Ivana Bacik (Independent)

I am opposed to section 7. While either amendments No. 1 or No. 2 would go some way towards improving it, I am fundamentally opposed to the principle expressed in the section that a garda or former garda of any rank may give evidence as to the existence of a particular criminal organisation and that this evidence shall be admissible as expert evidence. As I explained earlier, this flies in the face of established rules of evidence. I accept, as I said on Second Stage, that the Minister has not inserted a provision whereby a garda can give evidence of his or her belief that a person is a member of an organisation. Nonetheless, the evidence proposed in section 7 is a prerequisite for proof of the commission of an offence under section 71A, as inserted by section 5, section 72 and section 73 of the Criminal Justice Act 2006, all of which relate to criminal organisations. Clearly, some level of proof as to the existence of a particular criminal organisation will be part of the proofs for that. In section 7(4) there is already a range of different types of evidence from which a court may deduce that a particular group constitutes a criminal organisation, or that it exists. I am not clear why this extra provision is inserted when it seems to me to be so problematic.

I have been re-reading the Hederman report of 1999. I am not suggesting that report was against the Special Criminal Court. In fact, the majority argued for the retention of that court. However, when they looked at the nearest equivalent of this provision, which was section 3(2) of the Offences Against the State (Amendment) Act 1972 that provides for the evidence of a chief superintendent as to membership, they provided various commentaries on page 124 of the report, which seem to be relevant in considering this provision. They point out that the opinion evidence rule in section 3(2) appears to violate three established rules of evidence. Paragraph 6.91 of the report states:

First, while acknowledged experts are permitted to give evidence of opinion, their expertise must be established and their opinion is generally confined to scientific, medical, engineering and cognate matters, and the application of such knowledge to factual dicta in accordance with established professional norms.

That is very different from the sort of opinion evidence we are talking about here. As I said earlier, expert opinion is allowed as an exception to the normal rule against the admission of opinion evidence. This section purports to declare somebody to be an expert.