A Cheann Chomhairle,
I am pleased to be here today to present to the House this very important piece of legislation.
I would like to commence by highlighting again for the House the background to this legislation.
In recent years the activities of organised crime gangs have intensified and have been marked by an increasing ruthlessness.
I have been informed by the Garda Commissioner that there is no doubt that investigations into the criminal activities of these gangs are hampered by an unwillingness of people to come forward to assist these investigations.
Recent killings including the very sad case of Roy Collins, emphasise the complete disregard of these gangs for the rule of law and their determination to intimidate whole communities. Beyond the absolute tragedy of this murder, it confirms in the minds of the public the threat posed by these gangs and creates the climate of fear which is so conducive to criminal gangs maintaining their malign influence within their communities. Up to this unprecedented event I had resisted calls for sterner legislation, but, now, I believe that we cannot stand by and let our criminal justice system be undermined.
The threat to witnesses is already clearly accepted.
Instances of intimidation of witnesses have been evidenced by withdrawn statements, refusals to testify or failure to recall events.
But does anyone really suppose that groups who would kill in retaliation for a witness giving evidence would for some reason draw the line at the intimidation of jurors? I have no doubt that jurors will continue to do their duty conscientiously in a wide range of cases. But this Bill recognises that special measures have to be taken in the case of offences involving organised crime.
The stark fact is that members of these gangs have displayed a callous disregard for human life and a brazen contempt for the community. They have come to believe that they can take on the criminal justice system and act as a law unto themselves. It is beyond question that criminal gangs will try to take whatever action is open to them to thwart the criminal justice system.
There are clearly limits on the extent of the information I can properly put into the public domain about this and I have to be measured in what I say. The Government decision to provide for a limited number of specific "organised crime" offences to be prosecuted in the Special Criminal Court was taken on the basis of the advice of the Garda Commissioner and taking into account information provided by him and others involved in the criminal justice system detailing instances of threats and intimidation.
The Garda Commissioner has made it clear that the threat is such that the use of the Special Criminal Court is justified in the case of gang members. Court officials in Limerick have cited specific incidents where gang members have sat in the front row to intimidate juries. The fear in the community resulted in a marked drop in jury attendance. Trials have already had to be moved to Dublin. It is absolutely unrealistic to expect that every juror in a case involving these gangs would withstand, or even report, instances of intimidation or threat.
Only earlier this week, the State Solicitor for Limerick confirmed on air that he was aware of specific cases of jury intimidation and that there is a reluctance on a significant part of the population to participate in jury trials of gang members. I am sure the members of this House who represent the areas in question will be able to confirm the level of intimidation that exists.
It seems to me that the truth of that assessment is already obvious from facts now within the public domain. I do not dispute that the decision to schedule these offences so that they can be dealt with in the special criminal court is a big step; but I believe a failure to take that decision would be to shirk our overriding responsibility as parliamentarians to ensure that the rule of law prevails.
Moreover, we are introducing offences here today which are inextricably linked to organised crime. The impact of that fact alone on the likelihood of successfully intimidating a prospective juror cannot be ignored.
Sequestering jurors, using jurors outside the community from which the defendant comes, shielding jurors from sight of the open court or providing round the clock protection for jurors are not viable responses to the grave situation we face and will not guarantee freedom from intimidation. These gangs have sophisticated networks capable of identifying those they perceive as thwarting their activities.
There is, however a real & viable option. The 3 Judge Special Criminal Court and its non-jury format is in the view of the Government and the Garda Commissioner the single most effective means of successfully prosecuting these gangs. We have the offences, we have the investigative tools, and we have the penalties. Let us now ensure prosecution.
Let us not wait for further escalation in intimidation. Let us in Dáil Eireann give a future to the ordinary decent citizens of the communities which have been brought to their knees by these criminal thugs.
I have heard some reports suggesting that elements of this Bill might be unconstitutional. All I can say is that the senior legal advisor to the Government does not believe there are any grounds for that suggestion.
