Dáil Éireann debate -
Wednesday, 13 Jun 1984

Vol. 351 No. 7

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

NEW SECTION.

Debate resumed on amendment No. 29:

In page 8, before section 12, to insert the following new section:

"12. —Section 29 of the Criminal Procedure Act, 1967, is amended by the addition of the following sub-paragraph (g) to subsection (1) of the said section—

‘(g) an offence under section 15, of the Misuse of Drugs Act, 1977, and an offence of conspiring or attempting to commit any such offence under the said Act'."

—(Deputy Woods.)

Dr. Woods

The purpose of the amendment is to ensure that those involved in the trafficking, dealing and selling of drugs will have to go to the High Court to get bail. We want to ensure that bail will not be got too easily. We want section 29 of the Criminal Procedure Act, 1967, amended to include an offence under section 15 of the Misuse of Drugs Act, 1977. Section 29 of the 1967 Act deals with bail in the case of treason, murder and certain other very serious offences. My argument is that the trafficking, dealing and selling of drugs is a very serious offence and, likewise, should be treated in a way similar to the offences I have outlined. The Minister has said that the definition in section 15 of the 1977 Act is too broad. He appeared to accept the spirit of my amendment but he said it was the type of definition he would propose. Section 15 of the 1977 Act states:

Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act, shall be guilty of an offence.

Subsection (2) states:

Subject to section 29 (3) of this Act, in any proceedings for an offence under subsection (1) of this section, where it is proved that a person was in possession of a controlled drug and the court, having regard to the quantity of the controlled drug which the person possessed or to such other matter as the court considers relevant, is satisfied that it is reasonable to assume that the controlled drug was not intended for the immediate personal use of the person, he shall be presumed, until the court is satisfied to the contrary, to have been in possession of the controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act.

The Minister has said that the subsection I have quoted is the appropriate one to deal with the problem I have raised. He maintains that it includes the supply from one person to another of cannabis, heroin or other drugs. My intention is to get at those involved in trafficking and dealing in a better way. It may be difficult to differentiate between these two and it may be a matter for the court to decide. In any event we are only concerned about the High Court having the function reserved to it over a lower court of granting an application for bail. We are trying to ensure that adequate consideration is given to the facts of the case. The Minister disagreed with the use of the definition but undertook to have another look at the matter. He felt it was too wide for reference to the High Court of an application for bail. However, if we look at the Misuse of Drugs Bill, 1984, which was introduced this morning and will be dealt with next week, we find that the Minister for Health hopes to introduce life imprisonment for offences under section 15 of the 1977 Act. How is it that the Minister for Justice regards section 15 of the 1977 Act as too loose and wide a category to insist that bail applications be considered by the High Court? There appears to be a conflict between the two Ministers.

I would be open to a definition which would specify more clearly the people we are trying to get at but that may not be feasible and it may be the reason why the Government, through the Minister for Health, have decided to use section 15 of the 1977 Act to impose a life sentence. I hope the Minister will give his views on what appears to be a contradiction in the approach of the Government to these matters. It appears that the Government consider section 15 of the 1977 Act adequate to deal with the matter and if that is the case it must be adequate to be used as a definition in referring cases to the High Court before bail is granted. I feel strongly about this. People known to be substantial traffickers and dealers in drugs have been granted bail and we do not want that to happen if it can be avoided. The supply of drugs such as heroin is such a serious offence that a measure is needed to help clear up some of the problems that have been arising in practice in dealing with people involved in that crime. The Government's approach to it in the new Misuse of Drugs Bill is that it is a very serious offence and life imprisonment is suggested for those involved in the supply, sale and possession of such drugs. I would classify those offences as being in the same category as murder, treason and other serious offences. Our proposal is reasonable.

Minister for Justice (Mr. Noonan,

Limerick East): As I said yesterday there is some merit in the Deputy's proposal. It was thought proper in the past that certain very serious offences should be referred to the High Court before bail was granted. Yesterday I expressed the view that there might be a difficulty in the definition in that we would be aiming at a very wide target if everything which could be construed as drug pushing was referred to the High Court. There is no conflict between myself and the Minister for Health. The question about bail is that a person is innocent until proved quilty. Most people who are brought before our courts get bail. The Deputy's argument proceeds on the basis that if a person is accused of drug-pushing they will automatically be found guilty subsequently. I do not think we can proceed on that basis. I am willing to look at this. There is the basis of a good idea in the Deputy's amendment but now that the Misuse of Drugs Bill has been published I believe the amendment would be far more appropriate to it than to this Bill. We do not have sections of the Criminal Justice Bill dealing with drugs offences because it was intended that these would be dealt with in the amendments being proposed to the Misuse of Drugs Act. The Minister for Health has now published that Bill, and I think an amendment such as this would be more appropriate in that legislation, which is ordered for next Tuesday.

Dr. Woods

The Minister says that there is no conflict between himself and the Minister for Health in this respect, but there is a basic conflict. I am not talking about the presumption of innocence of an individual. That is there all the time until the person is found guilty. It is a question of who gives bail in the first instance. I do not want to be put in a position where I am in advance presuming people to be guilty. I am not doing that. We had discussions here in relation to who makes the decisions and the kind of criteria they use in taking these decisions in relation to bail. Where so many options are open to the court in making such a decision, we feel that the High Court should be the forum which makes such a serious decision in all cases related to section 15. This is where the conflict comes in between the approach of the Minister for Health and the response of the Minister for Justice here. The use of section 15 as a definition of such supply and sale of drugs was questioned here yesterday evening by the Minister for Justice, and he agrees with that. He has reservations about it. I accept that there is a question mark in relation to very small quantities passed between individuals and that that could be construed under section 15 as supplying even if not selling. The problem would appear to be that once you depart from that it may be difficult to define it otherwise. It would appear that in the Misuse of Drugs Act section 15 is considered adequate for such a serious sentence as life imprisonment, and I mean the whole of section 15. It is not cut down or a part taken or the most serious elements taken out. If the whole of the section is considered adequate for that purpose then surely it would be an adequate definition for the purpose for which we are proposing it here. If the Minister can produce an improved definition which isolates the major traffickers and dealers, that would be all right.

Mr. Noonan

(Limerick East): My position is being misunderstood. I do not see anything wrong with section 15 of the Misuse of Drugs Act. Somebody is charged with pushing and the courts can decide on the merits of the case what the appropriate sentence is or whether a custodial sentence should be imposed at all. On the question of bail a different question arises and very serious offences are referred to the High Court. That is not the same as having any objection to the definitions under section 15. There is merit in what the Deputy is saying. I will have the matter examined. I will talk again to the Attorney General about it to see if we can incorporate an amendment such as this in the Bill. However, now that the Misuse of Drugs Bill has been published, this amendment which he is proposing to the Criminal Justice Bill might be more appropriately set down to the Misuse of Drugs Bill next week.

An Ceann Comhairle

Is the amendment withdrawn?

Dr. Woods

We will end up with a number of these. The amendment we are talking about refers to section 12 and there is the question now of referring that section to somewhere else where it will come up for discussion later, and of referring this amendment to the Misuse of Drugs Bill. That is another possible alternative, but it deals with the case of bail. We are talking about cases of bail and this as an extension or modification of the Criminal Procedure Act, 1967 which deals with bail. In that sense it is quite reasonable to include it in this Bill as an amendment of that Act. The courts are deciding in the case of the Misuse of Drugs Bill and the question of bail. We are saying that the courts should decide the question of bail but that the court which would decide should be at the level of the High Court. That is not taking away anybody's rights, it is saying that this kind of offence is so serious that when bail is given in that instance a consideration of the giving of bail should be reserved to the High Court. I accept the Minister's undertaking that he will examine that for Report Stage. Obviously he wants to consider whether it should be transferred to the Misuse of Drugs Bill. I am not too sure about that because then consideration of it would probably be put back for some time. We are talking about cases where bail is reserved. Section 29 (2) of the Criminal Procedure Act, 1967 provides that:

A person charged with an offence to which this section applies shall not be admitted to bail except by order of the High Court.

To bring it within that category and definition it would seem legitimate to put it in as an amendment to the Criminal Procedure Act, 1967. At that I must leave it to the Minister to decide what he wants to do and we can discuss it again on Report Stage. This is important and has been seen to be important. We should deal with it now and within this Bill before us for the reasons I have given.

Mr. Kelly

The Minister will not mind my saying this. He has been extremely open-minded about this whole Bill. There is a great deal of substance in Deputy Woods's submission and I could see no reason why the amendment he wants, if the Minister has no objection to the principle of it, ought not to be made in this Bill rather than in the forthcoming Misuse of Drugs Bill. This Bill purports to make very sweeping changes in the whole criminal process and the amendment, if the Minister is willing to accept the spirit of it, would be more appropriate here than in a Bill related to the misuse of drugs which has other aspects than merely criminal ones.

An Ceann Comhairle

Is the amendment withdrawn?

Dr. Woods

On a point of order, we are on section 12. If the amendment is withdrawn can we discuss the section?

An Ceann Comhairle

If amendment No. 29 is withdrawn, then Deputy Mac Giolla has amendment No. 30 which is an amendment to section 12. The Minister proposes to delete section 12. Deputy De Rossa might consider not moving his amendment in view of the fact that the Minister proposes to delete the section. If that is so there can be a discussion on the section. On the Minister's proposal I will put the question "That section 12 stand part of the Bill", the Minister would indicate if he wants to withdraw the section and there can be a discussion on that. Can we deal with amendment No. 29 first?

Amendment, by leave, withdrawn.

Amendment No. 30 not moved.

SECTION 12.

Question proposed: "That section 12 stand part of Bill."

Mr. Noonan

(Limerick East): I propose the deletion of section 12.

