Dáil Éireann debate -
Wednesday, 22 Jan 1986

Vol. 363 No. 1

Private Members' Business. - Larceny (Amendment) Bill, 1985: Second Stage.

Dr. Woods

I move: "That the Bill be now read a Second Time."

The country and in particular the major cities and urban areas are plagued at present by an avalanche of crime, lawlessness and vandalism. The crimes of robbery and burglary have reached epidemic proportions. No house, business premises or home is safe. For many citizens their homes have become virtual fortresses to be guarded night and day from attack and break-in and these realities have been referred to in this House quite often in recent times. People have to leave somebody to mind their houses night and day. If a person goes to a funeral, a wedding or to any other occasion and where it might appear that their house will be empty, it is very likely that the premises will be broken into.

A new sense of anxiety and fear stalks the community. The knock on the door of the home of the elderly person or woman living alone now often means the beginning of a frightening experience. Even those people who have not yet fallen victim to this crime wave pay indirectly through a doubling of the cost of home and motor insurance and the cost of extra security. People throughout the community have to make special arrangements to protect their homes and businesses and they have to provide additional security which is now regarded as a normal cost and expense. Thus, the public are paying threefold for the Minister's failure to deal effectively with crime. We have to pay through income tax, we are the victims of crime and now we are paying extra insurance costs at all levels.

While the Minister for Justice speaks publicly about slight reductions in the overall level of indictable crime from the record level of 102, 387 in 1983, the real problem is the massive increase in the level of crime during the past six years. Total indictable crime rose from 62,000 in 1978 to 99,727 in 1984. That is taking a year after the peak year of 1983 when the figure was over 102,000.

The total increase in the general level of crime is something beyond party politics and it is something the Minister has been very slow to recoganise as being outside the ambit of party policies. It is something about which all of us are concerned. It is not a matter for public relations statements to the effect that there has been a 2.5 per cent or 2.6 per cent decrease in crime from the peak year of 1983. What we are faced with is the total level of crime as we experience it in society today and, as I have indicated, that has grown out of all proportion in the past six years.

The bulk of this crime is burglary and larceny which together account for the figure of 94,184 or 93 per cent of all crime. The following figures show how important this kind of crime is to the community. Total indictable crime is 97,727 and crimes of burglary, larceny and robbery amount to 94,184. That figure is made up of 35,228 burglaries, 1,129 aggravated burglaries, 1,1799 robberies, 79 robberies with arms and 55,947 larcenies. I mentioned these figures to show the extent to which the larceny and burglary affects the crime situation. It is the major content of indictable crime and it is clear that any steps that can be taken to deter or detect this kind of crime will have a major impact on the total level of crime experienced today. If we can reduce the level of larceny and burglary we will bring back sanity and peace to our streets and our homes.

One way to do this is to reduce the market for stolen goods. Of course there are other ways and we will discuss them on another day. The Minister will have our support in any measures he takes to reduce the general level of crimes but one way in which it can be done is to reduce the market for stolen goods. It is well known that crime today pays. It is unlikely that the offences will be detected. For instance, in the Dublin Metropolitan Area only one larceny in every four was detected in 1984 — the figure is 24 per cent. Some 75 per cent of larcenies went undetected and the perpetrators went scot-free. That is the reality. People are getting away with crime and it is paying them in money terms.

It is when we look at the value of these stolen goods that we realise the full extent of the business side of crime in Ireland today. It is big business. During the same six year period the total value of property stolen has increases steadily from £10.3 million in 1978 to £34.5 million in 1984. There has been a steady increase each year in that period. The sum increased from £10.3 million to £11.5 million. In 1981 the figure was £20 million, in 1982 it was £29 million, in 1983 some unusual items were included and the figure increased to £43 million and in 1984, which was the last year reported, the figure was £34.5 million.

The value of goods recovered amounted to only £2.57 million in 1984 or 7.5 per cent. The recovery rate is extremely small. Some £32 million of stolen goods were not recovered. They found their way into the legal market and the criminals involved had a lucrative turnover, a turnover that would tax all the energies of the major corporations to handle and to distribute such volume of business. The majority of burglaries today do not yield cash. The thief has to settle for goods such as jewellery, videos, stereos, electrical equipment, silverware and other valuables. If he is to continue in business he needs to find dishonest handlers or fences to receive the goods. Stolen goods must be stored, hidden and transported to their destination. They must be sold with the proceeds being laundered back into society, because the ultimate objective is to make money that can be used for other purposes.

The legislation to deal with this problem is well out of date and requires amendment. That is why Fianna Fáil have put forward this Larceny (Amendment) Bill. The Bill is designed to update the law in this important area of crime, to close the loopholes that have been identified, to strengthen the hand of the Garda in detecting and in prosecuting and to curb this incrative business of dealing in and handling stolen goods. We are seeking in the Bill to have some legislative action taken in this area, action that we believe would be helpful and which could have a major impact in reducing crime in this area and making such crime less worthwhile.

The Minister would be wise to stop tinkering with the crime statistics and to address the real problem. The value of stolen property has trebled and this has been reflected in the cost of insurance to the law abiding citizen. In this fourth year in office, the Minister is still found wanting with the public once again carrying the cost. The law which governs the crime of receiving stolen goods is the Larceny Act of 1916 but this has long been regarded as obsolete and ineffective by judges, lawyers, the Garda and undoubtedly by the criminal. One distinguished judge of the Circuit Court, Judge Frank Martin, when dealing with criminal cases highlighted repeatedly the inadequacies of section 33 of that Act and called for an amendment to create an offence of handling stolen goods. It is not as if this was something new. The Garda have been seeking increased powers in this area and the courts have been calling for action. Clearly, a general review and updating of our criminal law, with all its antiquated distinctions between felonies, misdemeanours, penal servitude and imprisonment, is long overdue. When we are returned to Government we will embark on such a process and it will include a codification of the criminal law in this area. However, the extent of the review required will mean that such a process will take some time but the criminal can be relied on to exploit to the full any delay. Any change that can render it easier for the Garda to deal with the current crisis and which can be enacted now ought to be enacted now. There is every reason for taking steps at this time to close these various loopholes.

