Ivana Bacik (Independent)

I am speaking to the amendments. If we are going to go down the road of declaring people to be expert at the very least the persons concerned should be of a high enough rank in An Garda Síochána for their opinions to carry a certain weight. Even then, I am against the principle of section 7, in particular subsection (1) which seeks to insert a new section 71B.

I see the Minister has a copy of the Hederman report and has presumably examined the provision I mentioned. The majority of the Hederman committee went on to say they did not believe that a person should be convicted of the offence of membership solely on the basis of the opinion of a chief superintendent. They said, however, that such opinion might be treated by the courts as corroborative evidence in appropriate cases. The majority were not in any way liberal in their thinking generally in terms of the Special Criminal Court. However, it is interesting to note that they looked at the case law on section 3(2) and pointed out that the courts were reluctant to convict where there was no other evidence. I accept that it is a different type of provision but it is the same principle - that it declares the opinion of a garda in some way to be admissible in evidence as to the existence of certain facts.

I have a concern that the provision as currently drafted does not have any reference to the need for any corroboration. Neither does it have any reference to the need for a member of An Garda Síochána of any particular rank to give the evidence. It simply seems to allow any member or former member of An Garda Síochána, who appears to the court to possess the appropriate expertise, to give evidence as to the existence of a particular criminal organisation. The only guidance for the court as to what is expertise is in section 7(2) which states that: "'expertise' means experience, specialised knowledge or qualifications". That is very different to the sort of experts we are used to seeing in the criminal courts, such as a forensic pathologist or engineer. They are persons with professional qualifications who give an interpretation of facts that no lay person could give. The sort of evidence that, inevitably, members of An Garda Síochána will have to give will be based on a mixture - the Hederman committee said this - of hearsay and other inadmissible evidence, which would not in themselves be admissible as evidence. They are talking about the opinion of a chief superintendent there, in section 3(2).

I think therefore that there is insufficient guidance for the courts as to how they will judge expertise. There is no provision for any requirement of corroboration, although there is a list of matters which could be regarded as separate evidence of the existence of an organisation or, indeed, could be regarded as corroboration. As a whole, the section is drafted so broadly in terms of the sort of evidence it appears to allow, that it is very much flawed. It does not even say whether the garda concerned should have any particular personal knowledge of the facts on which he or she is to give evidence. There is no requirement that they be linked in any particular way to the area about which they are speaking or any other matter of that nature.

In his speech, the Minister said the reason he has put in "any member of the Garda Síochána of no particular rank" is so that it can be at the level closest to the ground, the person who has the most direct personal knowledge. However, there is nothing in the section to say that the court must be satisfied that this is in fact the member of An Garda Síochána who is closest to the organisation, the existence of which is alleged. There is nothing there to give the court that connection which the Minister says is so important.

For all those reasons I am opposing the section. The proposed amendments would improve it somewhat, but I would still have a fundamental objection to it.