Criminal Organisation II

Offence of Participation

A person is guilty of an offence if, with knowledge of the existence of the organisation, a person participates in or contributes to any activity (whether constituting an offence or not) intending either to enhance the ability of the criminal organisation or any of its members to commit or facilitate the commission by a criminal organisation or any of its members of a serious offence or being reckless as to whether such participation or contribution would either enhance the ability of the criminal organisation or any of its members to commit or facilitate the commission by a criminal organisation or any of its members of a serious offence.

A person guilty of an offence under the above provision (participation and contribution) is liable on conviction on indictment to a fine or imprisonment to a fine, term not exceeding 15 years.

In proceedings for the above offence, it is not necessary for the prosecution to prove that the criminal organisation or any of its members actually committed a serious offence in the State or outside the State or that the participation or contribution of the defendant actually enhanced the ability of the organisation or facilitated the commission by it or its members of a serious offence in order to prove knowledge on the part of the defendant of the specific nature of any offence.

A person who commits a serious offence for the benefit of or at the direction of or in association with a criminal organisation is guilty of an offence.

It is not necessary in such a case for the prosecution to prove that the person concerned knew of the persons who constituted the criminal organisation concerned. A person guilty of an offence is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 15 years or both.

Evidence and Presumptions

Nothing in the part of the legislation above is to prevent a court from excluding evidence that would otherwise be admissible if in its opinion the prejudicial effect of the evidence outweighs its probative value.

in determining whether a person participates in or contributes to an activity above, the court may consider whether the person uses a name, word, symbol or other representation that identifies or is associated with the criminal organisation or receives any benefit from the criminal organisation concerned.

In proceedings, it is presumed until the contrary is shown that the participation or contribution of the defendant was engaged in or made with the state of mind above, if the circumstances under which the act was committed, involved either the possession by the defendant while in the presence of one or more other persons of any article referred to below or their being present (or in the case of a false registration plate present in or affixed to any vehicle), the use of which appears connected with the relevant act, and of which the defendant or one or more persons were occupants on or about the date of commission of the act, of any such articles or items and those circumstances are such as give rise to a reasonable suspicion as to the defendant’s state of mind as aforesaid at the time of the relevant act’s commission.

The items concerned are

• any of  balaclava, boiler suit or other means of disguise or impersonation,
• any article of Garda uniform or equipment or imitation thereof;
• any firearm or ammunition or imitation firearm;
• any knife subject to the firearms and offensive weapons legislation or another weapon of offence;
• any implement of burglary or article used for gaining access to premises without the permission of the occupier, including a key or card that has been stolen and access code unlawfully procured;
• the plan of any premises or other structure unrelated to lawful activity, trade or purpose being pursued or engaged in by one or more of the persons above;
• any false vehicle registration plate;
• any article or item for making a counterfeit or any currency or coin;
• any article or item for making copies of any work, being an article or item enabling, and held in circumstances likely to be used for the making, on a substantial scale, of infringing copies of the work without the copyright holders consent; any other articles prescribed.

Effect of Inferences

Inferences may be drawn from failure in certain circumstances to answer questions. Where in proceedings against a person for an offence under the legislation, evidence is given that at any time before he was charged with the offence, on being questioned by a member of An Garda Síochána, he failed to answer a question material to the investigation in the court and a jury in determining guilt, may draw inferences from such failure as appears proper and the failure may on the basis of inferences be treated as or capable of amounting to corroboration of any evidence in relation to the offence.

A person shall not be convicted of the offence solely or mainly on an inference drawn from such failure. The possibility of drawing an adverse inference does not apply unless the defendant was told in ordinary language when being questioned, the effect of such a failure, what the effect of such a failure might be and the defendant was afforded a reasonable opportunity to consult a solicitor before such a failure was heard.

This is without prejudice to the admissibility of other circumstances in which the failure to answer or silence might be admissible. The court or the jury as the case may be, drawing an inference shall have regard to the, if appropriate, whenever the question and answer to the question concerned was first given by the defendant, if applicable.

The evidence is not admissible unless it is recorded or the person concerned consents in writing to it not being so recorded.

