Dáil Éireann debate -
Wednesday, 13 Jun 2012

Vol. 768 No. 2

Criminal Justice (Amendment) Act 2009: Motion

Minister for Justice and Equality (Deputy Alan Shatter)

I move:

That Dáil Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period of 12 months beginning on 30th June, 2012.

This resolution will provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a period of 12 months from 30 June 2012. Let me briefly remind the House of the background to the 2009 Act, lest anyone believe it was an overreaction to a non-existent threat. At the time there had been an increase in the level of organised crime. Organised gangs had shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. As a result the Garda was encountering difficulties in persuading people to give assistance in their investigations. The complete disregard which these gangs showed for human lives threatened to subvert the entire justice system. In the circumstances, it was imperative that the State take the necessary steps to ensure the criminal justice system was sufficiently robust to withstand the assault launched upon it through intimidation of and violence towards witnesses and jurors. The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law and justice and to instil confidence in all that criminal gangs were not going to be permitted to frustrate criminal investigations or prosecutions of their activities.

In view of the very real threat these gangs posed, the Act provided for a limited number of specific "organised crime" offences to be prosecuted in the Special Criminal Court. The proposal to use the Special Criminal Court for a limited number of organised crime offences removed the possibility of jury tampering or intimidation of jurors.

The purpose of section 8, therefore, is to ensure that organised criminal gangs cannot interfere with the criminal process to determine the outcome of cases. To this end the section declares that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, in respect of certain offences. The offences in question are the organised crime offences under Part 7 of the Criminal Justice Act 2006. In brief, these offences are directing the activities of a criminal organisation, referring to section 71A of the Criminal Justice Act 2006; participating in or contributing to certain activities of a criminal organisation, referring to section 72; committing a serious offence for a criminal organisation, referring to section 73; and, liability for offences committed by a body corporate, as in section 76.

Section 8 of the Criminal Justice (Amendment) Act 2009 makes these scheduled offences for the purposes of Part V of the Offences against the State Act 1939. Although this means the Special Criminal Court will hear prosecutions for the offences in question, the Director of Public Prosecutions may still exercise his power to direct that the offences should be tried in the ordinary courts. I believe that permitting the DPP this discretion maintains the fundamental balance in deciding which cases are appropriate to be tried in the Special Criminal Court. A further bulwark in maintaining this balance is provided in section 8(4) of the 2009 Act. This provides that the section shall cease to be in operation unless a resolution has been passed by each House of the Oireachtas resolving that it should continue in operation for a further period, to be decided by the Oireachtas. I reiterate, that is the purpose of moving today's resolution

In order to enable the House to decide on the continuation of section 8, subsection 6 provides that before a resolution to continue section 8 in operation is passed, the Minister for Justice and Equality shall prepare a report, which shall be laid before both Houses, on the operation of the section in the period under report. The report, covering the period from 1 June 2011 to 31 May 2012 was laid before both Houses on 8 June 2012.

My reasons for seeking the renewal of section 8 are clear. Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. Unfortunately, there is plenty of evidence showing the willingness of the these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult. This is particularly so given the insidious power that criminal gangs hold over their members and, regrettably, within the communities in which they live. The 2009 Act has been in operation for more than three years and while there have been arrests under the relevant sections of the Criminal Justice Act 2006 no cases have yet come before the Special Criminal Court in accordance with section 8. This does not, however, invalidate the reasoning for having such a provision available for use in appropriate circumstances. The use of the Act to date serves to highlight the considered approach of the Director of Public Prosecutions and vindicates the way in which the provision is constructed, allowing him to exercise his discretion to direct that cases be tried in the ordinary courts.

In his report to me on the operation of section 8, the Garda Commissioner is of the clear view that this provision is likely to be required for some time to come. As Minister for Justice and Equality, I must have the utmost regard for the views of the Garda authorities in matters such as this. It is absolutely essential to ensure that gardaí have at their disposal the best possible range of powers to face up to organised criminal gangs. In that context, and in keeping with an undertaking I gave last year when this matter was being considered, I have asked my officials, in co-operation with An Garda Síochána, to examine ways in which the legislation might be improved.

