Dermot Ahern (Louth, Fianna Fail)

The purpose of Amendment No. 2a and those associated with it is to emphasise that the person giving evidence as to the existence of a gang must establish, to the satisfaction of the court, that he or she is an expert. Any garda will not be sufficient. The garda giving evidence must establish that he or she has the appropriate expertise. A garda, "who appears to the court to possess the appropriate expertise shall be admissible".

Deputy Ó Snodaigh is wrong when he says previous offences can be taken into account. Subsection (3) states:

It shall be permissible for that member [of the Garda] in forming the opinion to take into account any previous convictions for arrestible offences of persons believed by the member to be part of a criminal gang.

This merely allows a garda to form an opinion. We are extending the measure to former members of the Garda because some members who have the necessary expertise may have left the force prior to the hearing.

There is considerable misunderstanding and misinformation among people I would have thought had expertise in this area. As recently as midnight last night, I heard someone on the airwaves mistaking what the Bill is about. He seemed to confuse it with opinion evidence, as a lawyer would normally know it, in the context of the Offences Against the State Act. In that legislation the opinion of a Chief Superintendent that a person is a member of a proscribed organisation is admissible. That is not part of this legislation. We have not gone that far. The expert evidence cited in this Bill is to the existence, generally, of a gang. It does not go any way to point guilt or innocence at the accused in question. The evidence will simply set the scene to the court and is an attempt to deal with the acknowledged difficulty of proving these criminal gang offences.

In drafting the Bill, we discussed it with the Garda Síochána. It has serious reservations about any proposal to introduce rank into the Bill. It has concerns that in assessing the expertise of any member or former member, the courts may have regard to the rank the person holds or attained in the Garda. The key issue is the knowledge of the garda, irrespective of rank. The rank of garda who would normally produce this expert evidence is detective inspector. The strong advice of the Garda is that we should not specify a rank because there may very well be a garda of a lower rank who would have that expertise.

Reference was made to the famous letter. The letter is incorrect. It states: "A garda on the beat ... will be able to give an opinion which could result in conviction and sentence for a serious crime". That is not the case. There is no way in which this section could, on its own, establish guilt or innocence. It does not go towards someone's guilt or innocence. Instead, it establishes the existence of a criminal gang to the satisfaction of the court. Deputy Charles Flanagan is correct in that the garda would be open to cross-examination in open court unless the judge decided to exclude someone, although that only occurs in rare cases.

This is not opinion evidence in the normal understanding of opinion evidence in terms of the Offences Against the State Act. I accept that there must be corroboration of those offences. The provision in the Bill is to establish that a criminal gang is operating in a particular geographic area and to prevent a garda from impugning the accused at that stage. I ask people to understand this point and to accept what the Garda is saying.

If we were to limit the rank to that of chief superintendent, he or she might not have within his or her own knowledge the expertise in respect of the gang's existence. By including that measure, we would be asking a superintendent with second-hand knowledge of the gang's existence to subject himself or herself to cross-examination. Any lawyer worth his or her salt would be able to draw a coach and four through the garda. The chief superintendent might have general knowledge, just not the knowledge required under the Bill, namely, expertise, experience, specialised knowledge and qualifications. I strongly suggest that we accept the Garda's assertion that no rank should be linked to this, although the understanding is that the officer should be as senior as possible.

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