Dáil Éireann debate -
Wednesday, 5 Feb 1986

Vol. 363 No. 8

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

Question again proposed: "That the Bill be now read a Second Time."

An Ceann Comhairle

Deputy Lyons has ten minutes.

Mr. Lyons

I dtosach ní mór dom cuidiú leis an mBille seo atá os comhair an Tí. In welcoming the Bill in the few minutes made available to me, which I appreciate in the light of the many Members of the House who wish to contribute to the aspect of crime and larceny which is the subject matter of the Bill before the House, suffice it to say that the need for this Bill is more than obvious to every citizen. Such need is made more urgent by the widespread volume of crime, lawlessness and vandalism which has increased at alarming rates in recent years and is continuing to grow despite the claims by the Minister, Deputy Noonan, in his many utterances about the reduction in crime which he has emphasised over and over again. My contention is that he may believe it, but nobody else believes that such is the position.

Surely the reality is evidenced by the sense of fear and concern in the community indicated by all the counter actions being taken by people, actions being encouraged to be taken to protect homes and property. Is it not true that the crime situation has produced the end result of firms such as the burglar alarm and security business being one of the few businesses showing a growth rate, the cost of which is another tax on people? We have also the increasing cost of home and motor insurance all arising from the growth in crime which the Minister is telling the nation is on the decline, decreasing. That alone is a contradiction of what the Minister has been saying.

Let me point out what has already been said in the debate, that in a six year period the number of indictable crimes rose from 62,000 to 99,727 in 1984. Those are the figures nationally. Let me give the figures for the Cork city region where we had again the dubious distinction, like the closures and liquidations, of having to endure the scourge of larceny, thievery and crime over recent years. In 1983 the figure for larceny was 3,001. In 1984, just one year later, that had increased to 4,000, an increase of 33 per cent. The figure for burglaries in 1983 in Cork city was 2,192 and in 1984 that had increased to 2,614 which was about a 20 per cent increase.

Burglary and larceny are the principal elements addressed in this Bill and account for 93 per cent of all crime. I have quoted figures and I suggest to the House that those figures, like the figures for unemployment, are not really the total figure of crimes being committed. We are all well aware that in addition to the figures quoted, which are produced by the CSO and the Garda authorities, many more crimes of lesser and greater degree are not reported at all and are not listed among the CSO or Garda figures. The Minister must — or should — know, as I am sure he does, and I do from contact with my constituents, about this aspect of crime, that is, the many crimes committed and not reported. How often when we have talked with constituents about this have they asked us: what is the point? They say that the gardaí have enough to do already and more than enough to do. We hear such comments, and nevertheless the Minister tells us in his opening comments on this Bill that, apart from the terms of the Bill——

An Ceann Comhairle

The Deputy has less than four minutes.

Mr. Lyons

Deterrent to criminal activity is not sufficient. Acts of the Oireachtas are out of date and have not been amended to take account of the serious situation we are addressing in this Bill. I compliment my colleague on the introduction of the Bill and I condemn the attitude taken to it by the Minister, Deputy Noonan. If the introduction of this Bill does nothing other than prompt the Government into action and to take cognisance of what we are about, and if the Minister with all the advice of his Department and the Government with all their supposed talents act responsibly in the face of escalating crime, that will be welcome.

In the limited time available to me I must motor on. The figures quoted here indicate the extent of burglary, larceny, robbery and related offences in pursuance of these crimes. It is clear that any steps that can be taken must be taken to detect and deter this type of crime and thus have a much sought impact on the total level of crime, lawlessness and vandalism. We must strive to bring back to our community the sanity and peace that our homes, streets and property once enjoyed. The Minister's utterances, aided by selective statistics, that crime is on the wane are as acceptable as the failure of his guarantees given at the setting up of custodial care on Spike Island. The assurances he gave, tempered with no small arrogance to the Members of this Chamber and to the Prison Officer's Association at that time, were that as a result of his decision it would be safer to park your car anywhere, you would not be robbed, Spike Island was the answer. However, the nation will always remember his attitude, his words and his failures, and many people indicated the error of his proposal. Time does not permit me to elaborate on this if, indeed, elaboration is needed.

