15 June 2011
Statement by the Minister for Justice and Equality and for Defence
Mr. Alan Shatter T.D.
"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 beginning on 1 July 2011 and ending on 29 June 2012"
A Chathaoirligh,
The purpose of this Resolution is to provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a further period of a year from 1 July 2011.
One of the most important traits of a democratic society is a justice system that operates free from interference by anyone seeking to wrongfully influence
outcomes. Our criminal justice system is made up not only of judges and lawyers, but also by the participation of citizens, whether as witnesses or jurors. It is this later role which is so central and so essential to our idea of a trial by a jury of one’s peers.
There can be nothing, a Chathaoirligh, considered more insidious than the targeting of those citizens who are prepared to put themselves at the service of the public by serving as jurors with a view to influencing the outcome of criminal proceedings. But, that is the reality we must face. And it is a matter that we, as legislators, have to resolve.
I know that you feel, as I do, that trial by jury must be preserved to the greatest extent possible. However, none of us can be blind to the threat posed to the criminal process by individuals, terrorist groups and organised criminal groups who seek to intimidate jurors or potential jurors. Their aim is to subvert the criminal justice system. We cannot allow that to happen. Therefore, we have to take measures to prevent this interference. It is a sad fact that to do that we have to make the decision that trial by jury is not appropriate in certain, limited circumstances.
I emphasise the point that section 8 of the 2009 Act is aimed at particular types of cases and that the centrality of the jury trial to our system remains intact.
Criminal Justice (Amendment) Act 2009
The measures contained in the 2009 Act were put in place by the Oireachtas to take further action to address the increasing levels of violence by gangs involved in organised crime. Although the measures were aimed in particular at those who direct the activities of these criminal gangs, given the nature of organised crime, it was also essential to target those who participate in these activities.
The Act primarily provided for:
• the trial of organised crime offences in the Special Criminal Court unless the DPP directs otherwise;
• the creation of a new offence of directing or controlling a criminal organisation;
• an increase in the maximum penalty for the offence of participation or involvement in organised crime;
• a Court, with regard to all organised crime offences, to be able to draw inferences from a failure to answer questions or to account for movements, actions, activities or associations; and
• an increase in the penalty for the intimidation of a witness or juror from 10 years to 15 years imprisonment.
I should say that it is the view of the Garda authorities that these provisions are indispensable to them in tackling organised crime. A large number of arrests have been made under these provisions and charges are being pursued against a number of people.
But I would be less than frank if I did not say to the House that, useful as the provisions are, there will be disappointment that they have not proven of greater benefit in tackling the death and destruction caused by criminal gangs. That is why I have asked by Department to review these provisions to see if there are any further measures we can take.
Section 8
Section 8 of the 2009 Act is the subject of this Resolution. It is aimed at ensuring that organised criminal gangs cannot interfere with the court process to influence the outcome of cases. For this purpose, the section declares that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to certain organised crime offences under Part 7 of the Criminal Justice Act 2006, as amended. I will detail these offences for the House presently.
These offences are deemed to be scheduled offences for the purposes of Part V of the Offences against the State Act 1939. This means that the offences will be tried in the Special Criminal Court. However, the Director of Public Prosecutions may still exercise his power to direct that the offences should be tried in the ordinary courts.
Section 8(4) 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 period to be determined by the Oireachtas. Seanad Éireann and Dáil Éireann passed such Resolutions on 29 June 2010 to continue the provision in operation until 30 June 2011.
Section 8(6) provides that before a Resolution to continue section 8 in operation is tabled, the Minister shall prepare a report, which shall be laid before both Houses, on the operation of the Act in the period under report. I laid such a report before both Houses on 14 June 2011.
Criminal Justice Act 2006
Section 8 of the 2009 Act refers to four particular offences which are set out in Part 7 of the Criminal Justice Act 2006, as amended. They are:
Section 71A which is the offence of directing a criminal organisation. It carries a penalty of up to life imprisonment. This offence was inserted by section 5 of the Criminal Justice (Amendment) Act 2009. It is intended to target those who direct the activities of organised criminal gangs. However, it is aimed not just at those who are in a leadership position in the gangs but also at those who are further down the food-chain, so to speak, at all levels of the gangs. The offence carries a penalty of up to life imprisonment.
Section 72 is the offence of participating in or contributing to the activities of a criminal organisation in order to enhance that gang’s ability to commit a serious offence or to facilitate the gang in committing serious offences. This offence was inserted by section 6 of the 2009 Act and it carries a penalty of a fine and/or up to 15 years imprisonment.
