Thursday, 9 July 2009
Dáil Eireann Debate
Deputy Kieran O’Donnell: I am speaking specifically on amendment No. 3. We have excellent garda detectives on the ground in Limerick who do fantastic work. We must ensure this section of the Bill is constitutional. Fine Gael proposes that the expert evidence of a Garda superintendent to the Special Criminal Court should be put forward in cases of gangland crime. We need to get immediate convictions and ensure that Roy Collins, Shane Geoghegan and Brian Fitzgerald will be remembered. We must ensure that we can deal with gangland crime in an effective fashion and stop senseless murders and such heinous crimes ever happening again. Fine Gael supports this legislation but we want to ensure that when it comes into operation within the legal and courts system, it will be effective. In that context the expert evidence of a Garda chief superintendent to the Special Criminal Court would be the most effective in ensuring convictions for gangland crime and for the direction of and involvement in gangland crime in Limerick.
Deputy Pat Rabbitte: The import of this group of amendments is that notwithstanding that the evidence in question is only as to the existence of a gang, the view is that it would be more appropriate that this would be a garda of more senior rank. This has been the practice up to now and also because of the fact that a more senior garda, not below the rank as suggested in the amendments, would be likely to have more comprehensive information available to him.  One cannot expect a garda of any rank to have the same breadth of knowledge and the same sources of information. It is also to avoid or to minimise the possibility of accident.
A gruesome murder that took place in Limerick was reported by RTE to be the unlawful killing of yet another victim who was known to the Garda Síochána and who had criminal associations. When this report was corrected later in the day and when RTE had to apologise, it did so quite properly and fully because it was in error. This was one hell of an error, given the tragedy that had already transpired. The apology went on to explain that RTE only reported what they had reported because they had been briefed and had double-checked it with the Garda Síochána in Limerick. I have been hearing here how expert the Garda Síochána is in advising on its local knowledge of gangs and gang personalities. Whatever views people may hold about the national broadcaster, its accuracy and professionalism in the news department is usually of a very high standard. In this case they reported that the victim was known to the Garda Síochána with all that implies. They only reported that because they were so advised by the local gardaí. This is not a matter we can take lightly. The experience before the Court of Criminal Appeal is that this business is taken very seriously and if a garda is required of a higher rank to make sure from several sources available to him or her, the testimony is likely to be more reliable. This is an additional good reason for the Minister taking one of these amendments on board.
Deputy Charles Flanagan: We are dealing here with the burden of responsibility in proving what in effect constitutes a criminal organisation. Already on the last occasion we clarified the position regarding section 70 of the 2006 Act which has never been used to any significant effect. We propose the insertion of a new section to follow that section establishing the definition of a criminal organisation. Without impugning the Garda Síochána in any manner, it is important that the law reserves this burden of responsibility to senior persons for two reasons.
First, it reflects the importance of the officer going into to court, that he or she is a serious, experienced and expert officer of a rank not below that of a chief superintendent; everybody can testify that is a high-ranking official with many years of service, experience and, more importantly, expertise. Second, it underlines the gravity of the offence in terms of what is a criminal organisation because a person convicted of being a member of, participating in, directing or otherwise a criminal organisation can face a hefty sentence of imprisonment. The gravity of the offence must be reflected and that can be done by the status, experience and expertise of the officer.
I asked the Minister a question on the previous occasion but I am not sure if he responded. If he did I will ask him to repeat it because I do not have a note of his answer, nor can I recollect it. Part 2 deals with organised crime and the new section 71B(1) states: “In proceedings under this Part the opinion of any member of the Garda ...”. It could be that this opinion is being given by a Garda who is retired for many years, may not have been in the force for decades and who has been involved in a different career since leaving the force. We know that because many members of the Garda Síochána are forced to retire at a relatively young age and embark upon many and varying pursuits, some in the security industry because of their knowledge.
