We are resuming consideration of Committee Stage of the Criminal Justice Bill 2004. It is proposed we continue until no later than 7.15 p.m. Is that agreed? Agreed. At the last meeting we commenced consideration of amendment No. 144 tabled by the Minister for Justice, Equality and Law Reform, Deputy McDowell. Amendments Nos. 144 and 145 deal with fireworks. An information note from the Minister was circulated earlier today to members.
Criminal Justice Bill 2004: Committee Stage (Resumed).
At the last meeting we reached amendment No. 144 which makes it an offence to ignite a firework or cause it to be ignited in a public place; to throw, direct or propel an ignited firework at any person or property; or to possess a firework with intent to supply it to another person without being licensed to do so under the 1875 Act. The purpose of these amendments is very limited, perhaps even more limited than the impression I gave on the last occasion. Their sole purpose is to strengthen the enforcement provisions under existing law. Despite their limited nature, a general discussion took place on the last occasion when I indicated to the committee that I would provide a memorandum explaining how the process would operate. I also stated I might produce an amendment to go with it. I have set out in the memorandum details of the current policy and its operation and indicated, in the context of the EU directive on pyrotechnics, that a relaxation of the restriction on the sale of fireworks to the public is being considered.
One of the issues causing confusion is the question of allowing responsible community leaders to purchase fireworks and organise small local fireworks displays around Hallowe'en, for example. My Department takes the view that this is not a runner in the current context. In the context of what is being proposed in the EU directive, only category 1 fireworks will be available for sale to the general public. Such fireworks are for indoor use and would be useless for outdoor displays. Only category 2 fireworks and upwards are for use in outdoor displays and these can be dangerous. Making them available, even to responsible community leaders with no experience of their use, would undoubtedly lead to a serious increase in the number of injuries caused. The current policy of licensing trained operators is the safest way to proceed. If local community leaders wish to organise small displays, they should contact companies with competent operators to provide the service. This means that a scout leader, for example, should not be told that he or she can let off fireworks and bangers etc. in a yard at a scout hall. If a person wishes to do this, personnel should be requested from a company with trained operators to do the work. We live in a highly litigious environment. If a child was burned or injured at one of these events, the cost of insuring such events would be a heavy load for voluntary groups which did not use trained operatives.
On the licensing of displays, we have had discussions with the Department of the Environment, Heritage and Local Government on the question of local authorities, which have responsibility under the planning Acts for event licences, becoming involved. We have also had discussions with the Health and Safety Authority which has responsibility for health and safety issues. We propose, in the context of transposing the EU directive on pyrotechnics, to provide for a full licensing system for operators which will involve both the local authorities and the Health and Safety Authority. The new regime to be provided for in the transposing legislation will allow for a local input via the local authority and quality control through the Health and Safety Authority. The Department has advised that it would be inappropriate for me to bring forward a series of measures in this legislation to bring this about. It has a review in progress of the Explosives Act. The review is being undertaken by a small group within it and its purpose is to restate the 1875 Act. Members of the committee asked for a copy of the Act and I may be able to provide a photocopy. There are two guides to the Act, as fully amended, in the possession of the Department but I do not wish to give up these precious tomes, as I would not trust Deputies to give them back. However, it may be possible to photocopy the material.
The plan is to prepare heads for a completely new and modern explosives Bill and scrap the Victorian Act in its entirety. Our expectation is that the heads for the new legislation will be brought to Government in this calendar year with a view to having it drafted. I am not stating it will be law before the end of the current Dáil, but we will make the transposition in that context.
While I favour the thrust of some of the Minister's proposals regarding fireworks, I still have concerns. By consensus, the existing scenario is highly unsatisfactory as people feel free to disregard the law. When the law is brought into disrepute by being disregarded, something is wrong. The law, dating back to 1875, needs to be upgraded. The question is how best to do it.
Every September and October I receive many complaints about the nuisance caused in many neighbourhoods, particularly in Dublin but in many other parts of the country also. People engage in anti-social behaviour, causing much concern to the elderly, in particular, as well as animals and their owners. There is also the question of the injuries caused. Every year there are injuries requiring the hospitalisation of persons ranging in age from four or five up to 20 years. The Minister noted the last day that Ireland and Greece, the two European countries which have banned fireworks, had the lowest numbers of injuries per head of population in the European Union.
What should we do? We should upgrade the law and the penalties laid down but how will we deal with the problem in locations such as Moore Street and along the Border?
We are upgrading the penalties laid down and also making it an offence to have fireworks for the purpose of supplying them to another. The latter will be an arrestable offence, punishable on indictment by a five-year sentence. We are also endowing gardaí with powers to investigate. Instead of the ridiculous situation where ten shilling fines were imposed, gardaí will now be in a position to do serious investigative damage in respect of people who deal in fireworks.
What the Minister states suggests that, pre-Hallowe'en, there should be an advertising campaign highlighting the new situation, the dangers of injuries and the new penalties. I am at odds with him on the holding of local community displays. If a local community leader is trained to an acceptable standard, he or she, under licence from a local superintendent, should be able to put on some kind of display on certain occasions during the year.
I agree with the Deputy in spirit on that suggestion but it must await the amending legislation. I do not propose to introduce a new provision to that effect in this Bill, which, I hope, will become law this summer. I hope the process of reform of the Explosives Acts will start with the heads of a Bill coming to Government in December. I am not, therefore, in a position to include new, local provisions at this stage.
The Minister will have done some groundwork before the changeover.
That is correct. It will all be Deputy Jim O'Keeffe's problem.
I will not press the issue further at this stage.
Perhaps it will be the problem of somebody who is not a Member of the House. A guest on "The Late Late Show" expressed great ambitions to hold ministerial office.
I have a feeling he did not do himself any favours.
He was in the Labour Party, was then an independent candidate and is now with Deputy Jim O'Keeffe's party.
I will make a few general points on the amendments. I thank the Minister for the briefing notes, which are very helpful. It is unusual to attempt to amend sections of a Bill we have not seen. It is obviously too precious to share with us.
It is in the Oireachtas Library.
It is like the third secret of Fatima. I will ask a few general questions on the portion of the section the Minister replicated in his note. When the Irish State was established, were the references to the UK changed to "Ireland"?
In the early years of the Free State, the Adaptation of Enactments Act 1922 made certain changes, such as substituting the title "Minister for Home Affairs", or whatever was appropriate, for that of "Lord Lieutenant".
"Secretary of State" became "Minister".
Yes, and references to the United Kingdom were changed to Ireland in various contexts.
Is importation from the United Kingdom covered by that?
I accept that the Minister will deal with most of the issues we discussed on the previous occasion in separate legislation that is yet to come before us. Since we are updating the penalties relating to possession for sale of fireworks, will those penalties apply to each of the four categories to which the Minister referred? I presume the lowest grade, namely, fireworks for indoor display, refers to sparklers, etc.
Sparklers and party poppers.
Are they covered?
They are excluded. Category 1 fireworks fall outside this offence.
The arrestable offences.
With the exception of bangers.
It makes eminent sense to do that. Bangers are the greatest nuisance on Hallowe'en and cause huge annoyance. Will possession of bangers for sale be treated the same as possession of rockets for sale, once the legislation is enacted?
With that clarification, I am content to support the Minister.
On the clarification the Minister sent to the select committee, one offence is of throwing fireworks at persons or property. A television programme recently showed children lighting a banger and throwing it for a dog to recover. The dog's jaw was destroyed. Would such a situation be included under what is disallowed?
The very possession of a banger will be an offence. The case to which the Chairman referred would probably be dealt with under legislation relating to cruelty to animals. I do not know whether a dog would qualify as property, or whether throwing a banger for a dog to recover would constitute throwing it at a dog. It is, however, an issue of cruelty.
Deputy Jim O'Keeffe mentioned it. Animals are treated in this way on a regular basis at Hallowe'en.
It would be an offence to light a prohibited firework in public.
It is not enough to deal with lighting it — the consequences must be taken into account.
That would probably be dealt with under cruelty legislation.
I have one further question. The Minister stated that nine licensed companies provide commercial fireworks. How does a company become licensed? Is there a training regime? How does the Minister determine who is competent? Some of these displays can be very elaborate, ranging from a small local display for a wedding to a major festival opening. Is it simply a matter of somebody establishing a company and applying for a licence or are criteria laid down and, if so, what are they?
They might be suitable people to provide a day's training for local community leaders if the idea I put forward is ultimately adopted.
I support amendment No. 146 because it is sensible. The Chairman mentioned the treatment of dogs. However, the greatest concern in my constituency is the use of bangers against people, particularly the elderly. Bangers are often put through letterboxes in old folks' homes, flat complexes and city council project areas, where they explode. This has caused massive problems and much fear and tension among the elderly.
