Criminal Justice (Amendment) Bill 2009: Committee and Remaining Stages.

Sections 1 to 6, inclusive, agreed to.
SECTION 7.

Amendments Nos.1 and 2 are related and they may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 9, line 50, to delete "any member" and substitute "a Chief Superintendent".

The first amendment relates to the evidential provisions as to the proof of existence of criminal organisations. As it stands, any member, or former member — following an amendment in the course of the debate in the Dáil — of the Garda Síochána can provide such evidence or opinion as the case may be, "who appears to the Court to possess the appropriate expertise...shall, subject to section 74B, be admissible in evidence in relation to the issue as to the existence of a particular criminal organisation".

It is proposed in the amendment that only the evidence of a chief superintendent should be accepted by a court rather than any member of the Garda Síochána. The basis for the amendment is found in section 71B(2) of the 2006 Act, which defines "expertise" as "experience, specialised knowledge or qualifications." The member of the Garda Síochána who has the requisite expertise within that meaning is none other than the chief superintendent. One accumulates experience during the years working in the field and to have the evidence of just any member of the Garda Síochána does not necessarily fulfil that criteria. Specialised knowledge is what one would expect somebody who qualifies for the rank of chief superintendent to have acquired. By definition, if a member of the Garda has graduated to the rank of chief superintendent one would expect him or her to have such qualifications. The very wording of the section speaks to the amendment that is being made. I do not think it would be denied by the Minister that a chief superintendent would have the expertise required to provide an opinion as to the existence of a criminal organisation.

The section stipulates that the member or former member of the Garda Síochána must appear to the court to "possess the appropriate expertise". How is a judge to determine that a particular garda or former garda has such expertise and is, therefore, an "appropriate expert"? My amendment would introduce the necessary safeguard that only gardaí of the rank of chief superintendent could be deemed suitable to provide such expertise. Such persons would, by definition, fulfil the requisite provisions of subsection (2) without any need for the court to make that assessment. The chief superintendent would be drawn on all the information available from his or her subordinates to make a determination in regard to a particular organisation.

This Bill provides for a new offence of directing a criminal organisation, while existing legislation provides for the offence of acting recklessly in terms of co-operating with or participating in a criminal gang. To designate a criminal organisation is a major determination and is the ultimate precondition for the conviction of the crimes of participating in, directing or otherwise being involved in a criminal organisation. It is important, therefore, that we get this aspect of the legislation right and that the necessary safeguards are in place. The wording of the Bill must be precise and effective.

There is a precedent for the requirement that evidence may only be provided by a garda of the rank of chief superintendent, although I appreciate that the role of the latter under the Offences against the State Act is to name an individual who is a member of an organisation and therefore commits an offence. Nevertheless, the responsibility to designate a criminal organisation is a serious one and should only be made by a person with the requisite knowledge, experience and qualifications, as the Bill requires. A garda of the rank of chief superintendent meets those requirements and is the person best qualified to make that determination and provide that opinion and evidence to the court. I commend the amendment to the House.

My amendment No. 2 is put forward largely for the same reasons as those rehearsed by Senator Regan. I ask the Minister to clarify the notion of "expertise" in this section. The extent to which this is explained will influence Members on this side of the House in ascertaining whether it might be acceptable for such evidence to be given by any member or former member of the Garda Síochána. Like Senator Regan, I cannot understand, from my reading of the section, how a court is to come to the conclusion that a particular garda or former garda has the appropriate expertise. "Expertise" is defined in the section as "experience, specialised knowledge or qualifications". Any garda or former garda deemed to have such expertise is then referred to in the section as the "appropriate expert".

An obvious argument in favour of the amendment is that a chief superintendent, with all his or her experience, background knowledge and judgment, is a person who, at least at a superficial level, would be regarded as possessing a high level of expertise and in whom one would perhaps be more likely — without meaning to cause offence to individual members of the force — to repose a high level of reliance than may be the case in respect of "any" member or former member. Perhaps the Minister will be able to explain the rationale for this provision. One possible explanation may be the argument that levels of expertise can be developed by individual members of the force which would not require them to be an inspector, superintendent or chief superintendent. There are individual gardaí, whether community gardaí or otherwise, who, by virtue of their day-to-day activities, become experts on this or that aspect of Garda work.

If that is what the Minister has in mind, it is not what has been stated in defence of the provision. I am not completely sure, from any of the material I have seen or read, why we are to depart from what may not be an absolute policy but is certainly a practice with which we are familiar in legislation, whereby one relies on relatively senior gardaí to deal with matters such as this. To clarify, I am not at all confused in the way that the Minister has suggested people outside the House may be confused. That is, I understand fully that the role of gardaí under this section has to do with evidence in regard to the existence of an organisation rather than membership of it. However, I cannot see the basis for the argument that an individual garda could have developed any particular level of expertise other than that he or she knows of the existence of a particular organisation. I am trying to navigate my way around this provision but cannot understand the rationale behind it. I hope the Minister will be able to put me right in this regard.

Nor can I understand the inclusion of the provision whereby any former member of the Garda Síochána may be deemed to be an expert in these matters. There is not even a stipulation that such a person's membership must have ceased within a particular time limit. Under the section, it is comprehended that a person who left the force many years ago may be deemed to have the requisite expertise. It is somewhat perplexing that any such person could be regarded by a court as possessing such expertise regarding the existence of a criminal organisation. It would be of assistance if the Minister would elaborate on the rationale for this.

I am opposed to section 7. While either amendments No. 1 or No. 2 would go some way towards improving it, I am fundamentally opposed to the principle expressed in the section that a garda or former garda of any rank may give evidence as to the existence of a particular criminal organisation and that this evidence shall be admissible as expert evidence. As I explained earlier, this flies in the face of established rules of evidence. I accept, as I said on Second Stage, that the Minister has not inserted a provision whereby a garda can give evidence of his or her belief that a person is a member of an organisation. Nonetheless, the evidence proposed in section 7 is a prerequisite for proof of the commission of an offence under section 71A, as inserted by section 5, section 72 and section 73 of the Criminal Justice Act 2006, all of which relate to criminal organisations. Clearly, some level of proof as to the existence of a particular criminal organisation will be part of the proofs for that. In section 7(4) there is already a range of different types of evidence from which a court may deduce that a particular group constitutes a criminal organisation, or that it exists. I am not clear why this extra provision is inserted when it seems to me to be so problematic.

I have been re-reading the Hederman report of 1999. I am not suggesting that report was against the Special Criminal Court. In fact, the majority argued for the retention of that court. However, when they looked at the nearest equivalent of this provision, which was section 3(2) of the Offences Against the State (Amendment) Act 1972 that provides for the evidence of a chief superintendent as to membership, they provided various commentaries on page 124 of the report, which seem to be relevant in considering this provision. They point out that the opinion evidence rule in section 3(2) appears to violate three established rules of evidence. Paragraph 6.91 of the report states:

First, while acknowledged experts are permitted to give evidence of opinion, their expertise must be established and their opinion is generally confined to scientific, medical, engineering and cognate matters, and the application of such knowledge to factual dicta in accordance with established professional norms.

That is very different from the sort of opinion evidence we are talking about here. As I said earlier, expert opinion is allowed as an exception to the normal rule against the admission of opinion evidence. This section purports to declare somebody to be an expert.

We are dealing with the amendments.

I am speaking to the amendments. If we are going to go down the road of declaring people to be expert at the very least the persons concerned should be of a high enough rank in An Garda Síochána for their opinions to carry a certain weight. Even then, I am against the principle of section 7, in particular subsection (1) which seeks to insert a new section 71B.

I see the Minister has a copy of the Hederman report and has presumably examined the provision I mentioned. The majority of the Hederman committee went on to say they did not believe that a person should be convicted of the offence of membership solely on the basis of the opinion of a chief superintendent. They said, however, that such opinion might be treated by the courts as corroborative evidence in appropriate cases. The majority were not in any way liberal in their thinking generally in terms of the Special Criminal Court. However, it is interesting to note that they looked at the case law on section 3(2) and pointed out that the courts were reluctant to convict where there was no other evidence. I accept that it is a different type of provision but it is the same principle — that it declares the opinion of a garda in some way to be admissible in evidence as to the existence of certain facts.

I have a concern that the provision as currently drafted does not have any reference to the need for any corroboration. Neither does it have any reference to the need for a member of An Garda Síochána of any particular rank to give the evidence. It simply seems to allow any member or former member of An Garda Síochána, who appears to the court to possess the appropriate expertise, to give evidence as to the existence of a particular criminal organisation. The only guidance for the court as to what is expertise is in section 7(2) which states that: "‘expertise' means experience, specialised knowledge or qualifications". That is very different to the sort of experts we are used to seeing in the criminal courts, such as a forensic pathologist or engineer. They are persons with professional qualifications who give an interpretation of facts that no lay person could give. The sort of evidence that, inevitably, members of An Garda Síochána will have to give will be based on a mixture — the Hederman committee said this — of hearsay and other inadmissible evidence, which would not in themselves be admissible as evidence. They are talking about the opinion of a chief superintendent there, in section 3(2).

I think therefore that there is insufficient guidance for the courts as to how they will judge expertise. There is no provision for any requirement of corroboration, although there is a list of matters which could be regarded as separate evidence of the existence of an organisation or, indeed, could be regarded as corroboration. As a whole, the section is drafted so broadly in terms of the sort of evidence it appears to allow, that it is very much flawed. It does not even say whether the garda concerned should have any particular personal knowledge of the facts on which he or she is to give evidence. There is no requirement that they be linked in any particular way to the area about which they are speaking or any other matter of that nature.

In his speech, the Minister said the reason he has put in "any member of the Garda Síochána of no particular rank" is so that it can be at the level closest to the ground, the person who has the most direct personal knowledge. However, there is nothing in the section to say that the court must be satisfied that this is in fact the member of An Garda Síochána who is closest to the organisation, the existence of which is alleged. There is nothing there to give the court that connection which the Minister says is so important.

For all those reasons I am opposing the section. The proposed amendments would improve it somewhat, but I would still have a fundamental objection to it.

I have listened carefully to what my colleagues Senators Alex White, Bacik and Regan said. I also heard the Minister speaking on this very point in section 7. Like many others, there is a certain degree of mixed feelings among all of us on this matter. We all share the concern that something needs to be done in the fairly unique circumstances in which we find ourselves. As I said on the Order of Business earlier, however, it is because this is so important that it is so regrettable the Bill is being rushed.

The Minister is right to clarify that there may have been people who mistakenly understood this section to provide that what would be admissible was the opinion of a member of the Garda Síochána as to whether a person was a member of a certain criminal organisation. We are all clear that is not what is being proposed. It is simply and solely about the word of a garda being taken as evidence of the existence of a particular criminal organisation. It is significant that many people who operate in the legal world and are dealing with victims as well as accused parties have such concerns about this legislation.

I am indebted to one barrister, Ms Catherine McGillicuddy, with whom I have been in correspondence. She wrote:

Many people will be relieved to hear that the Government is doing something to tackle gangland crime. However, it is important to ask if these new measures are the right solution for the problems that gangland crime presents. New laws do not necessarily mean better laws. New laws must fit into the broader legal system; that is to say they must be constitutional. They should also address existing concerns and produce concrete results.

Does this legislation make the achievement of a successful criminal prosecution more likely? Or is it something that has the appearance of making a successful prosecution more likely? The danger is that the untested opinion, even of a member of the Garda Síochána, could form part of a patchwork of deception in which an innocent person could potentially be successfully prosecuted. This is what is at stake. As it has evolved, our entire legal system is careful about making sure that innocent people do not go to jail. In order to do that, it puts a very high onus on the prosecution. It requires that a prosecution must reach a very high threshold in proving the case. I heard the Minister refer earlier to things being the opinion of the Garda Síochána that X should be done. We discussed this last week in the context of the Criminal Justice (Miscellaneous Provisions) Bill. I am uncomfortable about that type of situation where we are being told that it is the opinion of the Garda Síochána that this should be done and that it is the only thing that can be done. However, we are not actually having the discussion behind the presentation of the proposed legislative change. For all these reasons, I join in the concern expressed by Senators Bacik and White. However, with regard to the requirement that the garda giving a statement on the existence of a particular criminal organisation be not below a certain rank, I do not see how that brings about a situation in which the person with the closest knowledge of gangland activity would not be in a position to assist the courts. If there is a serious issue such as the existence of a criminal organisation one would expect that a senior member of the Garda would be in a position to give the requisite testimony. Therefore, to require that the person be not below a certain rank is a reasonable amendment to what is, to say the least, a rather adventurous change in the law proposed by the Minister.

I commend the Minister on bringing the Bill to the House in such a speedy fashion and I fully support the fact that he is standing by the Bill and does not intend to accept this amendment, with which I disagree.

The Minister did not speak on the amendment yet.

Well, I hope the Minister will not change his line.

Senator Leyden is prejudging the Minister.

Is the Senator anticipating something?

I will rephrase that and say that I urge the Minister not to change his stance because he has hit the nail on the head with this Bill. It shows tremendous courage and conviction and that he is prepared to take action, not just talk. As far as I can see, the Opposition is all talk and no action. It is trying to delay the Bill. The Minister has outlined why the Bill must be passed and be available to the Garda Síochána to fight organised crime. That is what it is all about. The fact that a garda, whether in the force or retired, could be called on to establish the existence of particular organisations, although not an individual as such, is clear in the Bill. The Minister outlined it extremely well today and it is a very clear Bill. It is the Director of Public Prosecutions, an independent authority, who decides whether cases are suitable for a non-jury court, namely, the Special Criminal Court. There are many safeguards in the Bill.

I note the concerns of the Garda Representative Association, which has, I presume, expressed them to the Minister. However, I have one question about the giving of evidence by a member of the Garda Síochána, whether current or retired. What protection is there for that garda in court with regard to his or her identity? The garda should identify himself or herself and be satisfied that the judge knows his or her identity. Would the Minister consider amending the regulations so that the garda would not be identified? These gardaí have families and are subject to vendettas by these criminal organisations. Gardaí are at the cutting edge of the fight against organised crime. Many have sacrificed their own lives in defending the State. That is why the Minister is supporting the Garda in its work. I note the input of the Commissioner, Fachtna Murphy, a courageous leader of the Garda Síochána, who has urged the Minister, as far as I can see from his statement today, to introduce the Bill as quickly as possible so that he may have more tools with which to fight organised crime.

The idea behind the Bill is to deal with the intimidation of juries.

We are discussing amendments Nos. 1 and 2.

The question of juries is at the kernel of the Bill.

The amendments are specific.

I accept that. I will not be coming in and out of the Chamber all evening as I have one specific question for the Minister and I would like to hear his response. Juries can be nobbled in different ways. I came across one case in which it was understood that people came, apparently innocently, to the houses of the jury members selling vacuum cleaners and told the jurors how good the person on trial was. No threats were mentioned; it was all done in a different way. This may be anecdotal and there may be no truth to it, but I was told it in conversation a long time ago. I will not say where or when the incident was supposed to have taken place.

When one goes into the Four Courts or any court one can see the jury, and it is easy, in a small country, to identify the jurors. The threat to those people's futures is what the Minister is attempting to deal with in the Bill. I thank the Minister for introducing this Bill, trying to fight organised crime and not putting the lives of innocent citizens and their families at risk, as happened in Limerick.

I cannot accept these amendments, about which we had a good discussion in the Dáil.

The issue under discussion is opinion evidence. Senator Bacik referred to the Hederman report. The normal understanding of opinion evidence is based on section 3(2) of the Offences against the State (Amendment) Act 1972, which states with regard to certain offences related to paramilitary organisations: "Where an officer of the Garda Síochána, not below the rank of chief superintendent, in giving evidence in proceedings relating to an offence ... believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member." That is not in this Bill and I thank the Senators for at least acknowledging that fact. The reason this amendment was tabled in the Dáil was a misunderstanding that what we were proposing in section 7 was similar to what is contained in the aforementioned Act with regard to opinion evidence. The penny has finally dropped that we are not going as far as the Act does, mainly for the reason, as mentioned by Senator Bacik, that the interpretation by the courts is that it cannot be accepted solely as evidence of guilt and that there must be corroborative evidence.

The difficulty with gangland crime, as I mentioned in my Second Stage speech and in the Dáil, is that it is far more difficult to prove the existence of a paramilitary organisation than a criminal organisation or gang. Gangs by their nature do not have membership lists or the types of structures that paramilitary organisations are recognised to have. The members of such organisations, when they go into court — now that they have latterly recognised the courts — accept that it is easier to ground a conviction. That is one of the reasons the offence of membership of an illegal paramilitary organisation has been one of the more successful in terms of prosecutions with regard to the paramilitary threat to this country. However, it is different for criminal gangs. A certain number of people who are known to be part of a criminal gang could be meeting on the side of the street but they could be talking about last night's football match. Thus, it is more difficult to prove that the gathering has criminal intent.

After the Shane Geoghegan murder I was exhorted by Members of the Oireachtas to consider again the issue of opinion evidence. I was encouraged to introduce what was effectively internment — lifting people off the street, as one Member said.

I was then encouraged, as a more reduced measure, to bring in opinion evidence. As I pointed out, opinion evidence has been successful but one must obtain corroborative evidence, which is much more difficult in the area of gangland crime. The reason we are now introducing these measures is that we regard them as an alternative. It has been extremely difficult to ground prosecutions on the basis of the offence contained in the existing legislation in respect of participation. Only one such prosecution has been taken and in that instance the individual pleaded guilty. In such circumstances, the position was not really challenged in the court.

We re-examined the position in respect of opinion evidence following the murder of Shane Geoghegan as a result of the exhortations of Members of the Oireachtas. I asked the Attorney General to reconsider this matter in order to discover whether a provision relating to it might be included in the legislation. He gave exactly the same legal opinion to the Government as his predecessor did when the original legislation was being drafted. The basis of that advice is that opinion evidence only goes so far. The courts have decided that corroborative evidence must be provided and that a witness cannot merely state that a person is a member of the IRA or that someone else is a member of a particular gang. Section 7 is, therefore, an innovative way of trying to establish that there is, in a particular geographical area, a criminal gang.

The point the Senators have made in respect of the amendments is that the person who provides the evidence required should be a chief superintendent. Let us consider what would be the position if a criminal gang were operating in my hometown of Dundalk and what would happen if we were trying to establish grounds to prosecute some of its members. The chief superintendent for our area is based in Drogheda. Are the Senators stating that he would have better knowledge than a garda operating on the ground in Dundalk? The position could be similar in Limerick where, perhaps, an assistant commissioner for the area could be based in Cork. The latter would be obliged to give evidence in a court case and would not possess the same knowledge, expertise or opinion as, for example, a detective inspector who operates in Limerick on a daily basis.

The Garda Síochána has indicated that it is more than likely that a person giving evidence under this section would hold the rank of detective inspector, namely, a person who would know seed, breed and generation of the various people involved in the gangs in a particular area. The Garda has insisted that it is not the rank of the individual garda that is important, it is rather the actual knowledge, expertise and experience he or she possesses which should qualify him or her to provide evidence as to the existence of a gang and not in respect of whether a certain individual is a member of that gang.

As stated on Second Stage, any good lawyer would be able to drive a coach and four through the evidence of a chief superintendent who might spend most of his or her working life sitting behind a desk and who might not possess knowledge relating to the existence or the workings of a particular gang. In view of what Opposition Members stated on Second Stage in the Dáil, and leaving aside the various arguments with regard to getting it wrong in the context of the provision of opinion evidence, prior to the debate on Committee and Remaining Stages there, we returned to the Garda Síochána and pursued the matter further. Again, those at the highest levels in the force indicated that as far as they are concerned it is not the rank of the garda that is important but rather the expertise he or she possesses.

I do not accept Senator Bacik's contention that the section does not provide guidance to the courts in respect of this matter. Such guidance is clearly outlined in the relevant subsections.

Section 13 states that nothing shall prevent a court, in proceedings under Part 7 of the Criminal Justice Act 2006, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value. This safeguard is being included in order to ensure that only a certain weight, and no more than that, will be placed on this type of evidence. It will obviously be the responsibility for the Garda to establish the expertise of the person.

Senator Leyden referred to ensuring that a garda providing the evidence should remain anonymous. That would be neither acceptable nor feasible because he or she must be subject to cross-examination in open court in respect of his or her experience and knowledge. Unfortunately, it is a hazard of the job that gardaí must give evidence. Gardaí are resolute in performing their duties and we compliment them in that regard.

We have made provision in respect of former members of the force for the simple and valid reason that the person who may possess the most expertise might be a garda who has just retired. It is ludicrous to suggest that the Garda Síochána might put forward an ex-member who might be ten years out of the force and who might now have a career in a completely different area. What has been stated in this regard is nonsense, particularly in view of the fact that the court must be satisfied that the ex-garda in question is capable of imparting knowledge that is relevant to his or her experience. The section provides a belt and braces approach in respect of a situation where a trial might be initiated and where the person who possesses the most expertise might only have left the force a couple of months earlier. In such circumstances, it would be far better to oblige that individual to provide evidence than it would be to have a garda with less experience or an officer who has not been serving in an area for a long period do so.