There are a number of obvious deficiencies in the present law. While it is an offence to receive stolen property knowing it to have been stolen, it is not an offence to receive such property believing it to have been stolen. It is more difficult to prove that a person knew an item to be stolen than to prove that he believed the item was stolen. It is an offence only to receive the stolen property. It is not an offence to receive or handle the proceeds of the sale of stolen property. Surely the proceeds of the sale of stolen property should come within the ambit of the Act. In every receiving case the onus is on the prosecution to prove that a person found in the possession of stolen property knew at the time he received the property that it was stolen but that onus is very difficult to discharge.

To sustain a prosecution for receiving stolen property it is necessary to prove that the property was received by the accused into his possession. Under the present law only a very small proportion of the types of activity involved in the disposal of stolen property could lead to a successful prosecution.

The law provides that certain criminal activities, such as being in a building with intent to commit a felony, are offences only if committed at night and "night" is defined as being between the hours of 9 p.m. and 6 a.m. In the matter of stealing, even of house breaking, the offences can be committed readily by day and certainly outside the hours of 9 p.m. to 6 a.m. The specifying of those hours indicates the nature of society at the time the legislation was enacted. It is interesting that burglary was regarded then as the very serious crime of breaking and entering by night. Up to the last century the crime was punishable by death. The punishable by death aspect has been removed in the meantime but the by night aspect has remained as an anachronism in the law.

The law as enacted in 1916 did not provide for the modern sophisticated equipment used by burglars and thieves today nor did it envisage the use of such disguises as crash helmets and balaclavas.

Time has passed and the criminals in their own industry have used different methods and different equipment. To that extent the law is lagging far behind. This makes the job of the Garda extremely difficult in relation to proving that someone was engaged in the business of larceny or burglary and in particular that instruments carried by an accused were carried for the purpose of such an offence.

It is a matter for the House to provide remedies for the problem. The remedies we purpose are in relation, first, to the handling of stolen property. Our Bill proposes to remedy these deficiencies. We are proposing that the handling of stolen property, knowing or believing it to have been stolen, replace the present offence. This would penalise not only receivers but also those who convey stolen property to any place after a theft and also those who would take charge of or hide the property or those who would negotiate for the sale of it.

The present law provides only for the offence of stealing or receiving stolen property. There is no offence in regard either to handling the stolen goods or to handeling the proceeds of the sale of them. The new definition would include a person who in the course of his otherwise innocent employment criminally removes stolen property — for example, a dishonest driver employed by a dishonest haulier. If a driver becomes involved in a dishonest way in handling the goods and is an essential link in distributing them or in hiding them he would be commiting an offence. Our Bill proposes to bring within the ambit of the offence not only a person who knew that the goods he received were stolen but also the one who believed them to have been stolen.

In addition to extending the scope of the activity necessary to involve a criminal sanction we are proposing also to extend the scope of what constitutes stolen property. It is intolerable that a person who handles the proceeds of the sale of stolen property, knowing or believing he is doing just that, is immune from prosecution. Our Bill would close that loophole.

Another matter is the question of the burden of proof. Under our criminal law the onus of proving guilt rests, as a general rule, with the prosecution as opposed to the onus of establishing innocence resting with the defence. In general that is a good rule and should be preserved, but there are exceptions. For example, under section 28 of the present Larceny Act once it is proved that a person has been found by night in possession of housebreaking implements there is an onus on him to advance a lawful excuse for that possession. A similar situation exists in certain cases involving persons found in possession of instruments for use in forgery. Until the courts decided otherwise in 1966 in the case of the People versus Oglesby it was generally thought that a similar rule applied to persons found in possession of recently stolen goods. Obviously it was considered up to that time that the same rule applied where the goods were recently stolen. In the Oglesby case the accused was tried and convicted in the Dublin Circuit Court on a charge of receiving a tape recorder, the property of Córas Iompair Éireann, knowing it to have been stolen. The tape recorder had been removed from a car on 4 March 1965 and was found in the accused's house on 15 May 1965. The accused informed the Garda that he had purchased the recorder from a man in a pub. We have heard that story fairly often, or that something fell off the back of a lorry. The trial judge, Judge Conroy, gave a full direction to the jury on the burden of proof and informed the jury that if they rejected the explanation of the accused as to his possession of the recorder they were entitled to convict. On the application by the accused for leave to appeal it was held by the Court of Criminal Appeal that the trial judge's directions to the jury were unsatisfactory because his remarks made in the course of his charge might have caused the jury to think the issue which they had to try was whether they accepted or rejected the explanation given by the accused and that if they rejected it they should convict.

Decisions given before the year 1935 in relation to the so-called doctrine of recent possession in receiving cases, in so far as they decide that an onus of proof lies on an accused person in possession of goods which have been recently stolen to give an explanation or in so far as they decide that the jury may convict if they reject the explanation given, must now be regarded as incorrect. The Woolmington case in 1935 applies in that case — AC462.

The so-called doctrine of recent possession does not shift or discharge the onus which rests on the prosecution of proving that on all the evidence the accused was guilty.

The so-called doctrine of recent possession does not exist. It is a convenient way of referring to inferences of fact which, in the absence of a satisfactory explanation, may be drawn as a matter of common-sense from other facts.

When a person charged with receiving goods knowing them to be stolen gives an explanation in answer to the charge, it is the duty of the trial judge to state to the jury what the explanation was. He may then comment on it.

It is evident that the decision brought to an end reliance on the so-called doctrine of recent possession as a prosecution weapon in the fight against crime. This effectively brought about a major change as far as the powers of the Garda were concerned in relation to the doctrine of recent possession of stolen goods and adversely affected their position in relation to obtaining prosecutions. Still nothing has been done about that.

