OPINION:The Criminal Justice (Amendment) Bill respects human rights, but we would do well to remember that one of the most basic of those rights is the right to life, writes DERMOT AHERN
THERE HAVE been strongly expressed, often opposing, views about the Criminal Justice (Amendment) Bill which I introduced in the Dáil and which passed all stages there last Friday. For example, last week in this newspaper there was a letter from a number of lawyers expressing concerns about it.
I hope, though, that at least there is common ground about the nature of the problem we face. In recent years gangs have killed scores of people. Many of these killings, despite the best efforts of the gardaí, remain unsolved.
That, in part, reflects the climate of fear which gangs have set out to create in the communities in which they operate. The gangs in the main seek to exert that control so they can continue to profit from the drugs trade which, in turn, is wreaking havoc in those communities. We can have a lofty debate here but we need to be mindful that there are deprived areas of the country where people – day in, day out – must live in fear of people who have set themselves above the law and try to thwart it at every turn.
Many of the victims of the killings were gang members themselves; others were killed because they got in the way. I have no wish to establish a hierarchy of victims but the killing of Roy Collins in retaliation for a relative giving evidence had profound implications for the integrity of the criminal justice system and the institutions of the State.
I had resisted calls in the light of other killings to take the type of extreme measures some were advocating. For example, some people felt internment was the only solution. But in my view, it would hand a perverse victory indeed to the gangs if we were tempted to take measures which did not respect the rule of law. It is vital that anything we do is consistent with fundamental human rights, particularly as enshrined in Bunreacht na hÉireann. But we would do well to remember that one of the most basic of those rights is the right to life.
I do not dispute the motivation or the genuineness of the views expressed by opponents of the Bill, but there are good grounds for believing that some of the concerns that have been expressed are based on a less than complete knowledge of what the Bill actually does.
There seems, for example, to be an awful lot of confusion about what is in the Bill relating to “opinion” evidence.
Under the Offences Against the State legislation, the opinion of a chief superintendent that a person is a member of an unlawful organisation can be accepted as evidence by a court. That evidence goes to the very heart of the offence with which the person is charged.
There was, indeed, pressure to include an equivalent provision in relation to membership of criminal organisations in the present Bill. I resisted that. There is, in fact, no provision of that kind in the Bill.
The Bill creates the new offence of directing a criminal organisation. It also amends the existing offence contained in the Criminal Justice Act 2006 of participating in or contributing to any activity intended to enhance the ability of a criminal organisation or any of its members to commit a serious offence or to facilitate the commission by those persons of such an offence.
Unlike unlawful organisations, under the Offences Against the State Act where the fact of the existence of the organisation in question is well established, it will be necessary in the case of criminal organisations to establish their existence in each case. Of course, gangs don’t tend to keep records or any formal evidence of their existence.
It is in the light of that reality that the Bill allows a member of the Garda with appropriate expertise to give “opinion” evidence about the existence of a particular criminal organisation. The evidence of the member is only admissible where the court is satisfied as to the expertise of the member.
It is entirely a matter for the court what weight to give to that evidence, but the fundamental point – and where the confusion seems to have arisen – is that that type of evidence deals solely with the issue of whether a criminal organisation exists. So there is no question of the Bill providing for an officer of chief superintendent or, indeed, at any other level, giving opinion evidence that a person before the court is a member of a criminal organisation. Accordingly, any comparison with the Offences Against the State Act provisions is entirely misplaced.
The fundamental feature of the two offences is that they relate to the activities of ruthless, deadly gangs. It was against that background that we took the decision that the offences should be scheduled for the purposes of the Offences Against the State Act 1939, thus allowing the cases to be heard in the Special Criminal Court. We did so only after having considered detailed reports from the Garda Commissioner about the capacity and willingness of gangs to thwart justice, including through the intimidation of jurors.
I cannot go into full detail about that information here, but it flies in the face of common sense to suggest that gangs who will kill people because of evidence which has been given will have some compunction in taking other steps to thwart the administration of justice.
Again, what we are proposing is not the fundamental change that it is made out by some to be. Already the Director of Public Prosecutions can direct that any case be heard in the Special Criminal Court where he is satisfied that the ordinary courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order”.
The Bill 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 the organised crime offences, unless the Director of Public Prosecutions directs that the ordinary courts are adequate in the circumstances of the individual case.
There has been criticism too of what some have, fancifully, called “secret” hearings provided for in the Bill. Where persons are detained in relation to serious offences, we provide in our law that, if a detention period is to be extended beyond a particular time, this is a matter for the District Court. Some of the matters about which the court has to be satisfied relate to the Garda investigation.
A district judge is given power, in order to avoid a risk of prejudice to the investigation, if he or she considers it desirable to do so to direct that the application be heard otherwise than in public. A separate and distinct power is given to a judge to hear a particular item of evidence in the absence of every person other than the person giving the evidence, if this is necessary, to avoid prejudice in a material respect to the proper conduct of an investigation.
In the latter case, if having heard the evidence the judge considers that disclosure of the evidence would not prejudice the investigation, then he can direct that the evidence be regiven in the presence of the other persons. As the law currently stands, suspects could get sensitive information about details of an ongoing Garda investigation which must be given in open court even if that would prejudice the investigation.
All we are providing is that a judge may exclude people from the court where he or she thinks it is desirable to do so to avoid a risk of prejudice to the investigation. It is then a matter for the judge to weigh up what has been put before him or her to make a determination, in accordance with law, whether the period of detention should be extended.
That decision has nothing remotely to do with whether the person concerned is ultimately convicted. To put it another way, are opponents of the measure suggesting that a judge should hear evidence in open court which the judge is satisfied would risk prejudicing the investigation?
It is clearly not helpful to the debate to either overstate or understate what is being proposed. These are robust – albeit proportional – measures which in ordinary circumstances we would not introduce. That is why, for example, we have provided that the section relating to the scheduling of offences will lapse after 12 months unless the Oireachtas passes a resolution to continue it.
The lawyers’ letter in the newspaper last week said it was “astounding” that we as a society would “jettison ancient rights”. That is not what this Bill is about. What would be more astounding still is if we as a society did not take the measures which are necessary to protect our people. This paper’s editorial the same day as the letter was published suggested that the criticisms might have carried more weight if any proposals had been put forward as to what actually should be done. It is hard not to be reminded of Edmund Burke’s “All that is necessary for evil to triumph is that good men do nothing”.
I accept fully that there is no place for knee- jerk reactions in responding to criminal outrages, but knee-jerk reactions have no place either in responding to legislative proposals which, far from having a disregard for the rule of law, are motivated entirely by a respect for the rule of law and a solemn duty to uphold it.
Dermot Ahern is Minister for Justice