My second question relates to the implemention of the law. Many parents participate in fireworks shows, particularly at Hallowe'en, and I wonder how the Minister proposes to enforce the legislation. I have seen parents in my constituency become directly involved in the use of bangers and other dangerous weapons. They seem dangerous to me, though I understand the need to have celebrations and fun. I have seen it in other countries, for example, France, where the population of entire villages gather in squares or on football fields for properly supervised fireworks displays on Bastille Day and at other times. Many parents in Ireland light fireworks willy-nilly. When one thinks of the other crime issues with which we are faced, can the Minister be confident that the legislation will be implemented? Fireworks will not figure highly on the scale of priorities.
I will answer Deputy Howlin's question on how the current system works. The licensing is not satisfactory and statutory criteria are not laid down. For example, competence levels are not explicitly covered. The nine licensed persons to whom he referred operate under an unspecific licensing regime. It is unsatisfactory and the legislation we have in mind will require health and safety issues to be dealt with, perhaps by the Health and Safety Authority or its involvement in the licensing process. There must be standards; one cannot have a child come in off the street and ask for a licence.
In the interim what criteria does the Minister use to issue a refusal or does he refuse anybody?
I do not wish to be too detailed about the criteria. There are licensed importers and if people start to apply for licences, they might find that the file is lost for a while, if they do not come up to scratch.
Strike from the record.
It is unsatisfactory.
I agree with Deputy McGrath that the use of fireworks to frighten elderly people is a serious problem. It causes a degree of psychological apprehension which seriously diminishes the quality of many elderly people's lives in the run-up to Hallowe'en. That is not to say that if this is law by the summer, there will be no sound of fireworks or sight of rockets in Dublin in the autumn but the Garda will have the capacity to act against significant trade in these items. Obviously, some will unlawfully bring in small quantities and it will be difficult to prevent this. The Garda has limited resources and preventing everybody from letting off a banger will be difficult. However, availability is one of the main issues.
I accept Deputy O'Keeffe's point that an advertising and publicity programme would be appropriate, not in the week before Hallowe'en because that would be too late but in September. It should explain to parents what can and cannot be done and tell the public that children cannot expect to go to Moore Street and find fireworks under the oranges and apples. It will be a serious offence for somebody to have fireworks available in that context.
It should be highlighted every year that serious injuries arise from the use of fireworks.
That is true. Obviously, we are torn between liberalism and paternalism on this issue. If the committee passed an amendment stating no child should ever get on a bicycle, it would save many children from injury but we must adopt a common sense approach to these matters.
I am prepared to agree to the amendment. Perhaps the Minister will examine my amendments to the amendment, particularly two of them, as possible improvements. However, they are largely technical in nature. On that basis I will withdraw my amendments to the amendment.
Amendment No. 289 is related to amendment No. 145. Is it agreed that amendments Nos. 145 and 289 may be discussed together? Agreed.
I move amendment No. 145:
In page 25, before section 24, but in Part 4, to insert the following new section:
"68.—Each provision of the Explosives Act 1875 specified in Schedule 2 to the Criminal Justice Act 2006 is amended in the manner specified in the third and fourth columns opposite the mention of that provision in the first column of that Schedule.".
This is an amendment to insert a Schedule which is set out in amendment No. 289, the purpose of which is to increase the penalties in the manner set out in column No. 4 and to delete the penalties in column No. 3.
I move amendment No. 146:
"69.—(1) In this Part—
"act" includes omission and a reference to the commission or doing of an act includes a reference to the making of an omission;
"criminal organisation" means a structured group, however organised, that—
(a) is composed of 3 or more persons acting in concert,
(b) is established over a period of time,
(c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;
"Irish ship" has the meaning it has in section 9 of the Mercantile Marine Act 1955;
"serious offence" means an offence for which a person may be punished by imprisonment for a term of 4 years or more;
"structured group" means a group that—
(a) is not randomly formed for the immediate commission of a single offence, and
(b) does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
(2) For the purposes of this section facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.".
This amendment is a provision inserting a new Part 7 into the Bill dealing with organised crime and providing for the interpretation of certain terms used throughout this Part which introduces a number of provisions relating to organised crime, in particular the creation of three new offences targeting the activities of those involved in a criminal organisation and those who may commit offences for the benefit of a criminal organisation. These provisions provide for the transposition of our obligations under the United Nations Convention Against Transnational Organised Crime and also the EU joint action on making it a criminal offence to participate in a criminal organisation.
A proposal for a Council framework decision on the fight against organised crime was placed before the Justice and Home Affairs Council on 28 April. At that meeting a consensus was reached on the content of the proposed instrument and the proposed framework decision will, when adopted, supersede the European joint action. Subject to an examination of the final text of the framework decision, the proposals for inclusion in this Bill are designed to enable Ireland to meet its obligations under the framework decision. We are moving ahead of our European partners, subject to examining the final text submitted at the Council meeting in Brussels.
The interpretation provision is key to the understanding of certain offences which this Part creates, in particular, the offence of organised crime and the commission of an offence for a criminal organisation. The committee will note that there has been a tightening of the definition proposal since my proposed amendments were first published in November 2005. In the intervening period I returned to the definitions to bring them more into line with the wording of the relevant international agreements. I did so because the original definitions reflected to a greater extent the Canadian provisions and, since that time, case law in that jurisdiction identified certain difficulties with the original Canadian definitions. The committee will also be aware that this issue was highlighted in the observations of the Irish Human Rights Commission. I am grateful to the commission for the work it did in this area and I am happy to take its analysis on board.
Subsection (1) provides that an act includes an omission and a reference to the commission or doing of an act includes a reference to the making of an omission. "Criminal organisation" is defined as a structured group, however organised, that, first, is composed of three or more persons acting in concert — therefore, two people do not comprise a criminal organisation; second, must be established over a period of time and, third, must have as its main purpose or activity the commission or facilitation of one or more serious offences to obtain, directly or indirectly, a financial or other material benefit. This definition has been redrafted since I published it in November last year to bring it into line with the relevant articles of the UN convention, the joint action and, I hope, the framework decision. In particular, it has been amended to include a reference to a structured group, to provide that the persons concerned are acting in concert, to provide that the purpose or main activity of the organisation relating to the commission or facilitation of offences must be for the purpose of financial or other material benefit and to provide that the purpose or main activity of the group is the offending behaviour. It does not include, for example, what would be described as a terrorist group. That is not organised crime for the purposes of this provision.
I can give an example. If the Animal Liberation Front was to engage in concerted action, it would not come within the definition of organised crime unless it also profited from its activities.
Is there not another offence of conspiracy that is applicable?
There is terrorism and conspiracy. This definition had to be tightened. My original proposals closely followed the provisions of the Canadian criminal code. Developments have taken place in Canadian case law, particularly the judgment of the Supreme Court in the case of the Crown v. Accused No. 1 and Accused No. 2 in December 2005. In that case, the court considered the relevant provision of the Canadian criminal code and raised some concerns regarding the vagueness of the definition in those provisions. This particular case was highlighted by the Human Rights Commission in its observation on the amendments, which I have published. The commission commented that if, in principle, the legislative provisions are to be adopted, it recommends that the definition of a criminal organisation should be in line with the definition contained in the UN convention and the EU joint action. I am taking the recommendation on board.
An Irish ship is defined for the purpose of the Bill as having the same meaning as in section 9 of the Mercantile Marine Act 1955. Serious offence for the purpose of this part of the Bill means an offence punishable by imprisonment for four years or more. This is not the same as the ordinary Irish definition of a serious offence, which is commonly defined as five years or more.
Why is that?
We are obliged under the UN convention to use the four years or more threshold. The UN must not read its copy of the Irish Statute Book. I do not want to be accused by the UN of breaching its convention by putting in place a higher threshold. The same threshold is contained in the EU joint action on participation in criminal organisation. A more meaningful threshold would have been five years or more but, due to international obligations, we have opted for the four years threshold.
A structured group means a group that is not randomly formed for the immediate commission of a single offence. It does not have to have formally defined roles for its members, continuity of its membership or a developed structure. This reflects the definition in the UN convention.
Subsection (2) of the new section interprets the term "facilitation of an offence" as having two elements that are applicable. First, there must be knowledge of a particular offence, the commission of which is facilitated. Let us consider, for example, the case of an individual who assembles weapons or explosives. While they may be used to blow, for example, a safe, it does not have to be proven that the individual concerned had formed the crystalised inception that a safe would be targeted. Second, an offence does not need to have been committed. Preparatory acts can be facilitated even though an offence might never have been carried out. That is in line with the law on bail. One of the grounds for denial of bail is if a court regards it as reasonably necessary to prevent the commission of another serious offence. Under the law on bail, it does not have to be proven what particular offence could be carried out. Under the Constitution, a court can refuse bail if there is the likelihood of an indefinite offence being committed.
I do not propose to accept Deputy Ó Snodaigh's amendment to delete subsection (2). The latter is necessary from a drafting perspective in light of the definition of criminal organisation contained in this section, which makes reference to facilitation of one or more serious offences. It is integral to the definition of criminal organisation that facilitation must be dealt with. We cannot walk away from what facilitation means.
It is also essential from a substantive perspective. If subsection (2) were deleted, the question of proof of knowledge of a particular offence and the proof of the commission of a criminal offence would arise in order to successfully prosecute a person for an offence or in respect of participation in a criminal organisation. In that event, we are adding layers that would make it too difficult to prosecute and the provision would become unworkable. Subsection (2) is necessary to ensure that prosecutions for the relevant offences can be brought forward.
