Resolution on the continuation in operation of Section 8 of the Criminal
Justice (Amendment) Act 2009
Resolution:
“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.”
Speech on behalf of the Minister for Justice and Equality Mr. Alan Shatter
T.D. by Minister of State Jan O'Sullivan T.D
A Chathaoirligh,
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 the 30th June 2013.
Let me briefly remind the House of the background to the 2009 Act, lest
anyone believe that it was an overreaction to a non-existent threat.
At the time there had been an increase in the level or organised crime.
Organised gangs had shown a particular ruthlessness in their activities,
including attacks on witnesses and intimidation of jurors. As a result the
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 all 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 jury tampering or intimidation of jurors.
So, 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 offences.
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 (Section 71A of the
Criminal Justice Act 2006),
· Participating in or contributing to certain activities of a criminal
organisation (Section 72),
· Committing a serious offence for a criminal organisation (Section 73),
and
· Liability for offences committed by a body corporate (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 to direct that the offences
should be tried in the ordinary courts. I believe, Cheann Comhairle, that
permitting the DPP 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 already said, that is the
purpose of moving today’s Resolution
In order to enable the House to decide on 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, 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 the 17th 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 over 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 reasoning for having such a
provision available for use in appropriate circumstances. Let’s be clear -
if criminals are prepared to take human life, then they are quite prepared
to subvert the system of justice. Accordingly there is necessity for
legislation that anticipates this possibility to be in place. There is a
responsibility on the Minister, on the Government and, indeed, on the
House, to ensure that our criminal law contains appropriate provisions to
ensure the effective administration of justice by the courts. In my view
Section 8 is necessary in this regard.
The use of the Act to date also serves to highlight the considered approach
of the DPP and vindicates the way in which the provision is constructed,
allowing her to exercise her discretion to direct that cases would 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 this provision is likely to be
required for some time to come. As Minister for Justice and Equality, he
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 Gardaí
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
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 5 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, handling of
stolen goods and the DPP has directed further charges of extortion in two
cases.
8 individuals have been charged since the commencement of the 2006 Act, 2
under Section 71(a) (directing the activities of a criminal organisation)
and 6 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 71(a).
Five other charges preferred under Section 72 (participating in or
contributing to certain activities of a criminal organisation) were
subsequently withdrawn by the DPP. 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 Act 1977/84 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.
Let me be blunt about it - 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 that the criminal justice system is equipped to prevent them
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 that it is necessary to continue section
8 in operation for a further period. The period now proposed will run for
a period of 12 months beginning 30th June 2013.
I commend the Motion to the House.