THERE are times, even in the most liberal of democracies, when a state has no choice but to meet head on the challenge to its authority – not by whatever means necessary, but certainly by means that would in more normal circumstances be seen as undesirable.
It happened here with the threat from paramilitaries in the 1970s and 1980s. It also happened with the murder of Veronica Guerin. On both occasions, the government of the day responded to the threat to the state's authority with firm, decisive action.
What is happening in relation to the criminal activities of gangs should be seen in the same light. Not to in any way diminish the terrible suffering of those left bereaved by the dozens of murders carried out by criminal gangs in recent years, but the murder of Roy Collins must be seen as a tipping point by any right-thinking society.
Gardaí believe Roy Collins, an entirely innocent 34-year-old father of two, was murdered because a member of his family gave evidence against a gang leader four years previously. If that doesn't represent a crossing of the rubicon, what does? The signal that this murder sent out, four years after a citizen performed his civic duty by giving evidence in a trial, is a chilling one. The perpetrators are saying that anybody who stands in their way can be 'got to' – regardless of how long it takes. No functioning society can tolerate any member or section of society so callously attempting to make themselves untouchable or above the law.
That point has to be both the starting and finishing point for any new legislative or operational measures designed to face down this challenge to the primacy of the state.
The Criminal Justice (Amendment) Bill, currently going through the houses of the Oireachtas, will not in itself solve the enormous problem of gangland crime. There are no panaceas for this deeply ingrained crisis. But it is a proportionate, moral and legitimate response to the magnitude of the challenge to the state laid down by criminal gangs.
The objections of leading criminal lawyers – laid out in a letter to the Irish Times last week – and the Irish Human Rights Commission are essentially two-fold. They are opposed, firstly, to the use of garda opinion evidence about the existence of a gang and, secondly, to the provision for gangland cases to be automatically (unless the DPP dictates otherwise) heard in the non-jury Special Criminal Court.
In the first case, many of the fears expressed seem to be based at least partly on a misunderstanding of what the bill actually contains.
It has been routinely suggested that the legislation will result in a garda of any rank getting up in court and stating that person X is a gang member, leading to a conviction of that person.
Respected barrister Mary Ellen Ring – one of the signatories of the Irish Times letter – said on Morning Ireland last week that there is a "provision [in the bill] that allows for opinion evidence of any ranking garda to be given as to membership of a gang. We have in this country, already, opinion evidence permitted in very limited circumstances and from very senior ranks of chief superintendent. The courts have already said that this is evidence, because of its very particular and special nature, that should only be used if there is other evidence."
However, the reality is that there is no question of the legislation allowing for the court to rely solely on that evidence. As Morning Ireland presenter Cathal Mac Coille pointed out in the interview with Ring, the use of garda evidence relates only to the existence of a criminal gang. The bill does not make provision for a garda to say a person charged is a member of a gang. If a person is going to be found guilty of gang membership, hard evidence, other than the word of a garda, is going to have to be produced.
The provision for a garda to give evidence about the existence of a gang is included to address one of the key failings of the 2006 Criminal Justice Act. That act introduced the offence of being a member of a criminal gang but there is a huge difficulty in proving there is a criminal gang in operation.
The evidence of a garda that, in a general sense, there is a gang in operation in the area allows that first hurdle to be cleared – no more, no less.
Perhaps, there might be an issue about the garda evidence prejudicing the case of the defendant in the minds of a jury of non-legal people. But in the absence of a jury – as the bill proposes for gangland cases – it is ludicrous to suggest that judges will be unable to differentiate between the general point of the existence of a gang and the guilt or innocence of the individual on trial.
Which brings us to the second argument against the bill – the elimination of the right to trial by jury. This right, the lawyers note, is "enshrined in our constitution only to be taken away where it is determined that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order".
With all due respect to m'learned friends, in cases of gangland crime, the ordinary courts are inadequate to secure either the effective administration of justice or the preservation of public peace.
The argument that there is no evidence of jury intimidation is risible. Are we seriously expecting that jurors who have been intimidated – and intimidation does not need to be explicit – are going to advertise this? The reality is that if somebody is interfered with, they are not going to tell anybody in officialdom.
Willie O'Dea, who knows what goes on on the ground in Limerick better than any of the 133 signatories of the Irish Times letter, insists there is anecdotal evidence of jury intimidation in that city. In the Dáil nine days ago, O'Dea produced staggering figures on the number of citizens excusing themselves from jury duty in Limerick. He says that "jury intimidation in Limerick is now so widespread and all pervasive, that it is now virtually taken for granted that if the state attempts to hold any gangland-type trial in Limerick, potential jurors will feel intimidated and it will not be possible to form a jury".
State solicitor Michael Murray told The Week In Politics last weekend that in the last five years particularly "the atmosphere has been poisoned and people are reluctant to serve on juries, particularly if there is a whiff or any suggestion that the person to be tried is a gang member. People will avail of any old excuse to avoid sitting on a jury."
But don't take their word for it. Look in the mirror and ask yourself the question: would you want to serve on a jury in a gangland crime? There is no shame in answering 'no' to that question. And the idea, in such a small country, that moving trials to different cities would help avoid jury tampering is as naïve as the idea that utterly ruthless and highly sophisticated criminal gangs do not, or would not, attempt to intimidate witnesses in the first place.
As is the suggestion from human-rights activists that "jury members could be anonymous". Have they considered just how terrifying an experience that would be for ordinary citizens?
In relation to the other main argument against the bill – that it is being rushed through the Oireachtas – it is worth
noting that the total time debating the
bill will run to around 16 hours. How
much time do people think is needed to debate a bill? A week? A month? A year? Such claims of rushed and ill-thought-out measures also ignore the fact there is
a safeguard provision to review the working of the legislation on an annual basis.
The Irish Times letter claimed, with the sense of drama so beloved of barristers, that Ireland would "eventually be shamed" by the legislation. The only shame would be if we wrung our hands and allowed criminal gangs to continue to act with impunity.