Ivana Bacik (Independent)

I record that I oppose this section. I support Senator Alex White's amendment, which is a sensible and proportionate response to the concerns the Minister expressed about potential jury intimidation. I support what Senator Alex White said about the need to show some evidence for that. We have not been given that sort of evidence. Given that we can accept that there are genuine concerns about jury intimidation in this sort of case, there are real dangers in the approach the Minister has taken to dealing with those concerns, that is, the approach of making a sweeping declaration that the ordinary courts are inadequate for the trial of certain organised crime offences.

If I have the Minister's attention I might point out that this sweeping declaration is most concerning because it amounts to a pre-emptive announcement that our jury courts are not up to the task of dealing with certain offences. That goes towards undermining the integrity of our criminal justice system. It is a serious matter. It amounts to an admission of defeat at the hands of criminal gangs. It is a serious matter if we are coming to that stage. It is unprecedented that we have made such a sweeping declaration in respect of offences that are not of a subversive nature. I note the section appears to be modelled on section 14 of the Offences Against the State (Amendment) Act but that related to offences committed in the context of unlawful organisations under the offences against the State legislation. It amounted to a different type of offence to the offences of organised crime, about which we are making a similar sweeping declaration in section 8.

This type of pre-emptive announcement is worrying because it amounts to what the Irish Human Rights Commission has said represents resorting to a parallel criminal justice system that does not provide the accused with the right to trial by jury. There is a danger that we are admitting defeat by criminal gangs and that we are saying our Central Criminal Court and Circuit and District Courts are not up to dealing with organised crime and that instead we must create this parallel system of justice. The idea of a parallel system gives rise to echoes, and I accept it is a slightly overblown comparison, of the Guantanamo Bay regime, which we must not forget was set up as a sort of parallel regime for dealing with people by the US authorities, where they felt their courts were not up to it or they were concerned about the inadequacy of their courts. We must be careful before we make sweeping statements about the inadequacy of our courts. Senator Alex White's amendment makes a much more proportionate response in the sense that it provides for the DPP to refer such cases to the Special Criminal Court, where he is of the opinion on reasonable and objective grounds that there is a real and substantial risk that jurors or potential jurors may be intimidated or put in fear.

The proposed amendment is much more sound constitutionally and legally in two ways. First, it answers the criticisms made by the United Nation's Human Rights Committee in the Kavanagh case, where it indicated that the decision to try Mr. Kavanagh in the Special Criminal Court should have been based on reasonable and objective grounds. It outlined that the State had not offered reasonable and objective grounds for its decision in referring his trial to the Special Criminal Court. In that way it is a sensible response. It also has echoes of the British law to which Senator Alex White referred, and to which the Human Rights Commission also referred. They speak of the legislative framework in Britain where the prosecution must satisfy the court that there is a substantial likelihood that jury tampering would take place, notwithstanding any reasonable steps such as police protection that might be taken. It is only when the prosecution has shown that is the case that it can resort to non-jury trials in respect of this sort of crime. That would be a much more forensic and targeted approach to answer the real concerns about jury intimidation.

The other issue pointed out by the Human Rights Commission is that we need to know that there are no alternative methods of dealing with the fear of jury intimidation without resorting to the Special Criminal Court. I note that the Human Rights Commission recommended that consideration would be given to alternative methods to protect jury members against intimidation, including providing for anonymous juries, screening the jury from public view, the protection of the jury during the trial or locating the jury in a different place from where the trial is being held with communication by video link. We might add a couple of points to those potential alternatives. First, the new Criminal Court building that is being brought on-stream near the Phoenix Park will have much better facilities for keeping jury members separate. Senator Leyden referred correctly to problems in the past with jury panel members mingling with everybody else going into court rooms in the Circuit Criminal Court. There were problems in that regard, some of which have been resolved. The coming on-stream of the new premises will answer some of those problems. There have also been suggestions that where there is a difficulty with swearing in a jury in a particular location, a jury panel could be widened or a trial moved to Dublin, for example, if the location is outside of Dublin, so there is less potential for intimidation. If one considers alternatives such as those, we might see a better method of protecting juries without doing away with them altogether, as in this model.

I accept the Minister said he is not entirely abolishing trial by jury for those offences. I note that section 8(3) preserves the power of the DPP to direct that a person would not be sent forward, but given the presumption under section 8(1) that the ordinary courts are inadequate, and the declaration by the Oireachtas to that effect, it becomes very difficult to envisage the DPP taking a stance against that sweeping declaration in any individual case. I hope I am wrong about that. In fairness to the DPP, it would be going against what the Oireachtas has declared in a sweeping way about the adequacy of the ordinary courts to deal with certain organised crime offences. It is the sweeping nature of the declaration in section 8 that requires criticism and opposition as it calls into question the integrity of our system and its ability to cope with crime more generally, which is a serious matter.

To be fair, I welcome the provision in section 8(4) that the section shall be subject to review in 12 months. That is recognition by the Minister that this is a significant departure from previous powers and that in section 8(5) and 8(6), before the section is to be continued in operation, a report must be prepared and placed before the Houses of the Oireachtas. Again, that is very important, although, as Senator Alex White said, there has been a somewhat cursory review of similar provisions in the past. However, it is important that review is built in if a provision of this nature is to be introduced. I urge the Minister to consider adopting an alternative approach such as that outlined in Senator Alex White's amendment and to give us some indication that he has considered alternative ways to protect jurors where he fears they may be subject to intimidation.