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JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 27 Jul 2005

Scrutiny of EU Proposals.

I thank all for attending today. We have invited some officials from the Department of Justice, Equality and Law Reform so that we may consider an EU legislative proposal.

I welcome Ms Valerie Fallon, principal officer, and Ms Deirdre Meenan, assistant principal officer in the Department. The purpose of today's meeting is to consider an EU scrutiny proposal on a proposed Council framework decision on the fight against organised crime, COM (2005) 6. The proposal was referred to this committee for its consideration by the Sub-Committee on European Scrutiny. Members were circulated last week with an updated briefing note from the Department and the most recent text of the proposal. Today's speaking note will also be circulated.

The purpose of the proposal is to strengthen the capacity of the European Union and its member states to combat transnational organised crime. The proposal will replace the EU joint action of 1998 by making it a criminal offence to participate in a criminal organisation in the member states of the EU. I now invite Ms Fallon and Ms Meenan to address the committee.

Ms Valerie Fallon

I thank the committee for the invitation to discuss the EU proposal for a framework decision on the fight against organised crime. The proposal is being made in the context of the provisions of Title VI of the EU treaty which deals with judicial co-operation in criminal matters. These provisions created an objective of providing citizens with a high level of safety within an area of freedom, security and justice. The objective is to be achieved by preventing and combating crime, organised or otherwise, in particular, terrorism, trafficking in people, offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud. The means for achieving this objective include closer co-operation between judicial authorities and approximation where necessary of rules on criminal matters.

The proposed framework decision is an instrument designed to achieve approximation of the criminal laws of the member states. The purpose of the proposal is to strengthen the capacity of the European Union and the member states to combat transnational organised crime. Its primary purpose is to have a common EU approach to criminalising the activities of those involved in criminal organisations.

The proposal will replace the EU joint action of 1998 on making it a criminal offence to participate in a criminal organisation in the member states. It is primarily a reformatting exercise. By this I mean it is reformatting the 1998 joint action into a framework decision. Since the Treaty of Amsterdam came into effect on 1 May 1999, framework decisions are the appropriate instruments for adoption as regards approximation of criminal law. However, it is also intended to take account of the similar provisions of the UN Convention on Transnational Organised Crime 2000. The proposal also provides for approximation of penalty levels, responsibility for legal persons, some jurisdictional provisions and provisions as regards victims. The current work programme of the European Union, the action plan implementing the Hague programme, sets the deadline of 2006 for the adoption of this joint action by this framework decision.

There are no major implications for Ireland. The proposal in general reflects the existing EU joint action and the UN convention. We are already signatories to these instruments and it is intended to give them effect in Irish law by way of a provision which the Minister intends to introduce as an amendment to the Criminal Justice Bill 2004. The Minister will submit proposals in this respect to Government in the near future.

Nevertheless, the precise terms of the framework decision must be examined carefully. In the joint action and the UN convention, the approach taken to the definition is to require parties to create an offence on the basis of either the common law conspiracy approach, that is, an agreement between parties to commit an offence, or a participation type approach, that is, participation in the activities of a group knowing that the participation will help the group to achieve its criminal objectives. The latter approach is more common in civil law jurisdictions.

The original Commission proposal did not contain both options but dealt only with the participation approach. Ireland has a reservation on that proposal because we want to ensure the proposed participation approach is acceptable in Irish law. We await the Attorney General's advice in this regard. Our reservation is more by way of being cautious rather than because we believe there is any major problem. The most recent version of the proposal is in CRIMORG 57 which has been circulated to members. That version seeks to restore the option of either approach.

In terms of the progress to date, the proposal was discussed at the multidisciplinary working group on three occasions during the Luxembourg Presidency, 14 March, 27 April and 14 June, and on one occasion, 1 July, during the current UK Presidency. The key issues which emerged relate to the definition of the offence, Article 2, and the applicable penalties, Article 3. In regard to the definition, the current draft contains the option for either the conspiracy approach or the participation approach but opinion remains divided on whether both options should be available. However, it is possible that forthcoming discussions during the UK Presidency will clarify this issue.

In regard to penalties, there are concerns that the penalty provision is not properly formulated to reflect the current EU policy of providing for minimum maximum penalties in framework decisions. The Council decided in April 2002 that where there is a need to approximate penalties and it is imperative to go beyond requiring that the penalties be effective, proportionate and dissuasive, then certain levels of minimum maximum penalties should be provided. This policy means the instrument will set down the minimum maximum penalties that must be provided for in national law. For example, the instrument may provide that an offence is to be punishable by a minimum maximum penalty of ten years.

Accordingly, our law will provide that the offence is punishable by a maximum of at least ten years. However, the courts retain complete discretion to select an appropriate penalty within the range of nought to ten years. The proposal as currently worded could be seen to suggest that such judicial discretion is being limited. The problem is most likely a drafting issue and is expected to be rectified and clarified in re-drafting.

