Pat Rabbitte (Dublin South West, Labour)

I move amendment No. 6:

In page 10, before section 8, to insert the following new section:

8.—(1) The Director of Public Prosecutions shall not exercise his or her power under section 46(1) or (2) of the Offences against the State Act 1939 (as amended by section 11 of the Criminal Justice Act 1999) to certify in writing that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of public peace and order, in relation to the trial of an offence that is not a scheduled offence within the meaning of that Act, unless the Director is of opinion, on reasonable and objective grounds, that there is a real and substantial risk that jurors or potential jurors in the case may be intimidated or put in fear.

(2) In any proceedings in a court where it is sought to challenge or review the basis of the opinion of the Director of Public Prosecutions referred to in subsection (1), the court shall take all such measures as seem to it appropriate, consistent with the administration of justice, to ensure that the necessary confidentiality of information available to the Director is maintained and that the integrity of the criminal investigation and prosecution processes are preserved.

(3) For the avoidance of doubt, in arriving at the opinion referred to in subsection (1), it is not necessary for the Director of Public Prosecutions to be satisfied beyond reasonable doubt, or on the balance of probabilities, that jurors or potential jurors in a case will be intimidated or put in fear; but the Director must be satisfied:

(a) that there is a real and substantial risk of such an outcome in the particular case concerned; and

(b) that measures lawfully available in relation to the protection of jurors and their identities are inadequate to meet the situation."

This amendment concerns a pivotal section, which turns on the intimidation of juries. It deletes the provisions making organised crime offences scheduled offences triable automatically in the Special Criminal Court. It preserves the right of the DPP, in particular cases, to send serious offences forward for trial to that court. It would require him to be satisfied, on reasonable and objective grounds, that there is a risk of jury intimidation and would require any court hearing a challenge to the basis of this opinion to take all necessary steps to preserve confidential information. It provides that the DPP's opinion does not have to be one sufficient to satisfy a court beyond reasonable doubt or even on the balance of probabilities but the DPP must be satisfied there is a real and substantial risk and that no other measures for the protection of jurors and their identities are adequate to deal with the situation.

The section is pivotal to the Bill because it involves the Oireachtas declaring that the ordinary courts of the land are not adequate to deal with the effective administration of justice and the preservation of public peace and order in respect of certain offences. It is a major statement by the Oireachtas to the effect that the ordinary courts are not capable of securing effective administration of justice. Until now, the Minister has not advanced any evidence to show that it is true. We have no evidence to suggest the ordinary courts are not capable of delivering justice and preserving peace and public safety. Dr. Carol Coulter stated, "the Bill has not been accompanied by any evidence of a failure on the part of the courts or any reluctance on the part of jurors to face up to their responsibilities. Indeed, the principal judge in the Central Criminal Court, Mr. Justice Paul Carney, is on the record as stating that when gang members are brought before his jury court there is no difficulty convicting." He is the most experienced and senior judge dealing with this area of serious crime. This is the judge who took his court to Limerick and heard cases from Limerick in Dublin, which is the alternative.

The big question is that if the Oireachtas is to declare that the ordinary courts are inadequate to secure administration of justice and if juries are being intimidated why do we not have a number of perverse acquittals to which any Deputy in the House can point. Where have trials collapsed because jurors have been got at? Why do we continue to deliberately confuse witnesses with jurors? I have not heard any Member of the House deny that witness intimidation occurs. There is witness intimidation and people are in fear in certain parts of urban Ireland in particular.

It is important to understand that a move to the Special Criminal Court does not mean that justice can be administered without witnesses. Witnesses will still have to be produced in court after this legislation goes through, if the Minister is intent on putting it through today. If a case of this magnitude goes to the Special Criminal Court witnesses will still have to be produced. Late the other night, the Minister went within an ace of stating to a Deputy in this House that it might be possible to get convictions without witnesses. He did not quite say that but he went very close to the line. If people here were not vigilant to point out the obvious he might even have nodded in that direction. He knows very well that even after the implementation of the Criminal Justice (Surveillance) Bill it still will not be possible to convict without witness evidence.

