Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I have some sympathy with what Deputy Flanagan is trying to achieve while being opposed to the section as a whole. At least somebody of the standing of a chief superintendent would have the experience and a full understanding of the justice system which an ordinary member may not necessarily have. I have not been listening to the radio today and I do not know what sentence was imposed but a member of the Garda Síochána was convicted and sentenced today for her attempts to falsify evidence and obstruct justice. Not every member of the Garda Síochána is infallible and a high standard should be set if the Minister intends to go down this route.

Opinion evidence is no more than hearsay because it can be contradicted by the opinion of the others. The problem in the special court over the years was that the judges did not accept a contrary argument when it was dealing with people who were charged with IRA membership and that the basis of the evidence was just a garda's word. What the level of that evidence had to be changed over the years but it was still used on occasion to convict. That appears to be the intention in this Bill in that a garda's evidence would be enough to say a criminal organisation exists.

I gave the example previously but will repeat it. Recently, a senior garda in the Dublin South Central area denied at a public meeting that a feud was going on in the area despite the fact that 13 people had died at the hands of the ruthless gangs involved. That was an example of a garda giving contrary evidence to what the dogs in the street in Crumlin, Drimnagh and the rest of the country understood to be true. It might not be on the scale that Paul Williams and others would have us believe but it does exist.

I draw the Minister's attention to the letter, although he has probably seen it at this stage, signed by over 130 barristers and solicitors in regard to the Bill. On the point about opinion evidence from a garda they state:

Opinion evidence from a garda must be understood as simply that - an opinion. No basis for such an opinion would be required by this Bill. No corroboration is required.

A Garda on the beat - who may base it on a person's previous convictions or from evidence upon which he/she will claim privilege and therefore not divulge where it came from - will be able to give an opinion which could result in conviction and sentence for a serious crime.

The Constitution will surely not permit this, but even if it does, Ireland is likely to find itself shamed before the international community when the European Court of Human Rights or the United Nations Human Rights Committee are, inevitably, called upon to rule on the issue.

The Minister's Bill was bad enough in its original presentation but he is now introducing an amendment to go beyond that and allow opinion evidence from a former member of the Garda Síochána who supposedly has expertise. We have seen some of the articles by some of these expert gardaí in the newspapers which amount to sensationalism.

We must also consider the amount of leaking in investigations of details of suspects, which I believe in some cases undermines the possibility of a conviction. There seems to be more information available to the newspapers than there is to the Director of Public Prosecutions. It has never been fully addressed that Garda files, Garda photographs and intelligence which only those who are investigating close to the crime would have access to seems to leak out to the newspapers, especially the newspapers which sensationalise it. They create gangs where they do not exist. We need to be careful here. Might the word of a garda be based on an article he read in the Sunday World or similar? I have major concerns about going down this route. I am in sympathy with Deputy Flanagan's attempt to introduce a safeguard. Although the evidence would be opinion evidence it would, at least, be given by a witness of a high standing who would understand its full impact.

The Irish Council for Civil Liberties, in its submission on the Bill, highlighted some of the points I have made. I urge the Minister to re-read what the council has to say about section 7. The submission says:

The opinion of any garda who appears to the court to possess the appropriate expertise would be admissible as evidence of the existence of a criminal organisation. Under this section expertise means experience, specialised knowledge or qualifications. The opinion of the garda can be informed by the existence of previous convictions of the accused person.

In most trials the existence of previous convictions is not disclosed until the end of the trial. Here a garda can influence the court at an early stage, based upon someone's previous convictions. The submission continues:

The Supreme Court has considered the use of belief evidence and its compatibility with Article 38 of the Constitution and Article 6 of the European Convention on Human Rights. While holding that a garda may claim privilege as to his or her sources when being cross-examined about belief evidence, the [Supreme] Court is clear that conviction cannot take place without the support of corroborative evidence, in recognition of the disadvantage which flows from and accrues to the defence in a trial. Moreover, in relation to the rank of a garda who is entitled to provide belief evidence, the Court stated that, the relevant provision in the Offences Against the State Act was "carefully crafted, ensuring that the belief evidence must come from an officer of An Garda Síochána not below the rank of Chief Superintendent". This, the Supreme Court said, "was a view establishing trust and credibility as far as possible".

That safeguard of a Chief Superintendent establishing trust and credibility is what Deputy Flanagan is inserting in the Bill. The Irish Council for Civil Liberties believes section 7 should be withdrawn and that, without prejudice, should the Bill be enacted opinion evidence should be restricted to a garda not below the rank of Chief Superintendent. It believes the Bill "should include an express provision that a person cannot be convicted on opinion evidence alone".

I do not wish to see drugs gangs escaping conviction. Recent legislative changes, particularly the Criminal Justice (Surveillance) Bill will allow for that evidence to be built up. The Garda Síochána requires additional resources. The Minister denies they need these and says they have everything they need. An adequately resourced Garda Síochána coupled with the Criminal Justice (Surveillance) Bill could build up cases properly and prosecute them to a proper conclusion.

This section of the Bill is flawed and should be withdrawn.

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