The UK Presidency held discussions on the instrument on 1 July but did not discuss any of the main issues of substance, concentrating instead on more technical matters. The Presidency proposed to make a new proposal on the main Articles 1, 2 and 3 and this is expected before September.

I will briefly explain each of the provisions as contained in the most recent draft, CRIMORG 57. Article 1 provides for the definition of a criminal organisation, which is based on the existing definition in the joint action and in the UN Convention on Organised Crime. It is a structured association of more than two people, established over time to commit offences punishable by at least four years' imprisonment.

Article 2 requires member states to treat as a criminal offence the fact of directing a criminal organisation. It also requires member states to create a criminal offence on the basis of either the participation approach to criminal activity or the conspiracy approach.

Article 3 provides for penalties. Paragraph 1 requires a minimum maximum penalty of ten years for directing a criminal organisation and five years for the other offences. Paragraph 2 requires that serious offences, that is, offences punishable by a penalty of four years or more, committed in the context of criminal organisations be punishable for longer terms than would otherwise be possible.

Article 4 provides that the appropriate penalties can be reduced in the circumstances set out in the article. These include renunciation of criminal activity and providing helpful information to the relevant authorities.

Articles 5 and 6 are standard provisions dealing with liability of and penalties for companies. Article 7 deals with jurisdiction and co-ordination of prosecution. The first paragraph requires each member state to ensure it can prosecute an offence which takes place on its territory even if the criminal organisation is not based or does not pursue its criminal activities there. The second paragraph deals with co-operation in centralising a prosecution in one state where more than one state has jurisdiction to prosecute. The criteria to apply may need more careful consideration.

Article 8 provides that a prosecution is not to be dependent on a complaint and that appropriate assistance should be given to victims' families. Article 9 provides for repeal of the existing joint action. Articles 10 and 11 are standard provisions dealing with implementation, reports and entry into force.

The next discussion on this proposal is likely to take place in September and it is expected that the UK Presidency will make a new text available for that meeting. The proposals in this framework decision are generally in line with what has already been agreed at EU and UN level and in respect of which the Minister intends to bring forward legislative proposals shortly.

What is the genesis of this particular proposal? The issue of gang membership and criminal organisation came to the fore in the past 12 months in light of the robbery of security gangs and criminal activity in Limerick and other areas. Have these had any effect on the drawing up of this particular legislation? I have some more questions and request that delegates bank them before answering.

We visited Canada a short time ago where police there have a bikers' enforcement unit. Biker gangs caused huge problems across Canada from Quebec to Ontario and beyond.

Where efforts were made to bring people to court under legislation similar to this proposal, they did not work. Although one case was brought, problems arose with it and further cases have not been brought. Has this been taken into account as far as this proposal is concerned?

The next question concerns judicial training. It is all very well to set out the provisions and developments pertaining to the proposal, but is it intended to train judges to implement its judicial aspects? In the past we have seen how in certain cases ten-year sentences which were to be imposed for certain drug offences have not materialised. How will judges be trained in respect of the number of years suggested in this proposal? How will we ensure the implementation of a consistent approach throughout the Judiciary?

Article 8 proposes that appropriate assistance should be given to victims' families. Too often, we have seen the families of victims being stretched and stressed, particularly when cases take two or three years to come to trial. Last night it was revealed that a case, which had nothing to do with gangland, did not proceed because three years had elapsed. However, cases involving murders and vicious assaults take two or three years and the victims' families often suffer during that period. What is included in these provisions to minimise and mitigate the suffering of victims' families? I would appreciate it if Ms Fallon responded to these questions.

Ms Fallon

Regarding the Chair's first question concerning the proposal's genesis, its origins do not lie in our own particular brand of organised crime but go back to the general problem of organised crime as experienced on the Continent and elsewhere. As the joint committee is aware, the proposal's definition refers to structured organisations. Consequently, many of the organisations under consideration were structured organisations such as the Mafia and biker gangs etc. Obviously, however, it is not limited to such organisations because some organisations involved in drug trafficking etc. are quite structured. Hence, the proposal is meant to deal with many organisations involved in cross-border crimes, such as the trafficking of drugs or people, as well as dealing with the more structured organisations.

In a sense, this leads to the Chair's second question as to the potential effect of this type of provision. One problem with the participation approach is that it is extremely difficult to prove. As the Chair has mentioned, there are provisions of this type in Canada. The Minister is interested in and has examined them in so far as they can be used in the Irish context. There is some benefit to having them on the Statue Book as there may be circumstances in which they can be used. Obviously however, it will not be possible to use such provisions in all circumstances as it is quite difficult to secure the level of proof required to prove membership of a criminal organisation.

As regards judicial training, the penalties provided in this framework decision must be implemented into Irish law. The Irish legislation would follow the normal approach of providing for minimum and maximum penalties and obviously, it would be up to the Judiciary to implement it in the normal fashion. It is not proposed to provide for mandatory minimum penalties but for maximum penalties at a minimum level. This means that every state must legislate for the most serious manifestations of this type of crime to be punished with a maximum of at least ten years for directing an organisation and five years for the offence,

When the legislation is brought forward the Judiciary will be informed. At the moment no consideration has been given to whether any specific training other than the normal training would be necessary.

