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Seanad Éireann debate -
Thursday, 11 Jun 2015

Vol. 240 No. 9

Criminal Justice (Amendment) Act 2009: Motion

I move:

That Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30 June 2015 and ending on 29 June 2016.

This resolution will provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a 12-month period beginning on 30 June 2015. The 2009 Criminal Justice (Amendment) Act was enacted as a response to a number of difficulties being experienced and where the entire justice system was under serious threat. At the time, Senators may remember that organised criminal gangs were behaving as though they were untouchable by the Garda and the courts and that could not be allowed to continue. The House will also recall certain dreadful crimes where the gangs involved acted in a way that betrayed their willingness to undermine the very operation of our criminal justice system, if not society itself.

Hand in hand with the disregard for human life was the intimidation of whole communities to prevent people co-operating with the forces of law and order to bring the people concerned to justice. There was also significant evidence of intimidation of witnesses and it was clear that these people were prepared to go to any lengths to thwart the operation of the justice system. Clearly, these gangs had no regard for the rights of others or for our societal values. Gardaí were, at the time, encountering difficulties in persuading people to give assistance in their investigations. In the circumstances, it was imperative that the Government and the Oireachtas took the necessary steps to ensure the criminal justice system was robust enough to withstand the assault launched upon it through intimidation of and violence towards witnesses and jurors.

The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law and justice and instil confidence in that criminal gangs were not going to be permitted to frustrate criminal investigations or prosecutions of their activities. In view of the very real threat which these gangs posed, the Act provided for a limited number of specific "organised crime" offences to be prosecuted in the Special Criminal Court. The proposal to use the Special Criminal Court for a limited number of organised crime offences removed the possibility of jury tampering or intimidation of jurors. The purpose of section 8, therefore, is to ensure organised criminal gangs cannot interfere with the criminal process to determine the outcome of cases. To this end, the section declares that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order with respect to certain offences. The offences in question are the organised crime offences under Part 7 of the Criminal Justice Act 2006.

Briefly, the offences in question are directing the activities of a criminal organisation, participating in or contributing to certain activities of a criminal organisation, committing a serious offence for a criminal organisation and liability for offences committed by a body corporate. Section 8 of the Criminal Justice (Amendment) Act 2009 makes these scheduled offences for the purposes of Part V of the Offences against the State Act 1939. This means that the Special Criminal Court will hear prosecutions for the offences in question but the Director of Public Prosecutions may still exercise her power to direct that the offences should be tried in the ordinary courts. Permitting the Director of Public Prosecutions this discretion maintains the fundamental balance in deciding which cases are appropriate to be tried in the Special Criminal Court.

A further bulwark in maintaining this balance is provided in section 8(4) of the 2009 Act. It provides that the section shall cease to be in operation unless a resolution has been passed by each House of the Oireachtas, resolving that it should continue in operation for a further period to be decided by the Oireachtas. That, as I have said, is the purpose of moving today's resolution. A report on this, as on the other motion we discussed, has been laid before the Houses.

The reasons for which the Government and I, as Minister, are seeking the renewal of section 8 are clear. Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. There is, unfortunately, stark evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. We are also faced with the reality that there are growing links between paramilitary groups and organised crime. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult. This is particularly so given the level of intimidation carried out by the criminal gangs.

The 2009 Act has been in operation for at most six years and while there have been arrests under the relevant sections of the Criminal Justice Act 2006, no cases have yet come before the Special Criminal Court in accordance with section 8. However, this does not invalidate the reasoning for having such a provision available for use in appropriate circumstances. Let us be clear. If criminals are prepared to take human life, then they are quite prepared to subvert the system of justice. Accordingly, there is a necessity for legislation that anticipates this possibility to be in place. There is a responsibility on me as Minister, on the Government and on the House to ensure our criminal law contains appropriate provisions to ensure that investigations are not hampered, and the effective administration of justice by the courts. In my view section 8 is necessary in this regard.

The use of the Act to date also serves to highlight the considered approach of the Director of Public Prosecutions. It vindicates the way in which the provision is constructed, allowing her to exercise her discretion to direct that cases would be tried in the ordinary courts where there is considered to be no threat to their proper functioning.

In the report to me on the operation of section 8, the Garda Commissioner is of the clear view that the requirement for this provision remains. As Minister for Justice and Equality, I must have the utmost regard for the views of the Garda authorities in matters such as this. It is absolutely essential to ensure gardaí have at their disposal the best possible range of powers to face up to organised criminal gangs.