In the period under report, there have been a total of 38 arrests under the relevant provisions of the Criminal Justice Act 2006. Three arrests were made under section 71A, namely, directing the activities of a criminal organisation; the remaining 35 were made under section 72, namely, participating in or contributing to certain activities of a criminal organisation. As a result of these arrests, a total of 19 other charges have been preferred against various individuals, including 18 relating to burglary and one relating to robbery contrary to sections 12 and 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 respectively. Only last Monday, 11 June, two men from Galway were each sentenced to nine years' imprisonment after they pleaded guilty to offences under section 72.

The Garda authorities devote considerable resources from across the Garda organisation to their efforts to tackle organised crime and they deserve our praise for the successes they have had against a number of those involved in these criminal gangs, who are now behind bars. Furthermore, the Commissioner has made it clear, time and again, there will be no let-up in the action taken against these gangs. He has the Government's full support - and I expect that of Members of this House - in that approach.

Let me be blunt - the individuals involved in organised crime are ruthless people who will stop at nothing to avoid being brought to account for their crimes. Violence and intimidation are a way of life for these people. We, that is the Government and the Oireachtas, have a duty to ensure the criminal justice system is equipped to prevent them undermining our core values. To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has a means available to bring serious criminals to account and to justice. On balance, I consider it is necessary to continue section 8 in operation for a further period. The period now proposed will run for 12 months, from 30 June 2012.

I commend the motion to the House and hope it will have the full support of Members.

Deputy Dara Calleary

My party will support this motion. I wish to pay tribute to the Garda for its work in this area during the past 12 months. Anybody who read about the case in Galway last Monday, to which the Minister referred, will look at the detail and the work that had to go into the prosecution of that case on the part of gardaí. Although some of the provisions of the Act overall enabled the prosecution it was also the man, or person, hours that went into it which contributed.

The one difficulty or challenge we have in this regard is that we need to ensure that EU legislation in this general area is as robust as our own internal legislation. The Minister committed previously to making this one of the key points of his agenda for the Presidency next year. Perhaps in his wrapping up he might give the House an idea of where we stand on that.

We are dealing with people who have no regard for this House, the citizens of this country or the rights of anybody. People who perform their duty and give jury service are doing the State a service and to think that because they do that they may be subject to threats by people who wish to avoid justice is fundamentally wrong. We need to ensure they have protection and that those who are selected for jury duty in a case such as this will have that protection. That is why we support the renewal of these measures.

Deputy Jonathan O’Brien

Before I comment on the motion, I refer to the Minister's closing remarks on the previous motion which show a complete lack of understanding and ignorance of the situation that prevailed in the North during the past 30 years. Some of the Minister's comments in regard to "slow learners" and people only embracing the peace process because they were tired of violence are way off the mark. He knows this himself. Those types of comments do not do any justice to those individuals and organisations that took brave and courageous decisions to show leadership in trying to bring about a situation on the island of Ireland where conflict can be resolved through solely democratic and peaceful means. Even by referring to Derry as Londonderry in his speech, the Minister shows the type of mindset he has, as an individual. It is very disappointing. I have never clashed with the Minister on any issues in this House but that closing rant was not fitting for a Minister for Justice and Equality, especially when I consider that the Minister in question has responsibility, under the terms of strand three of the Good Friday Agreement, to bring about the full implementation of that Agreement.

One of the outstanding issues is the normalisation of policing and justice systems on the island of Ireland. I have stated in this House that we must all work together to ensure that those groups which are still engaged in a certain type of activity will be convinced their actions will not not achieve the goals they think they will achieve and that the only way forward on this island is through peaceful and democratic methods. We will work continually to encourage those groups to embrace that belief. However, the Minister's closing remarks on that point were completely overboard and I believed I should say as much to him.

