Dermot Ahern (Louth, Fianna Fail)

Senator Regan put it very fairly when he said that to accept this amendment would weaken our objective in this legislation. It is important to reiterate that the decision to introduce this provision was not taken lightly. At the same time, as I said before, it does not constitute a seismic change in terms of the powers already available to the Director of Public Prosecutions. However, it is a signal of intent from the Oireachtas. It is the strong view of the Government that these provisions are necessary in view of the strong and definitive evidence we have received from the Garda Síochána of the degree of intimidation of witnesses and jurors in recent times and the heightened tension surrounding gangland trials, particularly in the aftermath of the Roy Collins murder, as well as the empirical evidence, as referred to by Senator Mary White, in regard to the dramatic dropping off in the numbers of people willing to come forward to perform jury service in a gangland trial.

The Garda Commissioner has stated that the level of threat posed by these gangs in certain sections of our community is similar to the threat posed formerly by paramilitaries on this island. The Government is strongly of the view that we should send out a signal to the Director of Public Prosecutions, to the public and, in particular, to those criminals who are directing and participating in criminal gangs that they run the risk of very serious penalties and will find themselves in circumstances where they will have less opportunity to take out and intimidate civilians, be they witnesses or jurors. I hope Members will support us in this endeavour as their colleagues did in the Lower House, where the legislation was passed with a substantial majority.

Contrary to claims made by some Members, the changes we made to legislation in 2006 have been very successful. Under those provisions, written statements made by witnesses who subsequently recant those statements because they are intimidated or fearful when it comes to testifying in open court can be used as evidence by the presiding judge. There have already been successful prosecutions in several trials where those circumstances have arisen. In one case, for example, 11 witnesses recanted their written statements but, because of the legislation passed in 2006, the judge was able to accept them as evidence and ignore the recantations.

Therefore, we have provided, to a large extent, for the issue of intimidation of witnesses. Some commentators have pointed out that Roy Collins was not a juror but a relative of a person who gave evidence as a witness. As such, the question has been raised as to why we are looking after jurors in this legislation. Does anyone suggest for one minute that these gangs will have any qualms about murdering a juror given that they have already shown themselves willing to murder a relative of a witness and to continue their intimidation of that particular family?

As I said, this provision was not introduced lightly. It was a decision based on strong advice from the Garda Síochána that the existing powers to deal with organised crime are not adequate to meet the level of threat which currently pertains. I accept that this legislation makes a very serious declaration. However, it is not a permanent one in that the Bill provides for regular reviews of the continuing need for its provisions. As Minister for Justice, Equality and Law Reform, I must, before a resolution is passed by both Houses of the Oireachtas, place a report before each House concerning the operation of the provision to date. The initial period of the provision will be one year. Therefore, one year after the enactment of the legislation and when the report is laid before both Houses, I expect that they will give it due consideration, will examine the prevailing circumstances and consider whether the legislation has operated effectively in the previous year, and will then decide whether or not to renew it.

I ask Members to consider the number of entirely innocent people who have been murdered by organised gang crime in recent times. That number includes Roy Collins, Shane Geoghegan, Anthony Campbell and Baiba Saulite. Members should ask themselves whether they believe that persons responsible for the bloody murder of ordinary people will hesitate for a moment to intimidate or otherwise undermine members of a jury. That is the crux of the issue. It is in the interests of these people, particularly the ganglords who are not pulling the trigger but are orchestrating the pulling of the trigger, to ensure these trials do not proceed. As I said on Second Stage, that is why we are endeavouring as much as possible to take out of the equation the issue of civilians either giving evidence or being part of the jury system.

Several Members referred to the concerns expressed by the Human Rights Commission. The commission has acknowledged that the Hederman committee concluded that the paramilitary threat justified the retention of the Special Criminal Court and, in addition, that the threat of organised crime was sufficient to justify its retention. The commission also recognised that organised crime is a problem in the State and that it has the potential to cause great harm to our society. The commission went on to observe that developments in the criminal justice system are capable of effectively confronting the problem of organised crime. That view is based on its own consideration of the matter, without the type of information available to the Cabinet from the Garda Síochána in respect of the level of intimidation that is taking place.

Several speakers raised the issue of what is happening in the United Kingdom. If the right to a jury trial is removed in that jurisdiction, the trial is conducted by a single judge. In this country, it is conducted by three experienced judges who have expertise in trying criminal cases. They are persons of the highest calibre and know exactly what is required in terms of protecting the rights of the accused.

The Human Rights Commission has also referred to alternative measures that could be taken to protect jurors. These have been examined but none is seen to provide full protection to jury members. Moreover, the employment of these methods in a particular case would almost inevitably send a signal to the jury that is incompatible with the presumption of innocence in respect of the accused because it would convey that the State has strong grounds for believing the safety of the jury is in jeopardy by the very reason of the criminal associations of the accused. Judges by their own training do not allow such matters to influence their thinking. There is therefore, in our view, a real danger that in suggesting we look at alternative ways, the Human Rights Commission would significantly undermine the benefit of the presumption of innocence to which the accused is entitled.

I suggest that these relate to very specific offences and they have been geared in that shape. I accept what Senator Regan says. There is a saver in that there is provision in this section that these specific cases or offences will go into the Special Criminal Court unless the DPP directs otherwise. We made those decisions based on the empirical evidence we have received on jury levels and the public response to gangland trials. The decisions were also based on the evidence the Garda Commissioner and his senior officials have given in recent months. They were also based on the tipping point of the murder of Roy Collins, where these people were clearly willing to take revenge on a family who participated in a criminal trial. They were not only taking revenge but also sending a strong signal to the rest of the community that if any of them participated in a criminal trial against members of this gang similar retribution would follow.

We made the decision, based on the aforementioned matters, to bring this legislation forward. Since then we have had a cacophony. People have raised valid criticisms but in some instances there has been a misconception with people criticising things that were not even in the Bill. Apart from that, the Human Rights Commission raised issues. In the Lower House we accepted one of the suggestions from the Human Rights Commission on the issue of inferences, so it is not as if we are unwilling to listen. We accepted an amendment from Fine Gael in the Lower House. However, there has been a cacophony from people since this legislation was published. They include people whom I respect very much, such as Paul Williams. In a recent interview he said that he had seen one of the most reputable judges in the Central Criminal Court make it very clear, in the absence of a jury in a trial within the past year, that he was aware that people were being intimidated left, right and centre. He went on to say that he was aware of another case where a phone was taken from a man in a cell. On the phone were instructions to people to make sure that certain people changed their evidence when they were before this judge, and that the judge was aware of this. He went on to instance a number of other circumstances where people were being intimidated when going before trials and jurors.

John Hennessy is a solicitor who is under constant protection because of threats against his life. He recently stated that there is absolute evidence that people are extremely reluctant to serve on a jury in a gangland criminal case. He also said it is proving increasingly difficult to secure a jury in these trials.

Michael Murray is a man for whom I have the greatest respect. Criminal elements in Limerick tried to burn down his office not so long ago. He has given strong anecdotal evidence of the difficulties in Limerick concerning jury trials. He instanced a case where clearly there was a change in the verdict because of jury intimidation. As I said earlier, a senior court official in the Limerick area stated that there is a tacit understanding that there is no point in holding gangland murder trials in Limerick. Who better to give empirical evidence than the people on the ground, such as the Minister for Defence, Deputy O'Dea?