Pat Rabbitte (Dublin South West, Labour)

There is some confusion between opinion evidence and expert evidence. I heard what the Minister said earlier. I presume we are talking about an expression of opinion as to the existence of a criminal organisation. In the operation of the Offences against the State Act the Supreme Court was definitive regarding the care to be taken in crafting the decision it handed down in respect of the use of a garda not below the rank of chief superintendent.

With no disrespect to current or former members of the Garda, the legislation is diminished by an amendment which allows, not only any garda but any former garda to give such expert opinion. I take the Minister's point that people are leaving the Garda service every day. Senior gardaí are retiring at present in greater numbers, perhaps because they fear that their retirement lump sum will be taxed in December. This is an extraordinarily open provision. Gardaí might be brought in who have long left the force and who are running security or building companies. I do not suppose many former gardaí are running building companies at present, but they might be writing a column for the Evening Herald. I am not sure that is advisable.

I have been under the impression that in respect of the operation of the Offences against the State Act, a chief superintendent might not have direct knowledge of membership of an illegal organisation but that the gardaí working to him would have such knowledge and would brief him to accordingly. His evidence might be based on his own direct knowledge or on briefing from his officers. I cannot understand why we should depart from that principle. If an ordinary community garda happens to have direct knowledge of what is happening on his beat, I do not see why he cannot brief his superior Garda officer to that effect and that a garda of the superior rank would be required to offer what the Minister calls expert opinion.

The Minister's use is different from the classic use of that term. We speak of expert opinion when a psychiatrist or medical practitioner gives evidence or when a trade union official goes down to say what is the rate in the electrical industry in the middle of a trade dispute. This is a slightly different use of the term. If Deputy Flanagan is right about no legal representative being present, it is all the more important that the evidence would be given by a garda of higher rank. I think that in the giving of opinion about the existence of a criminal organisation the legal representative would be present. Nevertheless, I am not persuaded that we should depart from the principle established by the Supreme Court.

See this speech in context