Section 73 is the offence of committing an offence for a criminal organisation. The maximum penalty for this offence was increased from ten to 15 years imprisonment by section 10 of the 2009 Act.
Section 76 provides for liability for offences under Part 7 of the 2006 Act where they are committed by corporate bodies, their members, directors and managers.
Reason for renewal of section 8
Senators will be well aware of the ongoing threat which organised crime presents to society. There are a number of criminal gangs in the State which continue to engage in very serious crimes. The unfortunate fact is that there is plenty of evidence of the involvement of these gangs in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. There is also no doubt about their willingness to engage in the most serious violence to protect their interests and to ensure they can continue their activities.
I take the opportunity to praise the Gardaí for their ongoing efforts in tackling these criminal gangs. An Garda Síochána continues to deploy considerable operational resources and a number of operational approaches to tackling organised and serious crime, including a multi-agency approach and the deployment of intelligence-led, targeted operations.
The Gardaí have an Organised Crime Unit which has the primary role of targeting organised criminal gangs in conjunction with the assistance of other national units, such as the Emergency Response Unit, the Bureau of Fraud Investigation and the Criminal Assets Bureau. These units working collaboratively have had, and continue to have success in disrupting these criminal gangs.
Senators will also know that there have been a number of significant arrests and seizures of significant quantities of drugs in February, March and April as part of ongoing operations being carried out by the Garda authorities with the co-operation of the Customs Service. In one operation in Slane, Co. Meath in March, drugs to the value of over €750,000 were seized and in another operation in April near Enfield, Co. Meath almost €1 million worth of heroin was seized. The Gardaí made arrests in these, and in many other operations, and charges are being brought.
Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult, particularly given the power that the criminal gangs hold over the people involved with them.
The Report which I laid before the House is based on information provided to me by the Garda authorities. It shows that section 8, the subject of this Resolution, has not been used in the period under report. However, the related sections of the Criminal Justice Act 2006 have been used by the Gardaí on a total of 72 occasions. These arrests have resulted in four persons being charged with offences contrary to section 71A (directing a criminal organisation) and section 72 (participating in or contributing to the activities of a criminal organisation). These arrests have also resulted in other charges being proffered, relating to firearms offences, the sale and supply of controlled drugs, robbery, aggravated burglary and other serious offences.
While there have been many arrests under the relevant sections of the Act, no cases have yet come before the Special Criminal Court. This does not, however, invalidate the reasoning for having such a provision available for use when the circumstances require it.
Garda View
As I have indicated, the Garda authorities are clear in their view that the provisions of the 2009 Act are indispensable to the fight against organised crime. The Garda authorities also consider that it is of paramount importance that the relevant provision of the Act would be extended for a further period.
In matters such as this, I must have the utmost regard to the views of the Garda authorities. It is absolutely essential to ensure that the Gardaí have at their disposal the best possible range of powers to face up to tackle these dangerous criminal gangs.
As I have said, the Garda authorities devote considerable resources, from across the Garda organisation, to their efforts to tackle organised crime. However, the Garda Commissioner has made it clear, time and again, that there will be no let up in the action being taken against these gangs. He has mine and the Government's full support in that approach.
Review of legislation
In combating organised and serious crime, the Oireachtas has in recent years brought through a comprehensive programme of criminal law reform. This legislation is making a significant contribution to tackling this type of crime but I will keep under review the question of whether any improvements could be made to the overall legislative package in this area to render it more effective. As I have indicated to the House earlier, I have asked for a specific review of the provisions of the 2009 Act.
I am sure Senators will agree with me that we have a duty as legislators to make the most effective legal powers available to the Gardaí, the prosecution authorities and, indeed, the Courts to deal with these criminal gangs who cause so much harm to society.
Conclusion
Let us be clear about it, those who are deeply involved in organised crime are desperate people who will stop at nothing to avoid being brought to account for their crimes. Extreme violence and brutal intimidation are simply a way of life for these thugs. They have no regard for society or the law, and we all have a duty to make sure the criminal justice system can hold sway over them.
To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has the means available to it to bring these criminals to account. This provision is a departure from the right to trial by jury in the normal course of law. However, in the circumstances I believe that this is a justified and measured limitation of that right.
On balance, I consider that the period of time for which I propose to renew this section is a proportionate. The 2009 Act provided for an original period of one year for the provision to be in operation before its continuance in operation should be reconsidered. The period now proposed, running from the current expiry date up to 29 June 2012, corresponds to that. Of course, if it is proposed to continue the provision in operation after that date the Oireachtas will again have to consider the matter.
I commend the resolution to the House.
ENDS