The Chairman asked about the reference in Article 8 to assistance to victims' families. One of the problems with a framework decision of this type is that it can be difficult to know who the victims may be. The framework decision does not target any particular type of victim because there is already a decision which applies generally to the rights of victims and which recommends that, where necessary, appropriate assistance be given to victims. In some cases involving organised crime people may be victims of trafficking. An EU joint framework decision and a UN protocol on trafficking in people already exist providing special safeguards for victims of trafficking.

In addition to standard safeguards such as those ensuring people be treated with dignity and informed about proceedings, there should be special consideration where the victims are children or, if they are non-nationals, arrangements should be made to allow them to stay in the country for a certain length of time. The framework decision has in mind that in its implementation, member states should have regard to the specific circumstances of victims of this particular type of offence.

I wish to raise the issue of gangland membership and of the official Government position on it. There are two ways of looking at this proposal. First, we may consider the extent to which we may influence the final formulation of the EU document and the way we implement it in Ireland. Second, and perhaps more important, we may consider whether we are prepared to go beyond the Common Position of the EU or whether we will be able to do so in the context of agreeing a joint position at EU level. That is one issue on which we need clarity.

A second issue requiring clarification arises from the fact that the UK apparently has new suggestions for the main articles of the proposed framework decision. Have we any idea what its revised proposals will be? I anticipate they would suit us in that the UK has a common law jurisdiction like our own. We might want to support those proposals if we could find out what they were.

The other issue that emerges is how far we can go in the context of amendments to the Criminal Justice Bill 2004. I asked the Minister some months ago for a copy of proposed amendments to the Criminal Justice Bill. Similar to the situation with the UK, I have not seen these amendments. To a degree, what is being discussed is an issue without any great clarity from the Minister.

When the full picture emerges at EU level and when the Minister proposes definitively how he will deal with gangland activity here, and he has proposed appropriate amendments to this effect, the committee should have a separate discussion on that issue. On behalf of Fine Gael, I point out that the issue of gangland activity has not been tackled adequately despite the need to do so.

In the context of the proposed discussion, it would be useful to have a realistic analysis of how effective the Canadian approach was. I understand that "turf wars" were evident in Quebec and the Canadian Government produced proposals to criminalise gang membership. We are, however, receiving mixed messages as to how effective the provisions have been.

There are too many loopholes in this document with regard to objectives that should be achieved by this committee. From the point of definition, the document refers to providing for an offence where there is an agreement between parties to commit an offence or in participating in a group where participation will help the group achieve its criminal objectives. This is not sufficient. With the first approach, there will be great difficulty in getting proof of agreement between the parties committing the offence. With the second approach, getting evidence will also be difficult.

Does the issue need to be examined in more detail? Will the committee need more information on the views of the UK which holds the Presidency of the EU? Will greater clarity on the Minister's position on amending the criminal justice legislation not be required? Much information on these issues is needed before the committee can come to a definitive view on how effective the proposed approach will be.

I thank Deputy Jim O'Keeffe for his excellent contribution. I understand that the witnesses here are officials of the Department of Justice, Equality and Law Reform and the answers given by them will be acknowledged in that light.

I do not intend to put anyone in an embarrassing position. We have a common purpose in trying to achieve the most effective EU framework and the most effective legislation possible on criminal gangs. There is no difference between the Minister for Justice, Equality and Law Reform, Deputy McDowell, and myself in that regard.

Is it possible for the witnesses to comment on the matters raised by Deputy Jim O'Keeffe?

Ms Fallon

I can comment on the Deputy's questions. With regard to whether it is possible to go beyond what is in the EU proposal, I have stated that the EU proposal is not a great novelty. It largely took what was already there and re-formatted it. It is always open to us, but we cannot have less than what was agreed upon at EU level. Nothing is stopping us from going further than this other than restrictions on a national level, for example, the Constitution and so on. We are maintaining our sovereignty to bring forward proposals which could go further than what we are required to do at EU level. I am not sure what the UK will bring forward. The UK had concerns over the difference between the conspiracy-type and participation-type approach because it is a common law jurisdiction. I expect it will attempt to deal with that approach in its new proposal.

Other issues that it will bring forward concern some inconsistencies in the drafting which caused difficulties in understanding what is proposed. I expect the UK will concentrate on trying to streamline some of those provisions. I am not expecting a fundamentally different draft but perhaps a more understandable one.

On the amendments the Minister intends to introduce, he is aware of the Deputy's requests and is finalising his proposals on organised crime to be introduced by way of an amendment to the Criminal Justice Bill. He hopes to make them available in the near future. The proposals will reflect the existing EU and international obligations. The Minister intends to bring forward the proposal to have a participation-type approach which is somewhat similar to what is contained in the EU joint action and the Canadian approach. While his proposals are not finalised, he hopes to have them shortly.

