Ivana Bacik

Second Stage (14th July 2009)

Senator Ivana Bacik: I wish to share time with Senator Quinn.

 

I welcome the Minister. I declare an interest in that I am a barrister who practises in the

area of criminal law and who has done some work in the Special Criminal Court.

 

To respond to the Minister’s speech, I have read the Bill in full. The Minister stated some individuals who had commented on it had not. Having read the Bill, I welcome the opportunity to debate it in the House but am very sorry we are having such a truncated debate. It is most unfortunate that the Government is seeking to take all Stages of the Bill in one day. This renders the debate a sham given that we know the Dail is not sitting and that a Minister will not be accepting amendments. The ordering of business in this House needs to be carried out in a more measured and realistic manner that permits proper, reasoned debate on important legislation such as this.

 

To respond to Senator O’Donovan, every speaker on this side of the House and the other would like to express outrage at the horrific killings that have taken place in the name of organised crime and which we all recognise have prompted the introduction of this Bill. Senator O’Donovan has listed some of those killed whose killings have caused considerable public revulsion, including Shane Goeghegan, Wayne Doherty and Roy Collins. I agree with the Minister that the killing of Roy Collins represented a watershed in that it appeared to have been a direct attempt to undermine the criminal justice system.

 

While we all share the goal of ridding society of the threat of criminal gangs and share in the general revulsion of the killings, the main reason I oppose the Bill is because it will not help in any way the families of the victims of gangland killings. It will not be effective in fighting organised crime. Many people have expressed opposition to the Bill on that basis, including some gardaí, who have expressed strong concern that it may be rendered ineffective, even if it is not referred by the President to the Supreme Court under Article 26. They fear it will very quickly become bogged down in constitutional challenges given the many changes it makes to some of the fundamental principles of our criminal justice system.

 

There has been some exaggeration on the part of those who support the Bill in total. The Minister, for example, began his speech by referring to the threat to witnesses and potential witnesses of crime, which is clearly accepted. It is important, however, to point out the Bill does nothing to protect witnesses or potential witnesses. The legislative steps already taken have been aimed much more directly at ensuring witnesses are afforded some protection or that other ways of giving evidence can be provided for. I certainly welcome the recently passed Criminal Justice (Surveillance) Bill, which, as the Minister stated, will result in a means of providing evidence without having to rely on witnesses. We welcome the continued operation of the provision introduced some years ago allowing witness statements to be given, even where the witness later retracts. Those measures were introduced to offer some protection against witness intimidation.

 

The other side of the House has engaged in some lazy or cheap name calling, aimed at those who have expressed serious opposition to or concerns about the Bill. It is not conducive to proper debate to call those us who have expressed doubt about the Bill woolly liberals or to state we are soft on crime. That language has masked real concern by the Members on the Government side that they have gone too far with this Bill in an attempt, by the Minister it seems, to appear tough on crime.

 

We do not oppose this Bill for the sake of it. Many of us welcomed other criminal justice measures that were introduced. I welcomed the Criminal Justice (Surveillance) Bill, which gives surveillance a statutory framework. We were all anxious that that Bill be watertight and, in so far as possible, immune from challenge.

 

I do not by any means oppose all the provisions in the Criminal Justice (Amendment) Bill 2009. As with other Members, I recognise the need for certain measures, including the tightening up the definitions in sections 3, among them the definition of “criminal organisation”; the making of provision for extra-territorial effect in Part 3; and the increasing of the penalties for the intimidation of witnesses and jurors in section in section 16.

 

While many elements of the Bill are welcome, it is worth noting, however, that many of its provisions amount to amendments of Part 7 of the Criminal Justice Act 2006, which itself was introduced to combat organised crime. Many of the provisions in the latter have proven to be problematic, thereby resulting in the amendments.

