Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

The motion provides that Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30 June 2013 and ending on 29 June 2014. This resolution will provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a 12-month period beginning on 30 June 2013.

I will briefly remind the House of the background to the 2009 Act, lest anyone believes that it was an over-reaction to a non-existent threat. At the time there had been an increase in the level of organised crime. Organised gangs had shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. As a result, gardaí were encountering difficulties in persuading people to give assistance in their investigations. The complete disregard which these gangs showed for human lives threatened to subvert the entire justice system. In the circumstances, it was imperative that the Government and the Oireachtas take the necessary steps to ensure that the criminal justice system was robust enough to withstand the assault which was launched upon it through intimidation and violence of witnesses and jurors.
The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law and justice and instil confidence in everyone that criminal gangs were not going to be permitted to frustrate criminal investigations or prosecutions of their activities. In view of the very real threat which 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 organised crime offences removed the possibility of tampering with juries or intimidation of jurors.

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 the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to certain offices. The offences in question are the organised crime offences under Part 7 of the Criminal Justice Act 2006. Briefly, these offences are: directing the activities of a criminal organisation covered under section 71A of the Criminal Justice Act 2006; participating in or contributing to certain activities of a criminal organisation covered under section 72; committing a serious offence for a criminal organisation covered under section 73; and liability for offences committed by a body corporate covered under section 76.

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 the Special Criminal Court will hear prosecutions for the offences in question, the Director of Public Prosecutions may still exercise his power - I use the word "his" because the current officeholder is a man - to direct that the offences shall 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.

A further bulwark in maintaining this balance is provided in section 8(4) of the 2009 Act. It 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 said, that is the purpose of moving this resolution.

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 must 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 2012 to 31 May 2013, was laid before both Houses on 17 June 2013.
The Minister's reasons for seeking the renewal of section 8 are clear. Organised crime continues to present a significant law enforcement issue with a number of criminal gangs continuing to engage in serious crimes. 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.

The 2009 Act has been in operation for more than four 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 reason for having such a provision available for use in appropriate circumstances. Let us be clear: if criminals are prepared to take human life, they are quite prepared to subvert the system of Government. Accordingly, there is a necessity for legislation that anticipates the possibility. There is a responsibility on the Minister, the Government and the Houses to ensure that the criminal law contains appropriate provisions to ensure the effective administration of justice by the courts.

The use of the Act to date also 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 cases be tried in the ordinary courts. In his report to the Minister on the operation of section 8, the Garda Commissioner is of the clear view that the provision is likely to be required for some time to come. The Minister for Justice and Equality must have the utmost regard to the views of the Garda authorities in matters such as this. It is absolutely essential to ensure that the Garda has at its 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 41 arrests under the relevant provisions of the Criminal Justice Act 2006. One arrest was made under section 71A, directing the activities of a criminal organisation; 35 were made under section 72, participating in or contributing to certain activities of a criminal organisation; and a further five arrests were made under section 73, committing an offence for a criminal organisation. Charges have resulted in 12 of these cases for a variety of criminal offences, including aggravated burglary, vehicle theft, arson and handling of stolen goods, and the Director of Public Prosecutions has directed further charges of extortion in two cases.

Eight individuals have been charged since the commencement of the 2006 Act, two under section 71A, directing the activities of a criminal organisation, and six under section 72, participating in or contributing to certain activities of a criminal organisation. Three individuals have been convicted under section 72 and have received sentences of three years in one case and nine years in the other two cases. This includes the two individuals originally charged under section 71A. Five other charges under section 72 - participating in or contributing to certain activities of a criminal organisation - were subsequently withdrawn by the Director of Public Prosecutions. However, four individuals were convicted of conspiracy to rob and subsequently received custodial sentences of between two and five years' duration. One other individual was convicted of offences under the Misuse of Drugs Acts 1977 and 1984 and received five years in prison.

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. 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.

On balance, the Minister considers it is necessary to continue the operation of section 8 for a further period. As I have said, the period now proposed will run for 12 months from 30 June 2013 until next year. I commend the motion to the House.