LegalizeCriminal Justice (Amendment) Act 2009
PART 1 Preliminary and General
1. Short title.
1.— This Act may be cited as the Criminal Justice (Amendment) Act 2009.
2. Definitions.
2.— In this Act—
“ Act of 1939” means the Offences against the State Act 1939;
“ Act of 1984” means the Criminal Justice Act 1984;
“ Act of 1996” means the Criminal Justice (Drug Trafficking) Act 1996;
“ Act of 1997” means the Criminal Law Act 1997;
“ Act of 1999” means the Criminal Justice Act 1999;
“ Act of 2006” means the Criminal Justice Act 2006;
“ Act of 2007” means the Criminal Justice Act 2007.
PART 2 Organised Crime
3. Amendment of section 70 of Act of 2006 - definition of “criminal organisation”, etc.
3.— (1) Section 70(1) of the Act of 2006 is amended—
(a) by substituting the following for the definition of “criminal organisation”:
“‘ criminal organisation ’ means a structured group, however organised, that has as its main purpose or activity the commission or facilitation of a serious offence;”,
and
(b) by substituting the following for the definition of “structured group”:
“ ‘ structured group ’ means a group of 3 or more persons, which is not randomly formed for the immediate commission of a single offence, and the involvement in which by 2 or more of those persons is with a view to their acting in concert; for the avoidance of doubt, a structured group may exist notwithstanding the absence of all or any of the following:
(a) formal rules or formal membership, or any formal roles for those involved in the group;
(b) any hierarchical or leadership structure;
(c) continuity of involvement by persons in the group.”.
(2) Section 70 of the Act of 2006 is further amended by adding the following subsection:
“(3) For the purposes of the references in sections 71(2)(d) and 74(1)(b)(i) to a person’s being ordinarily resident in the State, a person shall be taken to be so resident, on the date of the commission of the offence to which section 71(1) or 74(1), as the case may be, applies, if, for the 12 months immediately preceding that date, the person has his or her principal place of residence in the State.”.
4. Amendment of section 71 of Act of 2006.
4.— Section 71 of the Act of 2006 is amended—
(a) in subsection (2)(d), by substituting “person ordinarily resident in the State” for “stateless person habitually resident in the State”, and
(b) by deleting subsection (5).
5. Directing activities of a criminal organisation.
5.— The Act of 2006 is amended by inserting the following section after section 71:
“Offence of directing a criminal organisation.
71A.— (1) In this section—
(a) ‘ directs ’, in relation to activities, means—
(i) controls or supervises the activities, or
(ii) gives an order, instruction or guidance, or makes a request, with respect to the carrying on of the activities;
(b) references to activities include references to—
(i) activities carried on outside the State, and
(ii) activities that do not constitute an offence or offences.
(2) A person who directs, at any level of the organisation’s structure, the activities of a criminal organisation is guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(3) Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of a criminal organisation shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was doing such at that time.
(4) In proceedings under this section, the court or the jury, as the case may be, in determining whether an offence under this section has been committed, may, in addition to any other relevant evidence, also consider—
(a) any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of the organisation concerned at the material time, and
(b) without limiting paragraph (a) or subsection (3)—
(i) whether the defendant has received any benefit from the organisation concerned, and
(ii) evidence as to the possession by the defendant of such articles or documents or other records as would give rise to a reasonable suspicion that such articles, documents or other records were in his or her possession or control for a purpose connected with directing the activities of the organisation concerned.
(5) Any document or other record emanating or purporting to emanate from the organisation concerned from which there can be inferred—
(a) either—
(i) the giving, at the time concerned, of an instruction, order or guidance by the defendant to any person involved in the organisation, or
(ii) the making, at that time, by the defendant of a request of a person so involved,
or
(b) the seeking, at that time, by a person so involved of assistance or guidance from the defendant,
shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was directing the activities of the organisation concerned at the material time.
(6) In this section ‘ document or other record ’ has the same meaning as it has in section 71B.”.
6. Organised crime: offence to participate in, or contribute to, certain activities.
6.— The Act of 2006 is amended by substituting the following section for section 72:
“Offence to participate in, or contribute to, certain activities.