Dr. Woods

Would the Minister mind telling us why?

Mr. Noonan

(Limerick East): Because the Road Traffic (Amendment) Bill, 1983, is on Committee Stage before the House and I think it is a more appropriate vehicle for road traffic offences.

Dr. Woods

I object to the deletion of this section, a very urgent provision which is badly needed. This section proposes to deal with the unauthorised taking of vehicles, and the public were led to believe that in this Bill we would tackle this major problem in a serious way. The Minister proposed in the section that the sentence for such an offence would be increased to five years, or a fine not exceeding £2,000, or both. It would mean that persons arrested under subsection (2) (b) would be liable to detention under section 3.

This problem has taken on major proportions in Dublin and throughout the country. Last night on the way home I was listening to a programme on which young people from the North said they came down here regularly to take cars from as far south as Greystones — they regarded themselves as joyriders. That indicates how serious this problem is and the need to tackle it urgently. That is why we welcomed the section and the proposal to increase the penalties. It is therefore disappointing that the Minister should decide to set aside the section and to have a similar provision inserted in another Bill being handled by another Minister.

The Minister and I have received many submissions in regard to the unauthorised taking of cars and joyriding. Various kinds of punishments have been suggested, many of them not as severe as those proposed in section 12. One submission was from a Mr. Noel Kennelly, whose brother-in-law was killed by a stolen car. He proposed a series of punishments ranging up to five years imprisonment when the death of a person was involved. The Minister has that submission and I hope that at Cabinet level he will draw it to the attention of the Minister responsible for the road traffic legislation.

That submission proposed reasonable penalties, including a mandatory minimum fine of £20 for interfering with the mechanism of a car, and the penalties were graded upwards through different levels. I note that the Association of Garda Sergeants and Inspectors stated that section 12 needed clarification on the question of detention of people on suspicion. They regarded such a provision as being a major help to the Garda in the pursuit of such offenders. The five-year provision might appear to be fairly stiff. Imprisonment from two to five years might have been more reasonable.

However, I hope the Minister who will be dealing with this in the road traffic legislation will have the submissions I have referred to brought to his attention and that he will give them serious consideration. There is not much I can say on this now. We accept reluctantly that it is being deleted and we will look forward to a provision along its lines being included in the other Bill.

Mr. Noonan

(Limerick East): Among the amendments to the Road Traffic (Amendment) Bill will be amendment No. 4, which is section 12 of this Bill. When the Criminal Justice Bill was being published in October the Road Traffic (Amendment) Bill was still at drafting stage but it appears that it will now become law before the Criminal Justice Bill. Rather than delaying the proposals in regard to unauthorised taking of cars it appeared to us that the section should be moved as an amendment to the Traffic Bill. Apart from that, it is proper that the road traffic code would be one corpus of legislation. It was because of the urgency of this matter that such offences were included in the Criminal Justice Bill when it was published in October.

Mr. Kelly

The Minister seems to be creating a sort of bus lane on the inside so that urgent parts of the Bill can be put through quicker by including them in another Bill. It may seem inconsistent for me to agree with the Minister on a point on which a few moments ago I agreed there was more substance in what Deputy Woods was saying but there is an advantage in having all the substantive offences relating to road traffic in the same code. If the provision makes sense, there is a case for transferring it to the pending Road Traffic Bill. One could argue in favour of that along lines which would not be available to one in the same way for the Minister's point of view in regard to drug-related offences and the question of bail. My attitude to the substance of this section relates also to the question in general of whether a lot is gained by increasing penalties.

As a general rule, when a Minister is promoting legislation to increase penalties for certain offences there is an onus on the Government side to produce at least rough statistics from which can be ascertained such information as the scale of the incidence of the offences. For instance, how many cases of cars having been taken without permission were reported in the last year for which we have figures? Secondly, how many prosecutions resulted from those cases? Thirdly, how many convictions were recorded? Fourthly what was the average terms of the sentences imposed and, last, what was the pattern of the sentences served? It is only in circumstances in which the Government could show that the level of the sentences and the severity with which they were carried through were pushing up against the ceiling of the present statutory maximum that they could argue plausibly for increasing the paper penalty, as it were. If, as is the case frequently, the detection rate is lamentably low, if the usual sentences imposed do not come anywhere near the existing statutory maximum and if even when they do, the person sentenced is released for one reason or another, perhaps because of inadequate prison accommodation, there is no great point in increasing the penalties. More would be gained by taking measures which would increase the certainty of detection. That might not be so cosmetic but it would be more effective though I do not pretend to know what such measures might be.

It is a bad principle for any Government to go into the business of erecting bigger and more terrifying scarecrows which the experienced joyrider, shoplifter or any other kind of criminal knows cannot root themselves out of the ground to pursue the criminal. We are not in the business of erecting scarecrows which perhaps would flatter our sense of how serious or prevalent a certain offence might be and which would not have any real effect in reducing the incidence of the crime concerned.

Mr. G. Mitchell

I agree that the section is more appropriate to the road traffic legislation. In regard to the section, the Association of Criminal Lawyers said that the vast majority of those who steal cars, are young, unemployed, inarticulate and delinquent. From my experience that is a fair and accurate statement. In these circumstances we must ask ourselves how many people in that category will be in a position to pay fines of £1,000 or should those charged opt for trial by jury, how many would be in a position to pay fines of £2,000? We know that very few of those who engage in such activities would be in a position to pay such fines. Consequently, the provisions of the section will not apply to many people. We may take it that most of those charged will opt for trial in the District Court because of the sentencing policy there.

There is a very serious problem in regard to the stealing of cars. One network of roads in my constituency has been renamed "Mondello" by the local people. The situation there is so bad that residents of the area are asking that bollards be erected but to take such a step would be to create ghetto-like areas. However, something must be done in an effort to deal with the situation.

I contend that the manufacturers of high-powered cars such as BMWs and Mercedes have a responsibility to ensure that those vehicles are not as easy to steal as are the smaller cars. There is no point in fixing what amount to toy locks on cars. There are probably more car assemblers in my constituency than in any other but that does not prevent me from submitting that these people should fit proper locking devices to cars. I would go so far as to suggest that the road traffic legislation should include a section compelling car manufacturers to instal adequate locking devices on these heavier vehicles because they are the ones that are most often stolen. The joyriders involved are usually only waiting for the opportunity of a chase involving Garda cars but the Garda cars are not adequate to keep pace with these bigger cars.

An Ceann Comhairle

The Minister has stated that the amendments to another Bill, the Road Traffic Bill, have been circulated and that the provision before the House now will appear as amendment No. 4 to that Bill. Consequently it appears to the Chair to be unnecessary to discuss the provision at length at this stage.

Mr. G. Mitchell

I was about to conclude on that. In addition to including a section for the purpose of compelling car manufacturers to take their responsibility seriously. I should like to see provision being made for the use of the Criminal Justice (Community Services) Act as a means of getting some retribution since, as I said, most of those who engage in car stealing are poor and delinquent and would not be in a position to pay fines.

Mr. De Rossa

I do not propose going into detail on this section except to make the point that the sections we have dealt with already would apply to this section which is now being transferred to the Road Traffic Bill. Therefore, the people Deputy Mitchell speaks of, the young and inarticulate who steal cars, will be liable to the consecutive sentencing policy in the District Court as it is most likely they will opt for trial in that court. Therefore, it is hardly unreasonable for Deputies to refer to the section.

The amendment, which I am not moving because the Minister is withdrawing the section, sought to ensure that because of the severity of the sentences young people could face if they were accused of stealing cars, they would have a right to opt for trial by jury. I hope the Minister will take that into account when dealing with it in the Road Traffic Bill.

Mr. Skelly

Like everyone else I would like to stop the wholesale taking of cars. We must ask why people steal cars. There are many different reasons why they do so. I agree with Deputy Kelly's comments about the kind of questions we should be asking because there is a story behind all the statistics. It might help towards a final solution of the problem if we could break down the statistics.

There are important questions to be asked in this area particularly when most of this type of crime is committed by young people. Who steals cars? Deputy Mitchell quoted from the Association of Criminal Lawyers who said they were young, unemployed, uneducated and delinquent. Do young people who steal cars go on to become involved in more serious crime such as housebreaking, larceny or more violent crime or is it something that they get out of their system and stop after a few years? Without discussing the merits of the £2,000 and five years maximum sentences, it is very severe if a person steals only one or two cars for the thrill of doing so. It seems very severe that their life should be damaged to such an extent that they spend five years in jail.

Mr. Noonan

(Limerick East): That is the maximum sentence.

Mr. Skelly

I know that and I know it is unusual for the maximum sentence to be imposed. If the reason for these measures was to put the fear of God into young people it will not work because one thing they have in abundance is raw nerve. They have no fear. People of this makeup are not inclined to be put off regardless of how long a sentence is for. It is important to consider the contribution made by Deputy Kelly in that regard.

I will reserve discussion on these aspects of the section for the Road Traffic Bill. We would all like to see the problem solved but it is not necessarily the case that if we increase sentences we will contribute to the reduction of crime. We must consider the life span of criminals. If we are talking about young people aged from 15 to 35 years we would need to have good reasons for deciding on sentences which could result in their spending almost one-third of those years in jail. This is something I often thought about and wondered how these sentences are arrived at. Do people seriously think about them and about the effect a figure of one year, two years, three years and so on can have on a person's life? I am not advocating a reduction if this cannot be justified. It may be that it they were increased they would work just as well.

I had the experience of taking a 15 year old fellow out of a car after he had killed a pedestrian crossing a road. He had to wait to reach the age of 16 so that he could be sent somewhere. In the meantime he stole more cars. He told me that he did not care because he would be sentenced anyway and that he had killed somebody the previous week. It is a frightening experience. Apart from the measures we introduce in legislation we must tackle this in another way. I will reserve my in-depth comments on this section as it will come up under the Road Traffic Bill.