I retrieved from the Library the report on crime of the Commissioner of the Garda Síochána for the year ended 30 September 1966. It makes very interesting reading. The total number of offences recorded was 19,029, In 1983 the figure passed 100,000 and in 1984 the figure was marginally under 100,000 — over 99,000. That is the kind of change we see in our society when we walk in the streets. They may not have been quite so excited about larceny and the handling of stolen goods in the sixties and seventies but in recent times this has become a major problem, especially in urban areas. Perhaps that is why no action was taken in the early years. We are now in a totally different crime situation which cannot be dealt with by small changes here and there.

We are putting to the House the changes proposed by this Bill. Section 33 (a) (2) of this Bill goes some way to reinstate that doctrine. The essential ingredients are (a) property recently stolen, (b) found in the accused's possession, (c) without a satisfactory explanation. These three elements will now constitute sufficient evidence that an accused knew or believed the property to be stolen at the time he handled it. This provision would make common-sense. It would merely provide that once a prosecution have established in any handling case that the accused was found in possession of property recently stolen there would be an onus on the accused to provide a satisfactory explanation of how he came to be in possession of the property. Such a rule would not prejudice the innocent man. He would merely have to explain that when he obtained the property he did not know or believe it to be stolen. It would certainly facilitate the conviction of the guilty man who would not be able to furnish a plausible explanation which would establish his innocence. Only persons found in possession of recently stolen property would be affected. We are satisfied that the introduction of such a rule of evidence would be of enormous assistance to the Garda in their fight against those who seek to profit dishonestly from the misfortunes of others. This Bill contains such a proposal.

One blatant anachronism in the present Act is the assumption that robberies and burglaries are committed at night. It is an offence for a person to be found at night with his face blackened with the intent to commit such offences. It is an offence to be found at night with housebreaking implements. Regardless of what the situation was 70 years ago, crime is now an around-the-clock activity and probably more burglaries happen during the day than at night. The advent of the balaclava and the crash helmet has lessened the necessity to use shoe polish to blacken the face. Times have changed but the law has not. This Bill will remedy and update the law in these respects. Regardless of time of day or night it will be an offence for a person to be found with his face disguised or concealed in order to facilitate or evade the consequences of a robbery or burglary or other such offence. Possession of housebreaking implements — the crow, the pick lock and the jack of Victorian times — will still remain an offence. It will also be an offence to be found with modern, more sophisticated implements made or adapted for use in the commission of not only offences such as robberies and burglaries but also the unlawful taking of or interference with motor vehicles. That is why we have the references to sections 112 and 113 of the Road Traffic Act, 1961, in order to tie in the equipment which would be used in going about by day or by night for the breaking and entering and the stealing of goods from cars.

Tracing stolen property — section 33 (B) of the proposed amendments extends the limits to which stolen property may be traced. Under this section the definition of "stolen property" includes not alone stolen property but any transmutation of the stolen property. For example, a stolen painting may be swapped for a BMW car. At that stage, by virtue of the provisions of section 33 (B), the BMW will represent the stolen property in the hands of either the thief or the handler. All the provisions which would attach to the stolen property will attach to the property representing the stolen property, in this case the BMW. Explanation will be required as to how it came into the possession of the person charged. That is particularly important because we have seen many examples of people who organise and arrange crime who will not be caught with the stolen property itself in their possession. They will ensure that it is the proceeds or the realisation of the stolen property which they have. At present it is not an offence to have these proceeds in one's possession. In our Bill we are proposing that it should be an offence to have the proceeds and to have any transmutation of the stolen property included as such stolen property in the hands of the handlers, the fences or any of the people along the line, including of course the thief himself or indeed herself.

There is a great need for codification and change. The remaining sections of the Bill are of a technical nature covering consequential amendments and transitional provisions. The offence of handling is a completely new one. It is not contained in any of our Acts at present and would henceforth carry penalties. Therefore we are saying, in section 4.33 (2) (a) that a person guilty of handling stolen property shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both the fine and the imprisonment; or (b) on conviction on indictment to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 14 years, or to both the fine and imprisonment. Those are the penalties we propose for the handling offences, the handling of stolen goods or their proceeds.

We know that no amount of piecemeal amendment can replace an overall examination of the criminal law, even if limited to offences against property and its possession, which will result in a codification of the law. It is fair to say that the criminal law is now a labyrinth of Acts, amendment and amendment of amendment which taxes even the skills of those expert in its administration. The law, and in particular the criminal law, must be accessible to lawyer and criminal alike. It goes without saying that it must be accessible to the legislator without the need for experts to tread a clear passage to understanding. The way to this understanding is through codification.

The primary statute dealing with the stealing of property is the Larceny Act, 1916, which, to give it its full title: "An Act to solidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences." That Act has served the State well in the prosecution to conviction of persons committing any of the offences set out in that Act. Naturally the changes which have taken place in society in the 70 years of the statute's existence have rendered parts of that Act less effective, both as a result of the wiliness of the criminal mind as much as the changes in the judicial interpretation. The fact that the Act has lost some of its effectiveness in itself is sufficient reason to amend and update its provisions. The British Larceny Act had full force and effect in the United Kingdom until the passage of their Theft Act in 1968. They changed their Larceny Act in 1968 when they had growing problems at that time in relation to larceny and burglary.

As I have pointed out with the benefit of statistics, the problems here were not of such a great order at that time. Perhaps we could excuse those who went before us at that time for not changing this Act in that period. For example, the total number of offences of larceny in 1966 was 11,791. However, things have changed drastically since then. We have lagged very seriously behind, particularly bearing in mind the tremendous increase in this area of crime over the past five or six years. In the United Kingdom the Larceny Act had been found to be lacking. Rather than engage in piecemeal reform the United Kingdom Parliament replaced the Larceny Act with a new comprehensive Act. Therefore they introduced their Theft Act in 1968 and comprehensively updated the whole area of larceny.

