I move:
That Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period of 12 months beginning on 30th June, 2012.
Criminal Justice (Amendment) Act 2009: Motion
This motion will provide for the continuation and operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a period of 12 months, from 30 June 2012.
The purpose of section 8 is to ensure that organised criminal gangs cannot interfere with the criminal process to determine the outcome of cases. To this end, the section declares that for certain offences, the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
Lest anyone believe the 2009 Act was an overreaction to a non-existent threat, I will briefly remind Senators of its background. At the time, the level of organised crime had been on the increase. Organised gangs had shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. As a result, the Garda was encountering difficulties in persuading people to give assistance in their investigations. The complete disregard these gangs showed for human lives threatened to subvert the entire justice system. In the circumstances, it was imperative that the State take the necessary steps to ensure the criminal justice system was robust enough to withstand the assault that was launched upon it through intimidation of and violence towards witnesses and jurors. It was also necessary to assure witnesses and jurors that the State was ready to take the appropriate steps to protect them. The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law. They was also designed to instil confidence in everyone that criminal gangs would not be permitted to frustrate criminal investigations or prosecutions of their activities. They would not be permitted to believe that they could operate with impunity and with total disregard for the rights of others and the institutions of the State.
Due to the real threat these gangs posed, the Act provided for a limited number of specific organised crime offences to be prosecuted in the Special Criminal Court. The proposal to use the Special Criminal Court for a limited number of such offences removed the possibility of jury tampering or intimidation of jurors. The offences in question are the organised crime offences under Part 7 of the Criminal Justice Act 2006. Briefly, these offences are those created by the following sections of the 2006 Act: section 71A of the 2006 Act, which creates the offence of directing the activities of a criminal organisation; section 72, which makes it an offence to participate in or contribute to certain activities of a criminal organisation; section 73, which addresses the commission of a serious offence for a criminal organisation; and section 76, which deals with liability for offences committed by a body corporate. Section 8 of the Criminal Justice (Amendment) Act 2009 makes these scheduled offences for the purposes of Part V of the Offences against the State Act 1939. While this means that these offences are to be heard by the Special Criminal Court, the Director of Public Prosecutions may still exercise her power to direct that such offences be tried in the ordinary courts. I believe that permitting the Director of Public Prosecutions this discretion maintains the fundamental balance in deciding which cases are appropriate to be tried in the Special Criminal Court. It is clear that section 8 of the 2009 Act is aimed at particular cases and that the centrality of the jury trial to our system remains intact.
A further bulwark in maintaining this balance is provided in section 8(4) of the 2009 Act, which provides that the section shall cease to be in operation unless a resolution has been passed by each House of the Oireachtas resolving that it should continue in operation for a further period to be decided by the Oireachtas. As I have already said, that is the purpose of the motion before the House. In order to enable the House to assess the need for the continuation of section 8, subsection (6) provides that before a resolution to continue section 8 in operation is passed, the Minister for Justice and Equality shall prepare a report, which shall be laid before both Houses of the Oireachtas, on the operation of the section in the period under report. The report, covering the period from 1 June 2011 to 31 May 2012, was laid before both Houses on 8 June 2012.
The reasons for seeking the renewal of section 8 should be clear. Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. In addition, there is, unfortunately, plenty of evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult. This is particularly so given the insidious power that criminal gangs hold over their members and, regrettably, within the communities in which they live and operate. The 2009 Act has been in operation for over three years, and while there have been arrests under the relevant sections of the Criminal Justice Act 2006, no cases have yet come before the Special Criminal Court in accordance with section 8. This does not, however, invalidate the reasoning for having such a provision available for use in appropriate circumstances.
The use of the Act to date serves to highlight the considered approach of the Director of Public Prosecutions. It vindicates the way in which the provision is constructed, allowing the director to exercise her discretion to direct that offences under the relevant sections should nevertheless be tried in the ordinary courts. It also makes it absolutely incontrovertible that there is no question of the provisions of the Act being in any way misused or abused. In his report to me on the operation of section 8, the Garda Commissioner is of the clear view that this provision is likely to be required for some time to come. As Minister for Justice and Equality I must have the utmost regard for the views of the Garda authorities in matters such as this. It is absolutely essential to ensure that the Garda and the prosecution service have at their disposal the best possible range of powers to face up to organised criminal gangs.
In the period under report, there have been a total of 38 arrests under the relevant provisions of the Criminal Justice Act 2006. Three arrests were made under section 71A, directing the activities of a criminal organisation, and the remaining 35 were made under section 72, participating in or contributing to certain activities of a criminal organisation. As a result of these arrests, a total of 19 other charges have been preferred against various individuals, including 18 relating to burglary and one relating to robbery, contrary to sections 12 and 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, respectively. Members of the House will recall that very recently two men from Galway were each sentenced to nine years' imprisonment, having pleaded guilty to offences under section 72 — namely, participation in the activities of a criminal organisation.