Mrs. Barnes

Like other Deputies I will keep most of my remarks for the Road Traffic Bill. It would be valuable if we could have the statistics on the detection rate of this crime. Deputy Skelly's relating of the story of a young person who had killed at an age when he was not even indictable as an adult shows how serious this is particularly for the victim. It must never be forgotten that people are at risk.

Mr. Noonan

(Limerick East): I do not wish to interrupt the Deputy but I am the only person who can move the section. I have not moved the section nor has anyone moved the amendment to it so I do not think we should be discussing this.

An Ceann Comhairle

The Chair proposes the question that the section stand part of the Bill. It is obviously unnecessary to spend so much time over a section that is being removed from the Bill particularly since the Bill has taken so much time to go through the House.

Mrs. Barnes

It is relevant if we want to be effective on the next Bill. I ask that statistics be made available and also research which may have been done in other countries into this crime. We might be able to learn from that. Could we have recommendations from the Garda, who are also very much at risk? All of that will be relevant when we debate the section under the Road Traffic Bill.

Dr. Woods

The Minister spoke about fast track legislation. It was the Minister's decision to include this in the Bill. If he wanted to go on a fast track he should have done so. It is not fair to comment in the way he has on this Bill, though he may have meant it facetiously at the time. However, it could be taken up by people. Sections 3 to 8 and 14 to 18 have caused enormous controversy and concern. It would be wrong of the Minister to think that we can come in here and pass through these sections of the Bill without giving proper attention to them.

Mr. Noonan

(Limerick East): On a point of order, we are not discussing sections 3 to 8 or 13 to 18. We are discussing section 12, which I am not moving and which will be discussed in another Bill. I am prepared to listen to a lot of discussion but there comes a point when I think Deputies are being ridiculous, and I think they are being ridiculous now.

Dr. Woods

Thank you very much, Minister. I am glad to know your opinion of us. The fact is that this is relevant because the Minister put it down in the first place and now he wants to withdraw it. We are agreeing to its withdrawal but we are entitled to comment on it.

An Ceann Comhairle

I appeal to Deputies to act in a reasonable manner.

Dr. Woods

So long as the Chair is not suggesting I am doing otherwise.

An Ceann Comhairle

Standing Order 91 reads:

When a Bill is to be considered in Committee, proposed amendments shall be notified in due time, and shall be arranged in proper order: Provided, nevertheless, that, in the discretion of the Chair, amendments may be moved without notice.

Dr. Woods

We have to bear in mind in the context of this Bill that if a sentence of five years is imposed, it is no longer a minor offence; this will be a major offence with all the connotations that go with it. A sentence of five years brings it within the context of section 3 which covers arrest on suspicion and detention for six hours followed by another six hours if necessary. This is something we will have to watch in future because when the increased sentence is being imposed — an increase to three years from the present six months plus six months — there might be a temptation on the part of the Government of the day to increase the sentence to five years because this move would bring all these offences under section 3.

I think this is a very relevant point and I hope this and the other points I have made will be borne in mind by those Deputies who will be discussing the Road Traffic (Amendment) Bill. We have a duty to consider all Bills, but if the Minister wants this Bill passed quickly, he can arrange more sitting days and we will be happy to facilitate him. These sections must be adequately discussed because they are making major changes in our legal system. I do not think they are appropriate changes for "fast track" legislation. While the Minister has been sitting on that side of the House, I too have been sitting in this House, debating this Bill. I agree to the withdrawal of the section.

Section deleted.

SECTION 13.

An Ceann Comhairle

Amendment No. 31. Amendment No. 32 is related and amendments Nos. 31 and 32 will be discussed together.

Dr. Woods

I move amendment No. 31:

In page 8, lines 25 to 30, to delete subsection (1).

Section 13 deals with the increase of penalties for certain firearms offences. Subsection (1) reads:

Section 15 of the Firearms Act, 1925, as amended by section 21 (4) of the Criminal Law (Jurisdiction) Act, 1976 (possessing firearm or ammunition with intent to endanger life or cause serious injury to property) is hereby amended by the substitution, for "imprisonment for a term not exceeding fourteen years", of "imprisonment for life".

Amendment No. 32 reads:

In page 8, lines 35 to 39, to delete subsection (3).

Subsection 3 reads:

Section 27 (2) of the Firearms Act, 1964, as amended by section 21 (6) (c) of the Criminal Law (Jurisdiction) Act, 1976 (use of firearm to resist arrest or aid escape) is hereby amended by the substitution, for "imprisonment for a term not exceeding fourteen years", of "imprisonment for life".

In both cases the Minister is proposing that a term of 14 years be replaced by imprisonment for life. When this is broadcast to the media it sounds great because a life sentence will act as a deterrent. I found this very hard to understand because I know that a sentence of life can work out at eight to 12 years. If we have a sentence of 14 years, why sentence a person to eight to 12 years? There cannot be very much difference, unless it is that we want to impress people of the seriousness we give to certain types of crimes or offences. We support the increased sentences, but is a sentences of 14 years to life an increase? Should the Minister not say "14 years or life"? In these circumstances will it be more difficult to get a jury to find a person guilty? Where there are drug and other serious offences, for which a 14 years sentence can be imposed, the problem is to get the courts and the juries to impose sentences of seven, eight or nine years. Too often the public have been scandalised that people found guilty of very serious offences were sentenced to two or three years, or even got suspended sentences.

I can see the Minister's reaction to the public outcry in these areas. We did exactly the same thing with the Misuse of Drugs Act. We got tremendous publicity, great public relations and everybody was impressed but in reality we are talking about a shorter sentence. There is another problem: how does one impose an intermediate sentence if the Bill says "imprisonment for a term not exceeding 14 years" or "imprisonment for life"? A jury will be reluctant to send somebody away for life because they possess a firearm or ammunition with intent to endanger life. A jury might not be inclined to impose a life sentence but they might agree to a sentence of three, five or seven years. I would like the Minister to clear up this point because this is a difficulty. That is why I put down this amendment. I suggest that the Minister consider on Report Stage inserting the words "fourteen years or life" if he wishes to have a life sentence included. There must be intermediate sentences.

Mr. Noonan

(Limerick East): Deputy Woods opposes raising the penalty for the offences under subsections (1) and (3), which are possession of firearms with intent to endanger life and the use of firearms to resist arrest, from 14 years in each case to life imprisonment. The Deputy misunderstands the situation. What is being proposed is not a mandatory life sentence as for murder, but the imposition of a maximum sentence of life. At present the maximum sentence is 14 years. The judge can impose any length of imprisonment up to life and life is an indeterminate number of years. In effect, the discretion is being given to the judge of imposing a sentence of 20 or 25 years whereas up to now his discretion has been up to 14 years. This is certainly making the penalty stronger and, because it is a maximum sentence, the discretion is being left to the judge to pick an intermediate sentence, as the Deputy suggests, if he sees fit. Deputy Woods' amendments are based on a misunderstanding of what is being proposed.

Dr. Woods

Briefly, does it not mean that the maximum sentence becomes life and how can the judge impose 20 years? Life, in practice, would seem to work out at eight to 12 years.

Mr. Noonan

(Limerick East): It is not mandatory; it is a maximum sentence. In imposing a maximum sentence of life, the judge has a discretion in fixing on any number of years. He is quite at liberty to give a very severe sentence while at present he cannot give more than 14 years.

It is not true to say that a life sentence is less of a sentence than the present 14 years. It is a more severe penalty. If in practice it works out at less than 14 years — and it has on occasions up to now — it is the practice of early release and remission which is wrong, not the 14 years or the life sentence. It is not a mandatory sentence which is being proposed, it is an increasing of the maximum sentence from 14 years to life and that gives the judge the discretion to impose any sentence which he thinks fit in the particular case.

Mr. G. Mitchell

The Minister has cleared up some of the confusion which arises. People have the impression that life is a shorter sentence than 14 years. Nonetheless, if the judge has the power to sentence up to all one's life, say ten to 30 years, suppose that he simply says ‘for life'. Does it not then rest on the prison authorities and welfare people to decide what that life sentence means? In effect, it could mean a much less severe sentence. If someone was sentenced to 14 years at present, these authorities might not be so free to decide the extent of the service in prison. Perhaps on Report Stage the Minister might try to spell this out a little better. A specified sentence of, for example, 14 years may be a greater deterrent than a term of life imprisonment. Life does not seem to many to mean more than seven years.

The amendments proposed by Deputy Woods do not enhance the Bill or deal with the problem which the Deputy says exists. His amendments delete the reference to life imprisonment but do not propose anything in substitution. Other sections in this Bill have the effect of increasing the penalty from seven to 14 years in the case of taking a vehicle without authority, from five to ten years for possession of firearms or ammunition in suspicious circumstances and from ten to 14 years for the carrying of a firearm with criminal intent.

Much of this section, regrettably, is necessary. The regular reference to certain parts of the city is "Gunsville". One hears regular stories of guns for hire for a specific job. It is suggested that north and south side gangs regularly lend each other guns for this purpose. To suggest that we delete two subsections to deal with the problem is a little naive. We will certainly need to tighten up on the definition of "life". The Minister might help by clarifying the position on Report Stage.

The reason for the use of all these guns is that the Official and Provisional IRA and many now holding themselves out to be social workers, do-gooders and anti-drug organisers in the community are those who showed the way in the use of guns in the city and country. Of that there is no doubt. They gave the lead in the use of guns and now hold themselves out to be the protectors of the community — the knee-cappers and supposed anti-criminals. They set this action in train. I suggest that the Minister consider inserting a specific section in relation to kidnapping where guns are used.