The provisions of our Bill will not end the dishonest handling of stolen goods but will lead to the conviction of many criminals who are today virtually immune from prosecution, and who know it. These provisions will lead to the recovery of stolen goods and their proceeds. We are recovering approximately only 7½ per cent of stolen goods and that is not sufficient. The present situation, in which without an admission of guilt it is virtually impossible to convict the dishonest handler, particularly if he appears to be a pillar of society, cannot be allowed to continue.

Whether in Government or in Opposition Fianna Fáil would be failing in their duty to the people if we did not do all in our power to bring these criminals to justice. The Government, who have failed already to introduce the necessary legislation, will be compounding that failure if they obstruct our efforts. I ask them to put the national interest first, to leave aside party political considerations and to join us in the fight against crime. The Minister may well contend that there are some technical matters on which he would have particular views in relation to this Bill and that he would like to suggest amendments of one type or another. Any Bill that comes before this House is subjected to some form of amendment in the course of its passage. Indeed some of the Minister's previous Bill were subjected to a great deal of amendment. We all put a great deal of time into those amendments and supported the Minister in that work. If the Minister has any amendments we shall be quite happy to consider them and ascertain whether it is possible to reach agreement on the provisions of this Bill.

It is time we showed people outside this House that the whole question of crime — and this Bill must surely cover one of the major areas of crime affecting our society today — is being tackled. Surely we can work together in order to find a solution in this instance. We have put forward a proposal here, a Bill to deal with this problem which in our view would have a very great effect on crime today. We ask the Minister and the Government to give it their support and to join with us in defeating and reducing this kind of crime.

Minister for Justice (Mr. Noonan,

Limerick East): The Larceny Acts are rather technical and complex and the Government accept that the law in this area generally is in need of some modernisation. However, we are opposing this Bill, which is defective in a number of respects and could not easily be got into proper shape by putting down amendments.

In order to explain the reasons why the Government are opposing the Bill it is necessary to begin by outlining briefly what the Larceny Acts are about. Those Acts, principally the Larceny Act, 1916, contain a range of offences penalising dishonest conduct. These offences include various kinds of stealing, embezzlement, fraudulent conversion, obtaining property by false pretences, robbery, burglary, blackmail-type offences, receiving stolen property, and possession of housebreaking implements etc. by night.

Essentially what the present Bill proposes to do is to replace two sections of the 1916 Act by new sections dealing, first, with going equipped for and other acts preparatory to, stealing etc. and, second, with handling stolen property. The long title gives the impression that the scope of the Bill is considerably wider but this is in fact quite misleading. The long title states that one of the purposes of the Bill is "to reform the law in relation to the carrying out of robbery, burglary and other such offences and, in particular, the commission of these offences in daytime". The clear implication is that the Bill contains improvements of the law on robbery and burglary and that there is some gap in the law at the moment relating to the commission of those offences in the daytime. I want to make it quite clear that this Bill proposes to make no changes in the law on the offences of robbery and burglary and that the definition of those offences under the present law makes no distinction of any kind between conduct engaged in during the daytime and something done at night.

Indeed, the provisions of the Larceny Act relating to robbery and burglary are exceptional in that they have already been reformed quite recently. The Criminal Law (Jurisdiction) Act, 1976, has already modernised and simplified the law relating to robbery and burglary. It removed the old, technical distinctions between simple robbery and aggravated robbery and substituted a single, up-to-date offence of robbery. It also did away with the complications of the old law relating to burglary and housebreaking, with its outmoded technicalities as to what constituted "breaking" and its distinctions between breaking in the night and breaking in the day and between breaking into dwelling houses and breaking into other kinds of buildings. The 1976 Act replaced all this by two new, simplified offences of burglary and aggravated burglary. In short, as a result of the 1976 Act our present law on robbery and burglary offences, far from being in need of major reform, is satisfactory and modern and the present Bill proposes no reforms in it.

I turn now to the actual contents of the Bill. It proposes to reproduce with modifications two groups of offences under the Larceny Act, 1916. These are, first, the offences under section 28 of that Act of being found by night in possession of housebreaking implements etc. and, second, the offences under section 33 of receiving stolen property. The modifications consist chiefly of adopting provisions similar to those contained in the English Theft Act, 1968, dealing with the corresponding offences under that Act. These are the offences under section 25 of the 1968 Act relating to going equipped for stealing, which corresponds to section 28 of the 1916 Act, and section 22 of the 1968 Act relating to handling stolen goods which corresponds to section 23 of the 1916 Act. However, the efforts to incorporate into the 1916 Act provisions similar to those contained in the 1968 English Act have in many respects been less than successful and the text is very defective.

Let me say, at this point and before I go into any further detail, that the criticisms I am obliged to make are not meant as — and should not be interpreted as being — a reflection on the competence of those who produced the text. I would like to stress that point. The work involved in preparing Bills such as this is highly specialised and it is no reflection on people who can have little or no experience of that kind of work to say that this text does not in fact measure up to what is needed in a Bill of this kind.

It would take a disproportionate amount of work, and would divert resources away from the Government's existing legislative programme, to have the adequacy of the Bill analysed in complete detail, and that is especially so when, as I hope to explain later, that would be only part of the task that would have to be undertaken, and the less demanding and time-consuming part. However, a number of defects have become clear from a preliminary examination of its provisions. Some of those defects are of such a nature that it would be unlikely to be possible to proceed with the Bill in a form closely resembling its present form. There are also some points in the Bill that would need to be considered further before the Government could agree to legislation of this kind being proceeded with. A few examples will illustrate my point.