In the period under report, there have been a total of 25 arrests under the relevant provisions of the Criminal Justice Act 2006. These relate to arrests made under section 72, participating in or contributing to certain activities of a criminal organisation - and section 73, committing an offence for a criminal organisation. Sections 71A and 76 were not used in the reporting period in question. Since its inception on 23 July 2009 there have been to date a total of 259 arrests under section 8 of the Criminal Justice (Amendment) Act 2009.

The Garda authorities devote considerable resources from across the Garda organisation to tackling organised crime and they deserve our praise for the successes they have had. The Commissioner has the Government's full support in tackling these issues. Those involved in organised crime are ruthless people who will stop at nothing to avoid being brought to account for their crimes. Violence and intimidation are a way of life for these people. We, that is, the Government and the Oireachtas, have a duty to make sure the criminal justice system is equipped to prevent them undermining our core values. To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has a means available to it to bring serious criminals to account.

In all the circumstances I consider it necessary to continue section 8 in operation for a further period. The period now proposed will run for 12 months beginning on 30 June 2015. I commend the motion to the House and ask for its support.

I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald, and her officials. I confirm that Fianna Fáil supports the continuance in operation of section 8 of the Criminal Justice (Amendment) Act 2009, which is a vital legislative tool in the battle against organised crime. This Act was introduced by Fianna Fáil in government and has led to a significant reduction in gangland activity. Section 8 allows for the prosecution of individuals before the Special Criminal Court without a jury for directing a criminal organisation, participating in or contributing to the activity of a criminal organisation for the purpose of committing or facilitating the commission of a serious offence and-or committing an offence for a criminal organisation. This is a necessary legislative provision to rebalance the justice system approach in favour of the Garda in the fight against organised crime.

The Criminal Justice Bill was enacted by Fianna Fáil in July 2009 to put in place certain additional legislative measures to tackle organised crime. Among those measures was section 8, which provides that certain organised crime offences under Part 7 of the Criminal Justice Act 2006 are scheduled offences for the purpose of Part 5 of the Offences against the State Act 1939.

The number of arrests under this section is encouraging. It is the proper utilisation by the State of the Special Criminal Courts, non-jury courts, in those situations. The Garda Commissioner and members of An Garda Síochána should be commended on their courageous attack on organised crime throughout the country, particularly in the cities of Dublin and Limerick, which I believe has brought peace to that region.

Any person would be terrified to sit on a jury which is open to inspection and because of the easy access to information now, through the Internet and other methods, it is very easy to trace members of a jury, and those members would be putting their lives at risk in certain cases. That is why I fully support the motion and the fact that we have strong, independent and courageous members of our Judiciary who are prepared to sit in the Special Criminal Court and decide on cases based on the evidence given fairly by An Garda Síochána. This section is very worthwhile.

I avail of the opportunity to inform the Minister that deep concern has been expressed by the Garda Representative Association, GRA, and others about the recent release of an individual, whom I will not name, who was responsible for the tragic death of a young garda. He served a very short time. He finished up in Loughan House, in Cavan, from which he escaped for a period. An Garda Síochána, and the public, are very concerned about this situation and I ask the Minister to consider examining the legislation in this regard. Gardaí need special provision and anyone who is responsible for the death of a garda on duty should be sent to prison for a far longer period. The individual about whom I speak had 91 previous convictions. The Minister may be meeting the members of the GRA to discuss this matter and I know that as an effective Minister for Justice and Equality she will do her utmost, in consultation with her senior officials, the Garda Commissioner, the Attorney General and others, to determine where she can strengthen the law in this regard.

We are very tight on time. As we must conclude by 1.45 p.m., I ask all remaining speakers to keep their contributions short.

I have no problem with that. I support the motion, as does my party. I commend the Minister and the Garda for their work, particularly in my neighbouring city of Limerick where a phenomenal amount of work has been done. The people in Limerick are no longer in fear of their lives when they open their doors. I say "well done" in that regard, and it is essential that we agree to this motion. I could not be more brief.

This motion seems to be even more urgent than the other one because criminal gangs are certainly on the increase. Nothing like this was heard of when I was a young person. People are now prepared to go out and murder. Nice looking young men are hired, and they think nothing of going out, putting a gun to somebody's head, pulling the trigger and blowing the head off the individual. That is a routine activity now. There seems to be no reticence about engaging in this kind of activity. It is horrendous and I do not know what can be done about it. How can people be desensitised to this? Taking another human being's life is the most arrogant act one can possibly perpetrate.

The question of jury tampering and intimidation is another very good point. We have had a number of examples of that and for that reason it is a regrettable necessity that we have to have this kind of legislation involving criminal cases being heard in the Special Criminal Court.

