We also need to amend the provisions in regard to the offence of participation to effect the successful investigation of and prosecution for this offence. We cannot afford to delay such matters as this legislation is needed now.
The Bill before the House also introduces amendments to detention and search powers that will, among other matters, address problems that have arisen during the hearing of applications to extend the time for questioning. The Bill is in five Parts with 26 sections and I will highlight some of the main provisions. Part 2 concerns organised crime. In the main, this Part amends the organised crime provisions contained in the Criminal Justice Act 2006. New measures are introduced and existing provisions are amended. I wish to highlight the following sections.
Section 3 amends the existing definitions of "criminal organisation" and "structured group". The existence of a criminal organisation is a crucial element in proving the offences provided for under this Bill. This section introduces a simpler formulation of the required definitions. Section 5 introduces into Irish law an offence of directing a criminal organisation which criminalises the directing or controlling of activities of a criminal organisation including the supervision of such activities or the giving of orders. This is to try to target gang lords rather than those who pull the trigger. This provision will strengthen our ability to pursue those persons who direct and control the activities of their criminal gangs although not directly or personally involved in those activities. The seriousness of the offence is recognised by the equally serious penalty of up to life imprisonment. The introduction of this offence, in addition to providing a necessary tool to combat the threat of organised crime, is also a requirement of our obligations as a signatory to the UN Convention on Transnational Organised Crime.
The section provides significant detail on what "directs" means and sets out the evidence to which a court may have regard in determining whether the offence has been committed. This was the subject of much deliberation by the Supreme Court in a recent case involving members of the Real IRA. In drafting these provisions, it was considered appropriate for the purpose of consistency to replicate these provisions in section 6 of the Offences against the State (Amendment) Act 1998, which contains the offence of directing an unlawful organisation. The amendment to the 1998 Act is contained in section 25 of the Bill.
Section 6 amends the participation in organised crime offence under section 72 of the Criminal Justice Act 2006 which will, where proven, carry a penalty of up to 15 years. Additional evidential requirements have been introduced that will assist prosecution. Facilitating the commission of a serious offence by a criminal organisation will not require proof that an actual offence was committed or that the accused had knowledge of a particular offence.
Section 7 is an important provision. The offences already outlined cannot be proven unless the existence of a criminal organisation is first established. This is the reason for the inclusion of this section. In particular, it allows for the hearing of evidence of a member or former member of the Garda Síochána with appropriate experience and knowledge as to the existence of a criminal organisation. During the debates to date, this provision has given rise to confusion. The evidence of a garda under this section will not in any way go to establishing the guilt or otherwise of a defendant. However, it will assist in meeting the first hurdle of a successful prosecution, establishing that the criminal organisation exists. The absence of reference to Garda Síochána rank in this provision is deliberate and was decided after much consultation with the Garda Síochána. It is crucial, in my view and the view of the Garda Commissioner, that the officer with the best knowledge and experience of the existence of a criminal organisation in a particular area should be the officer providing the evidence to the court.
Another significant provision is contained in section 8, which extends the remit of the Special Criminal Court to organised crime offences. It is not a step taken lightly. The Garda Commissioner has expressed strong concerns regarding jury intimidation. Increasingly, prospective jurors are seeking reprieves from participation in trials involving criminal organisations. Persons familiar with the communities and those working in the court system have convinced me that the threat is real. We have, however, ensured that safeguards are included in the legislation. For instance, the declaration that the ordinary courts are inadequate for the pursuit of these types of offences is without prejudice to the power of the DPP to direct that a person not be sent forward for trial by the Special Criminal Court on a particular charge.
We have also included a clause whereby this section will cease to operate 12 months following the passing of the Act unless continued by a resolution passed by each House of the Oireachtas. Each House will have an opportunity at that time to examine the operation of this section.
Under existing law, the DPP already has the option to send a member of a criminal gang forward for trial to the Special Criminal Court. We are proposing that a limited number of organised crime offences should be tried before the Special Criminal Court unless the DPP is satisfied that, in a particular case, the ordinary courts are adequate. This approach ensures clarity and certainty in the law.
Section 9 provides for inferences to be drawn from a failure of a defendant, prior to being charged, to answer any question material to the investigation of the offence. This replicates similar provisions in the Criminal Justice Act 2007, including a number of safeguards such as the electronic recording of questioning and that a reasonable opportunity must be given to consult a lawyer. An inference drawn under this section cannot solely or mainly be relied on to convict.