Furthermore I have given consideration to the points raised by the Irish Human Rights Commission in close consultation with the Attorney General. There is nothing raised that was not already considered. Indeed some of their suggestions might actually prejudice the right to a fair trial.
Turning to the Bill before you which as well as addressing organised crime, introduces amendments to detention and search powers which will, among other matters, address problems that are arising during the hearing of applications to extend the time for questioning.
The Bill is in five Parts with 25 sections. Part 1 contains standard provisions such as the short title and definitions sections.
Part 2 concerns organised crime. In the main, this Part amends the organised crime provisions contained in the Criminal Justice Act 2006.
New measures are introduced and existing provisions are amended. I would, in particular, like to highlight the following sections.
Section 3 amends the existing definitions of ‘criminal organisation’ and ‘structured group’. The existence of a criminal organisation is a crucial element in proving the offences provided for under this Bill. The amended definitions are merely a simpler formulation but, nonetheless, an important change making it easier to charge persons with the offences in question.
Section 5 creates for the first time in Irish law an offence of directing a criminal organisation. This offence criminalises the directing or controlling of activities of a criminal organisation including the supervision of such activities or the giving of orders.
It will facilitate the pursuit of persons who direct and control these organisations although not directly or personally involved in the commission of a serious offence.
The serious nature of this activity is recognised by the equally serious penalty of up to life imprisonment.
I would note in passing that in addition to providing a necessary tool to combat the threat of organised crime, it is also a requirement of our obligations as a signatory to the UN Convention on Transnational Organised Crime.
The section provides significant detail on what "directs" means. It also sets out the evidence to which a court may have regard in determining whether or not the offence has been committed.
In drafting this provision, it was considered appropriate for the purpose of consistency to replicate these provisions in section 6 of the Offences against the State (Amendment) Act 1998 which contains the offence of directing an unlawful organisation.
The amendment to the 1998 Act is contained in section 24 of the Bill.
Section 6 provides for the offence of participating in activity that could aid a criminal organisation’s objects which, where proven, will carry a penalty of up to 15 years. The evidential requirements of the offence are set out in the provision. Facilitating the commission of a serious offence by a criminal organisation will not require proof that an actual offence was committed or that the accused had knowledge of a particular offence.
Again we are going after those persons who, although not directly involved in the commission of an offence, participate with the organisation in a manner conducive to facilitating such offences.
Section 7 is an important provision in that it sets out the evidential provisions as to the existence of a criminal organisation.
The offences already outlined cannot be proven unless the existence of a criminal organisation is first established. This section addresses that.
In particular, it allows for the evidence of a member of the Garda Síochána with appropriate experience and knowledge as to the existence of a criminal organisation. This will not go to the guilt or otherwise of a defendant.
However, it will assist in meeting the first hurdle of a successful prosecution – establishing that the criminal organisation exists.
Another very significant provision is contained in section 8 which, as I have already indicated, extends the remit of the Special Criminal Court to organised crime offences.
It is not a step taken lightly.
I have already referred to the circumstances of the murder of Mr Roy Collins in Limerick earlier this year. The level of intimidation against witnesses is already well known. This Bill combined with the Criminal Justice (Surveillance) Bill will facilitate a situation where prosecutions can be brought against members of criminal gangs based on evidence gathered by Garda surveillance. The opportunity to undermine the criminal justice system by intimidation of ‘civilian’ witnesses will be diminished.
However, as I have said, the Garda Commissioner has also expressed very strong concerns regarding jury intimidation. Increasingly prospective jurors are seeking reprieves from participation in trials involving criminal organisations. Again, I would not be taking this step if I were not convinced that these threats are very real.
We have ensured that safeguards are included in the legislation. For instance, the declaration that the ordinary courts are inadequate for the pursuit of these type of offences is without prejudice to the power of the DPP to direct that a person not be sent forward for trial by the Special Criminal Court on a particular charge.