The offence provided for in amendment No. 148 requires the individual to knowingly participate or contribute to the activity of any organisation for the purpose of enhancing the ability of a criminal organisation to commit crimes. Individuals who knowingly engage in such actions deserve to be subjected to criminal sanctions. This provision is modelled on a similar provision in the Canadian legal code. It could relate to opening bank accounts in anticipation of money laundering the proceeds of a bank robbery.
Article 2(1)(a) of the joint action requires knowledge of one of two matters, namely, the aim and general criminal activities of the organisations or the intention of the organisation to commit the offences in question. The joint action does not, subject to the general principles of criminal law of the member states concerned, require the commission of an actual specified offence.
Amendment No. 147 intends to give effect to the conspiracy aspect of Article 2 of the joint action on participation in criminal organisations and Article 5 of the UN convention. The common law offence of conspiracy covers conspiracies committed abroad to commit an act in the State but not conspiracies committed in Ireland to commit an act abroad. Under common law, conspiracy to commit an unlawful act in Ireland is criminal if either the whole or part of the conspiracy take place here or if the entire conspiracy takes place abroad but is done with a view to committing an unlawful act in this country. Extraterritorial jurisdiction hinges on the proposition that the acts towards which a conspiracy is directed would take place in Ireland. In order to meet international obligations, an offence of conspiracy must be created which encompasses a conspiracy to commit a serious offence whether it is committed inside or outside the State. It is, therefore, necessary to provide for extraterritorial jurisdiction in respect of conspiracy where the conspiring takes place outside the State and to take jurisdiction in line with the specific circumstances set out in the UN convention.
The proposed provision entails some partial restatement of the existing law. Subsection (1) provides that a person who conspires, whether inside the State or elsewhere, with one or more other persons to commit in the State an act that constitutes a serious offence, or in a place outside the State which would constitute a serious offence under the law of that place and if done in the State would constitute a serious offence under Irish law is guilty of an offence, irrespective of whether such an act takes place. This is a dual criminality requirement.
It would be doubly unlawful.
Yes. Let us consider the converse of this. It would not be unlawful for people to sit around a table in Ireland planning to carry out some activity that is legal in England but illegal in Ireland.
What about vice versa?
I do not want to agree to that.
If it was lawful——
It needs to be both unlawful in Ireland and unlawful in England before a criminal offence is committed by sitting around a table and planning it.
The conspiracy may take place in or outside the State and the act may also be planned in or outside the State. The offence, however, is subject to the provisions of subsections (2) and (3) that deal with extraterritorial jurisdiction. Subsection (2) provides for extraterritorial effect which is in line the provisions of Article 15 of the convention. That article provides that each state shall establish its jurisdiction over offences committed in the territory of the state, on board a vessel flying the flag of that state party or an aircraft registered in the state.
Article 15 provides that a state may take jurisdiction over offences committed outside that state in the certain circumstances. The first of these is where the serious offence that, subject to the conspiracy, is committed or intended to be committed against a national of the state, is committed by a national of the state or by a stateless person who has his or her habitual residence in the state. Article 15 also provides that the State may take jurisdiction over offences committed outside the State in circumstances where the alleged offender is present in the State and the State does not extradite him or her. If extradition is refused, we can assume extraterritorial jurisdiction. Specific provision is made for this in subsection (3).
Subsection (3) provides that the DPP may not take or consent to the taking of proceedings except as authorised by section 73(3). Section 73(3) provides that the proceedings may be taken in circumstances where an extradition order under the Extradition Act has been made and refused or where a European arrest warrant has been received and a final determination has been made that it should not be endorsed, or, because of special circumstances, it is expedient that proceedings be taken against the person. Those are the two preconditions for the DPP taking proceedings under subsection (3).
Subsection (4) states that a person prosecuted for an offence under this section is liable to indicted, tried and punished as the principal offender. The range of sanctions that apply to the offence that is the subject of the conspiracy will apply to the conspiracy offence. This reflects current practice in the offence of conspiracy.
Subsection (5) provides a definition of "stateless person" when he or she is considered to be habitually resident in the State. This is a standard definition that also appears in the Criminal Justice (Terrorist Offences) Act 2005.
Amendment No. 148 provides for a new offence of knowingly contributing to or participating in any activity of a criminal organisation for the purpose of enhancing the ability of the organisation to commit or facilitate a serious offence. This provision is based on the provisions of the Canadian criminal code and also draws on the relevant provisions in the joint action and Article 5 of the UN convention. The committee will recall that I have spoken previously about the real problem that exists in this sort of offence, in particular that relationships in criminal organisations are frequently fluid, complex and more a state of mind than of fact. Prosecution of an offence of this nature will be challenging and proving it will be difficult. On balance, however, there is value in having this offence on the Statute Book, even if the circumstances under which it may be prosecuted are comparatively rare. The most likely offence that occurs to me would involve a supergrass who gives a long account of what he or she did and saw. Proving these offences extraneously through the presentation of concrete evidence will always be difficult.
Subsection (1) provides that a person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate a serious offence in the State or, in certain circumstances, outside it, knowingly participates in or contributes to any activity of that organisation shall be guilty of an offence. In circumstances where the purpose is to enhance the ability of the organisation to commit or facilitate a serious offence in the State, the participation or contribution may have occurred anywhere inside or outside the State. Any participation or contribution of this nature may enhance the ability of a criminal organisation to commit or facilitate a serious offence in the State and it will be an offence regardless of where it is committed. Returning to my example, if someone is arrested and brought to Ireland, and it is proven that he or she set up a series of bank accounts to launder the proceeds of a crime committed in Ireland by a criminal organisation, that person will, even though everything he or she did was outside the State, be liable to prosecution. In circumstances where the purpose is to enhance the ability of an organisation to commit an offence outside the State, the participation must occur in the State, on board an Irish ship or on an aircraft registered in the State.
The extraterritorial effect that has been provided has strong links to the territory of the State. Where the participation or contribution has taken place outside the State, jurisdiction may only be taken in circumstances where the participation or contribution is for the purpose of enhancing the ability of the organisation to commit an offence in the State or where the participation or contribution has taken place on board an Irish ship or aircraft registered in the State.
Subsection (2) provides that in proceedings for an offence under subsection (1), it is not necessary to prove certain matters. Paragraph (a) provides that it is not necessary to prove that the criminal organisation actually committed a serious offence in or outside the State. Paragraph (b) provides that it is not necessary to prove the participation or contribution actually enhanced the ability of the criminal organisation to commit or facilitate the offence concerned, that is, it was actually successful. Paragraph (c) states that it is not necessary to prove that the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned. These provisions are based on the Canadian code provisions.
Subsection (3) provides that the court, in determining if a person participates or contributes to any activity of a criminal organisation, may consider, among other things, whether he or she used a name, word, symbol or other representation that identifies or is associated with the criminal organisation or where he or she received any benefit from the organisation. This draws on the relevant Canadian law. It is not an exhaustive definition of such things but makes it evidential that if a person uses the name of an organisation in circumstances that make it legitimate to draw the inference that a person is participating, it can be used in evidence against him.
Subsection (4) provides that, for the purpose of this section, facilitation of an offence does not require knowledge of any particular offence.
Subsection (5) states that a person guilty of an offence is liable on conviction to a term not exceeding five years. Under this part of the Bill, a serious offence carries a penalty of four years but we are providing a penalty of five years in respect of these offences in order to make them arrestable under Irish law.
The Fine Gael amendments to amendment No. 146 use the term "shall be guilty" instead of "is guilty". The phrase "is guilty" is the more modern usage that some of those who work for the Office of the Chief Parliamentary Counsel employ — they prefer the present tense to the future tense. Amendment No. 4 to the amendment proposes to replace the term "or both" with "or to both". This is a matter of drafting style and the policy in the parliamentary draftsman's office is to use the phrase "or both". I hope that is taken on board.
Deputy Ó Snodaigh's amendment No. 2 to amendment No. 146 seeks the deletion of subsection (2) which provides for a series of matters which the prosecution do not have to prove. Amendment No. 3 to the amendment is similar to his amendments to amendment No. 146 in that he deals with the facilitation issues. I have dealt with those two issues. The list of things that do not have to be proved is worthwhile because otherwise there will be argument in court as to what the law means and if it is necessary to prove the matters set out there. I am happier to stand over the proposals as drafted. If the proofs proposed to be deleted by Deputy Ó Snodaigh were deleted, and the court interpreted them as deleted and, therefore, as requisite proofs, there would never be convictions under this Act.
The Supreme Court of British Colombia specifically commented that the constitutional flaw identified in section 467(13) of the Canadian criminal code does not arise in the analogous provisions of this section. The flaw the court identified only applied to the definition section and we have taken that on board. I will not accept amendment No. 3 to the amendment for the reasons outlined.