I thank Ms Fallon. These are proposals that will need to be properly and carefully teased out. While I looked for them some months ago, I do not want to see them 24 hours before the Bill is guillotined on closing Stages in the Dáil, as has happened with other legislation, without being given proper consideration.

I reiterate that for the whole committee as it is necessary we have adequate time to consider any matter.

I am always suspicious when I see the proposal is primarily a re-formatting exercise and has no major implications for Ireland. Of course it has major implications for us. While we do not have an offence in this jurisdiction for organised crime, the Minister has already done some somersaults on this matter. Originally, he was totally opposed to an offence for organised crime and now he has changed his mind on the issue. Despite all this, even though he published the Criminal Justice Bill 18 months ago, he still has not produced an amendment for us.

To say that it has no major proposals is wrong. Top legal academics and members of the legal profession, including the Director of Public Prosecutions, the Bar Council and the Law Society, discussed the area of criminal justice at the committee. There was a mixed reaction to an offence for organised crime and how it could be couched in a meaningful fashion. While there was no agreement on it, all the professional bodies expressed their concern about it and were in general not supportive of the idea.

That is what the committee will face in future with the Minister for Justice, Equality and Law Reform. He should be attending this meeting to explain what he has in mind. However, I do not believe he knows what he has in mind. What we are discussing now is a common approach on an EU basis to transnational crime which we know has always existed.

In terms of what we are seeking to do, the framework decision is a very broad canvas. It includes combating crime, particularly organised crime, terrorism, trafficking in people, offences against children, illicit drug trafficking and illicit arms trafficking. There is a world of difference between terrorism and "traditional" organised crime. There has been an escalation of terrorism around the world in recent years yet there is no attempt in the documentation or in the articles as presented to give a clear indication which is being targeted — organised criminality with regard to terrorism or organised criminality with regard to gangs involved in what would be regarded as traditional crimes of money laundering, drugs trafficking and so on. The two are quite different.

If one looks at the two definitions, one of them seems to correspond to the idea of what one might call ordinary decent transnational crime, though it is far from that, while the other seems to correspond to terrorism. Which are we targeting, or are we targeting both? What is the object of the exercise? Is it targeting transnational terrorism or suggesting approaches to the sort of transnational crime we have been examining for a long time, such as mutual co-operation in dealing with gangs sending drugs from Holland or Spain, for example, to Ireland, or gangs trafficking women and children into Ireland, which has caused considerable concern as well?

We need a proper decision. The witness says the next discussion will take place in September in the context of the British EU Presidency. I have no doubt this document will not exist as such when the British EU Presidency examines it. It will refer to a different time. Britain has already indicated a shoot to kill policy with regard to terrorism, and is talking of introducing national identity cards for its citizens. That is unlikely to be the type of format with which we will be dealing. If it is simply limited to a reformatting of what is already there, we might as well not be discussing it at all. What is new?

Let us look at the two definitions in Articles 1 and 2. Article 1 refers to a criminal organisation as a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty. That definition relates to what I regard as the standard transnational criminal organisations. However, Article 2(b) refers to conduct by any person who with intent and with knowledge of either the aim and general activity of the organisation, or its intention to commit the offence in question, actively takes part in the organisation's criminal activities, including the provision of information or material means, the recruitment of new members, and all forms of financing of its activities etc. That is clearly directed towards terrorism, while the other definition is not. It is not a question of a choice of one or the other. Two different types of offences are referred to. The Department of Justice, Equality and Law Reform must state clearly where it stands on these issues.

If we are seeking a common European Union approach, are we in favour of a shoot to kill policy in dealing with terrorism and other such offences? Britain has already declared its policy, so how can we have a common European approach on this issue? We have always opposed shoot to kill policies where the police are concerned. Such policies are dangerous, as we have already seen in the case of the young Brazilian who was completely innocent. He was shot eight times in the head, without even a call to stop. These are issues that must also be clarified before we move into the area of the so-called common European policy.

Are we going to have joint investigation teams in respect of this matter? A recent article in the Irish Examiner referred to mutual legal association and the document signed by the Minister prior to it coming before the House and this committee. This raises the spectre of Guantanamo Bay and also that of US agents interrogating citizens in Ireland. That all falls within the overall ambit of the document. When it comes before the committee — prior to being put into statutory format — we will obviously consider it carefully and insert caveats, protections and safeguards. The Minister, however, was of the view that he was quite entitled to proceed to sign this agreement prior to its coming before the Houses of the Oireachtas. Again, these are issues that must be answered by the Minister. They are not the responsibility of officials from the Department appearing before the committee. The latter should, however, communicate these matters to the Minister, particularly in terms of the manner in which he conducts his business. He conducts that business in a very high-handed way in every area. This is particularly true in terms of what Deputy Jim O’Keeffe and the Chairman have already said regarding the failure to give the committee even a whiff of his amendment in respect of organised crime and gangs.

