Dáil Éireann debate -
Wednesday, 13 Jun 1984

Vol. 351 No. 7

Criminal Justice Bill, 1983; Committee Stage (Resumed).

Question again proposed: "That section 14, as amended, stand part of the Bill."

Dr. Woods

This section is related to section 15. Under this section a husband will be required, under penalty in the inform on his wife. The penalty in the section is five years, which clears the way for section 3, which is arrest on suspicion. Presumably if the husband tells the Garda about his wife they then have a reasonable basis for suspicion and can detain the wife under section 3. We have to be careful of the inter-relationship of these sections as new powers and situations will arise. I consider the effect of this section to be most undesirable. At first the Minister did not seem to think that this would be the case but then he confirmed that it is so only in relation to information and that failure to supply information is an offence. This is a new offence.

The Association of Garda Sergeants and Inspectors are not clear on how this section will work and what will be required. In their statement they say that sections 14(1) and 15(1) need to be clarified to determine precisely what information a person is required to give. Sections 14(4) and 15(4) need to be clarified to determine what information, if any, can subsequently be used against that person. There seems to be a considerable amount of confusion about the effect and impact of the section and how it will be applied in practice. While we support the Minister in his intentions and the principle of the section, the ramifications need to be teased out to ensure that undesirable changes do not take place. Perhaps those changes are there because the Minister wants this information, even if a husband has to inform on his wife, and that he does not regard that as a major change in the relationship between a husband and wife. I have pointed out that it is a new development and the common and statute law is that a spouse cannot be called to give evidence against his or her spouse except where the offence is against the wife. The fact that they can now inform on one another is a major development in relation to the marital relationship. I should like the Minister to consider what the implications of that will be.

Criminal lawyers are also concerned about this section. They have said that this section, along with sections 15, 16, 17 and 18, provide for a situation in which it is made compulsory for a citizen to speak to the police. This is a change and the question that must concern us is how we go about this change.

Section 14 provides that where a garda finds a person in possession of a firearm or ammunition, has a reasonable ground for believing him to be unlawfully possessed thereof and tells him so, he may require that person to give him information in his possession, or information which he can by reasonable steps obtain, as to how he came by the firearm or ammunition. If he fails or refuses to give such information or gives information which he knows to be false or misleading he will be guilty of the offence which carries on conviction on indictment a sentence of five years' imprisonment or a fine of £10,000 or both. We know that the information will not be admissible either in civil or criminal proceedings but it raises the question of what sort of reasonable steps one must be prepared to take. The same arises in relation to section 15 where a person is found in possession of property which is believed to be part of the proceeds of a number of listed crimes. The garda may require such a person to give an account of how he came by it. It is the same principle in both cases. A failure or refusal to comply, without reasonable excuse, or the giving of information known to be false or misleading, is an offence and such information cannot be used against the informant or a spouse.

Minister for Justice (Mr. Noonan

Limerick East): On a point of order, since the principle is the same in sections 14 and 15, could we discuss the two together by agreement?

Dr. Woods

I would be quite happy to do so.

An Ceann Comhairle

Sections 14 and 15 together, by agreement.

Dr. Woods

Sections 14 and 15 are extensions of the power to compel citizens to speak. It is claimed that failure to speak will or may result in criminal prosecution of the person in question. Therefore it is of the utmost value to the person questioned to give information, perhaps any information based on rumour, speculation, whims or grudges, to be seen to be co-operating with the Garda. This not only relieves such persons of the threat of prosecution for failing or refusing to furnish information but may well leave innocent persons open to Garda suspicion and prosecution based on information passed by the informant which is not necessarily true.

An Ceann Comhairle

There is a complication in that there are two amendments to section 15. Amendments Nos. 25 and 45 are related and should be taken together. I take it that we are discussing together, by agreement, section 14, section 15, amendment No. 35 and amendment No. 45. Amendment No. 34 has already been discussed.

Dr. Woods

Yes. I hope the Chair recognises how helpful we are being to the Chair and the Minister. Innocent persons may be left open to Garda suspicion. Presumably the Garda would have reasonable grounds for pursuing a person under section 3 because the offence carries a penalty of five years' imprisonment. Presumably there would also be grounds for detention under section 3. The fact that such information is supplied in this fashion and may be used in a prosecution against another party raises the issue of its reliability. It is a rule of law that if the sole or substantial evidence against the accused is the uncorroborated testimony of an accomplice then a jury in a criminal trial ought to be warned of the danger of convicting an accused on such information. These sections not only seem to compel the giving of the type of information which often emanates from an accomplice but provide the additional enticement to implicate another by offering immunity from prosecution in respect of whatever matter is divulged in such information. No matter how great the person's part in such offence or how serious the crime which may have been committed, the effect of the sections is to compel a person to make statements under pain of prosecution in circumstances where the person may have an interest in implicating an innocent party, either from simple malice towards him or in preference to revealing the name of the true culprit. A culprit might be in a position to extract revenge for any co-operation with the police against him. In addition, such information may well be that of an accomplice and may be used in a later prosecution against the person in respect of whom the information was given.