An Ceann Comhairle

We are dealing with amendments Nos. 31 and 32 only.

Mr. G. Mitchell

When considering the two amendments proposed by Deputy Woods on Report Stage, I hope that the Minister will consider introducing a section to deal with guns used in kidnap or attempted kidnap.

Mr. Kelly

I was out of the Chamber for about 20 minutes and if the point which I wish to make now has been made I shall stop immediately if the Minister so indicates. I wanted to raise, in the special context of this section, a point which I made in more general terms——

An Ceann Comhairle

We are dealing with amendments Nos. 31 and 32.

Mr. Kelly

I appreciate that. These are the amendments which Deputy Woods put down in order to delete subsection (1) and (3). Obviously what is in the Deputy's mind is the apparent or supposed lesser efficacy of a life sentence than of a specified term of years. The point which I made a short while ago is applicable here. It would be useful if the Minister could tell us, in considering these amenements — or, for that matter, in dealing with this section as a whole and looking at, for example, the first subsection which Deputy Woods wants to remove. How many recent cases have have there been of the imposition of the maximum sentence of 14 years for an offence under section 15 of the 1925 Act? I realise that 14 years is such a long time that the whole period could not have expired since the present paroxysm of violence began, but is there any indication of how many times the maximum sentence was imposed and anything like that number of years actually served? Is there any suggestion, from the police or anybody else, that the efficacy of the general firearms law is reduced by reason of the fact that 14 years is not a sufficient term of imprisonment, when reckoning the allowance for good behaviour or whatever else might be taken into account?

This whole area, including Deputy Woods's amendments, would be illuminated by some statistical, not exact but general, information of this kind. Even if the Minister were able to say that the police have given it as their serious and considered opinion that the repression of firearms offences would be facilitiated by increasing the sentences which the law threatens, I would need to be convinced that that were so. If the Minister were to assure us in general terms that this was the police view that would at least give the matter some weight.

Mr. Skelly

I appreciate Deputy Woods' concern and the reason he put down his amendment. Life is a terrifying sentence if for nothing other than the uncertainty of it. There is no certainty that it will be eight to 12 years even if that has turned out to be the practice, even if it is the case that most people convicted of murder are now walking the streets and that other considerations were taken into account during the period the sentence was being served, when these people were under observation by the authorities and decisions were made perhaps to release them after a certain number of years. Probably the objective of this section is to bring it home to people that under no circumstances should one even dare think about picking up a firearm or getting involved in firearms in any way. It is not too long ago when the country was virtually free of firearms. It was only on rare occasions they cropped up. As Deputy Mitchell has said, they are all too frequent now and you can even hire them. It is becoming part and parcel of most hold-ups and robberies.

It should be made clear that it is a most serious offence; and when somebody decides to commit a crime we should if possible make that person stop and think that, while he might commit the crime, if he brings a firearm along there is the possibility of a life sentence. In that respect I have not anything against the section, although I consider that 14 years should be a deterrent, if one can have a deterrent and if people worry at all about how many years they will get in jail if they commit a very serious offence like this. For that very reason I would like to see behind the figures, because I have doubts sometimes whether deterrent results because of the number of years that will be imposed. I do not believe criminals sit down and try to work out how many years they will get for a crime they commit. I am sure a judge is caused great anxiety if he increases the term of imprisonment by one, two or three years, from five years to eight years. Does he just take a figure out of the air between one and 14 or, depending on the age of the criminal coming before the court, whether it will be a ten year span or a 20 year span in jail?

We must make a very strong stand in relation to any crime involving firearms. We must try to discourage people as far as possible from using firearms. This is only one way of doing it and we have to look at different areas to try to reduce the crime rate, especially the armed crime rate. I do not believe there is any great improvement in the section by keeping it at 14 years. It is a misconception to believe that life imprisonment is eight to 12 years, for the reasons I have given earlier. Admittedly, as far as my research into the matter is concerned, there are very few people who have received life sentences except for very special considerations and who are still behind bars. Most of them are out. The authorities may think they have been rehabilitated. The general tone of the Bill is that we have decided that it is not possible under any circumstances to rehabilitate criminals by imposing prison sentences. By the measures we are taking in this section and throughout the Bill we have thrown in the towel in that area; we have thrown our hat at it and we know that rehabilitation cannot take place within out system. We should bear that in mind because we depend on other people in our society, volunteers and others, to pick up the pieces. This is the approach we are taking, although unfortunately we are not listening to those people and we are not heeding the advice they have given us on many sections of the Bill.

Mr. Noonan

(Limerick East): We have gone from the amendment to discussion of the section. I am opposing the amendment because it is based on a misunderstanding which is fairly widespread.

An Ceann Comhairle

The Chair feels that the arguments to date have been in order because they are related to the length of sentence.

Mr. Noonan

(Limerick East): I am not objecting to that at all. I am just saying that I will go on now and deal briefly with the section also because they are related.

Dr. Woods

With the consent of the Chair.

Mr. Noonan

(Limerick East): Absolutely; he is consenting. There is a deterrent affect in the concept of life sentences.

An Ceann Comhairle

At the moment we are debating amendments Nos. 31 and 32 together. If we are going to debate the section with them we will have to do that by agreement. Is it agreed that we debate the amendments and the section together?

Dr. Woods

I agree to that. I have no objection to debating them together.

An Ceann Comhairle

Amendments Nos. 31 and 32 and section 13, amended or unamended, will be discussed together.

Mr. Noonan

(Limerick East): Everybody knows that the section increases the penalties for certain firearms offences. These are the most serious offences known to our law. The penalty for possessing a firearm or ammunition with intent to endanger life or cause serious injury to property is going up from 14 years to life imprisonment as is also the penalty for using a firearm to resist arrest, for aiding an escape. We are increasing from seven years to 14 years the penalty for possessing a firearm while taking a vehicle without authority and from ten years to 14 years the penalty for carrying a firearm with criminal intent. These are all maximum sentences and not mandatory ones. In those cases where the maximum sentence is a life sentence it will be open to the courts to impose a sentence of 20 to 25 years in the appropriate case or a lesser sentence in the appropriate case.

The idea here from the Government's point of view is that, first of all, the use of guns in our society on the criminal side and on the criminal terrorist side has reached epidemic proportions. Guns have become a part of ordinary life to a degree which was unimaginable ten years ago. There is no doubt that ordinary criminals have learned their lesson well from the Official IRA, the Provisional IRA, the INLA and the various other subversive groups in society. Life has become cheaper with the spread of guns. This section and the next section is an attempt by the Government to respond to what is a deteriorating situation. The intent here is, first of all, to show by the increase of sentence that the Government are unhappy about the situation. We believe there is a deterrent effect with the concept of a life sentence. It is also an indication to the Judiciary that in this and in the other Bill referred to this morning longer sentences will be welcome for these particular offences because the length of sentence has a deterrent effect.

Another point which is worth bearing in mind is that our sentences for these particular offences are out of line with the sentences in Northern Ireland. The proposals in section 13 will bring the maximum sentence up to the level of the sentences in Northern Ireland. That is not just for the sake of neatness. Under the Criminal Law (Jurisdiction) Act, which is not used very much but which could conceivably be used to a great extent, the accused has the right to opt for the jurisdiction where he will be tried. If somebody is arrested and charged in the North of Ireland under the Criminal Law (Jurisdiction) Act, he can opt to be tried in the Republic of Ireland or vice versa.

In this area of firearms offences where, when we are dealing with terrorists whatever the charge is, there is a firearms element in it in almost all cases, even if the major charge is not a firearms charge, there is merit in having the same maxima North and South specifically for that reason. How effective will this provision be? It is very difficult to predict what will happen ultimately. This section, taken with section 14, will make a fairly major impact in preventing what is happening at the moment. There is an onus on us to take on the dealers in death, people who use guns quite frequently, people who have no respect for life and who use guns in all the ways outlined here.

Dr. Woods

I want to make it quite clear that we support the increases. We are concerned about whether life represents an increase. The Minister said that in practice it is not an increase for a different reason. The Minister said that in practice it works out at less because of the remissions.

Mr. Noonan

(Limerick East): No, I did not. I said the Deputy was confused, and obviously he still is. A mandatory life sentence for murder works out at less in practice on many occasions. We are not taking about a mandatory life sentence here. We are talking about a maximum sentence of life and the court can impose any length of sentence it wishes.

Dr. Woods

If life is imposed as distinct from 14 years, will it work out at less in practice? The Minister said earlier — and the record will show he said it — that in practice life works out at less.

Mr. Noonan

(Limerick East): For a mandatory life sentence.

Dr. Woods

What does it matter once a sentence of life is given? We want to be clear on this. It is interesting to look at the previous modifications. The original 1925 Act provided in section 15, which is the section this relates to, for penal servitude for a term not exceeding 20 years. In the Criminal Law (Jurisdiction) Act, 1976, the section provided for imprisonment for a term not exceeding 14 years. Now the Minister is saying we will get the right result by providing for a life sentence. If a judge decides to give the maximum sentence and imposes imprisonment for life, we know from what the Minister has said, and from what we were told outside, that will work out at less because of the remissions which apply. That is the question we are concerned about. This does not say a maximum sentence of life. It just says imprisonment for life.

Mr. Noonan

(Limerick East):“Shall be liable.”

Dr. Woods

Is the Minister absolutely happy that that will be interpreted and seen as any number of years up to life? If so, that aspect is satisfactory. The word "life" standing on its own in the Bill would seem to indicate that we are talking about life generally in those instances and that, if a life sentence is imposed, it will work out at less than 14 years.

