I join with the Cathaoirleach in congratulating Deputy Blaney and in wishing him well in his new post, as well as in thanking Deputy Hoctor for the enthusiasm she brought to the position.
I thank members of the joint committee for allowing me to bring before them this EU proposal for a Council framework decision on the fight against organised crime. The proposal is before the joint committee on foot of motions and in line with established practice, as well as the advice of the Attorney General in respect of seeking the prior approval of the Houses of the Oireachtas on EU-related instruments.
The motion states:
Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council Framework Decision on the fight against organised crime, a copy of which proposed measure was laid before Dáil Éireann on 15 June 2006.
There is a similar motion from Seanad Éireann.
The proposal is 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 in terms of freedom, security and justice. The objective is to be achieved by preventing and combating crime, organised or otherwise, particularly terrorism, human trafficking, offences against children, illicit drug and 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 purpose of the proposal is to strengthen the capacity of the European Union and 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.
It is important to remember that the European Union has been concerned about tackling organised crime for a considerable time. In 1998 a joint action making it a criminal offence to participate in a criminal organisation in any member state was agreed. The proposal being considered today will replace that joint action. It covers much of the same ground, but goes beyond it in some respects and will, if adopted, supersede it. Part 7 of the Criminal Justice Act 2006 gave effect to the joint action and provisions of the United Nations Convention against Transnational Organised Crime.
At its meeting on 28 April 2006 the Justice and Home Affairs Council of Ministers reached a consensus on the text of the instrument. It is expected that all other outstanding parliamentary scrutiny reservations will be lifted shortly, allowing for adoption of the instrument by the Justice and Home Affairs Council.
As members of the committee are aware, the Criminal Justice Act 2006 created new offences targeting the activities of those involved in or who may commit offences for the benefit of criminal organisations. It also provided for the transposition of international obligations under the EU joint action and relevant parts of the UN Convention against Transnational Organised Crime. Most of the provisions in the instrument we are considering have been addressed in the Act and any necessary proposal will in due course be drawn up in consultation with the Office of the Attorney General and brought before both Houses of the Oireachtas in the normal way.
Members will recall that officials from my Department appeared before the committee on 27 July 2005 and outlined the background and content of this measure, including progress and changes to the instrument. The committee requested to be kept informed of progress on the instrument, in particular concerning an expected UK proposal. It also requested details of the Tánaiste's legislative proposals in respect of organised crime which have been forwarded to members. I understand the committee was subsequently informed that the details of the UK proposal did not receive a favourable response from member states. In April 2006 it was informed of progress on the instrument. Regarding the provisions of the Criminal Justice Act 2006, members of the committee were involved in the debate during its passage through the Oireachtas.
The main change to the proposal since the appearance of departmental officials before the committee in 2005 is that the offence of directing a criminal organisation was removed from the instrument. Member states now have the option of creating an offence on the basis of either the 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. This does not preclude a member state applying both options, which is what we have done in the 2006 Act, section 71 of which gives effect to the conspiracy element. To meet our international obligations, the offence of conspiracy has been created, encompassing a conspiracy to commit a serious offence, that is, an offence attracting a penalty of four years' imprisonment or more, whether the conspiracy is committed in the State. Section 72 of the Act provided for a new offence of knowingly contributing to or participating in any activity of a criminal organisation for the purpose of enhancing the ability of that organisation to commit or facilitate a serious offence. We are aware, however, that the prosecution of an offence of this nature will be challenging and that proving the offence will be difficult.
I will now outline the main provisions of the framework decision. Article 1.1 defines "criminal organisation" as a structured association established over a period of time and comprising more than two persons acting in concert with a view to committing offences punishable by deprivation of liberty, a detention order of a maximum of at least four years or a more serious penalty in order to obtain, directly or indirectly, a financial or other material benefit. Article 1.2 defines "structured association" as an association which is not randomly formed for the immediate commission of an offence and does not need to have formally defined roles for its members, continuity of membership or a developed structure.
Article 2 provides for the conduct to be criminalised. Member states are required to create an offence on the basis of either a participation-type approach, that is, participation in the activities of the group knowing that the participation will help the group to achieve its criminal objectives, or the common law conspiracy approach, that is, an agreement between parties to commit an offence.
Article 3 provides for penalties. Article 3.1 provides that the maximum penalty for offences under Article 2(a), participation, will be at least two to five years' imprisonment and that the penalty for an offence under Article 2(b), conspiracy, will be either the same maximum term of imprisonment as the offence at which the agreement is aimed or a maximum term of imprisonment of at least two to five years. Article 3.2 provides that where an offence is committed within the framework of a criminal organisation, it may be regarded as an aggravating circumstance.
Article 4 provides that a member state may provide that the appropriate penalties be reduced or the offender exempted from penalties in the circumstances set out in the article. These include renunciation of criminal activity and providing helpful information for the relevant authorities. Articles 5 and 6 provide for liability of legal persons and the sanctions to be imposed.
Article 7 deals with jurisdiction and co-ordination of prosecutions. Article 7.1 includes a requirement that each member state should ensure that it can prosecute an offence which takes place on its territory, even if that is not where the criminal organisation is based, or pursues its criminal activities. Article 7.2 deals with co-operation in centralising a prosecution in one state where more than one member state has jurisdiction to prosecute. Article 7.3 requires member states to establish jurisdiction over offences committed by its nationals outside their territories and prosecute them where they do not extradite or surrender their own nationals.
Article 8 provides that an investigation or prosecution is not dependent on a report or accusation by a victim. Article 9 provides for the repeal of the existing Joint Action 98/733/JHA. Articles 10 and 11 are standard provisions dealing with implementation, reports and entry into force.
Members of the joint committee will be aware that the Government is strongly focused on tackling domestic and international organised crime. The Criminal Justice Act 2006 has already made legislative provision for matters which form part of the provisions of the framework decision under consideration. Members will recall that an extensive and unprecedented package of measures was announced by the Tánaiste across a range of areas pertaining to crime prevention and detection on 19 December 2006. They may also have heard that the Government has agreed to further proposed legislative changes. The Government recognises that firearms and drug trafficking are invariably interlinked with gangland activity. The proposals announced by the Tánaiste yesterday, therefore, focus on a number of particular areas targeting this activity. Specifically, sentences for drug trafficking and firearms offences will be stiffer and access to bail will be less readily available for those engaged in gangland activities. People who support and facilitate organised crime will face new penalties for the possession of articles, equipment and cash which they cannot account for, and those who reoffend can expect enhanced sentences. The right to silence will remain a core feature of our system of due process, although it will be reformed in order that the instances where inferences will be drawn will be clearer to all, including the accused. That does not come before time.
The Government has decided to provide vastly increased resources for the Garda Síochána to ensure the effective continued operation of targeted initiatives such as Operation Anvil. This initiative which targets organised crime has been particularly successful in recent months and is central to the strategy of the Garda in combating serious crime, particularly gun crime. For example, crime figures for the last quarter of 2006 showed an increase of 34% in the number of detections of possession of firearms. In addition, work is well advanced on plans to establish a DNA database. When available, the database, together with the information held on fingerprints, will ensure that the Garda will have access to a significant new source of intelligence which will assist in combating organised crime and crime of all forms in this jurisdiction.
