the Schedule, the Minister is already adding to it. I dare say that between now and the end of the debate there may be other items the Minister might be open to considering but I do not have any objection to the principle of listing the items in legislation.

I do not take any great exception to it either. I rang a lawyer today inquiring about jury intimidation and he said he could not hear me because there was noise coming from his bathroom where a plumber was working in the dust. He had a boiler suit on and his face covered and he was worried that this particular section might be used against his plumber but I assured him that I did not think that was the Minister's objective.

The Minister has to give him that one.

It confirms my view.

My objection is similar to my objections to the previous section. It is likely there would be convictions if the majority of the items listed were found in somebody's possession. The Minister has helpfully listed the Acts somebody found in the possession of these items would be in breach of and they include, in the case of a knife, the Firearms and Offensive Weapons Act, and the Misuse of Drugs Act. This is adding to existing legislation but why are people not being charged with possession of these items? I am concerned that we are adding to the corpus of law for no particular reason in this case other than to transfer these offences to the Special Criminal Court. There is danger in moving from a jury system to a non-jury system.

I do not have anything further to say. The amendment is providing a list of items in order to provide for a presumption that a person had the relevant state of mind and amens rea regarding the intention to commit an offence. I can put it no further.

Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.

Amendment No. 2a in the name of the Minister is from the additional list circulated today. Amendments Nos. 3 and 3a are related and an alternative to amendment No. 2a. Amendment No. 4a is also related and amendment No. 5 is related and an alternative to amendment No. 4a. Amendments Nos. 5a and 5b are also related. Amendments Nos. 2a, 3, 3a, 4a, 5, 5a and 5b may be discussed together.

I move amendment No. 2a:

In page 9, lines 21 to 23, to delete all words from and including "of" in line 21 down to and including "expertise" in line 23 and substitute the following:

"of—

(a) any member of the Garda Síochána, or

(b) any former member of the Garda Síochána,

who appears to the Court to possess the appropriate expertise (in this section referred to as the "appropriate expert")".

Amendments Nos. 4a, 5a and 5b are consequent to amendment No. 2a. Amendment No. 2a amends section 7 so that evidence as to the existence of a particular criminal organisation may be given by either a member of the Garda Síochána or a former member of the Garda Síochána. The intention of this provision is to ensure that the member of the Garda Síochána with the greatest direct experience and knowledge of a particular organised crime group is the person who will give the evidence to the court. It may be the case that a member with such knowledge will have left the force prior to a hearing. This provision ensures that should such a person be the proper individual to provide the required evidence, then he or she shall be able to do so.

Amendments Nos. 4a, 5a and 5b are consequent to this amendment and substitute the word “appropriate expert” or “expert” for the word “member” where it appears in section 7, recognising that a former member of the Garda Síochána may be providing the evidence.

We are dealing here with important safeguards long since established on the provision of evidence when dealing with the proof of a criminal organisation but the Minister, by virtue of his amendment No. 2a, is going in the opposite direction to that I am proposing in amendment No. 3.

I would be concerned about the absence of appropriate safeguards. I do not wish to impugn in any way the professionalism or the rank of any ordinary member of the Garda Síochána but where we are dealing with the provision of proof of the existence of a criminal organisation, the standards should be high. In confining the provision of evidence to a senior officer we are not casting any disrespect towards an ordinary member of the Garda Síochána but reflecting the importance of the officer, which has long since been established, even in cases where we have had to resort to the Special Criminal Court or non-jury court, and the importance of the office of the senior member of the force. Also, we are acknowledging the seriousness of the offence by ensuring that the evidence is tendered by a senior Garda officer.

The Minister can correct me if I am incorrect but there will not necessarily be a witness present when this evidence is being tendered as to the proof of the existence of a criminal organisation. The Minister does not have any requirement in the section in terms of the experience of the officer and his amendment No. 2a, includes evidence to be tendered, and presumably accepted by way of proof, by a former ordinary member of the Garda Síochána who could be long since retired or engaged in other work, which is often the case with former members of the Garda Síochána. I would be concerned that the Minister does not have any requirement of expertise or standard of experience and because of that I am somewhat concerned about the relaxation of the safeguards. The Minister can take it this will be tested in the highest courts. It is important that the measure is sound from a constitutional basis, that both experience and expertise would be a prerequisite and that the safeguards are such, having regard to the fact that this is proof of evidence, that we would acknowledge a long-standing procedure which is that the evidence would be tendered by a senior officer, a chief superintendent. I acknowledge what the Minister said earlier about the working garda who is on the front line. Nevertheless, we need to reflect the importance of the seniority of the rank and the gravity of the offence. It would not be appropriate to accept the evidence of officers who might not have the necessary expertise, given the consequences.