I put down the amendment so that that aspect could be discussed fully before we pass this section. In case anybody gets a confused version of it, I want to make it quite clear that we are fully in favour of the increased sentences. We appreciate all the points the Minister is making. We appreciate the seriousness of armed robberies and the increasing use of arms in relation to offences of various kinds. Like Deputy Skelly I know that people can hire guns for £1,000. I am told that is a reality, that you can hire a gun for £1,000 and get somebody to do a job for you. I know of cases where constituents of mine have had a job done on them. That is another question. All that has to be dealt with. We want to deal with the increasing use of firearms. We are not at variance with the Minister on this matter. We are totally in agreement with him if we can be satisfied that his interpretation of imprisonment for life means what he says it does. How it will be applied in practice is still a problem because, if a life sentence is imposed, it will work out at less.

The Minister has not given the statistics, for which a number of Deputies asked, about what is happening in practice. If a sentence of ten, 12 or 14 years is being applied at present, that would seem to be more than adequate. It may be that these sentences are not being applied. Therefore we will be back in the same position. The Minister said a judge can impose any number of years up to life. Presumably life can mean any number of years on that definition. If the Judiciary are not imposing more than three or five years the exercise seems to be pointless. We have to assure everybody that we are taking this seriously.

I hope I have made my position clear. I am accepting what the Minister said about imprisonment for life. I will look at it again before Report Stage to see whether I can be quite happy about it. It may be that in practice it is not a wise thing for us to do if a life sentence will be less than a certain number of years. It was 20 years and it came down to 14 years. Now we are going back to life, and saying life can mean 20 years or any other number of years. The offence does not only cover subversives and those who are involved in armed robberies. That is why it is important to have available a scale of years up to a life sentence.

Section 1 (1) of the Firearms Act, 1925, states that:

"firearm" means a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged;

It includes any ingredient or component part of any such firearm. It also includes an air gun, an air rifle or an air pistol. The subsection states that:

the expression "prohibited weapon" means and includes any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas, or other noxious thing,...

Section 15 of the Firearms Act, 1925, states:

Any person who after the passing of this Act has in his possession or under his control any firearms or ammunition—

(a) with intent to endanger life or cause serious injury to property, or

(b) with intent to enable any other person by means of such firearm or ammunition to endanger life or cause serious injury to property,

shall, whether any injury to person or property has or has not been caused thereby,...

For instance, in the case of an elderly man in his seventies who is persuaded by the IRA to store guns in a hayshed, up to now he would get a short sentence of one or two years. It is very important that the sentence of life should be capable of interpretation on a sliding scale because that person might not have had much option. In another case a suspended sentence was applied. We should be quite clear that this sliding scale would apply in such cases. Apart from the concern we have expressed with regard to that aspect, we support the increases proposed. However, they should allow for all the intermediate kinds of offences as they are defined in the Act and which will apply in this case.

The Minister has said that the deterrent is to have a maximum sentence of life and the Government consider this would have some effect. There is the view that a minimum mandatory sentence would have some effect. If a person knew that a mandatory sentence of three or five years would apply for the use of firearms in violent crime——

Mr. Noonan

(Limerick East): What about the old man and the hayshed?

Dr. Woods

I have not yet finished. Minimum mandatory sentences for the use of firearms in violent crime, such as robbery, rape or aggravated assault where a crime is actually done might prove a deterrent but I doubt if the change from 14 years to a life sentence will have much effect on the statistics. Incidentally, I would be interested to know the statistics in relation to sentencing.

While we talk about mandatory sentences from time to time, we are very reluctant to do anything about them. An article by Reid Andrews in the Washington Report of January 1984 dealt with the matter of guns and the problems they are having in the United States in that respect. He dealt with the kind of Federal and State laws that were appropriate. In the studies that were carried out it is indicated that the answer clearly seems to be mandatory penalties for the use of firearms in violent crime and, combined with that, increased citizen participation in neighbourhood crime prevention programmes. It was also pointed out that 13 States now have mandatory sentences for violent gun crimes and most have seen noticeable reductions in their crime rates. The author states that Arizona, Virginia, Maryland, Delaware and South Carolina have enacted tough mandatory penalties and all have seen a sharp drop in violent crime. Michigan saw its gun-related crime drop approximately 60 per cent between 1976 and 1982. It would appear that we should look more closely at the matter of mandatory sentences in relation to violent crimes and we should have more information about how they are being applied elsewhere and the effect they are having. It may be that in practice they would have more effect than what we are doing here because people would know they are facing a mandatory sentence. I should like to hear from the Minister about the current practice in relation to the number of offences and the length of sentences passed.

Mr. Taylor

I agree with the Minister that it is of the utmost importance that steps be taken to deal with the increasing use of firearms and guns in our community. It is most important that new steps be taken to cope with that situation. I do not think that simply increasing the maximum sentences, as is proposed here, will make any difference to the situation. It will not make any difference to the level of sentences normally imposed by the courts and, secondly, I do not believe it will alter its force as a deterrent. For a criminal the change from 14 years to a potential life sentence will have little effect in deterring him from committing a crime.

The courts go nowhere near imposing maximum sentences for this or any other crime and if and when the statistics are produced by the Minister I have no doubt they will show that across the whole spectrum of criminal sentencing the sentences on average imposed are much below the maxima provided. It is rare, if ever, that a maximum sentence is imposed. That arises from the fact that for virtually all crimes the maximum sentences would be regarded as extraordinarily long. As far as I can recall, for larceny and robbery maximum sentences of 20 years are available under the law but I do not think such sentences have been imposed in living memory. More often than not, in the case of larceny and robbery charges, the Probation Act is applied or else a sentence of from three to 12 months' imprisonment is imposed.

If there is to be any meaningful attempt here to change the present position regarding firearms offences, which I agree are in a separate and distinct category from other fields of criminal activity, a different approach will have to be adopted. I agree with the suggestion of Deputy Woods that we should be looking at minimum sentences. The idea of having mandatory minimum sentences is something I am very unhappy about except in a very small, rarefied category of offences, and those involving firearms certainly would come into that area. Cases involving the use of firearms with intent to endanger life and to commit crime warrant mandatory minimum sentences.

The Minister indicated that he thought increasing maximum sentences would be seen by the Judiciary as an invitation to increase the sentence they would otherwise normally have applied. I do not agree; I do not think the Judiciary look at their sentencing policies in that way. They look at the case before them, at the criminal and his record and then they pass sentence. I do not think any judge would be influenced by increased sentences.

There are two aspects of custodial sentences. One, the most crucial and important, is rehabilitation of the criminal which must be paramount but, with certain types of criminals, there is the second aspect of preventative detention as protection for the public. It has never been a dominant factor here in sentences although it has been in the United Kingdom and other jurisdictions. When one comes to the category of firearms offences, the question of the protection of life and limb of innocent members of the public must be taken into account to some degree also. In this context I ask the Minister to look at the question of mandatory sentences and, for a repeated offence, there should be a substantial mandatory minimum sentence.

The man in the street, rightly or wrongly, takes the view that the level of sentences imposed by the courts is ridiculous and outrageously low and that no attempt is being made by the Judiciary to crack down on crime. In some cases certainly the level of sentencing gives rise to reservations. This category, however, is exceptional and requires a degree of attention quite apart from the general run of other criminal activity. When there is a conviction for a serious crime, for example, having a gun with intent to endanger life, it warrants a minumun sentence and that would be taken as a guideline by the Judiciary.

Mr. Kelly

I am sorry to disagree with Deputy Taylor. I agree with the sentiments underlying his suggestion but the suggestion itself would not work very well and I prefer the Minister's approach. I do not know whether I am repeating something which the Minister has said but the problem which originally preoccupied Deputy Woods is very simply dealt with and was explained by the Minister in terms of the distinction between a mandatory life sentence and a maximum life sentence. The problem with a mandatory life sentence is that there is no way of varying it just as you could not vary the severity of the death sentence which it replaced in murder cases. Death was death and there were no gradations. In order to make the very proper abolition of the death penalty acceptable to people who regret its abolition, the practice has been to replace it with a mandatory life sentence. That mandatory sentence means that a judge has no option, when a jury convicts somebody of murder, but to impose this sentence and no other. That means that no shades of guilt are recognisable in the simple case of the mandatory life sentence. Somebody who is the most cold blooded and callous killer imaginable gets the very same sentence as somebody who, possibly through an unfortunate conjuncture of factors together with perhaps a weak character, is pushed into a position where he criminally and wrongly takes another human life but in circumstances perhaps which will not be repeated.

This would probably not apply to subversive crime but, as a general rule, you have a much better chance of being murdered by someone who is related to you by blood or marriage than by anybody else. Most murders, except for conditions which are, unfortunately, becoming common here where political subversion plays a strong part, result from awful, unspeakable domestic conditions or situations. Naturally, I am not trying to palliate them in saying that but there is an element of very bad luck in certain crimes. We need not start comparing one murder with another but I am making the point that a jury which, after long consideration finds that a set of facts will not justify the relatively lenient finding of manslaughter but is just over the borderline into murder but is a case nevertheless where you or I might be disposed to have strong sympathy with or understanding for the criminal, leaves the judge no option but to impose a mandatory life sentence. Of course, it still leaves the executive with the power to remit a very large part of the sentence by letting the person out after a relatively short time and that is what Deputy Woods has in mind. That is the reason for the misconception which the Minister has explained. Very often a life sentence is less severe than a specified term of years.