Section 3 of the Bill deals with the possession of equipment for stealing and related offences. It amends the Larceny Act, 1916, by substituting a new section for section 28. Subsection (1) of the new section 28, which substantially reproduces section 25(1) of the English Theft Act, 1968, provides that a person shall be guilty of an offence if, when not at his place of abode, he has with him articles for use in the course of or in connection with any offence of stealing etc. In the English Theft Act that offence of possession of equipment for stealing is the only offence that was created in substitution for those contained in section 28 of the 1916 Act. However, the Bill before the House goes on to provide for three other offences, which reproduce with slight modifications a number of distinct offences that are contained in the existing section 28. In the light of the new general offence provided for in subsection (1), the need for these other two offences is very doubtful. This is a situation where it is not possible to take the view that additional material, even if not required, could do no harm. It could, potentially, do great harm for it could affect the interpretation of what is in subsection (1). One point that arises in that context is how, in a case covered both by subsection (1) and subsection (4), the question of onus of proof, which differs in the two subsections, would be determined.

Subsection (4) makes it an offence for a person to be found having in his possession without lawful excuse any key, picklock, etc. or other instrument of housebreaking. This reproduces section 28(1) of the 1916 Act but extends it to daytime as well as night. This additional offence seems to be superfluous given that subsection (1) covers possession of any article for use in the course of burglary etc. Subsection (4) does differ from subsection (1) in that it puts on an accused person the onus of proving that he had a lawful excuse for possession of an instrument of housebreaking. Even though an identical provision was contained in the 1916 Act, this is something that would need to be examined very carefully in the present specific context before its reenactment should be decided upon. In any event, subsection (2) of section 28 would have the effect of requiring an accused to adduce evidence as to the innocence of his possession of an article once it was shown that it was an article made or adapted for use in stealing etc. In view of that provision, the need for the complete reversal of the onus of proof provided for in subsection (4) is not clear.

Subsection (3) of the proposed new section 28 makes it an offence for a person to be found having his face blackened or disguised or concealed for the purpose of facilitating the commission, or evading the lawful consequences of any offence of stealing, or indeed of any offence under the 1916 Act. It is difficult to envisage any real need for such an offence. Wearing a mask would be covered by the offence under subsection (1) of having an article for use in the course of or in connection with stealing. Other kinds of disguise are unlikely in this connection.

Subsection (5) of the new section 28 makes it an offence to be found in any building with intent to commit any offence therein. This would replace section 28(4) of the 1916 Act which is confined to being found by night and where the intent required is to commit a felony. The implications of transforming the existing offence so as to cover conduct in the daytime and to cover intent to commit any offence at all would need to be considered carefully. Would it cover certain forms of conduct which might not appropriately constitute an offence at all? Would it, for example, make it an offence to be found in one's place of employment with intent to make a false return there? On the face of it, the provision is at least capable of being interpreted in such a way that it might have some unintended effects in areas that are not in any way related to preparation to commit crimes against property or against the person.

In any event, the purpose of the provision, which presumably is to make it an offence to be present in a building with intent to commit such a crime, is met by the modernised offence of burglary which is provided for in the Criminal Law (Jurisdiction) Act, 1976 and which I have already mentioned. Under section 23A of the Larceny Act, 1916, as inserted by section 6 of the 1976 Act, a person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any of the following offences: stealing anything in the building or part of a building in question, or inflicted grievous bodily harm on any person therein, or raping any woman therein or doing unlawful damage to the building or anything therein. A person is also guilty of burglary if, having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict grievous bodily harm on any person therein. The maximum penalty for this offence is 14 year's imprisonment. If a person commits any burglary and at the time has with him any firearm or imitation firearm or any weapon of offence or any explosive, he is guilty of aggravated burglary and liable to imprisonment for life. In short, the mischief at which subsection (5) of the proposed section 28 is aimed is already adequately catered for by the 1976 Act.

There is one final point that I want to make about section 3 of the Bill. Some media coverage of the Bill following its publication conveyed the impression that, because section 28 of the 1916 Act is confined to situations where somebody is found at night, there is a complete gap in the law as regards possession of housebreaking implements in the daytime. However, there is an offence of possession of housebreaking implements contained in section 4 of the Vagrancy Act, 1824, that is not confined to possession by night. The maximum penalty for the offence under the 1824 Act is three months' imprisonment which is, of course, inadequate and very much less than the maximum penalties that are available under the 1916 Act. Nevertheless, it is not the position that there is a gap in the law at the moment such that there is no offence at all with which a person found in possession of housebreaking implements in the daytime can be charged.

I come now to section 4 of the Bill which substitutes three new sections for section 33 of the Larceny Act, 1916. It replaces the present offence of receiving stolen goods with a new offence of handling stolen goods which is very similar to the offence of handling provided for in the English Theft Act, 1968. There are two principal changes involved in the proposed new "handling" offence. The first is that it would cover certain other kinds of meddling with stolen property besides simply receiving it into one's possession. I believe that such an extension of the present offence is desirable. A proposed provision of a Criminal Law Bill which is being prepared at present would have a similar effect. The present Bill would also make it an offence for a person to handle stolen property not alone where he knows it to be stolen, as at present, but also where he believes it to be stolen. There is no doubt that a reform of the law of this kind is desirable and would be of assistance in the bringing of presecutions. It should be mentioned, though, that this change might not meet all the claims that are sometimes made for it. The impression is sometimes given that, if a reference to belief that the property was stolen was introduced into the definition of this offence, it would then be enough to prove that a person accused of "handling" suspected that the goods were stolen or deliberately closed his eyes to the obvious fact that they might have been. However, that is not the effect of the English section as it has been interpreted by the courts. That is not an objection to the proposed new section 33, because a reference to "belief" would extend the scope of the offence appreciably anyway. However, it is an aspect of the matter that would probably need to be examined more closely if such a provision were to be proceeded with.

There are technical defects in the new sections substituted by section 4 of the Bill. I will mention just a few of these by way of illustration.