Amendment No. 149 provides for a new offence with regard to the commission of an indictable offence by a person with the purpose of benefiting a criminal organisation, or committing the offence at the direction of or in association with a criminal organisation. In other words, the person is not a member of the organisation but has committed an offence for it. This offence is modelled on a Canadian provision with the same effect. Subsection (1) provides that a person who commits a serious offence for the benefit of, or at the direction of or in association with, a criminal organisation is guilty of an offence, a serious one as I have defined it. Subsection (2) provides that in proceedings for an offence it shall not be necessary for the prosecution to prove the person concerned knew any of the persons who constituted the criminal organisation concerned. In other words, the person could be acting on written instructions and not know who was behind them. Subsection (3) provides that a person found guilty of this offence is liable to a ten year penalty or a fine, or both.
I have dealt with the drafting amendments proposed by Fine Gael which are similar.
On subsection (2), would a defence of acting under duress be allowed in these circumstances?
This does not affect the law on duress. The defence of acting under duress is available in every case in accordance with common law principles. Subsection (2) provides that the prosecution does not have to prove the person knew any of the persons concerned. It is possible to be acting under duress from people one does not know.
We have recent examples where families were held hostage in the expectation employees would help steal from their employers.
The mere mention of a gang or organisation with a bad reputation in a particular area might force people into doing something they would not normally do.
I do not want to comment broadly on the law on duress as there are textbooks written on it. The amendment does not vitiate the defence of acting under duress.
Deputy Ó Snodaigh, in amendment No. 2 to amendment No. 149, proposes to amend subsection (2) which provides that the prosecution does not have to prove the person knew any of the persons who made up the criminal organisation for which he or she committed a criminal offence. I understand the drift of the Deputy's amendment is to remove all non-proof items, but there is no logical reason for saying a person is more or less guilty or should not be prosecuted because he or she knows or does not know the identity of the people on whose behalf he or she acts.
Amendment No. 150 provides that proceedings for certain offences committed outside the State may only be taken with the consent of the Director of Public Prosecutions, but they may be taken in any place in the State. It also enables people charged with these offences to be tried anywhere in the State. In other words, for extra-territorial jurisdiction to operate, the Director of Public Prosecutions must press the button. We cannot have common informer prosecutions of this kind. The offence can be tried anywhere in the State, not just in the Dublin metropolitan district, as is frequently the case in extra-territorial jurisdiction cases. The process can be started anywhere in the State. The person concerned can be tried anywhere in the State.
Amendment No. 151 provides for evidence by certificate in certain matters arising under this Part and relates to the issuing of a passport. The certificate provides that it was issued to a person on a specified date, that the person has not ceased to be an Irish citizen and that such a certificate should be sufficient evidence until the contrary is shown. Likewise, a certificate signed by the Director of Public Prosecutions or an authorised officer is evidence of the fact stated with regard to matters dealt with in section 73(3), which have to do with jurisdiction and the like. The certificate is sufficient evidence until the contrary is shown. A document purporting to be a certificate is deemed until the contrary is shown to be such a certificate and to have been signed by the person purporting to have signed it. A certificate signed with the authority of the Minister for Foreign Affairs or the Director of Public Prosecutions is deemed to have been signed in accordance with their authority.
Amendment No. 152 is a standard provision which enables persons working in a body corporate, as well as the body corporate itself, to be proceeded against for an offence under the Bill, for example, the opening of bank accounts outside the State for the purpose of laundering money for a robbery or crime to be carried out by a criminal organisation. This section provides that if the bank did this knowingly, it would be liable to be prosecuted. Also, if a manager had personal knowledge of the events, he or she would be liable to prosecution on a personal basis.
Could the phrase "wilful neglect" cause concern that there could be inadvertent assistance?
One does not want a situation where someone should have done something, should have been in his or her office to stop something happening, should have read the file more carefully or should not have been drunk, etc.
Or his daughter was sick on that day. In legal terms, how heavy is "wilful neglect"?
Wilful neglect requires consciousness of a fact. One is aware of the significance of what one is neglecting to do. It is present in the person's mind what the consequence might be. In other words, if a person fell asleep and did not read a file, that would be neglect which could facilitate the commission of an offence. If, however, a person had looked at a file and realised it involved a money laundering activity but decided that because he or she had to go to the cinema it was inconvenient to deal with it——
In legal terms, does the term "wilful" imply knowledge?
It implies more than passive knowledge. It requires an element of will in going along with the consequence. There is wilful neglect where the person fully understands the consequence and is quite happy with it.
The person knows the account he or she is opening is for a criminal gang.
Double jeopardy is provided for in amendment No. 153. Parties to the UN convention and the EU instrument are required to provide for extra-territorial jurisdiction, which means prosecutions for the same act will not be possible in more than one state. This section addresses that possibility by providing that where a person has been acquitted or convicted outside the State of an offence, he or she shall not be proceeded against in this jurisdiction for an act which constituted the offence for which he or she was acquitted elsewhere.
Amendment No. 154 amends the Criminal Procedure Act 1967 in two respects. Paragraph (a) inserts into section 13(1) of the 1967 Act references to offences under sections 70, 71 and 72, the effect of which is that the District Court will not have jurisdiction to deal summarily with such offences or to send somebody forward for sentencing with regard to them. Paragraph (b) inserts a new subsection into paragraph 29(1) of the 1967 Act with the effect that bail may only be granted by the High Court in respect of a person charged with an offence under sections 70, 71 and 72. These are on an analogous level of seriousness with murder where the High Court is the only body which can grant bail.
The Bail Act is dealt with in amendment No. 155. This section amends the Schedule to the Bail Act to provide that offences under sections 70, 71 and 72 will be regarded as serious for the purposes of the Bail Act 1997, thereby enabling the 1996 referendums to have effect.
In general terms I support the Minister's approach. The section is long and convoluted and largely involves a technical reorganisation of the law to deal with conspiracies or those involved in them to commit serious offences, either inside or outside the jurisdiction. I strongly support the Minister's intention in this.
Amendment No. 148 states that a person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate a serious offence in the State or outside the State, knowingly by act participates in or contributes to any activity is guilty of an offence. Subsection (2)(c) states: "the person concerned knew the specific nature of any offence that may have been committed...". Taking these together, for a person to be prosecuted under this provision, he or she must knowingly enhance the ability of a criminal organisation to commit a serious wrong. Is it possible for somebody innocent to be caught up by that form of words, that is, "participates in or contributes to any activity of the organisation"?
It must be for the purpose of enhancing the ability of a criminal organisation to commit or facilitate an offence. The first element of mens rea or guilty mind is that the prosecution would have to prove, on evidence, that the purpose of the person was to enhance the ability of a criminal organisation to commit or facilitate a serious offence in the State or an offence which would, if it was committed in the State——
I understand that. Under that form of words — "A person who, for the purpose of" — it must be the person's intent to enhance the ability knowingly of a criminal organisation to commit a serious crime.
They must be aware of the purpose of what they are doing. That must be their purpose and then they must knowingly by an act participate in or contribute to an activity of the organisation. One could not do it——
One could not provide a safe house, for example.
I will give an example. Let us say I rang Deputy Howlin this morning and said I needed his house for X. The Deputy would not be liable to be prosecuted unless the prosecution established beyond reasonable doubt that he had knowingly participated in or contributed to the action of a criminal organisation and the purpose of what he did was to enhance the ability of the organisation to commit a criminal offence.
One does not have to know the exact nature of the defence. In other words, if I said to Deputy Howlin that I needed a secure room in his house where somebody can be kept in custody for three days, it is not necessary that the Deputy should know who I am planning to kidnap, what type of offence I am involved in or otherwise if the inference can be drawn from the circumstances that the Deputy must have known that a serious offence of some kind was being committed by me.
Is it not possible for somebody innocent to be caught up in that?
I do not believe so. First, it must be for a purpose and, second, it must be knowing participation or contribution to the activity of the organisation.
Subsection (2)(b) states that it shall not be necessary for the prosecution to prove that “the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned”. What must be proved?
I will give an example. Let us suppose that my organisation is robbing banks in Ireland and I ask somebody outside Ireland to open a bank account. If he or she opens a bank account, knowing that I am in the business of robbing banks and that the money will be laundered through the bank account, it is not necessary for the prosecution to prove that it was of any assistance to the organisation in the end. In other words, I might have asked three people to do the same thing but one of the accounts might have been redundant and not availed of.
This is the point I am seeking to clarify. Take the example of somebody innocent who did not, under subsection (2), know the specific nature of the offence. Perhaps he knew that something nefarious was going on but thought it was of no great consequence, although something much more serious was happening. We have seen cases in the United States, for example, where relatives aided something they thought was slightly illegal but actually a major conspiracy was afoot. Would they be caught by that?
I do not believe so. Let us say somebody rang up a person in Paris and asked him or her to open three bank accounts. The attitude of the person in Paris is that the person is up to something such as tax evasion, cheating on his wife or something suspicious. Otherwise, why would he ask the person to open three bank accounts? That is not sufficient. It must be knowingly acting in a manner which participates in or contributes to any activity of an organisation. Second, it must be for the purpose of enhancing the ability of a criminal organisation to commit or facilitate a serious offence.