I would be concerned that ordinary ranking gardaí who may have left the force many years and embarked on different and varying careers could be called upon to give evidence to establish proof of the existence of a criminal organisation in an area. The relaxation of the safeguards around that opinion is a cause of concern that could be dealt with in a forum other than this one. Will the Minister clarify if this opinion evidence of an ordinary ranking member of the Garda Síochána could be given to a judge without any other witness being present? If that is the case, the concerns expressed by Deputies should be taken into consideration. The Minister might confirm that there are no circumstances in which that could happen, given the proposals in the Bill. I will conclude because the Minister has a number of questions to answer but there does not appear to be a standard or a requirement of experience in terms of years standing, nor is there a standard of expertise which could be a matter of interpretation, given the individual circumstances.
Serious concerns arise here and I ask the Minister to explain not only the rationale behind his introduction of a late amendment facilitating the giving of evidence by a former member of the Garda Síochána and also the legal advice at his disposal that confirms his belief that by loosening the long-established safeguards, he is acting in a way that is constitutionally sound.
Deputy Aengus Ó Snodaigh: I have some sympathy with what Deputy Flanagan is trying to achieve while being opposed to the section as a whole. At least somebody of the standing of a chief superintendent would have the experience and a full understanding of the justice system which an ordinary member may not necessarily have. I have not been listening to the radio today and I do not know what sentence was imposed but a member of the Garda Síochána was convicted and sentenced today for her attempts to falsify evidence and obstruct justice. Not every member of the Garda Síochána is infallible and a high standard should be set if the Minister intends to go down this route.
Opinion evidence is no more than hearsay because it can be contradicted by the opinion of the others. The problem in the special court over the years was that the judges did not accept a contrary argument when it was dealing with people who were charged with IRA membership and that the basis of the evidence was just a garda’s word. What the level of that evidence had to be changed over the years but it was still used on occasion to convict. That appears to be the intention in this Bill in that a garda’s evidence would be enough to say a criminal organisation exists.
I gave the example previously but will repeat it. Recently, a senior garda in the Dublin South Central area denied at a public meeting that a feud was going on in the area despite the fact that 13 people had died at the hands of the ruthless gangs involved. That was an example of a garda giving contrary evidence to what the dogs in the street in Crumlin, Drimnagh and the rest of the country understood to be true. It might not be on the scale that Paul Williams and others would have us believe but it does exist.
I draw the Minister’s attention to the letter, although he has probably seen it at this stage, signed by over 130 barristers and solicitors in regard to the Bill. On the point about opinion evidence from a garda they state:
The Minister’s Bill was bad enough in its original presentation but he is now introducing an amendment to go beyond that and allow opinion evidence from a former member of the Garda Síochána who supposedly has expertise. We have seen some of the articles by some of these expert gardaí in the newspapers which amount to sensationalism.
We must also consider the amount of leaking in investigations of details of suspects, which I believe in some cases undermines the possibility of a conviction. There seems to be more information available to the newspapers than there is to the Director of Public Prosecutions. It has never been fully addressed that Garda files, Garda photographs and intelligence which only those who are investigating close to the crime would have access to seems to leak out to the newspapers, especially the newspapers which sensationalise it. They create gangs where they do not exist. We need to be careful here. Might the word of a garda be based on an article he read in the Sunday World or similar? I have major concerns about going down this route. I am in sympathy with Deputy Flanagan’s attempt to introduce a safeguard. Although the evidence would be opinion evidence it would, at least, be given by a witness of a high standing who would understand its full impact.
The Irish Council for Civil Liberties, in its submission on the Bill, highlighted some of the points I have made. I urge the Minister to re-read what the council has to say about section 7. The submission says:
In most trials the existence of previous convictions is not disclosed until the end of the trial. Here a garda can influence the court at an early stage, based upon someone’s previous convictions. The submission continues:
That safeguard of a Chief Superintendent establishing trust and credibility is what Deputy Flanagan is inserting in the Bill. The Irish Council for Civil Liberties believes section 7 should be withdrawn and that, without prejudice, should the Bill be enacted opinion evidence should be restricted to a garda not below the rank of Chief Superintendent. It believes the Bill “should include an express provision that a person cannot be convicted on opinion evidence alone”.