The Garda authorities devote considerable resources from across the Garda organisation to their efforts to tackle organised crime, and they deserve our praise for the successes they have had against a number of those involved in these criminal gangs. Furthermore, the Commissioner has made it clear time and again that there will be no let-up in the action taken against these gangs. He has the Government's full support in that approach. To be blunt, the individuals involved in organised crime are ruthless people who will stop at nothing to avoid being brought to account for their crimes. Violence and intimidation are a way of life for these people. There is no question of their having any respect for individuals' lives or indeed for the human rights of others. We — that is, the Government and the Oireachtas — have a duty to make sure the criminal justice system is equipped to prevent them from undermining our core values. To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has a means available to bring serious criminals to account. I should mention at this juncture that, in keeping with an undertaking I gave last year when this matter was being considered, I have asked my officials, in co-operation with An Garda Síochána, to examine ways in which the legislation might be improved.
On balance, therefore, I consider that it is necessary to continue section 8 in operation for a further period. As I have said, the period now proposed will run for 12 months from 30 June 2012. I hope this motion will have the support of Members of the House.
Again, I rise in this House to offer the full support of the Fianna Fáil Party for the motion to continue the operation of section 8 of the Criminal Justice (Amendment) Act 2009. I say that in light of our majority here today, but also in light of the fact that the Labour Party opposed this legislation in 2009. In fact, Deputy Tommy Broughan lost the party whip for voting with the then Fianna Fáil Government on this gangland legislation. The Bill was considered necessary by many victims of gangland crime — I will not name them here — who were vociferous about the need for this type of legislation. There was a lot of speculation that these provisions would never be used, although that did not mean they were not necessary. However, I was heartened by the conviction under this Act which took place in Galway last week or the week before. That was certainly welcome.
Gangs are operating insidiously around the country, and we in the commuter belt are becoming more and more exposed to gangland activities. Many of those involved in organised crime have come to live in County Meath and other counties that have easy road access to Dublin, and the unfortunate result is that many people are living in fear. There is one particular parish in east Meath to which a gangland family moved, and it is noticeable, if one walks down the roads around where they live, that almost every house and cottage has electronic gates. It is an extraordinary sight in the middle of rural County Meath. From Land Commission cottages to big mansions, everybody has electronic gates because people are living in fear of individuals who have moved into the area. In other cases specific individuals are being targeted by organised criminals, including a good friend of mine who had the traumatic experience of being visited in the dead of night by a gang dressed as gardaí.
We need to introduce the toughest legislation possible and the Garda will have to deploy sufficient resources to the commuter belt to respond effectively to threats. The people who are involved in crime are using our excellent road network to get in and out of these areas quickly in order to avoid detection. It is noticeable that many of the robberies occur in locations that are relatively accessible from national primary routes and motorways. The problem has to be addressed in our area before crime reaches the levels that obtain in parts of Dublin and Limerick. While I hope the Labour Party has had a change of heart on this legislation, we are prepared to support the Government if it decides to pull a wobbly.
I welcome the Minister and agree with his assessment of the need to keep this legislation in place. The debate on the 2009 Act took place in an atmosphere of deep public concern about criminal gangs and activity throughout the country. The Government responded in accordance with the will of the people by putting in place tough legislation to stem the tide of criminality. Unfortunately, there are no-go areas in this country as a result of criminal activity. We must attempt to tackle that problem.
Over the past several months we have had the unfortunate experience of agitators trading under the name, Reclaim the Streets. We must speak about reclaiming communities and housing estates from criminality. This legislation reclaims people's right to live in peace and security without having to fear criminal activity. The previous speaker described the problems that have arisen in his own area which, unfortunately, are mirrored throughout the country. Particularly in rural areas, people who were used to a certain tranquil way of life no longer feel that sense of peace and security which traditionally ran in tandem with rural living. Whether one lives in the city centre of Dublin or the most rural part of the country, one should be entitled to live in peace and security. Whatever action is required on the part of the authorities of the State to tackle and decommission these gangs, if I may be excused the pun, we must facilitate it.
It is interesting that the legislation has not been used to date but I see that as a strength rather than a weakness because it reveals the considered approach taken by the DPP. The greatest assurance we can give is that the provision will only be used where necessary. I support the continuation of the provisions because we should not apologise for deploying the State's resources against criminal gangs and those who direct them. We are duty bound to protect the person and property of our constituents, the vast majority of whom are law abiding.