The manner as to how this will operate will again bring into focus the question of exchange of information and sensitive data. I refer here to how this will be done, where data will be stored and the protections that will be in place as regards its use. We are now talking about conspiracy whereby multi-jurisdictional activity will take place. Again, these are serious matters.

I have two final points. In respect of the offence of directing a criminal organisation, is that something we proposed in the context of the Offences Against the State (Amendment) Act 1998? The matter of how victims will be protected could be expanded on further in terms of the article which makes provision in that regard.

Ms Fallon

The proposal before us deals specifically with organised crime. It is not intended to deal with terrorism. Obviously, there may be-——

In her earlier statement, Ms Fallon included terrorism as one of the functions. She used the term, "in particular, terrorism".

Ms Fallon

I can explain that. I said that the objective in achieving an area of freedom, security and justice under the treaty is to be achieved by preventing and combating crime, organised or otherwise, in particular, terrorism, trafficking in people, offences against children, etc. This framework decision is aimed at organised crime.

It should state that it has nothing to do with terrorism.

Ms Fallon

I did not say it has nothing to do with terrorism. It is not a terrorism framework decision.

We need clarification regarding at what it is directed.

Ms Fallon

It is directed at organised crime. A framework decision dealing specifically with terrorism has been already adopted and members will recall that this year's Criminal Justice (Terrorist Offences) Act gave effect to it. The framework decision under discussion is not geared specifically towards terrorism. However, terrorists who are involved in organised criminal activity may be liable under the provisions of this decision.

All terrorists are involved in organised criminal activity.

Ms Fallon

Yes. However, this framework decision is not aimed at specific terrorist activity and I do not expect that the UK will bring forth proposals in regard to terrorism in the context of this instrument. That would be an unusual approach to take. If the UK has any proposals in this regard, I expect they will be brought forward in the context of a specific terrorism initiative.

In terms of the added value that may arise from this framework decision, it is correct that it is largely a reformatting exercise and a Commission initiative rather than a proposal from member states. The added value from the Commission's perspective is that it attempts to update the joint action of 1998 by including some additional proposals such as the provision of some type of penalty level, something which is contained in neither the joint action nor the UN Convention on Transnational Organised Crime. There are some additions of this nature but it is not major legislation in that it does not change significantly much of what has already been agreed at international level.

The offence of directing a criminal organisation is included in the Commission proposal and is not something which came from Ireland. This provision regarding criminal direction is in addition to what is contained in the joint action and is something for which I expect we will have to provide specifically in legislation. The framework decision does not say anything specific about victims but simply provides that necessary protections be afforded. This will obviously depend on the specific circumstances of the victims concerned.

I welcome the delegation. This is an important issue and it is particularly relevant to the current debate on crime and the sad reality of the gangland murders that have taken place in this city and others throughout the State. It is important that we remind ourselves of the plight of those communities that are terrorised by organised crime. In my constituency recently, drugs with a value of €20 million were confiscated by the Garda. One can only imagine the quantity of drugs that are not intercepted. In this particular section of my constituency, the intimidation wrought by a certain organised gang means that communities are terrorised and that people are afraid to leave their homes after 9 p.m. This is an appalling situation. We, as legislators, and the Minister for Justice, Equality and Law Reform and his Department in particular, must recognise that there is a crisis on our streets and that there is a hidden Ireland in which the activities of organised crime are not even reported in many instances. Question must be asked in this wider context.

I welcome the framework decision on the fight against organised crime. However, I agree with Deputy Costello that a shoot to kill policy is not the solution when dealing with the perpetrators of organised crime and other criminal activities. I firmly believe such a policy does not work. I would have no difficulty with a shoot to defend policy. However, the horrific slaughter of innocent people on the underground and on buses in London was followed by the shooting of an innocent Brazilian citizen. This cannot be part of any effective policing policy. No matter how popular it is with elements of the media and public, we should have learned from 30 years of the Troubles that shoot to kill policies do not work. Shoot to defend, yes, but shoot to kill, no. There is a clear distinction and it is also relevant to the debate on organised crime.

Article 1 and its definitions refer to acting in concert with a view to committing offences that are punishable by deprivation of liberty or detention for a maximum of at least four years, or a more serious penalty in order to obtain directly or indirectly a financial or material benefit. Does that mean that a person identified as a member of a criminal organisation be imprisoned for four years? Even if such a person is a member of an organised gang and can direct criminal activities from prison, as happened in Dublin recently, will he or she only receive a four-year prison sentence? There must be a clear distinction between very violent and dysfunctional people who are members of organised criminal gangs and those who are criminals. There is a difference between criminals and violent, dysfunctional people who pose a major threat to society.

Offences catered for in Article 2(a) will incur a maximum term of imprisonment of no lower than ten years. The offences referred to in Article 2(b) will incur a maximum term of no lower than five years. Will out guests clarify the position on Article 3 with regard to penalties?