72.— (1) A person is guilty of an offence if, with knowledge of the existence of the organisation referred to in this subsection, the person participates in or contributes to any activity (whether constituting an offence or not)—
(a) intending either to—
(i) enhance the ability of a criminal organisation or any of its members to commit, or
(ii) facilitate the commission by a criminal organisation or any of its members of,
a serious offence, or
(b) being reckless as to whether such participation or contribution could either—
(i) enhance the ability of a criminal organisation or any of its members to commit, or
(ii) facilitate the commission by a criminal organisation or any of its members of,
a serious offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 15 years or both.
(3) The reference in subsection (1) to the commission of a serious offence includes a reference to the doing of an act in a place outside the State that constitutes a serious offence under the law of that place and which act would, if done in the State, constitute a serious offence.
(4) In proceedings for an offence under this section it shall not be necessary for the prosecution to prove—
(a) that the criminal organisation concerned or any of its members actually committed, as the case may be—
(i) a serious offence in the State, or
(ii) 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,
(b) that the participation or contribution of the defendant actually—
(i) enhanced the ability of the criminal organisation concerned or any of its members to commit, or
(ii) facilitated the commission by it or any of its members of,
a serious offence, or
(c) knowledge on the part of the defendant of the specific nature of any offence referred to in subsection (1)(a) or (b).
(5) In determining whether a person participates in or contributes to an activity referred to in subsection (1), the court may consider, inter alia, whether the person—
(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organisation concerned, or
(b) receives any benefit from the criminal organisation concerned.
(6) In proceedings for an offence under this section, it shall be presumed, until the contrary is shown, that the participation or contribution (the ‘ relevant act ’) of the defendant referred to in subsection (1) was engaged in or made with the state of mind on the defendant’s part referred to in paragraph (a) or (b) of that subsection if the circumstances under which the relevant act was committed—
(a) involved either—
(i) the possession by the defendant, whilst in the presence of one or more other persons, of any article or item referred to in the Table to this section, or
(ii) there being present in (or, in the case of a false registration plate referred to in paragraph 8 of that Table, present in or affixed to) any vehicle—
(I) the use of which appears connected with the relevant act, and
(II) of which the defendant and one or more other persons were occupants on or about the date of commission of the relevant act,
any such article or item,
and
(b) those circumstances are such as give rise to a reasonable suspicion that the defendant's state of mind was as aforesaid at the time of the relevant act's commission.
Table
Any balaclava, boiler suit or other means of disguise or impersonation, including any article of Garda uniform or any equipment supplied to a member of the Garda Síochána or imitation thereof.
Any firearm (within the meaning of section 1 of the Firearms Act 1925), ammunition for a firearm or device that appears to the ordinary observer so realistic as to make it indistinguishable from a firearm.
Any knife to which section 9(1) of the Firearms and Offensive Weapons Act 1990 applies, weapon of offence within the meaning of section 10(2) of that Act or weapon to which section 12 of that Act applies.
Any implement for burglary or other article or item for gaining access to any premises or other structure without the permission of the owner or occupier thereof, including any key or card that has been stolen or any access code unlawfully procured.
Any plan of any premises or other structure unrelated to any lawful activity, trade or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).
Any controlled drug (within the meaning of the Misuse of Drugs Act 1977).
Any substantial amounts, in cash, of any currency unrelated to any lawful activity, trade, transaction or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).
Any false vehicle registration plate, that is to say, any plate purporting to be a plate for a mechanically propelled vehicle registered under section 131 of the Finance Act 1992 and displaying an identification mark other than that duly assigned by the Revenue Commissioners under Chapter IV of Part II of that Act and regulations thereunder.
Any article or item for making a counterfeit of any currency note or coin or making a counterfeit or otherwise for making a forgery of any credit or debit card.
Any article or item for making copies of any work, being an article or item of a design enabling, and held in circumstances indicating that it would likely be used for, the making, on a substantial scale, of infringing copies (within the meaning of Part II of the Copyright and Related Rights Act 2000) of the work without the copyright owner's consent.