The Minister has said the Garda Commissioner stated this was necessary. What else would she expect? As the Garda will hold on to every power it possibly can, I do not necessarily regard that as an argument. The Minister made some substantial arguments, but while one treats the opinion of the Garda Commissioner with respect, it is what one would anticipate.

It is a regrettable necessity that this legislation is in place. The activities of gangs, particularly in cities like Dublin and Limerick, are quite horrendous and I support the Government in anything it does to stamp them out.

We all recognise the serious threat of organised crime and the destruction and violence that organised gangs have wielded in particular communities. In that context, I am happy to support the motion, but I also welcome the opportunity to review the operation of the legislation every 12 months. Jury trial is a fundamental right and a fundamental part of our criminal justice system, but section 8 provides for it to be bypassed or sidestepped by the Director of Public Prosecutions. I welcome that in the period under review, no cases were sent forward to the Special Criminal Court by the Director of Public Prosecutions in exercising her power under that section, nor was that power exercised in the previous 24 months. That is useful as it indicates the sensible exercise of discretion by the Director of Public Prosecutions and I am happy to support the motion.

Cuirim fáilte roimh an Aire arís. Sinn Féin believes that it is a sad reflection on a government or a state when it has to admit that the courts are unable to deal with individuals who are involved in organised criminal activity. In such circumstances, the state in question has failed to deal with issues like jury intimidation and witness protection. If we are serious about dealing with organised criminal gangs, we need to put more resources in place. For instance, we should not be closing rural Garda stations and reducing the resources available to them. The Minister has said this legislation is just one aspect of the issue. If we are serious about tackling organised crime, however, we must ensure financial resources are invested in front line services and manpower.

I have no doubt people involved in organised criminal activity see the introduction of legislation to ensure they are tried before a special court as an admission of failure. In other words, it means the State has failed to provide protections and safeguards to people who serve on juries. The Special Criminal Court is the wrong way to go. This is not flippantly to disregard the activities of the criminal gangs - far from it - because we understand they cause misery and hardship. We know they destroy whole communities, murder and maim and have no regard for law and order. If we examine best international practice, however, we see that other countries have found more effective ways of dealing with organised criminal gangs that do not involve draconian institutions like the Special Criminal Court. There are better ways of dealing with this issue that do not contravene basic human rights, such as the right to a trial by jury, and which are far more effective in the real and ideological struggle against organised crime. Dá bhrí sin, beimid ag cur i gcoinne an rúin.

It is very interesting to hear the Sinn Féin comments on the Special Criminal Court. I commend the motion and express my support for it. I understand it is a tough task trying to deal with organised crime. My own city of Limerick has been plagued by criminal gangs for a long time. I argue, however, that one of the biggest criminal gangs operating in this country is the Provisional IRA. It is raising large sums of money through fuel laundering, protection rackets and so forth and has absolutely destroyed communities in the Border area. It rules those communities through fear and intimidation. One only needs to look at the case of young Paul Quinn to see the savagery these animals inflict. The only way that any court could possibly deal with people like that is through the methods provided for in this legislation and for that reason I commend the motion.

I thank Senators for their comments and support. I reassure the House that An Garda Síochána will continue to bear down heavily on the activities of those involved, with particular emphasis on the linked areas of organised, gun and drug related crime. None of us, as public representatives, can be blind to the pernicious impact that organised crime, especially the drugs trade, has on communities throughout the State. I thank Senators for their support for the legislation.

Homicide rates and related gun crime continue to be monitored very closely by An Garda Síochána, with a view to putting in place appropriate initiatives and operations to target this type of crime and criminality. Operations are ongoing to tackle and dismantle serious and organised crime. These investigations continue to be progressed actively under the daily supervision of local and national Garda management. The decision I took as Minister for Justice and Equality recently to increase recruitment to An Garda Síochána to approximately 550, with 250 new recruits starting in the next few months, will help, as will the investment of additional resources, for example, the sum of €27 million for new Garda vehicles. These additional resources will assist An Garda Síochána in dealing effectively with criminal gangs and organised crime.

Question put.

Will the Senators claiming a division, please, rise?

Senators James Heffernan, David Norris, Trevor Ó Clochartaigh and Kathryn Reilly rose.

As fewer than five Members have risen, I declare the question carried. The names of the dissenting Senators will be recorded in the Journal of Proceedings of Seanad Éireann.

Question declared carried.

Does that mean the Senators support terrorism?

We do not support terrorism, unlike the Senator's lot who came out with Sinn Féin in 1916.

Sitting suspended at 1.50 p.m. and resumed at 2 p.m.