Although most criminal activity is generally well covered by the existing extensive criminal law, due to the nature and inventiveness of criminals and the changing pattern in crime in society, it is necessary to constantly review our criminal law. For that reason I stress that I am open to constructive suggestions for its modernisation, strengthening and improvement.
On the debate which has been going on in recent weeks on this subject, a number of suggestions have been made on which the joint committee will be required to focus in the course of the deliberations leading to its report. One of these suggestions is that the Minister for Justice, Equality and Law Reform should provide for an offence of membership of a criminal gang, having regard, in particular, to the provisions which can be used against subversive organisations in the context of the Offences Against the State Acts, on which I understand the Director of Public Prosecutions gave the committee useful material yesterday. I do not propose, therefore, to repeat what he said, except generally to indicate my agreement with the line he took. If the committee is examining this issue, it is important to understand the difficulties presented by any attempt to simply outlaw membership of a criminal gang.
Organisations such as the IRA are well known, have a clear agenda and a certain fixity of organisation and structure, although, as a member of the joint committee stated on a previous occasion and I agree, they do not publish minutes or put advertisements in the newspapers for their AGMs. In reality, however, it is a matter of fact whether a person is a member of such a paramilitary organisation.
Some criminal gangs are structured to the point of constituting criminal organisations. I note that the European Union and the Council of Europe, in their view of the organised crime issue, differentiate between structured and unstructured criminal gangs. It is important that we bear this in mind. Most criminal gangs are not likely to have permanency of organisation or any particular agenda apart from the enrichment of their members. Those who come together to commit a particular offence may part company at any stage and there may or may not be a fixed relationship between the parties. If there is, it may be impossible to prove. If the person with whom a criminal is known to associate regularly is a member of his or her family, are such relatives to be counted as members of a gang? According to the best information available to me, relationships in criminal gangs are fluid. Alliances are temporary. People float in and out of connection with each other in the pursuit of crime. These gangs are not like organised crime structures such as the Mafia and triads, and do not attempt to own assets in the corporate sense. I say this, in particular, regarding the relatively recent phenomenon of younger members of gangs involved in the drugs trade. They do not have joint assets or any structure. They do not have any permanency of membership. They are, in effect, ad hoc alliances which come and go.
In the context of subversive organisations and the provisions of the Offences Against the State Acts, it is obviously easier to prove that a person is a member of an illegal organisation if that organisation has been proscribed by law, in other words, under the Acts, there is an elaborate procedure for the declaration of an organisation as unlawful. Where this happens, notices are published in the newspapers. Where that happens, the organisation is given the opportunity to challenge its proscription in the courts. Where this happens, its assets effectively become forfeit to the State.
Clearly, these concepts are not applicable to three, four or five people who have no joint assets, no joint organisation and who just are collaborating together casually to commit crime. It is much more difficult to prove membership of a group which has no permanency, which groups and regroups over time, and where its membership depends on circumstances and changing relationships.
Recently the European Union, in a joint action on participation in a criminal organisation adopted in 1998, and the United Nations, in the convention on transnational organised crime, have established a definition in this respect. Both definitions are similar and are also similar to a Canadian provision to which Deputy Deasy referred on a number of occasions in Dáil Éireann. The EU joint action and the UN convention require that the organisation must in some sense be structured or structural, as I have said.
In general the international instruments provide that parties to the instrument should deal with organised crime in their legislative provisions either by making it an offence for a person to agree with others to carry out certain serious crimes or by making it an offence to actively take part in the activities of a criminal organisation or other activities with intent and knowledge of either the aim or general criminal activity of the group. Deputy Deasy mentioned the Canadian criminal code, which is a very interesting precedent in that regard.
It should be remembered that in our system the prosecution must prove the essential ingredients of an offence beyond reasonable doubt. In the case of an illegal organisation under the Offences Against the State Act, such as the IRA, the status and existence of an illegal organisation is proved beyond reasonable doubt by the legal powers of prescription. The same could not apply to loose alliances. I am examining the definitions in the EU and UN instruments with a view to bringing forward legislation to give effect to those instruments. I will of course be interested in considering the Canadian definition and in ascertaining whether a similar approach would be useful to us in dealing with our own brand of home-grown, organised criminal gangs.
There is a very considerable corpus of criminal law now. Members of this committee will be aware from the hearings over the last couple of weeks, but sometimes members of the general public are not so aware, that we have been constantly modernising our law. In the wake of the Omagh bombing, for instance, very serious offences were created in regard to persons who subvert justice.
One area of the law which I have long believed requires strengthening is the substantive criminal law in regard to people found in possession of items, documents or things which could have a reasonable explanation but from which, in particular circumstances, it is reasonable to draw an inference that the possession is for the purpose of committing a criminal act. I have personal knowledge of a person who was found with detailed drawings of another's home and route to and from work. All the circumstances of the documentation made it clear that a kidnap attempt was being planned.
To be in possession of those kinds of documents should be a serious, indictable offence where the only reasonable inference is that they are being held for the purpose of committing a serious offence. Likewise, consider where people are found in possession of, say, boiler suits, walkie-talkies, balaclavas and plastic tie-ups. None of those in themselves, viewed separately, are, by definition, evidence of a criminal intent but taken together, and finding them, say, in a van, would give rise in most cases to the reasonable inference that the person was planning a serious, indictable offence.
