Charles Flanagan (Laois-Offaly, Fine Gael)

We are dealing here with evidence of the existence of a criminal gang. The Minister quite rightly states that of itself that will not lead to a conviction but it must be accompanied by evidence that the person charged was in fact a member of that gang. The evidence required to show the existence of a gang in the first instance can be that of a garda or former garda of any rank. The Minister calls that expert evidence but in effect it is opinion evidence based on a certain set of facts. It is belief evidence, the person giving the evidence believes in the existence of a criminal gang. The Minister accepts that the garda or former garda can be subjected to cross-examination but because he or she is giving belief evidence, he or she can claim privilege rendering the cross-examination effectively meaningless because the garda can say no more than it is his or her opinion, belief, experience or expert knowledge that there is a criminal gang. The judge can form the view on the basis of the expert evidence that a criminal gang exists.

When the judge accepts that there is a gang a burden of evidence is required to convict somebody of being a member of that gang. That is where the corroborative evidence is all the more important. Without this amendment there will be nothing in the legislation that will require or mandate corroborative evidence to show that Mr. X participates in, directs the activity, or is a member, of that gang. The amendment is important to avoid doubt because the only evidence tendered or accepted of the existence of a gang is that of a garda or former garda. If the amendment is not accepted in section 7 it should be somewhere in the Act, although this is the most appropriate place for it.

See this speech in context