The discretion of the Director of Public Prosecutions to grant immunity from suit is taken away. This is the view expressed by the Association of Criminal Lawyers. Such immunity is conferred on all accused of whom request is made under sections 14 and 15 and who have given information concerning materials in their possession. This would be in contrast to what the Judiciary have stated concerning the granting of immunity from prosecution, that it should be granted by the DPP and never by police officers without reference to the law officer of the State. The section would appear to grant to the Garda direct the ability to grant immunity whereas the traditional position has been that it should be granted by the DPP and never by the police without reference to the law officer of the State. The immunity conferred by subsection (4) would also appear to mean that a full confession volunteered in an unobjectionable manner in answer to a requisition might be excluded from evidence and leave the police with no other resource. This appears to reflect the way in which the Bill was drafted and the lack of attention to its practical effect.

The view of the Association of Criminal Lawyers is that the effects of sections 14 and 15 would be to compel persons questioned to speak under threat of prosecution and to confer immunity from prosecution on such persons when they speak. This contains the risk that the persons may seek to minimise their involvement in the series of events under investigation by implicating others from impure motives. The immunity is conferred by a police officer requesting information of the informant. This is a complete departure from the exercise of the power to confer immunity by the DPP, which is very selective and rarely used. On the grounds of these comments, the association were opposed to the sections and were very concerned about the effects. They said that the sections are opposed on the serious ground that both sections grant immunity to a person in possession of firearms or stolen property in so far as statements of his are not admissible against him. Because of this section an accessory to an offence merely by giving information may become virtually immune from prosecution. The evidence given by such a person must be suspect as it will be the result of an award held out. It has a striking resemblance to granting immunity from prosecution to a witness in exchange for incriminating evidence against third parties. The President of the Law Society has said that it is an attempt to compulsorily require members of the public to co-operate with the police. In his address to a seminar held by the Incorporated Law Society he says it is his belief that the possibility of persons pleading guilty to offences that have never been committed cannot be ruled out. They also have reservations about the constitutionality of the sections, particularly in relation to Articles 38 and 40 of the Constitution.

It would appear that the Garda on the one hand have reservations about how these sections will operate, particularly in regard to section 14 (4) which says:

Any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2).

The same applies to section 15 (4) which says:

Any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2).

They do not appear to be clear as to what information would be involved in that case. Might I ask the Minister, in relation to section 14 (1), if he can say whether it is intended that the phrase "reasonable steps" should be interpreted subjectively or objectively. If the Minister says it is to be subjective, how is it to be done? The section creates an entirely new offence. How will the courts know what criteria should be applied in determining whether an accused person has taken "reasonable steps" as to any previous dealings with the firearm or ammunition? For example, 14 (1) says:

...he may require that person to give him any information which is in his possession, or which he can obtain by taking reasonable steps,......

What "reasonable steps" is he supposed to take? How far is he supposed to go in taking any reasonable steps? Will he be exposed to prosecution under the provisions of the section if he fails to take every reasonable step to trace back every dealing with the firearm or ammunition, and for what length of time? For example, is the person concerned expected to carry out his own private investigation, to follow up and investigate every piece of information he obtains with a view to detecting all the previous dealings in relation to the firearm or ammunition, or all the recent previous dealings, or what dealings? For instance, there could be a situation in which a wife's brother stayed in the house and left a gun or ammunition there. If there is a limit to the time within which a person is obliged to carry out the investigation then that would be different, but as it stands there does not appear to be any limit. The provisions appear to be wide open as to what reasonable steps he is supposed to take and indeed in relation to any previous dealings with them. It involves not merely taking reasonable steps as to how he came by the firearm or ammunition but also as to any previous dealings with them. That part of the subsection is very loosely worded.

Again, on the question of any previous dealing, how will the Director of Public Prosecutions in the first instance, and ultimately the courts, know what criteria to apply in determining whether a person is guilty or innocent of an offence under the provisions of the section — for example, in not having taken sufficient reasonable steps or whatever level of steps should be taken? What criteria can the prosecuting authority or the courts apply to determine what would constitute reasonable steps in obtaining such information?