When one is dealing with gangs, in many instances one is dealing with families or a number of families that have come together to form a gang. It is, therefore, important that there be a continuity of experience in respect of who might or might not be a member. In certain instances, a member of one gang might transfer his or her allegiance to another. This has happened quite often. Again, the section is designed to contemplate such an eventuality. Those operating on the ground who possess the best knowledge should be the ones charged with providing evidence under this section.

I fundamentally disagree with the Minister. I do not understand why we are running the risk of proceeding with this provision or why he is refusing to accede to my amendment. There are many elements which come into play in order to form the opinion that a criminal organisation exists. A person of the rank of chief superintendent can call on all of the resources required, such as the knowledge relating to a criminal gang and the various reports relating to the previous convictions of particular individuals. Under the section, the question of bad character is also taken into account in forming this opinion. Criminal law legislation has been misused in the past. All we are doing is trying to ensure that the necessary safeguards will be put in place in order to ensure that such misuse will not be repeated.

In many instances, individual gardaí can be too close to an issue and cannot see the wood for the trees. A chief superintendent will have a broader view of an entire Garda operation. It is not merely a question of an officer possessing requisite or direct knowledge of some individuals who may have previous convictions or be guilty of bad behaviour.

On a point of information, the Senator stated that a person's bad character must be taken into account. That is not the case.

That is how I read the new section 71B(4)(a)(ii), which section 7 inserts into the 2006 Act. The Bills digest provided by the Oireachtas Library — which I find extremely helpful in dealing with matters of this nature — states:

While the section does not address the question of an individual's guilt or innocence it does allow the Member to infer from the previous convictions of individuals that an organised criminal gang exists. It is the finding of the existence of this gang that is a condition precedent to the ultimate finding of guilt or innocence. Therefore, allowing evidence of previous bad character of alleged gang members to be used by the Member to form an opinion as to the existence of a criminal gang marks a departure from the common law's traditional reticence to allow this evidence to be give cognisance at trial.

While this is notper se a criticism of the Bill, it provides that a garda infers from previous behaviour, convictions etc. that there is a criminal organisation. The Minister spoke about the knowledge of a garda on the beat in Dundalk, compared to that of a chief superintendent in Drogheda. However, it is not knowledge per se that is the criterion contained in the Bill, but expertise, which means “experience, specialised knowledge or qualifications”. As they are the criteria in the Bill itself, the Minister’s argument is contradictory. In saying this, I do not criticise the Bill but merely suggest this amendment is appropriate to ensure the necessary safeguards against abuse in the unlikely event that it should happen. However, past experience suggests such things do happen.

The Minister does not intend to accept either this amendment or any other tonight. However, the Minister could introduce it as a guideline within the Garda Síochána on the implementation of this Bill. It would be an important safeguard to ensure that chief superintendents play the role of assessing and pooling all of the information and exercise their judgment based on their expertise, namely, their knowledge, experience and qualifications. That is a role for a chief superintendent and the Bill would be all the more powerful, were decisions to be made on that basis. They would be less likely to be challenged and I make the point that all Members support this legislation and want to make it work. As for former members of the Garda Síochána, I have read that since chief superintendents are forcibly retired at the age of 60, at least one has indicated that he certainly would not make himself available to provide evidence. I presume this is not the reason the Bill simply refers to "former member of the Garda Síochána" as distinct from the rank. It is important to have this safeguard in place. The Minister mentioned internment. Executive internment was introduced in Northern Ireland and I would not like this measure to be branded as judicial internment. Safeguards are required and this legislation must work, which is the reason I have tabled this amendment.

The most striking argument the Minister put forward for not accepting a change requiring a chief superintendent rather than a garda to give evidence concerned the advantage an individual garda's direct knowledge would bestow. The Minister gave the example of Drogheda versus Dundalk, which is not a particularly compelling argument. I am familiar with and understand the point that chief superintendents may be based in one area but are obliged to cover two discrete areas. However, I would have thought the role and duties of a chief superintendent would be such as to ensure he or she had an appreciation of the problems, issues and operational challenges to the force throughout his or her area of management.

This provision pertains to evidence being given as to the existence of a gang and I accept the Minister's contention that a chief superintendent cannot be expected to know everything that is going on in every nook and cranny across the board. However, I refer to operational problems or issues, such as the existence of a gang. While I may be wrong, I would have thought that for something as important or as significant as the existence of gangs, a chief superintendent would be aware of, or would have a means of being informed by his or her subordinates on, the existence or otherwise of gangs.

Senator Regan is correct to note this provision is not about local knowledge. Were that the case, the Bill would say so. However, it does not mention local knowledge. Consequently, the Drogheda versus Dundalk example is not reflected in the legislation. It refers to "experience, specialised knowledge or qualifications". I thought the Minister might make the point that levels of expertise exist within the Garda Síochána, such as, for example, special detective units and the special branch or whatever it is called these days and that people involved in this important aspect of the Garda's work are those who more properly should be called upon to give such evidence. That is a specialised specialism and an expertise one can understand. However, the argument the Minister put forward in favour of this section is more akin to a question of local or direct knowledge.

As Members discuss the difference between opinion and expertise, my concern is the measure is open to the criticism that it constitutes opinion masquerading as expertise. I believe the Minister stated this is an ingenious way to deal with this question. The problem in this regard is that opinion evidence must of course be corroborated. Consequently, the way to get around that is simply by calling it expert evidence. In reality however, it is the expression of an opinion. As for expertise, I would have thought that all gardaí have expertise, qualifications and knowledge. Will a differentiation be made to the effect that some have more expertise on the existence of gangs than others? I could understand such an argument from the Minister. Were he to make such an argument, he might state it is more appropriate for specialised units within the force, such as the special branch, to give such evidence. However, his justification did not include such a point. Given general acceptance regarding the trust and credibility the community places in senior members of the force with long years of experience, I cannot understand what is the problem with specifying they should be called on and be relied on to give such evidence or how that is considered not appropriate.

Senator Leyden has a point, albeit perhaps a slightly different one from what he intended. Why should a junior garda on the beat, perhaps the officer who came across the initial information, evidence or whatever, be exposed? Surely it should be the chief superintendent or those superior officers who collate such information and direct activities within the force who should be exposed. Moreover, it seems a chief superintendent will have the established public credibility in the eyes of the public. This is not to demean or undermine anything in respect of individual gardaí, junior or otherwise, past or present. However, calling on a chief superintendent to do this would be a protection the community would value. I cannot believe a chief superintendent would be so divorced or removed from such crucial information as the question of the existence of gangs.

Lest I give the contrary impression, I emphasise my party's support in this regard. The Minister has stated a number of times that although he had been called on by Deputy Rabbitte and others to do things, the Labour Party now appeared not to support him in so doing. I wish to make clear that I support what the Minister is attempting to do in this section. Obviously, the Minister and the Attorney General have been obliged to struggle with the question of how exactly one deals the issue of gangs, their existence and direction, the direction of activities and so forth. I understand this is a difficult issue and one to which it would be difficult to come up with an answer. I genuinely understand the difficulties in this regard. However, it would be a protection for all concerned, that would command confidence across the wider community, were Members to continue to repose such a level of trust on such issues in senior members of the force, rather than in junior members on the beat. Finally, this is more of a debating point than otherwise, but it probably will arise again depending on how late into the evening Members will be obliged to debate these matters. It is no answer to any criticisms Members might make for the Minister to assert that he could have gone a lot further. The Minister states repeatedly that it could have been a lot worse and that he could have gone much further. He talks about people discussing internment and all the rest of it. Presumably he could have gone much further and Members would have a different level of debate. However, the assertion that the Minister could have been more draconian is no answer to the genuine, reasonable criticisms Members are putting forward in this regard.

The Bill states that "In subsection (1) ‘expertise' means experience, specialised knowledge or qualifications". That does not mean that any garda will be called on. We presume the person called will have expertise in this area. Until a month ago I knew very little about gangland activity. One month ago, Councillor Arthur McDonald asked me to visit Carlow because of the number of bank robberies in the area and the subsequent lack of cash in ATMs. The whole economy was affected by the lack of money. I met a chief superintendent and a detective inspector. A chief superintendent has an overall knowledge of the area. His opinion on the detail of a human being before the court would not stand up to forensic inquisition. It must be the person with the intelligence on the ground. The detective inspector I met spends his day on the road. He is not in an office, he moves around and the person on the road has more knowledge and expertise.

The Bill refers to retired gardaí. A new friend of mine is a former assistant commissioner of the Garda Síochána, Mr. Martin Donnellan.

I do not want people named.

He is helping me on an all-Ireland project on ageing. He brought a case to the High Court claiming that he should not have to retire at 60. An assistant commissioner should not have to retire at 60. His expertise is lost to the force. I would have that man on any project I was working on because he is a great person with tremendous knowledge. The Garda Síochána is being deprived of his experience and knowledge. There should not be an age at which an assistant commissioner must retire. I support what the Minister is saying. It is important for the Minister to qualify what he means by expertise. Perhaps the Minister already did so but I was not able to attend the Chamber until now.

I echo the words of Senators Regan and Alex White. I refer to the Minister's comments on the cross-examination of a garda on the beat or the garda who proposes to give this evidence. The difficulty is that a garda, of chief superintendent or another rank, routinely claims privilege. Perhaps I will wait until I have the Minister's attention. The garda claims privilege over sources or claims that it is confidential information. This makes it difficult to cross-examine or get to the root of the basis for the belief. The difficulty with this provision is that it does not require any basis for the belief, nor corroboration. It is flawed.

I fully support the Bill but I support Senator Regan on this amendment. Senator Regan raises an important point. The Minister has the value of three eminent lawyers on this side of the House in Senators Regan, Alex White and Bacik. As a lay person, does the Minister seriously think that a garda near retirement, living in the community, will stand up and name someone as a member of a criminal gang?

The garda would not be called to give evidence that a particular person was a member of a gang. That is not what this section is about. It is about the fact that a gang is in existence.

The garda would have to give evidence on the existence of the organisation. I cannot see him doing that and putting himself in that position. This garda will more than likely live in the community for the rest of his life. Surely a high-ranking official of the Garda Síochána is in a better position to present the case. The ordinary garda is gathering intelligence but there is a system in Dundalk, for instance, where there are 100 members in the force to gather intelligence. Each member adds to the intelligence. A chief superintendent would be in a better position to give the evidence rather than a single member of the Garda Síochána. The amendment would strengthen this Bill. It brings gathering intelligence into focus. Senior members of the force are not taking responsibility and are handing responsibility for this down the line to a garda on the beat. The latter is only gathering intelligence on a daily basis and is bringing that back to his or her superiors after his or her shift. Surely they are in a better position to give this evidence than a single member of the force.

We support this Bill. My experiences as a public representative mean that I am glad to see such a Bill before the House. The constituency in which I live, Dublin Central, has been utterly terrorised by the existence of gangs and what they have done. My experience leads me to support the aims of this legislation and to support the amendment of Senators Regan and Alex White. There are three points for the Minister to consider.

This Bill allows a garda to offer testimony in court regarding the existence of a gang. I have dealt extensively with chief superintendents in my role as a public representative through community policing fora that were set up in Dublin Central. Any of the chief superintendents I dealt with would be fully aware of the existence of any gangs, who constitutes them and their activities. Based on how these people perform in private and in public meetings, they would have the experience to provide that testimony in court. If we find ourselves in the situation where chief superintendents do not have the expertise or background to put the case in court and survive cross-examination, what is their role in the first place?

Is Senator Donohoe saying they are the only ones who can offer this testimony?

Why does Senator Donohoe say that?

No interruptions.

I am happy to answer that. Senator Mary White referred to becoming aware of the existence of gangs over the past month. Over the five years I was a public representative, I have been deeply aware of what gangs are up to and the effect they have in the community. This is why I support the Bill. However, this amendment would improve the Bill. In response to what the Minister stated my reason for stating this is based on my experience of the performance of chief superintendents. To state that a chief superintendent would not be able to offer testimony in court on the existence of a gang within an area——

No, we are not stating that either.

I will continue and in the Minister's response——

It is a garda of any rank and can equally be a chief superintendent under the legislation.

The Minister will respond afterwards.

What I am stressing is my contention that it should only be a chief superintendent.

When the Minister responded to what one of my colleagues stated he made the point that a chief superintendent might not have the knowledge on the ground to put forward an effective testimony in court. I am making the point that from my experience of seeing chief superintendents perform I am equally certain that they would.

I have two further points to make in support of this. The first is with regard to the idea of distance. I am not sure it is appropriate that inspectors and sergeants operating in their communities and having daily engagements with gang members are the same people upon whom this power is conferred. I have seen the intimidation to which some of these gardaí are subjected. I would have thought that for the safe exercise of their duty and the safety of those on the beat in the community, that this responsibility should be conferred on people who are not on the footpaths of the community all day long. It is appropriate that something such as this be limited to the very senior ranks of the Garda.

The second is that the Bill makes reference to expertise, meaning experience, specialised knowledge or qualifications. Surely somebody who reaches the rank of chief superintendent is one who will accumulate all these qualities on his or her way up the promotional ladder in the Garda Síochána. For all of these reasons the amendment would improve the operation of the Bill and would ensure that the Garda can ensure the objectives of targeting gangland crime are delivered safely for themselves and the community in which they are operating.

I do not want to labour the point; the arguments have been made on both sides and the Minister has responded. The Bill mentions a garda of any rank and does not exclude a superintendent or a chief superintendent. I am not disputing what my colleague, Senator Donohoe, stated, particularly given the area in which he lives. However, one must also consider the area in which I live. Senator Regan mentioned the substantial quantities of drugs — some of the largest consignments in the history of the State — coming into areas such as Dunlough Bay, Mizen, Castletownbere or parts of Sheep's Head. Primarily, these drugs were not for the Irish market. No superintendent lives in most of the area I represent and one usually comes from Cork city. The sergeant or detective sergeant on the ground — and they include some excellent people — know who is involved in the gangs. They mingle with the people, they know who drinks in what pub and how they mix. To exclude that evidence in this situation would be ludicrous.

If one takes any situation in Dublin, by and large the boys who are out day and night covertly tracking these criminals are not chief superintendents. They are of lesser rank but probably have more expertise in what is happening and with whom they are dealing.

I want to make this point in support of what the Minister is trying to do and not to denigrate. We are dealing with a very serious situation and what the Minister is trying to do is to broaden the definition of a gang. I have no doubt that people of lesser rank than a chief superintendent or a superintendent have more hands-on knowledge of what is happening in a part of a city or a remote part of Ireland such as where I come from. It would be ludicrous to exclude their expertise. That is what would happen if we accepted the amendment.

Senator O'Donovan eloquently explained what is meant. In case Senator Donohoe thinks I was not aware of gangs, nothing could be further from the truth. I received a detailed briefing from gardaí at the highest level on what is happening and I intend to have them come to the audio-visual room in the autumn to present to all Members of the Oireachtas the tremendous work they are doing to try to get to grips with these intimidating gangs based not only in towns but also in rural areas. The way Senator Donohoe responded made me feel as though I did not have a clue about it, I do.

I was only responding to what Senator White said.

On the section.

Senator Donohoe misread——

I did not misread.

Please, Members.

I am telling him that he did.

I did no such thing.

Senator White took the time to interrupt me and I responded.

We are on amendment No. 1 to section 7.

Does Senator Donohoe want us all to sit as dummies and nobody to say anything?

Is that what Senator White would expect of us?

Senator White must deal with the response Senator Donohoe gave her.

I do not want to hold up the passage of the Bill. It is innovative and has to be passed. The Minister would be in dereliction of his duties if he had not the courage and the nerve to bring the Bill to the Oireachtas. The Bill was passed in the Dáil by 118 votes to 23 and that speaks for itself. It reflects the people of Ireland——

There are two Chambers.

On a point of order, is this a Second Stage speech?

I will judge that.

I thank the Cathaoirleach.

I do not want this type of interference from any Member. Whoever is in the Chair will judge that.

God, Senator Bacik is great for overstepping the mark herself.

Does Senator Buttimer wish to contribute?

I am loth to interrupt Senators Mary White and Bacik in a fight in the Upper House.

On the Bill; we are discussing amendment No. 1 to section 7.

I am just giving a preamble. Perhaps the Minister might include in the Bill reference to fights in the Seanad.

The broad thrust of the Bill is to be welcomed and there is an important need for it. Anyone who watched Miriam O'Callaghan's programme on Saturday night would have been struck by Mr. Collins and the issue of gangland crime. I am concerned that the Minister is pinning down rank and file gardaí and that he will not allow the ranking of gardaí to be denoted in the Bill. The rank of chief superintendent has status as a commanding officer and stating this rank in the Bill would take away the emphasis from local gardaí. The provision will cause difficulty for local policing. The work of local gardaí receiving information on crime, working in local neighbourhoods and gathering intelligence helps to solve much crime.

Will the Minister provide the House with his definition of what constitutes a gang? Is it one or two people who gather at the corner of a chipper on a Friday night with intent to sell or partake in drugs or to partake in anti-social behaviour? We need to have a serious approach to the issue of gangs, not only with regard to gangland crime but the wider issue of the congregation of gangs which is not provided for in the Bill.

I ask Senator Buttimer to stick to the amendments and we will move along on the Bill.

I am concerned that the Minister is putting too much emphasis on the local garda who is at the front line of fighting crime and who is very good at gathering intelligence. These gardaí are a bit like local councillors; they have all the information. The supply of information would dry up if this amendment was not included in the Bill. Why did the Minister not accept Senator Regan's amendment?

To answer the last speaker, the definition of a criminal organisation is in section 3.

It is not clear.

To be fair, there is an understanding of where we are in regard to this issue. I would agree with this amendment if we were talking about a garda giving opinion evidence as to the guilt of a particular person. It would have to be someone of senior rank of the Garda to give that evidence, obviously with the addition of corroborative evidence, but that is not what we are about. What we are about here is the proof of the existence generally of a gang, not that the accused or any accused before a court is a member of that gang. That is subject to additional proofs. This is purely and simply about the existence of a gang and I repeat that the strong advice of the Garda Síochána — I accept that Members of this House would be willing to accept the advice of the gardaí in this respect — is that they do not want their hands tied in regard to the rank that is required under this section to prove the existence of a gang.

As I said previously, while a chief superintendent is not excluded from the section as drafted, it may be that the local chief superintendent may have recently been appointed to the area and may not have the first clue about the place. The gardaí are very much of the view that their hands would be tied in regard to the people they would proffer to the court as the people who have the direct local expertise or knowledge. They have indicated that, more than likely, it would be a detective inspector but it may be a detective sergeant or an ordinary sergeant. They do not want their hands tied in this regard because they believe that if it is put at the level of chief superintendent it will cause severe difficulties and it could result in a chief superintendent going into court who would not have particular direct personal knowledge of the existence of the gang. That would leave that chief superintendent exposed under severe cross-examination because any good lawyer would ask the question: "Do you know from your own knowledge of the existence of a gang" and if the chief superintendent did not know that for a fact, and there was somebody else in the gardaí locally who did know that fact, this legislation would be somewhat of a laughing stock in that we are forcing them to produce somebody who does not necessarily know of the existence, from their knowledge, of a gang whereas there is someone else in the local area who has that knowledge. Senator O'Donovan and Senator Mary White put it very well in terms of their experience.

We have probably exhausted the debate on these amendments, which are similar, but I want to make some brief points. I do not understand the rationale. If the Minister is dealing with proving the specific offence, it is the direct knowledge of the member of the Garda Síochána of that offence that is required, but at issue here is the opinion of the existence of a criminal gang, which is a more complex task. The Minister keeps referring to knowledge. That is not the criterion in the Bill which refers to "... experience, specialised knowledge or qualifications" and a chief superintendent would fulfil all those criteria, regardless of whether he was in the specific area for some time. The Minister is not accepting this amendment and I believe he is wrong in that but it should be the rank of chief superintendent, where possible.

With regard to the definition of criminal gang, the Library & Research Service has provided me with information to the effect that the definition is very similar to that which applies in New Zealand as contained in section 98A of the Crimes Act 1961, which deals with participation in organised criminal group. It states:

"(1) Every person commits an offence and is liable to imprisonment for a term not exceeding 10 years who participates in an organised criminal group—

"(a) knowing that 3 or more people share any 1 or more of the objectives ... described in paragraphs (a) to (d) ... contributes, or being reckless as to whether his or her conduct may" [constitute an offence].

The Minister accused a colleague of mine, Deputy Alan Shatter, of copying New Zealand legislation——

——but I notice a distinct parallel with this legislation in regard to the definition of a criminal gang.

The Minister said that he takes his advice from the Attorney General. On different occasions in the debate in the Lower House and here he indicated that he would be happy to have the chief superintendent as the designated person to give the opinion of the existence of a criminal gang and draw the inferences from the evidence available and expertise, intelligence reports etc. but that the Garda insists on the wording he now has in the Bill. I would have thought the Attorney General should have the last word on that, not the Garda Síochána because the Minister, ultimately, must exercise his judgment on these matters. Time and again that argument has been used in this House. There was a proposal that the witness protection programme should be put on a statutory basis but that was not to happen, notwithstanding the fact that it is proving very ineffective because the Garda Síochána insists that it be left on anad hoc basis. The Minister should exercise his judgment in this case based on the best legal advice from the Attorney General and the safeguards that are necessary in this legislation. The cool eye of a chief superintendent assessing the information available would be the most appropriate procedure.

