Dermot Ahern (Louth, Fianna Fail)

I was then encouraged, as a more reduced measure, to bring in opinion evidence. As I pointed out, opinion evidence has been successful but one must obtain corroborative evidence, which is much more difficult in the area of gangland crime. The reason we are now introducing these measures is that we regard them as an alternative. It has been extremely difficult to ground prosecutions on the basis of the offence contained in the existing legislation in respect of participation. Only one such prosecution has been taken and in that instance the individual pleaded guilty. In such circumstances, the position was not really challenged in the court.

We re-examined the position in respect of opinion evidence following the murder of Shane Geoghegan as a result of the exhortations of Members of the Oireachtas. I asked the Attorney General to reconsider this matter in order to discover whether a provision relating to it might be included in the legislation. He gave exactly the same legal opinion to the Government as his predecessor did when the original legislation was being drafted. The basis of that advice is that opinion evidence only goes so far. The courts have decided that corroborative evidence must be provided and that a witness cannot merely state that a person is a member of the IRA or that someone else is a member of a particular gang. Section 7 is, therefore, an innovative way of trying to establish that there is, in a particular geographical area, a criminal gang.

The point the Senators have made in respect of the amendments is that the person who provides the evidence required should be a chief superintendent. Let us consider what would be the position if a criminal gang were operating in my hometown of Dundalk and what would happen if we were trying to establish grounds to prosecute some of its members. The chief superintendent for our area is based in Drogheda. Are the Senators stating that he would have better knowledge than a garda operating on the ground in Dundalk? The position could be similar in Limerick where, perhaps, an assistant commissioner for the area could be based in Cork. The latter would be obliged to give evidence in a court case and would not possess the same knowledge, expertise or opinion as, for example, a detective inspector who operates in Limerick on a daily basis.

The Garda Síochána has indicated that it is more than likely that a person giving evidence under this section would hold the rank of detective inspector, namely, a person who would know seed, breed and generation of the various people involved in the gangs in a particular area. The Garda has insisted that it is not the rank of the individual garda that is important, it is rather the actual knowledge, expertise and experience he or she possesses which should qualify him or her to provide evidence as to the existence of a gang and not in respect of whether a certain individual is a member of that gang.

As stated on Second Stage, any good lawyer would be able to drive a coach and four through the evidence of a chief superintendent who might spend most of his or her working life sitting behind a desk and who might not possess knowledge relating to the existence or the workings of a particular gang. In view of what Opposition Members stated on Second Stage in the Dáil, and leaving aside the various arguments with regard to getting it wrong in the context of the provision of opinion evidence, prior to the debate on Committee and Remaining Stages there, we returned to the Garda Síochána and pursued the matter further. Again, those at the highest levels in the force indicated that as far as they are concerned it is not the rank of the garda that is important but rather the expertise he or she possesses.

I do not accept Senator Bacik's contention that the section does not provide guidance to the courts in respect of this matter. Such guidance is clearly outlined in the relevant subsections.

Section 13 states that nothing shall prevent a court, in proceedings under Part 7 of the Criminal Justice Act 2006, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value. This safeguard is being included in order to ensure that only a certain weight, and no more than that, will be placed on this type of evidence. It will obviously be the responsibility for the Garda to establish the expertise of the person.

Senator Leyden referred to ensuring that a garda providing the evidence should remain anonymous. That would be neither acceptable nor feasible because he or she must be subject to cross-examination in open court in respect of his or her experience and knowledge. Unfortunately, it is a hazard of the job that gardaí must give evidence. Gardaí are resolute in performing their duties and we compliment them in that regard.

We have made provision in respect of former members of the force for the simple and valid reason that the person who may possess the most expertise might be a garda who has just retired. It is ludicrous to suggest that the Garda Síochána might put forward an ex-member who might be ten years out of the force and who might now have a career in a completely different area. What has been stated in this regard is nonsense, particularly in view of the fact that the court must be satisfied that the ex-garda in question is capable of imparting knowledge that is relevant to his or her experience. The section provides a belt and braces approach in respect of a situation where a trial might be initiated and where the person who possesses the most expertise might only have left the force a couple of months earlier. In such circumstances, it would be far better to oblige that individual to provide evidence than it would be to have a garda with less experience or an officer who has not been serving in an area for a long period do so.

When one is dealing with gangs, in many instances one is dealing with families or a number of families that have come together to form a gang. It is, therefore, important that there be a continuity of experience in respect of who might or might not be a member. In certain instances, a member of one gang might transfer his or her allegiance to another. This has happened quite often. Again, the section is designed to contemplate such an eventuality. Those operating on the ground who possess the best knowledge should be the ones charged with providing evidence under this section.