Alan Shatter (Dublin South, Fine Gael)

This motion will provide for the continuation and operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a period of 12 months, from 30 June 2012.

The purpose of section 8 is to ensure that organised criminal gangs cannot interfere with the criminal process to determine the outcome of cases. To this end, the section declares that for certain offences, the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

Lest anyone believe the 2009 Act was an overreaction to a non-existent threat, I will briefly remind Senators of its background. At the time, the level of organised crime had been on the increase. Organised gangs had shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. As a result, the Garda was encountering difficulties in persuading people to give assistance in their investigations. The complete disregard these gangs showed for human lives threatened to subvert the entire justice system. In the circumstances, it was imperative that the State take the necessary steps to ensure the criminal justice system was robust enough to withstand the assault that was launched upon it through intimidation of and violence towards witnesses and jurors. It was also necessary to assure witnesses and jurors that the State was ready to take the appropriate steps to protect them. The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law. They was also designed to instil confidence in everyone that criminal gangs would not be permitted to frustrate criminal investigations or prosecutions of their activities. They would not be permitted to believe that they could operate with impunity and with total disregard for the rights of others and the institutions of the State.

Due to the real threat these gangs posed, the Act provided for a limited number of specific organised crime offences to be prosecuted in the Special Criminal Court. The proposal to use the Special Criminal Court for a limited number of such offences removed the possibility of jury tampering or intimidation of jurors. The offences in question are the organised crime offences under Part 7 of the Criminal Justice Act 2006. Briefly, these offences are those created by the following sections of the 2006 Act: section 71A of the 2006 Act, which creates the offence of directing the activities of a criminal organisation; section 72, which makes it an offence to participate in or contribute to certain activities of a criminal organisation; section 73, which addresses the commission of a serious offence for a criminal organisation; and section 76, which deals with liability for offences committed by a body corporate. Section 8 of the Criminal Justice (Amendment) Act 2009 makes these scheduled offences for the purposes of Part V of the Offences against the State Act 1939. While this means that these offences are to be heard by the Special Criminal Court, the Director of Public Prosecutions may still exercise her power to direct that such offences be tried in the ordinary courts. I believe that permitting the Director of Public Prosecutions this discretion maintains the fundamental balance in deciding which cases are appropriate to be tried in the Special Criminal Court. It is clear that section 8 of the 2009 Act is aimed at particular cases and that the centrality of the jury trial to our system remains intact.

A further bulwark in maintaining this balance is provided in section 8(4) of the 2009 Act, which 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 further period to be decided by the Oireachtas. As I have already said, that is the purpose of the motion before the House. In order to enable the House to assess the need for the continuation of section 8, subsection (6) provides that before a resolution to continue section 8 in operation is passed, the Minister for Justice and Equality shall prepare a report, which shall be laid before both Houses of the Oireachtas, on the operation of the section in the period under report. The report, covering the period from 1 June 2011 to 31 May 2012, was laid before both Houses on 8 June 2012.

The reasons for seeking the renewal of section 8 should be clear. Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. In addition, there is, unfortunately, plenty of evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult. This is particularly so given the insidious power that criminal gangs hold over their members and, regrettably, within the communities in which they live and operate. The 2009 Act has been in operation for over three years, and while there have been arrests under the relevant sections of the Criminal Justice Act 2006, no cases have yet come before the Special Criminal Court in accordance with section 8. This does not, however, invalidate the reasoning for having such a provision available for use in appropriate circumstances.

The use of the Act to date serves to highlight the considered approach of the Director of Public Prosecutions. It vindicates the way in which the provision is constructed, allowing the director to exercise her discretion to direct that offences under the relevant sections should nevertheless be tried in the ordinary courts. It also makes it absolutely incontrovertible that there is no question of the provisions of the Act being in any way misused or abused. In his report to me on the operation of section 8, the Garda Commissioner is of the clear view that this provision is likely to be required for some time to come. As Minister for Justice and Equality I must have the utmost regard for the views of the Garda authorities in matters such as this. It is absolutely essential to ensure that the Garda and the prosecution service have at their disposal the best possible range of powers to face up to organised criminal gangs.

In the period under report, there have been a total of 38 arrests under the relevant provisions of the Criminal Justice Act 2006. Three arrests were made under section 71A, directing the activities of a criminal organisation, and the remaining 35 were made under section 72, participating in or contributing to certain activities of a criminal organisation. As a result of these arrests, a total of 19 other charges have been preferred against various individuals, including 18 relating to burglary and one relating to robbery, contrary to sections 12 and 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, respectively. Members of the House will recall that very recently two men from Galway were each sentenced to nine years' imprisonment, having pleaded guilty to offences under section 72 - namely, participation in the activities of a criminal organisation.

The Garda authorities devote considerable resources from across the Garda organisation to their efforts to tackle organised crime, and they deserve our praise for the successes they have had against a number of those involved in these criminal gangs. Furthermore, the Commissioner has made it clear time and again that there will be no let-up in the action taken against these gangs. He has the Government's full support in that approach. To be blunt, the individuals involved in organised crime are ruthless people who will stop at nothing to avoid being brought to account for their crimes. Violence and intimidation are a way of life for these people. There is no question of their having any respect for individuals' lives or indeed for the human rights of others. We - that is, the Government and the Oireachtas - have a duty to make sure the criminal justice system is equipped to prevent them from undermining our core values. To that end, we must ensure that in the most serious of cases, where jury intimidation is a real possibility, the law has a means available to bring serious criminals to account. I should mention at this juncture that, in keeping with an undertaking I gave last year when this matter was being considered, I have asked my officials, in co-operation with An Garda Síochána, to examine ways in which the legislation might be improved.

On balance, therefore, I consider that it is necessary to continue section 8 in operation for a further period. As I have said, the period now proposed will run for 12 months from 30 June 2012. I hope this motion will have the support of Members of the House.