The requirement in section 16 that the person concerned should give information which is in his possession or which he can obtain by taking reasonable steps as to how he came by the firearm or ammunition or indeed by goods is relatively straightforward in itself because the information is required in respect of one transaction only and is therefore self-limiting. The term "reasonable steps" does give rise to difficulty. For example, what is to happen in the case of a person who genuinely fears retaliation against him or members of his family if he is found to be seeking information as to how he came by the firearm? What will be the position of a person who genuinely fears retaliation in such circumstances even though such fears might prove to be groundless? In one instance they might be well founded and in another groundless. This raises the question of whether the phrase "reasonable steps" is to be subjected to a subjective or objective test. The same considerations would appear to apply to the term "reasonable excuse". What criteria are to be applied by the prosecuting authority or the courts in determining what constitutes a reasonable excuse in the context of this section? I should like clarification from the Minister and, if he considers it necessary, clarification of the subsections.

Under the provisions of section 15 a person is required only to give an account of how he came by the property in question and is not required to give information about any previous dealings in the property in contrast to the provisions of the previous section. Under the provisions of section 15 a person is required only to say how he came by the property in question; he is not being required to go back on previous dealings in the property. Therefore, there is a distinction being drawn here between the two sections, the one in relation to firearms or ammunition, where a person is obliged to go back into the previous dealings in relation to the firearm, ammunition or whatever, whereas in the second case the information regarding stolen property does not specify the same requirement. Section 15 (1) says:

Where a member of the Garda Síochána—

(a) has reasonable grounds for believing that an offence consisting of the stealing, fraudulent conversion, embezzlement or unlawful obtaining or receiving of money or other property has been committed,

(b) finds any person in possession of any property,

(c) has reasonable grounds for believing that the property referred to in paragraph (b) includes, or may include, the property referred to in paragraph (a) or part of it, or the whole or any part of the proceeds (direct or indirect) of that property or part, and

(d) informs that person of his belief,

he may require that person to give him an account of how he came by the property.

Regarding stolen property the sentence, of course, is five years and the same questions would arise in relation to the husband and wife, the husband informing on the wife or the wife informing on the husband. It also carries a sentence of five years and so, presumably, it will come under section 3. Therefore, it will bring the withholding of information regarding stolen property under the detention powers of section 3 and the interrogation for the six, 12 or 20 hours as the case may be. That could be abused by people who may innocently think that a person has some knowledge.

I have had a spate of such occurrences recently in my constituency where people believed that other citizens were involved in some way, through their children or otherwise, in drugs. It was because of their concern and fears that reports were made to the Garda and house searches followed. Most of the people were highly indignant because they did not have any involvement whatever. Presumably some members of the community genuinely thought on rumour or something else that those people might be involved or that the children might have had a small quantity of drugs in the house or had been dealing with others who were taking drugs. Most of the seaches were carried out courteously but, unfortunately, not in all cases. The problem that arises then is why those people were selected and who put the Garda on to the houses that were searched. It is not very pleasant having to decide to search a house on information supplied like that. It is not pleasant, particularly if the information is false, to have gardaí arrive at the front and back of a house to carry out a detailed search.

I presume the same thing can arise now in regard to stolen property if it is suggested to the Garda that a certain person may have information or some property in the house. Not only will a search be carried out but the people concerned will be liable for detention under section 3. Although any information given to the Garda pursuant to section 14 in respect of firearms and section 15 in respect of property will not be admissible against the person's spouse, it does, in fact, require the person concerned to give information incriminating his or her spouse in a criminal offence which could lead to their being prosecuted for such an offence on foot of other evidence obtained as a result of information given under this section, information we will now be compelling people to give. Traditionally, it has been regarded as being contrary to public policy, as well as being unrealistic, to require a person to give information in respect of a spouse to the Garda and thus inform on a wife or husband. Ultimately this is purely a policy matter. It is a matter of how far we wish to go at this stage. Does the Minister intend that a person may be prosecuted for an offence under these sections because he or she fails to give information which would specify a husband or wife was guilty of a criminal offence or would that be regarded as reasonable grounds for not giving the information? I do not think that is specified in the Bill.

We support the Minister's intention in these sections in terms of tightening up the position in regard to information concerning firearms or ammunition and withholding information regarding stolen property. Various reservations have been raised about the sections as drafted and I trust the Minister will answer some of the questions I have raised when replying. Will the Minister tell the House how "reasonable steps" should be interpreted and how the courts will know what criteria should be applied in determining whether an accused person has taken "reasonable steps", particularly as to any previous dealings which occurred in relation to firearms or ammunition? Will such a person be exposed to prosecution under the section if he or she fails to take "reasonable steps" to trace every dealing with the firearm or ammunition back to its sale by a manufacturer or what period will a person have to deal with? Is a person to carry out a private investigation, limited though that may be? Will there be a limitation on the length of time to be covered by any such investigation? How far will an individual be expected to go? The requirement that the person give the information in his or her possession is fairly straightforward but there is the question of having to get information beyond that and the problem of giving information, particularly about a spouse.