To answer the Deputy's question on the definition of a criminal gang, it is very similar to the definition in the New Zealand legislation but that is no coincidence because that is the internationally recognised definition under the United Nations Convention against Transnational Organised Crime, and a number of countries across the world have the same definition. It is not just New Zealand that has that definition in its legislation, it is also in legislation in Canada and other countries.

It is word for word in line with the definition in the New Zealand legislation.

It is word for word because it is taken from the UN convention. The legislation the Senator referred to was a dramatic plagarisation——

I have the New Zealand one in front of me.

——word for word, of the New Zealand legislation, apart from the omission of the word "crown" on two occasions.

It is Google legislation.

The Minister, without interruption.

To respond to the Senator's point about following my gut instinct and that it is not necessarily the Garda Commissioner I should be listening to, the Attorney Generally fully accepted, in the discussions we had both before the drafting of this Bill and in the period between the taking of Second and Subsequent Stages in the Lower House, the issue of whether we should put in some rank but the strong advice from the gardaí was not to tie their hands in regard to the rank because gardaí of a particular rank who would have the knowledge might not be included under the legislation. The Attorney General fully accepts that position from a legal point of view.

A point I omitted concerned the issue Senator Bacik mentioned about privileged information. There is a saver in section 13 on the exclusion of evidence in certain circumstances. The new section 74(B) states: "Nothing in this Part prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value." That is put in as a saver to protect the position in regard to the particular type of evidence that is being given.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 20.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callanan, Peter.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.
  • White, Alex.
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Question declared carried.
Amendment declared lost.

I wish to inform the House that Senator Doherty inadvertently voted in Senator Norris's place and his own. The vote has been amended and the result of the division as shown on the display board has been amended with the agreement of the tellers for both sides. The amended result will appear in the journal of proceedings: Tá, 26; Níl, 20.

I move amendment No. 2:

In page 9, line 50, after "Síochána" to insert "not below the rank of Chief Superintendent".

Amendment put and declared lost.

I move amendment No. 3:

In page 10, between lines 10 and 11, to insert the following:

"(3) A person shall not be convicted of an offence under this Act based on the opinion given under this section in the absence of corroborating evidence, which shall not include evidence given to a Court based on section 9 of this Act.".

While it is not provided in this section that one is giving evidence or otherwise of a specific offence, the amendment concerns inferences, etc. Notwithstanding the section's purpose, the amendment is to be recommended as an additional safeguard. When an opinion is formed by a chief superintendent or whichever member of the Garda is to provide it, the definition of "criminal organisation" to be used is that of a number of people who have previous convictions and are established as being members of a gang, which is itself an offence. One can be convicted for being a member of or involved with the gang, for directing its actions or otherwise. Evidence can emerge from the opinion that is relevant to securing a conviction. The amendment is that there would be corroborating evidence before a court before any such offence could be deemed to be committed under the Bill. It is a necessary and useful safeguard. If accepted, there would be sufficient safeguards regarding the provision of essential evidence that would be normally considered admissible in court before an offence could be deemed to have been committed, and there would be corroborative evidence to support a conviction.

I support Senator Regan's amendment and have already stated the reasons for my opposition to section 7 and the fundamental premise on which it is based. Senator Regan's amendment would not address my concerns but would improve matters in that it would certainly confirm existing case law on the nearest parallel, section 3(2) of the 1972 Act, thereby requiring the provision of corroborating evidence. The courts will require this in any case if section 7 is ever operative.

I support Senator Regan's amendment in the circumstances and for the reasons that have been advanced.

We touched on this in respect of the preceding amendments and on Second Stage. I cannot accept the amendment on the basis that doing so would give rise to the suggestion that opinion evidence as to the guilt of a person is provided for in the Bill; it is not.

Section 13 provides that nothing would prevent the court from excluding evidence that would otherwise be admissible if, in the opinion of the court, the prejudicial effect of the evidence outweighs its probative value. The provision in section 7 resembles section 3 of the Offences Against the State Act, which requires evidence to be given by an officer of the Garda Síochána not below the rank of chief superintendent. However, under the 1972 Act the evidence of the chief superintendent is to a person's membership of the unlawful organisation, i.e., the offence. That is not the case here.

Senator Bacik stated she is opposing this section. However, the section is particularly important because it endeavours to surmount the difficulty that has been present in the fight against gangland crime, that is, establishing proof of the existence of a gang. To omit the section would take away one of the very important building blocks we believe is necessary to proceed to the next step, that is, to prove the accused is a member of a particular gang and committed offences under the legislation.

I am not satisfied with that response and will press this amendment. The evidence of the existence of a criminal gang is premised on the existence of individuals who are involved in crime. The opinion provided by a member of the Garda Síochána could very well prejudice an accusation of an offence against an individual and the position should be crystal clear in the Act. There must be corroborative evidence.

My opposition to section 7 relates to subsections (1), (2) and (3) of the proposed new section 71B. The fundamental premise is that the opinion of a garda will constitute evidence as to the existence of a particular criminal organisation. I do not have the same objections regarding subsections (4) and (5) of the proposed new section. The fundamental premise of the first three subsections is to create a provision for so-called extra evidence. I object to this because there are other ways of proving the existence of a criminal organisation, as in subsections (4) and (5).

Amendment put and declared lost.
Question proposed: "That section 7 stand part of the Bill."

I have already stated clearly on the record why I oppose the section. My concerns focus particularly on the proposed new subsections (1) to (3) of the proposed new section 71B of the 2006 Act, which relate to the opinion evidence of a garda as to the existence of a criminal organisation.

Question put and declared carried.
NEW SECTION.

I move amendment No. 4:

In page 11, before section 8, to insert the following new section:

8.—(1) The Director of Public Prosecutions shall not exercise his or her power under section 46(1) or (2) of the Offences against the State Act 1939 (as amended by section 11 of the Criminal Justice Act 1999) to certify in writing that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of public peace and order, in relation to the trial of an offence that is not a scheduled offence within the meaning of that Act, unless the Director is of opinion, on reasonable and objective grounds, that there is a real and substantial risk that jurors or potential jurors in the case may be intimidated or put in fear.

(2) In any proceedings in a court where it is sought to challenge or review the basis of the opinion of the Director of Public Prosecutions referred to insubsection (1), the court shall take all such measures as seem to it appropriate, consistent with the administration of justice, to ensure that the necessary confidentiality of information available to the Director is maintained and that the integrity of the criminal investigation and prosecution processes are preserved.

(3) For the avoidance of doubt, in arriving at the opinion referred to insubsection (1), it is not necessary for the Director of Public Prosecutions to be satisfied beyond reasonable doubt, or on the balance of probabilities, that jurors or potential jurors in a case will be intimidated or put in fear; but the Director must be satisfied:

(a) that there is a real and substantial risk of such an outcome in the particular case concerned; and

(b) that measures lawfully available in relation to the protection of jurors and their identities are inadequate to meet the situation.

We have touched on this vital aspect of the proposed legislation on a number of occasions, including on Second Stage. The Minister has acknowledged this is an area in respect of which there is considerable unease and concern although he has not yet been willing to yield to the view that the proposed section 8 of the Bill is excessive. He has not yet set out for the House any hard evidence as to the necessity of what he is proposing.

When the Minister responded on Second Stage, he was unhappy with the suggestion of mine and others that he had not produced any evidence. He criticised our statement but did not take the opportunity to set out any evidence for the House. Instead he referred to a number of speeches made by one of his colleagues in the Dáil. I examined those speeches, all the commentaries I could find in the newspapers and every relevant statement by the Minister himself but could find a reference to only one instance in which it was alleged that a jury was intimidated or interfered with. It was a case in Limerick and it was referred to in a newspaper article in recent days. If my memory serves me correctly, it was referred to in the other House by the Minister's colleague, the Minister for Defence, Deputy O'Dea. I am open to correction in saying the case — it is the only actual case referred to by anybody in the course of the debate in the past week or ten days — was moved to Dublin where a conviction was ultimately secured. I do not contend this case should not be part of the debate but that there is a considerable difference between suggesting juries might be interfered with or intimidated and indicating or demonstrating this is the case. While I accept that action must be taken if it is feared that intimidation will genuinely occur, the Minister must accept the case he is making is on a completely different level from a case in respect of which he might argue, if possible, that intimidation has in fact occurred. I am not being pedantic because there is a quite serious distinction to be drawn.

There are many awful circumstances in respect of which fear might pressurise us into considering preventive action but we do not take such action because we believe in the integrity of the criminal justice system. We believe in holding firm with the checks and balances that exist. It is often argued, not only in Ireland but also elsewhere, that one should think twice, or more, before taking apart the fundamental elements and pillars of the criminal justice system. We do not allow criminals, in addition to the havoc they wreak through their crimes, to undermine and take apart our criminal justice system.

Our courts secure convictions for gangland crimes that have occurred in Limerick, Dublin and other parts of the country. Mr. Justice Carney, who is the one of the most experienced of all the judges in the Central Criminal Court, has been quoted in the newspapers as saying that when gang members are brought before jury courts over which he presides there is no difficulty convicting them. A colleague of Senator Regan's, Deputy Charles Flanagan, asked the Minister recently whether he had any evidence of interference with, or intimidation of, jury members. As I understand it, although I have not seen the letter, he said in a written reply that the Garda keeps no statistics on those matters. I presume that if there was evidence of this the Minister would be able to tell us so. I am sure, as Deputy Rabbitte said in the other House, that the Minister, or any Minister, who so robustly advances his proposals would not withhold examples of interference with members of juries if such information were available to him.

There has been a constant conflation of threats to witnesses and jury members but these are different matters. When people defend this legislation they refer, whether unwittingly or otherwise, to people's concerns about interference with witnesses. This Bill does not deal with interference with witnesses. There is only one reference in the Bill to witnesses and that is in section 16 which amends the 1999 Act by substituting 15 years for ten years as the penalty for witness or juror intimidation.

There was a reference at the beginning of the Explanatory Memorandum to the Bill that gave the impression that the Bill deals with threats to witnesses. That is not the case because the Bill does not go down that road. The Minister has properly confronted that question elsewhere and my party has not only supported some of the legislation the Minister introduced but proposed similar legislation prior to his doing so. This included surveillance and witness protection. A little over a year ago I moved a witness protection Bill in this House which the Government did not support. Parties on this side of the House have been to the fore in proposing measures to deal with this problem.

The amendment we have tabled would delete the notion of providing for crimes that would automatically be triable in the Special Criminal Court but would preserve the role of the DPP in particular cases to send certain serious offences for trial to the Special Criminal Court. He would, however, have to be satisfied on reasonable and objective grounds that there was a risk of jury intimidation. Presumably that is the outcome the Minister is trying to achieve.

The legislation has gone from the initial proposition that we should do that to abolishing juries altogether in respect of a range of offences. The Minister assured us that he has carefully considered all the alternatives. What level of attention was given to those alternatives? Why were those alternatives rejected? Did the Minister rely on the opinion of the Garda only or did he debate or deliberate this with other experts? The Minister said on Second Stage that the time for debate is over and the time for action is here. I cannot imagine that the Minister misunderstands us when we say we want the Bill to have more time. We mean we want it to have more time in the open. We want more public debate, including in these Houses.

He and his officials may have been dealing with this for months or weeks and he regards that as sufficient attention and deliberation in order to proceed. He and his officials know the issues, as do the Attorney General and the Garda, because they have been dealing with them but we are not privy to that deliberation. How many more times do we have to repeat that we want more time for these Houses to scrutinise the decisions that he has made? It is not enough for him to say that he has given it all this consideration. I accept that he has considered it carefully but he cannot abrogate the role of the Oireachtas in this process. It does not have to be particularly lengthy. It does not have to go on for months on end, as Senator Leyden and others suggested, but we should have an insight into the basis for these decisions.

I am not prepared to agree, simply because it is proposed that I should, without any persuasive argument, that "the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order" in respect of these offences until and unless the Minister proffers some argument that holds water on the question of the intimidation of jurors. The case in that respect has not been made. It would be a major statement for the Oireachtas to make the case at this point that the ordinary courts are not capable of securing the effective administration of justice. I for one am not prepared to make that statement because I am not persuaded that is the case. There are many other measures the Minister and the Government could take to ensure the effective administration of justice to protect jurors and to ensure the integrity of the system short of removing juries altogether. Many other measures could be taken that have been suggested to the Minister, but there does not appear to be any wish or inclination on his part to take them.

We are not getting rid of juries altogether.

I did not say that.

The Senator did say that.

I said in relation to certain offences.

Yes. We are not doing that. Cases will go into the Special Criminal Court unless they——

I appreciate that.

That is an important rider.

I will deal with that.

It may well be——

I do not mind the Minister interrupting me.

I am doing so for the purposes of clarity——

I said I do not mind if he does so.

——and correctness.

It may well be that at the end of the year the Director of Public Prosecutions may decide in effect to take all the cases in the ordinary courts.

Before Senator White proceeds, I wish to draw to his attention a printing error in the list of amendments. The words "Section opposed“ appear in the middle of amendment No. 4 and they should appear at the end of the amendment.

That is what I thought.

I should have said that when we reached this amendment.

The suggestion the Minister appears to be making seems implausible. I suggest that the outcome that would flow from this subsection is that it would become the norm that these matters would be tried in the Special Criminal Court. That seems to be what is intended and what would flow from the subsection.

In the current circumstances, the Minister will accept that the Director of Public Prosecutions is required to send a particular matter to the Special Criminal Court, but under the new regime matters would go automatically to the Special Criminal Court and, essentially, they would have to be taken out of the Special Criminal Court by the Director of Public Prosecutions. Juryless trials for these offences would become the norm and, clearly, that seems to be the case from this subsection.

If the Minister was minded to insert in the legislation the kind of regime he appeared a moment ago to be claiming would follow, I believe he would support our amendment. Our amendment would provide for the Director of Public Prosecutions exercising a power to certify in writing that the ordinary courts in his opinion were inadequate to secure the effective administration of justice in relation to the trial of an offence that is not a scheduled offence. In other words, the Director of Public Prosecutions would have to form this opinion, but we make the case that the protection should be that it would have to be formed on reasonable and objective grounds that there was a real and substantial risk that jurors or potential jurors in the case may be intimidated or put in fear. Instead of making a presumption that a jury is not appropriate or that it should not be in place, the Minister makes a presumption that it should be and that the Director of Public Prosecutions should be required to demonstrate on reasonable grounds that it was not appropriate for the reasons that he would advance for a case to be tried in the ordinary courts.

I understand that there is a provision in British law that a hearing is held in respect of a proposal that a particular prosecution should be dealt with in a juryless court. It is not an unusual proposal we are making. It would certainly require the Director of Public Prosecutions to demonstrate in a given case that this should happen and that the matter should go to the Special Criminal Court, but it is wrong that the norm and the presumption should be that those cases in regard to those particular offences would go to the Special Criminal Court.

I am reminded of what Senator Boyle said earlier, to which I did not get an opportunity to respond, which is relevant to this amendment. He made the point that there is an important protection in respect of the yearly renewal of aspects of legislation that come before the Houses. We had a recent experience of that in this House, and it occurs every year around this time — I cannot remember the particular legislation as it has been a long day — where in respect of the designation of certain offences to be tried in the Special Criminal Court——-

The Offences Against the State (Amendment) Act 1998.

I thank the Senator for that. Aspects of the 1998 Act are required to be renewed each year in the Oireachtas. I was less than impressed by the rigour of the scrutiny we were able to give that renewal because of the lack of information in that respect. While a report was laid before the Houses, in terms of knowing the background to the necessity to continue to use that legislation, we were not put in a position where we could have a satisfactory examination of those matters. In fairness to Senator Boyle, we need to improve greatly the level, extent and nature of our scrutiny of such legislation before we can rely on that as a way of giving comfort to those of us who think this proposal is excessive. It is not, I repeat, that we believe there is not a need for the Minister to take seriously any concerns there are about interference with juries but rather that we should respond not in an excessive but in a proportionate manner to those kinds of concerns.

On that basis, the amendment we advanced would meet that test of proportionality. It is not excessive. It allows for trials to take place in the Special Criminal Court in respect of these kinds of offences. It puts a certain onus on the Director of Public Prosecutions to express an opinion but one that is based on reasonable and objective grounds. The norm would not be that all these trials on offences would go to the Special Criminal Court unless they were taken out by the Director of Public Prosecutions but rather that the Director of Public Prosecutions would have to make the case to put them in there in the first place.

I record that I oppose this section. I support Senator Alex White's amendment, which is a sensible and proportionate response to the concerns the Minister expressed about potential jury intimidation. I support what Senator Alex White said about the need to show some evidence for that. We have not been given that sort of evidence. Given that we can accept that there are genuine concerns about jury intimidation in this sort of case, there are real dangers in the approach the Minister has taken to dealing with those concerns, that is, the approach of making a sweeping declaration that the ordinary courts are inadequate for the trial of certain organised crime offences.

If I have the Minister's attention I might point out that this sweeping declaration is most concerning because it amounts to a pre-emptive announcement that our jury courts are not up to the task of dealing with certain offences. That goes towards undermining the integrity of our criminal justice system. It is a serious matter. It amounts to an admission of defeat at the hands of criminal gangs. It is a serious matter if we are coming to that stage. It is unprecedented that we have made such a sweeping declaration in respect of offences that are not of a subversive nature. I note the section appears to be modelled on section 14 of the Offences Against the State (Amendment) Act but that related to offences committed in the context of unlawful organisations under the offences against the State legislation. It amounted to a different type of offence to the offences of organised crime, about which we are making a similar sweeping declaration in section 8.

This type of pre-emptive announcement is worrying because it amounts to what the Irish Human Rights Commission has said represents resorting to a parallel criminal justice system that does not provide the accused with the right to trial by jury. There is a danger that we are admitting defeat by criminal gangs and that we are saying our Central Criminal Court and Circuit and District Courts are not up to dealing with organised crime and that instead we must create this parallel system of justice. The idea of a parallel system gives rise to echoes, and I accept it is a slightly overblown comparison, of the Guantanamo Bay regime, which we must not forget was set up as a sort of parallel regime for dealing with people by the US authorities, where they felt their courts were not up to it or they were concerned about the inadequacy of their courts. We must be careful before we make sweeping statements about the inadequacy of our courts. Senator Alex White's amendment makes a much more proportionate response in the sense that it provides for the DPP to refer such cases to the Special Criminal Court, where he is of the opinion on reasonable and objective grounds that there is a real and substantial risk that jurors or potential jurors may be intimidated or put in fear.

The proposed amendment is much more sound constitutionally and legally in two ways. First, it answers the criticisms made by the United Nation's Human Rights Committee in the Kavanagh case, where it indicated that the decision to try Mr. Kavanagh in the Special Criminal Court should have been based on reasonable and objective grounds. It outlined that the State had not offered reasonable and objective grounds for its decision in referring his trial to the Special Criminal Court. In that way it is a sensible response. It also has echoes of the British law to which Senator Alex White referred, and to which the Human Rights Commission also referred. They speak of the legislative framework in Britain where the prosecution must satisfy the court that there is a substantial likelihood that jury tampering would take place, notwithstanding any reasonable steps such as police protection that might be taken. It is only when the prosecution has shown that is the case that it can resort to non-jury trials in respect of this sort of crime. That would be a much more forensic and targeted approach to answer the real concerns about jury intimidation.

The other issue pointed out by the Human Rights Commission is that we need to know that there are no alternative methods of dealing with the fear of jury intimidation without resorting to the Special Criminal Court. I note that the Human Rights Commission recommended that consideration would be given to alternative methods to protect jury members against intimidation, including providing for anonymous juries, screening the jury from public view, the protection of the jury during the trial or locating the jury in a different place from where the trial is being held with communication by video link. We might add a couple of points to those potential alternatives. First, the new Criminal Court building that is being brought on-stream near the Phoenix Park will have much better facilities for keeping jury members separate. Senator Leyden referred correctly to problems in the past with jury panel members mingling with everybody else going into court rooms in the Circuit Criminal Court. There were problems in that regard, some of which have been resolved. The coming on-stream of the new premises will answer some of those problems. There have also been suggestions that where there is a difficulty with swearing in a jury in a particular location, a jury panel could be widened or a trial moved to Dublin, for example, if the location is outside of Dublin, so there is less potential for intimidation. If one considers alternatives such as those, we might see a better method of protecting juries without doing away with them altogether, as in this model.

I accept the Minister said he is not entirely abolishing trial by jury for those offences. I note that section 8(3) preserves the power of the DPP to direct that a person would not be sent forward, but given the presumption under section 8(1) that the ordinary courts are inadequate, and the declaration by the Oireachtas to that effect, it becomes very difficult to envisage the DPP taking a stance against that sweeping declaration in any individual case. I hope I am wrong about that. In fairness to the DPP, it would be going against what the Oireachtas has declared in a sweeping way about the adequacy of the ordinary courts to deal with certain organised crime offences. It is the sweeping nature of the declaration in section 8 that requires criticism and opposition as it calls into question the integrity of our system and its ability to cope with crime more generally, which is a serious matter.

