THE ACTIVITIES of criminal gangs within our society are a cause of justifiable public concern and anger. The Government has adopted a two-pronged approach in response. First it announced the Criminal Justice (Surveillance) Bill which proposes to allow evidence obtained by covert surveillance to be used in court. And earlier this week it set out the terms of the Criminal Justice (Amendment) Bill which provides for the creation of new “scheduled offences” – linked to gang activity – to be tried in the Special Criminal Court.
These changes supplement the provisions of the Criminal Justice Act 2006, which makes it an offence to belong to a gang and the Criminal Justice Act 2007 which provides for mandatory sentences for a range of firearms offences. Both pieces of legislation were presented at the time of their enactment as the answer to the problem of organised crime.
For its part, this latest Bill contains a declaration that ordinary courts are inadequate for the effective administration of justice. However, the main example of this involved the intimidation of witnesses in a trial of a Limerick-based gang member. The problem was addressed in the 2006 Act, though by no means finally resolved, and it will not be resolved by this new Bill because witnesses will continue to have to give evidence in court.
Trying cases of organised crime in the judge-only Special Criminal Court (unless the DPP directs otherwise) removes a large chunk of serious crime from the normal jury courts system despite the fact that no evidence has been brought into the public domain of serious attempts to interfere with juries. Trial by jury is a fundamental part of our legal system, as mandated by the Constitution, in accordance with the centuries-old tradition of common law.
In contrast, when faced with threats to the jury system from organised crime, our neighbours in England and Wales enacted a law in 2003 allowing for non-jury trials in specific circumstances. The courts there have stated that departure from a jury trial can only be justified in exceptional circumstances and the first case under the 2003 Act is only now being heard.
Where gang members have faced trial in this jurisdiction, there has been no evidence of a reluctance on the part of juries to convict. And if there are fears for the safety of juries, there are measures that can be taken to protect them, short of their abolition. The new Criminal Court complex in Parkgate Street, Dublin, which is due to open in the autumn, has special provision for jurors. They will have totally separate facilities from the moment they enter the building, ensuring they cannot be contacted by members of the public or criminal associates.
The Criminal Justice (Amendment) Bill contains many far-reaching measures that require careful consideration. It is planned that, like its predecessors, it will be rushed through the Oireachtas before the summer recess. These are not circumstances where the appropriate debate can take place. It is not a question of being soft on crime but of recognising that rushed legislation can be bad legislation.