Mr. Kelly

Deputy Woods has made a reasonable inquiry of the Minister, what the Minister has in mind in regard to the obligation which section 14 would appear to impose on somebody who has been interrogated in this way to take reasonable steps to obtain information which was not in his possession. It may be that the Minister and the Department have something particular in their minds and it may be that when we hear it it will cut the ground from under the misgivings I have about a form like that. Those misgivings relate to the relative rarity — I am not so sure that it is not quite unprecedented but at any rate it is extremely rare — for a Bill like this to impose in certain conditions a duty on somebody or an inchoate or incipient criminal liability which that person can discharge by future action, as Deputy Woods says, to which no time limit is attached.

That is a fairly rare bird in criminal measures although off the top of my head I would not like to say it is absolutely unprecedented. I believe there are provisions in company law which attach penal sanctions to failure to comply with demands to supply information. In what I might describe as straight criminal law like this it is pretty rare, if not unique. I offer that guess off the top of my head and I am sorry if I am wrong about it but if it is rare, the Minister and his advisers might like to consider why it is rare, why it has not been resorted to before — at any rate very little — and whether they regard it as workable. I am not trying to make imaginary or spurious difficulties or hypotheses but suppose the person interrogated under section 14 says he does not have the information but he would be willing to play along with the gang he hired the gun from to see if he could get it that way. A police officer may feel that the section authorised him to agree to that course of action but by doing so he may be setting off a chain of events which may end in murder or he may set up a chain of events which will lead the interrogated person to further criminality.

I am only an amateur at this sort of thing and I do not wish to waste the time of the Minister or his advisers, but I would take a bit of convincing that this was a workable provision, apart from the question mentioned by Deputy Woods, the fact that in point of time the provision seems to be open-ended. He suggested that it would be open to the person interrogated to defeat the intent of the section by saying: "Yes, I can take a few reasonable steps which will give me this information but I cannot take them until July 12 months" or "I propose to wait until then because it will suit my book better to do so" or "that is the only moment when I will be able to do it with impunity." I am not suggesting that the Minister should tie himself down like a legislative Gulliver with every little strand so nailed into place that he cannot stir a hand or a foot. I would like him to look with the open-mindedness which he shows every hour that he spends in the House at the practical problem of making this provision work.

The problem which Deputy Woods mentioned in sections 14 (2) and 15 (2) about the reasonable excuse is not so serious. That kind of formula is not unprecedented in our law. It really means that the court has a pretty wide discretion to say what is and is not reasonable. A person who fails or refuses to give information if, for example, he knows that, unbeknown to the police officer, a conspirator is hidden behind the curtain who will shoot him if he opens his mouth has what I would call a reasonable excuse. Perhaps that example is an excessively graphic instance and that excuse would not be reasonable in some other context such as taxes and so on, but when you are dealing with the underworld or somebody on the fringe of it at best, there may be all kinds of excuses which on the human plane would seem reasonable to a judge and most particularly to a jury. Even in summary trials and offences that is supposed to be the standard which judges try to apply to themselves.

I have two other points about both of these sections. The simpler one is that under sections 14 (3) and 15 (3) the police officer is, very properly, expected to give the person he is interrogating a chance by letting him know that he is going to get into trouble if he fails to answer the question. The Minister might be well advised, however, to examine the way the sections are drafted and what the effect of his failure or refusal might be. If I were appearing for an accused person who was trying to get out from the application of section 14 (2) which creates an offence and imposes a penalty I would concentrate very heavily as an advocate on sections 14 (3) and 15 (3) and try to see if there was any possible way that I could fault the police officer concerned on the grounds that he had not told me in ordinary language what the effect of my failure or refusal might be. The only way that this requirement — absolutely legitimate and proper as I recognise its object to be — could be impeccably fulfilled would be by the police officer reading the subsection and then glossing it or paraphrasing it in simple language. However, a police officer may not have so much leisure. He may have a million other things on his mind connected with the offence or series of offences which he is investigating and he may forget or omit to provide the person he is interrogating with the guts of section 14 (2), which is difficult to put in language any more ordinary or plain than the subsection itself contains, that is a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both, or, if sent for trial by jury, to a fine not exceeding £10,000 or imprisonment for a term not exceeding five years or both. That is quite a mouthful.

I support the intent and object of this subsection but I wonder if the Minister will examine the potential which the present phrasing offers to an advocate to make the conviction of an interrogated person difficult on the grounds allegedly that section 14 (3) has not been complied with. Is it complied with if the garda says: "The effect of your not answering my question is that you will be in very serious trouble"? Is it enough if he says, "The effect of it is that you are going to be in breach of section 14 (2) of the Criminal Justice Act, 1984" or possibly 1985 by the time it is enacted? Is that duty then discharged? I repeat that I do not want to make difficulties. I am merely trying to look at the thing from a practical point of view of busy gardaí who are under pressure and may perhaps even endanger themselves at the moment when this interrogation becomes appropriate. The Minister might think of putting in another sentence to the effect that section 14 (3) would be deemed to have been sufficiently complied with if he informs the person he is interrogating that it is a serious offence under this section of this Bill. I am not recommending that formula. All I am saying is that the Minister might try to make the thing simpler to administer for the Garda for whom he is responsible in this House.