I am happy with that. Amendment No. 152 deals with wilful neglect and states:
(1) Where an offence under this Part is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
The Minister said this is a standard provision. I recall the debate we held on corporate law when I was spokesperson on enterprise. People could potentially be proceeded against for inadvertence or a neglectful action that would not be a serious crime but could have contributed in a significant way to the commission of a serious offence, for example, neglectfully providing vehicles for a major robbery or a storage facility for the proceeds of crime. Will the Minister reassure us that, again, within this definition we will not capture people who might be, for example, simply stupid or negligent but not wilfully conspiratorial whereby they knew they were part of a major criminal action?
I move amendment No. 1 to amendment No. 146:
In section 69, to delete subsection (2).
The Minister's comments about the intention of my amendments were correct. My intention was to delete those sections. That is in line with submissions from the ICCL and the Human Rights Commission. The Minister referred to the Irish Human Rights Commission. He welcomed its submission and took on board its comments. The commission also questioned whether the provisions in this section were necessary or proportionate responses to the problem of organised crime. By inserting them, the Minister presumes they are but I do not agree.
The commission stated it is "of the view that the activity which is targeted here is already subject to appropriate criminal sanctions, which exist in common law and statute which prohibit conspiracy to commit an offence and prohibit the aiding and abetting, counselling or procuring of an offence". The submission by the ICCL also stated the legislation "is at odds with the Constitution, which protects individuals against the operation of a vague and uncertain criminal law". The Minister said, when the committee held its hearings on the legislation, that he would examine the Canadian criminal code and the offence created there. He also pointed out that the Supreme Court in British Columbia had found parts of the code to be in violation of the Canadian Charter of Rights and Freedoms and he had taken that on board. The flaw found in section 467 was not the only one. A number of problems are still being teased out in the Canadian courts. If the Bill is passed as the Minister has drafted it, these issues will be teased out in the Supreme Court in this jurisdiction. It would have been better to wait for the outcome of the test on the new offence in the Canadian court.
The Constitution requires certainty in law and that offences created by statute should not be ambiguous. The submissions by the ICCL and the IHCR both referred to the desire to avoid ambiguity. The ICCL believes a number of the sections were badly drafted and written in a negative manner meaning that the definition of "criminal organisation" focuses on what a criminal organisation is not rather than what it is. The same applies to prosecutions.
The other problem, which was alluded to by Deputy Howlin, relates to those who are "slightly innocent" getting caught up in prosecution cases. The Minister puts a great deal of faith in the prosecution proving the "knowingly" aspect of cases. That is fine and well but it is of no comfort to somebody who has a charge hanging over him or her because he or she must wait until the case is proven or collapses. The Minister has framed his proposals in such a way that a person could be found guilty of an offence if he or she was babysitting the children of the person accused of the criminal offence because the prosecution would not have to prove a criminal offence was committed. The prosecution could argue his or her actions contributed to and facilitated the committal of the offence, even though he or she might not know the accused was up to no good. The Minister referred to a person cheating on his wife or avoiding tax but if one did not know exactly what was involved, one could be charged, even though the charge might not stand up. We rely a great deal on the DPP to ensure such cases do not go to trial.
Similar legislation has been abused in the past and my amendments would limit the scope for abuse. My preference is to oppose the section because, similar to those who made submissions, I believe sufficient legislation and statutes are in place to prohibit conspiracy to commit an offence or the aiding, abetting, counselling or procuring of offences, as the Irish Human Rights Commission stated. A garda may believe an individual is a member of a criminal gang but some people jump from one gang to another. The Minister said there could be difficulties when he first mooted this proposal to the committee. There may be difficulties tying to ensure prosecutions under the section and the Garda or the DPP could have similar difficulties securing convictions. The ICCL states under the heading "Existing Law is Sufficient" that "individuals conspiring to commit a crime can already be charged with offences under the existing criminal code, for example, the doctrine of joint enterprise, common design and conspiracy as well as common law on incitement. No reasonable justifications can be advanced as to why new offences are required to target members of criminal gangs". The submission then highlights the difficulties that could arise in securing convictions.
The problems that have emerged in securing convictions under current laws are down to a failure to prepare the case properly and to do the appropriate homework. More funding needs to be invested in the Garda to ensure members have adequate resources to prove cases under the existing laws rather than creating another offence and layer of legislation without providing the necessary support and resources for them to undertake more surveillance on individuals suspected of being members of criminal gangs to catch them in the act or, subsequently, with the proceeds of crime. For example, the forensic investigation can prove they were involved in the crimes covered by this section.
This will not deter criminals but that should not prevent us from making good law. We should ensure that gardaí who have been properly trained in Templemore are out on the beat and investigating crimes rather than being tied up in administrative tasks. I have called for more civilian staff to carry out the appropriate tasks in Garda stations. In fairness, the Minister has agreed that this policy must be implemented and he has put in place measures to ensure it will happen.
This is not a proportionate response. The existing law covers most, if not all, of what the Minister proposes in these sections. The public would be better served if the Garda Síochána was provided with better resources to ensure gardaí can use the existing law to do their job. There is a danger that this type of offence would mean that people who unwittingly become involved with gangs, or who facilitate them by babysitting or whatever, might end up paying the price rather than the people who benefited from the offence in the first instance. Rather than targeting those who commit the crime and those who are directly involved in organising criminal gangs, the proposal will occasionally impact on the easy targets.
When the matter was being debated in the committee, there was much discussion about the structure of gangs and so on. I know from my own area in Dublin South Central that many of the characters on whom the media focus jump from one organised gang to another. One week they will be with one gang, and the next week they will be with another. I do not know whether these provisions will be muddied because of people jumping from one gang to another, depending on the side of the bed they get out of. Under the existing legislation, proof that a criminal organisation is involved is not required. It gets on with the job of prosecuting the criminal rather than trying to prove something that is very difficult to prove because none, if any, of these gangs is structured. Gangs may be conveniently formed at the time of a crime and then disbanded. The legislation will be fraught if the provision is included. While the Minister has support for this, I am concerned that it will lead to significant challenges in the future. Perhaps I will be proved wrong.
The concerns I have raised were highlighted in Canada. People asked if this was the appropriate way to tackle the issue and whether the existing law should be tweaked to take account of the new situation. What happened in the Supreme Court in British Columbia proves that the concerns raised in Canada were correct. As time goes on, we will see how many more sections of the Canadian legislation are found to be flawed.
I have forgotten Deputy Howlin's point.
I will restate briefly my three points, which I made a long time ago. I will not go over my concerns about amendment No. 148 because the Minister has dealt with it adequately. My other concern relates to the wilful neglect issue in amendment No. 152 and the impact it might have on a corporate body who, through inadvertence, stupidity or serious neglect, allows a serious criminal act to take place without having any knowledge of it.
My other point relates to amendment No. 153 ensuring no double jeopardy. I would like to get the Minister's view on this issue, because I am not sure it is a good thing. This means that where someone is either convicted or acquitted of an offence outside the State, the State shall not proceed with stating a case within the State on conspiracy to commit the particular offence. I can foresee circumstances where a poor judicial system would acquit people for very serious conspiracies that might cause us great concern and with which we would like to proceed. People might conceivably use this section as a barrier to proper prosecution. Is it possible that rogue states, such as Libya in its heyday, for example, would acquit someone of a crime, which would debar one from taking action within this jurisdiction? I am posing this question so that it can be teased out and responded to.
The general point about extraterritorial jurisdiction is that it always raises the proposition ne bis in idem whereby a person should not be charged twice for the same offence. There is a balance to be struck because obviously there could be dummy trials by rogue states.
The IRA in Libya case, for example.
The evil of that possibility is reduced in that any action carried out in Ireland cannot be the subject of a valid acquittal by an Irish court because it does not depend on extraterritorial jurisdiction——
If, for example, someone went to Libya to procure arms, and there was some mockery of a trial in Libya, if the arms were not imported to Ireland and no offence occurred on Irish soil, could that person be prosecuted as an Irish citizen for conspiring with others to procure munitions?
Yes, if it was a good faith enterprise. What if the person was tried and acquitted on the same facts and the acts of commission occurred outside Ireland.
Is that regardless of the judicial code applied?
If Ireland applied extraterritorial jurisdiction and relied on that to mount a possible second trial, the ne bis in idem rule would apply. We cannot have a situation where somebody would go from one country to another and where each country would prosecute and jail him or her or say it would have a trial because the person had got off previously.
We certainly need that principle, but should we not have a "saver" clause of some description?
I will look at that. Perhaps we should include an "in good faith" requirement so that it would not just be a dummy trial.
I was talking about an accepted judicial process.
We cannot quality proof trials in foreign states.
Is there a recognised standard?
Perhaps we should include the words "bona fide" to cover the point made by Deputy Howlin.
I will consider that. It is not easy to arrive at an objective standard such as that it is ECHR compliant or consistent with our Constitution. That would not be practical.
If, for example, a Sharia court in Nigeria determined that no offence was committed in a case of serious exploitation of women such as genital mutilation, would that debar us from taking a case.