On the motion before the House, some of those who are involved in organised criminal activity have absolutely no regard for law and order or the rights of citizens. Everything must be done to ensure people are given due process when they are brought before the courts. Everyone has the right to be tried by a jury of their peers. We have a responsibility to ensure those who serve on juries can do so in a safe manner, free from intimidation. We will support measures that will allow that. The budget for witness protection, for instance, was decreased a number of years ago. We welcomed the increase of 33% in the witness protection budget in this year's budget. Such measures will ensure we can bring people to court for a fair trial where they can be judged by a jury of their peers. Such measures will prove more effective in the long run than the repressive measures - there is no other way of describing them - contained in the proposal before the House.

It is a sad reflection on any government or state when it has to admit that the ordinary courts are not adequate to deal with individuals who are involved in organised criminal activity. In such circumstances, the state in question has failed to deal with issues like jury intimidation and witness protection. If we are serious about dealing with organised criminal gangs, we need to put resources in place. For instance, we should not be closing rural Garda stations. The Minister will say that is just one aspect of the matter. If we are to be serious, we should ensure financial resources are invested in front-line manpower. If the recruitment embargo has to be lifted to deal with organised criminal gangs, that should be done. I am sure those who are involved in organised criminal activity see the introduction of legislation to ensure they are tried before the Special Criminal Court as an admission of the State's failure to provide protections and safeguards to those who serve on juries. It is the wrong way to go. We will oppose this proposal for that reason. That is not flippantly to disregard the activities of these criminal gangs. We understand they cause misery and hardship and have no regard for law and order. If we examine best international practice, we will see that other countries have found more effective ways of dealing with organised criminal gangs that do not involve institutions like the Special Criminal Court.

Deputy Finian McGrath

I thank the Chair for the opportunity to speak on this motion, which relates to the Criminal Justice (Amendment) Act 2009. This hugely important motion gives us a chance to set out our clear and objective views on the current situation, from a human rights view and in the context of the safety of the citizens of this State. The lives and safety of our people have to be priorities. This does not mean we do not have to be vigilant and careful in case potential cases of miscarriage of justice arise. As an Independent Deputy, my role is to ensure the State has a quality justice system that provides safeguards for its citizens. I welcome this legislation because the issue of organised crime is an exceptional one. It is a huge problem for the State. As the Minister knows, it is also an international problem. That is why co-operation right across the world is fundamental.

We all hear or read about murders, shoot-outs and cases of intimidation, but we should not forget the silent and widespread intimidation of communities. Fear dominates and destroys communities. Whole areas of our cities and towns and being destroyed by gangs. Most cases of intimidation are not even reported to the Garda. We have a duty to face up to that reality. The men and women across this city who have to face intimidation every single night do not make the news headlines. Many of us have witnessed at first hand the fear and coercion that is really bad in many communities that have been abandoned by many politicians and by the State. It is important to deal with this by means of legislation. That is why I am very supportive of this motion. I have witnessed on the ground what is going on. Great courage and bravery have been shown against the odds in many of these communities. In the 1980s, the late Tony Gregory stood up to the drug dealers and spoke out against organised crime merchants at great personal risk. I saw that at first hand. Such brave public service should never be forgotten. Men and women across the north side of Dublin, in particular, have to deal with this and live with it every single day. As a country, as a society and as a State, we have to support those people fully. It is important that we do that.

The Criminal Justice (Amendment) Act 2009 was enacted in July 2009 to put certain additional legislative measures in place to tackle organised crime. Such measures are needed on the ground. Section 8 of the Act provides that certain organised crime offences under Part 7 of the Criminal Justice Act 2006 are schedule offences of Part V of the Offences Against the State Act 1939. Accordingly, the offences in question shall be tried in the Special Criminal Court without prejudice to the power of the Director of Public Prosecutions to direct that a person should not be sent forward for trial by that court. This is the background to this debate.

We have to appreciate that this is not just about the organised criminals themselves. We have to examine the economic and social damage caused by such people. Those involved in organised crime are up to their necks in the cigarette business. That has not been touched on. Such activity leads to loss of tax and loss of jobs. When there is a debate on those directly involved in organised crime, everybody focuses on the drugs trade or armed robberies. The illegal sale of cigarettes is a huge industry for organised criminals. That has to be tackled head-on because significant amounts of money and substantial exploitation are involved. Massive revenues are being lost to the State. As a smoker who buys 20 cigarettes every day, I know that smokers pay a great deal of tax. I will not moan about having to pay it, but I will mention that organised criminals are selling cigarettes on the streets and in communities at a fraction of the price they cost in shops. We often hear about the drugs issue, but there should also be a focus on the cigarettes issue.