I do not wish to see drugs gangs escaping conviction. Recent legislative changes, particularly the Criminal Justice (Surveillance) Bill will allow for that evidence to be built up. The Garda Síochána requires additional resources. The Minister denies they need these and says they have everything they need. An adequately resourced Garda Síochána coupled with the Criminal Justice (Surveillance) Bill could build up cases properly and prosecute them to a proper conclusion.
Deputy Thomas Byrne: I encourage the Minister in his resolve on this issue. Civil liberties and constitutional issues are important but so are the rights of ordinary citizens to go about their daily lives, not only in County Limerick but in my constituency in County Meath, where many of the gangs from Finglas have decided to live. Crime is an important issue in my part of the country.
A garda giving evidence in court does not determine guilt or innocence. He or she does not determine whether an organisation exists. His evidence will simply be part of what the judge must weigh up and decide on. Other evidence will be presented, which the judge will accept or reject based on his or her view of it.
I encourage the Minister in his resolve. His amendment to allow former members of the Garda Síochána to give the same evidence is appropriate. The issue was raised of gardaí who are long retired being allowed to give evidence. If such a retired garda were to give evidence it would, surely, be weighed accordingly by a judge.
Let us keep thinking about the victims. We should acknowledge the support for the Minister from the general public. The correct procedures in the Dáil must be observed and the Bill scrutinised line by line but we must not forget the victims of crime. The public want this legislation and it is important that we give it to them.
Deputy Dermot Ahern: The purpose of Amendment No. 2a and those associated with it is to emphasise that the person giving evidence as to the existence of a gang must establish, to the satisfaction of the court, that he or she is an expert. Any garda will not be sufficient. The garda giving evidence must establish that he or she has the appropriate expertise. A garda, “who appears to the court to possess the appropriate expertise shall be admissible”.
This merely allows a garda to form an opinion. We are extending the measure to former members of the Garda because some members who have the necessary expertise may have left the force prior to the hearing.
There is considerable misunderstanding and misinformation among people I would have thought had expertise in this area. As recently as midnight last night, I heard someone on the airwaves mistaking what the Bill is about. He seemed to confuse it with opinion evidence, as a lawyer would normally know it, in the context of the Offences Against the State Act. In that legislation the opinion of a Chief Superintendent that a person is a member of a proscribed organisation is admissible. That is not part of this legislation. We have not gone that far. The expert evidence cited in this Bill is to the existence, generally, of a gang. It does not go any way to point guilt or innocence at the accused in question. The evidence will simply set the scene to the court and is an attempt to deal with the acknowledged difficulty of proving these criminal gang offences.
In drafting the Bill, we discussed it with the Garda Síochána. It has serious reservations about any proposal to introduce rank into the Bill. It has concerns that in assessing the expertise of any member or former member, the courts may have regard to the rank the person holds or attained in the Garda. The key issue is the knowledge of the garda, irrespective of rank. The rank of garda who would normally produce this expert evidence is detective inspector.  The strong advice of the Garda is that we should not specify a rank because there may very well be a garda of a lower rank who would have that expertise.
Reference was made to the famous letter. The letter is incorrect. It states: “A garda on the beat ... will be able to give an opinion which could result in conviction and sentence for a serious crime”. That is not the case. There is no way in which this section could, on its own, establish guilt or innocence. It does not go towards someone’s guilt or innocence. Instead, it establishes the existence of a criminal gang to the satisfaction of the court. Deputy Charles Flanagan is correct in that the garda would be open to cross-examination in open court unless the judge decided to exclude someone, although that only occurs in rare cases.
This is not opinion evidence in the normal understanding of opinion evidence in terms of the Offences Against the State Act. I accept that there must be corroboration of those offences. The provision in the Bill is to establish that a criminal gang is operating in a particular geographic area and to prevent a garda from impugning the accused at that stage. I ask people to understand this point and to accept what the Garda is saying.