If the physical act of genital mutilation took place in Nigeria——
What if the Nigerian woman involved was an Irish citizen?
With regard to criminal acts committed elsewhere, Irish citizens are generally not liable to prosecution in the Irish courts. There are exceptions to this, for example murder. An Irish citizen is liable to be tried in Ireland for a murder committed anywhere in the world. The case is the same with regard to sex tourism and we have had a specific statutory change to cover that. In general terms, if an Irish citizen clocks a bartender in Barcelona, there is no offence under Irish law. Likewise, if an Irish citizen engaged in female genital mutilation in sub-Saharan Africa, that person would not be liable by virtue of being an Irish citizen to be prosecuted for that action just because the victim subsequently came to Ireland and reported what the person did.
Let me put the case. This is a real issue. Suppose a family here felt a young girl should be subjected to this mutilation and conspired with others to transport her, perhaps against her or her mother's will, to Nigeria for the procedure——
In so far as that conspiracy happened in Ireland, it would be subject to prosecution in the Irish courts. The act of conspiracy would be prosecutable here.
As a specific example, if an Irish family that believed in female genital mutilation conspired to have the daughter taken against her will to some place where this procedure is carried out normally and it was done, and if in that place it was not an offence, the fact they were acquitted in that place of a charge of carrying out the mutilation would not avail them in Ireland against the Irish court charging them with conspiracy within Ireland to carry out an offence if——
Is the Minister sure about that?
——it was an offence to take the child out of the country or kidnap the child.
It would not be an offence.
No, that is the point. There are many things we cannot stop happening abroad, not to mention abortion. We would usually frown on arranged marriages and children being brought out of Ireland to south Asia to be married off to people or vice versa. We live in a complex world and criminal jurisdiction is limited in its scope. If, for example, a child was brought to south Asia for an arranged marriage and refused to take part in it and was then kidnapped and kept in custody in a place such as Pakistan or Afghanistan before coming back here, and if whatever was done was not a crime committed on Irish soil, the only circumstance in which the Irish courts would become involved would be if we claimed some kind of extraterritorial jurisdiction to deal with such cases whether committed in Ireland or abroad.
We could, for instance, have a female genital mutilation Act which would make it an offence for anybody to remove a child from Ireland for the purpose of having a female genital mutilation procedure carried out elsewhere. We could also have an extra-territorial offence to the effect that any Irish citizen anywhere in the world who engaged in female genital mutilation was guilty of an offence and liable to prosecution in Ireland. However, it is highly unlikely that we would say that any person in Africa who ever carried out female genital mutilation who happened to fly through Dublin Airport could be arrested.
That is not the point. I am more concerned about Irish citizens, perhaps new Irish citizens, who would be transported back lawfully.
Our choice, therefore, is whether to specify an offence in Irish law, such as taking an Irish citizen out of Ireland for the purpose of female genital mutilation.
I understand there is the offence of female genital mutilation in Irish law.
Taking a child out of Ireland to somewhere where it is not an offence could be criminalised if we wanted to do it.
Could the person be sanitised from prosecution here on acquittal elsewhere?
No, because the offence would have to be an extraterritorial offence of arranging female genital mutilation anywhere in the world or it would have to involve doing something in Ireland, such as removing the child or making arrangements in Ireland for that to happen and that would have to be an offence under Irish law.
I will return to the point raised by Deputy Ó Snodaigh. The genesis of this section was that there was strong pressure in this committee for organised crime to be criminalised. I acted to some extent as devil's advocate by saying we should forget about including gangs. As Deputy Ó Snodaigh said, a gang is not usually part of organised crime. Three fellows in any part of Dublin who regularly commit bank robberies are not part of organised crime within any of the internationally accepted definitions. Therefore, we are not dealing with gangs of a crude casual nature but with structured criminal organisations.
We are party to an international convention, we also have a European Union joint action and there is likely to be a European Union framework declaration. The Human Rights Commission has taken two positions on this. First, it wants us to ensure what we are doing is correct. Second it has taken a fall-back position, to which the Deputy referred, asking why we should do this since we could probably catch people for the same crimes under equivalent domestic legislation. We have passed that point. I do not propose to go to the UN and say that we cannot improve on our domestic law and that the UN convention will have to be realised in Ireland by means of ordinary use of domestic procedures. I would not get away with that in the context of what is happening in Europe.
We did it for 50 years under the European Convention on Human Rights.
Yes. We had a far better record than most states that enshrined it and put little flowers and candles in front of it. A lot of states put a great deal of effort into saying it was fully incorporated into their law but they kept infringing it, whereas Ireland's record has been very good.
In answer to Deputy Ó Snodaigh, the Human Rights Commission and the ICCL arguments are directed towards the proposition that all of this is redundant or so vague as to be meaningless. I do not think that what we propose is so vague as to be meaningless but I share the Deputy's view that the circumstances in which these provisions are likely to come into operation will be rare because the evidential basis will be difficult. Nonetheless, I can imagine circumstances in which the equivalent of a supergrass could say that for the past five years he or she had seen A, B and C happening and that he or she had seen money going from this casino to that brothel and from this drug heist to that place, that he has noticed everything that happened, that he knows that the capo di tutti of the organisation is a particular person and that he is aware that five individuals — each of whom specialises in operating brothels or some other activity — meet every month to discuss the proceeds accrued by the organisation. This kind of evidence could convict them all and could convict the lawyers who assisted them if there was evidence that the accountants and lawyers who helped this mini-Mafia to operate——
We never know where those supergrasses might be or what senior positions they might hold in an organisation.
I take the Deputy's point.
One never knows. They might be leaders of parties.
I am looking forward to the evidence.
We will not revisit the 1980s and the printing presses.
I ask the Deputy to send it on to me.
The Minister indicated that this relates to criminal organisations. The term "structured group" is outlined used and refers to three or more people acting in concert.
Before the Deputy comments on what I said, I have a full appreciation of the limitations of this exercise and I am not claiming that it will wipe out organised crime in Ireland.
We have tried to take on board the issue of vagueness or non-vagueness as considered by the Supreme Court of British Columbia. I do not know whether an Irish court would follow the vagueness argument. I presume some offences must be theoretically capable of being enacted or the legislation would be so vague as to infringe the constitutional requirement for clarity. I have no doubt that it is not a definitional non-runner in Irish jurisprudence.
If legislation is ambiguous and two reasonable constructions are capable of being made, then it is a canon of construction of criminal law in Ireland that the construction more favourable to innocence must be followed. Another canon of construction is that a constitutional construction must be given to any statute. There may be two ways of considering a particular section, one of which might be to the effect that anybody, even a janitor in an office building, could be caught up in matters. The second way might be to state that the section in question does not involve tying in cleaning staff of an office to what goes on in the board room. In such circumstances and on constitutional principles — the rule of double construction — it must be given a constitutional meaning. I do not know whether the Canadians have a constitutional construction route but I presume they must have something analogous to it.
In a criminal law context, these rules of construction would avail a person who was indicted for one of these offences. If those rules being applied to the statute would not save the constitutionality thereof by virtue of either its complete vagueness in any event or the fact that nobody going down the street would know whether they were committing an offence, then it would have to be very vague. I have tried to meet the criticisms that have been made at one level by the Human Rights Commission. However, on the broader issue, I ask whether this is worth the candle because we are past that point. That is the point I am making. It is not sustainable to say at this stage that we should forget about it because we are better off with the law as it stands. I genuinely believe that we can make some provisions of this kind in vindication of our obligations under the UN convention and that we can extend Irish law further than it is at present without committing the sin identified by the Supreme Court of British Columbia of making a completely subjective and utterly vague statutory criminalisation of a myriad of different behaviours.
I take on board the Minister's arguments. There is a wariness about going down this road that has been expressed by some of the people who made submissions to the committee. This concern was reflected in the two submissions with which I dealt. The Human Rights Commission has a fall-back position because it can object to something in the first instance but those who work for the commission are also realists when they want to deal with matters with which they are presented. This means that if the Bill is enacted, the commission will have made the best of a bad situation.
The definition of criminal organisation is very loose in terms of its construction. It states that such an organisation is composed of three or more people acting in concert and must be established over a period of time. Such a period could be an hour, a minute, a week or whatever because a definition is not provided. If three people were to come together and decide to rob three pharmacies, there would be three crimes involved. Would those individuals come to compose a criminal organisation? I am not trying to make it easier for the vicious armed gangs of drug dealers that have been rampaging throughout the country and communities for years because they need to be tackled head on and resources must be provided. The Veronica Guerin case shows that the use of supergrasses — evidence of many faults have emerged in respect of the use of such individuals in that case — is adequately covered in Irish law. The courts were able to use a supergrass and they were able to construct a case that there was a criminal organisation involved in a criminal conspiracy aimed at killing Veronica Guerin. If this goes ahead I hope it will have the desired effect the Minister has set out. We in the committee want to see the criminal organisations tackled. It is important that the people mentioned by Deputy Howlin and me are not dragged into the net because of the loose construction of the provision. Some of the provisions are very vague, for example the period of time. Does it need to be more than one minute, ten minutes, one week or whatever? We accept that a criminal organisation does not have the structure of other organisations. It does not have a chairperson, secretary etc. It might have a finance officer and somebody in charge of the weaponry etc. Usually any such organisation even a small armed gang of drug dealers has some kind of structure with different people having specific responsibilities.