The question of a minimum mandatory sentence to which Deputy Taylor referred, is a different kettle of fish and, in that connection, problems arise which are very difficult to grasp. If a jury or a judge sitting without a jury is made to realise that convicting a prisoner must, under the law, result in a mandatory minimum sentence, that creates an inbuilt temptation for the jury, or perhaps the judge, to avoid conviction if they possibly can in the same way as in instances where a mandatory statutory consequence follows conviction of a particular offence, to take the simplest instance, forfeiture of a driving licence or loss of a particular kind of employment. That creates a humane anxiety on the part of judge or jury to lean over backwards not to convict a person if there is any way to avoid doing so. Anyone who has practised or even been in court will know that advocates, rightly doing their best for their clients, will insinuate the point even though it is not relevant to the issue of guilt in the course of the hearing that conviction for the accused person will mean the loss of his livelihood because, perhaps, he is a commercial traveller who has to drive or if he is in public employment and the charge is under the Offences Against the State Act will mandatorily lose his job. Deputy Taylor's anxieties are understandable with regard to the mandatory factor but, for the reasons I have given, they may be counter-productive and lead to a lower rate of convictions. The Minister, in a disorderly interjection in reply to Deputy Woods, mentioned the case of the silly old man who had permitted himself to be blackguarded into sheltering things which he should not have sheltered. That sort of person cannot be leniently treated under any sort of minimum mandatory sentence, although there appeared to be agreement on the far side of the House that he should be.

Dr. Woods

No, I have clarified that. It is only where somebody is found guilty of particular offences.

Mr. Taylor

That person would not come under any of the subsections of this section.

Mr. Kelly

Anything to do with a minimum mandatory sentence runs into this problem. Anything which is mandatory on a court, which reduces a court's discretion to try to make the punishment fit the crime, tends either to create injustice because of somebody being subjected to an improperly severe penalty or to create injustice vis-à-vis the people of Ireland in as much as reluctance to convict emerges.

Although I have a great respect and admiration for the United States, one of the less admirable dimensions of their system appears to be their criminal process. I consider that the spectacle of somebody left on death row for four, five or six years and then dragged out and gassed or electrocuted is absolutely disgusting. I could not take lessons from a country, no matter how great its merits — and the merits of the United States are very great indeed — in the matter of the criminal process when their public opinion is such as to tolerate that sequence of events. There are well over 1,000 people with death sentences hanging over them, which are now being carried out, although they were imposed in the seventies.

An Leas-Cheann Comhairle

Are these related to firearms offences?

Mr. Kelly

I accept that I have broadened the debate somewhat. I refer to something Deputy Woods said, just before you assumed the Chair, in regard to experience in other countries. I quite agree that the experience of other countries is relevant, provided we are dealing with a country with a roughly comparable infrastructure of public opinion and social background to that of our own. The United States is palpably not such a country. Well-meaning though they are and bulwark though they may be for the freedom of the world in general, the way they operate their criminal process is a reproach to them.

An Leas-Cheann Comhairle

Well-meaning though the Deputy is, I should prefer him to come back to section 13.

Mr. Kelly

The Chair permitted Deputy Woods to go into this matter. They have mandatory sentences there and it was in this connection that Deputy Woods mentioned the United States.

An Leas-Cheann Comhairle

We are dealing with firearms offences.

Mr. Kelly

He mentioned the States in which this is so. The kind of person who becomes a criminal defendant in this country, although he may be deprived and helpless, is not as deprived and helpless as the typical American convict who emerges from the kind of ghetto which so far has no parallel here. Unhappily, that may change. The typical person convicted of a serious offence in the United States is very often——

An Leas-Cheann Comhairle

You are again generalising on the crime situation in America. I am concerned about section 13 and the firearms offences.

Mr. Kelly

I was simply trying to rebut the idea that one gets anywhere with mandatory sentences. The Minister is correct in trying to leave as much leeway as possible for the court.

On the general matter of the severity of penalty, I do not think it ever happened in this House that I drew from another branch of academic experience than our own legal system. However, I remember giving a lecture in the University of Paris during the sixties on the subject of the Roman quadruple penalty. I was able to show, to my own satisfaction anyway, that when you found in a Roman statute a penalty of four times the value of the property or interest concerned it was a sure sign that the law was impotent and that this extravagantly high penalty was intended as a kind of scarecrow. Such a penalty in a law was nearly an infallible sign that the law was never enforced, for reasons which I tried then to explore. That is not a bad rule of thumb to follow, even in the present day. Where you find sentences being increased and made more severe, it is a fair index that the rate of repression of the offence concerned with the penalties now available is pretty low. The Minister is correct in his general approach, but I have not been convinced by anything I have heard here that we are going to get anywhere in terms of reducing the incidence of firearms or other offences merely by souping up the penalties.

Mr. De Rossa

The intention of the section is to act as a deterrent to serious offences of possession with intent, resisting arrest with arms and so forth. It is a good intention and I do not quibble with it, other than to say that there is no evidence to show that the section will have the desired effect.

In the course of the discussion a number of people referred to armed robberies. I have been looking up the Garda report for 1982. In the case of possession of firearms with intent to endanger life, the number of offences reported or known in 1982 was 23 and the number of offences in which criminal proceedings were commenced was 22. In the case of possession of firearms while taking a vehicle without authority, the number of offences reported or known was 11 and criminal proceedings were commenced in three of those cases. In relation to the use of firearms to resist arrest or aid escape, the number of offences reported or known was three and criminal proceedings were commenced in one case. In the case of possession of firearms or ammunition in suspicious circumstances, the number of offences known or reported was 31 and criminal proceedings commenced in 28 cases. There were eight cases reported or known of carrying firearms with criminal intent and proceedings commenced in five cases. The total number of such offences in 1982 was 76. These are the offences to which this section relates.

On the other hand, the number of armed robberies was 158 and the number of aggravated burglaries in which arms were used was 232. There were 390 serious offences involving firearms which I understand this section would not affect. It would affect 76 offences committed in 1982. The point I am endeavouring to make in relation to that is that the Minister must feel that the sentencing obtaining for armed robbery or burglary is adequate because he has not introduced any amendment to change that. If that is true, then one might well pose the question: why do these offences continue to escalate? On the other hand, the number of offences with which we are dealing for 1982 is 76. We are proposing to increase the sentence from 14 years in some cases to life in others — from five years to ten years in some cases and from seven years to 14 years in others.

I would argue that the rationale behind whether a potential criminal, political or otherwise, commits an offence does not lead him to consider in the first place the length of sentence that might be imposed. The first thing about which they will think is whether they will be caught. If they are going to be caught then clearly the length of sentence will have a bearing on whether they commit the crime in which they propose to become involved. If one might take it to its very lowest level, if I or some other Deputy parks out in Kildare Street the possibility is that we will receive a £5 parking fine. If we think it worth the £5 we will go ahead and park there. However, if we fear that our car will be towed away and that we shall have to pay £20 or £30 in order to retrieve it we will think twice about it. But, by and large, we know the likelihood is that our car will not be towed away. Therefore the question of whether one will be caught and will have to pay the penalty imposed under the law is what will primarily concern a prospective criminal.

The Minister and a number of other speakers made reference to the political criminal, the terrorist and so on. We must recognise that the penalty has very little to do with whether a person proposing to engage in a political crime decides to commit it. Such people will be motivated by a completely different set of considerations — the political climate and the acceptability of a given crime will have much more bearing on whether a person becomes involved in the commission of such a political crime.

I am not opposing this section but, if nothing else, I feel we should be seen to be doing something in relation to that type of crime. I am not at all convinced that the replacement of a seven year sentence by a 14 year one, ten years for five years or life instead of 14 years will act as a deterrent. Take the example of a person who faces a maximum sentence of 14 years for a given crime — and the possibility under the provisions of this section if passed will be that they would face a penalty of up to 20 years — it will make practically no difference whatsoever to such a person because he or she will feel, on the balance of probability, that they will get away with it or that the crime they intend committing will be so beneficial to them or to the cause they wish to serve that it will be worth spending 14 years in jail. Whether the sentence be 14 years or 20 years will not make much difference to such a person. I do see the need for us to do something but I do not feel that will meet the need.

Mr. Taylor

On the question of the possibility of introducing minimum mandatory sentences, I would emphasise that that is a course that should be adopted with caution and should be confined to a very specialised category of serious offence. I believe that certainly the more serious crimes involving the use of firearms would come into that category, for example, possessing firearms or ammunition with intent to endanger life.

Deputy Kelly made the point that he thought that such an imposition might be counter-productive because it might have an effect on the minds of a judge or jury — the fact that if there was to be a mandatory sentence they might thereby be concerned about convicting such a person. Perhaps Deputy Kelly is being somewhat oversuspicious or overcritical of how our judges and juries react. I believe that they set about their tasks in our courts with objectivity within the parameters laid down for them, that by and large they reach their decision in a proper manner and that it is not a question of having any interest in increasing the rate of conviction. We are not interested in increasing the rate of conviction unless a conviction is properly warranted. Though they be aware that there will be a mandatory prison sentence in the event of conviction, and they bear that in mind, if they have a doubt as to the person's guilt, then I contend it is better that they acquit the person. The person should be convicted only if their guilt is quite clear, sentence apart, beyond a reasonable doubt, as the law requires. If they have a reasonable doubt then I would contend it is better that they be acquitted. That line of argument is not of great substance. If there is a wish to introduce an effective deterrent, one that would have any meaning at all for this category of offence, then if it is to be achieved it will be done through the method of a minimum sentence rather than increasing the maximum sentences.

As I said in my initial contribution, this provision here will not affect two vital criteria, first, the operation of a deterrent or, second, the actual level of sentencing imposed in practice by the courts.

Mr. Noonan

(Limerick East): I might make a few brief comments on some points raised.

Deputy Woods read out a definition of a firearm which is not correct. The definition he read out applies to a prohibited weapon and not to a firearm, as defined, and to which the provisions of these sections would apply. Therefore things like mechanisms for the emissions of gas, air guns and so on would not apply here. It would apply strictly to lethal weapons which had the capacity to fire a bullet or shot.