The last problem I have with these sections seems so obvious that I wonder if I have overlooked something in the sections. If so, I am sorry to waste the time of the House. Sections 14 (4) and 15 (4) appear to provide a sort of general immunity for a person who has complied with a requirement under section 14 (1), in other words, he has given the information and it appears to confer on him a general immunity, so far at least as the prosecution are concerned, for having the gun or the stolen property in unlawful circumstances. Maybe I do not understand this properly. Suppose somebody under section 15, no doubt in the more common case of stolen property, is asked how he came by this video equipment, for instance, and says that he stole it; if I understand the subsection correctly, he has then donned a mantle of immunity so far as the prosecution for stealing is concerned. At any rate, if the police have no other evidence to go on than his own admission, as is frequently the case, the only way that information which he gives can be made admissible in a prosecution is if he gives information which is misleading. If he gives information which is true, obviously he has not committed an offence under section 14 (2) but that very information is not admissible in any other proceedings whatever. In other words, suppose the only information the Garda have, as is frequently the case, consists of a man's own admission extracted after questioning, they might as well have saved themselves the trouble of collecting the information, of extracting that admission since it is not now usable, since at the moment it is extracted it becomes infected with unusability so far as bringing a prosecution for stealing, receiving or being in possession of a firearm with intent to endanger life is concerned. Regarding section 14, the same effect seems to arise where a person found in possession of a sawn-off shotgun says, "I hired it this morning from one of the gang Deputy Kelly and Deputy Woods were talking about over on the south side or the north side or wherever it is. I hired it for £1,000 to do a job". Perhaps there is no other evidence against the man than that, but since that is the true information of how he has come to be in possession of the article and since that is the only information the police may have, by that very statement he has immunised himself against prosecution for the act which is the one that interests the police, namely, being in possession of or having stolen the goods, having hired the gun or whatever it is. I am sorry if I have mistaken the sense of both sections. I would like the Minister to clarify that point.

Mr. Skelly

As we are discussing section 15 in addition to section 14 the whole area is widened. Bearing in mind what the Minister said this morning about what he would not like as a general practice in relation to section 14 regarding firearms, I would like to ask him a couple of questions and perhaps get some clarification. Under section 14 a person is arrested under suspicion and the provisions of section 3 would then be applied. If the Garda question somebody under the section and the person refuses to answer, that is a new offence. If such a person is released under section 3, can he be re-arrested and the process be started all over again? This puts me in mind of the Offences Against the State Act, 1972, which obliges a person to account for his movements. During the passage of that Bill, in Volume 264, columns 340 and 341 of the Dáil Official Report, the then Taoiseach is reported, having referred to the 1939 Offences Against the State Act as saying:

We are advised now that this section is contrary to the provisions of the European Convention on Human Rights and that if we acted on it, any person who was convicted under it and sent to prison or in any way disadvantaged would have a right of action before the Court of Human Rights against us.

That seems to be similar to provisions in sections 14 and 15 of the Bill. Would the Government be liable in the same way? I should like clarification on those two points.

Mr. De Rossa

These two sections give cause for particular concern. Though we are taking both together, the wording is not the same. Section 14 requires that a person takes reasonable steps to provide certain information to the Garda, whereas section 15 simply requires a person to give an account of how he came into possession of property. When the person concerned is asked to give an account, what criteria do the Garda use, or who decides whether the account is accurate or adequate? Could we have a definition of "reasonable account" or of the expression "reasonable steps"?

What are the reasonable steps a person must take to satisfy the Garda? Another point that concerns me in these two sections is that they will not come into effect only if a person is detained — they could be applied to a person walking the street or coming out of his house. There is nothing here in regard to a person being detained under section 3 in order that these sections could be applied. A young person could be walking along a road with a radio or a bicycle in his possession and a garda might ask him where he got it. If the garda is not satisfied, that person automatically is liable for detention under section 3.

This could mean abuse of section 3 and it is no use saying that it will not happen. I know of a recent instance where a young person is being systematically victimised. I have reported the matter and it is being investigated. This happens and I am concerned that section 15, which applies to property — the person has not to be found in possession of the property — could provide the Garda with wide powers. It is restrictive on a person's right to remain silent.

