Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I oppose section 5 of the Bill. These supposedly new offences are unnecessary and simply part of an attempt to hoodwink the public into thinking that something is being done. The common law offence of conspiracy and the statutory offence of accessory make sufficient provisions for these activities or activities of this nature already. I said this previously when the Bill was first published. The Irish Council for Civil Liberties agreed with me and made a submission on the Bill. If we had a proper Committee Stage, we would be able to bring in witnesses and the Minister could also have brought in witnesses to help his case. For example, the Garda Commissioner or the Chief State Solicitor could have come before us and we could have teased out some of the evidence or lack of it in terms of the issues he raised.

The submission of the Irish Council for Civil Liberties states that it is unclear how or why these new offences are required, given the current criminal law contains measures which allow the conviction of people on conspiracy charges and for the offence of acting in concert. In addition, as with the definition contained in section 3 which we have already discussed, these offences are too vague to satisfy the Constitution or the European Convention on Human Rights. The Constitution requires certainty of law, that is, that offences created by statute must be expressed without ambiguity, but there is ambiguity in this case. The European Convention on Human Rights requires foreseeability of the law, that is, that the law must be formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail. The proposed new offences are so vague that they do not satisfy this criteria.

The Irish Human Rights Commission agrees with me in this respect. On examining the case law, it states that Cox v. Ireland suggested the State's obligation to protect and vindicate constitutional rights meant that such penalties must be neither arbitrary nor disproportionate in their operation. In that case, section 34 of the 1939 Act was struck down because the penalty imposed by that section - mandatory loss of office, pension and other emoluments in respect of all public servants convicted of scheduled offences - was held to be impermissibly wide and indiscriminate. The IHRC suggests section 5 may give rise to arbitrary or disproportionate sentences for an accused who is proved to have played a more minor role in a criminal organisation, and that the potential for arbitrary or disproportionate sentences is enhanced because of the broad definition of a criminal organisation and the loose nature of its structure.

The IHRC also reflected on the position in advance of the 2006 Act, which at this time holds all the more true in the context of the Act's existence. It questioned whether the proposals contained in the 2006 Act were either:

... necessary or proportionate responses to the problem of organised crime. 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.

In the context of the debate leading to the relevant provisions of the 2006 Act, I urged the Minister to accept, in response to the very real problem of crime, gangland crime in particular, that introducing surplus legislation misses the mark and, as I noted earlier, adds to the confusion for those trying to prosecute these crimes. The introduction of a new offence will not deter would-be criminals. Fear of detection is what deters them, as I have argued in the past. Instead of assaulting the fundamental rights underpinning the justice system, the Minister should reform, restructure and resource the Garda. In response to my points on section 3, the Minister said there was no problem in terms of the State's response and that the Garda had the resources required. However, the Garda no longer has overtime or the freedom to recruit and promote, and it does not have the telecommunications system that is required.

For example, one of the reasons witnesses in some areas will not communicate with the Garda Síochána is that their names were broadcast on the existing telecommunications system. There are parts of this city and other places where people are tuned in on an ongoing basis to the Garda frequency. If gardaí are broadcasting that there is a robbery on a certain street and Mrs. So and So gave the information, they have handed to those engaged in intimidation the witness's name and address and so on. This is not anecdotal. A person who has been a victim in very recent times of one of these criminal gangs, despite being involved in valuable community work, came to the attention of that gang because he made a phone call to his local Garda station. Although he asked the gardaí not to respond immediately because he had just walked past the gang, which was involved in drug dealing at a certain location, the Garda response was to immediately send a car to the exact location. While it was good to see the speedy Garda response, the gang knew the only person to have passed in the previous ten minutes was the individual in question, and he was targeted and has suffered the consequences for his civic action and the bravery he showed.

In addition to problems with overtime, recruitment and telecommunications, the Dial to Stop Drug Dealing programme, which I have harped on about since-----

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