Any other article or item prescribed for the purposes of subsection (6).”.
7. Evidential provisions as to proof of criminal organisation’s existence.
7.— The Act of 2006 is amended by inserting the following section after section 71A (inserted by section 5):
“Provisions with respect to proof of criminal organisation’s existence.
71B.— (1) In proceedings under this Part the opinion of—
(a) any member of the Garda Síochána, or
(b) any former member of the Garda Síochána,
who appears to the Court to possess the appropriate expertise (in this section referred to as the ‘ appropriate expert’ ) shall, subject to section 74B, be admissible in evidence in relation to the issue as to the existence of a particular criminal organisation.
(2) In subsection (1) ‘ expertise ’ means experience, specialised knowledge or qualifications.
(3) Without limiting the matters that can properly be taken into account, in the formation of such opinion, by the appropriate expert, it shall be permissible for that expert, in forming the opinion referred to in subsection (1), to take into account any previous convictions for arrestable offences of persons believed by that expert to be part of the organisation to which the opinion relates.
(4) Without prejudice to subsection (1), in proceedings under this Part the following shall be admissible as evidence that a particular group constitutes a criminal organisation—
(a) any document or other record emanating or purporting to emanate from the group or created or purporting to be created by the defendant—
(i) from which the group’s existence as a criminal organisation can be inferred;
(ii) from which the commission or facilitation by the group of a serious offence or its engaging in any activity in relation thereto can be inferred; or
(iii) that uses or makes reference to a name, word, symbol or other representation that identifies the group as a criminal organisation or from which name, word, symbol or other representation it can be inferred that it is such an organisation,
(b) the provision by a group of 3 or more persons of a material benefit to the defendant (or a promise by such a group to provide a material benefit to the defendant), which provision or promise is not made in return for a lawful act performed or to be performed by the defendant.
(5) In subsection (4) ‘ document or other record ’ includes, in addition to a document or other record in writing—
(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and
(c) a photograph.”.
8. Certain offences under Part 7 of Act of 2006 to be scheduled offences.
8.— (1) It is hereby declared that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to an offence under each of the following provisions of Part 7 of the Act of 2006, namely, sections 71A, 72, 73 and 76.
(2) An offence specified in subsection (1) shall be deemed to be a scheduled offence for the purposes of Part V of the Act of 1939 as if an order had been made under section 36 of the Act of 1939 in relation to it and subsection (3) of that section and section 37 of the Act of 1939 shall apply to such an offence accordingly.
(3) Nothing in subsection (1) or (2) shall be construed as affecting, or limiting in any particular case, the exercise—
(a) by the Government of any of their powers under any provision of section 35 or 36 of the Act of 1939,
(b) by the Director of Public Prosecutions of his or her power under section 45(2) of the Act of 1939 to direct that a person not be sent forward for trial by the Special Criminal Court on a particular charge, or
(c) by the Government or the Director of Public Prosecutions of any other of their powers under Part V of the Act of 1939 or by any other person of his or her powers under that Part.
(4) This section shall, subject to subsection (5), cease to be in operation on and from the date that is 12 months from the passing of this Act unless a resolution has been passed by each House of the Oireachtas resolving that this section should continue in operation.
(5) This section may be continued in operation from time to time by a resolution passed by each House of the Oireachtas before its expiry for such period as may be specified in the resolutions.
(6) Before a resolution is passed by either House of the Oireachtas under this section, the Minister for Justice, Equality and Law Reform shall prepare a report, and shall cause a copy of it to be laid before that House, of the operation of this section during the period beginning on the passing of this Act, or as may be appropriate, the date of the latest previous report under this subsection in relation to this section and ending not later than 21 days before the date of the moving of the resolution in that House.
9. New section 72A of Act of 2006.
9.— The Act of 2006 is amended by inserting the following section after section 72:
“Offences under this Part: inferences that may be drawn.
72A.— (1) Where in any proceedings against a person for an offence under this Part evidence is given that the defendant at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the defendant is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure.
(2) Subsection (1) shall not have effect unless—
(a) the defendant was told in ordinary language when being questioned what the effect of such a failure might be, and
This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.