A Chathaoirleach, I welcome the opportunity to debate the matter of witness protection in the House this evening.

To begin with I commend the Labour Party’s efforts in drafting the Bill.  It draws very heavily on Canadian law in this area, although I gather that the efficacy of some aspects of their witness protection arrangements is a matter of public debate in Canada at the moment.  Apart from a number of particular provisions, which I’ll come to later, some of the contents of the Bill are little different from those which the Government would include in such a Bill if it thought it necessary to legislate for the Witness Security Programme.  But for reasons which I will set out, the Government does not believe this Bill is necessary. 

In particular, the Garda Commissioner’s advice is not only that it is unnecessary to place the existing Witness Security Programme on a statutory basis but to do so could introduce an element of inflexibility which could hinder their efforts.  The House will appreciate that I cannot go into detail about particular cases but the fact is that the Witness Security Programme is being operated in a significant number of cases at present.  Put simply, the advice available to the Government is that this Bill before the House would not help and could hinder its operation.

Let me put some context into this debate.  As the Supreme Court itself stated, in an ideal world there would be no need for witnesses in such a Programme.  The development of the Programme is a reflection of the society we live in.  It’s a society where, regrettably, there are people who will stop at nothing, including killing others, to protect their drugs, or other criminal, activity.  In some cases where criminal prosecutions are taken it would be very difficult, if not impossible, to proceed without the evidence of accomplices.  And let’s be clear about this, accomplices are people who themselves have criminal backgrounds.  Sometimes these backgrounds include the most serious criminal offences.  If an accomplice is to be persuaded to give evidence, their lives and the lives of their families may well be jeopardised.

The answer to this dilemma is to offer protection.  The benefit to society is that very dangerous criminals are removed from our streets.
So when we talk about ‘witness protection’ in the context of the type of scheme envisaged, we are not usually referring to innocents unwittingly or accidentally caught up in gang crime, gun culture and drug dealing.  We’re talking about people with ‘form’ of their own. So let’s keep a sense of perspective: a Witness Security Programmes is only ever really for ‘witnesses’ of a very special hue – willing participants of the criminal underworld who, for whatever reasons, choose to turn on their erstwhile colleagues.
I make this key point not for academic reasons but because of the inevitable and inescapable conclusions that follow.  People generally choose to enter witness protection programmes not because of the nature of those programmes but because there is something in it for themselves.

The reality is that every possible protection necessary for a witness and his or her family can be, and is, already provided by the Garda Síochána, including financial support, a change of identity, relocation and so on.  We don’t need legislation for these types of protection measures.  In fact they are already in place under the existing Witness Security Programme.

The reason the Garda Síochána don’t receive greater and more frequent co-operation from gangland members is not because they doubt the adequacy of protection measures in place within the Witness Security Programme, and still less whether it operates on a statutory basis or not.  Placing the Programme on a statutory basis would be highly unlikely to have any effect on the willingness or otherwise of such persons to enter it.  The reason co-operation isn’t forthcoming more often is simply because these people don’t want to give it, even when they may already have been the target of murder threats or even murder attempts.

The cold, hard, unpalatable reality for all of us is that gangland members live by a peculiar ethic, if I might describe it thus.  Respect is measured solely by one’s willingness to mete out uncompromising lethal violence in defence of oneself, one’s turf and one’s criminal enterprises.  The only language they speak is the language of violence; the only authority they recognise is the authority of the gun; and the only disgrace they fear is the disgrace of not being seen as the hardest of hard men.  For them life can be cheap.

They seem to have a special contempt for the institutions of the State and in particular the Gardaí, the courts and the criminal justice system.

This is not an attractive portrait, but Senators should not lose sight of the fact that this is the reality.

As I’ve already mentioned the Bill is not altogether flawed in its contents.  But it is at best unnecessary and for this reason the Government is compelled to oppose it.

But lest anyone think I am being unduly dismissive of the Labour Party’s efforts, let me briefly highlight just how redundant most of its provision are.  The criteria for admission to the Programme, the factors to be taken into account, the terms of protection, the termination of the protection agreement and change of identity are already part of the existing programme.

Furthermore, the prohibition on the disclosure of information about the identity or location of a witness is already enshrined in legislation by virtue of section 40 of the Criminal Justice Act 1999.  That section even makes it an offence for a person to make enquiries or to take steps to discover the identity or whereabouts of a relocated witness.

The Labour Party claims the Bill is needed in these areas because of criticism by the Court of Criminal Appeal.  But they seems to miss the fundamental point here.  The Court of Criminal Appeal upheld the validity of the operation of the Programme and the evidence accruing from it, as did the Supreme Court.  In other words, the Witness Security Programme has not only demonstrably contributed to the successful conviction of major criminals but has withstood challenge in the courts.