To be fair, I welcome the provision in section 8(4) that the section shall be subject to review in 12 months. That is recognition by the Minister that this is a significant departure from previous powers and that in section 8(5) and 8(6), before the section is to be continued in operation, a report must be prepared and placed before the Houses of the Oireachtas. Again, that is very important, although, as Senator Alex White said, there has been a somewhat cursory review of similar provisions in the past. However, it is important that review is built in if a provision of this nature is to be introduced. I urge the Minister to consider adopting an alternative approach such as that outlined in Senator Alex White's amendment and to give us some indication that he has considered alternative ways to protect jurors where he fears they may be subject to intimidation.

I do not wish to contradict my colleagues on this side of the House, but this is where I part company with them. This goes to the heart of the Bill. The nature of the offences at issue is such that intimidation comes to the fore. My experience of constituents being intimidated is that it is insidious and pernicious and gives rise to a difficult situation. I appreciate that Mr. Justice Paul Carney and others have questioned where the evidence is of intimidation of jurors. It would have been wise for the Joint Committee on Justice, Equality Defence and Women's Rights to have examined the provision in more detail before it was proposed and for the Garda Commissioner to meet the members of that committee to provide information on the basis of the proposal.

Every Member in this House is exempt from jury duty, both as Members of the Seanad and, in some cases, as lawyers. Many people who speak about jury duty are exempt. There are not many people who, if called up to serve on jury duty in a case relating to gangland crime, would not look for every conceivable way to get out of it. I do not have the same concerns and reservations about this proposal. I do not believe that the notion of trial by judge, as distinct from jury, for serious offences is altogether bad. We have the tradition of trial by jury in the common law system but trial by judge is common practice in the other member states of the European Union and I do not believe their systems of justice are less effective. This is an exceptional situation. We have a problem with gangland crime and in this instance the provision is not unreasonable. The amendment cuts across that entirely.

I welcome two safeguards contained in the Bill. The first is the one year review. The second is the provision whereby nothing in section 8(3) relating to scheduled offences affects the Director of Public Prosecution's powers to direct that a person would not be sent forward for trial by the Special Criminal Court. Those two safeguards are saving clauses in this provision. In general terms the amendment would cut across that section and weaken the Bill.

Is it appropriate to quote the comments of former judge, Mr. Feargus Flood, in the newspapers at the weekend?

Is it relevant to the amendment?

Yes. He said that he had presided over gangland trials where juries had returned the wrong verdict. In what was described as the most outspoken contribution on the Bill by a sitting or former judge, Mr. Flood said the plans of the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, to send gangland trials to the non-jury Special Criminal Court were necessary to maintain order. He said that until we take a firm stand these people will walk all over us and steps have to be taken to bring this under control. He said that if one has a problem with juries and intimidation, which we obviously have, three to five High Court judges presiding over a gangland trial in the Special Criminal Court would be reasonable and would be certain to get a fair result.

I do not wish to delay matters by quoting what the Minister for Defence, Deputy O'Dea, said about how difficult it is to get people to serve on juries. It is a pity so few people are aware of what was said in the Dáil last week regarding the difficulty in getting people to serve on juries in gangland trials. It is understandable that people are nervous and fearful. However, it is shocking to discover that in the 2003 trial for the murder of Kieran Keane, 729 people were called for jury service but the State found it impossible to get 12 to serve. It is important that people are aware of that reality. There must be an engagement with the public where there is a change in public policy. The facts must be made known so that there is an informed public debate. This type of intimidation is the reality in the areas where these gangs operate.

As I said, gardaí are apparently aware of the identity of gang members and are of the view that specific legislative measures are required to ensure these people are brought to justice. I do not see how it can be claimed that a person cannot get a fair trial where that trial is conducted before three to five High Court judges.

Senator Regan put it very fairly when he said that to accept this amendment would weaken our objective in this legislation. It is important to reiterate that the decision to introduce this provision was not taken lightly. At the same time, as I said before, it does not constitute a seismic change in terms of the powers already available to the Director of Public Prosecutions. However, it is a signal of intent from the Oireachtas. It is the strong view of the Government that these provisions are necessary in view of the strong and definitive evidence we have received from the Garda Síochána of the degree of intimidation of witnesses and jurors in recent times and the heightened tension surrounding gangland trials, particularly in the aftermath of the Roy Collins murder, as well as the empirical evidence, as referred to by Senator Mary White, in regard to the dramatic dropping off in the numbers of people willing to come forward to perform jury service in a gangland trial.

The Garda Commissioner has stated that the level of threat posed by these gangs in certain sections of our community is similar to the threat posed formerly by paramilitaries on this island. The Government is strongly of the view that we should send out a signal to the Director of Public Prosecutions, to the public and, in particular, to those criminals who are directing and participating in criminal gangs that they run the risk of very serious penalties and will find themselves in circumstances where they will have less opportunity to take out and intimidate civilians, be they witnesses or jurors. I hope Members will support us in this endeavour as their colleagues did in the Lower House, where the legislation was passed with a substantial majority.

Contrary to claims made by some Members, the changes we made to legislation in 2006 have been very successful. Under those provisions, written statements made by witnesses who subsequently recant those statements because they are intimidated or fearful when it comes to testifying in open court can be used as evidence by the presiding judge. There have already been successful prosecutions in several trials where those circumstances have arisen. In one case, for example, 11 witnesses recanted their written statements but, because of the legislation passed in 2006, the judge was able to accept them as evidence and ignore the recantations.

Therefore, we have provided, to a large extent, for the issue of intimidation of witnesses. Some commentators have pointed out that Roy Collins was not a juror but a relative of a person who gave evidence as a witness. As such, the question has been raised as to why we are looking after jurors in this legislation. Does anyone suggest for one minute that these gangs will have any qualms about murdering a juror given that they have already shown themselves willing to murder a relative of a witness and to continue their intimidation of that particular family?

As I said, this provision was not introduced lightly. It was a decision based on strong advice from the Garda Síochána that the existing powers to deal with organised crime are not adequate to meet the level of threat which currently pertains. I accept that this legislation makes a very serious declaration. However, it is not a permanent one in that the Bill provides for regular reviews of the continuing need for its provisions. As Minister for Justice, Equality and Law Reform, I must, before a resolution is passed by both Houses of the Oireachtas, place a report before each House concerning the operation of the provision to date. The initial period of the provision will be one year. Therefore, one year after the enactment of the legislation and when the report is laid before both Houses, I expect that they will give it due consideration, will examine the prevailing circumstances and consider whether the legislation has operated effectively in the previous year, and will then decide whether or not to renew it.

I ask Members to consider the number of entirely innocent people who have been murdered by organised gang crime in recent times. That number includes Roy Collins, Shane Geoghegan, Anthony Campbell and Baiba Saulite. Members should ask themselves whether they believe that persons responsible for the bloody murder of ordinary people will hesitate for a moment to intimidate or otherwise undermine members of a jury. That is the crux of the issue. It is in the interests of these people, particularly the ganglords who are not pulling the trigger but are orchestrating the pulling of the trigger, to ensure these trials do not proceed. As I said on Second Stage, that is why we are endeavouring as much as possible to take out of the equation the issue of civilians either giving evidence or being part of the jury system.

Several Members referred to the concerns expressed by the Human Rights Commission. The commission has acknowledged that the Hederman committee concluded that the paramilitary threat justified the retention of the Special Criminal Court and, in addition, that the threat of organised crime was sufficient to justify its retention. The commission also recognised that organised crime is a problem in the State and that it has the potential to cause great harm to our society. The commission went on to observe that developments in the criminal justice system are capable of effectively confronting the problem of organised crime. That view is based on its own consideration of the matter, without the type of information available to the Cabinet from the Garda Síochána in respect of the level of intimidation that is taking place.

Several speakers raised the issue of what is happening in the United Kingdom. If the right to a jury trial is removed in that jurisdiction, the trial is conducted by a single judge. In this country, it is conducted by three experienced judges who have expertise in trying criminal cases. They are persons of the highest calibre and know exactly what is required in terms of protecting the rights of the accused.

The Human Rights Commission has also referred to alternative measures that could be taken to protect jurors. These have been examined but none is seen to provide full protection to jury members. Moreover, the employment of these methods in a particular case would almost inevitably send a signal to the jury that is incompatible with the presumption of innocence in respect of the accused because it would convey that the State has strong grounds for believing the safety of the jury is in jeopardy by the very reason of the criminal associations of the accused. Judges by their own training do not allow such matters to influence their thinking. There is therefore, in our view, a real danger that in suggesting we look at alternative ways, the Human Rights Commission would significantly undermine the benefit of the presumption of innocence to which the accused is entitled.

I suggest that these relate to very specific offences and they have been geared in that shape. I accept what Senator Regan says. There is a saver in that there is provision in this section that these specific cases or offences will go into the Special Criminal Court unless the DPP directs otherwise. We made those decisions based on the empirical evidence we have received on jury levels and the public response to gangland trials. The decisions were also based on the evidence the Garda Commissioner and his senior officials have given in recent months. They were also based on the tipping point of the murder of Roy Collins, where these people were clearly willing to take revenge on a family who participated in a criminal trial. They were not only taking revenge but also sending a strong signal to the rest of the community that if any of them participated in a criminal trial against members of this gang similar retribution would follow.

We made the decision, based on the aforementioned matters, to bring this legislation forward. Since then we have had a cacophony. People have raised valid criticisms but in some instances there has been a misconception with people criticising things that were not even in the Bill. Apart from that, the Human Rights Commission raised issues. In the Lower House we accepted one of the suggestions from the Human Rights Commission on the issue of inferences, so it is not as if we are unwilling to listen. We accepted an amendment from Fine Gael in the Lower House. However, there has been a cacophony from people since this legislation was published. They include people whom I respect very much, such as Paul Williams. In a recent interview he said that he had seen one of the most reputable judges in the Central Criminal Court make it very clear, in the absence of a jury in a trial within the past year, that he was aware that people were being intimidated left, right and centre. He went on to say that he was aware of another case where a phone was taken from a man in a cell. On the phone were instructions to people to make sure that certain people changed their evidence when they were before this judge, and that the judge was aware of this. He went on to instance a number of other circumstances where people were being intimidated when going before trials and jurors.

John Hennessy is a solicitor who is under constant protection because of threats against his life. He recently stated that there is absolute evidence that people are extremely reluctant to serve on a jury in a gangland criminal case. He also said it is proving increasingly difficult to secure a jury in these trials.

Michael Murray is a man for whom I have the greatest respect. Criminal elements in Limerick tried to burn down his office not so long ago. He has given strong anecdotal evidence of the difficulties in Limerick concerning jury trials. He instanced a case where clearly there was a change in the verdict because of jury intimidation. As I said earlier, a senior court official in the Limerick area stated that there is a tacit understanding that there is no point in holding gangland murder trials in Limerick. Who better to give empirical evidence than the people on the ground, such as the Minister for Defence, Deputy O'Dea?

The Minister is pushing his luck now.

He informed the Cabinet during our deliberations of all that he was aware of. Fine Gael's Deputy Kieran O'Donnell——

Very knowledgeable.

——confirmed in the Dáil that, as far as he was concerned, there was jury intimidation in Limerick. Members of the Lower House said to me privately and publicly — the latter group includes Deputy Finian McGrath and the Minister of State, Deputy Peter Power — that when their constituents got a jury service summons they were shaking like leaves from fear. They tried to use every trick in the book to get out of giving jury service. Experience has shown that any time a jury trial is held in a place like Limerick there is a dramatic drop in the number of people coming forward. We have empirical evidence in that respect.

A number of speakers raised the issue of alternative methods. Many people accept that something has to be done to protect juries and recognise that unless steps are taken there will be an interference with the effective administration of justice. The focus is on the alternatives. As the Hederman report points out:

Comparisons with jury practice in the United States, and it could equally be said for other countries, is essentially misplaced. In larger countries, trials with anonymous juries often take place in sensitive cases. Unlike a vast country with a huge population such as the United States, the small and dispersed nature of Irish society means that the risk of jury tampering and intimidation will remain significant.

Suggestions of cases with juries behind protective screens inevitably convey to the jury the belief that these precautions are necessary in respect of a particular accused. This effectively removes, in the jury's eyes, the presumption of innocence because it indicates in unmistakable terms to the jury that the accused is an extremely dangerous person and will stop at nothing to obtain acquittal.

I strongly urge Senators, as I urged Deputies in the Lower House, to accept that what we are about here is sending a strong signal to the wider community, particularly the criminals who orchestrate these gangs, that if they continue with this they will get the full rigours of this law. In addition, inasmuch as we can do so within any democracy, we will prevent them from intimidating witnesses and jurors. I am not saying this in an emotive way, but it is important that on 8 February 2008, Stephen Collins wrote to my predecessor as Minister for Justice, Equality and Law Reform and I will quote from the letter as follows:

We were assured that we would always have the support of the State to protect us and we were told the State owed us a debt of gratitude for all our help. [He finished by saying] We are a hard-working, honest family who were put in this position by one of Ireland's most dangerous thugs. We know the service we have done for the State has saved many lives and improved the quality of life for many more. We are praying that the State could now improve the quality of our lives which at present is a living hell.

He wrote that letter months before his son was murdered. Following his son's murder, Mr. Collins subsequently wrote to me on 18 May 2009. He was aware of what we were proposing because I had already stated publicly exactly what we were proposing in this Bill. He finished a very emotive letter by stating:

Please get the proposed new laws passed as a matter of urgency. Myself, my family and the whole community are depending on it.

On why we are rushing this legislation, I can put it no better than Mr. Collins who said that neither he nor his family could wait three months. He validly said that the only people who should fear this legislation are the criminals and that the ordinary decent people of this country have nothing to fear.

I wish to respond to a couple of the points the Minister made. I think I understand the Minister's position a little better now. On more than one occasion in his last contribution he emphasised the importance of sending out a strong signal. He repeated that several times and he said something akin to that in the other House as well. Having looked at this legislation and having heard the Minister's speech on Second Stage, most of the arguments in favour of it have tended to concentrate on what the Minister believes is the necessity for this legislation and on the tangible benefit it would bring to the prosecution of such offences and securing convictions where appropriate. I would be much more comforted if the Minister were talking about ensuring the law was changed in a manner that was necessary and that he had evidence of definite levels of intimidation of witnesses and juries. He keeps talking about empirical evidence. I said earlier, and I say again, that we need more of a glimpse of such evidence.

The Minister referred to what the Minister for Defence, Deputy O'Dea, said in the Dáil and to the Keane trial in Limerick, which has been mentioned a couple of times. He also referred to comments made by Deputy O'Donnell in the Dáil. Is there anything else? I do not say this in a smart way; I am asking the question genuinely. If the Minister is saying to the House that in the course of his deliberations in Government there was empirical evidence, above and beyond the anecdotes to which he referred from the Minister for Defence——

We did not make the decision because of those examples.

Is the Minister then saying there is more available to him and to the Government than what he has communicated to us? Can he tell us what it is or give us some insight into the empirical evidence to which he refers? When he is pressed on it he talks about what the Minister for Defence said and about the Keane case. With regard to the latter case, by the way, which has been invoked over and over, am I correct in stating that the trial was moved to Dublin and a conviction was secured? I must be, because I have not been corrected and I am sure I would have been if I were wrong.

With regard to the evidence we are seeking, obviously the Minister will not reveal everything said to him by the Garda and by others in the course of his preparation of this legislation — although, in a spirit of openness in any society, including in the area of criminal justice, it would be preferable if the default position were to reveal everything rather than withholding it. I accept there are operational and security issues in this regard and that not everything can be revealed. The Minister cannot open up the file with the evidence and hand it around in public. However, I would have thought some summary of the nature and, in particular, the extent of the evidence for intimidation of jurors would be appropriate.

I accept the Minister has addressed — under pressure and with the support of Opposition parties — the issue of witness intimidation. However, he keeps invoking this in support of this Bill, which is not about witnesses, as we must keep pointing out. It is about a perception and an apprehension, which we are asked to accept on trust, that there are, as the Minister said, definite levels of intimidation of witnesses and juries. Yet, apart from the mention of that single trial in Limerick which was moved to Dublin and a conviction secured, and the assertions of the Minister for Defence, no evidence has been offered.

I am a citizen of this country. I have children and I want them to be safe; I want all of us to be safe. However, as a legislator, I cannot in all honesty stand here and agree to a momentous statement that the ordinary courts are not sufficient or appropriate for dealing with these matters, because I am not persuaded of this. Senator Mary White talked about the statement by the former High Court judge Mr. Feargus Flood in which he indicated he had presided over gangland trials in which he felt juries had returned the wrong verdicts. This is not at all the same as saying they returned the wrong verdicts in circumstances in which he believed, perceived or even was concerned that they were being intimidated. He did not say that. In fact, the piece referred to inThe Sunday Tribune goes on to state, “Flood said he had not witnessed jury or witness intimidation first-hand as a judge but over the course of his career, juries had brought back what he felt was the wrong verdict in gangland trials.” The Minister might reasonably ask how he would know whether somebody had been intimidated. However, we are being asked to accept this proposal on the basis that it could happen.

I am conscious of the Minister's question, which he has repeated, about whether anyone believes that if such people will intimidate witnesses they will not intimidate jurors. It is a reasonable debating point, but it concerns an apprehension of something he is concerned might happen in the future and is not predicated on any evidence of its having occurred in the past. Nor is there any evidence of, for example, perverse acquittals. The point made by Mr. Flood was with regard to his concern about juries bringing in incorrect verdicts. Is that part of the evidence considered by the Minister and the Cabinet? Was there widespread or even extensive evidence of perverse acquittals in which people were left with a genuine concern that the reason for an acquittal was that a juror had been intimidated? I am simply asking that.

With regard to the difficulty of impanelling juries, although we are talking about gangland offences in particular, everybody knows there is a massive problem with jury service in general. Senator Boyle mentioned this earlier. We cannot seek to advance an argument in the context of this Bill simply by pointing to the enormous problems that exist with regard to impanelling juries. I am sure the Minister is aware of the unfortunate fact that every day of the week people, particularly middle class people in the professions or with their own businesses, seek too quickly and successfully to have themselves excused from jury service. It is happening everywhere and not just in the area of gangland trials, although it would be churlish not to accept that jury service would not be the most welcome thing in the world, to put it mildly. It sounds as though I am diminishing the point, although I do not wish to. I am sure there is nobody who would feel particularly good if he or she were being impanelled on a jury to deal with one of these trials. I accept that and I agree that people would be concerned. However, we should not underestimate the sense of support people have on juries.

When one talks to people who have served on juries one finds they believe in the task they are given and engage with it. I do not practice in the area of criminal law and I never have, but I know from speaking to such lawyers that juries exercise a high level of responsibility towards the job in hand and give everything to it. There are sometimes difficulties for the State with impanelling juries; that is part of the criminal justice system we have. We must understand that it is not always easy but the State must stick with it. The State sometimes has a difficult task in obtaining prosecutions before juries but that does not mean it should not engage in it.

I am concerned that rather than making a case in respect of a tangible benefit from this change, which is what I would expect, the Minister is sending out a signal. I wonder — as I am entitled to, although I know this argument probably irritates the Minister — whether this is about sending out a signal to the public that the Minister, and thus the Government, are taking a hard line on crime. Are they trying to communicate this to the public rather than seeking to achieve a tangible benefit from the changes they are proposing?

I wish to answer one point made by the Minister in which he quoted from the Hederman report on the issue of jury tampering. It is fair to point out that the Hederman committee went on to say that while the majority did agree with the retention of the Special Criminal Court, there was a significant minority view, expressed by Mr. Justice Hederman, the chair of the committee, Professor William Binchy and Professor Dermot Walsh, to the effect that juries could be protected in other ways and that even in a small country such as Ireland, the risk of effective jury intimidation could be dealt with through other means — for example, by ensuring that jurors remained anonymous and were kept at a secure and secret location.

Those to whom I refer also pointed out that no other common law jurisdiction has come to the conclusion that the risk of jury intimidation warrants non-jury trial in a special criminal court.

The committee was unanimous in its view that it would be preferable that decisions to transfer proceedings to the Special Criminal Court would be based on the merits of individual cases "instead of some preconceived statutory assumption that persons charged with certain types of offences should be sent to the Special Criminal Court unless the Director of Public Prosecutions otherwise orders". The committee, therefore, unanimously came out strongly against the provision proposed by the Minister in section 8 in respect of the automatic classification of a group of offences as being capable of being presumptively tried before the Special Criminal Court. It was very much guided in its view in this regard by the decision in the Kavanagh case, to which I already referred. The UN Human Rights Commission was extremely critical of the law that existed in Ireland to the effect that the DPP could elect to try people before the Special Criminal Court. The commission stated that this should be based on reasonable and objective grounds. The Hederman committee stated that this could only be done on a case by case basis.