 

Serious objections must be raised regarding three aspects of the Bill in particular, which aspects were referred to by the 133 practising criminal barristers and solicitors who wrote a letter to The Irish Times last week. They were correct to ask for the withdrawal of the Bill and for more detailed and comprehensive debate thereon at a later date. I share their view. The provision in section 7 of the Bill that the existence of a criminal organisation can be proved by the opinion evidence of a garda or former garda of any rank is fundamentally flawed. I have read the Minister’s defence of it in today’s edition of The Irish Times. That is based on a misunderstanding or misrepresentation of first principles of evidence because expert evidence is opinion evidence. It amounts to an exception to the general rule against the admission of opinion evidence but it does rely on a common understanding of what is meant by an expert. We all accept that a forensic pathologist can interpret facts differently from a lay person. I cannot look at a dead body and give the sort of evidence that Dr. Cassidy gives so well in so many cases because I do not have that expert knowledge. By declaring somebody in legislation to be an expert does not make that person an expert in the sense of the exception to opinion evidence. That is my fundamental concern about a garda or former garda giving evidence in this way.

 

(Interruption in the Chamber)

 

It is very difficult to see how a court will establish that in any proper way without going into the nature of the evidence.

 

The gardaí have expressed some concerns that following cutbacks in the force and early retirements, the insertion of the “former” member may be recognition that many experienced gardaí will have retired by the time the Bill comes into effect.

 

I accept that the Minister is not inserting in legislation the provision that a garda can give opinion evidence that a person is a member of an organisation. That would definitely have been a step too far. There must, however, be a real concern about gardaí giving evidence on matters such as this.

 

My second principal objection is to the sweeping declaration in section 8 that “the ordinary courts are inadequate to secure the effective administration of justice”. This undermines our criminal justice system. The Irish Human Rights Commission, IHRC, to which the Minister referred, stated in page 6 of its observations: “The IHRC considers that the developed system of criminal justice which exists in Ireland is capable of effectively confronting the problem of organised crime without resorting to a parallel criminal justice system that does not provide the accused with the right to trial by jury.”

 

Section 8 contains the unprecedented adoption of a “parallel criminal justice system” outside the realm of so-called subversive offences in which the Special Criminal Court already operates. It is unnecessary because the Director of Public Prosecutions, DPP, has the power to refer non-scheduled offences to the Special Criminal Court and used that power following that other watershed murder, that of Veronica Guerin, and the cases arising. In Britain the prosecution can apply for a non-jury trial if there is evidence of the potential for jury tampering. That is a preferable approach to this blanket or sweeping provision. In sections 35 and 36 of the Offences against the State Act there is a different mechanism for declaring that the ordinary courts are “inadequate to secure the effective administration of justice” and that must be done by the Government. Why is the Oireachtas doing this in this sweeping way in section 8?

 

I am gravely concerned about the provisions of sections 21 to 23, inclusive, for secret hearings, that can take place on the extension of a person’s detention in the absence of anyone other than the garda seeking the extension and the judge, and possibly a court clerk. The Minister has defended these provisions on the basis of what is now a rather tired anecdote about an unnamed lawyer in Limerick. A corrupt lawyer is a very serious matter and that lawyer must be tried and if found guilty punished accordingly. I do not believe, however, that we should throw the baby out with the bath water, or change the entire basis of the hearing system for extending detention just because there may be one example of corruption. An alternative is possible, to exclude from the courtroom all except those directly concerned with the case or all except the lawyers for the prosecution and the defence.

 

I have tabled amendments on the lawfulness of arrest and detention. The Minister said that there is nothing in this Bill that is not already in Irish law, but I beg to differ. The three points I have raised are unprecedented in scope and in the way they encroach on the fundamental right to a fair trial. That is why I oppose the Bill.

 

Committee and Remaining Stages (14th July 2009)

Senator Ivana Bacik: I am opposed to section 7. While either amendments No. 1 or No. 2 would go some way towards improving it, I am fundamentally opposed to the principle expressed in the section that a garda or former garda of any rank may give evidence as to the existence of a particular criminal organisation and that this evidence shall be admissible as expert evidence. As I explained earlier, this flies in the face of established rules of evidence. I accept, as I said on Second Stage, that the Minister has not inserted a provision whereby a garda can give evidence of his or her belief that a person is a member of an organisation. Nonetheless, the evidence proposed in section 7 is a prerequisite for proof of the commission of an offence under section 71A, as inserted by section 5, section 72 and section 73 of the Criminal Justice Act 2006, all of which relate to criminal organisations. Clearly, some level of proof as to the existence of a particular criminal organisation will be part of the proofs for that. In section 7(4) there is already a range of different types of evidence from which a court may deduce that a particular group constitutes a criminal organisation, or that it exists. I am not clear why this extra provision is inserted when it seems to me to be so problematic.