Subsection (1) of the proposed new section 33 provides for a general offence of handling stolen property. In addition, subsection (3) makes special provision for the handling of stolen mail bags, postal packets or other property taken from the post. A provision of this kind was included in the 1916 Act but it seems to be inappropriate and unnecessary that a modern Bill should include special provision in relation to this kind of property. If any such provision were to be included, the Post Office Act, 1908, which includes related provisions, would have to be examined.

Subsection (5) of the proposed new section 33 reproduces with slight modifications an unsatisfactory provision in the 1916 Act in order to cover the "handling" in the State of property stolen etc., outside the State. There are a number of defects in this provision. For instance, it would mean that a person would be guilty of an offence of handling stolen property in this country even if the circumstances in which the property was obtained abroad in the first place would not have constituted an offence under the law of the foreign country concerned, just so long as they would have constituted theft or unlawful obtaining under Irish law. In other words, a person could be guilty of handling stolen property in Ireland even though the property was not stolen at all under the law of the place where it was originally obtained. Also subsection (5) provides that the offence under it is to be a felony or a misdemeanour depending on whether the original unlawful obtaining of the property would have been a felony or misdemeanour if it had happened in the State. There is a contradiction between this and section 5 of the Bill which says that offences under section 33 are felonies.

Subsection (2) of section 33 B of the Bill defines stolen property in such a way as to include property directly or indirectly representing that which was originally stolen. Section 46 (1) of the 1916 Act includes a defination of "property" which relates to the interpretation of the Act as a whole and accordingly would apply to the new section 33 B as well. That definition is inconsistent with the definition in subsection (2) of section 33 B.

I think I have said enough to make it clear that, laudable though the objectives of the present Bill may be, it suffers from a number of serious defects which make it unacceptable as it stands. I have not mentioned all the defects in it and those I have mentioned have been identified as a result of a necessarily incomplete examination. If a fuller examination were made I feel sure that some other difficulties would come to light.

It may be suggested that the Government, instead of opposing the Bill, should put down amendments to rectify these defects. I am afraid that it simply would not be possible to do that at the present time consistently with the Government's existing legislative aims in priority areas. I want to make it quite clear that the fact that it has been possible to identify a number of defects, some of them serious, in the Bill in the short period since its publication, does not mean that I would be in a position to come into the House in a further short period of time with legally accurate and satisfactory amendments which would put everything right with the Bill. It is one thing to examine a Bill and identify the ways in which it is defective. It is quite another day's work to come up with workable and precisely drafted solutions to the problem identified. The work that would be required to put the Bill right technically would really amount to re-drafting the Bill.

The law in this area is very technical, tied up as it is with concepts of the land law of property. The Theft Act of 1968 in England was hailed in its day, and rightly so, as major reform measure. However, I think it is fair to say that it has not been without its difficulties in operation because of the almost intractable nature of some of the problems that arise in this sphere of the law. It was in fact amended by another Theft Act in 1978. If the present Bill were to be adequately examined with a view to its being put into acceptable form, a considerable investment of resources would have to be made. Staff in my Department who are engaged on other urgent legislation would have to be switched to the research and other work that would be needed if the substance of this Bill was to be properly examined. As well as that, staff in the parliamentary draftsman's office would have to leave aside other work and take on this Bill. All Governments have had the drafting of legislation done on a centralised basis by specialised draftsmen. The reason for this is that it enables special drafting expertise to be built up and that makes for greater consistency in drafting approach and technique across the whole range of legislation being promoted by different Departments.

If the Government were to divert the resources that would be needed to deal adequately with the Bill at the present time, this would upset the Government's own legislative programme. The legislation that is in the pipeline at the moment contains the measures that the Government regard as of most immediate priority. The Bills I myself have on hands at the moment include the Bills on Garda complaints, telephone tapping and domicile and the proposed Bills on the abolition of juries in personal injury actions and on liquor licensing. It would be quite unacceptable that progress on these urgent measures should be delayed by taking the present Bill on board at this stage.

It will be clear from all this why it has long been a tradition with Governments generally not to support Private Members' Bills unless in exceptional circumstances when the subject matter is suitable for such an approach. The present Bill, involving as it does the complex and technical area of the Larceny Acts, is not in my view a suitable case for Private Members' Bill treatment at all. I must emphasise, however, that I intend to bring forward legislation on the subject matter of the Larceny Acts at the first possible opportunity. This would probably involve a more wideranging review of those Acts than is undertaken in this Bill. I am not saying that that review must necessarily be a comprehensive one in the first instance, since that might be, and I suspect would be, an example of the best being the enemy of the good, but, as I have said, it would probably cover more than this Bill. In principle, at all events, offences of theft, fraud and blackmail should also be covered since they too are in need of reform and modernisation but we shall have to see how far, in the interests of practical progress, it is useful to go intially. The Government are currently engaged in an assessment of their priorities in relation to future law reform work and in this context I am looking at the possibility of an early review of the larceny Acts. Meanwhile, it is surely inappropriate and wasteful to legislate on two aspects of the subject in isolation.

I should also point out that a number of initiatives have already been taken which will help to counteract the particular kind of crime which the present Bill attempts to deal with. The enactment of the Criminal Justice Act, 1984, is concrete evidence of the Government's concern to provide the right legislative response to the difficult crime situation we face today. That Act addressed itself to the principal areas that were causing concern in our existing law relating to the investigation of crime and the trial and conviction of offenders. Moreover, it did so in a way that was balanced and fair and posed no threat to fundamental rights and liberties. There is a special provision in the Act to tackle the particular problem of possession of stolen property. There are also some provisions of general application which will be effective in dealing with those who engage in offences such as robbery, burglary, or receiving.

Section 16 of the Criminal Justice Act, which relates to the witholding of information about stolen property, will strengthen the law to deal with persons found in possession of stolen property. Under the Act a person found in possession of property believed to have been stolen will be guilty of an offence if he fails or refuses, without reasonable excuse, to give an account to a garda who questions him as to how he came by that property. This new provision will serve two purposes. First, it will allow effective action to be taken against persons who are found in possession of stolen property but against whom there may be insufficient evidence to ground a charge for either larceny or receiving. Second, it will enable the Garda to get at those whose business is the trade in stolen property.

