The Criminal Justice Act 2006 sought to target criminal organisations and organised crime. The legislation originated both from so-called gangland crimes but also from EU and international obligations.
A criminal organisation is a structured group, however, organised, that has as its main purpose or activity, the commission or facilitation of serious offences. A structured group is a group of three or more persons, which is not randomly formed, for the immediate commission of a single offence and involvement in which by two or more of those persons is with a view to their acting in concert. A structured group may exist, notwithstanding the absence of all or any of the following:
- formal rules or formal membership, or any formal roles for those involved;
- any hierarchical or leadership structure;
- continuity of involvement by persons in the group.
The definition is wide enough to cover structured criminal organisations and relatively unstructured organised groups with any element of organised preparation.
A serious offence, for this purpose, is one that is capable of being punished by imprisonment for four years or more.
Assistance and Conspiracy
Facilitation may exist without knowledge of a particular offence, the commission of which is facilitated. It does not require that an offence be actually committed. The Criminal Justice Act 2006, in effect provides for a statutory version of conspiracy, which exists in tandem with the common law offence of conspiracy.
The 2006 Act provides that, that the person who conspires whether in the State or elsewhere with two or more persons to do an act in the State that constitutes a serious offence or in a place outside the State that constitutes a serious offence under the law of the place which, if done in the State would constitute a serious offence, is guilty of an offence irrespective of whether the act takes place or not.
A person may conspire outside the State if
- the offence the subject of the conspiracy was committed or was intended to be committed in the State or against the citizen of Ireland;
- if the conspiracy is committed on board an Irish ship or registered aircraft;
- if the conspiracy is committed by an Irish citizen or a person ordinarily resident in the State.
In the case of a conspiracy committed outside the State, other than in the above circumstances, the DPP may not take a case except where extradition has been requested and refused, a European arrest warrant has been requested and refused or because of special circumstances. It is expedient that proceedings be taken in the State. The special circumstances include the likelihood of refusal of an extradition order or European arrest warrant.
A person charged with an offence under the statutory offence or conspiracy may be indicted, tried and punished as a principal offender.
It is an offence to direct a criminal organisation. This is similar to be Offences against the State Act offence. A person who directs at any level of the organisation structure, the activities of a criminal organization, is guilty of an offence. He is liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
Directs, in this context means controls or supervises the activities, gives orders, instructions or guidance or makes a request in respect to the activities. Activities include activities carried on outside the State and activities that do not constitute an offence.
A statement made orally, in writing or otherwise, or any conduct by the defendant implying or leading to a reasonable inference that he was at the material time directing the activities of a criminal organisation, shall in proceedings for an offence be admissible as evidence that he was doing such act at the time.
In proceedings, the court or jury may in determining whether an offence has been committed in addition to other relevant evidence, consider any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of an organisation concerned at the material time.
Without limiting the above, they may consider whether the defendant has received any benefit from the organisation and evidence as to the possession by the defendant of articles and documents of records which would give rise to a reasonable suspicion that such articles, documents and records were in his possession or control for a purpose connected with directing activities of the organisation concerned.
- A document or record emanating or purporting to emanate from an organisation from which there can be inferred either the giving of instructions, orders or guidance by the defendant to any person involved in the organisation;
- the making of a request of a person so involved;
- the seeking at that time by a person so involved of assistance or guidance from the defendant,
shall in proceedings for an offence be admissible as evidence that the defendant was so directing the activities of the organisation concerned at that time.
In any proceedings, the opinion of a member of An Garda Síochána or a former member, who appears to the court to possess the appropriate expertise is admissible as evidence in relation to the existence of a particular criminal organisation. Expertise includes experience, specialised knowledge or qualification.
It is permissible for the expert in forming an opinion to take account of any previous convictions for arrestable offences of persons believed by that expert to be part of the organisation to which the opinion relates.
The following is admissible as evidence that a particular group constitutes a criminal organisation:
- any document or other record emanating or purporting to emanate from the group concerned or purporting to be created by the defendant from which the group’s existence as a criminal organisation can be inferred;
- from which the commission or facilitation by a group of a serious offence or its engaging in any activity in relation thereto can be inferred or that makes or uses a 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 may be inferred that it is such an organisation.
The provision by a group of three or more persons of a material benefit to the defendant or a promise by such group to provide a material benefit to the defendant which provision is not made in return for a lawful act performed is also admissible as evidence.
Documents or records are widely defined to include all electronic and other forms of information storage.