As a member of the Joint Committee on Justice, Defence and Equality, I believe we need to invest in disadvantaged communities. Tony Gregory fought for this in the 1980s. I was one of those who welcomed the foundation of the Criminal Assets Bureau in the 1990s. I thought it was important for a State organisation to have the right to take the assets of criminals and organised crime merchants. When the resources and assets of these people are seized, we should consider ensuring they are reinvested into communities like those mentioned by Deputy O'Brien. I know many people are talking about the huge Priory Hall issue and the families who are affected by pyrite. Similarly, many blocks of flats throughout this city and in my constituency could do with a little improvement to give them a bit of a leg-up. The people living in areas where organised criminals are operating on the ground are not looking for a hand-out - they are looking for community facilities. There would be cross-party support for any attempt to ensure the money accrued in this way is reinvested in disadvantaged communities that have to deal with this issue.

I strongly support section 8 of the Criminal Justice (Amendment) Act 2009, which is the important part of that legislation. It makes it an offence to direct a criminal organisation, participate in and contribute to the activity of a criminal organisation for the purpose of committing or facilitating the commission of a serious offence, or commit an offence for a criminal organisation. It also covers such offences as committed by a body corporate. Section 8 is very important as this is the area we need to target. No matter what we say, and we can talk about human rights until the end of the world, our priority must be to ensure that the human rights of our citizens come first. Section 8 must ensure we target these people, get them off the pitch and try to resolve the issues. However, there is no point in dealing with the criminal justice side unless we also look at the broader response, in particular the position of alienated communities.

We also need to look at our policing service. I have seen examples of good practice in regard to people being involved with the drugs squad and similar issues. There are examples of good practice within the system but there needs to be a national policy across communities. There are people in communities who are prepared to take a little extra risk provided they get back-up. The problem is that they often say they do not get the back-up when needed, as I know from walking about my own constituency, meeting people and talking to those who are intimidated on the ground. Many of them have asked me to report incidents in this regard, which I am sure has happened to many other colleagues as well.

The purpose of the Bill is to allow the trials for such offences to take place without a jury in order to avoid the possibility of jury intimidation. We must face this reality but there is no contradiction in challenging it in order to ensure we always have respect for the human rights side. It is stated that if the DPP is of the opinion that jury intimidation is not an issue, he may direct that the offence be tried in the ordinary courts. That is an opt-out clause. If the DPP decides jury intimidation is not an issue, it is in the ordinary courts that the case should be tried.

The reality is there is a huge threat from serious organised crime, particularly in regard to smuggling, including that of cigarettes, but also murder, intimidation and the use of firearms and explosives. A sad point is the lack of response on occasion when incidents happen in poorer communities rather than in more upper middle class areas. Many people feel that if an incident happens in a certain part of the city, it will be forgotten within three days. To have young teenage girls shot in the back of cars is not acceptable in any society. The Minister has heard all the different views. We need to ensure the human rights of every person in the State, including victims, are protected and given the maximum support regardless of whether they are affluent people or those who are unemployed or who do not necessarily have a lot of money or resources.

I welcome the legislation. I will always be a watch-guard on human rights but, when it comes to organised crime, we must face reality and we must have the legislative powers to deal with these people. Otherwise, communities will be destroyed and it will go on and on.

Minister for Justice and Equality (Deputy Alan Shatter)

I thank Deputies Dara Calleary and Finian McGrath for their support for this measure. I regret that Deputy Jonathan O'Brien does not see fit to support it.