But as you would expect following comments in the superior courts, a review by the Garda Commissioner resulted in some enhancements to the Programme.

The Witness Security Programme now operates according to international best practice in the balancing of the needs of law enforcement with the needs of the protected witness.  This necessarily includes ensuring a separation between those responsible for the criminal investigation and those involved in the management of the Programme, including admittance to it.  In this regard, no member of the Garda crime investigation team has any involvement in the work of evaluating the appropriateness of admittance to the Programme.  This is to ensure that there can be no hint of a possible inducement being offered to the witness and to preserve the independence and consistency of decision making with respect to the operation of the Programme.

I should add that I also have a concern that setting the operation of the Programme in statutory stone would unduly interfere with the Garda Síochána’s capacity to respond quickly, flexibly and proportionately to the oftentimes very specific needs of witnesses.

Let me now return to the two specific features of the Bill which cause me particular concern.  These are

• the role given to the DPP in deciding who to admit to the Programme and the type of protection to be provided; and
• provision for the disclosure of information about a protected person.
Dealing with the first of these, Section 5 attempts, quite inappropriately in my view, to assign to the DPP a pre-eminent position over and above that of the Garda Commissioner in deciding who to admit to the Programme and even such clearly operational matters as the type of protection to be provided.  I can’t accept that this is a role for anyone but the Garda Commissioner.
Furthermore, such a provision would inevitably conflict with the statutory role of the DPP as the independent prosecution authority in the State.  It would undermine the separation of responsibilities of the Garda Síochána and the DPP in the investigation and prosecution of serious crime.  Such a development would be neither wise nor necessary.

I should mention that at present the DPP is consulted on the cases that arise under the present scheme.  But that is a far cry from making him the deciding authority on all matters relating to the scheme as proposed in the Bill before the House.

The second serious flaw which I detect in the Bill arises out of Sections 13 and 14.  These sections set out circumstances and factors that would justify disclosure of information relating to a protected person, including information sufficient to identify and locate that person.  In my view these sections have the potential to set at nought the chances of encouraging persons to enter the Programme and give evidence against, and let’s be clear about this, former comrades. This seems an extraordinary proposition, particularly as any person admitted to the Programme is unlikely to be without criminal baggage himself.

In summary then, the Bill is unnecessary, in that most of its provisions already mirror existing non-statutory practices, which have withstood legal challenge.  The few novel features of the Bill could not only damage the independence of the DPP but also likely act in diametrical opposition to the whole raison d’être of a Witness Security Programme, namely, to encourage those with information to co-operate with the Garda Síochána.

The Government is, of course, seriously concerned about gangland crime, particularly in the aftermath of recent, shocking murders.  These events emphasise the continuing imperative to target responses where they will be most effective.  I don’t believe that this Bill contributes to that response.  A functional and effective Witness Security Programme is already there for those who wish to avail of it. Most choose not to, for reasons I need not repeat.

A targeted response comes in many forms.  Operation Anvil is central to the strategy of the Garda Síochána in combating serious crime and, in particular, murder.  The most recent figures received from the Garda Commissioner in this regard show that from its beginning in May 2005 to 14 October last, 784 firearms have been recovered.

Moreover, over the lifetime of this and the last Government, we will have increased the strength of the Garda Síochána by 4,000.  The current Programme for Government re-affirms the commitment to a Garda strength of 15,000, with a target date of 2010, and commits us to increasing its strength further to 16,000 by 2012.  I doubt that any other police service in the world has seen such a level of increase.  The Garda budget for this year stands at €1.44 billion, compared to just over €0.9 billion five years ago.

The Organised Crime Unit, tasked with targeting organised criminals and disrupting criminal networks, has been strengthened.
A package of crime investigation initiatives was recently launched by senior Garda management.  These include the establishment of a crime training faculty at the Garda College to provide a professional, comprehensive training programme for those charged with the management of serious crime investigations.

Crucially, as a result of the enactment of the Criminal Justice Act 2007, the Garda Síochána is in a much better position to ensure that those involved in gun crime will be made accountable for their actions.  The Act intensifies further the fight against gangland activity on many fronts.  These include a tougher bail regime in drugs, firearms and other serious cases; post-release monitoring orders; enhanced penalties for repeat offenders; and changes to the laws of evidence.

There is no point in pretending that the situation which has emerged with gangs involved in the drug trade and the callous disregard which they show for human life can be made go away overnight.  It will take determined, steady and relentless action by everyone involved.  That is exactly what we will continue to support.  Unfortunately, however, the Bill before us adds nothing to this task and even risks jeopardising it.

A Chathaoirleach for the reasons I have given the Government will not be supporting this Bill.

Thank you.

31 October 2007