Many people are offering views on this outside of the House. One can understand that this is a subject that greatly moves people for obvious reasons. Some people writing on it do not have any particular experience or expert knowledge, but they are still writing on it and one takes that for what it is worth. It is unusual to see the Garda Commissioner entering public debate on a Bill going through the Oireachtas; I do not recall it happening before.

I have much regard for the present commissioner, Fachtna Murphy, but I am also aware that when he appeared before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights we did not get any answers to the effect that the problem was a gap in the law. In fact, until quite recently, the Garda Síochána at the highest level opposed the Labour Party Bill on Garda surveillance, which would permit material gathered by covert surveillance to be admissible as evidence in court. The then Minister, Deputy Brian Lenihan, stated it was opposed because, to use his memorable phrase, it would only serve to alert criminals to Garda investigative techniques. It appears this has changed and there may be good reasons for this change but the history should be on the record of the House.

I am glad the Government changed its view on the Labour Party Bill because, unlike this Bill, it provided some ease to witnesses not by enabling the Garda Síochána to conduct surveillance because it has always been able to do so, but by enabling the information gathered to be made admissible in court as evidence. The Government introduced a Bill similar to that of the Labour Party and it received support on this side of the House. That was important because we do nothing in this legislation to protect witnesses and we have not proved that there is a regular or serious problem of intimidation of jurors. We have the Minister's word for this.

Previously, I referred to the letter he wrote to Deputy Charles Flanagan where he could not produce any evidence of intimidation of jurors. Deputy Aengus Ó Snodaigh tabled a written question to the Minister for reply on 7 July. Deputy Ó Snodaigh asked the Minister to state specifically the number of suspected and proven instances of jury intimidation. The Minister could not provide any. Again, he explained the view that the Garda does not maintain separate statistics so witnesses and jurors are rolled in together. To be honest, I do not buy it. If there was evidence of juror intimidation this Minister above all Ministers would put it up in lights. We would have read it from Stephen O'Byrnes or whoever. He would have put it out there; the chap who ran for Fianna Fáil on the northside would have written about it in the Irish Independent. We would have read about it. However, there is no evidence.

The Minister referred to the State solicitor in Limerick and I have already put his quote on the record; we will return to it if the Minister wants to engage on it. The State solicitor in Limerick came into the public domain after the Bill was published. Nobody in the House denies that we have a serious problem as a society driven by lucrative profits from the drugs trade where criminals who have little regard for human safety or human life are at large. Everybody in the House, without exception, wants to see them behind bars. Will this Bill make that more likely? I do not believe it will. It is a great pity that we do not have the opportunity to tease it through section by section. Perhaps it is capable of being turned into an Act that would make it more effective against the criminal bosses. As we stand, we will not be able to do that because we are only on section 8 of the Bill.

The amendment before the House does not undermine any of the Minister's core objectives in this legislation. What it seeks to do is to allow a case where there is an apprehension of intimidation of a jury to go to the Special Criminal Court. It puts that on a statutory footing. The Director of Public Prosecutions, DPP, already has that discretion, but this amendment would put it on a statutory footing. The same DPP, only a few weeks ago made some comments to a prosecutors' conference on the wisdom and historical reasons for jury trial. As he spelled out his arguments he said jury trial "imports a degree of democratic legitimacy into the system".

This amendment would preserve the right of the DPP, in particular cases, to send any serious offence forward for trial to the Special Criminal Court. It merely requires him to be satisfied on reasonable and objective grounds that there is a risk of jury intimidation. I cannot understand why the Minister will not take on board this amendment. It does not do violence to any of his core objectives in the Bill. It is not consistent for the Minister to say, on the one hand - as he does in the Bill - that the ordinary courts are inadequate to deliver justice and, at the same time, in a different section of the Bill, to say that where the DPP is so minded he may refer the case to the ordinary courts anyway. Which is it?

The better approach is to put on a statutory basis the discretion, as it has been up to now, whereby the DPP, confronted with a particular case, whether it is in Limerick, Finglas or anywhere else, can refer that to the Special Criminal Court under the guidelines I set down in the amendment. I ask the Minister, at least on this section that turns on the intimidation of juries, to take on board my amendment. Let us at least amend the Bill in that respect. That would certainly colour my view on other sections about which I have some reservations, but not so serious as the reservation I have in this regard.

See this speech in context