To deal with the issues raised, as Deputies Calleary and McGrath referred to CAB, I can confirm I am continuing to engage with my European colleagues in these areas. We now have published by Commissioner Malmström a new European measure to provide greater co-operation in the seizure of criminal assets following criminal convictions being obtained against individuals in serious cases, and also for the freezing of assets pending the hearing of criminal proceedings. I am also proceeding to engage with trying to persuade colleagues in Europe that we should have a European-wide framework whereby, within each European Union member state, there is an agency that replicates our Criminal Assets Bureau, so we would have European-wide co-operation on the civil seizure of criminal assets. I am happy to report to the House that we are having some success in that regard.

Some of the EU member states have gone about enacting such legislation. Bulgaria only two weeks ago succeeded in bringing its legislation through parliament and, indeed, we provided some assistance to the Bulgarian minister in the provision of background information. Slovenia is enacting such legislation and a number of other European countries are also now considering it. That is an issue that is continuing to develop. It takes time but we are making progress.

The reality is organised crime is now international; it does not recognise borders or boundaries. If we are to be successful in tackling organised crime, we must do what is necessary on this island. However, we need far greater co-operation on a European-wide approach so those who benefit from organised crime in one EU state do not feel the proceeds realised by them can be safely invested or held in another EU state.

Turning to what Deputy O'Brien had to say, and perhaps this is my attitude when it comes to the Good Friday Agreement, I would use the terms Derry or Londonderry interchangeably. They are used by the two different communities in Northern Ireland - the Catholic community refers to Derry, the Protestant community refers to Londonderry. It is a place I want to see live in peace.

Deputy Jonathan O’Brien

As I do.

Deputy Alan Shatter

I do not have hang-ups about which name is attached to it. I tend to use Derry more frequently than Londonderry simply because of my interest in soccer and catching up with what Derry City do on occasion. If my interest in soccer could bring about a situation where we had one international team representing the island of Ireland with regard to soccer, as we have in rugby, I wish we could see that happen. I know other people have expressed that view. If we are going to truly be successful on the international stage, as successful as our rugby team has been over the years, we need one soccer team that represents the island of Ireland and, indeed, to develop to a maturity where we have one domestic soccer league and second division that covers the island of Ireland. That would be very welcome.

I agree with the Deputy that we must continue to work the peace process and encourage those who are still intent on violence to end the violence, but we have to be realistic. I know the Deputy's party has sought to bring about that result. Unfortunately, to date, some of the more recalcitrant individuals committed to violence and, tragically and sadly, some young people who were not around at the time of the Troubles or were too young to take notice of them, are prepared to kill and maim. We need robust laws to deal with those issues. People showed courage to bring about an end to violence and bring about peace, but it is a great pity that those who were ultimately courageous were not courageous a decade or two decades earlier and did not bring the violence to an end at an earlier point.

Deputy Jonathan O’Brien

There were different circumstances.

Deputy Alan Shatter

In regard to Deputy McGrath's contribution, I agree it is very important we have robust laws that facilitate ensuring that those engaged in organised crime are brought to justice and, indeed, that trials can take place that are free and fair. As I pointed out, although the powers exist under this section to provide for trials in the Special Criminal Court, the Director of Public Prosecutions can make decisions that do not result in such trials coming before the Special Criminal Court but ensure they are ordinary jury trials.

I am afraid Deputy O'Brien is wrong in one respect. It is important we have the witness protection programme and we are doing what we can to ensure it is adequately resourced. Indeed, it has been used very effectively in recent times to provide protection, where necessary. However, a witness protection programme does not give solace to juries. People do not want to serve on juries or feel there is a need for a jury protection programme whereby, if they sit on a jury, they may end up having to take themselves and their family out of this country to be relocated somewhere else for fear of intimidation or threats which may result in the death of a member of their family, as happened to the Collins family as a result of evidence given in a particular trial. We do not need to and should never put jurors in that position. If organised gangs or individuals are prepared to intimidate jurors and if it is not possible to have a trial that is open and free, where jurors can, with an open mind, listen to evidence and make decisions, we need the fallback position of enabling the Special Criminal Court to hear appropriate cases. This is very important. It is the structure we need to keep in place. For those reasons, I commend the motion to the House.

Question put and declared carried.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.