Charles Flanagan (Laois-Offaly, Fine Gael)

We are dealing here with the burden of responsibility in proving what in effect constitutes a criminal organisation. Already on the last occasion we clarified the position regarding section 70 of the 2006 Act which has never been used to any significant effect. We propose the insertion of a new section to follow that section establishing the definition of a criminal organisation. Without impugning the Garda Síochána in any manner, it is important that the law reserves this burden of responsibility to senior persons for two reasons.

First, it reflects the importance of the officer going into to court, that he or she is a serious, experienced and expert officer of a rank not below that of a chief superintendent; everybody can testify that is a high-ranking official with many years of service, experience and, more importantly, expertise. Second, it underlines the gravity of the offence in terms of what is a criminal organisation because a person convicted of being a member of, participating in, directing or otherwise a criminal organisation can face a hefty sentence of imprisonment. The gravity of the offence must be reflected and that can be done by the status, experience and expertise of the officer.

I asked the Minister a question on the previous occasion but I am not sure if he responded. If he did I will ask him to repeat it because I do not have a note of his answer, nor can I recollect it. Part 2 deals with organised crime and the new section 71B(1) states: "In proceedings under this Part the opinion of any member of the Garda ...". It could be that this opinion is being given by a Garda who is retired for many years, may not have been in the force for decades and who has been involved in a different career since leaving the force. We know that because many members of the Garda Síochána are forced to retire at a relatively young age and embark upon many and varying pursuits, some in the security industry because of their knowledge.

I would be concerned that ordinary ranking gardaí who may have left the force many years and embarked on different and varying careers could be called upon to give evidence to establish proof of the existence of a criminal organisation in an area. The relaxation of the safeguards around that opinion is a cause of concern that could be dealt with in a forum other than this one. Will the Minister clarify if this opinion evidence of an ordinary ranking member of the Garda Síochána could be given to a judge without any other witness being present? If that is the case, the concerns expressed by Deputies should be taken into consideration. The Minister might confirm that there are no circumstances in which that could happen, given the proposals in the Bill. I will conclude because the Minister has a number of questions to answer but there does not appear to be a standard or a requirement of experience in terms of years standing, nor is there a standard of expertise which could be a matter of interpretation, given the individual circumstances.

Serious concerns arise here and I ask the Minister to explain not only the rationale behind his introduction of a late amendment facilitating the giving of evidence by a former member of the Garda Síochána and also the legal advice at his disposal that confirms his belief that by loosening the long-established safeguards, he is acting in a way that is constitutionally sound.

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