I am concerned about Article 4 and the special circumstances. Each member state may take the necessary measures to ensure that the penalties referred to in Article 3 may be reduced if an offender renounces criminal activity. Does this mean that if somebody is imprisoned for involvement in an horrific murder and then finds God, he or she can be released under the terms of this article?

Article 4(b) deals with the provision of information to a judicial authority which it would not otherwise be able to obtain in order to prevent an offence. I urge caution with regard to such special circumstances because they increase the role of informers and we must be clear about such provisions. People involved in organised crime, even though they might go to the authorities, often lie through their teeth. Perhaps delegates would provide clarity with regard to the matter.

Article 7 deals with jurisdiction and co-ordination of prosecutions and there is no major change in this regard. Regardless of the state or country in which a person commits an offence, he or she must serve time for it. If he or she wishes to be transferred, that is a different matter.

I strongly support Article 8, which deals with the protection of, and assistance to, victims. Section 2 of this article states that all possible measures must be taken to ensure appropriate assistance for the families of victims. There is much talk in this House and in broader society about victims. From my experience as a backbench Deputy and from clinics I have held during the past five or six years, I am aware that the vast majority of victims feel that nobody cares about them. That is the reality with which one is presented when one speaks to these people on an individual basis, separate from organised support groups.

I welcome Article 8 with regard to the protection of victims but I wish to ensure that it is not simply more talk, waffle and spin. The vast majority of victims are totally excluded and are not catered for. There are groups established to look after victims but many are excluded. We must face up to this reality. This article must be implemented in full.

In light of the UK's Presidency of the EU, there is an opportunity for those members who have concerns about that state's approach and reaction to organised crime to speak out. I refer here, in particular, to the Blair approach. The latter was summed up during the week by the reaction to the death of that innocent Brazilian person and it is to the effect that "We are sorry for his death but it is tough. That is the reality." I do not accept that as quality, professional or ethical policing and no EU member state should do so. This issue must be examined carefully. I encourage the Minister for Justice, Equality and Law Reform to raise matters of this nature during the UK Presidency because they are relevant.

I fully support the idea that states should assist and co-operate with each other. However, there should always be a human rights dimension to issues of justice and freedom within the broader EU. Human rights — I accept that it is not popular to discuss them in the aftermath of the slaughter of innocents on underground trains and buses — should never be for sale. Human rights, particularly those of victims, should be continually respected. While this proposal contains positive elements, the points I have outlined should be raised with the Minister for Justice, Equality and Law Reform.

Does Ms Fallon have any comments to make on those points?

Ms Fallon

I will answer some of the questions raised by the Deputy. The intention of Article 1 is to decide what constitutes a criminal organisation for the purposes of the framework decision. Hence, the purpose of setting the level to be an event punishable by four years is to exclude criminal organisations operating at a petty level. The idea is to include organisations where people act together to commit crimes of a serious nature which are punishable by a minimum of at least four years. Article 1 does not deal with the penalties with which the actual offences will be punished. As the Deputy noted, they are dealt with in Article 3.

The Deputy also inquired about the penalty levels included in Article 3. The intention in this article is to provide that the offence of directing a criminal organisation would be the most serious offence and that all member states should provide that it should be punished by a minimum maximum penalty of ten years. In other words, in all member states, the maximum penalty for the offence should not be less than ten years. Similarly, the article states that the appropriate maximum for participation-type offences should be five years. These matters are still under negotiation and, therefore, I cannot rule out the possibility that other member states will object to these levels. Not all member states have standardised penalty levels and some approach the issue differently because they have different systems regarding parole, the administration of sentencing, etc.

The Deputy also asked about Article 4, which is concerned with special circumstances. Again, this is not an obligatory article but it allows member states to take special circumstances into account. It provides that courts can take special circumstances into account when imposing sentences. In the main, our system allows courts and judges to take them into account in any event. However, depending on the final shape of this article, it is more than likely that we will be obliged to consider whether it will be necessary to provide specifically for these factors in legislation or whether they are in keeping with what the courts normally take into consideration when imposing sentences in the first instance. Obviously, the article does not mean that a person will get a reduced sentence simply by renouncing his or her criminal activity; it means that a judge may take into account all the circumstances of a case, of which that might be one. Co-operation with authorities, such as the police or the courts, is already taken into account in Irish law. For example, it is one of the factors which may affect the imposition of the minimum mandatory sentence of ten years for drug trafficking. The article is not finalised yet. When it is finalised, we will have to consider it carefully and decide how it might be put into effect in Irish law.

The Deputy asked that we bring certain other issues to the attention of the Minister. We will certainly do so.

I welcome Ms Fallon and Ms Meenan.