Another point relates to the reliability of the information which can be elicited from a person. A person does not have to be guilty of an offence to be taken in by a garda and detained. There will be pressure on a person to give some form of information, no matter how unreliable it is, to give some person's name at random, based possibly on rumour or to protect a person. There would be a strong inclination for a person detained to do that. I oppose these two sections for those reasons.

Mr. Noonan

(Limerick East): We have been discussing the amendments and the two sections together and, for the benefit of the House, I will first refer to the amendments. They are merely technical amendments found to be necessary to correct errors during proofing of the Bill. It is normal to give the courts discretion to impose both a fine and imprisonment, as in section 14 (2). The two sections are not quite the same, though similar in principle. Both are aimed to get at the source of illegally held firearms and to try to establish how stolen property is disposed of. Both are to enable the Garda to get information. The sections are not particularly directed against the people who are in possession of stolen firearms or property.

I will deal first with firearms. The case of firearms is very specific. Firearms kill. If they are held unlawfully by terrorists or by criminals there is an obligation on us to find out where they came from. Although there have been many convictions in the courts in respect of armed robbery or aggravated burglary or for the possession of firearms or the various other firearms offences that we discussed before lunch, there have not been convictions in respect of the supply of firearms. Obviously these guns come from somewhere and people are making money by supplying them. There is a trade in these weapons, weapons that endanger life. Section 14 is an attempt to get at the source of supply, at the people who trade in weapons, and I am glad that Deputy Woods and his party are supporting the principle involved here.

I could say the same in relation to section 15. It is difficult to amaze those of us who are in politics but it is a source of amazement to me personally that each year property to the value of millions of pounds is stolen and much of it is never recovered. Where does all this property go to? I do not believe that the people who steal cars or videos or TV sets or anything else use these goods for their own pleasure. I do not believe that all this stolen property ends up in the kitchens or the bedrooms or living rooms of the criminals who have stolen it. Obviously, than, there is a trade in stolen goods. There are people who are making money from that trade and who act as receivers, on a large scale, from a number of people who steal. There must be some mechanism whereby these goods are distributed back on to the market where their sale would appear legitimate. Section 15 is an attempt to get at those who fence and who recycle stolen goods. Both in the case of firearms and of other stolen goods very little progress has been made in establishing the source of supply or of the method of distribution. To put it bluntly, there has been little progress in arresting or bringing to justice those who are making profits from the crimes of others or from the victims of those criminals.

Obviously we would be concerned that sections 14 and 15 would fulfil the intent without encroaching on the liberties of people. Among the points raised by Deputy Woods was the point that we are creating a new concept in law but this is not a new concept. Section 17 of the Official Secrets Act, for instance, has a similar provision, as has section 2 of the Offences Against the State (Amendment) Act, 1972. In the latter case a member of the Garda Síochána may demand that a person give his name and address and an account of his recent movements and that in the event of failure or refusal to give such information or to give false or misleading information he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment not exceeding 12 months or to both such fine and imprisonment.

More to the point and more in the context of everyday life, section 107, subsection (4) of the Road Traffic Act, 1961, provides that:

Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically propelled vehicle:

(a) the owner of the vehicle shall, if required by the member, state whether he was or was not actually using the vehicle at the material time and, if he fails to do so, shall be guilty of an offence.

(b) If the owner of the vehicle states that he was not actually using it at the material time, he shall give such information as he may be required by the member to give as to the identity of the person who was actually using it at that time and, if he fails to do so, shall be guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who that person was.

Therefore, there is a similar provision there already in the Road Traffic Act. It may not be an everyday occurrence but it is frequently used. There is no immunity in respect of withholding information about one's wife. For example, if there was a traffic accident in which someone was killed and if the licence number of the car involved was fed into the Garda computer and the Garda, having established the identity of the owner of the car, approached that person only to be told that he had not been driving the car at the time, that he was elsewhere, there is an obligation on the owner to say who was driving it even if that person was his wife.

One might say that the penalties under the Road Traffic Act are not very great but in the sort of situation I have outlined there could ultimately be a charge of manslaughter against the driver of the car and the obligation remains in relation to giving information about who was driving the car at the material time. There is no exception or immunity in so far as a spouse is concerned. That concept has worked reasonably well.

The section here is not directed specifically at a spouse. The obligation in section 14 is for a person to give any information in his possession or any information he can obtain by taking reasonable steps to obtain it. The obligation in section 15 relates to giving an account of how one came by property. The provision is not quite the same in both cases.

The obligation here is to give information simpliciter. If that information involves a spouse there is nothing in the section about making an exception in such a situation but subsection (4) provides that any information given by a person in compliance with the requirement shall not be admissible in evidence against that person or against his or her spouse in any proceedings. The exclusion on the admissibility of evidence applies both to the person giving the information and to the spouse of that person.

