Alex White (Labour)

I move amendment No. 4:

In page 11, before section 8, to insert the following new section:

8.—(1) The Director of Public Prosecutions shall not exercise his or her power under section 46(1) or (2) of the Offences against the State Act 1939 (as amended by section 11 of the Criminal Justice Act 1999) to certify in writing that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of public peace and order, in relation to the trial of an offence that is not a scheduled offence within the meaning of that Act, unless the Director is of opinion, on reasonable and objective grounds, that there is a real and substantial risk that jurors or potential jurors in the case may be intimidated or put in fear.

(2) In any proceedings in a court where it is sought to challenge or review the basis of the opinion of the Director of Public Prosecutions referred to in subsection (1), the court shall take all such measures as seem to it appropriate, consistent with the administration of justice, to ensure that the necessary confidentiality of information available to the Director is maintained and that the integrity of the criminal investigation and prosecution processes are preserved.

(3) For the avoidance of doubt, in arriving at the opinion referred to in subsection (1), it is not necessary for the Director of Public Prosecutions to be satisfied beyond reasonable doubt, or on the balance of probabilities, that jurors or potential jurors in a case will be intimidated or put in fear; but the Director must be satisfied:

(a) that there is a real and substantial risk of such an outcome in the particular case concerned; and

(b) that measures lawfully available in relation to the protection of jurors and their identities are inadequate to meet the situation.

We have touched on this vital aspect of the proposed legislation on a number of occasions, including on Second Stage. The Minister has acknowledged this is an area in respect of which there is considerable unease and concern although he has not yet been willing to yield to the view that the proposed section 8 of the Bill is excessive. He has not yet set out for the House any hard evidence as to the necessity of what he is proposing.

When the Minister responded on Second Stage, he was unhappy with the suggestion of mine and others that he had not produced any evidence. He criticised our statement but did not take the opportunity to set out any evidence for the House. Instead he referred to a number of speeches made by one of his colleagues in the Dáil. I examined those speeches, all the commentaries I could find in the newspapers and every relevant statement by the Minister himself but could find a reference to only one instance in which it was alleged that a jury was intimidated or interfered with. It was a case in Limerick and it was referred to in a newspaper article in recent days. If my memory serves me correctly, it was referred to in the other House by the Minister's colleague, the Minister for Defence, Deputy O'Dea. I am open to correction in saying the case - it is the only actual case referred to by anybody in the course of the debate in the past week or ten days - was moved to Dublin where a conviction was ultimately secured. I do not contend this case should not be part of the debate but that there is a considerable difference between suggesting juries might be interfered with or intimidated and indicating or demonstrating this is the case. While I accept that action must be taken if it is feared that intimidation will genuinely occur, the Minister must accept the case he is making is on a completely different level from a case in respect of which he might argue, if possible, that intimidation has in fact occurred. I am not being pedantic because there is a quite serious distinction to be drawn.

There are many awful circumstances in respect of which fear might pressurise us into considering preventive action but we do not take such action because we believe in the integrity of the criminal justice system. We believe in holding firm with the checks and balances that exist. It is often argued, not only in Ireland but also elsewhere, that one should think twice, or more, before taking apart the fundamental elements and pillars of the criminal justice system. We do not allow criminals, in addition to the havoc they wreak through their crimes, to undermine and take apart our criminal justice system.

Our courts secure convictions for gangland crimes that have occurred in Limerick, Dublin and other parts of the country. Mr. Justice Carney, who is the one of the most experienced of all the judges in the Central Criminal Court, has been quoted in the newspapers as saying that when gang members are brought before jury courts over which he presides there is no difficulty convicting them. A colleague of Senator Regan's, Deputy Charles Flanagan, asked the Minister recently whether he had any evidence of interference with, or intimidation of, jury members. As I understand it, although I have not seen the letter, he said in a written reply that the Garda keeps no statistics on those matters. I presume that if there was evidence of this the Minister would be able to tell us so. I am sure, as Deputy Rabbitte said in the other House, that the Minister, or any Minister, who so robustly advances his proposals would not withhold examples of interference with members of juries if such information were available to him.

There has been a constant conflation of threats to witnesses and jury members but these are different matters. When people defend this legislation they refer, whether unwittingly or otherwise, to people's concerns about interference with witnesses. This Bill does not deal with interference with witnesses. There is only one reference in the Bill to witnesses and that is in section 16 which amends the 1999 Act by substituting 15 years for ten years as the penalty for witness or juror intimidation.

There was a reference at the beginning of the Explanatory Memorandum to the Bill that gave the impression that the Bill deals with threats to witnesses. That is not the case because the Bill does not go down that road. The Minister has properly confronted that question elsewhere and my party has not only supported some of the legislation the Minister introduced but proposed similar legislation prior to his doing so. This included surveillance and witness protection. A little over a year ago I moved a witness protection Bill in this House which the Government did not support. Parties on this side of the House have been to the fore in proposing measures to deal with this problem.

The amendment we have tabled would delete the notion of providing for crimes that would automatically be triable in the Special Criminal Court but would preserve the role of the DPP in particular cases to send certain serious offences for trial to the Special Criminal Court. He would, however, have to be satisfied on reasonable and objective grounds that there was a risk of jury intimidation. Presumably that is the outcome the Minister is trying to achieve.

The legislation has gone from the initial proposition that we should do that to abolishing juries altogether in respect of a range of offences. The Minister assured us that he has carefully considered all the alternatives. What level of attention was given to those alternatives? Why were those alternatives rejected? Did the Minister rely on the opinion of the Garda only or did he debate or deliberate this with other experts? The Minister said on Second Stage that the time for debate is over and the time for action is here. I cannot imagine that the Minister misunderstands us when we say we want the Bill to have more time. We mean we want it to have more time in the open. We want more public debate, including in these Houses.

He and his officials may have been dealing with this for months or weeks and he regards that as sufficient attention and deliberation in order to proceed. He and his officials know the issues, as do the Attorney General and the Garda, because they have been dealing with them but we are not privy to that deliberation. How many more times do we have to repeat that we want more time for these Houses to scrutinise the decisions that he has made? It is not enough for him to say that he has given it all this consideration. I accept that he has considered it carefully but he cannot abrogate the role of the Oireachtas in this process. It does not have to be particularly lengthy. It does not have to go on for months on end, as Senator Leyden and others suggested, but we should have an insight into the basis for these decisions.

I am not prepared to agree, simply because it is proposed that I should, without any persuasive argument, that "the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order" in respect of these offences until and unless the Minister proffers some argument that holds water on the question of the intimidation of jurors. The case in that respect has not been made. It would be a major statement for the Oireachtas to make the case at this point that the ordinary courts are not capable of securing the effective administration of justice. I for one am not prepared to make that statement because I am not persuaded that is the case. There are many other measures the Minister and the Government could take to ensure the effective administration of justice to protect jurors and to ensure the integrity of the system short of removing juries altogether. Many other measures could be taken that have been suggested to the Minister, but there does not appear to be any wish or inclination on his part to take them.