Madam, – Although the Criminal Justice (Amendment) Bill 2009 has been rushed through both houses of the Oireachtas, it would be a fair bet to suggest the story of this ill-advised legislation is far from over.
Therefore as a signatory to the letter signed by over 100 lawyers critical of both provisions in the Bill and the way it has been introduced I feel it is still worthwhile to respond to the article written by Minister for Justice Dermot Ahern (Opinion, July 13th, 2009).
Replying to criticism of the Bill, the Minister suggests that because the opinion of a Garda or former serving officer relates to the existence of a criminal organisation (as the letter signed by 133 prosecution and defence lawyers correctly stated ) and not to membership of an accused of that organisation, that this somehow invalidates the criticism of this provision.
In fact before a person can be convicted of either directing a criminal organisation or participating in the activities of such an organisation so as facilitate or enhance its ability to commit a serious offence, the existence of such an organisation must be proved.
To imply that this opinion, which does not require corroboration, somehow stands alone and does not have to be relied upon in a finding of guilt against a particular accused is nonsense.
The Minister stands over the withdrawal of the fundamental right to jury trial but he is unable to produce any data to suggest that jury tampering is an existing problem.
If it is a particular problem in Limerick as suggested by some, why hasn’t there been an avalanche of applications to transfer trials out of that area?
How many have there been?
It would also be useful to know how many, if any, applications under existing legislation have been made to the DPP to have appropriate cases transferred to the Special Criminal Court.
This is hardly sensitive information yet he is curiously silent on these matters and gives no explanation as to why these measures have been proposed when it appears that less drastic alternatives are available and could be utilised first.
He writes that the description “secret hearings” is “fanciful” when applied to detention hearings which can exclude the accused, their solicitor, the prosecution lawyer, the clerk of the court, anyone in fact except the Judge and the witness.
He says that if a judge makes a decision to exclude these parties it has “nothing remotely to do with whether the accused is ultimately convicted”. This is, of course, incorrect.
The judge’s decision will allow for the continued detention of an individual who will then be subject to interrogation and other investigation.
Evidence gathered during the extended detention – even the individual’s silence – may be used to prove guilt. The problem for the accused is that their ability to challenge the lawfulness of the detention – and thus the admissibility of such evidence – is bound to be compromised in circumstances where the evidence on which the decision to detain was made is heard in secret.
The Minister says the lawyers who signed the letter criticising the proposals and the manner in which they have been introduced should have come up with proposals of their own.
This is rich indeed from the man who has rammed this legislation through both house of the Oireachtas in less than a week, indicating all along that he will not take amendments from anyone and preventing debate on even his own amendments.
And that brings me to what is unlikely to be the final irony in the sorry tale of this legislation.
The Minister while denying his proposals mark a fundamental change seeks to allay the fears of many by reminding us in his article that the legislation will lapse in 12 months unless renewed by the Oireachtas.
Should we have all heaved a great sigh of relief?
A mere 24 hours later members of the Green Party, the party which sits at the Cabinet table with him, are revealing that they believe that the proposals are so far reaching that they sought assurances from the Minister that such renewal will not just go through on the nod.
It appears no such assurance was forthcoming. – Yours, etc,