If we were to limit the rank to that of chief superintendent, he or she might not have within his or her own knowledge the expertise in respect of the gang’s existence. By including that measure, we would be asking a superintendent with second-hand knowledge of the gang’s existence to subject himself or herself to cross-examination. Any lawyer worth his or her salt would be able to draw a coach and four through the garda. The chief superintendent might have general knowledge, just not the knowledge required under the Bill, namely, expertise, experience, specialised knowledge and qualifications. I strongly suggest that we accept the Garda’s assertion that no rank should be linked to this, although the understanding is that the officer should be as senior as possible.
This amendment relates to opinion evidence. I listened to the Minister, but we are establishing new offences and dealing with what constitutes the existence of a criminal organisation. The Minister stated that no one will be convicted under the opinion evidence, but it will be fundamental in leading to a conviction because it will establish the existence of a criminal organisation or gang. The level of evidence submitted is inextricably linked with the conviction because no conviction will be achieved without the court having established the gang’s existence. It is a difficult and too wide-ranging a proposal to depart from the accepted procedure under the Offences Against the State Acts. The Supreme Court has stated that opinion evidence must be corroborated. Amendment No. 4 leaves no doubt as to the need to have corroborating evidence.
The manner and speed with which the Bill is being passed poses a difficulty, as the surveillance legislation has not been given an opportunity to run its course through the courts. In practice, opinion evidence accompanied by the evidence garnered under the surveillance Bill will help ensure that what the Supreme Court has stated will be maintained, that is, the unsoundness of opinion evidence alone. Without amendment No. 4 or a similar confirmation, corroborating evidence would be essential to any opinion evidence and we would be in danger of jeopardising the soundness of the Bill.
The practical effect of the surveillance legislation may be that the process I have outlined will be routine in such cases. The corroboration that ensures opinion evidence on the existence of a criminal gang is acceptable to a court could be achieved under any of the provisions of the surveillance legislation in terms of evidence that can be produced. Will the Minister accept the amendment?
Deputy Dermot Ahern: Were we addressing this matter under the scheduled offences in the Offences Against the State Act and opinion evidence was being given as to the guilt of a particular individual by a chief superintendent, I would agree that there would need to be corroborative evidence. The courts have stated this point umpteen times. After the Shane Geoghegan murder, I asked the Attorney General to re-examine the request from Deputy Noonan, a former Minister for Justice, to determine whether we could use a chief superintendent’s opinion evidence in respect of organised gangs in a similar way as is handled under legislation on paramilitary organisations. The Attorney General confirmed the advice given by the previous Attorney General on the 2007 legislation to the effect that opinion evidence cannot be given without substantial corroborative evidence.
However, the Bill and section 7 do not deal with that matter. To accept the Deputy’s amendment would give rise to the suggestion that the garda’s opinion evidence could be used in determining the guilt or otherwise of a defendant, which this section is not about. Nowhere else in the legislation is opinion evidence that goes to the potential core of an accused’s guilt given.
To put the matter beyond doubt, I refer the Deputy to the proposed new section 74B in section 13, which states: “Nothing in this Part prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value”. The amendment in question resembles section 3 of the Offences Against the State (Amendment) Act 1972, which requires evidence to be given by an officer of the Garda Síochána not below the rank of superintendent. His or her evidence is to the person’s membership of an unlawful organisation, which is the offence but that is not the case in this section or legislation. As stated, the evidence of a Garda officer will not be used to determine the guilt or innocence of a defendant.
A signatory to the famous letter appeared on “Morning Ireland” yesterday. She stated that her first problem with the legislation was the provision that allowed for opinion evidence of any ranking garda to be given as to the membership of a gang. It is not correct because opinion evidence does not determine the guilt of an accused under this legislation. Equally, there is no offence of membership of a gang. When people comment on this matter, they should examine section 7, the purpose of which is to try to establish participation in a gang.
