Michael McDowell (Dublin South East, Progressive Democrats)

It is evidence but it does not prescribe the weight to be attached to that evidence and if it is cross-examined it could dribble away to nothing. If it appeared in the circumstances that it was a gratuitous or arbitrary opinion, then that evidence may mean nothing but at least it is admissible in the matter.

I will look at Deputy Howlin's proposed amendment which is the taking out of the word "considered" because it may well be that this is a matter for the court rather than a matter for the superintendent. If we proceed on the basis that a chief superintendent may give evidence that he is of the opinion that a withholding of bail is reasonably necessary and that the court may receive that as evidence in the matter, it is something that the court can put into the balance against the evidence given by the applicant. It is the case at present that opinion evidence is admissible and the amendment No. 31 in my name is designed to make it clear that this will not wipe out all other opinion evidence being received in a case of this kind. The amendment is designed to ensure that a chief superintendent's evidence shall be admissible on the grounds outlined.

A chief superintendent may not have arrested a person but he is empowered to carry out a search to discover who are the individual's antecedents, his or her connections to others involved in organised crime etc. He can give his opinion and, in such circumstances, counsel or the solicitor acting for the applicant can inquire as to the basis on which he arrived at that opinion. If a chief superintendent refuses to provide any basis, the court will inquire as to what import it is to attach to his opinion.

It is noticeable, in the jurisprudence of the Special Criminal Court in respect of opinion evidence, that if a chief superintendent merely provides evidence of opinion of membership, does not elaborate on it and is contradicted on oath, as far as I know, convictions never follow.

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