Amendments Nos. 2, 3, 18, 24, 25 and 32 are consequential on amendment No. 1 and may be discussed together by agreement.
SECTION 1
I move amendment No. 1:
In page 3, between lines 35 and 36, to insert the following subsection:
"(2) In this Act a reference to an offence shall, where the context so requires, be construed as a reference to a suspected offence.".
These amendments are of a technical drafting nature and do not affect the substance of the Bill. In a number of sections, for example in section 2(1)(b)(ii), Members will see a reference to "suspected offence". In other sections, the word "suspected" is omitted when referring to offences. We have an example of that in section 2(1)(a)(ii). It is possible, therefore, that some confusion might arise and it might be thought that the Bill was somehow differentiating between a suspected offence and a substantive offence. That is not the case and the use or omission of the word "suspected" was not intended to assert or imply that they should be considered as separate issues. To get over the possible difficulty that might arise, and for the sake of drafting, it is proposed to delete the word "suspected" in those sections where it occurs. Instead it is intended to insert in section 1 a new subsection providing that a reference to an offence shall, where the context requires it, be construed as a reference to a suspected offence as well. That is why a number of sections need to be so amended.
I am moving these amendments in an effort to avoid confusion or drafting inaccuracies that might arise. As we know, expert lawyers go through every word of legislation with a fine tooth comb in the courts. We must be careful with this kind of wording.
Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."
Am I correct in saying that this includes the definition section?
Yes.
I have a question on the definition section. The Bill provides that the definition of a drug trafficking offence is to have the meaning ascribed to it in section 3(1) of the Criminal Justice Act, 1994. That Act did not create a new offence of drug trafficking. It specified a number of existing offences mostly relating to the sale or supply of controlled drugs, as well as a number of offences created by the 1994 Act itself such as drug trafficking offences. Most of those specified offences would appear to merit that description, but is the Minister happy that if there were a challenge to the Bill, all the constituent elements of drug trafficking offences in section 3(1) of the 1994 Act would merit that description? In other words, is there a matter of quantity involved in drug trafficking or is the Minister happy that drug trafficking as defined in the 1994 Act does not actually relate to quantity and that the sweeping powers given in this Act are appropriate for offences, for example, under the Customs Acts in relation to the importation or exportation of a controlled drug, and that that necessarily merits the description of drug trafficking?
We have defined what a drug trafficking offence is in order to be sure that all the elements defined in the 1994 Act would be considered to be part of a drug trafficking offence. I am satisfied that we have covered all the different elements that make up a drug trafficking offence. Does the Deputy think any element is missing? It is comprehensive and covers production, distribution and transportation as well as fraudulent evasion of any prohibition, restriction or obligation under the Customs Acts. I am satisfied that it covers all the elements and I am at a loss to know of anything that might not be covered under those wide definitions. Has the Deputy something in mind?
For example, does an offence under the Customs Acts in relation to the importation or exportation of a controlled drug necessarily mean drug trafficking, regardless of quantity? Is there any controlled drug that could be imported and which would be an offence, but which would not merit the description of drug trafficking?
Drug trafficking has become a generic, catch-all term in itself. In the 1994 Act and in the Customs Acts we added to the totality of what is referred to as drug trafficking, aiding, abetting, counselling and procuring the commission of any offences. I do not think we omitted anything but no-one knows what criminals will do in future. All these, however, constitute a drug trafficking offence. I hope I have understood the Deputy.
Does it include something that might not be deemed to be as serious as a drug trafficking offence?
It might, but that is up to the Garda to decide. I assume the Deputy means that if Customs and Excise happen to find somebody coming in with one ecstasy tablet, that person can be arrested under the 1994 Act whichever element or level of crime they are considered to have committed. That is different from a case where someone brings in a quantity of them, but the Bill does not actually define "quantity". It would be wrong to do so because somebody might bring in a small amount of drugs to test the route and if they are successful they would get ready to do a bigger run. We must be careful not to define quantities for fear that some serious drug traffickers could escape the net. As far as we are aware, we have covered everything, including stuffers and swallowers.
The Minister has attempted to cover everything that could be relevant including aiding, abetting, counselling or procuring the commission of any of these offences. It seems to be quite comprehensive. The definitions include manufacture, production, preparation, importation and exportation of drugs but what about transhipment? Distribution or transportation of a controlled drug is included but Ireland is often used as a means of entry into other markets and it is therefore especially important that something transhipped through our ports should be covered. The definitions which are included might cover importing and exporting drugs but if they are transhipped they might not be technically imported or exported. Distribution or transportation may cover any variety of transport but we should be certain. Perhaps the Minister could look at this between now and Report Stage.
I am confident we have covered front, back and side doors, taking into account ships or any other method used. As to the Deputy's point, we will satisfy ourselves before Report Stage that there is no such loophole. The Customs Act covers fraudulent evasion, prohibition, etc. We have tried to mesh existing drugs legislation so that it works together and does not contradict itself. I am satisfied on this matter but we will ensure before Report Stage that the section covers that scenario.