 

I have been re-reading the Hederman report of 1999. I am not suggesting that report was against the Special Criminal Court. In fact, the majority argued for the retention of that court. However, when they looked at the nearest equivalent of this provision, which was section 3(2) of the Offences Against the State (Amendment) Act 1972 that provides for the evidence of a chief superintendent as to membership, they provided various commentaries on page 124 of the report, which seem to be relevant in considering this provision. They point out that the opinion evidence rule in section 3(2) appears to violate three established rules of evidence. Paragraph 6.91 of the report states:

 

“First, while acknowledged experts are permitted to give evidence of opinion, their expertise must be established and their opinion is generally confined to scientific, medical, engineering and cognate matters, and the application of such knowledge to factual dicta in accordance with established professional norms.”

 

That is very different from the sort of opinion evidence we are talking about here. As I said earlier, expert opinion is allowed as an exception to the normal rule against the admission of opinion evidence. This section purports to declare somebody to be an expert.

 

(Interruption in the Chamber)

 

I am speaking to the amendments. If we are going to go down the road of declaring people to be expert at the very least the persons concerned should be of a high enough rank in An Garda Síochána for their opinions to carry a certain weight. Even then, I am against the principle of section 7, in particular subsection (1) which seeks to insert a new section 71B.

 

I see the Minister has a copy of the Hederman report and has presumably examined the provision I mentioned. The majority of the Hederman committee went on to say they did not believe that a person should be convicted of the offence of membership solely on the basis of the opinion of a chief superintendent. They said, however, that such opinion might be treated by the courts as corroborative evidence in appropriate cases. The majority were not in any way liberal in their thinking generally in terms of the Special Criminal Court. However, it is interesting to note that they looked at the case law on section 3(2) and pointed out that the courts were reluctant to convict where there was no other evidence. I accept that it is a different type of provision but it is the same principle — that it declares the opinion of a garda in some way to be admissible in evidence as to the existence of certain facts.

 

I have a concern that the provision as currently drafted does not have any reference to the need for any corroboration. Neither does it have any reference to the need for a member of An Garda Síochána of any particular rank to give the evidence. It simply seems to allow any member or former member of An Garda Síochána, who appears to the court to possess the appropriate expertise, to give evidence as to the existence of a particular criminal organisation. The only guidance for the court as to what is expertise is in section 7(2) which states that: “’expertise’ means experience, specialised knowledge or qualifications”. That is very different to the sort of experts we are used to seeing in the criminal courts, such as a forensic pathologist or engineer. They are persons with professional qualifications who give an interpretation of facts that no lay person could give. The sort of evidence that, inevitably, members of An Garda Síochána will have to give will be based on a mixture — the Hederman committee said this — of hearsay and other inadmissible evidence, which would not in themselves be admissible as evidence. They are talking about the opinion of a chief superintendent there, in section 3(2).

 

I think therefore that there is insufficient guidance for the courts as to how they will judge expertise. There is no provision for any requirement of corroboration, although there is a list of matters which could be regarded as separate evidence of the existence of an organisation or, indeed, could be regarded as corroboration. As a whole, the section is drafted so broadly in terms of the sort of evidence it appears to allow, that it is very much flawed. It does not even say whether the garda concerned should have any particular personal knowledge of the facts on which he or she is to give evidence. There is no requirement that they be linked in any particular way to the area about which they are speaking or any other matter of that nature.

 

In his speech, the Minister said the reason he has put in “any member of the Garda Síochána of no particular rank” is so that it can be at the level closest to the ground, the person who has the most direct personal knowledge. However, there is nothing in the section to say that the court must be satisfied that this is in fact the member of An Garda Síochána who is closest to the organisation, the existence of which is alleged. There is nothing there to give the court that connection which the Minister says is so important.

 

For all those reasons I am opposing the section. The proposed amendments would improve it somewhat, but I would still have a fundamental objection to it.