Joe Costello (Dublin Central, Labour)

I do not wish to reopen the debate on this matter. I am sure most of the Deputies present wish to move on to deal with other issues.

Section 7 contains a definition in respect of what constitutes a criminal gang. It seems that virtually any three people operating in concert - and in any capacity - could be deemed to be a criminal gang. It is similar to the Lord's pronouncement to the effect that "where two or more are gathered in my name, there I am in the midst of them". There is nothing much more beyond that.

The section refers to a structured organisation. People who commit crimes do not conduct their business in the same way others. Gangs are not similar to organisations which hold meetings and keep minutes relating thereto. Regardless of how loose might be their connection, virtually any combination of more than three people of any description - it could be members of a family who discussed a particular matter - would come within the remit of the legislation.

Under the section, the question as to whether a gang exists is left to the determination of any member or ex-member of the Garda Síochána. Surely this provision is wide open to abuse. From that point of view, it is extremely difficult to accept the Minister's contention that this constitutes anything other than opinion. Effectively, that is what it is and if any member or former member of the force wishes to state that a certain number of people operating together constitute a gang, it makes matters difficult because there are no rules or regulations set down in respect of proof. Even if a garda or ex-garda were cross-examined on the matter in order that the information provided might move from being opinion to evidence, that would not be the same as having available the type of evidence a superintendent would be required to provide in respect of the existence of a subversive organisation. The subversive organisations that have operated in this country have employed recognisable structures of command, etc.

We are, therefore, discussing evidence that is entirely subjective. One of the only exceptions in this regard would relate to the case of Al Capone in the United States. It is not appropriate that the opinion of any member or former member of the Garda Síochána would be acceptable. Opinion has not been acceptable within the Special Criminal Court to date.

I accept that the section was drafted with the best of intentions. However, why is the Minister proceeding with it when, most assuredly, it will be open to abuse? Under it, virtually anyone the Garda wishes to identify as being part of a criminal gang will be capable of being so identified. Matters are going to be left wide open and it is difficult to see the provision withstanding a challenge on the basis of its constitutionality.

See this speech in context