I listened carefully to the Minister's response to my earlier contribution in which he stated that there is no more important right than the right to be protected. While my party supports that sentiment, he is trying to create a false dichotomy as if this issue involved a choice between the rights of a criminal or terrorist, as he put it, and the right of citizens to be protected. That is simply not the case, however. As Senator Byrne noted, a number of Labour Party Members previously opposed these provisions because they shared our concerns, as does the Irish Council for Civil Liberties and many others. Our judicial system must be based on human rights. Is our state of emergency to be perpetuated for ever? Are non-jury courts here to stay?
The evidence demonstrates that the emergency powers in place in this jurisdiction are out of kilter with the systems in many of our European counterparts. Are we to say these problems are more prevalent in Ireland and, if so, what kind of message does that send? We must safeguard rights, including the right to a fair trial. This underpins everything I believe in regard to the criminal justice system. I will give no comfort to those who engage in any sort of crime but every citizen has the right to a fair trial.
The Minister referred to Sinn Féin and its response to this motion. He spoke about some of the micro-groups that continue to exist but he knows better than anybody these groups are hostile to everything my party stands for and that we have expended huge efforts on the peace process. We will not have that questioned by any Minister. Sinn Féin's public representatives at the highest levels have received death threats from the individuals to whom the Minister referred. We know at first hand the threat these groups pose but we consider these provisions in the wider context of whether they add value to democracy and the judicial system rather than undermining what should be a fair, independent and human rights based system. This is why we opposed the Offences against the State Act and it is why we will oppose the motion before us. As I presume the Minister will be pressing the motion, I advise the House that we will be calling a vote on it.
I wish to respond to Senator Byrne's comments about the Labour Party. We have a proud record in defending individual rights, including the right to a jury trial, and we make no apologies for that. History shows us that previous Governments which rolled back on individual civil liberties did so on the basis of claims of necessity that were incorrect. The result was that the response of the State was far in excess of the threat presented at the time. However, that does not make us blind to the fact that circumstances arise where it is necessary to roll back on civil liberties.
When Senator Cullinane pointed out that members of Sinn Féin have been threatened by some of the organisations that remain at large in this country he helped to make the Government's case. We do not live in a society in which people can walk down the street without fear of their lives being taken from them. Until we find ourselves in a society in which that is possible, we have to recognise that we do not have the freedom of allowing for a jury trial in all circumstances.
From my experience of working on housing issues in vulnerable urban communities I am well aware of the level of fear and intimidation that obtains in deprived parts of the country. Areas which suffer high levels of unemployment and deprivation suffer far more from criminals than the middle class gated estates of suburban Ireland. That is the reality. The people who the Labour Party seek to protect by supporting this motion live in poor and deprived circumstances in the blackspots of this country. We make no apologies for supporting it.
Or for changing your mind.
It is a fair and reasonable solution. As the Minister has pointed out, it is not used in many circumstances and the Labour Party will keep it under review. Who is suffering at the hands of these armed gangs and criminals? What communities are intimidated? They are the most vulnerable and poorest communities in this country. They are the people the Labour Party stands up to defend.
The most frequently used word in the debate on the Bill is intimidation. The doublespeak of my colleague from County Waterford was referred to earlier. He seeks further resources for the Garda Síochána. Adequate resources are provided to the Garda Síochána if we did not have gangs and organised crime. Senator Hayden referred to the puppeteers behind these organised gangs. Who is pulling the strings?
There has been no reference to intimidation of the Garda Síochána. Recently, Sinn Féin held its national conference, its Ard-Fheis, in Killarney and a member of the Garda Síochána told me that the people organising the conference tried to dictate what they wanted from the Garda organisation. They did not want any member of the Garda Síochána in plain clothes; they wanted them all in uniform. They wanted no security within the complex and wanted to provide their own security. A member of the Garda Síochána died in tragic circumstances in County Kerry recently. A member of Sinn Féin said to a friend of mine in the Garda Síochána that they would have done a much cleaner job.
That is outrageous. It is hearsay about what some member might have said.
It is not hearsay.
It is hearsay and it is absolutely outrageous.
I stand over it and I will put my name to it.
It is outrageous and it is an abuse of Senator Sheahan's position in this House.
I will put my name to it and stand over it.
That is not what the Garda Síochána was saying, which was very happy with the Ard-Fheis.
This is the kind of doublespeak that is going on.
Senator Sheahan is abusing his position. He should withdraw that remark.
I refer to one comment in the Minister's speech, the fact that there is "unfortunately, plenty of evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences".
If the Senator is not prepared to name the individual, who he claims is a member of Sinn Féin, who made a very serious charge, he should withdraw the remark. He should put up or shut up. It is an outrageous statement for the Senator to make and I reject it absolutely. No Sinn Féin party member would say such a thing. It is absolute nonsense from Senator Sheahan. He should name the person involved or withdraw his comment.