There is sufficient law in this regard. The Minister has failed to demonstrate how the existing law has been deficient. Usually there is insufficient evidence or the case has been badly constructed. The informer or supergrass might have been caught out in his or her statements, which cannot stand up to cross-examination. That is where the fault has lain up to now and we need to tighten up that area. We need to ensure that when cases are taken they are the best possible cases and that they have some chance of success. Otherwise we will come under pressure from the public to create more laws rather than resource the DPP and the courts to deal properly with these cases.
I will take one comment from Deputy Jim O'Keeffe and then we will tidy up the section.
It is in the matter of tidying up that I want to make my comment. I have listened ad nauseam to comments on this matter. I have long pressed for a provision to allow us to establish an offence. While it is not my everyday wont to hand out compliments to the Minister, he has made an honest effort to try to get it together in this section. Various issues have been raised and between now and Report Stage it would be appropriate to reflect on those issues to see if it is necessary and possible to tighten up the provision further. Nobody pretended it would be easy to introduce this provision. In the circumstances I am prepared to go along with this part of the Bill and withdraw the few amendments I have tabled.
I move amendment No. 147:
In page 25, before section 24, but in Part 4, to insert the following new section:
"70.—(1) Subject to subsections (2) and (3), a person who conspires, whether in the State or elsewhere, with one or more persons to do an act—
(a) in the State that constitutes a serious offence, or
(b) in a place outside the State that constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence, is guilty of an offence irrespective of whether such act actually takes place or not.
(2) Subsection (1) applies to a conspiracy committed outside the State if—
(a) the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland,
(b) the conspiracy is committed on board an Irish ship,
(c) the conspiracy is committed on an aircraft registered in the State, or
(d) the conspiracy is committed by an Irish citizen or a stateless person habitually resident in the State.
(3) Subsection (1) shall also apply to a conspiracy committed outside the State in circumstances other than those referred to in subsection (2), but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings for an offence under subsection (1) except in accordance with section 73(3).
(4) A person charged with an offence under this section is liable to be indicted, tried and punished as a principal offender.
(5) A stateless person who has his or her principal residence in the State for the 12 months immediately preceding the commission of a conspiracy is, for the purposes of subsection (2), considered to be habitually resident in the State on the date of the commission of the conspiracy.”.
I move amendment No. 148:
In page 25, before section 24, but in Part 4, to insert the following new section:
"71.—(1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate—
(a) a serious offence in the State, or
(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence, knowingly, by act—
(i) in a case to which paragraph (a) applies, whether done in or outside the State, and
(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State, participates in or contributes to any activity of the organisation is guilty of an offence.
(2) In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that—
(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,
(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or
(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.
(3) In determining whether a person participates in or contributes to any activity of a criminal organisation, the court may consider, inter alia, whether the person—
(a) uses a name, word, symbol or other representation that identifies, or is associated with, the organisation, or
(b) receives any benefit from the organisation.
(4) For the purposes of this section, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
(5) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.".
I move amendment No. 1 to amendment No. 148:
In section 71(1) to delete "is guilty" and substitute "shall be guilty".
Perhaps the Parliamentary Counsel might consider this matter between now and Report Stage.
I move amendment No. 2 to amendment No. 148:
In section 71, to delete subsection (2).
I move amendment No. 3 to amendment No. 148:
In section 71, to delete subsection (4).
I move amendment No. 149:
In page 25, before section 24, but in Part 4, to insert the following new section:
"72.—(1) A person who commits a serious offence for the benefit of, at the direction of, or in association with, a criminal organisation is guilty of an offence.
(2) In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that the person concerned knew any of the persons who constitute the criminal organisation concerned.
(3) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.".
I move amendment No. 1 to amendment No. 149:
In section 72, to delete subsection (1) and substitute the following:
"72.—(1) A person who commits a serious offence for the benefit of, at the direction of, or in association with, a criminal organisation shall be guilty of an offence.".
This is a technical amendment for consideration by the Parliamentary Counsel.
I move amendment No. 2 to amendment No. 149:
In section 72, to delete subsection (2).
I move amendment No. 150:
In page 25, before section 24, but in Part 4, to insert the following new section:
"73.—(1) Proceedings for an offence under section 70 or 71 in relation to an act committed outside the State may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.
(2) Where a person is charged with an offence referred to in subsection (1), no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by or with the consent of the Director of Public Prosecutions.
(3) The Director of Public Prosecutions may take, or consent to the taking of, further proceedings against a person for an offence in respect of an act to which subsection (1) of section 70 applies and that is committed outside the State in the circumstances referred to in subsection (3) of that section if satisfied—
(i) a request for a person's surrender for the purpose of trying him or her for an offence in respect of that act has been made under Part II of the Extradition Act 1965 by any country, and
(ii) the request has been finally refused (whether as a result of a decision of the court or otherwise),
(i) a European arrest warrant has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of that act, and
(ii) a final determination has been made that the European arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing state concerned,
(c) that, because of the special circumstances (including, but not limited to, the likelihood of a refusal referred to in paragraph (a)(ii) or a determination referred to in paragraph (b)(ii)), it is expedient that proceedings be taken against the person for an offence under the law of the State in respect of the act.
(4) In this section "European arrest warrant" and "issuing state" have the meanings they have in section 2(1) of the European Arrest Warrant Act 2003.".
I move amendment No. 151:
In page 25, before section 24, but in Part 4, to insert the following new section:
"74.—(1) In any proceedings for an offence under section 70—
(a) a certificate that is signed by an officer of the Department of Foreign Affairs and states that—
(i) a passport was issued by that Department of State to a person on a specified date, and
(ii) to the best of the officer's knowledge and belief, the person has not ceased to be an Irish citizen, is evidence that the person was an Irish citizen on the date on which the offence concerned is alleged to have been committed, unless the contrary is shown, and
(b) a certificate that is signed by the Director of Public Prosecutions or by a person authorised by him or her and that states that any of the matters specified in paragraph (a), (b) or (c) of section 73(3) is evidence of the facts stated in the certificate, unless the contrary is shown.
(2) A document purporting to be a certificate under subsection (1) is deemed, unless the contrary is shown—
(a) to be such a certificate,
(b) to have been signed by the person purporting to have signed it, and
(c) in the case of a certificate signed with the authority of the Minister for Foreign Affairs or the Director of Public Prosecutions, to have been signed in accordance with the authorisation.”.
I move amendment No. 152:
In page 25, before section 24, but in Part 4, to insert the following new section:
"75.—(1) Where an offence under this Part is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.”.
I move amendment No. 153:
In page 25, before section 24, but in Part 4, to insert the following new section:
"76.—A person who is acquitted or convicted of an offence in a place outside the State shall not be proceeded against for an offence under—
(a) section 70 consisting of the act, or the conspiracy to do an act, that constituted the offence, or
(b) section 71 consisting of the act that constituted the offence, of which the person was so acquitted or convicted.”.
I move amendment No. 154:
In page 25, before section 24, but in Part 4, to insert the following new section:
"77.—The Act of 1967 is amended—
(a) in section 13(1), by the insertion of “or an offence under section 70, 71 or 72 of the Criminal Justice Act 2006” after “the offence of murder under section 6 or 11 of the Criminal Justice (Terrorist Offences) Act 2005 or an attempt to commit such offence”, and (b) in section 29(1), by the insertion of the following paragraph after paragraph (k):
"(l) an offence under section 70, 71 or 72 of the Criminal Justice Act 2006.”.”.
I move amendment No. 155:
In page 25, before section 24, but in Part 4, to insert the following new section:
"78.—The Schedule to the Bail Act 1997 is amended by the insertion of the following after paragraph 28:
"28A.—An offence under section 70, 71 or 72 of the Criminal Justice Act 2006.”.”.
Amendments Nos. 156 and 157 are related and may be discussed together.
I move amendment No. 156:
In page 25, before section 24, but in Part 4, to insert the following new section:
MISUSE OF DRUGS
79.—In this Part "Act of 1977" means Misuse of Drugs Act 1977.".
The purpose of this amendment is to insert a new Part 8 regarding the misuse of drugs. The aim of the part is to update the laws relating to drug offences. My proposals contain four key elements: provisions to strengthen existing provisions on the ten-year mandatory minimum sentence for drug trafficking offences, which was inserted into the 1977 Act by the Criminal Justice Act 1999; provision for a new offence of importing drugs having a value in excess of €13,000, which will attract the mandatory minimum sentence; provision to clarify that the prosecution does not need to prove that the defendant knew the value of the drugs in his or her possession was of a value of €13,000 or more, or was reckless in that regard; and in line with the commitment in the programme for Government to propose a new sentence of supplying drugs to a prison. The amendment merely inserts a reference to the 1977 Act.
