Daniel Kinahan been charged with directing a criminal organisation - so what does that mean?

Niall O'Connor

ON SUNDAY NIGHT the eyes of the world and the city of Dublin watched on as Daniel Kinahan appeared before the Special Criminal Court to answer a single charge of allegedly directing a criminal organisation. 

The charge the alleged organised crime boss faces was created two decades ago to deal with feuding gangs in Limerick city and a growing and murderous Dublin gangland ecosystem.

Section 71a of the Criminal Justice Act 2006, as amended in 2009, is the offence of directing a criminal organisation – in other words, the alleged management of an organised crime group (OCG).

It is used by the Director of Public Prosecutions to prosecute anyone alleged to direct, control or supervise the activities of an OCG. 

The offence targets anyone who controls, supervises or “gives an order, instruction or guidance, or makes a request, with respect to the carrying on of the activities” of a criminal organisation. 

It was created to confront the McCarthy/Dundon and Keane/Collopy gang war in Limerick. It is thought that around 20 people were killed, including witnesses, during that feud. 

Around the same time in Dublin, Eamon ‘The Don’ Dunne and Marlo Hyland were the main protagonists in an ever-increasing spiral of murder and mayhem as they fought for control of the capital’s drug trade.

Politicians brought in the offence as part of a suite of measures designed to further crack down on gangland crime following a similar drive around a decade earlier. 

In the wake of the murder of Veronica Guerin in the 1990s, the Criminal Assets Bureau had been created to go after gangsters’ money and property.

The difficulty remained that Ireland’s criminal statute was wanting for a specific offence of being the leader and the decision-maker in the activities of a crime organisation.

In the record of the Oireachtas the legislators’ intent is clear, and it was intended as a strategy to confront organised crime groups and to ensure the protection of the justice system. 

Those accused of directing a criminal organisation have their cases heard in the Special Criminal Court because of concerns of potential witness intimidation and threats. The decision to use the non-jury court was part of an effort to inoculate the criminal justice system from interference by ever more sophisticated criminal enterprises.  

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‘Targets those giving orders’

Speaking years after the introduction of the offence, in 2013, then-Minister for State at the Department of Justice and Equality Kathleen Lynch was clear in her language when addressing the Seanad. 

“The measures contained in the Criminal Justice (Amendment) Act 2009 were designed to tilt the balance firmly in favour of the rule of law and justice and instil confidence in everyone that criminal gangs were not going to be permitted to frustrate criminal investigations or prosecutions of their activities.

“In view of the very real threat which these gangs posed, the Act provided for a limited number of specific organised crime offences to be prosecuted in the Special Criminal Court.

“The proposal to use the Special Criminal Court for a limited number of organised crime offences removed the possibility of tampering with juries or intimidation of jurors,” she said. 

Answering a Dáil question in 2018, then-Justice Minister Charlie Flanagan noted that the offence “specifically targets those in criminal organisations who give the orders without requiring their direct participation in the commission of criminal offences”. 

Section 71A carries a maximum sentence of life imprisonment, but mitigation can be heard by the judges who have discretion in their sentencing.

In the case of Daniel Kinahan, the Dubliner has been accused of directing a criminal organisation between the dates of 18 October 2015 and 6 April 2017. 

The garda giving evidence on Sunday night at the Criminal Courts of Justice did not say that Kinahan made any reply after the charge was read to him.

Kinahan has been remanded in custody to appear again before the Special Criminal Court on 5 October. 

The judge said to Kinahan that, as it was the Special Criminal Court, he would have to make an application for bail at the High Court. 

Kinahan responded: “I understand, but we know I won’t be getting bail.”

After the hearing, he was transferred to the maximum-security Portlaoise Prison.