Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendmentNo. 171:

In page 73, to delete lines 11 to 40 and to delete pages 74 to 77.

Is é an rud atá i gceist ag an leasú seo agus na leasuithe ina dhiaidh sin, Uimh. 171 go 177, le chéile, ná fáil réidh leis an chuid seo den Acht ina hiomláine ó líne 11 ar leathanach 73 ar aghaidh go dtí leathanach 77. Sin an chéad leasú, agus muna bhfuil an tAire sásta glacadh leis, tá roinnt leasuithe eile agam le cuidiú leis an damáiste a mhaolú.

We are opposed to the inclusion of Part 7 in the Bill. It would be very easy and it would make me very popular to say that we should tackle organised crime and this is the way to do it. There are organised gangs in my area who are creating havoc in communities that I represent. Other Members in this House represent similar communities and they know of the destruction caused by various groups of drug dealers, thugs and so forth. However, to describe them as an "organisation", as this section does, is a misnomer. Part of our job in this House is to make good law, law that will stand up. We believe that there are many other provisions in legislation relating to crime which could be used to greater effect than they are at present and that would have the same effect the Minister intends in this part of the Bill.

I support the view that the existing law is sufficient and that the Minister's current proposal lacks clarity. The Constitution of this State demands clarity and certainty in our laws but this part of the Bill lacks both. The Irish Human Rights Commission questioned whether the proposals were necessary or proportionate responses to the problem of organised crime. It was positive in its comments. It stated: "The IHRC is of the view that the activity which is targeted here is already subject to appropriate criminal sanction, through existing common law and statute which prohibit conspiracy to commit an offence and prohibit the aiding, abetting, counselling or procuring of an offence."

Much of this part is based on the proposal on the part of the Canadian criminal code, which the Supreme Court of British Colombia recently found to be in violation of the Canadian Charter of Rights and Freedoms. The Irish Human Rights Commission outlines how the Supreme Court of British Colombia found section 467.13, as it incorporates the definition of a criminal organisation in section 467.1 to be in violation of section 7 of the Canadian Charter of Rights and Freedoms. The Human Rights Commission adds:

Section 467.13 of the Canadian Criminal Code prohibits a person who is one of the group of persons which constitutes a criminal organisation from instructing, directly or indirectly, any person to commit an offence for the benefit of, at the direction of, or in association with the criminal organisation. This offence attracts a maximum sentence of life imprisonment. The Court explored the definition of a criminal organisation in the Canadian Criminal Code and observed that under this definition the boundaries of membership of the "group" are not clearly delineated.

That offence attracts a maximum sentence of life imprisonment. The court explored the definition of "criminal organisation" and observed that under that definition, the boundaries of membership of the group were not clearly delineated. The same holds true in what the Minister has put before us. It went on to explain further the outcome of that judgment.

The Constitution requires certainty in law that offences created by statute must be expressed without ambiguity. The European Convention on Human Rights requires foreseeability of the law, that is, the law must be formulated in such a way that a person can foresee, to a degree reasonable in the circumstances, the consequences that a given action will entail. The proposed new offences are so vague they do not satisfy either of the criteria I have mentioned.

I propose several amendments with the aim of neutralising some of the worst aspects of the proposals and the way in which they are framed, if the Minister is not willing to accept my first amendment, No. 171. The Minister's proposals are worded in such a way that one might almost be found guilty of an offence for baby-sitting a possible criminal's children, as the prosecution would not have to prove that a criminal offence was committed but only that one's actions contributed to the committal of an offence, that one knew anything about an offence already committed, or that one knew of any other persons in the criminal organisation. By deleting several subsections my amendments attempt to limit the scope for abuse of these proposed offences. Considering that this is an offence of strict liability with no element of fault, the sentence may be disproportionate.

The Minister's response to the very real problem of gangland crime is introducing surplus legislation that misses the point completely. We need to resource the Garda better, giving it the equipment to tackle this aspect of crime head-on. They need the best cars, proper communications systems, and proper Garda stations rather than the run-down shacks that they have. As a priority, the Minister must accelerate the civilianisation process, and I would be first to congratulate him on the substantial work that he has done hitherto. However, a great deal more remains to do so that those trained in crime-fighting are not confined to barracks or pen-pushing when their experiences and training might be put to better use tackling head-on the crimes the Minister intends to address in this section.

See this speech in context