Section 14 introduces post-release restriction on certain activities orders. These orders can be applied at sentencing and will take effect on the person's release from prison. The order can apply restrictions on the person's movements, actions or activities, impose conditions on the person's participation in any activity and apply restrictions relating to the person's associations. This section was amended in the Dáil on foot of a Fine Gael proposal requiring a scheme to be laid before both Houses of the Oireachtas setting out the categories of restrictions and conditions that may be imposed, to give the judge directions.
Section 16 increases the penalty for witness or jury intimidation from ten years to 15 years. Part 3 of the Bill contains three sections that amend section 7 of the Offences against the State Act 1939, sections 7 and 8 of the Criminal Law Act 1997 and section 41 of the Criminal Justice Act 1999. These amendments arise out of an obligation to legislate for particular provisions of the UN Convention on Transnational Organised Crime. Parties to that convention are required to establish jurisdiction over obstruction of justice offences in certain circumstances where the offence occurs outside the State. These circumstances are where the offence occurs on board an Irish ship or aircraft or was committed by an Irish citizen or by a person ordinarily resident in Ireland. Section 7 of the 1939 Act contains the offence of obstruction of Government, including the Judiciary, and is amended in section 18 of the Bill. The provisions of Irish law being amended in these sections contain offences relating to the obstruction of justice.
That leads to Part 4 of the Bill, which amends provisions on Garda powers of detention and re-arrest. My amendments are primarily concerned with the conduct of the court hearings when the Garda Síochána seeks to have the period of detention extended. My objectives are to limit the possibilities for the disclosure of sensitive information, to reduce the risk of diverting gardaí unnecessarily from pursuing the ongoing investigations and to ensure court time is not taken up unnecessarily in dealing with constitutional questions that fall outside the jurisdiction of the courts concerned.
The Garda Síochána has powers under a number of statutes to detain persons arrested in connection with serious offences. The permitted duration of detention varies. Similarly, certain powers are directed at particular offences. The most frequently used power is in section 4 of the Criminal Justice Act 1984. It applies to all offences having a penalty of five years or more and provides for detention up to a maximum of 24 hours. Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 and section 50 of the Criminal Justice Act 2007 apply to a more limited range of offences but only to ones that justify the possibility of detention for up to seven days. Section 30 of the Offences against the State Act 1939 permits detention up to 72 hours.
Detention is for fixed periods and at the initial stages it is authorised and, if necessary, extended by a senior garda. However, detention in excess of 48 hours is, as a rule, only permitted on the authorisation of a District Court and occasionally a Circuit Court. Experience in recent times has made it clear that hearings of applications to extend the detention period are being used to elicit as much information as possible from the Garda Síochána about the current state of the investigation and its direction. This can seriously undermine an investigation.
Part 4 responds to this new trend in a number of ways. It provides that the court may direct that the applications be heard in camera or that certain persons or the public may be excluded. If the court agrees that some particular information is very sensitive and that its disclosure would harm the investigation, it may in those exceptional circumstances hear the evidence from a garda without anybody else being present. Having heard the information, the court may then decide that the information can be given in open court. The Bill also clarifies that the publication of details relating to an extension of time application, other than that it has taken place and the decision, is prohibited.
In the interests of efficiency, the Bill also provides that the garda making the application for an extension of time, who must be of at least the rank of superintendent, can give oral evidence on matters not within his or her knowledge but within the knowledge of another member. This provision is subject to the court being able to require the attendance of that other garda to give oral evidence if it is required in the interests of justice.
The same risk of prejudice to ongoing investigations can also arise in the case of applications to court for a warrant to re-arrest a suspect for a particular offence or for a search warrant. These applications are not on notice to the suspect. Nevertheless, hearings in open court could result in the disclosure of sensitive information. The Bill addresses this risk by providing that re-arrest applications are to be made in camera. Section 26, which is in Part 5, makes a similar clarification in respect of search warrant applications.
It is worth recalling that the court has a limited function in these matters. It must be satisfied that the extension of time is necessary for the proper investigation of the offence and that the investigation is being conducted expeditiously and diligently. My amendments will cause the court and the parties to re-focus on those points rather than engage in some other expedition to query the lawfulness of the arrest and detention, which is not a matter for that court. The hearing is not intended to be a focus for issues relating to the lawfulness of arrest and detention. Under the Constitution, that is a matter for the High Court primarily, as confirmed by the Supreme Court as long ago as 1990. My amendments clarify that issues relating to the validity of the arrest and detention are not proper to a hearing of an application for an extension of a detention period. This clarification will ensure that the gardaí concerned with the arrest and detention of a suspect are not required to be at the courthouse ready to give evidence in case the lawfulness of the arrest and detention is raised by the defence. Instead, they can get on with the investigation.