I believe——
Senator Sheahan should name the person involved.
——these serious offences apply to the CVs of several organisations still operating in this country.
Senator Sheahan cannot name the individual. He is a coward. There is no such individual.
Senator Cullinane, individuals cannot be named in this House because they are not here to defend themselves.
I thank most of the speakers for their support for this motion. Senator Byrne made reference to organised criminals in rural Ireland. It is a real issue that individuals are using our motorway system to act as predators on isolated elderly people in rural communities. The Garda Síochána has taken serious action, as part of Operation Fiacla, to target those engaged in such activities. The force has had some success in identifying individuals behaving in this way but I must be careful in what I say so I do not prejudice imminent prosecutions. There have been instances where elderly people have been the victims of barbaric physical abuse at the hands of those who sought to invade the privacy of their homes and rob them. They seemed to take some pleasure in causing the maximum amount of distress to people who are unable to defend themselves. These individuals are nothing more than cowards preying on communities. I praise the Garda Síochána for the substantial work done in this area and for the considerable success that will become evident in the context of cases dealt with in our courts in the next 12 months.
This is a crucial item of legislation in tackling organised crime. The context of the facility of the Special Criminal Court hearing cases is not being abused, despite the view of Senator Cullinane. It is a fallback, to ensure that no one engaged in organised crime feels entitled to impunity. We have seen instances of people prepared to threaten and intimidate jurors and put their lives at risk or lead them to believe their lives are at risk. People doing public service serving on juries are entitled to know they are safe. In the context of adjudication of cases before the Special Criminal Court, all of the rules of evidence and constitutional protection that apply to individuals apply to any prosecution before the Special Criminal Court. The only difference is that the outcome is determined by members of the Judiciary as opposed to jurors. When dealing with terrorism or organised crime, if individuals prepared to engage in illegality believe they can be immune from prosecution through the intimidation of jurors, it is of crucial importance that we have an independent court to determine properly, according to law and the Constitution, any prosecutions taken. We have an appropriate appellant system that provides oversight. When Senator Cullinane speaks about these areas, he is not talking about reality. He is talking about a theoretical world that exists in the heads of members of Sinn Féin, which is detached from the reality of the threat posed by subversives and criminal gangs.
That is not true. People are entitled to a fair trial.
There is no point in members of Sinn Féin telling me we should give further resources to the Garda Síochána when they want the Garda Síochána to address some areas of crime with its hands tied and without an assurance that, should an investigation prove successful, an appropriate trial can take place.
It is not fair, just appropriate.
Senator Cullinane wanted to ensure people have the right to a fair trial but fair trials are conducted in the Special Criminal Court, just as they are before jury trials. Fair trials are conducted because we have an independent Judiciary that applies the rule of law very carefully. Should something arise in a trial that warrants further examination, the opportunity to appeal a decision arises. It is important to recognise the reality so that we do not engage in a theoretical breastbeating based on the baggage Sinn Féin carries from the past.
That is more political posturing from the Minister. Why does the Minister not properly resource the Garda Síochána to deal with gangs? The Minister should not just create an impression he is doing something by producing draconian legislation that is not used. It is a joke.
Senator Cullinane should allow the Minister to speak without interruption.
Senator Cullinane is having a bad day today.
The Minister's approach to this issue is a joke. He is being flippant about a serious issue.
I regret that, when it comes to ensuring the law and structures necessary to tackle organised crime and remaining small groups engaged in terrorism in this country, Sinn Féin wants to verbalise a position. It is willing to talk but not willing to walk the walk. I thank other Senators on all sides for their support on this important measure.
Question put.
The Seanad divided: Tá, 35; Níl, 4.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Brennan, Terry.
- Burke, Colm.
- Byrne, Thomas.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- D’Arcy, Jim.
- D’Arcy, Michael.
- Hayden, Aideen.
- Healy Eames, Fidelma.
- Heffernan, James.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- MacSharry, Marc.
- Moloney, Marie.
- Moran, Mary.
- Mullen, Rónán.
- Mullins, Michael.
- Noone, Catherine.
- Ó Murchú, Labhrás.
- O’Brien, Darragh.
- O’Donovan, Denis.
- O’Keeffe, Susan.
- O’Neill, Pat.
- Power, Averil.
- Sheahan, Tom.
- van Turnhout, Jillian.
- White, Mary M.
- Wilson, Diarmuid.
Níl
- Cullinane, David.
- Norris, David.
- Ó Clochartaigh, Trevor.
- Reilly, Kathryn.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators David Cullinane and Trevor Ó Clochartaigh.
Question declared carried.