Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Stanton, to the House. It is my first opportunity to do so and I think it is his first opportunity to be here with us. I welcome him and congratulate him on his appointment, having working with him on the Joint Committee on Justice, Defence and Equality, which he so ably chaired for the past five years. I know he will do a great job and I wish him the very best with his work.

On the motions before us, I welcome the opportunity to be back debating them. Every 12 months these provisions have to be reviewed. It is important that the Oireachtas keeps these provisions under scrutiny, given that they interfere with due process rights of accused persons. It is in that context that we are back here. Having said that, we all recognise the major threat posed in particular by organised crime. We would all be very conscious of events in Dublin's north inner city and the real fear that so many members of that community are living under. We all watched the Taoiseach and other Ministers meeting community leaders last night in the north inner city. Clearly, there is a significant threat from organised crime and from paramilitary crime.

I should declare an interest as somebody who practised as a barrister in the Special Criminal Court in previous years. I have been here, speaking on the renewal of these provisions, for some years. We need to keep them under scrutiny. On a practical level, while a report has been laid before the Oireachtas, in previous years a table of usage has been appended to the Minister's speech which we have been provided with in advance of each of these debates. It is very useful to see for ourselves the pattern of application of the provision. That would be very helpful. I know the Minister of State dealt with this a little in his speech, but it is also useful to have the overview provided to us.

Looking first at the Offences against the State (Amendment) Act 1998 motion and its renewal, as has been said, these provisions do depart from normal principles of due process. Section 3 requires an accused to give notice of an intention to call a person to give evidence on his behalf when charged with membership of an unlawful organisation, and section 4 potentially gives rise to guilt by association, allowing inferences to be drawn from conduct such as associations on the part of the accused concerning evidence of membership of an unlawful organisation, an offence which, we will all be conscious, is a very serious one. I looked previously at a 15-year pattern of usage of these provisions and some of them were not used for many years. This requires that we look at the utility of continuing them in force. Section 4, in fact, had not been used for some years between 2008 and 2014 and was then used. Having said that, as the Minister of State said, the fact a provision is not used for some years does not mean it will not be and that it will not be useful. We need to take a balanced approach to this. In the Minister of State's speech, he said that two sections, sections 6 and 12, were not used during the reporting period in question, that is, the past year. While the Minister of State pointed out that it should not be inferred that these sections are redundant, as the usage varies from year to year, as we have seen in the past, it is still something that requires us to keep under review. I understand that section 12 has not been used since 2002. That is 14 years in which section 12 has not been used. There is a strong question to be asked about keeping the utility of that provision under review.

I will deal briefly with the motion on the Criminal Justice (Amendment) Act 2009. We are looking at another provision that interferes with due process rights. Section 8 provides for the right to a jury trial to be bypassed by the Director of Public Prosecutions, DPP, in respect of certain offences. In the period under review, no cases were in fact sent forward to the Special Criminal Court through the exercise of the DPP's discretion. Indeed, since 2009, no cases have been sent forward under that provision. Section 8 has not been used since 2009, as the Minister of State has said. I said last year that this indicates the considered approach that is being taken by the DPP. She is not exercising her discretion on this in any very liberal fashion. That is right and proper, given the encroachment that section 8 represents.

However, one also has to look behind section 8 and look at the provisions it refers to, which are laid out in Part 7 of the Criminal Justice Act 2006. Looking at those provisions, it is clear from the Minister of State's speech today and from speeches and data we were given in previous years that sections 72 and 73, the two offences of participating in or contributing to the activities of a criminal organisation and committing a serious offence, are well used. The Minister of State pointed out there were seven arrests under section 72 and a further ten under section 73. However, he says, section 71A, directing the activities of a criminal organisation, and section 76, liability for these offences committed by a body corporate, have not been exercised. Looking back, they have not been exercised for the past three years, as far as I know. One should look at the merit of retaining those offences in their current form and whether there is something about those offences that makes them unworkable.Clearly the directing of activities of a criminal organisation is an offence which one would hope should have a utility on the Statute Book given the very serious offences that have been committed in the name of criminal organisations in recent months. There is a question to be asked about these offences being kept in their current form if they are not, in fact, being used. I simply raise these questions. I certainly do not oppose these motions but we need to keep these motions under careful scrutiny and to be critical, where necessary, of aspects of these motions without simply passing them every year in a knee jerk or token way.