The amendments will greatly improve the operation of the detention powers by eliminating in so far as is possible the risk of sensitive information being disclosed to the suspect or his or her associates and in terms of the best use of Garda personnel. This will put an end to the perception in some quarters that a trip to the courthouse is an opportunity to waste time.
I draw attention to other amendments in this Part which are specific to individual detention powers. The House will recall that the detention powers in sections 2 and 4 of the Criminal Justice (Drug Trafficking) Act 1996 were subject to renewal by way of resolutions passed in each House of the Oireachtas. The most recent resolution passed was for a two-year period and expires on 31 December 2010. It is clear that these powers are a necessary part of the armoury in the fight against drug crime. Therefore, I propose to end the requirement for renewal. I indicated my intention to make the provisions permanent when the provisions were last renewed. This is achieved by section 22.
Section 23 extends the scope of section 50 of the Criminal Justice Act 2007 to the organised crime offences under Part 7 of the Criminal Justice Act 2006 as amended by the Bill. As I outlined, section 50 permits detention up to a maximum of seven days for very serious offences involving the use of a firearm or explosives. The Garda, in its advice to me, made it clear that such increased detention powers are necessary given the nature of the Part 7 offences and the difficulties arising from the lengths to which the people involved will go to thwart the Garda investigation of these offences.
In addition, the nature of these offences is such that the process of gathering the information that gardaí need to put to suspects in custody can be slow. Often, it must be done against a background of intimidation and internecine feuding. I emphasise that there is no question of all persons suspected of such offences being held for seven days. Experience of the operation of section 50 to date and the Drug Trafficking Act over the past 13 years is that the longer periods of detention are used very sparingly. I acknowledge that this is a significant package. However, I remind Senators that there is nothing in the Bill which does not already exist in Irish law.
We are facing an extraordinary threat requiring a determined response. I repeat that the step is not being taken lightly but it is one that we are convinced must be taken. This must be put in the context of what happened in recent months. After the awful murder of Shane Geoghegan I and the Government were put under considerable pressure inside and outside the Oireachtas to introduce legislation. At that time we stated that we had enough legislation or more than was required and that the Garda had all the resources. I do not want to have a hierarchy of murders but the murder of Roy Collins was a watershed and a tipping point, as Deputy Rabbitte described the murder of Shane Geoghegan. People were willing to wait four years to take it out on a family — not on a person who gave evidence as I saw in one article in The Irish Times. A leading human rights lawyer wrote that Roy Collins was killed because he was a witness in a trial. He was not a witness in a trial; he was the son of a man who was a witness in a trial.
That was the tipping point whereby we had to re-examine the legislation on our statute books and one of the aspects we considered was amending the provisions on participation, which were in existing legislation but had not been used because the proofs required were convoluted. This Bill amends that to make it easier and simpler to ground a prosecution for participation. For the first time, we are including an offence of directing a criminal organisation, something not in our legislation heretofore, and there was a lacuna in that respect. It was necessary to introduce it to follow those people because the Garda have been extremely successful in getting the people who pulled the trigger but not so successful at getting the gang lords and orchestrators of these awful murders.
The Government strongly believes that the Bill is required, based on the advice given by the Garda Commissioner and on the statements of State solicitor Michael Murray over the past five years about a level of fear and intimidation in communities making people not co-operate as witnesses and not come forward for jury service, not just in Limerick but throughout the country and in areas in Dublin such as Finglas. One must consider the figures that clearly show when a gangland trial occurs in Limerick the numbers drop dramatically and they go back up when the trial is over. People suggest we should move the trials to Dublin but I assure Senators that the strong advice of the Garda is that in a country the size of ours this is not feasible and the Garda has empirically hard evidence that these people have tentacles throughout the country with colleagues and associates who can take out people and intimidate people.
The Bill is necessary; it is not taken lightly but I would not want anyone to overstate it. Let us be frank, up to last weekend people have stated that the Bill contains provisions for opinion evidence whereby a garda of any rank can state that Mr. Joe Bloggs is a member of a criminal gang.