The Act also contains provisions which allow a court or jury to draw appropriate inferences from the failure or refusal of a person who has been arrested to account, when asked by a garda, for objects, substances etc., found in his possession or for his presence at a particular place at or about the time the offence for which he was arrested was committed. Those provisions have an application to persons who commit thefts or burglaries or receive stolen property. Any failure on their part to account for items in their possession, such as housebreaking implements or stolen goods, or for their presence near the scene of a crime, will be capable of giving rise to adverse inferences and strengthening the cases against them.

The Act furthermore provides for a new power of detention which allows the Garda to detain, for up to six hours, a person arrested without warrant, on suspicion of having committed an offence carrying a penalty of at least five years' imprisonment. This period of detention may be extended on the authority of a Garda superintendent for a further period of six hours. The new power of detention will, of course, apply to persons suspected by the Garda of the offences of stealing etc., and of receiving stolen property.

The new detention provision will allow the Garda an opportunity to question persons suspected of these offences. The Garda are also being empowered to photograph and fingerprint such persons and to carry out certain forensic tests. The evidence obtained from questioning and fingerprinting etc., I believe will help to improve the rate of detection of offences of this kind. The power to fingerprint suspects should help in linking suspects to particular crimes.

Certain other provisions of the Act, such as the strengthening of the law in relation to offences committed on bail, the changes in trial procedure and the Garda's new power to fingerprint persons convicted of an offence or dealt with under the Probation Act, will also have an effect, although perhaps more indirectly, on this type of crime.

Some of the provisions of the Act to which I have referred are already in force but the rest await the establishment of the Garda Síochána Complaints Board and the making of regulations on the treatment of persons in custody. When the Act as a whole is in operation I believe that it will make a big contribution to the prevention and detection of theft, burglary, etc. My immediate priority, therefore, where legislation to deal with this sort of crime is concerned, is to get the Act into force by promoting the Garda Síochána (Complaints) Bill, 1985, and the treatment regulations, which are at a very advanced stage of preparation.

Some very important initiatives on the policing front have been taken recently to tackle the problem of thefts and burglaries. First, there is the neighbourhood watch scheme. I have already had occasion to speak at some length in the House about what is involved in this scheme and it is unnecessary to go into it in detail again now. There are more than 120 such schemes at various stages of implementation in urban areas and I understand that the Garda are very satisfied with the way they are working. The response of the public to the scheme also has been very positive. It is too early yet to be able to give any proper assessment of the result the system is achieving. But I am confident that it will help to reduce the incidence of car thefts and burglaries in the areas where it is operating. The Garda also have plans to introduce a system of marking of property in the context of neighbourhood watch. This would facilitate the recovery of stolen property and would be a useful weapon against receivers.

Another service that is being provided by the Garda is the Crime Prevention Advisory Service, which is a special unit within the Garda with overall responsibility for crime prevention. Adequate security measures and increased vigilance by property owners are important elements in the fight against burglary and robbery. The Crime Prevention Advisory Service is available to give advice to householders and business people about how to protect their property.

Other measures are being pursued to involve the community at large in crime prevention activities and to forge closer links between the Garda and local communities. A policy of community policing is being formulated. Some experiments have been carried out with a view to establishing police "clinics" in areas at a distance from a Garda station. Such clinics would involve the attendance of a garda at a local centre for a fixed period one or two days a week and would give the public a convenient means of contacting the Garda, for example to report crime, discuss aspects of local policing, seek crime prevention advice and so on. The Garda authorities are considering the development of this type of service.

As far as car thefts are concerned, the provision of extra prison space to accommodate so-called "joyriders" and take them out of circulation has had a decided impact on the incidence of this particular kind of crime. Provisional statistics for the first 11 months of 1985 show that the total number of unlawful takings of vehicles are down by about 22 per cent as compared with the equivalent period in 1984, while burglaries and robberies showed a drop of about 8.5 per cent. This trend gives room for cautious optimism.

The Government's response, therefore, to the problem of crimes such as theft and burglary, has been vigorous and varied. The Criminal Justice Act, 1984, has made major reforms of criminal law and procedure and various operational and enforcement measures have been taken of the kind I have mentioned. The Bill before the House attempts to widen somewhat the scope of the offences of possession of housebreaking implements, etc. and of receiving stolen goods.

The Government consider that these changes, while not constituting major reforms of the Larceny Acts, are desirable in themselves. We intend to bring forward a wider reforming measure in this area as soon as other priorities and available resources allow. Unfortunately, this Bill suffers from so many defects, a number of them serious, that it is not acceptable as it stands. To put it right by way of Government amendments would take a lot of work and would mean that resources would have to be diverted from the other more immediately urgent items on the Government's legislative programme. Accordingly, I must oppose this Bill.

Mr. Briscoe

I must confess that I was disappointed at the Minister's response to our Bill. I am sure Deputy Woods is prepared to accept that everything in the Bill is not perfect and that he would require experts in the Department of Justice to assist him, but nevertheless he has made an attempt to do something about a problem which is causing great concern among the public. I was pleased that the Minister conceded that the measures proposed in the Bill to deal with those found guilty of handling stolen goods have merit. I expect our Bill to be defeated but I hope its introduction will mean that the Minister will speed up the preparation of the Bill he mentioned. Something positive must be done to deal with the crime wave. I feel strongly about the amount of crime throughout the country and I avail of every opportunity possible to speak out against it. The amount of crime is staggering.