When I sat down with the Garda Commissioner, the Attorney General and my officials in the weeks subsequent to the murder of Roy Collins, we decided we would consider a number of issues, including the existing legislation, to determine whether the legislative provisions were being used. This is because certain commentators, such as the Deputies opposite, were saying they were not. We do not have a say in whether the provisions are used; that is the role of the DPP. We examined how we could amend the existing offence of participation and determined whether we could have an offence of membership but decided on the advice of the Attorney General that proving membership of an organised criminal gang was beyond the possibility of legislation. We therefore decided to stick with the amended offence of participation and the new offence of directing a criminal organisation.
Deputy Pat Rabbitte: The Minister is asking us to take a lot on faith. It puts us in a difficult position because, given that the Minister is minded to push through the legislation before the recess, nobody wants to a see a section of the Bill undermined in terms of its efficiency on commencement.
The concept described by the Minister is very unusual. We have just passed over the issue of adding “or former garda”. I am certain, without having checked the matter, that there is no such precedent anywhere in the criminal law. The Minister stated the garda best able to give evidence as to the existence of a gang and what it is doing is the garda patrolling the streets of a particular neighbourhood and that, as a consequence, we should not persist in dividing the House. We did not do so in respect of the issue pertaining to gardaí who are not below a certain rank. When the Minister was asked to instance the kind of former garda he would call to testify, he referred to the former Assistant Garda Commissioner, Mr. Tony Hickey. Former Assistant Garda Commissioner, Mr. Tony Hickey, is a long way from gardaí on the beat in certain troubled areas.
On the last occasion on which we discussed this Bill, the Minister quoted a document he said he received from the Garda Commissioner. He felt Cabinet confidentiality would prevent him from informing the Opposition of the information therein. The result is that we are in quite difficult circumstances. The Bill is being rushed through and there is no time to hear other evidence and input. I demur from dividing the House on this matter and am willing to take the Minister at his word, although there is a great lack of certainty as to where we are going.
Deputy Dermot Ahern: I genuinely wanted to move in the direction of opinion evidence as regards membership of a criminal gang but the Attorney General confirmed advice given by a preceding Attorney General stating the difficulty was not just the necessity to have corroborative evidence but also that membership of a gang would be difficult to establish. It was relatively easy to prove membership of a paramilitary organisation but it is not as easy to prove membership of a criminal gang and that is why we dropped this idea. Consequently we had to re-examine the issue of opinion evidence as to membership.
Expert evidence of a garda on the existence of a gang constitutes a new way — the way advised by the Attorney General — of adding to the proofs required to establish that a loose gang, not in any way similar to the Provisional IRA or any other paramilitary organisation that was operating in the State for decades, is operating in a particular geographical area. That is why much of the discussion on opinion evidence, as it is normally known by a lawyer, is not encompassed by this legislation. The legislation refers to the establishment of the fact that there is a gang in existence in a particular area but the person who gives evidence in this regard cannot link it to the guilt, or otherwise, of the accused.
Deputy Aengus Ó Snodaigh: Let me refer to a point the Minister made in respect of the ease of gaining convictions in the Special Criminal Court. It was not easy to prove membership but it was easy to gain a conviction given that there was no jury. That is one of the problems.
We are scheduling two offences without provision for a jury. The Minister stated there is no crime of membership but has created a crime that is its equivalent. Uncorroborated evidence from a garda that a gang or criminal organisation exists will be, in many cases, based on undisclosed previous convictions. The opinion of the garda will be based on whatever is in the PULSE system but this could not be declared to the court because it would prejudice a jury. A garda giving evidence, or supposed evidence, will state it is his firm belief that Mr. A is a member of a certain criminal organisation but if cross-examined he will not be able to disclose that his evidence is based on previous convictions that might be ten or 20 years old. The gang with which the convictions are associated may no longer exist.
The Minister said that no crime of membership exists. The section before us equates to that because the person could be charged with being involved in an offence of participating in or contributing to certain activities mentioned in section 6 which states, in subsection (4):
It is a huge leap of faith and danger to the system of justice that a garda can associate a person with an organisation, which he or she swears exists, and does not have to prove any crime when the person convicted under that section might be liable to up to 15 years in jail. Many of those whom we would like to see behind bars probably deserve the 15 years but this is not the way forward.