Material Questions

A question material to the investigation is one,

• requesting that the defendant gives a full account of his movements, actions, activities or associations during any specified period relevant to the offence and whichever one or more of the following is relevant to the offence being investigated:
• a question relating to any statement or conduct from which it might be inferred that he is directing the activities of a criminal organisation;
• any question relating to a benefit received from the organisation or) which the member concerned reasonably believes was received by the defendant or on his behalf;
• a question relating to articles, documents and records, of the type referred to above;
• a question relating to any documents or records emanating or purporting to emanate from the organisation created or purported to be created by the defendant, found in the possession at the time of his arrest or found on foot of a lawful search of premises or vehicle occupied by him;
• a question relating to suspected use by the defendant in a document or suspected reference to him or her in a document to a name, word, symbol or other representation referable to the organisation;
• a question relating to the possession by the defendant, or a person in a relevant vehicle or in circumstances involving the defendant referred to in that provision, of any article referred to in a table in the legislation

No question should be regarded as being material to the investigation of the offence unless a member of An Garda Síochána concerned reasonably believes that the question related to the participation of the defendant in the commission of the offence. A failure to answer includes references to giving a false or misleading answer.

Special Criminal Court

The legislation declares that the ordinary courts were inadequate to secure the effective administration of justice and preservation of public peace and order in relation to certain of the above organised criminal organisation offences. They are those referred to in 71A, 72, 73 and 76, Criminal Justice Act 2006 as amended. These offences are deemed to be scheduled offences in the same manner as Part V of the Offences against the State Act 1939 and those provisions apply.

This declaration in the statute does not limit the power of the Government or the DPP in relation to their powers in relation to sending persons for trial in the Special Criminal Court rather than the ordinary court.

The legislation requires annual renewal by the Oireachtas. Before renewal, the Minister for Justice is to prepare a report and cause a copy of it to be laid before that House, of the operation of this section during the period concerned.

Proceedings

Proceedings may be taken against a person outside the State, if he does an act outside the State which would if done within the State constitute the above offences of directing a criminal organisation or participation in or contribution to their activity. It applies to acts on board Irish ships or aircraft. It applies to a person who is an Irish citizen or ordinarily resident in the State, or a body corporate established in the State. Such persons may be proceeded against as if they were guilty of an offence, notwithstanding that the relevant acts took place outside the State.

Where a court is determining the sentence to be imposed on a person for a serious offence, the fact that the offence was committed as part of or in furtherance of the activities of a criminal organization, shall be treated for the purpose of determining the sentence as an aggregating factor. Accordingly, a court shall except where the sentence for the serious offence is one of imprisonment for life or where the court considers there are exceptional circumstances justify its not so doing, impose a sentence that is greater than that which would have been imposed in the absence of such a factor. The sentence imposed shall not be greater than the maximum sentence permissible for the serious offence.

Nothing in the part of the legislation above is to prevent a court from excluding evidence that would otherwise be admissible if in its opinion the prejudicial effect of the evidence outweighs its probative value.

Where a person is charged with an offence under the above provision, no further action may be taken beyond the initial remand in custody without the consent of the DPP. The DPP make take or consent to the taking of proceedings in respect of an act committed outside the State in the above circumstances if it is satisfied that a request for surrender for extradition or European arrest warrant has been issued and refused or that because of special circumstances including the likelihood of refusal above, it is expedient that the proceedings be taken in the State.

Defendants

Where an offence is committed by a body corporate and it has been proved to have been committed with the consent, connivance, or approval of or attributable to the willful neglect of any person being a director, manager, secretary or another officer of the body corporate, or a person who is purporting to act in such capacity, that person as well as the body corporate shall be guilty of an offence and punishable as if he were the principal. Where the affairs of a body corporate are managed by its members, the above provision shall apply in respect of acts or defaults of the members in connection with their functions of management as if they were directors or managers of the body concerned.

A person who is acquitted or convicted of an offence in a place outside the State shall not be proceeded against for an offence for conspiracy or participation in certain activities of a criminal organisation or a conspiracy to do the same, of which the person was acquitted or convicted (outside the State).