Deputy Woods told the House that the number of indictable crimes reported in 1984 was 97,727 which included 94,184 burglaries, larcenies and robberies. That figure must highlight the necessity to bring to justice the burglars, receivers and handlers of stolen property. We have a national emergency on our hands as far as crime is concerned. Today, in response to my question about the number of incidents where guns were used in the last ten years, the Minister for Justice, in the course of a written reply, informed me that guns were used in most robberies. According to the Minister there were 46 armed aggravated burglaries in 1980 — I was disappointed that the Minister confined figures to the last five years — that the figure for 1981 was 81, had risen to 232 by 1982 and by 1983 had risen to 341. In 1984, the last year for which figures are available, the figure rose to 361. In 1980 there were 194 armed robberies; 306 in 1981 and the figure fell in 1982. I expect that the reason for the reduction was the decision to seek the help of the Defence Forces in the transport of cash. The total number of burglaries in 1980 was 331 and that figure rose to 566 in 1984. I am sure that the figure for last year was higher.

According to Deputy Woods, of the total number of indictable crimes, aggravated burglary accounted for 1,129 of which 361 involved the use of firearms. I accept that unemployment and other factors can be blamed for the increase in the crime wave and that we must remember that we are living in a consumer society. In the thirties and forties there were very few televisions and no video machines, but I understand that there are 250,000 video recorders here now. In the thirties people did not have items that were worth stealing. Some years ago a person said that Midas was very rich because he did not have anything to spend his money on. He would have plenty of things to spend his money on today. I have often asked why Governments have not taken action to stop burglaries and I have reached the conclusion that the reason is that there is no loss to the State involved in house burglaries.

The Minister told the House that the number of robberies in 1985 showed a drop of 8½ per cent compared to the previous year, but it is my view that crime is on the increase. Many robberies are not reported because people are fed up. I am talking about people who have been robbed six and seven times. It would be interesting to know if the Department keep statistics on how often houses are broken into. People have the awful feeling that efforts are not being made to deal with crime. Their attitude is that once an object is stolen they will not see it again. It is their view that there is no longer a sense of urgency when they report robberies to the Garda. We need tighter laws to deal with what is in effect a warlike situation.

I do not hold any brief for criminals and those who come to my clinics requesting assistance to get somebody off a charge have been told to see some public representatives. The Minister will agree that he has not received any letter from me seeking to have a prison sentence mitigated.

I am very discouraged at the response to the speech by Deputy Woods. I commend him for introducing this Bill as there is a tremendous need for it. We must adopt a Bill of this nature pretty quickly. The Minister said that there are many Bills coming before the House. Important sections of the Criminal Justice Act cannot come into force until the complaints tribunal is set up. In the meantime people all over the country are suffering terribly and looking for easement.

The Government should as their top priority declare war on crime, because no one today can leave their homes with an easy mind. People are terrified to go on holidays in case their homes are robbed. Of course, criminals nowadays do not care if people are in the homes they intend to rob, they just tie them up and rob the house. There is a terrible viciousness in the community. Unfortunately, because of the response of the Minister to the Bill, for the foreseeable future the receivers and handlers of stolen goods will get away with their crimes. Even if it is only a stopgap, we should amend legislation to cater for this emergency. In Britain they brought in an Act in 1968 and another in 1978 but we have not done anything. In other countries the situation may be serious but not desperate, in Ireland the situation can be desperate but never serious.

I meet people from time to time and I have to try to explain why the law is unable to protect them. I have always stated that the first obligation of the State is to protect the right of the individual, not just on the streets but also in their homes. We are failing miserably in that task. I went to a meeting a year or so ago and I was hurt very deeply when a woman said that she hoped my house would be robbed so that I would know how it felt. I said that that was a horrible thing to wish on anyone, but I understood the pain which brought that remark to her lips. I feel for these people and I know that they can only take it for a certain amount of time. More and more people will take the law into their own hands. We have seen the growth of the concerned parents' group who are a front for Sinn Féin, as the Minister for Justice also stated. Many well intentioned people have joined them and they may well grow in strength. I love our democratic system and it terrifies me to think that people will set themselves up as avengers to punish those who are avoiding prison because of a technicality in the law. The figures for indictable offences — 97,727 — are frightening.

I do not want to be unfair to the Minister but he tried to trivialise the Bill. He gave a condescending pat on the back to the well-intentioned people who prepared it, although I know that they worked long and hard in ensuring that it would be acceptable. The Minister should have said that if they brought back the Bill in a month or so that he would have amended it. The people know that the Government are not prepared to come to grips with the crime wave. The Minister pointed out that anyone found in possession of house breaking implements during the hours of daylight could be prosecuted under the Vagrancy Act but he admitted that they would only get three months' imprisonment, which is nothing to these people. Some of these Acts should be done away with and their powers transferred to a Criminal Justice Bill which should incorporate an updated Larceny Bill. It is ridiculous to be working under the provisions of the 1916 Act. Is it any wonder we have reached the stage we are at?

The Minister said that there was no doubt that a reform of the law of this kind is desirable and would be of assistance in the bringing of prosecutions. The Minister and the Government know this. My colleague, Deputy Gay Mitchell, sits with me on the Committee on Crime, Lawlessness and Vandalism and he knows the problems involved. I find it very difficult to meet my constituents because we are not facing up to the emergency in regard to crime. We wait until the fire is burning before we try to put it out.

The Minister also said that it may be suggested that the Government, instead of opposing the Bill, should put down amendments to rectify these defects but that it would not be possible to do that at present and be consistent with the Government's existing legislative aims in priority areas. What is the greatest priority? I should like to see a poll taken on what people think of law and order. That is the biggest issue, because people want the Government to ensure that criminals are caught. The Garda know who they are and it is very frustrating for them to see them walking free. The old legislation is almost worthless and it has now reached the stage where only very stupid criminals are caught.

I ask the Minister to be more specific about when legislation will be introduced to ameliorate the situation. We are doing something in Opposition to help the Government as best we can. We are pin-pointing the areas where we consider the greatest public concern exists. A Government should always pay very careful attention to the Bills introduced by an Opposition because they are echoing the voice of the people.

Debate adjourned.