I could not quite understand Deputy Woods' point because for half of his intervention he was asking me for guarantees that a maximum life sentence was not to be interpreted as a mandatory life sentence, that a judge would have discretion not alone to impose a prison sentence of something like 20 to 25 years but also that he could examine cases on their merits and if the merits of a case indicated that a less severe sentence should be imposed then a judge should be free to do so. He talked in terms of our having a sliding scale, that there should be no question of life sentences being imposed automatically. He talked, I thought, in terms of approval of a situation in which an old man who had been encouraged forcibly to conceal weapons in a haybarn had been dealt with generously. He seemed to approve of that.

Deputy Woods mentioned another case also, of which I am not aware, in which he said there had been a suspended sentence imposed and he seemed to approve of that as well. Then suddenly, with one great leap, he was on the other side of the argument, arguing for mandatory, minimum sentences. Therefore I am not sure which position he has taken up on it.

Mr. Kelly

It is the kind of updated Fianna training that one gets in Fianna Fáil——

Dr. Woods

Just a moment now.

Mr. Kelly

——jumping from one side of the agrument to another. It is like being able to shoot under a thing the height of one's knee while one——

An Leas-Cheann Comhairle

Would Deputy Kelly please desist from interrupting?

Dr. Woods

The change will have a number of effects.

Mr. Noonan

(Limerick East): I am not clear whether the Deputy wants to allow discretion to the Judiciary to sentence a person to a suspended sentence or to impose any level of imprisonment which they think would be appropriate for the crime or whether he now wants mandatory minimum sentences. I am not sure which side of the argument he favours at this stage. Deputy Taylor argued for mandatory sentences and stated that the sentence imposed was nearly always below the maxima provided. I suppose that is logical. One provides the maximum sentence to fit the most extreme case and, since almost all cases are not the most extreme cases, it is only logical that sentences imposed will be less than the maxima provided. Deputy Kelly also dealt with mandatory sentences. I share his views. I am opposed to mandatory minimum sentences for the reasons Deputy Kelly outlined.

Deputy De Rossa dealt with the number of offences in the 1982 crime report relating to these provisions. I am not sure that the figures quoted give the full picture. In the case of armed robbery and aggravated burglary the maximum sentence already is a life sentence. It seems to be the practice to charge a person with armed robbery, which carries a maximum life sentence, and not continue to charge that person with specific offences under the Firearms Act unless there is a doubt about not getting a conviction in what would be considered the major offence. Since the sentence for armed robbery and aggravated burglary are already at the maximum there was no initiative I could take there and I concentrated on the specific firearms offences which are now being brought up to the same level.

Mr. De Rossa

My point is that the instances of these crimes is still rising despite the fact that there is a life sentence for such crimes.

Mr. Noonan

(Limerick East): The statistics which will be issued shortly will show a reduction. I am not making a case about that and I would like to see the trend continuing for a longer period. The next section we will be discussing will be a far more effective one to bring about a downturn in the incidents of the use of guns, terrorist crimes and ordinary crimes. One of the things that weighed on the Government in considering this was the Criminal Law (Jurisdiction) Act. Firearms penalties in that Act were changed in 1976 to bring them into line with the penalties imposed in Northern Ireland. We are talking about those penalties again in section 13.

Under the Criminal Law (Jurisdiction) Act the accused person has the right to opt for the jurisdiction where he desires to be tried. Since 1976 the sentences in Northern Ireland have been increased and that was a consideration here. The new maxima I am proposing here will bring our penalties into line with the position in Northern Ireland.

I am in agreement with the general points made by Deputies. Obviously, it is a very serious situation and we should do what we can. I believe the Judiciary would take into account the intent of the Legislature and if we indicate by raising the maxima that we feel that more severe sentences should be imposed I believe the Judiciary will act accordingly and impose more severe sentences. We should legislate but should not attempt to tie the hands of the Judiciary. A movement towards mandatory sentences would tie their hands. I am aware that in drug-related offences in particular there has been quite an amount of adverse comment about the low level of sentences imposed in a number of high profile cases. I do not think there is the same level of concern about the adequacy, or inadequacy, of the sentences being imposed for firearms offences. However, I believe that, as a minimum, we should indicate how seriously we consider these offences and indicate to the Judiciary that more severe sentences might be appropriate in specific cases, after they have considered the merits of those cases.

Dr. Woods

The Minister is suggesting that it is hoped that the changes being made will act as a deterrent and in so far as they might he has our full support. A person who decides to get possession of a firearm and ammunition with the intent to endanger life faces a maximum prison sentence of 14 years now and the Minister proposes to change that to a life sentence but what does that amount to? A life sentence can be from eight to ten or 12 years.

Mr. Noonan

(Limerick East): Obviously, I have failed to get through the Deputy's cloud of misunderstanding.

Dr. Woods

I regret I am so dull that I do not grasp all these points but we are dealing with a number of different issues at the same time. They will have to be dealt with separately and the Minister will have to wait until we have discussed them.

Mr. Noonan

(Limerick East): At this stage the Deputy is not being dull, he is pretending to be dull.

Dr. Woods

The 1925 Act provided a sentence of 20 years while the 1976 Act specified 14 years but now we are changeing that to a life sentence. My questions related to the reason for changing the sentence to one of life in practical terms. The Minister has explained that in his view life can be taken as any number of years up to life. He has told us that it can mean 20 years.

Mr. Noonan

(Limerick East): It is not my view; it is the law.

Dr. Woods

In his explanation the Minister said that life can mean any number of years which can mean 20 years or life. In practice a life sentence will mean a sentence of eight or ten years and that is what we have to fix. We asked the Minister to give statistics on what is happening to the House but he has not done so. Deputy De Rossa had to dig out statistics on the number of people convicted and I wonder why the Minister does not tell the House the type of sentences they are getting. The Minister was happy to give the House information about bail because it supported his case. We are all in agreement with the Minister but we are questioning the practicality of what the Minister intends and how it will work in practice. The Minister has referred to the sliding scale and on the basis he has put the matter a judge will be in a position to take a sliding scale. In effect, there will be a scale to deal with any circumstances. Since that is the case we will be back to where we were in the first instance. Up to now a person could be sentenced for up to 14 years and the change proposes a life sentence which means, in effect, that there will not be any great change in practice unless judges adopt the attitude that because the term was changed from 14 years to life they will have to look at a life sentence in a different way and apply 20 years.

I introduced the question of mandatory sentences as another aspect that has not been covered in the Bill. Deputy Kelly apparently does not like to hear about the Americans, their statistics or legal system but that is irrelevant. I appreciate that circumstances there are different but we should take cognisance of the fact that the introduction of mandatory minimum sentences had a dramatic affect in a number of States. If that is the case it is worth investigating. It is also worth looking at other countries who adopted a similar procedure. Deputy Taylor adopted a similar view. I am not recommending that the Minister should go for mandatory minimum sentences but I am suggesting to him that it may be one of the measures we will have to consider seriously if we are concerned about a deterrent. We do not have any information whether a mandatory sentence will represent a deterrent.

People in the House confuse what I say. Deputy Taylor picked it up quite clearly. The Minister was not prepared to follow the reasoning that I pursued; neither was Deputy Kelly. I said that they should be related to specific crimes which have been committed and that we should examine this area. Now the Minister has said that he is opposed to mandatory minimum sentences in any event. If that is the position and he is not open to considering them, that closes that argument as far as the House is concerned. However, it allows Members of the House to make the point in relation to this area that there may be a mechanism which we are not using. The mechanism may be mandatory minimum sentences for selected crimes or offences under the section.

Under section 13 (5) we find that for carrying a firearm with criminal intent the sentence is altered from ten years to 14 years. That gives a very direct message to anyone who carries a firearm with criminal intent. The sentence for carrying a firearm or ammunition in suspicious circumstances is being increased from five to ten years. That also very clearly indicates the intention of the section. For possessing a firearm or ammunition with intent to endanger life the sentence is going from 14 years to life imprisonment which in practice probably means going downwards rather than upwards. In practice the outcome of what we are doing may be that carrying a firearm with criminal intent will incur a more severe sentence in practice than the life sentence. That is the only concern I have about the area. We support the increased sentences. I still would like to hear from the Minister what the statistics are in relation to the sentences under 14 years at present passed. What happens in the 14 years? Surely the Minister has these statistics available to him. Why does he not make them available to the House so that we can see what is happening in practice? Then we would be in a better position to judge what we are doing here.

Mr. Skelly

In the discussion of this section and the increases in sentencing the effectiveness of the section has come under question. We are into the numbers game again. Without the back-up of statistics on the increase in sentencing the case is not proved. I accept that it is desirable from the point of view of the public that we should be seen to be doing something to tackle this phenomenon of firearms-related crimes, but we should do it properly. I find nothing untoward about the contributions people have made to the debate on this section. This is another example of discovering during the course of a Bill why sections are put in and changes made. Our request for statistics was resisted very testily yesterday.

The increase in the sentences may not have the effect that we think it will have. I have two questions in that area. Will it affect the level of sentencing pertaining at the moment? Will it affect the criminal in his intention to commit crime? I support Deputy Taylor's submission when I say that I do not think that either of those two situations will be affected, but I agree with the Minister that sentencing should not be mandatory. If and when the level of armed crime drops it will be important and more than useful to have non-mandatory senteces. We hope to return to a situation where the only time a full term would be imposed would be to make an example of a case. If we reach a low level of crime and then matters start to get out of hand again and somebody does something drastic, the judge has the discretion to impose the maximum sentence. For that reason this approach is right although I do not think it will have any real effect because with the change from 14 years to life and so on we are merely playing around with figures. I disagree also with mandatory minimum sentences. We should not rule out the very important discretion that the judge has in certain circumstances. We are legislating here; we are not present in court and cannot go into the details of each case. That is why we appoint judges, and they should be totally independent. We should give them the greatest possible latitude, and the section achieves that. I do not find any flaw in the section merely because the lengths of sentences have been changed. It will make no great difference. As Deputy Kelly said, if you have mandatory minimum sentences shades of guilt are not recognised.