It must be stated, therefore, that the Hederman committee opposed the type of sweeping categorisation that marks section 8. That is a strong reason to oppose the section and to consider an alternative of the sort proposed by Senator Alex White, which would place the presumption in the opposite direction. In other words, the DPP would be obliged to justify referring cases to the Special Criminal Court. I ask the Minister to consider the fact that, quite apart from any issues with may arise in respect of the Constitution, the sweeping provision contained in section 8 is going to be in breach of the UN Human Rights Commission's interpretation. It will also be in breach of the International Covenant on Civil and Political Rights.

If these gangs with which the Minister for Defence, Deputy O'Dea, has been obliged to deal were operating in the constituency of Dublin South, I do not believe Senator Alex White would have adopted the position he currently holds in respect of this Bill. The Senator lives in one of the most sedate and well-off constituencies in the country.

On a point of information, where a person lives is not relevant, one way or the other, to the strength of his or her arguments.

In the Dáil, the Minister for Defence outlined his experience of dealing with gangs in Limerick and the evidence he provided in that regard is compelling.

Two weeks ago I visited St. Patrick's Institution, part of which is devoted to catering for children between the ages of 16 and 18. Many of the children who are being held there work as couriers for the mobs and gang leaders in Limerick. The lives of these children will be ruined unless they can be rehabilitated.

I reiterate that the sedate constituency Senator Alex White represents is far removed from that which the Minister for Defence represents. I presume the Senator would speak as passionately as the Minister if he lived in a city such as Limerick. The Minister for Defence has vast experience in representing his constituency in the Dáil.

I do not wish to fall out with my good colleague and namesake, Senator Mary White. However, I must state that I do not represent the constituency of Dublin South in this Chamber.

It is your constituency.

Earlier in the debate, reference was made to the ICCL, lawyers' letters and people being described as coming from Dublin 4, Dublin 6 or wherever. In addition, the Minister for Justice, Equality and Law Reform was upset about people playing the man rather than the ball. I thought we had moved on from that. Is it not possible to discuss the issues that arise rather than trying to personalise matters by referring to the places in which people live or the constituencies they represent? We are better than that.

On a separate point, the Minister for Defence, Deputy O'Dea, was not giving evidence in the Dáil, he was one of the Government speakers commending the Bill to that House.

He was outlining his experience.

I agree with Senator Alex White that it does not really matter from where one comes. Equally, however, I resent the implication he offered in his earlier submission to the effect that I put forward the legislation purely and simply because I want myself or the Government to appear strong in respect of this matter. I assure the Senator that I take my job very seriously.

I resisted the promptings of his party and his party leader in the aftermath of the murder of Shane Geoghegan to the effect that they did not want reasons to be provided as to why we would not act and that we should do more.

Did those comments relate to the Special Criminal Court?

Then the Minister should quote them in their entirety.

I will do so. For example, Deputy Rabbitte stated that "The public mood is to assent to measures in the present crisis that people would not otherwise tolerate". He also stated that "the first test of any Government is the protection of its citizens". He further stated:

This cannot go on, Minister. There must be some tipping point where the State asserts its democratic mandate and asserts decent values ... people are saying that enough is enough, and that it is the Government's duty to put gangs out of business.

In respect of the publication of this Bill, the Deputy stated:

I acknowledge that these are exceptional powers that the Dáil has now been asked to provide to the gardaí, but, subject to proper oversight, they are necessary to deal with the exceptional threat being posed by armed criminal gangs, which have claimed 11 victims so far this year.

Following the awful murder of Shane Geoghegan, the leader of the Labour Party said:

The public wants to get a sense that these people will be smashed... We do not want to hear the reasons certain things cannot be done. We need to see, led by Government, which my party will support in this, definitive measures taken that will solve and address this problem.

The Labour Party called for action in November 2008 in the aftermath of Shane Geoghegan's murder. I resisted its promptings and stated that the existing legislation was adequate and that the Garda had at its disposal all the resources it required. I also indicated that if the force needed further resources, these would be provided. I was genuine in the comments I made at that stage. When Roy Collins was murdered, however, I spent the Easter bank holiday weekend thinking long and hard about the matter. I was due to be abroad at the time but I was obliged to remain in Ireland to attend the funeral of a garda who was killed when knocked down by a getaway car in Donegal. I attended the garda's funeral in Mayo and asked to meet the Garda Commissioner afterwards. Our meeting lasted approximately 90 minutes and we agreed during the course of it that we would meet the Attorney General and the Secretary General of my Department the following week to discuss how we might do more.

As stated previously, I do not wish to create a hierarchy in respect of the people who have been murdered in this country. Every murder is disgraceful and I send my sympathy to all of the families that have been affected by this crime. However, the killing of Roy Collins was clearly a message to society that there are those who are determined to take out anyone who co-operates with the State or its criminal justice system in respect of the conducting of normal trials. I am of the view that we were obliged to make a decision to fight that.

As stated previously, I resisted promptings from people on all sides of the Houses to introduce opinion evidence. I did so because of advice received from the Attorney General that it clearly was extremely difficult to prove in respect of criminal gangs that opinion evidence is sustainable, even with corroborative evidence. It is not as difficult in respect of paramilitary organisations. That is the reason I took this action and I greatly resent the Senator's implication. However, I do not wish to labour this point. Senator Regan put it well by stating that acceptance of Senator Alex White's amendment would dilute what this legislation proposes to do.

I do not disagree with anything said by Deputy Gilmore or Deputy Rabbitte — I am uncertain which Deputy was quoted by the Minister.

However, there is no way that anyone could have been discussing this Bill's contents on 18 April 2009 because, as I understand it, the Bill was published on 30 June 2009. Consequently, this cannot have been the case.

My Department indicated clearly——

I will not give way on this occasion.

Senator Alex White, without interruption.

——the context.

While I have given way on several occasions in the spirit of debate, I will not be interrupted by the Minister this time, nor will I have him portray me, my party or anyone else as being less committed to dealing with these gangs, murders or threats to our society than is he. I will not accept that for a moment. In this instance, it is clear that I am talking about a particular section of the Bill. The question for Members is whether the measures contained therein are necessary, namely, to remove a large number of trials from the ordinary courts and send them to the Special Criminal Court although such trials could continue to be dealt with in the ordinary courts. This is the issue being dealt with at present and to which this section pertains. There is no way that either Deputy Rabbitte or Deputy Gilmore agreed to that. The Labour Party tabled this amendment in both Houses in order that a particular safeguard should be included and a particular procedure put in place in respect of the circumstances in which such trials should go to the Special Criminal Court. That is what the record shows.

It has taken much hard neck on my part to speak. Five people are speaking on this issue, of whom I am the sole lay participant. There are two barristers, a professor of criminal law and the Minister. However, I am speaking from a commonsensical point of view. I do not agree with Senator Alex White and I beg to differ with the Minister. I believe that one's experience as a representative matters. One learns what changes one wishes to make to society by engaging in dialogue with one's constituents. Why did Deputy Broughan abstain? I suspect he abstained because one of his constituents was murdered.

This has nothing to do with amendment No. 4.

It has everything to do with it. I am not a legal person and I am speaking on this issue because I believe this measure must take effect. One awakens every morning to the news that someone somewhere has been shot, and something must be done in this regard. The socio-economic consequences of such gangland warfare and organisations must be dealt with in a firm manner. Moreover, there should be a place for people with common sense, in which one is not obliged to be a legal professional.

Amendment put.
The Committee divided: Tá, 4; Níl, 38.

  • Bacik, Ivana.
  • Prendergast, Phil.
  • Ryan, Brendan.
  • White, Alex.

Níl

  • Bradford, Paul.
  • Brady, Martin.
  • Burke, Paddy.
  • Butler, Larry.
  • Buttimer, Jerry.
  • Callanan, Peter.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Corrigan, Maria.
  • Cummins, Maurice.
  • Daly, Mark.
  • Donohoe, Paschal.
  • Ellis, John.
  • Feeney, Geraldine.
  • Fitzgerald, Frances.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • McFadden, Nicky.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Reilly, Joe.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, John Paul.
  • Phelan, Kieran.
  • Regan, Eugene.
  • Ross, Shane.
  • Twomey, Liam.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Phil Prendergast and Alex White; Níl, Senators Camillus Glynn and Diarmuid Wilson.
Amendment declared lost.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

I have already expressed my opposition to section 8 and I do not want to prolong this debate.

Question put and declared carried.
NEW SECTION.

I move amendment No. 5:

In page 11, before section 9, to insert the following new section:

9.—Paragraph 1 of the Appendix to the Offences against the State (Scheduled Offences) Order 1972 is revoked.".

This concerns the appendix to the Offences against the State (Scheduled Offences) Order 1972, and my amendment proposes to revoke Paragraph 1 of the appendix, under which malicious damage is an offence. The offence of malicious damage has been renamed criminal damage, which does not appear to be treated as a scheduled offence. The reference to malicious damage seems obsolete and needs to be revoked. Otherwise, the reference will cause confusion as to whether it should be read as covering criminal damage in light of the Interpretation Act 2005. It is suggested that this would have practical ramifications for the trial of anyone accused of criminal damage. I am interested to hear what the Minister has to say in response to this somewhat technical amendment.

I have some sympathy with the Senator on this matter, as I did when it was raised in the Dáil, but the advice of the Attorney General is that it would be better dealt with in amendments to the primary legislation rather than in the Bill. We would like to consult with a wider group with regard to the legislation which Senator White proposes to delete.

I accept what the Minister says and I will withdraw the amendment.

Amendment, by leave, withdrawn.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

I state my opposition to the section which purports to add a new section 72A to the Criminal Justice Act 2006 providing that inferences may be drawn from silence. I am conscious that there are a number of inference drawing provisions in the Offences Against the State Acts and in the Criminal Justice Act 2007. However, I am also conscious of the need for safeguards. On Second Stage, the Minister stated he had taken on board some of the criticisms of the Human Rights Commission on this provision in particular and had inserted new safeguards. I have examined it but I still do not see that he has answered the primary concerns of the Human Rights Commission. In its observations it pointed out that in drawing adverse inferences from an accused's failure to answer a material question the court or the jury should be satisfied that the circumstances clearly called for an explanation from the accused. It also asked that section 9(1) should not apply unless the accused had first been provided with legal advice. It also suggested that it would be preferable as a matter of best practice for an accused person to have a legal adviser present throughout interrogation, which is a much broader recommendation relating to police interrogation generally and I share its view on that.

Leaving aside the broader point, I ask the Minister whether he considered placing the stronger protections that the Human Rights Commission recommended into section 72A and, if not, why he did not do so. Section 72A(2) states that the defendant must be told in ordinary language about the effect of a failure and must be afforded reasonable opportunity to consult a solicitor. Why did the Minister not go further, as the Human Rights Commission suggested?

This section introduces a new section 72A to the Criminal Justice Act 2006. The new section will permit inferences to be drawn as a result of the failure in particular circumstances of an accused to answer questions. It will apply to organised crime offences under Part 7 of the Criminal Justice Act 2006, including an additional offence of directing. As with other aspects of the Bill this provision is not new; it is based on section 2 of the Offences against the State (Amendment) Act 1998, as amended by section 31 of the Criminal Justice Act 2007. Section 2 of the 1998 Act applies specifically to persons accused of membership of an unlawful organisation under section 21 of the Offences against the State Act 1939.

As has been acknowledged, a number of safeguards contained in the inference provisions in Irish law are replicated in this section, such as that a person shall not be convicted solely or mainly on the inference drawn from a failure under this section; the defendant must be told in ordinary language when questioned what the effect of a failure under the section might be; the defendant must be afforded a reasonable opportunity to consult a solicitor prior to a failure occurring and the questioning of the person by a member of the Garda Síochána must be recorded by electronic or similar means unless the person consents in writing to it not being so recorded.

As I indicated previously, concern was expressed by the Human Rights Commission that the meaning of words in section 72A(1), specifically, "question material to the investigation of the offence" could apply to a very broad range of questions. The commission recommended that where such inferences are to be drawn it should only arise under narrowly defined circumstances. Following consultation with the Attorney General and with a view to addressing this concern, an amendment was tabled in the Dáil to replace section 72A(7) of the provision. This new section specifies the meaning of "any question material to the investigation of the offence". It sets down the questions that can be put to a person and links them to the specific evidence provisions of the relevant offences. For instance, section 72A(7)(b)(i) allows a question relating to any statement or conduct of the type referred to in section 71A(3) as inserted by section 5 of the Bill. Section 71A(3) concerns the directing offence and provides that: “Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of a criminal organisation shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was doing such at that time.”

Sections 18, 19 and 19A of the Criminal Justice Act 1984, as amended and inserted by the Criminal Justice Act 2007, also allow inferences to be drawn in certain circumstances. Section 18 provides for inferences from failure or refusal to account for objects, marks etc. Section 19 provides for inferences from failure or refusal to account for an accused's presence at a particular place. Section 19A provides for inferences from failure of an accused to mention particular facts. These provisions apply to arrestable offences, that is offences carrying a penalty of five years' imprisonment or more, and consequently apply to the organised crime offences under the 2006 Act.

I am conscious of the amendment to section 72A(7) but I was wondering whether the Minister had an answer on the point on consultation with a solicitor. I do not think that provision was changed and certainly I did not see any change to it between the initial version of the Bill and the Bill we have now. It seems that section 72A(2) remained the same and that all that is required is that a defendant is afforded a reasonable opportunity to consult a solicitor, but the defendant does not have to have legal advice prior to the adverse inferences being drawn. I am conscious that as with all adverse inference provisions these represent an encroachment on the right to remain silent, which is key to the presumption of innocence. Therefore, it is important there are sufficient safeguards in place.

With regard to the issue of solicitors, we considered what the Human Rights Commission sought but its wording does not allow for where a person refuses or does not want legal advice. This would effectively give the detained person a veto as to whether the inference provision could be used against him or her. We felt that we could not accede to that. The Human Rights Commission also recommended that the court must be satisfied that the circumstances at the time clearly called for an explanation by the accused and I consider this matter to be one that the courts would consider on its own in any event.

Question put and agreed to.
Sections 10 to 13, inclusive, agreed to.
SECTION 14.
Amendment No. 6 not moved.

I move amendment No. 7:

In page 16, lines 29 and 30, to delete ", as part of the offender's sentence," and substitute ", by way of a civil order following conviction,".

This is an attempt to change the section because it seems to be wrong conceptually to categorise a post-release order as part of a sentence. Perhaps it was badly drafted. Will the Minister provide a response which would justify categorising a post release order in this way? A post release order appears to be an order which is designed to prevent reoffending. It is not much different from orders in regard to the sex offenders register, anti-social behaviour orders or orders that stalkers cease to contact their victims, which are the kind of orders with which we are familiar. It would appear to be inappropriate to categorise, as the Bill does, these post release orders as part of the offender's sentence. The suggestion is to remove those words and insert "by way of a civil order following conviction,".

I want to speak briefly in support of this amendment. I declare an interest in that I have acted for the State in a number of cases involving a question of whether post-release matters are part of an offender's sentence or whether they are better characterised as civil orders consequent on conviction. Notably, with regard to the registration provisions under the Sex Offenders Act 2001, there have been a number of cases in which those were considered, one of which was Enrightv. Ireland in which I appeared. In those cases it was considered, ultimately, that they were not such orders, that is, an order that somebody must notify the State of their movements subsequent to their release from a sentence of imprisonment imposed following conviction for a sex offence. That sort of restriction, registration or notification requirement is not characterised as being a penalty and therefore it is better akin to a civil order or an order consequent on conviction. The language used in subsection (3) is misleading in that something that seems to me to be similar in nature to the registration requirements in the Sex Offenders Act, or to matters of that nature, is referred to as part of the offender’s sentencing. That is somewhat misleading and it could lead to problems. I support Senator Alex White’s amendment. It is a constructive amendment in that it seeks to strengthen the power in the Bill. None of us is opposing the power of the court proposed in section 14 to impose this sort of post release restriction on a person’s movement. We make this suggestion in a genuinely constructive way.

There is not a huge amount at issue between us but the advice I have been given is that this order is essentially one of crime prevention and that it is properly imposed at sentence. The order will arise because a person has been convicted and given a custodial sentence for a very serious criminal offence. Given that the order takes effect immediately on release from prison it is an extension of the sentence which must be set down in court at the time of sentencing with precision and certainty.

Essentially, the introduction of post release orders in section 14 is another form of crime prevention and therefore accepting the amendment would create an inconsistency as the crime prevention orders contained under section 26 of the 2007 Act are similarly imposed at sentencing. I hear what Senator Bacik said but it is really a matter of semantics. It is important that they are regarded as a criminal sanction following on from the sentencing.

Is the amendment being pressed?

The Minister seems to accept there is an issue in this regard as he said there is not too much between us but as Senator Bacik rightly said, the amendment was proposed in a constructive spirit. Despite what the Minister said it does not seem to sit particularly well to describe these orders as being "part of the offender's sentence". If the legislation was not being subjected to such a rush in these kinds of circumstances the Minister might have been prepared to accept this amendment but, unfortunately, we have confined ourselves to a situation where, as I indicated earlier, no amendments can be accepted no matter how meritorious they are because of the obvious implications in regard to them having to go back to the Dáil.

I do not want to put it any further other than to say that the strong advice from the Attorney General to us, when this amendment was put down in the Lower House, was that it would be better dealt with on the basis of being a criminal matter.

Amendment put and declared lost.

I move amendment No. 8:

In page 16, after line 50, to insert the following:

"(4) The orders made under subsection (3) shall fall within the terms of a scheme to be proposed by the Minister within 21 days which sets out the nature an extent of any restrictions under this section. In respect of a scheme made under this subsection the Minister shall:

(a) cause a draft of the proposed scheme to be laid before each House of the Oireachtas, and

(b) not make the scheme unless and until a resolution approving of the draft has been passed by each such House.”.

I believe this amendment is moot. It is in large measure covered by subsection (10). The Minister might clarify that is the case.

I will not be pressing the amendment.

This is the one we accepted in the Dáil.

That is correct.

We accept the making of a scheme.

It should not have been in this list.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Sections 15 to 17, inclusive, agreed to.
Amendments Nos. 9 and 10 not moved.
Section 18 agreed to.
SECTION 19.

I move amendment No. 11:

In page 19, lines 20 to 25, to delete all words from and including "if—" in line 20, down to and including "State." " in line 25.

I am interested to hear what the Minister has to say about this amendment. The reason for this amendment is that it would appear to be permissible in international law to criminalise someone outside the State who directs the commission of an offence inside the State. I do not understand the reason there is a particular issue in regard to that. There is no requirement for that person to be an Irish citizen or resident. To be clear, this is somebody who is directing or is accused of directing the commission of an offence inside the State who is outside the State at the time. There is no requirement for that person to be an Irish citizen or a resident.

We believe section 19(1) is unduly restrictive. There might be more rationale for what is done in section 19(2) and (4), which is limiting the liability for people who assist after the fact but there does not appear to be any strong justification for paragraphs (a), (b), (c) and (d) in the new subsection 19(1A) in section 19(1). The subsection would simply read: “Any person who, outside the State, aids, abets, counsels or procures the commission of an indictable offence in the State shall be liable to be indicted, tried and punished as a principal offender”. There is no need for those prerequisites to be in place. I would have thought there is certainly no requirement that the person be an Irish citizen or an Irish resident. I am curious to hear the Minister’s response to that.

The effect of this amendment would be to remove the circumstances under which the State would establish extra territorial jurisdiction over the offence under section 7 of the Criminal Law Act 1997, namely, the offence of impeding the apprehension or prosecution of another person who has committed an arrestable offence. Besides the inconsistency created by the amendment whereby it only applies to one of the offences contained in Part 3, it would also have the effect of establishing universal jurisdiction over the offence where committed outside the State. Moreover, it goes beyond the provisions of Article 15 of the United Nations Convention Against Transnational Organised Crime, which Part 3 addresses. Article 15 of that convention more or less mirrors what is contained in this section. However, the main objection to the amendment is that universal jurisdiction is not permitted in international law and, accordingly, is not constitutional in accordance with Article 29(8), which allows for the State to exercise extra territorial jurisdiction only in accordance with the generally recognised principles of international law.

On the basis of what the Minister has said, I do not propose to press the amendment.

Amendment, by leave, with drawn.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.

I move amendment No. 12:

In page 21, line 20, after "Síochána" to insert the following:

"who for the purposes of this section shall be a Garda not below the rank of Sergeant".

Part 4 of the Bill deals with detention and re-arrest. The Bill suggests that if at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects the person of having committed an offence, referred to in the subsection as "being an offence other than the offence to which the detention relates", and if the member of the Garda Síochána in charge of the station at the time has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence.

There is a number of elements here linked to the safeguards which should be included in this section. The amendment requires that the member of the Garda should not be below the rank of sergeant. That would add an element of oversight and authority to a decision involving detaining someone in the circumstances provided for in the Bill. I commend the amendment to the House.

Before I respond to Senator Regan's amendment I would like to make a number of general remarks on Part 4 of the Bill. It is necessary to clarify some basic issues which will assist in dealing with the amendments.

Part 4 is devoted almost exclusively to the detention of suspects under various statutory detention orders in the Offences Against the State Act, the Criminal Justice (Drug Trafficking) Act and the Criminal Justice Act 2007. It deals, in particular, with the hearings of applications to extend the relevant periods.