That brings me to the question of immunity from prosecution. There is no immunity from prosecution here. What is being provided in subsection (4) is that the statement made giving the information shall not be admissible in evidence against the person who provides the information or against the spouse of that person but other evidence would be admissible. If the Garda have other material evidence it can be used in bringing a prosecution.

I have included subsection (4) in this section and an identical provision in section 15 in order to make it clear that people would not be incriminating themselves or their spouses by giving the required information. I do not think anyone wishes that provision to be dropped but it gives rise to two concerns. There is the concern first from the Garda that this was giving an immunity from prosecution in a number of ways. That is not so. It does not give immunity from prosecution in providing that a particular statement shall not be admitted in evidence. Any other statement made by a person could be admitted in evidence in the normal way. It would be only when sections 14 or 15 had been invoked by the Garda that the question of the inadmissibility of a statement made under the requirements of either section would arise.

Deputy Woods asked about the phrase taking "reasonable steps" and the question of whether it would be an objective test. It would be an objective test and the courts are familiar with deciding what is reasonable and what is not.

Section 107(4)(b) of the Road Traffic Act, 1961, states:

if the owner of the vehicle states that he was not actually using it at the material time, he shall give such information as may be required by the member to give as to the identity of the person who is actually using it at that time and, if he fails to do so, shall be guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who that person was,

It is the same concept as "reasonable steps". If a garda thinks a person is in unlawful possession of a firearm it would be reasonable to ask the person to produce a licence if they said they had one. If they said they bought the gun it would be reasonable to ask them to produce a receipt. To take Deputy Kelly's point, if they became involved by infiltrating a criminal or subversive group to establish the source, it would appear to me that would clearly not be reasonable. It is for the courts to decide and it will be objective.

The same would apply to "reasonable excuse". It will be an objective test and the courts will have to decide what is reasonable and what is not. It is possible that the court could decide that it was reasonable if somebody said they could not give an account of something because it would incriminate their spouse. I cannot say categorically that "without reasonable excuse" would cover that eventuality but I am conscious of the fact that the courts could decide "without reasonable excuse" would cover that point. If that happened it would not apply in the way in which it was intended. The intention is that the requirement is to give information simpliciter and there would not be an exception made in the case of spouses.

As regards the question of people trying to get out of trouble by implicating other people, that can happen at present. For example, if a person did not like his neighbours he could go to the Garda and tell them there are drugs in their house. If he was convincing enough there is a possibility the Garda would use their powers under the Misuse of Drugs Act. We know from cases brought to our notice that malicious people do that. There are malicious people in society and if a person wants to exercise malice there are many opportunities for doing so.

Deputy Kelly made the point that it was open as to point of time. I will look at that. He made the point that somebody could say they would comply with what they were being asked and would give an account of where they had, for example, the stolen video, but not just yet; they would give it in 12 months' time. The question of reasonable steps and the objectivity of the test was also raised.

As regards the question of the Garda having to tell somebody in ordinary language or quoting the section or saying that under section 14 or 15 of the Criminal Justice Act, 1985, they will be given a formula of words, this will be examined by officials in my Department to see that it complies with the requirement of ordinary language. The fact that a garda had or had not informed a person about the likelihood of committing an offence under sections 14 or 15 in ordinary language would be a crucial point in the proofs of any prosecution taken under this section. The mechanism I suggest would be helpful there.

Deputy De Rossa asked what would a reasonable account be. The courts are familiar with the concept of what is reasonable and what is not. The Deputy was correct when he said these sections did not apply exclusively to people detained under section 3. People could be approached by the Garda and asked to give an account of where they got a firearm which was in their possession. They could be asked to give information about the possession of the weapon. The same applies to stolen goods.

Mr. De Rossa

Any goods they have?

Mr. Noonan

(Limerick East): We are back to the old argument of a young person having a bicycle, transistor or whatever. At present if the Garda have reasonable suspicion that the goods are stolen they can arrest the person under existing law on reasonable suspicion. If this Bill becomes law, they will be able, under section 3, if they have reasonable suspicion that someone stole a radio, bicycle, video or whatever to detain that person for questioning. It is one of the offences to which section 3 will apply.

The argument about the likelihood of the section being abused is no stronger when we go to sections 14 or 15. We argued this under section 3, but the requirements of these sections do not strengthen the case further. What is being said is that it could provide a mechanism for abuse. The mechanisms for abuse are in existing law and it is very hard to rule them out. There is always the possibility of people overstepping their statutory rights and exceeding their powers but one can make it clear that if they do so they will find themselves in difficulty. That can be a strong deterrent but we cannot legislate abuse out of existence any more than we can legislate crime out of existence.

