Alan Shatter (Dublin South, Fine Gael)

The purpose of the motion is to provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a further period of one year from 1 July. One of the most important traits of a democratic society is a justice system that operates free from interference by anyone seeking to wrongfully influence outcomes. The criminal justice system is made up not only of judges and lawyers but also by the participation of citizens, whether as witnesses or jurors. It is this latter role which is so central and essential to our idea of a trial by a jury of one's peers. There is nothing that can be considered more insidious than the targeting of those citizens who are prepared to put themselves at the service of the public by serving as jurors with a view to influencing the outcome of criminal proceedings. That is the reality we must face and a matter that we, as legislators, must resolve.

I know that Members of this House feel as I do that trial by jury must be preserved to the greatest possible extent. However, none of us can be blind to the threat posed to the criminal process by individuals, terrorist groups and organised criminal groups which seek to intimidate jurors or potential jurors. Their aim is to subvert the criminal justice system. We cannot allow that to happen. Therefore, we must take measures to prevent this interference. It is a sad fact that to do so we have to make the decision that trial by jury is not appropriate in certain limited circumstances. I emphasise the point that section 8 of the 2009 Act is aimed at particular types of cases and that the centrality of jury trial to our system remains intact.

The Criminal Justice (Amendment) Act 2009 and the measures contained in it were put in place by the Oireachtas to take further action to address the increasing levels of violence by gangs involved in organised crime. Although the measures were aimed, in particular, at those who directed the activities of these criminal gangs, given the nature of organised crime, it is also essential to target those who participate in these activities. The Act primarily provided for the trial of organised crime offences in the Special Criminal Court, unless the Director of Public Prosecutions otherwise directed. The creation of a new offence of directing or controlling a criminal organisation and an increase in the maximum penalty for the offence of participation or involvement in organised crime are caught with regard to all organised crime offences to be able to draw inferences from a failure to answer questions or to account for movements, actions, activities or associations, with an increase in the penalty for the intimidation of a witness or juror from ten to 15 years imprisonment.

It is the view of the Garda authorities that these provisions are indispensable to them in tackling organised crime. A large number of arrests have been made under these provisions and charges are being pursued against a number of people. I would be less than frank if I do not say to the House that useful as the provisions are, there will be disappointment that they have not proved to be of greater benefit in tackling the death and destruction caused by criminal gangs. That is why I have asked my Department to review them to see if there are any further measures we can take.

Section 8 of the 2009 Act is the subject of this resolution which is aimed at ensuring organised criminal gangs cannot interfere with the court process to influence the outcome of cases. For this purpose, the section declares that the ordinary courts are inadequate to secure the effective administration of justice, the preservation of public peace and order in relation to certain organised crime offences under Part 7 of the Criminal Justice Act 2006, as amended. I will detail these offences for the House.

The offences are deemed to be scheduled offences for the purpose of Part 5 of the Offences against the State Act 1939. This means that they will be tried in the Special Criminal Court. However, the Director of Public Prosecutions may still exercise his power to direct that offences should be tried in the ordinary courts.

Section 8(4) provides that the section shall cease to be in operation, unless a resolution has been passed by each House of the Oireachtas resolving that it should continue in operation for a period to be determined by the Oireachtas. Seanad Éireann and Dáil Éireann passed such resolutions on 29 June 2010 to continue the operation of the section until 30 June 2011.

Section 8(6) provides that before a resolution to continue the section in operation is tabled, the Minister shall prepare a report which shall be laid before both Houses on the operation of the Act in the period under report. I laid such a report before both Houses on 14 June.

Section 8 of the 2009 Act refers to four particular offences which are set out in Part 7 of the Criminal Justice Act 2006, as amended. They are section 71A, the offence of directing a criminal organisation which carries a penalty of up to life imprisonment. This offence was inserted by section 5 of the Criminal Justice (Amendment) Act 2009. It is intended to target those who direct the activities of organised criminal gangs. However, it is aimed not just at those who are in a leadership position in the gangs but also at those who are further down the food chain, so to speak, at all levels of the gangs. The offence carries a penalty of up to life imprisonment.

Section 72 is the offence of participating in or contributing to the activities of a criminal organisation in order to enhance gangs' ability to commit a serious offence or facilitate the organisation in committing serious offences. This offence was inserted by section 6 of the 2009 Act and carries a penalty of a fine and-or up to 15 years imprisonment.

