A Fine Gael proposal that only a chief superintendent’s evidence should be acceptable in court rather than that of a garda of any rank to prove the existence of a criminal gang, was rejected in the Seanad by 26 votes to 20.
The Upper House was tonight debating the controversial Criminal Justice Bill, passed last week in the Dáil.
It is expected to pass all stages in the Seanad tonight.
Its measures include non-jury trials in the Special Criminal Court for alleged members of a criminal gang and the admittance of expert evidence by a current or former garda of any rank to determine the existence of such a gang.
Senator Eugene Regan (FG) said the 2006 Criminal Justice Act defined expertise as “experience, specialised knowledge or qualifications”. He believed that the person with the required expertise was “none other than the chief superintendent”.
Experience is accumulated “during the years working in the field and to have the evidence of just any member of the Garda Síochána does not necessarily fulfil that criteria," he said.
But rejecting the proposal Minister for Justice Dermot Ahern said: “The Garda has insisted it is not the rank of the individual garda that is important, but the actual knowledge, expertise and experience he or she possesses."
Mr Ahern said it was “far more difficult” to prove the existence of a criminal gang than a paramilitary organisation. “Gangs by their nature do not have membership lists or the types of structures that paramilitary organisations are recognised to have.”
He added that gardaí had “indicated that it is more than likely that a person giving evidence under this section would hold the rank of detective inspector, namely, a person who would know seed, breed and generation of the various people involved in the gangs in a particular area”.
Alex White (Labour ) said he could “not understand the inclusion of the provision whereby any former member of the Garda Síochána may be deemed to be an expert in these matters".
"There is not even a stipulation that such a person’s membership must have ceased within a particular time limit.”
Ivana Bacik (Ind) was “fundamentally opposed to the principle” that a garda or former garda of any rank could give evidence as to the existence of a particular criminal organisation because “this flies in the face of established rules of evidence”.
Ronan Mullen (Ind) said “to require that the person be not below a certain rank is a reasonable amendment to what is, to say the least, a rather adventurous change in the law proposed by the Minister”.
Terry Leyden (FF) backed the Minister’s approach and said Mr Ahern “has hit the nail on the head with this Bill. It shows tremendous courage and conviction” and he believed “the Opposition are all talk and no action. They are trying to delay the Bill.”
The Criminal Justice (Amendment) Bill is likely to be sent this evening or tomorrow to President Mary McAleese. She will have a week in which to decide whether to sign it into law or refer the Bill to the Supreme Court.
The President has the authority, after consultation with the Council of State, to refer the Bill to the Supreme Court to test its constitutionality. The court is allowed up to 60 days to consider the matter.
In the event that the court deems the Bill to be in accordance with the Constitution, the legislation cannot be challenged further on constitutional grounds.
The legislation, which expands the role of the Special Criminal Court to deal with gangland crime, was passed by a large majority in the Dáil last Friday, with one Labour TD defying his party whip by refusing to vote against the measure.