The way forward is to properly resource the Garda Síochána, to use the Criminal Justice (Surveillance) Bill and if at the end of that time, two or three years from now, it has been shown that those steps are not working we can move to the provision in section 8, that “the ordinary courts are inadequate to secure the effective administration of justice”. The time to declare a national emergency is after we have taken the practical steps that I mentioned the last day we debated this Bill and the Minister accused me of going all over the place. They are simple steps. Everything in this Bill is predicated on the Government’s failure to deliver the practical steps first and foremost to remedy problems, such as the Garda stations throughout the country which do not even have Internet access or proper rooms; the lack of proper scanners around the country to scan trucks for weaponry and drugs and the like; the shortage of sniffer dogs; the inadequacy of the forensic laboratory; the under-resourcing of drugs units; the failure to achieve the target for civilianisation, to properly fund the Dial to Stop Drug Dealing service, to protect juries and witnesses or even to introduce legislation which puts them on a standard footing; and the other matters I mentioned such as the bans on overtime, promotions and recruitment and the delay in the TETRA system. There are more. That is what should be done first before we go down the route intended by this Bill. I oppose the Minister’s intentions in this section.
Deputy Bernard J. Durkan: I have some concerns about this section but they are not the same as those of the last speaker. There are issues that revolve around the points raised by the Minister and the Members on this side of the House. I do not accept the notion that previous history should not become an issue. That is not particularly relevant to this amendment but it could be relevant in an attempt to determine whether a person was a member of a criminal gang.
I was here in 1984 when the then Criminal Justice Bill was introduced and the House sat until 7 a.m. I was concerned that some of the measures introduced then would be used against innocent people in an arbitrary fashion to secure a conviction in a way that we would regret. There were many submissions to support that view. It did not happen but the Bill was watered down to such an extent that it became ineffective and failed to deal with the problems at the time.
Deputy Bernard J. Durkan: Unlike the Ceann Comhairle I am not a lawyer. I speak as an ordinary layman. In 1996 and 1997 it was found necessary again to introduce more corrective or restrictive measures to combat the problem. I had serious concerns about that Bill at the time and again I was wrong. It is interesting that after a few years there appears to be a serious erosion of the rights of society and the law-abiding citizens around us. I do not agree with the last speaker. I believe that the case must be based on solid legal grounds. It should not be put in such a way that a clever cross-examiner in the courts could poke holes in it and overturn the legislation and leave us back where we were. I do not agree with the notion that we should see how it works and leave part of the legislation out and reintroduce it in a couple of years’ time. It is too late for that. I agree there should be substantive evidence that is corroborated. It cannot come from just anybody or be based on opinion alone, there must be some back-up.
We had all better be aware that there is a serious situation unfolding before our eyes and if we do not tackle this head on we will be judged by the law-abiding citizens outside who have deep concerns. I am not suggesting that my colleague, Deputy Ó Snodaigh, was speaking for the less than law-abiding citizens. From my knowledge of what is going on in this country, as a non-legal person, cases have come before the courts where a serious history exists and it is probably just as well that the jury is not told. I know why the information cannot be made available but it shocks me to read of some of the things that have happened in the courts——
Deputy Bernard J. Durkan: The amendment is about the basis for the case and whether the evidence should come from a garda above or below a certain level. We are either serious about this or not. If we want to be serious about it and tackle the issue then we go about it. If we want to fiddle around with it we can talk around in rings and circles for as long as we like but the public knows full well what the issues are, where and how they occur. If 100 lawyers write to The Irish Times with a concern along these lines, I want to hear about it. If, however, this is nothing more than someone speculating I want to hear about that too. Unless we tackle this issue now, society that abides by the law and is concerned with the failure to enforce it will judge all of us.
Deputy Finian McGrath: I share many of the Minister’s views on this issue because it concerns enhancing the ability to bring prosecutions for organised crime. The provision to take the evidence of a former garda is relevant because I know from experience that many former gardaí have excellent intelligence, no matter how high or low their rank. We should listen to them. We should also listen to people involved in the anti-drugs movement who are aware of the people involved in organised crime.
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