We have also included a clause whereby this section will cease to operate 12 months following the passing of the Act unless continued by a resolution passed by each House of the Oireachtas.
I would remind Deputies that under existing law, the DPP already has the option to send a member of a criminal gang forward for trial to the Special Criminal Court. What we are proposing is that a limited number of organised crime offences should be tried before the Special Criminal Court unless the DPP is satisfied that, in a particular case, the ordinary courts are adequate.
There is provision in section 9 for inferences to be drawn from a failure of a defendant, prior to being charged, to answer any question material to the investigation of the offence. A number of safeguards are also built into this provision.
These include provision that interviews must be electronically recorded, the defendant must be informed what the effect of a failure to answer might be and must be given a reasonable opportunity to consult a solicitor before answering.
An inference drawn under this section cannot solely or mainly be relied on to convict.
Section 14 introduces post-release (restriction on certain activities) orders. These orders can be applied at sentencing and will take effect on the person’s release from prison.
The order can apply restrictions on the person’s movements, actions or activities; impose conditions on the person’s participation in any activity or apply restrictions relating to the person’s associations.
Section 16 increases the penalty for witness or jury intimidation from 10 years to 15 years.
Part 3 of the Bill contains two sections which amend section 7 of the Offences against the State Act 1939 and sections 7 and 8 of the Criminal Law Act 1997.
These amendments arise out of an obligation to legislate for particular provisions of the UN Convention on Transnational Organised Crime.
Parties to that Convention are required to establish jurisdiction over obstruction of justice offences in certain circumstances where the offence occurs outside the State.
These circumstances are where the offence occurs on board an Irish ship or aircraft or were committed by an Irish citizen or by a person ordinarily resident in Ireland.
Section 7 of the 1939 Act contains the offence of obstruction of government, including judiciary, and is amended in section 18 of the Bill.
Section 7 of the 1997 Criminal Law Act, inter alia, creates the offence of impeding apprehension or prosecution of another person who has committed an arrestable offence. Section 8 of that Act provides for concealing an offence.
Section 19 of the Bill before you makes the required amendment to these provisions.
I now want to turn to Part 4 which concerns amendments to Garda powers of detention and re-arrest.
My amendments for the most part are aimed at ensuring that these powers do not operate in a manner that prejudices the investigation of crime by, for example, the disclosure of sensitive information.
I am also aiming to avoid the unnecessary diversion of Garda personnel away from on-going investigations.
As Deputies will be aware the Gardaí have powers under a number of statutes to detain persons arrested in connection with the investigation of serious offences. These powers vary both in respect of duration and the types of offences at which they are targeted.
For example, section 4 of the Criminal Justice Act 1984 applies to all offences carrying a penalty of 5 years or more and provides for detention up to a maximum of 24 hours.
Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 and section 50 of the Criminal Justice Act 2007 apply to a limited range of offences which by their nature justify the possibility of longer detention periods – up to 7 days in both cases. Section 30 of the Offences against the State Act 1939 permits detention up to 72 hours.
As a rule detention in excess of 48 hours is permitted only on the authorisation of the District Court or occasionally the Circuit Court.
The Bill aims to address concerns expressed by the Gardaí about the effect on the conduct of investigations and on the use of resources resulting from court hearings on applications to extend a detention period.
The experience of the Garda Síochána is that some of the issues raised in the course of such hearings go beyond the scope of the hearing and can have the effect of prejudicing further investigation. Information that might undermine an investigation should not be disclosed to the detained person or the public.
Sections 20, 21 and 22 deal with this very real problem in a number of ways by:
• providing that the court may direct that applications be heard in camera or that certain persons or the public generally may be excluded;
• providing that the court may in exceptional circumstances hear the evidence from a Garda without anybody else being present, including the legal representatives of the parties; and
• prohibiting the publication of any matter relating to an application other than the fact that it has taken place and the decision.
