Eugene Regan (Fine Gael)

I move amendment No. 1:

In page 9, line 50, to delete "any member" and substitute "a Chief Superintendent".

The first amendment relates to the evidential provisions as to the proof of existence of criminal organisations. As it stands, any member, or former member - following an amendment in the course of the debate in the Dáil - of the Garda Síochána can provide such evidence or opinion as the case may be, "who appears to the Court to possess the appropriate expertise...shall, subject to section 74B, be admissible in evidence in relation to the issue as to the existence of a particular criminal organisation".

It is proposed in the amendment that only the evidence of a chief superintendent should be accepted by a court rather than any member of the Garda Síochána. The basis for the amendment is found in section 71B(2) of the 2006 Act, which defines "expertise" as "experience, specialised knowledge or qualifications." The member of the Garda Síochána who has the requisite expertise within that meaning is none other than the chief superintendent. One accumulates experience during the years working in the field and to have the evidence of just any member of the Garda Síochána does not necessarily fulfil that criteria. Specialised knowledge is what one would expect somebody who qualifies for the rank of chief superintendent to have acquired. By definition, if a member of the Garda has graduated to the rank of chief superintendent one would expect him or her to have such qualifications. The very wording of the section speaks to the amendment that is being made. I do not think it would be denied by the Minister that a chief superintendent would have the expertise required to provide an opinion as to the existence of a criminal organisation.

The section stipulates that the member or former member of the Garda Síochána must appear to the court to "possess the appropriate expertise". How is a judge to determine that a particular garda or former garda has such expertise and is, therefore, an "appropriate expert"? My amendment would introduce the necessary safeguard that only gardaí of the rank of chief superintendent could be deemed suitable to provide such expertise. Such persons would, by definition, fulfil the requisite provisions of subsection (2) without any need for the court to make that assessment. The chief superintendent would be drawn on all the information available from his or her subordinates to make a determination in regard to a particular organisation.

This Bill provides for a new offence of directing a criminal organisation, while existing legislation provides for the offence of acting recklessly in terms of co-operating with or participating in a criminal gang. To designate a criminal organisation is a major determination and is the ultimate precondition for the conviction of the crimes of participating in, directing or otherwise being involved in a criminal organisation. It is important, therefore, that we get this aspect of the legislation right and that the necessary safeguards are in place. The wording of the Bill must be precise and effective.

There is a precedent for the requirement that evidence may only be provided by a garda of the rank of chief superintendent, although I appreciate that the role of the latter under the Offences against the State Act is to name an individual who is a member of an organisation and therefore commits an offence. Nevertheless, the responsibility to designate a criminal organisation is a serious one and should only be made by a person with the requisite knowledge, experience and qualifications, as the Bill requires. A garda of the rank of chief superintendent meets those requirements and is the person best qualified to make that determination and provide that opinion and evidence to the court. I commend the amendment to the House.