The purpose of the hearings is to satisfy the court that there is sufficient reason for the continued detention. The hearings have been, and always were intended to be, conducted by the judge in a manner similar to that of an investigating magistrate in other jurisdictions. In other words, the purpose of the hearing is to allow the judge to satisfy him or herself that the investigation is being properly progressed with the necessary speed and diligence, thereby ensuring the suspect is detained for no longer than necessary. The hearings are not concerned with the guilt of innocence of the detained person. That is a matter for the trial court.

The adversarial system used at trial to test the quality and nature of the evidence is, therefore, not appropriate to hearings on the extension of detention periods. In recent times these hearings have taken on a very strong adversarial character. Every effort is made to elicit information pertaining to the current state of an ongoing investigation and its likely future direction. The disclosure of information at that point can do immense harm to the investigation.

As a result of this new approach to the hearings, large numbers of gardaí have to wait for many hours in court rooms. This delays and interrupts the investigation. In addition, the gardaí must go to extraordinary lengths to protect the integrity of the ongoing investigation. From the suspect's point of view, there is much to be gained. The investigation is interrupted, some valuable information may become available and, of course, while away from the Garda station he is not being questioned but the clock is still running on the detention period. I am not saying there is a strategy in this new approach. I am simply saying it is harmful to the fight against serious crime and is not an approach that had been originally intended. I am convinced of the need to take steps to rectify this position. I believe Part 4 of the Bill goes a long way in that direction.

The changes present no threat to the rights of the suspect. He retains the right to bring a case to the High Court under Article 40 of the Constitution if there are grounds to believe that the detention is in any way unlawful. However, many years ago in 1990, in the case of Keatingv. Governor of Mountjoy Prison, the Supreme Court made it clear that it was not appropriate to raise questions as to the lawfulness of the detention in any court other than the High Court, save in the most exceptional circumstances.

Hearings to extend detention periods are held in the District Court, or occasionally in the Circuit Court. These courts have no jurisdiction under the Constitution to hear or determine questions relating to the lawfulness of a detention, yet as part of the new approach I have mentioned, this is attempted regularly. Part 4 seeks to give effect to the Supreme Court's view in Keatingv. Governor of Mountjoy Prison and thereby clarifies the matter.

Amendment No. 21 would require that the member in charge must be of a rank not below sergeant. The concept of the member in charge is by now a well established one. It has its origins in section 4 of the Criminal Justice Act 1984 and the custody regulations made under that Act. The Act and the regulations ascribe very significant duties to the member in charge, especially in relation to the treatment and welfare of the arrested person. The provisions in the 1984 Act and the regulations apply not only to persons detained under the 1984 Act but also in all other cases where the person is arrested or detained under statutory powers.

Section 4 does not specify a rank but, in practice, we know that it is commonly a sergeant. To depart, after all this time, from the accepted approach would introduce a significant rigidity. I see no reason to depart from the accepted wording as used in this Bill and in several other statutes. The text in the Bill mirrors precisely the text in the other three statutory detention powers, that is the Acts of 1984, 1996 and 2007.

The amendment, if accepted, could cause serious operational difficulties without any hint of benefit. It would open another line of inquiry for those wishing to delay the detention hearing and thereby disrupt investigation, and would cast doubt unnecessarily on the existing provisions in the other statutes I have mentioned.

Amendment, by leave, withdrawn.

Amendments Nos. 13, 20 and 26 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 13:

In page 21, to delete line 38 and substitute the following:

"(4BA) (a) An application under this subsection shall be made to the Judge of a Circuit Court.

(b) Without prejudice to paragraph (b) of this “.

This amendment is linked to amendments Nos. 12 and 14 in terms of precautions and safeguards in this area of scheduled offences. It proposes that it would be the Circuit Court rather than the District Court which would determine the extension of detention. This would reflect the seriousness of the issue. The Bill provides that a judge would have the power to exclude from court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bone fide representatives of the press and other such persons as the court may permit to remain. Given those powers, it is appropriate that matter would be determined at Circuit Court rather than District Court level.

The amendments seek to make it mandatory that all new procedures in the Bill relating to applications to extend the detention period must be heard in the Circuit Court. I am not sure if the Senator appreciates that his amendments would have the effect of splitting jurisdiction in individual cases. The District Court would handle the hearing of the application for the extension of time but the Circuit Court would handle applications as to who would be present or excluded from the proceedings. This would be unworkable.

Senator Regan might suggest that all proceedings be transferred to the Circuit Court. This is not necessary nor is it justified by experience. It would also have the effect of delaying Circuit Court trials. Extension of time applications, by their nature, must be heard urgently and in the Circuit Court this would have the effect of delaying the start of trials and, indeed, could push trials back to the next session. Much good work has been done in improving trial times in the Circuit Court in recent times. The Senator's proposals would give the Circuit Court a much greater role in the extension of time applications and would undo some of the work that has been done in that respect.

Multiple District Court judges are available to every Circuit Court judge. The easy availability of judges is essential where applications must be heard urgently as to the extension of time applications. The Senator might also note that section 30 of the 1939 Act provides for hearings in the District Court only. This has been the case for a very long time and nothing has emerged that suggests we should change the existing arrangement. This arrangement has proved more than adequate. Even at the height of the subversive threat, it was seen to be more than adequate. I see no reason not to continue with the arrangement.

As for the 1997 and 2007 Acts, hearings to extend the periods of detention may be in either the District or Circuit Court. This approach has been taken in the interests of maximising flexibility and operational efficiency. However, almost all of the applications are heard in the District Court. As with the 1939 Act, nothing has emerged to suggest a need to restrict that court's role, which would thereby reduce choice and make the arrangement inflexible and unsuitable in the context of ongoing investigations.

In light of the Minister's comprehensive reply, I will not press the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 14, 21 and 27 are cognate and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 14:

In page 22, between lines 6 and 7, to insert the following:

"(b) Where a judge makes a direction or exclusion under paragraph (a), he or she shall direct that proceedings of the application are recorded by an official stenographer.”.

This amendment provides a safeguard in respect ofin camera hearings on the extension of periods of detention of suspects. Where a judge makes a direction or exclusion under this section, he or she shall direct that proceedings of the application be recorded by an official stenographer. It would be a minimalist precaution to create a record of such a hearing and an important safeguard in terms of the legitimacy of not carrying out the hearing in public. Given the constitutional requirement that justice be administered in open court, this amendment is the minimal amount of precaution that should be included in this rather novel provision in the Bill for persons to be excluded from the court. I commend the amendment to the House.

I will make a few comments on the section in general. Attention has been focused on one of its aspects where the provision is to hear information from a garda in the absence of an arrested person and his or her legal representative. It has been alleged that these would be secret hearings and are likely to be unconstitutional, but it is fair to say that this provision is necessary to protect sensitive information. The remarks by the State solicitor for Limerick give powerful support for the provision's inclusion, as he stated that there is evidence that certain information is leaking out to known criminals. In the Lower House, I emphasised the point that we introduced this provision before Mr. Murray made that public statement. We did so based on good information that suggested it would be necessary.

As one would expect, the provision has been examined by the Attorney General and his staff. The Irish and UK case law has been reviewed, in particular, the Court of Criminal Appeal's judgment in DPPv. Kenneth Donohue of 2007. The advice to me is that the provision satisfies constitutional and ECHR requirements. Its operation is entirely at the discretion of the judge. It is only that the judge may make certain directions. The section gives clear guidance to him or her, as there are clear references to its being employed where doing so is in the public interest or necessary to avoid prejudice to the ongoing investigation. Having heard the information from the garda, the judge may, at his or her discretion, direct that the information be given again, this time in the presence of the parties and their representatives. In effect, the new provision establishes a hearing within a hearing on a specific matter for a specific purpose. This is a necessary measure presented in a balanced way.

I remind the House that the hearing is not a trial. The fact that the procedure being used at the hearing will not be an issue to be mentioned at the trial, assuming the person is charged, means that its use will not impact on the trial process. I am satisfied that the proposal has been carefully scrutinised and is proportionate and appropriate to the circumstances for which it is intended.

The lawyers among us might raise an eyebrow at the suggestion that a legal representative should be excluded. I emphasise that the provision only relates to the extension of the seven-day detention period. For example, the Garda could give evidence to the judge in its application for the extension to the effect that there has been a significant development in the investigation. Defence lawyers, on behalf of their clients, have attempted to discover these substantial developments. In certain instances, judges have been put under pressure to get more information, which shows the Garda's hand in terms of how well its investigation is going.

If it is proposed to exclude the suspect — at this point, he or she is not a defendant, as the application is in respect of his or her continued detention — leaving his or her legal representative in open court to listen to what the substantial development was would be to place that representative in an invidious position, as he or she would be unable to disclose that information to the client. For this reason and if the client is being excluded from the detention hearing, it might be in the lawyer's best interest to be excluded, as he or she would not be privy to the information and, subsequently, be in an invidious positionvis-à-vis the client.

Concerning Senator Regan's amendment on the judge's directions to be recorded by an official stenographer, I have already noted that almost all applications to extend detention periods are held in the District Court. The Senator will be aware that stenographers are not normally used in that court. Therefore, this amendment would create new logistical problems without any apparent benefit. In any event, the amendment is at odds with current developments in the courts. A digital audio recording system is being introduced to court rooms, beginning in the higher courts. Installation at District Court level will commence this year. The introduction of the new system will result in stenographers being phased out totally.

Amendment put and declared lost.

Amendments Nos. 15, 16, 22, 23, 28 and 29 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 15:

In page 22, lines 33 to 35, to delete all words from and including ", including" in line 33 down to and including "applicant)" in line 35.

These six amendments relate to the same procedural principle the Minister is proposing to introduce, that is, the secret hearing as it has been colloquially called. The amendments represent my third main objection to the Bill, the first two being a garda's opinion evidence as to the existence of a criminal organisation and the encroachments on the right to jury trial. This third matter goes to the heart of fundamental safeguards in the criminal justice system and the secret hearings represent a dangerous departure from our normal rule of law provisions.

The six amendments relate to detention hearings under three statutes. Perhaps I will await the Minister's attention. Before I discuss my reasons for tabling these amendments, will he confirm what is it we are dealing with? We are dealing with detention hearings under section 30 of the Offences Against the State Act. The Minister stated that the Act permits detentions of up to 72 hours. I look forward to being corrected if I am wrong, but my understanding is that, following an amendment by the 1998 Act, persons can be detained under section 30 for up to 96 hours — I want to ensure that I have this fact right — and that an application must be made to a District Court judge where a garda desires to extend detention beyond the first 48 hours. Ordinarily, a person can be detained for 24 hours under section 30. If a chief superintendent directs, a further 24 hours may be permitted. Beyond that period, the two further 24-hour extensions must go to a District Court judge. This is to what section 22 refers. In section 23, the detention provisions are those comprehended by the Criminal Justice (Drug Trafficking) Act 1996. The Minister pointed out that the maximum detention period is seven days although the maximum period is rarely used. The third set of detention provisions, referred to in section 23, relates to detention under the Criminal Justice Act 2007, which concerns certain specific offences. Will the Minister confirm whether seven days is the maximum detention period? I did not have time to check myself but meant to do so.

In section 23 it is proposed to extend the detention power in the 2007 Act to all the organised crime offences that fall under Part 7 of the Criminal Justice Act 2006. There are significant detention powers in all three statutes. Will the Minister confirm that I have interpreted them correctly? He may have stated inadvertently in his speech that the detention period under the 1939 Act is shorter than it actually is.

The amendments I propose to each of sections 21, 22 and 23 are to change the provision for what I describe as a "secret hearing". Section 21 best illustrates my point. Section 21 inserts a new subsection into section 30 of the 1939 Act providing that a judge may exclude persons from an extension-of-detention hearing and may direct that the application be heard otherwise than in public, or exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, etc. I do not object to this and believe there may be a need for it but I have sought to amend the Minister's provision with regard to secret hearings, to which many objections have been made, particularly by the 133 prosecution and defence lawyers who wrote toThe Irish Times. The objections relate to the fact that the judge may, in certain circumstances, direct that evidence on the basis of which the extension is extended “shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant)”. I object to these words and propose to delete them.

The provision is fundamentally wrong and, as the 133 lawyers stated, it is anathema to the rule of law to make provision for hearings to extend substantially the detention of a person who already has been in detention for a considerable period under the authority of senior gardaí. It is fundamentally wrong to suggest one can have an extension-of-detention hearing in the absence of the accused, his legal representative and the lawyer for the prosecution. To contemplate an extension-of-detention hearing where the only people in the courtroom would be the judge and garda seeking the extension is extremely dangerous. There would be nobody present to contest the statement of the garda. As Senator Regan stated, there would be nobody even to record what was said. This is fundamentally wrong.

The Minister stated it would be invidious to exclude the suspect in detention but not his lawyer. Why exclude either of them? The Minister justified his statement by referring endlessly to one allegation by the Limerick State solicitor that one lawyer was passing on information he had apparently gained at an extension-of-detention hearing. This is not sufficient evidence on which to make such a fundamental change, not just to one set of detention powers but to three different sets in three different statutes. As I stated on Second Stage, it is throwing the baby out with the bath water. If a lawyer has been involved in corruption of the kind in question, action should be taken against him and he should be penalised. To tarnish all defence lawyers with this suspicion is wrong, yet it is effectively what the Minister is doing in this Bill. He has gone further because he is even tarnishing prosecution lawyers with that suspicion.

It is nonsense to suggest Garda investigations are compromised through having the suspect and his lawyer present at the hearing. In this regard, I refer the Minister to the comments made by the 133 lawyers. My experience suggests that during extension-of-detention hearings, the court hears generalised evidence about the necessity for time to carry out interrogations, forensic testing or assessments of evidence. The standard comments offered by gardaí seeking to extend detention relate to the need to check fingerprints, to conduct further inquiries and to question the suspect further. I have not heard of any example that suggests otherwise, other than the anecdote related by the Minister. Very rarely is substantial or significant information in respect of an operational development given in court in extension-of-detention hearings.

It was put to those who criticised this provision that they did not have faith in judges. I have faith in judges and find it difficult to believe that many District Court judges will actually use this provision. The Minister may ask why I am objecting to it in that case but the fact that the provision is unlikely to be used begs the question as to why we are bothering to include it. If the provision will create such a shift in our criminal justice system that judges are reluctant to use it, as I believe will be the case, its effectiveness will be all the more questionable.

My amendment would change the nature of the provision such that a judge may:

[. . .] direct that, in the public interest, the particular evidence shall be given in the absence of every person other than—

(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and

(II) if the judge deems it appropriate, such one or more of the clerks or registrars of the Court as the judge determines,

(III) the person to whom the application relates and any legal representative (whether of that person or the applicant).".

My amendment changes the presumption and makes it necessary that the person to whom the application relates, that is, the person in detention, his legal representative and any legal representative of the applicant be present in court. I do not understand why it is necessary to provide for hearings in secret. The case has not been made for this in any way.

There are three different sets of detention powers at issue and three different types of detention hearing relating to different detention periods. All are substantial and concern persons who have been already in detention for a significant period. The Minister's provision encroaches significantly on the constitutional right to liberty and it removes the safeguards currently in place. The European Court of Human Rights has issued various rulings on the extension of detention and on the need for judicial intervention, as the Minister is well aware. I find it difficult to understand how judicial intervention can be justified where the judge has heard from the garda applicant alone in the absence of the accused person, his legal representative or any other legal representative.

I support the amendments tabled by Senator Bacik and endorse her arguments in support of the changes she wants to make to the Bill. It is important to reflect on the fact that when we were debating the use of the Special Criminal Court and the Minister's apprehension about the intimidation of jurors, we were critical that he did not seek to employ or appear to seek to employ any other means of addressing that apprehension. He stated repeatedly he has considered the matter carefully, in addition to all the alternatives, but we have not been apprised of any of the alternatives. The conclusion the Minister arrived at was very blunt, that is, that juries should be taken out of the equation altogether in regard to the offences in question, with the proviso that the Director of Public Prosecutions may direct that a particular case be taken back from the Special Criminal Court, although that seems unlikely to occur. He seems to take the same approach in respect of the extension of detention hearings. The view or apprehension is largely based on one allegation and one case, to which Mr. Murray referred on television a couple of weeks ago. That is the only hard evidence placed before us to justify this provision.

In his Second Stage speech the Minister said "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." I understood the Minister to say in his earlier remarks that he was concerned that judges were put under pressure and he almost suggested that the judge was being "blackguarded" in some way by the lawyers and put under pressure that he could not withstand to reveal certain matters or to allow the Garda to reveal certain matters that it would not have been appropriate to reveal in those circumstances. The Minister did not use the word ‘blackguarded' and I do not want to offend him by my paraphrase. If I do I will think twice about the word. Surely the way to deal with that problem is to re-examine the process and the sort of information that is, and requires to be, opened to the court to deal with a proposal to extend detention rather than take everybody out of the room.

This is the approach he has taken to the non-jury trials, a problem is perceived and everyone is removed from the court except the judge and the garda. It seems such an excessive response to a perceived problem as to be disproportionate. We do not know much about the instance to which Mr. Murray referred of solicitors sending text messages to their clients warning them about what was going on. That would be a very serious thing for a solicitor to do. It would seem to be a serious criminal offence for a solicitor to interfere with the course of justice, not just a question of ethics. If this matter is as serious as the outline given on television suggests I hope that it is being dealt with in the appropriate manner and has been referred to the DPP.

Senator Bacik is absolutely right to say that if solicitors are involved in such activity it blackens the profession and it is unfortunate that is being seen as evidence of a widespread activity rather than being one particular case. If there are other cases let that be said and brought into the debate in a more honest way than it has been. In his argument a few minutes ago the Minister seemed to refer to a plurality of such instances rather than one. Is he saying that? When did that case come to light? Did it happen recently or did the Minister know about the allegation made on television when the legislation was being drafted? Is that the reason for this provision or is it being invoked as apost facto justification for it? If there is a worry about the process of these detention hearings and concern that the management of the hearing is not quite right and about the nature and extent of the information given out why not address that and find a way to deal with it, rather than eliminate the key principals from the hearing?

To answer Senator Bacik on section 30, the initial period is 24 hours, the first extension authorised by a chief superintendent is a further 24 hours and the first extension authorised by a district court or circuit court is 24 hours. Normally the district court follows an application by a superintendent, making a total of 72 hours or three days. The total under section 2 of the Criminal Justice (Drug Trafficking) Act is seven days, and under section 50 of the Criminal Justice Act 2007 is seven days in respect of murder involving a firearm, capital murder, possession of a firearm with intent to endanger life, kidnapping and hostage taking involving a firearm.

Senator Alex White asked whether there is a plurality of cases. This was drafted before the State solicitor said anything publically because there were strong suggestions of instances in which information had been passed. This refers to a pre-trial hearing in respect of extending detention on which there is case law. The case of the DPPv Donoghue involved defendants prosecuted for membership of an illegal organisation contrary to section 21 of the 1939 Act. The prosecutor relied on the belief evidence of the chief superintendent. This belief was based on confidential information available to the chief superintendent. He claimed privilege in respect of the sources which provided the information on the grounds that to disclose them would endanger the lives of people and hamper ongoing security measures for the security of the State.

The Special Criminal Court required the chief superintendent to produce all relevant documentation upon which he relied. Following a review the court ruled that it was adequate and reliable information and that nothing in the documentation would assist the defence in proving the innocence of the accused. Ms Justice Macken delivered the judgment in the Court of Criminal Appeal and reviewed the European Convention on Human Rights, ECHR, authorities in her judgment. In that case the Court of Criminal Appeal was satisfied that the trial judge took sufficient steps to satisfy himself that the garda was entitled to claim privilege against disclosure of information. The judgment stated that withholding documentation, as in that case, was consistent with Article 6 of the ECHR, the right to a fair trial, where the decision to hold it was within the supervisory control of judges which is exactly the position on this issue.

The provisions we are putting in allow the exclusion of the detained person and their legal representatives. It is not entirely without precedent. The concept of certain material evidence being privileged and not made available to the accused or his legal representatives is not new. Section 4 of the Bail Act 1997 and section 41 of the Criminal Procedure Act 1967, as amended, which refer to similar pre-charge hearings, replicate the limited access of the public. The rules of procedure governing the Special Criminal Court also allow it to exclude the public or a portion of the public or to direct the removal of a person who is interfering with the proceedings. There is a precedent for this provision.

The seven day detention exists for several other serious offences. It has been forgotten in the public debate that these provisions already exist and have done so for some time. We are allowing the judge to exercise his power where he believes that it is necessary to do so to avoid the risk of prejudice to an investigation. This is subject to judicial scrutiny as held in DPPv. Donoghue. The limited power the judge has only arises where the judge is satisfied that the evidence could prejudice the proper conduct of an inquiry or investigation. It is self-evident that in such circumstances the judge should have this power or otherwise the investigation could be prejudiced. Where the judge believes the investigation will not be prejudiced, the lawyers will not be excluded. This is part of the investigative step. Where detention is extended for a 48-hour period, the senior garda can approve it already without a hearing and without the presence of any legal representatives. We are referring to a hearing before a judge who has a limited power to hear evidence in the absence of any other person where otherwise the investigation would be prejudiced. This does not prevent the accused raising these matters at the trial.

