Dermot Ahern (Louth, Fianna Fail)

Were we addressing this matter under the scheduled offences in the Offences Against the State Act and opinion evidence was being given as to the guilt of a particular individual by a chief superintendent, I would agree that there would need to be corroborative evidence. The courts have stated this point umpteen times. After the Shane Geoghegan murder, I asked the Attorney General to re-examine the request from Deputy Noonan, a former Minister for Justice, to determine whether we could use a chief superintendent's opinion evidence in respect of organised gangs in a similar way as is handled under legislation on paramilitary organisations. The Attorney General confirmed the advice given by the previous Attorney General on the 2007 legislation to the effect that opinion evidence cannot be given without substantial corroborative evidence.

However, the Bill and section 7 do not deal with that matter. To accept the Deputy's amendment would give rise to the suggestion that the garda's opinion evidence could be used in determining the guilt or otherwise of a defendant, which this section is not about. Nowhere else in the legislation is opinion evidence that goes to the potential core of an accused's guilt given.

To put the matter beyond doubt, I refer the Deputy to the proposed new section 74B in section 13, which states: "Nothing in this Part prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value". The amendment in question resembles section 3 of the Offences Against the State (Amendment) Act 1972, which requires evidence to be given by an officer of the Garda Síochána not below the rank of superintendent. His or her evidence is to the person's membership of an unlawful organisation, which is the offence but that is not the case in this section or legislation. As stated, the evidence of a Garda officer will not be used to determine the guilt or innocence of a defendant.

A signatory to the famous letter appeared on "Morning Ireland" yesterday. She stated that her first problem with the legislation was the provision that allowed for opinion evidence of any ranking garda to be given as to the membership of a gang. It is not correct because opinion evidence does not determine the guilt of an accused under this legislation. Equally, there is no offence of membership of a gang. When people comment on this matter, they should examine section 7, the purpose of which is to try to establish participation in a gang.

When I sat down with the Garda Commissioner, the Attorney General and my officials in the weeks subsequent to the murder of Roy Collins, we decided we would consider a number of issues, including the existing legislation, to determine whether the legislative provisions were being used. This is because certain commentators, such as the Deputies opposite, were saying they were not. We do not have a say in whether the provisions are used; that is the role of the DPP. We examined how we could amend the existing offence of participation and determined whether we could have an offence of membership but decided on the advice of the Attorney General that proving membership of an organised criminal gang was beyond the possibility of legislation. We therefore decided to stick with the amended offence of participation and the new offence of directing a criminal organisation.

The suggested amendment gives the incorrect impression that opinion evidence goes to the heart of the guilt of an accused under section 7.

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