Michael McDowell (Dublin South East, Progressive Democrats)

Deputies Ó Snodaigh and Cuffe oppose Part 7 of the Act. It will come as no surprise to them that I do not propose to drop it, since I am advised that it is necessary to allow for transposition of our obligations under the United Nations Convention against Transnational Organised Crime and the European Union joint action on making it a criminal offence to participate in a criminal organisation.

In addition, consensus was achieved at the Justice and Home Affairs Council on 28 April 2006 on a proposal for a Council framework decision on the fight against organised crime. The proposed framework decision will, when adopted, supersede the European joint action. Subject to an examination of the final text of that instrument, Part 7 of this Bill will, in the main, enable Ireland to meet its obligations under the proposed framework decision, although it draws to some extent on the Canadian criminal code. In the circumstances, it is rather unrealistic to seek deletion of this part, since it would require us to opt out at both European and UN level.

For the benefit of the House, I will briefly set out what the part contains. Essentially, it creates three offences targeting the activities of those involved in a criminal organisation and those who may commit offences for the benefit of such organisations. For the purposes of Part 7, a criminal organisation is defined in accordance with the language of international law as a structured group, however organised, which is composed of three or more persons acting in concert, is established over a period of time, and has as its main purpose or activity the commission or facilitation of one or more serious offences to obtain, directly or indirectly, financial or other material benefit.

That definition is in line with the wording of relevant articles in both the United Nations convention and the European joint action. In particular, the definition included specific reference to the phrase "structured group" to provide that the persons are acting in concert, that the purpose or main activity of the organisation is the commission or facilitation of offences, and that they are for the purpose of financial or other material benefit.

Case law in Canada, which has been mentioned, and in particular the judgment of the Supreme Court of British Columbia in the case of the Crown v. Accused No. 1 and Accused No. 2 in December 2005, considered the relevant provisions of the Canadian criminal code. It raised some concerns about the vagueness of the definitions in it. The Irish Human Rights Commission commented on the case and recommended to the Government that the definition of a criminal organisation be in line with that in the UN convention and the European joint action. That is exactly what I have done. The definition that I have given conforms to the Commission's recommendations.

The offences are provided for in sections 71 to 73, inclusive. Section 71 gives effect to the conspiracy aspect of Article 2 of the joint action on participation in criminal organisations and Article 5 of the UN convention. The common-law offence of conspiracy referred to by Deputy Ó Snodaigh covers conspiracies committed abroad to commit an act in the State but not conspiracies committed in Ireland to commit an act abroad.

To meet our international obligations, the offence of conspiracy is created to encompass conspiracy to commit a serious offence, that is, an act that attracts a penalty of four years or more, whether committed in the State or outside. That is unusual, since we normally say that five years is the threshold for a serious offence. Extraterritorial jurisdiction is provided for regarding conspiracies committed outside the State, bringing jurisdiction into line with the specific circumstances set out in the UN convention. The section provides for some partial restatement of our current law.

Section 72 provides for a new offence of knowingly contributing to or participating in any activity of a criminal organisation for the purpose of enhancing its ability to commit or facilitate a serious offence. This provision is based on the provisions in the Canadian criminal code but also draws on the relevant provisions in the joint action on participation in criminal organisation and Article 5 of the UN convention.

I have put on record the potential problems with this type of offence. I am not blind to and understand these potential difficulties, in particular, the fact that relationships in criminal organisations are frequently fluid, complex and more a state of mind that a provable state of fact. Prosecuting an offence of this nature will be challenging and proving the offence will be difficult. However, on balance, there is value in having this offence on our Statute Book even if, in the circumstances, the occasions on which it can be prosecuted will be comparatively rare.

A successful prosecution of this offence will almost certainly require one of the participants in a criminal organisation to act as a supergrass. I do not believe that sustained evidence of the type necessary to prove what had happened beyond reasonable doubt could be obtained in the absence of someone on the inside. Mere observation from the outside would need to be very clever, well documented and corroborated to prove the ingredients of the offence. One must be very careful in dealing with what is colloquially known as supergrass evidence to ensure it is not tainted. The courts in Ireland are very careful in this regard. I have never been under any illusion and have never given the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights any impression that this will be anything other than a very difficult offence to prosecute.

If I were to say that because this offence was going to be so difficult to prosecute and because it was going to be so rare to secure sufficient evidence to mount a prosecution, we would forget about the issue, I would then have to say to the UN and the EU that I am not interested in the UN convention and the views of the EU because they are slightly academic. If Ireland took such a course of action in respect of clear obligations and a framework decision coming down the tracks and took the view that they did not apply to it because these crimes could not happen within its borders, it would be a remarkable and egregious stance to take. We should not take such a stance unless we are forced to do so.