In regard to the exclusion of the accused's solicitor, there may be a fear that he or she, if he or she remains in court, will be pressurised to reveal the information. Lawyers would be put in an invidious position if their client was excluded whereas they were left in for the detention period. It could be argued that to allow them to remain in court on the basis that they would not divulge the information to their client would create an undesirable chasm in the relationship between the solicitor and the client and expose them to considerable pressure. This was recognised by the Supreme Court — albeit in a civil case, not a criminal case — in the case of Burkev Central Independent Television.

In the context of the Special Criminal Court, the Court of Criminal Appeal has held that in the case of a trial on a criminal charge, it is permissible in certain circumstances for the trial court to review information on which a chief superintendent bases his opinion of membership without disclosing it to the defence. The provision in this Bill only creates a very limited restriction in very limited circumstances in the context of an application for longer detention and, accordingly, is more limited and inconsequential than such a restriction in regard to evidence at a trial.

Subsequent to the publication of this Bill, Mr. Michael Murray referred to one particular case. There are two cases where there is serious evidence that what I referred to has happened. Mr. Murray said in one particular case a witness was arrested for withholding information and consulted a particular solicitor. He also said in a subsequent follow up search and in the course of a murder investigation, a mobile telephone was found that was examined. He said it was discovered that the solicitor was texting information to the suspect and the person in custody was in fear of that suspect and was not speaking and not telling gardaí what happened. He said this was a very serious incident. I regard it as a serious incident. I do not know if it is the subject of a separate investigation but it confirms the view that resulted in bringing forward Part 4 of this Bill to be fair to everyone concerned during a detention period while ensuring that the procedure is streamlined.

After the Shane Geoghegan murder I spent some time in Roxboro Garda station where I met all the senior gardaí, all the detective inspectors, detective sergeants and senior people who are fighting gangland crime in Limerick. At the end of a long meeting, I asked them was there anything that I could do for them. One of the them made the point that detention hearings have now become full blown trials, which was not what was originally intended in terms of the extension of periods of detention. I can fully accept what they said because I was aware of that from my own knowledge. There have been attempts by solicitors on behalf of clients at a pre-charge hearing, a hearing in regard to only an extension of detention period, the defence lawyers, representing — not the charged person because the person has not been charged at this stage — the person who is detained for questioning, to find out more information than would be acceptable in regard to the investigation of the Garda.

As a result of my meeting with the gardaí, I followed on in regard what was necessary in this legislation to streamline the detention provision and bring it back to what originally it was intended to be, a pre-trial hearing, not a fully blown trial. Senator Bacik referred to the prosecution lawyer being excluded; normally there is not a prosecution lawyer present. Because no one is charged at this stage, it is a senior garda who makes the application to the court and that senior garda is normally up against substantial legal expertise on the other side. The Director of Public Prosecutions is not represented at that stage. The gardaí have to represent themselves in these applications. To ensure there is a belt and braces approach to an application, it means that literally every garda involved in the investigation must be down in court and be there for the duration of the hearing to prove anything that is raised by the legal team. I emphasise that this is only a detention application, it is not a hearing that will prove the innocence or guilt of the person concerned.

This is a proportionate response to the view that has been expressed by my officials in regard to the way in which these detention hearings have become full blown trials. It is a response to the request from the Garda that the procedure should be streamlined to allow gardaí to get on with the investigation at the initial stage very shortly after the offence has been committed and for their time not to be tied up in court. It is also the case that there have been attempts, particularly where many people are in detention, to use detention hearings to string out the period such that by the time the detention hearing is over, the people detained have to be released because the period of detention has expired. This is a proportionate response to all the difficulties that pertain in regard to the extension of periods of detention, whether it be for 24 hours, 48 hours or seven days.

I am grateful to the Minister for clarifying the nature of the detention powers with which we are dealing. These are all substantial detention powers. He has also confirmed that the power to detain a person for seven days pre-charge is now being extended to all organised crime offences under Part 7 of the 2006 Act. It is evidence of creeping changes in the criminal justice system. When the seven-day detention power was first introduced in the Criminal Justice (Drug Trafficking) Act 1996, it was described as being an exception to the general rule and necessary for particular purposes relating to detention of persons suspected of drug trafficking and so on and we have seen it used more and extending to other areas of law. That is a separate but related concern.

We are dealing with substantial detention powers. The Minister said there are already effectively secret hearings where senior gardaí, chief superintendents, approve detention periods. That is right and I acknowledged that in my earlier contribution. It is correct that senior gardaí approve detention but that is at an earlier stage for a lesser period of detention. The reason we have judicial intervention provided for is because the European Court of Human Rights requires judicial scrutiny once persons are to be detained prior to being charged for any lengthy time. We have already got powers for senior gardaí to approve detention but that is only up to a certain point, as the Minister is well aware, and beyond that we need judicial scrutiny but judicial scrutiny must be proper scrutiny and this provision for scrutiny in the absence of the accused and their representative is not sufficient. Nobody is arguing that the defence lawyer should be left in the court room without the client. That would be invidious. Both should be left in and there should not be provision for a judge to exclude both from the court room for one of these extension of detention hearings.

I accept it is not new that we would have in law a concept of material withheld from the defence. That is quite routine in the Special Criminal Court and the Minister has correctly given other provisions where material may be withheld but this is a difference of substance. It goes well beyond the hearingsin camera and removal of the public from the court room and it also goes well beyond the withholding of material from the defence because it is based on confidential information and so on. It goes much further towards having a secret hearing, which removes the right of the person in detention to be present in the court room. The allegation by Mr. Murray, the solicitor from Limerick, requires investigation and the appropriate response and sanction if the lawyer is found guilty following a criminal investigation. That is a serious matter but it is not enough to put forward that allegation as a reason to change the entire basis on which we conduct detention hearings on three different types of detention power.

There was a general attempt to suggest that defence lawyers are potentially colluding, that they are using those hearings to gain information. Up to a point lawyers are entitled to gain information during the course of their client's detention about the nature of the charges that may be pressed against them. We do have a criminal legal aid system and lawyers may be appointed under that system to advise clients during detention. The purpose of that appointment of a lawyer is to advise the client on the potential charges that may be proffered against him or her. We should not forget that in the neighbouring jurisdiction, in England and Wales, the person in detention is entitled to have his or her lawyer present during questioning because it is recognised that he or she should have legal advice. We do not have that provision, as we do not go that far, but of necessity we provide that a person in detention is entitled to legal advice because the European convention and the Constitution requires it. It is clear that lawyers are entitled to certain information, not to prejudice or compromise an investigation, but they are entitled to be able to advise their clients. That point should be noted.

The other matters in these sections deal with a creeping change, a general move away from the principle that justice should be done in public, especially with criminal matters. I am concerned also at the blanket provision that re-arrest applications under these three separate statutes and search warrant applications in general must now be made otherwise than in public. That is a concern because it again moves away from the general principle. Section 26, to which I am opposed, states that search warrant applications should be heard otherwise than in public, and similarly with re-arrest applications. There is no requirement that the judge must be convinced that there is risk of prejudice to an investigation before he or she makes an order that an application of this nature would be heard otherwise than in public. It is just a blanket change that these applications will now be heard otherwise than in public. It is one thing to say that where a judge believes there is a risk of prejudice, as we have in the extension-of-detention hearings, that they can exclude members of the public. I do not object to that, but to say these applications should be heard otherwise than in public without any requirement that there is a risk of prejudice shown is a worrying and concerning encroachment on the general principle that justice should be done in public. I am not convinced that the Minister has given enough of a justification for these changes to the extension-of-detention hearings procedures. I will be pressing the amendments.

I wish to reply to the accusation that there is a creeping move towards longer periods of detention. It had been suggested that in the context of the legislation we should consider longer periods of detention but I resisted those calls because I believe seven days is sufficient. When one considers the figures it is quite clear that under the Criminal Justice (Drug Trafficking) Act that for the two-year period November 2006 to November 2008 the number of people detained for long periods was kept to a minimum. A total of 821 people, 47.98%, were detained for periods of detention up to six hours. A total of 664 people, 38.81%, were detained for between six hours and 24 hours. A total of 208 people, 12.16%, were detained for between 24 hours and 48 hours. A total of 15 people, 0.88%, were detained for between 48 hours and 120 hours and three people or 0.18% were detained for between 120 hours and 168 hours. It is evident from those figures that only 18 people in two years were affected by the extension of the period of detention to 120 hours or 168 hours. Despite what Senator Bacik said, it is obvious the power of detention has been used very sparingly.

I acknowledged that point earlier.

I am sorry. I understood the Senator to say it was used more frequently. Since 2007, a total of 19 individuals have been detained for questioning by the Garda under section 50 of the Criminal Justice Act 2007. A total of four persons have been detained for up to 48 hours. A total of 13 persons have been detained for up to five days. A total of two persons have been detained for up to seven days. Again, there was a relatively sparing use of the provision.

This is a limited provision for use in limited circumstances. It is at the sole discretion of the judge. It was established in the DPPv. Donohue case that this is in total conformity with Article 6 of the European Convention on Human Rights, the right to a fair trial. It is a proportionate response to the various issues that have been raised. One of those is seeking to return to a situation where pretrial hearings are exactly that and not full-blown trials with all the legal paraphernalia that goes with that. The provision addresses to a certain extent, at the discretion of the judge, any perception that a few rogue solicitors or other members of the legal profession are passing information. As a member of that profession, it would be disgraceful if anybody were engaged in that activity. This is a good and balanced response and one which I have no doubt will be looked upon as a provision the purpose of which is to protect everyone. I emphasise again that this is not just for the protection of the investigation process but also for the protection of lawyers by ensuring they are not put in an invidious position whereby they may come under severe pressure by dangerous people to divulge the information to which they were made privy during the pretrial hearing.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 37; Níl, 6.

  • Bradford, Paul.
  • Brady, Martin.
  • Burke, Paddy.
  • Butler, Larry.
  • Buttimer, Jerry.
  • Callanan, Peter.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Corrigan, Maria.
  • Cummins, Maurice.
  • Daly, Mark.
  • Donohoe, Paschal.
  • Ellis, John.
  • Feeney, Geraldine.
  • Fitzgerald, Frances.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • McFadden, Nicky.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • O'Malley, Fiona.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, John Paul.
  • Phelan, Kieran.
  • Regan, Eugene.
  • Twomey, Liam.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Doherty, Pearse.
  • Prendergast, Phil.
  • Ross, Shane.
  • Ryan, Brendan.
  • White, Alex.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Ivana Bacik and Alex White.
Question declared carried.
Amendment declared lost.

I move amendment No. 16:

In page 22, between lines 42 and 43, to insert the following:

"(III) the person to whom the application relates and any legal representative (whether of that person or the applicant).".

Amendment put and declared lost.

Amendments Nos. 17, 24 and 30 are related and may be discussed together by agreement.

I move amendment No. 17:

In page 23, to delete lines 42 to 46.

These amendments are grouped together because they all seek to do the same thing with regard to three different detention powers in sections 21, 22 and 23. In all three cases, the amendments seek to delete the Minister's provision stating that no issue as to the lawfulness of the arrest or detention of the person may be raised at an extension of detention hearing. The Minister has already given us a brief rationale for this section. In the course of speaking to an earlier amendment he said the courts have already stated that these issues should only be dealt with in the High Court. It seems somewhat unnecessary in that, generally, these issues are ventilated in full in any case in the High Court, as the Minister said.

However, what has happened is that defence lawyers have understood that they are precluded from raising issues, or at least objection is taken to their raising issues later about the lawfulness of detention, if they have not raised them at the earliest possible opportunity. The Minister will be aware that there has been some case law suggesting that they should raise their objections to the lawfulness of detention and jurisdiction of the court at the earliest possible stage, otherwise they may effectively be precluded from raising them at a later date. At the very least, the prosecution will use against them the fact that they did not raise these points earlier. That is why the issues have been raised.

I am not sure the mischief the Minister speaks about, concerning these hearings being dragged out as a result, is right. Perhaps he might give us a little more information about that. However, I see these provisions he is proposing as being unnecessary. I am simply proposing to delete them because in any case the full ventilation of these issues has to occur before the High Court. It may be difficult, however, for the defence to raise them in the High Court if they have not already raised them at an earlier point. That is why they started to be raised at the extension of detention hearings. Perhaps the Minister can elaborate if there is a particular reason why he is placing these provisions in the Bill.

The purpose of explicitly stating in statute that no issue as to the lawfulness of the arrest or detention of a person to whom an extension of time application relates may be raised, is to counter a growing tendency in recent years on the part of the suspect to try to turn the hearing into a hearing on the lawfulness of his or her arrest or detention. This has a number of undesirable consequences.

First, such matters are outside the jurisdiction of the lower courts, with one exception being where there is a glaringly obvious problem with the arrest, which the judge must be permitted to fix. This is the judgment of the Supreme Court as set out in the Keating case in 1990. The qualifying words in the text of the Bill, "save where any rule of law requires such an issue to be determined by the court", are intended to capture this exception.

Second, this attempt to shift the focus of the hearing leads to unnecessarily prolonging hearings and affects the conduct of investigations. Gardaí who should be carrying on with the investigation are being diverted from that work in order to be available at the courthouse to give evidence about the arrest and detention. I stress that there is nothing in this Bill which prevents the making of an Article 40 application to the High Court. In the Keating judgment against the governor of Mountjoy Prison, delivered in July 1990, the Supreme Court Judges Finlay, McCarthy and O'Flaherty, in dismissing the appeal, held that the District Court has no jurisdiction to inquire into the lawfulness of the detention of a person before it for the purpose of ordering that person's release from custody. Such a jurisdiction was confined under Article 40 of the Constitution to the High Court. That is the rationale behind what we are doing in this part of the Bill.

I am grateful to the Minister for giving a little more detail. He referred to the Keating case in 1990, but I am aware of more recent cases. In the Bernie case — I was involved also in a related case — one of the reasons the Court of Criminal Appeal objected to a challenge to the jurisdiction of the Special Criminal Court was because the accused has not raised the point concerning the lawfulness of rearrest and consequent detention at an earlier stage. That case was much more recent than 1990, so there has been an organic shift to putting some pressure on defence solicitors, in particular to flag issues of lawfulness of detention and jurisdiction at an early stage. That may be why that matter has arisen, if indeed it has.

The provisions the Minister is inserting are too restrictive of the accused's right to raise what may be legitimate challenges. The Minister himself said he could appreciate that there might be some issues where there was a glaringly obvious problem — for example, with the detention — where they could be raised in court. I still fail to see the point of this provision.

Is Senator Bacik seriously arguing that an accused who may have been charged in this instance with being the leader of a criminal gang——

No, it is before being charged. We are concerned with the pre-charge period.

Yes, the suspect is going to face charges of a very serious nature. Are we going to indulge in technicalities? This is the kind of thing that brings the whole law into disrepute. Many people are aghast at some of the technicalities that are used by lawyers. Instead of looking at that, we need to look at what people want, which is justice. We should not just think of the human rights of the accused but also those of the people — as I outlined earlier, and there are very many of them — who have been murdered by some of these thugs. We need to get our focus a little more on what is right for the general populace, rather than on what is right for people who have committed serious crimes.

In his response, the Minister clearly pointed out the exception which has arisen from the Supreme Court case. Other than that, those technicalities cannot be indulged in. It happens as well with other minor offences. We need to strike the right balance in all of this. A lot of the human rights arguments I have read in recent weeks are one-sided. We must come back to the human rights of the innocent individuals who are being murdered, as well as their bereaved families. We should talk to the parents, wives and children to find out where the pendulum should be, and whether we should allow technicalities to be injected into the administration of justice.

I cannot put it any further than the advice of the Attorney General that the overriding principle in the Keating case is the one that applies concerning detention hearings, that is, that the District Court has no jurisdiction and that under Article 40 of the Constitution it is purely and simply a matter for the High Court.

In response to Senator Walsh, who I think was seeking to attack me, although I am not sure, it is utterly wrong to start once again personalising the debate and suggesting that people who are raising valid issues——

I did not personalise the debate at all.

Senator Bacik without interruption.

She must be fair in her comments. I stuck to the issues, on which I have a deep conviction.

The Senator did personalise the debate. It is on the record.

I asked a question of the Senator.

We are all equally outraged at the horrific murders of people such as Shane Geoghegan, Roy Collins and Wayne Doherty.

They have human rights as well, the Senator will agree.

We all recognise that the rights of their families need to be protected.

And defended.

We all share the goal of tackling gangland and organised crime. I have done a great deal of research——

And part of that is——

I ask the Senator to stop interrupting.

——and work on behalf of victims of crime and some of this work has fed into legislative change on behalf of victims of crime. I resent deeply any suggestion that those on this side of the House who raise valid criticisms of legislation before the House, which are not just technicalities, are somehow soft on crime or less concerned about victims' rights. I wish to put this on the record because we have taken enough of such abuse from the other side of the House.

A Senator

Hear, hear.

My remarks were certainly not personal. I asked a question of the Senator, which she has not answered. The human rights of those who have been murdered and their bereaved families should be a priority for the Members of this House. It is right that people focus on the other side of the argument to ensure there are not miscarriages of justice. Equally, however, I have strong opposition to a situation——

The Senator is straying from the amendment.

No, I am not.

This is on the amendment.

I have strong opposition to technicalities within our judicial system, which is what this is about.

Report Stage is tomorrow.

We should be ensuring these do not get in the way of successful prosecution of those who are guilty, which has unfortunately happened in some instances. We have seen examples of it and Members of the House have expressed concerns in this regard. The human rights of the bereaved families need to be pursued and I applaud what the Minister is doing in the legislation, which is going some way towards achieving this. We are not going far enough; we need to go much further. We will be back again to discuss this. Serious gangsters in our cities, particularly in the capital and in Limerick, are getting away with crimes and walking free, and it is only their agents who are being prosecuted down the line. We need to get to the heart of the problem, which means bringing those who are directing these crimes to justice.

We have had quite a good debate on many sections of the Bill and it has been a reasoned and constructive discussion. For Senator Walsh to jump in at this stage and attack Senator Bacik by suggesting she is raising technicalities, and saying we should get on with ramming through the legislation——

I have not said that. It is unfair.

It is not unfair.

Senator Regan, we must stick to the amendment.

I am on the amendment.

The Senator should not accuse me of making statements I have not made.

Senator Walsh, please.

Senator Walsh continually distorts the discussion and makes cheap political shots across the floor.

No, I have not.

With regard to the issue raised by Senator Bacik, I put forward a Bill in the House dealing with technicalities in the criminal law system and Senator Walsh voted it down, as did all of his colleagues. He did not want to hear about sorting out technicalities——

That is not true.

Senator Regan, on amendment No. 17.

——which prevent the prosecution of crime in this country.

The Senator should read what I said.

The Senator is being totally contradictory and applying double standards to the debate.

The Senator should not describe things I have not said.

Does the Minister have anything further to offer?

Is amendment No. 17 being pressed?

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

Amendments Nos. 18, 25 and 31 to 33, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 18:

In page 25, line 5, to delete "District" and substitute "Circuit".

The subject matter of this amendment has been the subject of debate on a previous amendment. The issue is that the Circuit Court, rather than the District Court, would have jurisdiction on the issues arising under the Act. I will be pressing the amendment.

The four amendments proposed to sections 21 and 24 of the Bill appear to be aimed at requiring applications for warrants for re-arrest to be heard by a Circuit Court judge rather than a District Court judge, as has been the law for almost 25 years. No one has ever drawn to my attention any difficulty in having these applications heard by the District Court. I repeat the point I made earlier about the impact the Fine Gael proposals would have on the workload of the Circuit Court in terms of the timetabling of trials for serious cases. In addition, District Court judges are more accessible and there are far more of them, which is a major consideration given the urgency of some re-arrest applications. Thus, the amendments offer no added benefit in terms of efficiency. We are all of the same view that people should not be detained any longer than is absolutely necessary, and Circuit Courts, as the Senator knows, do not operate as frequently as District Courts. Given that the system has worked well for 25 years and we have had no representations about this from the legal profession, I believe we should leave it the way it is.

The additional section proposed in amendment No. 33 would create serious logistical difficulties for the Garda. We must keep in mind that the criminal investigation will be ongoing while the Garda is applying for judicial authority to extend the period of detention for suspects in custody or for re-arrest warrants. Requiring the Garda to establish that the Circuit Court is unavailable before it can resort to the District Court is simply introducing a step which will act as a hindrance to the investigation and result in much more work for the Garda. As has already been said, the District Court has been dealing with extension of time applications and re-arrest applications for many years and I see no necessity to change that.

Apart from logistical difficulties with a system under which the Garda must establish that the Circuit Court is not available before resorting to the District Court, I see several drafting problems with this proposed section. Does the phrase "this Part" refer to the 1939, 1984, 1996 or 2007 Act? There are no applications under the part referred to in the Deputy's amendment, which concerns amendments to other Acts. Therefore, if I were inclined go down this route, which I am not, individual amendments would be required to the 1939, 1984, 1996 and 2007 Acts.

Is amendment No. 18 being pressed?

Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22.

I move amendment No. 19:

In page 25, subsection (1), lines 25 and 26, to delete paragraph (a).

This refers to the detention powers in the Criminal Justice (Drug Trafficking) Act 1996, which we have already discussed. This amendment is to retain the requirement that a chief superintendent be involved in the detention rather than reducing the requirement, as the Minister's provision does, to superintendent. As I have already said, there are measures in this Bill that amount to a creeping extension of detention powers, including the lengths of detention for different offences. However, we are also seeing a creeping reduction in the level of checks and balances placed on powers of detention by legislation. In section 22, although removing the reference to a chief superintendent and replacing it with superintendent is not a highly significant change in itself, it is part of a general reduction in the safeguards that are necessary to ensure, as the Minister himself has said, people are detained for no longer than is absolutely necessary and that their detention is subjected to sufficient scrutiny and to the rigour of law.

There is another provision in section 22 which, again, raises concern about a creeping reduction in checks and balances; namely, subsection (4), which provides for the removal of the requirement that the 1996 Act be reviewed. As I understand it, the effect of subsection (4) is to remove the Oireachtas review mechanism that is currently in the 1996 Act so that the detention provisions of the Act in particular will continue in operation indefinitely. Given that we have already debated review powers and given that section 8 of the Bill provides for a 12 month review, which I welcome, it is unfortunate the review mechanism in the 1996 Act is being removed. I ask the Minister to consider retaining the requirement in respect of a chief superintendent in the 1996 Act, particularly as these are seven-day detention provisions.

In effect, the Senator is objecting to an amendment that was passed in the Lower House. Paragraph (a) amends section 2(2)(b) of the Criminal Justice (Drug Trafficking) Act 1996, which specifies the rank of garda who may authorise the first extension of detention following the expiry of the period authorised at the time of arrest. In the case of the 1996 Act, a period of six hours is authorised upon arrest. The next period is 18 hours. At present, this requires authorisation by an officer not below the rank of chief superintendent. Following the implementation of paragraph (a), it may be authorised by an officer not below the rank of superintendent. A second detention may be authorised by an officer not below the rank of chief superintendent. Thereafter, the extensions require authorisation by the District Court or Circuit Court, normally the former. The maximum period allowable is 168 hours, or seven days.

The revised authorisation arrangements bring the 1996 Act in line with the arrangements under section 50 of the 2007 Act, which also permits detention up to a maximum of seven days. The amendment contributes to the standardisation of the arrangements across all the statutes dealing with detention. Within section 2 of the 1996 Act there will be an incremental increase in the grade of authorising officer as the period is extended. There is rationality in such an approach. It also has the benefit of ensuring that two different officers of different ranks must review the case for extensions. Under the previous arrangements the same officer could authorise two periods of extension lasting 48 hours.

The Senator referred to subsection (4), which states: "Section 11 of the Act of 1996 is repealed and, accordingly, sections 2, 3, 4, 5 and 6 of that Act (being the sections to which that section 11 related) shall continue in operation indefinitely". As stated on Second Stage, I indicated earlier in the year that it was my intention to leave this in operation indefinitely. That is the reason for the inclusion of the subsection.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 20 and 21 not moved.

I move amendment No. 22:

In page 26, lines 17 to 19, to delete all words from and including ", including" in line 17 down to and including "applicant)" in line 19.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 23:

In page 26, between lines 26 and 27, to insert the following:

"(III) the person to whom the application relates and any legal representative (whether of that person or the applicant).".

Amendment put and declared lost.

I move amendment No. 24:

In page 27, to delete lines 44 to 48.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 25 not moved.
Section 22 agreed to.
SECTION 23.
Amendment No. 26 not moved.

I move amendment No. 27:

In page 29, after line 47, to insert the following:

"(b) Where a judge makes a direction or exclusion under paragraph (a), he or she shall direct that proceedings of the application are recorded by an official stenographer.”.

Amendment put and declared lost.

I move amendment No. 28:

In page 30, lines 26 to 28, to delete all words from and including ", including" in line 26 down to and including "applicant)" in line 28.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 29:

In page 30, between lines 35 and 36, to insert the following:

"(III) the person to whom the application relates and any legal representative (whether of that person or the applicant).".

Amendment put and declared lost.

I move amendment No. 30:

In page 32, to delete lines 1 to 5.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 31 not moved.
Section 23 agreed to.
Amendments Nos. 32 and 33 not moved.
Sections 24 and 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."

I will be brief because I have already referred to my opposition to this provision, which will change the way in which the search warrant procedure is dealt with in court. It is a sweeping provision which states, "An application under any enactment to a court, or a judge of a court, for a search warrant shall be heard otherwise than in public.", and which we should not pass lightly. Section 21 states that a judge may exclude members of the public in which an extension of detention hearing is taking place in order to avoid a risk of prejudice to an investigation. As a result, there is a requirement that the judge must be satisfied that it is necessary to do this in order to avoid such a risk before ordering the hearing to take place other than in public. It is unfortunate, therefore, that section 26 is a blanket provision under which all search warrant applications shall be heard otherwise than in public, without even a requirement that a judge must be satisfied that holding the hearing in public would prejudice the investigation.

This is a breach of the normal rule of criminal law which is that proceedings should be heard in public and I do not believe any reason for it is advanced in section 26. As stated in respect of section 21, I am willing to concede that where a judge is satisfied there is a risk to an investigation, he or she should be entitled to exclude members of the public. However, there is no justification of that nature provided in section 26. The latter constitutes a general departure — applied in a blanket way — under which an application for a search warrant, under any enactment, may be sought. I do not understand the rationale behind the inclusion of this provision.

People on any side with an interest in fair procedures should be concerned with regard to this section. The Minister will be aware that a search warrant application is a fairly routine matter in the District Court and that no information which might disclose the nature of operational matters is given in open court in any event.

I am aware, from experience, that applications for search warrants should be heard in private. When the Garda authorities apply for such warrants, there is a substantial risk that the intended subject might be alerted to the planned search and might avail of the timelag in order to dispose of evidence. Some District Court judges have recently been refusing to hear applications for search warrants otherwise than in public. There have been instances where such applications have been abandoned because members of the Garda Síochána have been unable to refer to sensitive matters in open court, as required by certain judges. The purpose of this section is to end any confusion in respect of the matter and to provide that all search warrant applications will be heard otherwise than in public. That is only fair and proper because if any information relating to a search warrant application is leaked, the person involved would, possibly, be in a position to destroy important evidence.

While I am willing to accept that this might be a real concern in respect of cases involving organised crime, section 26 goes beyond the range of organised crime offences and applies to every search warrant applied for under any enactment. In my opinion, the provision is too broad.

The Deputy has a point. However, we are endeavouring in this legislation to clarify any confusion that exists in respect of search warrant applications in general.

Regardless of whether it pertains to organised gang crime or normal crime, if there is any indication, it is important that these are made in effectex parte and in private to prevent information from leaking out and in order that no one is under suspicion. If they were made in public, I would hazard a guess that the information would get to the intended target quickly who then could destroy the evidence.

Question put and agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

No. I object to moving this matter to Report Stage now. While many issues have been discussed and clarified, as a matter of principle it is inappropriate for this type of legislation simply to move Report Stage. It requires time for consideration of amendments and such time should be allowed. It is inappropriate to rush through all Stages of the Bill on the same day. This point was made this morning and was made last week in respect of other Bills. Fine Gael objects strongly to simply moving immediately from Committee Stage to Report Stage.

A guillotine operated on Second Stage.

I agree entirely with Senator Regan's comments. I see no reason Report Stage could not be ordered for tomorrow. Senator Regan is correct that this Bill has been rushed and there is no need for Members to do this as quickly as it has been suggested they must. I support Senator Regan in this regard.

I also support this. Many Members have made the point that this Bill was guillotined on Second Stage, leaving many who wished to contribute on that Stage unable to so do. However, given that Second Stage and Committee Stage took place on the same day, at the very least Members should wait until tomorrow before taking Report Stage.

Is it intended to table amendments on Report Stage? Were that the case I would be inclined to have a reasonable sos to facilitate that. The position is that it has been ordered that all Stages be dealt with tonight.

I make the point that a number of Members would have liked to have made a contribution on Second Stage. Moreover, there have been some good debates on the amendments that were tabled. It was a shame that Members were denied the opportunity on Second Stage to outline a range of views and reactions to this legislation. It is part of our democracy that this should have been allowed and I regret that did not happen during the passage of this legislation and that we are taking all Stages today. That is not how it should be done.

Does Senator Regan propose that Report Stage not be taken now?

Yes, that is correct.

Does the Leader propose that Report Stage be taken now?

Question put: "That Report Stage be taken now."
The Seanad divided: Tá, 24; Níl, 20.

  • Brady, Martin.
  • Butler, Larry.
  • Callanan, Peter.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Boyle, Dan.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • de Búrca, Déirdre.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • McFadden, Nicky.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Question declared carried.

Can I raise a point of order? The Minister stated that this Bill is urgent and that he wants to put it into immediate effect. Why is there no earlier signature motion for this Bill, a prerequisite for earlier signature by the President?

That is not a point of order.

The Minister said he wanted it implemented immediately.

No item of business in respect of an earlier signature motion was ordered. It is not on the Order Paper.

That means there will be a delay of at least five days. Perhaps the Minister would like to clarify that.

That has nothing to do with procedure.

The Minister said he wanted it implemented immediately.

Question, "That the Bill be received for final consideration", put and declared carried.
Question, "That Fifth Stage be taken now", put and declared carried.
Question proposed: "That the Bill do now pass."

At this juncture I wish to note that I have asked a question on a point of order. The Minster is in the House and has indicated that the Bill is urgent. He wants it to be in effect immediately. Why was there no Early Signature Motion on the Order of Business to ensure the Bill can be signed by the President if enacted in the House today?

That was not ordered.

It is on the news all day that the Bill will go to the Phoenix Park immediately.

Is the Cathaoirleach stating that there was no earlier signature motion on the Order of Business?

It could be on the Order of Business tomorrow.

The Government side realises it has forgotten it.

Will the Leader ask the Minister whether the Bill requires an early signature motion? We received an amendment to the Order of Business for tomorrow to have an earlier signature motion for the tobacco Bill.

No. The Leader will order——

If we have an earlier signature motion for the tobacco Bill then, my goodness, is it another cock-up by the Government that we do not have an earlier signature motion for this Bill?

We are discussing an earlier signature motion that does not exist; it is not on the Order of Business for today.

Will the Minister provide the House with an explanation?

Question put.
The Seanad divided: Tá, 37; Níl, 5.

  • Bradford, Paul.
  • Brady, Martin.
  • Burke, Paddy.
  • Butler, Larry.
  • Buttimer, Jerry.
  • Callanan, Peter.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Corrigan, Maria.
  • Cummins, Maurice.
  • Daly, Mark.
  • Donohoe, Paschal.
  • Ellis, John.
  • Feeney, Geraldine.
  • Fitzgerald, Frances.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • McFadden, Nicky.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O'Donovan, Denis.
  • O'Malley, Fiona.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, John Paul.
  • Phelan, Kieran.
  • Regan, Eugene.
  • Twomey, Liam.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Doherty, Pearse.
  • Prendergast, Phil.
  • Ryan, Brendan.
  • White, Alex.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Ivana Bacik and Alex White.

Is Senator Boyle going to the plinth?

(Interruptions).

Members, please. The Minister is back in the Chamber. I call Senator Regan.

It is like "Live at 3".

Senator Boyle should be concerned about the way legislation is being dealt with.

Notwithstanding the guillotining of the Bill on Second Stage, there was a good discussion, albeit rushed, on many of the concerns about this legislation. We teased out many of the issues and there was better understanding as a result. If ever proof was needed that it is unwise to rush legislation of this type, it is evidenced here today. Once explanations are given and issues are elaborated on and teased out, there can be a greater meeting of minds in this House.

There are motions from Fine Gael on the Seanad Order Paper dating back to 18 November 2008 on the killing of Shane Geoghegan, the 17th gangland murder victim, and we called for action by the Minister and the type of Bill before the House today. That is the reason Fine Gael supported this Bill but we wanted to deal with the concerns about the safeguards that are necessary for this type of legislation.

I made the point earlier, and I believe the Minister recognises its validity, that legislation on its own is not sufficient. We need to ensure that the Garda has the resources and the technology to fight organised and gangland crime. We need prisons also which can accommodate the effect of this legislation and other law enforcement measures.

Given the number of criminal law Bills we have dealt with in recent weeks and the extent to which they refer to a host of other Bills, if ever there was a time to have codification of the criminal legislation it is now. I recommend that to the Minister.

I appreciate the Minister has spent a long time in the House today——

——and gave many elaborate explanations and clarifications on many of the issues we in Fine Gael raised but if more time had been allowed both in the Lower House and here it would have been possible for the Minister to accept some further amendments tabled, which would have improved the legislation. As the Dáil has gone on summer recess the Minister was set against taking any amendments but there has been some clarification of the legislation. Fine Gael supports this Bill because there is a major problem of gangland crime and criminality. Many innocent people have been killed and many communities have been disrupted and intimidated. If this legislation goes some way to addressing that problem, our work will have been justified.

I agree with Senator Regan on one point, namely, that there was a very good discussion in the course of the day. The Minister was attentive, and I thank him on my behalf and on behalf of my party for his willingness to listen and to engage in the debate. However, part of our role in this House, and in any parliament, is not just to express our opinion but to have the ability to bring forward proposals for change to what the Government proposes to do. We did not have that ability in this House and, unfortunately, we have to record that.

I made that point on the Order of Business. The Leader shook his head at the time but he did not come back to me in response and he did not disagree with me, nor can he or anyone disagree with me that the debate we had today, however good and well-informed, was always characterised by an air of unreality because it was signalled clearly to us that there would be no question of any amendments being accepted. I regret that.

That is not true.

That was very clear. With the Dáil in recess it was clear to everybody that this was the case and there is no point in anybody suggesting otherwise——

That is not true.

——because it is flying in the face of the truth.

The Senator is spinning.

That having been said, it was an important debate. We carried out our duty as Members of this House to read, study and scrutinise the legislation as best we could. I said I was genuinely open to being persuaded but I do not believe the case the Minister made was sufficiently persuasive, particularly in regard to the core issue of the trials to be heard in the Special Criminal Court. I am a democrat. I accept that he has persuaded a very large majority in this House. He has not persuaded my party. He has not persuaded two other persons on the Independent benches, nor would it appear has he persuaded the two members of the Green Party in this House who, to their credit, abstained from voting on this legislation. I congratulate them for that.

I thank the Minister but I particularly thank his officials in the Department of Justice, Equality and Law Reform. This was complex legislation. They were present throughout the day, and for the debates in the other House also. They have given major input and support to the Minister on this legislation and I thank them for their availability in the House today in terms of the flow through of the Bill.

I will conclude on what I hope is not too discordant a note. In regard to legislation the Minister brings forward in the Houses, I ask him to seek to ensure if at all possible — I do not want to put this request in too adversarial a way because I have made the point previously in a more robust fashion — that if and when he finds it necessary to bring forward legislation he could pace that legislation a little more throughout the session because it is not satisfactory, and I am sure it places a huge burden on him and his officials, that in recent weeks important justice legislation — five Bills at the last count — were before these Houses in quick succession. There must be a better way of doing this and pacing important legislation from his important Department. I ask him to try to do that in the next session if legislation should arise.

I echo the words of Senator White in thanking the Minister for his engagement with us throughout the debate today. I thank also his officials who worked so hard on the Bill and staff in the Attorney General's office who I understand also advised on different aspects of the Bill.

Although I agree this was a good and measured debate and that we engaged on many of the points about which we had concerns, it could have been a much more constructive debate had it been conducted when the Dáil was sitting so that we might have had some real prospect of having amendments accepted or taken through the Dáil. The debate was conducted in a somewhat farcical situation, where we knew the Dáil had risen and there was no prospect of having amendments accepted.

We all share a common goal of ensuring that gangland crime is tackled and that we have a robust criminal justice system so that the chaos and killings caused by organised crime can be stopped. We disagree on some of the measures in the Bill to tackle organised crime. I note the Green Party Senators abstained on the Bill in the end. They too were not persuaded about its overall merit, in some way.

It is important that we had the opportunity to debate these issues and I regret deeply that we did not have more time to debate them. We did not have enough time on Second Stage. A guillotine was exercised on Second Stage and we then had to rush through all remaining stages and had no real opportunity to put amendments on Report Stage. A more robust debate would have benefited all of us and made more effective legislation.

With those reservations, I thank the Minister and officials who are here.

I thank my colleagues for quite a robust debate. Despite the assertion that amendments could not be taken because the Dáil is not sitting, there were several votes on Committee Stage, some of them quite tight. Defeating the Government in a vote is one way of sorting out amendments.

The necessity for this Bill was brought home to me by a headline in today'sEvening Herald. As a result of a row in a prison, an inmate was battered to death. While in a funeral home, his body was tampered with and something written on his forehead. That indicates how low criminals can stoop, and copperfastens my certainty that the Bill is necessary. During the First World War, for example, when the fighting ended at Gallipoli and Suvla Bay each side was allowed to bury their dead. We have now come to the stage where that is not allowed to happen. How low can one stoop in the criminal world?

In bringing forward this legislation, the Minister is sending out a strong, clear and concise message that this will not be tolerated. I appreciate those who supported the Bill. I understand those who had reservations but the legislation is necessary. I hope the President will sign the Bill sooner rather than later.

I thank you, a Leas-Chathaoirligh, and the Cathaoirleach for facilitating this debate. I thank the Senators who contributed. This was an excellent debate where we teased out many of the issues and everyone understood each other. The level of debate was higher than some of the debate I heard elsewhere, in that people fully understood what the legislation involved. It is clear that the position of the Government was accepted in that a number of amendments were not pushed. I thank Senators in that respect.

There has been criticism of the fact that all stages of the Bill were taken in the House today and in the Dáil last week. The Bill was debated for ten and a half hours in the Dáil and for nine hours today. There was significant debate on the Bill and it was teased out. It was necessary that the Bill be passed before the recess. If we had waited, as some people suggested, until September to pass the Bill we could not have charged people under the legislation. Criminal legislation is not retrospective. The argument that we should wait until the courts re-open in September is not valid. As soon as this legislation is signed and enacted its provisions can be implemented, people charged under it and, I hope, found guilty of their crimes.

It is important not to have it said that Members of the Oireachtas went off on their holidays and did not pass very important legislation which the people desired. It is useful to tease out issues and, having gone through the House, people accept this is good legislation. It is not seismic. It does not make a dramatic change in the criminal law. Virtually everything in the Bill is already enacted in other measures. It sends a strong signal to the wider community and particularly to the criminals that if they engage in the particular offences of directing and participating in criminal organisations, not only will they be subject to very serious prison sentences but they will go before the Special Criminal Court, unless the DPP decides otherwise. That is one of the key savers in the Bill.

Another saver is the review after a year. The Oireachtas will be able to examine the legislation to determine how it was implemented in the previous year. The Oireachtas will continue with the provision if it wishes. This is not a permanent provision but it is needed at this time. After one or a number of years, the Oireachtas may decide that the threat of criminal gangs in certain parts of the country no longer requires this legislation.

I have heard much about the protection of human rights. We must maintain people's civil liberties. Equally, we must maintain the human rights of people like Roy Collins and his family, the Geoghegan family and of all of the people who have been tragically murdered. It has been said, with some justification, that we in the Oireachtas and others in the wider community were not particularly worried when gangsters were killing each other and that it was only when they began to kill innocent people, such as Shane Geoghegan, Roy Collins and others, that the Oireachtas began to pay attention.

The legislation contains checks and balances. It does not make a dramatic change in the criminal law. It was criticised for provisions that were not included in it. After 20 hours of discussion in the Oireachtas, I hope people will fully understand its import.

I thank the officials of my Department who have slaved over this legislation for the past few months. Within days of the murder of Roy Collins on 9 April, I indicated that we would bring in new legislation and change existing legislation. My officials have been working on a daily basis in that respect. I thank the Attorney General and his staff for their work. While no government can guarantee that any legislation is constitutional, the Attorney General, who has gone through the legislation line by line, and I are absolutely happy it will pass constitutional muster. I am confident that is the case. However, no government can guarantee the constitutionality of legislation but we are happy we did our work in that respect.

I also thank the Garda Síochána, who worked closely with us and advised us as to the practicalities and logistical difficulties with which they have had to put up regarding some of these issues. The legislation mirrors the practical difficulties they face in dealing with this very insidious crime.

I thank the staff of the Seanad and of the Oireachtas in general for their work on this Bill and on many others passed in the past couple of days. They have done excellent work and I compliment them on that. I thank the media for reporting on the deliberations of the Bill. It is important that the media articulate what has been said here so that there is no confusion outside.

I am delighted the Bill has finally passed through the Oireachtas and I hope it will be signed into law in the not too distant future. With regard to the Early Signature Motion, I believe there was a surreptitious effort to bounce the President into passing the legislation to the Supreme Court. It is my view that even though this is urgent legislation, we should not sign an Early Signature Motion but give the President enough time to decide on the Bill.

Question declared carried.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.