The purpose of amendment No. 157 is to clarify that it is not necessary for the prosecution to prove that a person charged with an offence relating to the possession of drugs under section 15 (a) of the Drugs Act 1977 knew the value of the drugs in his or her possession was of a value of €13,000 or more, or was reckless as to whether that was the case. The amendment is as a result of two decisions of the Circuit Court to direct an acquittal on the basis the prosecution had not made out the cases required of it in regard to the value of drugs possessed by the defendant. In the first case in May 2004, the judge held that the prosecution was required to establish that the defendant knew that the value of his or her controlled drugs was €13,000 or more. In the second case in June 2005, the judge held that the prosecution had to establish either knowledge or recklessness as to such value.
Section 80(1) provides for the insertion of a new subsection (3)(a) in section 15(a) of the 1977 Act, to the effect that in any proceedings for an offence under section 15(a), it shall not be necessary for the prosecution to prove that a person knew at any time while the controlled drugs were in his or her possession that the aggregate market value of the drugs amounted to €13,000 or that he or she was reckless in that regard.
Section 80(2) provides the necessary safeguard against retrospective effect by saying that it will not affect proceedings commenced under section 15(a) of the 1977 Act which were instituted before the commencement of the section.
As regards Deputy Ó Snodaigh's amendment to my amendment, it will be clear from what I have said that I will not accept his amendment. That would place the onus on the prosecution to show that a person knew that the drugs had a value in excess of €13,000 which runs directly contrary to my proposal. As we know from recent cases, it would present a serious handicap to the prosecution of offences and it would, therefore, not be in the public interest.
If a mule comes in from South Africa with a holdall full of cannabis resin, that person frequently is a person of poor education and we cannot have a situation whereby we have to imagine that somebody in South Africa would know market conditions in Ireland and would know the exact value of eight tablets of cannabis. That would not stack up. This is an objective notion, to distinguish between what we call wholesale drug trafficking type offences and lesser offences of possession with intent to supply. The €13,000 limit is arbitrary. One could argue for €25,000, €100,000 or whatever else, but the purpose is to stop people who are significant players in the trade who are carrying, possessing or importing significant quantities of drugs.
Is that figure significant? I do not know.
Yes. It is significant, in the sense that it is above the threshold of a junkie who is just paying for his or her habit by supplying, for example, five other people.
It is a core principle. The Minister will be happy to know that I have reflected further since my last involvement in mandatory sentencing on drugs offences some years ago.
Is the Deputy moving on?
I am concerned that we anchor our law in a market value. I have no idea what amount of drugs €13,000 would buy but it strikes me that it is much safer to set the criteria for a quantity of drugs if we are going to have five and ten year mandatory sentences, such as an ounce of cocaine or whatever, and put that in a Schedule.
I take the Deputy's point.
If I can finish the point. It is almost the case that the more successful we are in interdiction, the higher the market value will become. Perhaps that is what the Minister intends. For example, if Afghanistan floods the market and cocaine or opium becomes cheap——
One could get it by the tonne.
——then the crime is lessened. A criminal market should not determine the nature of the crime, it should relate to the volume of drugs involved.
I take the Deputy's point. One could say, for instance, that one would go from A to B to C by weight and purity. One of the problems with that approach is that it is difficult to establish. First, one would have to prove the purity of the entire haul.
But who knows the market value of drugs?
The situation at present is that the Garda give a basis for it. They would say, for example, that in Dublin at the moment, a pack of heroin — I am not into all this lingo — of X grammes would attract €10 or €20 and that the amount in a suitcase, for example, could supply 200,000 packs. They would say to a jury, that on that basis one is looking at €600,000 or whatever worth of heroin.
Is that retail or wholesale value?
It is street or end-user value. All of this was thought through carefully many years ago in 1997 when I was not in the House. Market value in regard to a controlled drug means the price that the drug could be expected to fetch on the market for the unlawful sale or supply of controlled drugs.
In whose opinion?
It is for the jury to be satisfied.
Does a valuer come in?
What happens is that if the court is satisfied that a member of the Garda Síochána or a Customs and Excise officer has knowledge of the unlawful sale or supply of controlled drugs, that member or officer shall be entitled to give evidence and to be heard in regard to the market value of the drugs and the aggregate of the market value of the drugs involved.
Does the Minister remember when the heroin epidemic began?
The values can go up and down.
They were giving heroin away free to get people hooked. That nefarious market should not be the criterion that determines sentencing. If the drug itself is cheap, therefore, the penalty would not apply. What happens when a new drug is introduced?
My point is that at the level we are dealing with, it is not of great relevance. First, it is the market value on the date at which one was in possession. Second, it is a criterion of objective seriousness. It is arbitrary. It is designed to distinguish between cases in which it is obvious that people are in possession of drugs intended for a small circle of people and cases where people are in possession of a significant amount of drugs showing they intended over a long period or a broad number of dispositions of those drugs——
Would weight and volume not be a better determinant of that than an arbitrary issue like attributed value?
One could argue that, but the present system does work rather than going back to some other system of Schedules. It is all very well to use the criterion of weight for cannabis resin but when one gets to cocaine, heroin and dilution or liquid drugs, volume, density and concentration become quite complicated matters to prove.
Let us take a simple example. Looking at it from that point of view, would the law be any fairer to the accused if one said it is an offence to be in possession of liquid heroin of a certain concentration and volume? If somebody comes in from South Africa with a flask full of heroin, nobody will seriously impute some knowledge to the person to the extent that he or she worked out that there was a specific gravity of X to the liquid in the container. I accept that it is arbitrary but what the Legislature did in 1997 was to establish some means of distinguishing between petty drug dealing and serious drug dealing.
In practice the DPP and the Garda do not come down heavy on someone when there is a doubt about whether the sum is €13,000 or €14,000. It is usually clear that the figure is substantially in excess in value and it is not a case of it being €13,001 as opposed €12,999.
The Deputy is safe in drawing that conclusion because the definition of "street value" depends on what street and who is pushing and so on. It is not exact to the point that one could say one is €10 above or below the €13,000 limit. The DPP would not sanction a prosecution in those circumstances. A broad margin is allowed in these cases. The £10,000 or €13,000 was designed to be significantly above petty drug dealing. Anecdotal evidence shows that most cases would be worth many multiples of the limit.
I suppose £10,000 ten years ago would buy much less today.
I am sure Deputy Ó Snodaigh will agree that the value of drugs goes up and down like a yo-yo.
While I have sympathy with the Minister's point, he suggests that the mules do not know the value of the drugs they carry. They would not necessarily know the serious view taken of drug smuggling here, unless they came from a country that treated it equally seriously. I am not arguing in favour of lenience. I support the idea of a value and the courts have applied this value in some cases and sentences.
Ten years ago €13,000 worth of cocaine would have been a substantial amount but it would be a greater quantity now because there is so much of it available. The supply of heroin went up and down. At one time it was in very short supply. This was the only good thing the Taliban achieved. The price of heroin in the city rose dramatically and cocaine replaced it in some areas.
It is an arbitrary figure and my amendments are not intended to remove it. I wish only to show that the State in prosecuting people must prove that the person had some knowledge that he or she was committing a serious crime, and what he or she carried had a serious value. The State can easily do that because to pay to send someone from South Africa, Nigeria, with a package, is a big enterprise. Although some mules argue that they do not know the value, they know well enough that the package strapped to them is valuable and there will be serious consequences if they do not deliver it. Whatever might be its value in their own country they know it is valuable. It would not be beyond the prosecution's powers to prove that the mules knew the significance of what they carried.
I was not involved in the drafting of this legislation as Attorney General or in any other capacity. Had I been I would have been intellectually more attracted to having one new offence of possession of drugs with intent to supply rather than section 15A to cover drugs worth £10,000 or more. This would have involved a sentencing provision for the main offence, the mandatory minimum sentence, and a provision to the effect that where it appears to the court that the value of the drugs is less than a certain amount or there are other mitigating circumstances for which we provide, a lesser penalty can apply. It would have been a neater solution. I do not know who was responsible for this.
Creating two separate offences was a drafting strategy which led to this discussion. If we had one offence stating that the sentence varied by reference to the value of the drugs we could have left it to the accused or the court to decide that the value of the drugs was less than X and therefore——
There was an effort made to draw a clear distinction between drugs for personal use and those for supply at what was then considered to be a reasonably conventional value. We are stuck with what we have now.
The intention was to assist the State in moving against those who were dealing in large quantities, which was correct, that is why I do not oppose it. If the Minister wishes to submit an amendment to the effect he has just outlined on Report Stage I would have no problem with that.
We have enough amendments already.
The Minister mentioned it.
The single offence is similar to "dangerous driving", which may or may not cause death. It would have been better to say that all possession with intent to supply carries with it a mandatory minimum sentence that must be applied by the court, unless the existing raft of excusing circumstances, or the value of the drugs in question was objectively less than a certain amount.
We will put it into our programme for Government for 2012.
We will adjourn until 9.30 a.m. tomorrow. I thank the Minister and his officials, and committee members for attending.