Section 73 is the offence of committing an offence for a criminal organisation. The maximum penalty for this offence was increased from ten to 15 years imprisonment by section 10 of the 2009 Act. Section 76 provides for liability for offences under Part 7 of the 2006 Act where they are committed by corporate bodies, their members, directors and managers.

Senators will be well aware of the ongoing threat which organised crime presents to society. There are a number of criminal gangs in the State which continue to engage in very serious crimes. The unfortunate fact is that there is plenty of evidence of the involvement of these gangs in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. There is also no doubt about their willingness to engage in the most serious violence to protect their interests and ensure they can continue their activities.

I take the opportunity to praise the Garda Síochána for its ongoing efforts in tackling these criminal gangs. It continues to deploy considerable operational resources in a number of operational approaches to tackling organised and serious crime, including a multi-agency approach and the deployment of intelligence-led targeted operations. The primary role of the Garda organised crime unit is to target organised criminal gangs in conjunction with other national units such as the emergency response unit, the National Bureau of Fraud Investigation and the Criminal Assets Bureau. These units are working collaboratively. They have had and continue to have success in disrupting criminal gangs.

Senators will know there have been a number of significant arrests and seizures of significant quantities of drugs in February, March and April as part of ongoing operations being undertaken by the Garda authorities with the co-operation of the customs service. Drugs to the value of over €750,000 were seized in March during an operation in Slane, County Meath. During another operation in April near Enfield in the same county, almost €1 million worth of heroin was seized. Gardaí made arrests in these and many other operations and charges are being brought. The nature of organised crime means that the process of investigation and prosecution can be lengthy and difficult, particularly in light of the power criminal gangs hold over the people involved with them.

The report I have laid before the House is based on information provided to me by the Garda authorities. It shows that section 8, which is the subject of this resolution, has not been used in the period under report, but the related sections of the Criminal Justice Act 2006 have been used by the Garda on 72 occasions. These arrests have resulted in four people being charged with offences contrary to section 71A - directing a criminal organisation - and section 72 - participating in or contributing to the activities of a criminal organisation. These arrests have resulted in other charges, relating to firearms offences, the sale and supply of controlled drugs, robbery, aggravated burglary and other serious offences, being proffered. Although there have been many arrests under the relevant sections of the Act, no cases have come before the Special Criminal Court to date. This does not invalidate the reasoning for having such a provision available for use when the circumstances require it.

As I have said, the Garda authorities are clear in their view that the provisions of the 2009 Act are indispensable in the fight against organised crime. The Garda authorities consider it is of paramount importance that the relevant provisions of the Act be extended for a further period. In matters of this nature, I must have the utmost regard to the views of the Garda authorities. It is absolutely essential to ensure gardaí have at their disposal the best possible range of powers to face and tackle these dangerous criminal gangs. The Garda authorities devote considerable resources from across the Garda organisation to their efforts to tackle organised crime. The Garda Commissioner has made it clear time and again that there will be no let-up in the action being taken against these gangs. He has my full support and that of the Government for his approach. In recent years, the Oireachtas has legislated for a comprehensive programme of criminal law reform to assist in combating organised and serious crime. This legislation is making a significant contribution to tackling this type of crime. I will keep under review the question of whether any improvements could be made to the overall legislative package in this area to render it more effective. As I indicated earlier, I have asked for a specific review of the provisions of the 2009 Act. I am sure Senators will agree that as legislators, we have a duty to make the most effective legal powers available to the Garda, the prosecution authorities and the courts to deal with criminal gangs that cause so much harm to society.

We need to make it clear that those who are deeply involved in organised crime are desperate and will stop at nothing to avoid being brought to account for their crimes. Extreme violence and brutal intimidation are a way of life for these thugs. They have no regard for society or the law. We all have a duty to make sure the criminal justice system can hold sway over them. To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has the means available to it to bring these criminals to account. This provision is a departure from the right to trial by jury in the normal course of law. In the circumstances, however, I believe this is a justified and measured limitation of that right. On balance, I consider that the period of time for which I propose to renew this section is proportionate. The 2009 Act provided for an original period of one year for the provision to be in operation before its continuance in operation should be reconsidered. The period that is now proposed, which will run from the current expiry date to 29 June 2012, corresponds to that. If it is proposed to continue the operation of the provision after that date, of course the Oireachtas will have to consider the matter again. I commend the resolution to the House.