Does this proposal strive towards an international agreement on who covers the loss to family members of a person killed in acts of terrorism such as the recent atrocity in the London underground? Is it, for example, British Rail or is it the state? Are people expected to have public liability insurance for the loss of a person in this way? The issue arose in the findings of the Barron report and remains to be answered. Is any agreement being worked on to that end on an international and European basis?

The word "fraud" was referred to in the early stages of the presentation. It is a wide-reaching word. I raise this matter because fraud is being carried out at present in the homes of people who, for their own purposes, access the Internet using their computers. Regardless of the telephone companies with which they have their accounts, international groups intercept their telephone lines and enormous telephone bills are generated, not by the user but by those organised international groups or individuals. This matter has been brought to my attention by constituents who have received enormous telephone bills for Internet access. No policing authority seems to be tackling this problem. Has it been raised in the discussion on the proposal before us?

Ms Fallon

This is a general proposal. It does not deal specifically with compensation for victims but provides that standard safeguards for victims be employed. For example, it refers to the framework decision on the standing of victims in criminal procedures. The framework decision is also applied to the victims of this type of crime. Within that decision, there is a provision that victims be able to claim compensation but it is a general provision. I am not aware of any provision that specifically deals with the question of compensation. Perhaps I could make some inquiries about that matter. If such an instrument exists, I could communicate that information to the Deputy.

The other question related to a particular type of crime. That type of crime has not been discussed in the context of this framework decision, as far as I am aware.

Ms Deirdre Meenan

It has not been discussed.

Ms Fallon

I am not aware of specific discussions at EU level on this type of crime. This framework decision deals with organised crime in a more general way. I am not saying that it cannot deal with it, I am merely pointing out that it is not specifically geared towards it.

I welcome Ms Fallon and her colleague. My questions seek to clarify issues relating to Articles 3 and 8.

Article 3 stipulates that the maximum sentences are not to be lower than ten years and five years. Section 2 of the article states that member states should take measures to ensure that offences, where committed within the framework of a criminal organisation, incur longer terms of imprisonment than are provided for by national law in respect of such offences. In terms of offences committed by an individual being commensurate with those committed by a criminal organisation, I presume that the latter would incur a greater sentence. My concern is with the commission of more serious crime, which, on foot of this framework decision's nature and structure, could incur a lesser sentence. The scale of punishment should correspond directly to the scale of the offence. Will our guests comment on this issue because it seems to distort the principle of the administration of justice?

I believe I am correct in stating that if a person prosecuted under Article 8 was to make an accusation, a case against a third party could not depend on it. I initially interpreted it as meaning that a confession might be outlawed but this may be an incorrect assessment. I have a question regarding a gang member making a confession. Apart from renouncing criminal activity, the person must also fall in line with one of the provisions under Article 4(b). A person making a confession might not be able to comply with any of these stipulations for a reduced sentence. A person making a confession would generally be treated somewhat more leniently by courts than if such a confession was not made. Is there room for discretion on this issue within this framework?

With regard to the point made by Deputy Finian McGrath and the Chairman, a general system, as is evident here, seems to ignore victims. What specific change, if any, will the framework make to this? I concur with comments made by Deputy Finian McGrath that widespread disillusionment is evident on the part of many victims in terms of how the system fails to take them into account.

Ms Fallon

With regard to section 2 of Article 3, the intention is largely to provide for a situation where a person may commit what might be a reasonably low grade offence but which may be committed in helping criminal organisations to commit more serious offences. In this context, the idea is that it should be possible to punish the person at a higher level. If this is to be placed into law, it is crucial that it will be done in a manner that is proportionate because an important principle of a law is that penalties are proportionate to a crime. The Deputy's point is that care must be taken that the more serious offence is not treated with more leniency and that would have to be taken into account. The article provides that the principle should be adopted but it does not state how it should be adopted. Obviously, care must be taken that it is proportionate.

On the question of confession evidence, the scope of the framework decision and what can be done in the context of EU criminal law is, perhaps, a little narrower than what might have been expected on a first look at some of the articles. Obviously, it is not intended to restrict judicial discretion in terms of how issues such as confession evidence might be viewed. The normal rules in dealing with such evidence will continue to apply. Article 4 makes it clear that providing for certain minimum-maximum penalties will not take away from member states' ability to allow the courts to provide for lower sentences in certain circumstances. The normal rules will apply in terms of the credit a court can give in respect of confession evidence and so on.

On the issue of victims of organised crime, when the instrument is signed and given effect in Irish law, consideration will have to be given to whether specific issues arise in this regard. As members have mentioned, victims should be properly dealt with in any event and special consideration will have to be given to whether specific issues have to be addressed in this context. As "organised crime" is a broad term, it is difficult to know who the victims are in a particular circumstance.

Is the time ripe for the Department to consider introducing a charter for victims?

Ms Fallon

There is already such a charter. As far as I know, it is updated and reviewed from time to time. The issue is kept under constant review.