Those behind the importation of heroin do not carry it themselves; they organise and manipulate others to bring it in. One of the main heroin importers into Ireland, previously known as "the footballer" and now named as Mr. Derek Dunne, has been charged in Britain with conspiracy to export heroin from Britain to Dublin. Is such a case covered in this Bill? The only way to catch the main heroin importers is to bring similar conspiracy charges in this country. It is most unlikely they will ever be found in possession of heroin but they have huge pyramids of organisation beneath them — networks of middlemen and women and others lower down the scale. They organise people, handle the money and financial arrangements in Britain and travel back and forth, usually by airplane, to Liverpool, Manchester and London. It is they who are the enemies of the State and the people and it is they whom this Bill should aim to put in prison. However, unless we can bring charges for conspiracy to import heroin, as the British are doing, we may never catch the main people involved.
I know the Deputy's interest in this. He tabled a parliamentary question recently and I undertook to check the matter. We do not use the word "conspiracy" but we use almost every other possible word to imply it: "aiding, abetting, counselling or procuring the commission of any of these offences or attempting or conspiring to commit any such offence or inciting another person to do so". My understanding is that those words mean a conspiracy by a person to incite someone else to do a job for him. A serious element of the drug trade is that the real criminals are not caught as they constantly hide behind "runners" and others. I am satisfied that our law is strong but arising from the Deputy's question I have asked the Director of Public Prosecutions to see whether a gap exists which is covered in the UK and, if there is, I will introduce an amendment on Report Stage.
I understand a charge of conspiracy was brought in a recent minor case involving cannabis but one has never been brought against any of the main heroin importers. Can we now expect this will be used to get the main drugs barons?
Arising from the Deputy's earlier parliamentary question and his query today, my objective is to ensure there is no gap in our law so that we can catch the people the Deputy is talking about. The thrust of this legislation is to ensure the gardaí have the powers they need to catch the big players, although it will catch smaller people also. The gardaí assure me that this Bill, along with existing legislation, will enable them do so.
As Deputy Gregory knows better than anyone, it is precisely because of the circumstances he outlined that these big players do not dirty their hands or go within miles of where a crime is being committed or drugs are being transported. They conduct the operation at arm's length to ensure there is no evidence to link them with the crime, and this is proving a big difficulty in securing convictions. We can catch people involved along the way — our prisons are full of people who have been used as pawns by the big players — but until we get the evidence we cannot bring the barons to court.
Despite the wide ranging powers introduced in this Bill, which I welcome unequivocally and unambiguously, the big players might still not be caught. I do not wish to introduce an extraneous matter because this is a vital debate. However, while the right to silence exists, no matter what legislation is brought in or what powers are given to the Garda or how wide-ranging the definitions of incitement, etc. are, if the big drug baron is removed from the scene, his hands are seen to be clean and he can remain silent in an interrogation room, there will be a difficulty. I am not asking the Minister to reply in this debate on the right to silence; I am stating that this is an argument made in response to the publication of the Bill and the Second Stage debate.
We must deal with the matter before us, which is section 1, the interpretation section. While Deputy Fitzgerald has made an important point it is not one for this debate.
We have inserted in section 1 a subsection which states: "(2) In this Act a reference to an offence shall, where the context so requires, be construed as a reference to a suspected offence". We, too, are anxious to avoid any gaps in the law. However, those in Customs have difficulty with what is "a suspected offence" and when one has been committed. They felt they were restricted in that they must have information about a suspected offence. They also felt that the interpretation of European regulations had resulted in this change. Previously, they were able to carry out spot checks. They believe the position is more open now because they are restricted to where information is available.
Although this is a serious issue, it may be a matter of interpretation of EU laws. An examination of those laws might clarify the position. Customs officers have been very successful in using their experience to judge a situation at a port or airport without necessarily having information about a person. That matter was brought to our attention in our discussions with them. I understand it has affected practice at the ports and airports. The Minister might look at how European regulations have been interpreted.
Other amendments relate to Deputy Fitzgerald's point and we can discuss these wider issues raised when we consider them. On Deputy Woods' point, this is not a customs Bill. The Minister for Finance deals with customs Acts. The inclusion of this new definition in section 1 relates to the Garda powers of arrest and detention. We are not doing away with their powers to stop, search and question somebody rather than arrest them. This relates to circumstances where a member arrests without warrant a person whom her or she, with reasonable cause, suspects of having committed a drug trafficking offence.
I will talk to the Minister for Finance about Deputy Woods' point. Rather than take up the time of the committee, the Deputy might clarify later how the position has changed for those in Customs. They cannot have lost any powers as a result of this Bill because it is not yet an Act.
They are concerned about the interpretation of European regulations. The Minister is being helpful in terms of recognising their needs as well as those of the Garda Síochána. If they cannot act as they have done in the past, their usefulness as regards the control of imports will be limited. I accept that they are under the remit of the Minister for Finance.
I do not believe the changes I am making will jeopardise what they can do.
It is a question of whether we should do something more. We should look at how these European regulations are interpreted so that they work in practice.
I cannot give the Deputy any more information because I was not aware that this issue would be raised. I am not prepared to speak about the intricacies of what the Customs do at that level.
Without intending to pursue the amendments at this point, amendment No. 28 which deals with customs officers, would cover the situation to which Deputy Woods referred. An argument could be made that section 6 might cover it as well. The amendment which I will table later and, to an extent section 6, provides for where an officer of the Customs and Excise may act on a suspicion and ask questions. Any failure by the officer to observe the provisions of the section would not affect the lawfulness of the power being exercised by the officer or the admissibility of the evidence of any statement or comment made by the person in respect of whom that power was being exercised. To a large extent, it could be said that section 6 covers that type of situation as well.
Question put and agreed.