I mentioned HERE the likelihood of CPD courses on the Criminal Justice (Surveillance) Bill 2009.
The Bill has been heavily marketed as a method of securing convictions for “organised crime”. This idea of organised crime (as an offence) is to be found in the Criminal Justice Act 2006. There have been no convictions under Section 72 of that Act, to date. It reads:
72.— (1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate—
(a) a serious offence in the State, or
(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence,
knowingly, by act—
(i) in a case to which paragraph (a) applies, whether done in or outside the State, and
(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State,
participates in or contributes to any activity of the organisation is guilty of an offence.”
If nothing further were to be done it would be impossible to get a conviction under Section 72. The burden of proof under the Section would be formidable. The prosecutor, in terms of the Section, would have to prove;
A) The accused committed an act;
B) The accused “knowingly” so acted “for the purpose of enhancing the ability…”;
C) The act of the accused “participates in or contributes to…”
D) “any activity…” directed towards committing or facilitating…;
E) a “serious offence…”
In addition, the prosecutor would have to prove that all of this was connected with the activities of a “criminal organisation”. That’s defined as:
“ criminal organisation ” means a structured group, however organised, that—
(a) is composed of 3 or more persons acting in concert,
(b) is established over a period of time,
(c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;”
The mind boggles at the difficulties this throws up, not to speak of the ironies to be unfolded from it. However, to make life easier for prosecutors Section 72 goes on in sub-section (2);
“(2) In proceedings for an offence under subsection (1) , it shall not be necessary for the prosecution to prove that—
(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,
(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or
(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.”
It is doubtful that this really helps the prosecutor, particularly where paragraph (c) of sub-section (2) implies the necessity of there having been the actual commission of an offence.
All of this is the context for the introduction of the Criminal Justice (Surveillance) Bill of which there will be more here in due course.
However, what springs to mind, as a contrast to all this, is RICO, one response to “organized crime”.
RICO has the merit of escaping (or not) from its authors’ intentions and is a flexible response to crime at every level of society.
Somehow, one doubts that Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill are directed to suppressing Irish criminal conspiracies per se.
In Ireland, (and the UK) the listener is required to know what is meant in addition to what is said. It is the intention that matters, not the statement.
What has been happening in Ireland, after all in the case of the McCracken, Moriarty, Mahon, and Morris Tribunals, but the investigation of criminal conspiracies?
Will we ever see Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill deployed against conspiracies like those?
Doubtful.