Section 73 provides for the new offence to be punishable by up to ten years' imprisonment in respect of the commission of an indictable offence by a person with the purpose of benefiting a criminal organisation or committing the offence of the direction of or an association with a criminal organisation. If a person steals a car for a criminal organisation and there is evidence of the existence of such an organisation and the supergrass witness is able to testify that the person in question knowingly stole the car for that organisation, the offence carries a ten-year penalty, which is a serious one. This offence is modelled on a Canadian provision to the same effect.

The creation of these offences is mainly aimed at fulfilling our international obligations but the provisions also draw on some provisions of the Canadian criminal code, where useful. Organised crime is a transnational problem and it is important that we signal our support for international efforts to combat it by making the necessary legislative provisions to enable the State to meet its obligations.

Amendment No. 172 proposes an addition to the definition of criminal organisation by providing that it must be established over a period of more than three months. The definition of a criminal organisation in section 70(1) replicates the definition in the UN convention and the EU joint action. Both refer to the group being formed over a period but neither includes a specific period. Accordingly, I do not propose to accept amendment No. 172.

Amendment No. 173 proposes to delete subsection 2 in section 70. I do not propose to accept this amendment. Subsection 2 is necessary from a drafting perspective, having regard to the definition of criminal organisation contained in the section which refers to the facilitation of one or more offences. It is essential from a substantive perspective. In the absence of subsection (2), the question of proof of knowledge of a particular offence and proof of the commission of a criminal offence arises to prosecute a person successfully for the offence of participating in a criminal organisation. In this event, we would be adding layers which would simply make it far too difficult to prosecute and the provision would become unworkable and redundant. Subsection (2) is, therefore, necessary to ensure that the prosecution of relevant offences can be brought forward.

The offence which is provided for by section 72 requires the individual to participate knowingly or contribute in any way to the activity of the organisation for the purpose of enhancing the ability of the criminal organisation to commit crime. Individuals who knowingly engage in such activities deserve criminal sanctions. Amendment No. 174 proposes the insertion of the word "knowingly" in the lead-in to section 72. I do not propose to accept this amendment. It is superfluous, given that the word "knowingly" already appears in the subsection. As I have already stated, the offence created by section 72(1) is one of knowingly contributing to or participating in the activity of a criminal organisation.

Amendment No. 175 seeks the deletion of section 72(2). This subsection provides for a number of matters which the prosecution does not need to prove. I do not propose to accept this amendment. Subsection (2) mirrors some aspects of the EU joint action and appears in its entirety in the Canadian criminal code. As I have already stated, the essence of this offence is knowingly participating in or contributing to the activities of criminal organisations for the purpose of enhancing its ability to commit serious crime. In such circumstances, where the individual is aware of the criminal aims of the organisation and actively assists it, it is reasonable to provide that it is not necessary to prove the matter specified in subsection (2). If such proofs were made necessary, I suggest the chances of a successful prosecution would go from rare to zero.

Amendment No. 176 is similar to amendment No. 173 and seeks the deletion of section 72(4). This subsection provides that facilitation for the purpose of this section does not require knowledge of a particular offence, the commission of which is facilitated, or that an offence be committed. Therefore, I do not propose to accept amendment No. 176.

Amendment No. 177 proposes to delete section 73(2). This subsection provides that the prosecution does not need to prove that the person knew any of the persons who make up the criminal organisation for which he or she has committed a criminal offence. I do not propose to accept this amendment. The Canadian criminal code provides a precedent and it appears that the manner in which criminal gangs operate is that although an individual may not have direct contact with members of the group, he or she may, by means of instructions from a middle man, be knowingly involved in committing criminal offences for the gang. Therefore, it is necessary to make the provisions in subsection (2).

Originally, I did not believe it would be possible to do what some people suggested to me at the time, namely, establish the offence of being part of a criminal organisation, make a chief superintendent's opinion admissible evidence of this fact and imprison the Mr. Bigs through the mechanism. However, in the course of the examination of this issue by my Department, we learned about a number of international developments coming down the tracks. Rather than forget about the area with the aim of returning to it on a later occasion, we decided to deal with it in this part of the Bill.

Nobody should be under the illusion that it will be anything other than very difficult for the Garda Síochána and the Director of Public Prosecutions to bring about a successful prosecution under this provision and nobody should believe that this provision will be the answer to all our problems. I have never pretended it would be. From the beginning, I expressed a considerable degree of concern that the illusion would be created that this Bill would end organised crime simply by criminalising it and that it would then be a simple matter for the Garda to collect evidence, arrest those concerned, prosecute them under some massive indictment and all our problems would cease. This will not happen.

I share the views of Deputies Ó Snodaigh and Cuffe that a great deal of this issue is difficult territory. While I do not go as far as they do, that is, to assert that it is so difficult and nebulous as to be constitutionally infirm, it will not be the bread and butter of the fight against crime. I agree with the Deputies that the bread and butter of that fight will be gumshoe work on pavements, people knocking on doors, searches, resources, gardaí on the street and conventional activities. This provision is not a panacea, substitute, magic wand or, by itself, something that will transform our situation.

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