Ivana Bacik (Independent)

It is very difficult to see how a court will establish that in any proper way without going into the nature of the evidence.

The gardaí have expressed some concerns that following cutbacks in the force and early retirements, the insertion of the "former" member may be recognition that many experienced gardaí will have retired by the time the Bill comes into effect.

I accept that the Minister is not inserting in legislation the provision that a garda can give opinion evidence that a person is a member of an organisation. That would definitely have been a step too far. There must, however, be a real concern about gardaí giving evidence on matters such as this.

My second principal objection is to the sweeping declaration in section 8 that "the ordinary courts are inadequate to secure the effective administration of justice". This undermines our criminal justice system. The Irish Human Rights Commission, IHRC, to which the Minister referred, stated in page 6 of its observations: "The IHRC considers that the developed system of criminal justice which exists in Ireland is capable of effectively confronting the problem of organised crime without resorting to a parallel criminal justice system that does not provide the accused with the right to trial by jury."

Section 8 contains the unprecedented adoption of a "parallel criminal justice system" outside the realm of so-called subversive offences in which the Special Criminal Court already operates. It is unnecessary because the Director of Public Prosecutions, DPP, has the power to refer non-scheduled offences to the Special Criminal Court and used that power following that other watershed murder, that of Veronica Guerin, and the cases arising. In Britain the prosecution can apply for a non-jury trial if there is evidence of the potential for jury tampering. That is a preferable approach to this blanket or sweeping provision. In sections 35 and 36 of the Offences against the State Act there is a different mechanism for declaring that the ordinary courts are "inadequate to secure the effective administration of justice" and that must be done by the Government. Why is the Oireachtas doing this in this sweeping way in section 8?

I am gravely concerned about the provisions of sections 21 to 23, inclusive, for secret hearings, that can take place on the extension of a person's detention in the absence of anyone other than the garda seeking the extension and the judge, and possibly a court clerk. The Minister has defended these provisions on the basis of what is now a rather tired anecdote about an unnamed lawyer in Limerick. A corrupt lawyer is a very serious matter and that lawyer must be tried and if found guilty punished accordingly. I do not believe, however, that we should throw the baby out with the bath water, or change the entire basis of the hearing system for extending detention just because there may be one example of corruption. An alternative is possible, to exclude from the courtroom all except those directly concerned with the case or all except the lawyers for the prosecution and the defence.

I have tabled amendments on the lawfulness of arrest and detention. The Minister said that there is nothing in this Bill that is not already in Irish law, but I beg to differ. The three points I have raised are unprecedented in scope and in the way they encroach on the fundamental right to a fair trial. That is why I oppose the Bill.