Deputy Skelly asked about the combination of the offence here and section 3. There may not be any need for a lengthy interview before a garda decided whether a person was in breach of this. If people had stolen goods in their possession and failed or refused to give an account of them, three hours of questioning will not make the refusal any different. When the refusal occurs the offence is committed at that point. One of the safeguards under section 3 was that if at any point during the detention of a person the Garda were in a position to bring a charge, there was an obligation on them to end the questioning and the detention and to bring a charge at that point. In many circumstances where a questioning under sections 14 or 15 occurred outside a Garda station they would have reached that point before the person arrived at the Garda station and the person could be charged and get station bail, or whatever. It would then be brought to court where the court could test it. If it occurred while people were being detained they would have to be told that sections 14 and 15 were being invoked and that these obligations were on them, and this would have to be done in ordinary language. Again, it would be a question of refusing to give an account.

I cannot envisage a situation where a detention period could be lengthened by the fact of refusal because the fact of refusal is the offence and would leave a person open to be charged at that point. I know Deputy Skelly raised another point. What was it?

Mr. Skelly

It was on section 52 of the Offences Against the State Act.

Mr. Noonan

(Limerick East): I do not have that information here but I am sure we will not finish this section by 5 p.m. and I will come back on that.

Mr. Skelly

It was in breach of the Convention on Human Rights.

Mr. Noonan

(Limerick East): Is the Deputy drawing a parallel with this?

Mr. Skelly

Yes.

Mr. Noonan

(Limerick East): I will have this checked for him. Everything in the Bill was checked by the Attorney General on the grounds of constitutionality and compatibility with our international obligations. This would be the normal checking process but if there is a specific point the Deputy feels should be rechecked, I will do that.

We should make an attempt to do something about the traffic in stolen weapons and stolen goods. I would like to remind Deputies that these sections will be governed by the same review clause as sections 3 to 8. They will lapse after four years if they have not proved to be effective. Even though this is not a new concept in law, and even though it has operated well under the Road Traffic Act, there is the mechanism to review these sections. We can monitor what is happening and at the end of a specific period we can see how they are working. If they are not working there is no point having them there and I presume they will not be re-activated by any of my successors.

Dr. Woods

I am glad the Minister referred to that because I was about to ask him to clarify the point he made in a press release. He said that would be the case in relation to sections 14 to 18 when section 16 was being deleted. We have the clear assurance of the Minister on the record of this House that that is the position. The Minister said I talked about this as a new concept. I said a new development——

Mr. Noonan

(Limerick East): On a point of order, the Deputy mentioned a press release but we already passed an amendment to that effect on Committee Stage confining it to five years.

Dr. Woods

But sections 14 to 18 are included?

Mr. Noonan

(Limerick East): Yes.

Dr. Woods

I was talking about a new development. The Minister said that under the Road Traffic Acts there were specific questions asked about specific instances. Part of our concern is that these are wide-ranging provisions and we are not sure how wide-ranging they will be in practice. The Incorporated Law Society in a statement issued on 6 April 1984 said:

Section 14

The Society reiterates its basic objection as already enunciated in its initial submission, but without prejudice thereto, submits that the control of firearms is properly a matter for insertion in the Firearms Acts.

Section 15

The Society believes that the section should require the member of the Garda Síochána to have reasonable grounds for believing that the person being requested to give information, has, or is committing an offence such as is set out at Paragraph 15 1 (a).

The Society does not believe that the offences of fraudulent conversion or embezzlement should be included in this because of the effect of their inclusion and the provisions in sub-paragraph (c) is to make the category of items covered by "the proceeds (direct or indirect)" an extraordinary wide range of items including goods which may have been purchased with the proceeds i.e. cheques, pensions, savings certificates, stock certificates, title deeds etc.

They claim that this is a particularly wide-ranging provision covering a wide area of activity. The Minister gave specific examples in relation to driving charges — for instance, where one was required to state who was using the car.

The Minister said that in the event the court can say what is reasonable and the court will use its own criteria and will determine what it considers to be reasonable. The Minister also said that the court may regard incriminating the spouse as a reasonable excuse for failing or refusing to give information about a spouse. By that time a person has gone through the courts and the whole legal process has been gone through. Everybody knows that the number who come to court is a relatively small percentage of those who go though the legal process. By that time a person can have been detained and questioned for six, 12 or 20 hours as the case may be, depending on the alleged offence. It is clear that this is a matter ultimately for the courts to judge what is reasonable. The Minister did not clear up the point about how far back one is expected to go or how this is limited in any way, especially in relation to firearms. This seems to be fairly open and this is something which should receive more attention.

Section 14 (1) reads "he may require that person to give him any information which is in his possession, or which he can obtain by taking reasonable steps,". The Association of Garda Sergeants and Inspectors feel that there is a great need to clarify subsections 14 (1) and 15 (1) in relation to determining what information is required to be given. There is also the question of when the information is required. Must it be given when asked in the first instance?

Progress reported; Committee to sit again.