The purpose of the court hearings are limited to establishing whether the extension of time is necessary for the proper investigation of the offence and that the investigation is being conducted expeditiously and diligently.
I am satisfied that these amendments will not in any way hinder the court’s consideration of the matter at hand.
I would add that the risk of prejudice to ongoing investigations also arises in relation to applications to court for a warrant to re-arrest a suspect in relation to a particular offence or for a search warrant. While such applications are, of course, not on notice to the suspect, their hearing in open court could result in the disclosure of sensitive information.
My proposals address this by providing that re-arrest applications are to be made in camera. Section 25 which is contained in Part 5 makes a similar clarification in respect of search warrant applications.
The changes I am proposing clarify that issues relating to the validity of the arrest and detention are not proper to a hearing of an application for an extension of a detention period. This clarification will ensure that the arresting Garda and other members of the Force concerned with the detention of the suspect are not diverted from the investigation by a requirement to be at the court house and ready to give evidence in case the lawfulness of the arrest and detention is raised.
The Bill also provides that, in the interests of efficiency, the Garda making the application for an extension of time – who must be of at least Superintendent rank - can give oral evidence on matters not within his or her direct knowledge but within the knowledge of another member. This provision is subject to the court being able to require the attendance of that other Garda to give oral evidence if the interests of justice require.
I believe the cumulative effect of these amendments will be to greatly reduce the risk of sensitive information about matters under investigation being disclosed to the suspect or his or her associates. They also ensure a better use of Garda personnel.
The amendments I have outlined apply to the three statutory detention powers which provide for detention in excess of 48 hours.
I would also like to highlight some amendments which apply to individual detention powers only.
The House will recall that the detention powers in the Criminal Justice (Drug Trafficking) Act 1996 lapse unless they are renewed by both Houses. The last resolution passed was for a two year period and expires on 31 December 2010.
This arrangement reflects the position at the time of enactment, when detention of up to 7 days was considered a major departure. However, those detention powers are now an established and essential part of the fight against drug crime and I propose to end the requirement for renewal as I indicated when they were last renewed. This is achieved by section 21.
Section 22 extends the scope of section 50 of the Criminal Justice Act 2007 to the organised crime offences under Part 7 of the Criminal Justice Act 2006 as amended by this Bill. As I have already outlined, section 50 permits detention up to a maximum of 7 days in relation to very serious offences including those involving the use of a firearm or explosives.
I am advised by the Garda authorities that such increased detention powers are necessary given the nature of organised crime offences and the difficulties arising from the fact that the people involved set out to thwart the Garda investigation of these offences at every turn. In addition, the process of gathering the information that the Gardaí need to put to suspects in custody can take time. It often must be done against a background of violence, intimidation and internecine feuding.
I would mention at this point that experience in the operation of section 50 to date and the Drug Trafficking Act over the last 13 years suggests that the longer periods of detention are used sparingly.
The House should be aware that I intend a few technical amendments to be brought forward at Committee. There will also be drafting amendments to sections 3 and 6 and a further section amending section 41 of the Criminal Justice Act 1999 will be proposed for inclusion in Part 3.
I am sure the House will agree that this Bill amounts to a very significant package.
Insofar as it addresses organised crime, it is also part of a wider package including the recently debated covert surveillance legislation and firearms controls in the Criminal Justice (Miscellaneous Provisions) Bill.
As criminal organisations and their methods evolve so should our response as a society. As I have already said, these measures are not being taken lightly. I know there are aspects of this Bill which will be considered a departure from prior practice. But we must bring every possible resource available & legal instrument to the fight against organised crime. Today in this house we are doing that.
Before concluding, I am sure all members of the House will join me in paying tribute to Stephen Collins and members of his family for the courage and fortitude which they have shown in the fact of the activities of gangs. Nothing we do here can be expected to console them in their great loss. But I would suggest that the measures which this Bill contains are the least we owe to them and others who have suffered at the hands of gangs.
I commend this Bill to the House.