Mention has been made of the US and how the criminal law applies there and the effect of the sentencing. In passing let me mention Canada where little, if any, subversive activity occurs and access to firearms is nothing like it is in the US. Canada has a population of approximately 25 million and about 600 homicides per year, most of them the result of or allied to family squabbles and interrelationships. Whereas they have about 5,000 road accidents due to drunken driving. In those circumstances and considering the tortuous nature of some cases, the retention of the freedom of the judges there to act in a maximum sentencing situation is very important.

Apart from those few points, without statistics to back up this section I cannot see merit in making the changes at all, but I have no objection to the section because the discretion is still with the judges to impose whatever sentence they think fits a case and the likelihood of justice being meted out is the greater for that.

Mr. Briscoe

Would the Minister define a firearm? Would a cross-bow come into that definition?

Mr. Noonan

(Limerick East): This idea of a definition came up previously. The definition that Deputy Woods read out was that for a prohibited weapon, which is not the same as a firearm.

Dr. Woods

I read out two and I said in addition these included a prohibited weapon.

Mr. Noonan

(Limerick East): When “firearm” is used it has a more restricted meaning. It means a lethal firearm or a weapon from which a shot or bullet or other missile can be discharged.

Mr. Briscoe

Would "other missile" include arrows?

Mr. Noonan

(Limerick East): I should think so, but I do not think we have a big problem about people being wounded by the discharge of arrows. Statistics on the incidence of crime are available in the published crime reports referred to by Deputy De Rossa. I have not got statistics on the level of sentences but if I can get them I will give them to Deputy Woods. Of course there are other ways to get information. There is the parliamentary question for written reply. I do not think there are any other new points which I have not dealt with. I think the section will be effective. There will be great benefit from lining it up with the Northern Ireland situation. It is up to the Judiciary to interpret the legislation and impose longer sentences as they see fit, and if they impose longer sentences it will have a deterrent effect. Other points made are matters of opinion on either side, and Deputies are entitled to their opinions.

Dr. Woods

I spoke of the definition as a firearm from which a bullet or other missile can be fired. That is in section 1 of the 1925 Act. It includes a component part of such a firearm, an air gun, an air rifle or an air pistol. I asked if section 2 of the 1964 Act applies, which includes a prohibited weapon.

Mr. Noonan

(Limerick East): Yes.

Dr. Woods

Subsection (2) refers to section 26(1) of the Firearms Act as amended by section 26(6) of the Criminal Law (Jurisdiction) Act, 1976, which refers to the possession of firearms while taking a vehicle without authority, and it amends the penalty by increasing it from seven years to 14 years. Section 26 of the 1964 Act provides that a person who contravenes subsection (1) of section 112 of the 1961 Road Traffic Act and who, at the time of such contravention, has with him a firearm or an imitation firearm shall be guilty of an offence. It is worth bearing in mind that an imitation firearm is included. Because the sentence is being doubled, those involved should be made aware that this includes an imitation firearm.

The section has been well discussed. We put down two amendments to convenience the House in having the section debated fully. We appreciate what the Minister intends to do. We support the increases in sentences and our only query is in relation to imprisonment for life. We accept the Minister's assurance in that respect but in practice I feel it will have very little effect because the alternative will be the same if we look at the way in which remissions have been working.

The Minister spoke of the methods available to Deputies who get information. The normal procedure is that the Minister would have it here during Committee Stage debate. I accept it is possible to get them by written answers to questions. However, we withdraw the two amendments.

Amendment No. 31, by leave, withdrawn.

Amendment No. 32 not moved.

SECTION 14.

Mr. Noonan

(Limerick East): I move amendment No. 33:

In page 9, subsection (2), line 14, to delete "£800" and substitute "£1,000".

Amendment agreed to.

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

Mr. Noonan

(Limerick East): The section makes it an offence to withhold information about the source of supply of illegally held firearms or ammunition. The principal object of the section is to discourage the use of firearms by criminals and to trace the suppliers of guns for particular crimes. Many of the points made on the previous section are relevant here. We all object to the use of firearms in crime of any sort and we are all worried about the increasing incidence of their use and how they have become almost part of life in many parts of the country and in Dublin. We heard Deputies speak about how easy it is to obtain guns, to hire or to purchase them, and how frequently guns are used not alone in terrorist crimes but in the commission of ordinary crimes. We have had statistics on firearms offences, on aggravated burglaries and armed robberies. We all know from contact with constituents and from reading the newspapers or watching the television, that gun-related offences have reached a level which is intolerable and which the Government must do something about.

One of the problems is to trace the source of these weapons. If we could cut off supplies, or attempt to do so, we would be working effectively towards reducing the use of firearms by criminals. Under subsection (1) a number of conditions must be satisfied. A garda must find a person in possession of a firearm or ammunition. He must have reasonable grounds for believing that the firearm or ammunition is illegally held; he must inform the person of his belief and require the person to give him information as to how he came into possession of the firearm. Under subsection (2) it will be an offence to fail or to refuse, without reasonable excuse, to give required information, or to give false or misleading information, such offence to be punishable with up to five years imprisonment on conviction or indictment.

Subsection (3) provides that a person must be told in ordinary language what the effect of failure or refusal might be. In the absence of such a caution, the section does not take effect.

Subsection (4) provides that any information given by a person under the section will not be used against him or against his spouse except in proceedings relating to an offence under the section, that would be giving false or misleading information. The need for the section is fairly obvious.

Dr. Woods

Basically we welcome the principle and the intent of the section. It deals with withholding information in regard to firearms or ammunition. It is only the information that an informant will give that can not be used in evidence against him. The fact of his having a gun in his possession can still be used in evidence against him. One aspect of the section that is disturbing is that under subsection (4) a husband is being required under penalty of jail to inform on his wife. There is a similar type of provision in subsection (4) of section 15.

Mr. Noonan

(Limerick East): The provision is that the information shall not be admissible in evidence.

Dr. Woods

Subsection (1) of section 14 provides that:

Where a member of the Garda Síochána—

(a) finds a person in possession of any firearm or ammunition,

(b) has reasonable grounds for believing that the person is in possession of the firearm or ammunition in contravention of the criminal law, and

(c) informs that person of his belief,

he may require that person to give him any 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 and as to any previous dealings with it, whether by himself or by any other person.

The purpose of subsection (4) is to ensure that if and when a person gives such information against his spouse, the information will not be admissible in evidence against the spouse in any subsequent proceedings. There seems to be the specific requirement in regard to a spouse giving information.

Mr. Noonan

(Limerick East): He would be required to give information but not against his spouse. A spouse is not a compellable witness. Subsection (4) provides that 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 other than proceedings for an offence under subsection (2).

Dr. Woods

It is appreciated that the common law and the Statute law is that a person cannot be called on to give evidence against his or her spouse except where the offence might be committed by one against the other, but now by reason of this legislation will it not be the case that one can be compelled to inform regardless of whether the information relates to a spouse or any other person? Is that not the reason for the word "spouse" being mentioned specifically in subsection (4)? Will it not be the position that although the information cannot be used in evidence it can be used to find evidence?

Mr. Noonan

(Limerick East): Yes. The intent of the section is to get information as to the source of firearms. It will compel a person to give information simpliciter, to give an account of where they got the firearms. That would extend to a spouse, but the information could not be used subsequently to proceed against the person or the spouse.

Dr. Woods

I thank the Minister for the clarification but in effect a husband will be required under penalty of jail to inform on his wife. The information may not be used subsequently as evidence in court but the compulsion and the offence will still apply. That provision will apply both to firearms under this section and to larceny under section 15. If, for instance, a wife steals butter and her husband becomes aware of the fact, he will be compelled to inform on her. In that sense this represents a new development. I accept what the Minister says about a spouse not being called on to give evidence but we are providing here that spouses can be called upon to inform on each other. This is a development that would seem to undermine the traditional regard the law has had for the traditional privacy and the general bond between husband and wife. We could expect difficulty in implementing that provision in practice. In that sense it is very unhappy development.

The Minister seems to confirm that this is the case in relation to getting information and to the offence that is created in that situation. That would be bad law. It is probably an unprecedented intrusion by the State into the marriage situation. I should like to hear what the Minister has to say about that.

Mr. Noonan

(Limerick East): Under the terms of subsection (1), a garda must find a person in possession of firearms or ammunition and must then have reasonable grounds for believing that the firearms or ammunition are held illegally. He must inform the person of his belief and then require that person to give information as to how he came by the firearms. That requirement arises only when the first three requirements are fulfilled.

If a person is found in possession of a gun there will be an obligation on him to give an account of where he obtained that gun. On the question of whether, under subsection (2), it is an offence to fail or to refuse without reasonable excuse to give information, I could envisage a situation in which a court might decide that it was a reasonable excuse not to give information which would implicate a wife or husband as the case may be. In any case the information would not be admissible in evidence in any proceedings against the spouse concerned. I do not see the difficulty or the intrusion the Deputy speaks of. I would not like the provision to be part of general practice in law but we are talking specifically about firearms or, as in the next section, of the fencing or receiving of stolen goods. These are special cases that we should try to deal with.

Dr. Woods

We are creating a penalty if a person fails or refuses, without reasonable excuse, to give the information or gives information that he knows to be false or misleading. The subsection states:

... he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding twelve months or to both, or on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding five years or to both.

The Minister says it is reasonable to do this in the case of firearms and stolen property.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.