There is some confusion between opinion evidence and expert evidence. I heard what the Minister said earlier. I presume we are talking about an expression of opinion as to the existence of a criminal organisation. In the operation of the Offences against the State Act the Supreme Court was definitive regarding the care to be taken in crafting the decision it handed down in respect of the use of a garda not below the rank of chief superintendent.

With no disrespect to current or former members of the Garda, the legislation is diminished by an amendment which allows, not only any garda but any former garda to give such expert opinion. I take the Minister's point that people are leaving the Garda service every day. Senior gardaí are retiring at present in greater numbers, perhaps because they fear that their retirement lump sum will be taxed in December. This is an extraordinarily open provision. Gardaí might be brought in who have long left the force and who are running security or building companies. I do not suppose many former gardaí are running building companies at present, but they might be writing a column for theEvening Herald. I am not sure that is advisable.

I have been under the impression that in respect of the operation of the Offences against the State Act, a chief superintendent might not have direct knowledge of membership of an illegal organisation but that the gardaí working to him would have such knowledge and would brief him accordingly. His evidence might be based on his own direct knowledge or on briefing from his officers. I cannot understand why we should depart from that principle. If an ordinary community garda happens to have direct knowledge of what is happening on his beat, I do not see why he cannot brief his superior Garda officer to that effect and that a garda of the superior rank would be required to offer what the Minister calls expert opinion.

The Minister's use is different from the classic use of that term. We speak of expert opinion when a psychiatrist or medical practitioner gives evidence or when a trade union official goes down to say what is the rate in the electrical industry in the middle of a trade dispute. This is a slightly different use of the term. If Deputy Flanagan is right about no legal representative being present, it is all the more important that the evidence would be given by a garda of higher rank. I think that in the giving of opinion about the existence of a criminal organisation the legal representative would be present. Nevertheless, I am not persuaded that we should depart from the principle established by the Supreme Court.

I have considerable sympathy for Deputy Flanagan's amendment, although I am opposed to the section.

If a defendant has legal representation present, which I assume he or she would, could the defendant call every garda in the locality as a witness to testify that he or she is not a member of a criminal organisation? The Minister says any garda or former garda could be called upon to testify that a person is part of a criminal organisation or that such an organisation exists. I presume the opposite is true and that a defendant could call gardaí to refute the charge or, at least, cast a doubt on it.

I concur with what Deputies Flanagan and Rabbitte have said. There is some confusion between expert evidence and opinion evidence. I consider it necessary to specify that the garda giving such evidence should not be below the rank of chief superintendent. The provision leaves the section, and therefore the Bill, open to constitutional challenge. If the legislation is referred to the Supreme Court — and I believe it will be — this provision will be struck out, making the legislation entirely redundant.

I am supportive of the Bill. Among others on this side of the House, I called for this legislation last autumn, when the Minister said it was not necessary. I hope it will be robust and will stand up to constitutional scrutiny but I fear the Minister is leaving it open. I hope he will reconsider this aspect of the Bill. Otherwise, it is in danger of becoming redundant.

I question the criteria by which appropriate expertise can be defined. It is difficult to envisage a court refusing to hear the evidence of a trained garda on the basis that he or she did not know enough about gangs.

Gardaí do fantastic work and have great knowledge. The Offences against the State Act requires that opinion evidence be given by a chief superintendent or a more senior garda. The evidence referred to in this section is slightly different. For a garda to report to a chief superintendent seems a more formal way of achieving the same result. When the evidence is presented in court it will have gone through the normal procedures within the Garda Síochána. The term "expert evidence" can be appropriately applied to such evidence.

Progress reported; Committee to sit again.