I was referring to what is termed "modem hijacking", a reasonably new phenomenon which is not being addressed by any authority, either European or international, and one about which we will hear more. It should be noted that it is an experience that people have without ever leaving the confines of their household and it appears nobody is taking responsibility, not even the telephone agencies which constantly lobby consumers in Ireland.

We have concluded our discussion. We will prepare a draft report on the meeting stating we have agreed the proposed measure.

A number of items arose in our discussion. I suggest that the Minister provide as soon as possible a copy of his draft amendments to the Criminal Justice Bill relevant to this proposal in order that there will be adequate time for their consideration by the joint committee; that the Minister provide the committee with timely reports on progress made in negotiating the final version of the proposal; that, taking account of Deputy Costello's recommendation, the Minister and his officials make themselves available in the autumn to discuss his intentions regarding new UK Presidency proposals on organised crime and counter terrorism and regarding co-operation with the United Kingdom and other EU member states on matters covered by the proposal and subsequent legislation as well as his views on sentencing.

We can go along with that proposal. There are certain formalities to which we must adhere but at the same time we are all anxious to come to terms with what will be the best supports in dealing with gangland crime in the context of the framework decision and the Criminal Justice (Amendment) Bill. I very much appreciate the attendance of the officials and their calm responses to our questions. However, I also appreciate the restrictions on officials when we stray into policy areas.

It is absolutely essential that the Minister appears before the joint committee to address the issue of gangland crime. We can then deal with the proposed amendments from the UK Presidency to the framework decision. It would be worth dealing with the proposals contained in the Criminal Justice (Amendment) Bill separately. It may well be a worthwhile discussion. On that basis, I am prepared to accept the recommendation of the Chairman with a view to having a full discussion along the lines I suggest in the autumn.

I am very unhappy with this proposal because it is not clear where we are going with it. I still believe it is geared towards tackling terrorism. The second definition has been drafted very much in that context. I do not want there to be a situation in September where a discussion will take place totally unrelated to this one in terms of there being a reformatting of a previous decision and what has been policy since 1998. However, we have no control over this. We do not know if the British authorities will introduce new matter in terms of the interpretation of the articles and the definitions but given recent developments, there has been a sea-change in their attitude to transnational co-operation on crime. Will the meeting be held in early or late September?

Ms Fallon

Early September.

I hope the Minister will come back to us and will have firm conclusions on amending proposals to the Criminal Justice (Amendment) Bill. Essentially, my concern is that we are talking in a vacuum, that the Minister will go off and do something totally different and that that will be the end of it. If we agree, in principle, to the procedures outlined, we hope they will be respected.

The joint committee has considered the proposal and made various recommendations. We will ask the Minister to come back in the autumn and to bring forward his amendments in a timely manner in order that there will be adequate time for their consideration. We will also ask him, taking account of what Deputy Costello said and what is happening, that if there are changes under the UK Presidency and if anything happens on the wider EU stage, to let us know what his intentions are in this regard. He should continue to inform us about the progress of the negotiations.

What the Minister has is carte blanche to do what he likes.

It is a proposal which we must consider fully. We will do so and make recommendations in that regard.

We insist on being kept fully briefed at all times.

Is that agreed? Agreed.

In the next couple of months we should discuss the Council framework decision of 15 March 2001 relating to victims, which item has arisen periodically. I welcome the fact that the Department has a charter, of which I was unaware. We should receive a copy of both documents in order to have a discussion on the matter.

I will ask the secretariat to raise the issue at the next meeting.

Arising from the Chairman's initial comments and questions to Ms Fallon, we should also consider debating the desirability of an independent judicial accountability system which is long overdue. We recently saw a good example in Massachusetts and it is an issue we should discuss to see if there is a consensus.

We should have a debate on the report of the Competition Authority on the legal profession. It would be remiss of us to allow that profession to set the agenda on the response the State should give in this regard. There is a need to curtail the exorbitant legal fees being charged by both barristers and solicitors. We should have some input in assessing the very good report published by the Competition Authority.

I will take on board what the Senator said. There will be a need to examine the work programme at the beginning of the new year. Deputies O'Keeffe and Costello have already asked that the Refugee and Integration Agency be invited to meet us in September. There is also the question of the prison in north Dublin and a myriad other——

I remind the Chairman that the Minister will not answer the questions we want to ask.

Let us discuss the work programme in detail at the next meeting.

I want to raise the Minister's refusal to deal with the issue I tried to raise regarding the expensive white elephant he purchased in Thornhill.

I support the proposal that we discuss the report of the Competition Authority. It is a live issue.

I accept that, as do all members.

The final report has not yet been produced. It is only an interim report which has been produced. I am in favour of having a discussion on the matter.

The legal profession is taking an initiative to try to——

I did not understand the point about the accountability of judges.

We will not go into that matter because we are dealing with the scrutiny of EU proposals. I thank Ms Fallon and Ms Meenan for coming and their informative and comprehensive replies to all the questions asked and comments made.

The joint committee went into private session at 4 p.m. and adjourned at 4.10 p.m. sine die.

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