Spike Island was no deterrent. If, as the Minister indicated in this debate, our Bill is inadequate he should take on the initiative that the Bill proposes, amend where the Government or he think necessary and give due recognition to its introduction. As is customary in our history, the people in time of need, whatever way that need may manifest itself, rely on Fianna Fáil to come to the rescue, as we have done with the introduction of this Bill on the matter of larceny, burglary and crime.

Mention must be made of a monumental financial and social blunder which is fraught with physical as well as financial perils. I refer to the budget stroke by the Government in imposing tax on the interest of all savings. I recall last year that we all encouraged people keeping money in their homes, especially those who were vulnerable to attack, to put their money in banks and other financial institutions. Special concessions and encouragement were given to them. Now, at one fell swoop, they are again wide open to the temptation to retain their savings at home, with very serious and dangerous possibilities of attack.

Minister of State at the Department of Justice (Mrs. Fennell)

I welcome the opportunity to contribute to the debate this evening. The debate that has taken place on this Bill has demonstrated that there is a good deal of common ground between the Government and Opposition. There is I believe, a general acceptance in the House that an updating of the law on larceny would be desirable. The present Bill is designed to strengthen the law in relation to two offences under the Larceny Act, 1916 — those concerned with the possession of housebreaking implements and receiving stolen property. The Minister for Justice in his contribution, has accepted that the law in this regard could usefully be strengthened but has indicated that it would also probably be necessary for an amending Bill to deal with certain other offences under the Act. The Minister has undertaken to bring forward an appropriate Bill at the earliest possible opportunity consistent with the Government's existing legislative priorities.

The reason the Government are opposing the Bill at this stage is that it is defective in a number of respects. Those defects have already been dealt with in considerable detail by the Minister for Justice and it is therefore unnecessary for me to deal with them except to say that they are of such a nature as not to be amenable to correction by way of amendment. It would be necessary for this Bill to be redrafted before it could be supported by the Government and if the Government were to undertake that responsibility now it would mean a delay in relation to other important legislative measures.

The Government's most immediate legislative priority in the fight against crime is to ensure that those provisions of the Criminal Justice Act not yet in force are brought into operation at the earliest possible opportunity. That requires the enactment of the Garda Síochána (Complaints) Bill and the making of the new regulations on the treatment of persons in custody in Garda stations. I am pleased to be able to say that the debate on the Complaints Bill has recently got under way and that the Minister hopes to publish his proposals for the treatment regulations in the near future.

While the Government accept the principle of the Bill, I must take issue with some of the comments and assertions which have been made in relation to it by the Opposition. There is a suggestion in the Long Title of the Bill that it amends the law in relation to the offences of robbery and burglary. The present Bill does not make any change in the law in regard to these offences, but is confined to those offences concerned with possession of housebreaking implements and receiving stolen goods. The law dealing with the offences of robbery and burglary has already been modernised by the Criminal Law (Jurisdiction) Act, 1976.

I would like to deal next with what this Bill does aim to do. It proposes, as I have said, to replace the offence of receiving stolen goods with a new offence of handling stolen property. The implication in many of the contributions from the Opposition benches was that the law on receiving stolen property as it exists at present is a dead letter. While we all accept that the law requires strengthening, it is not true to suggest that persons who receive stolen property are in some way immune from prosecution. That is simply not the case. Prosecutions are and continue to be taken against persons suspected of this offence. Convictions are also secured in the majority of cases where proceedings are instituted. The Garda Report on Crime for 1984 shows that proceedings were commenced in respect of 990 offences of receiving under section 33 of the Larceny Act. Of the 438 cases which were dealt with by the courts during the year, convictions were recorded or the case was held proved without proceeding to conviction in 357 of those cases. These figures represent a successful prosecution rate of 81 per cent. The position in 1983 was similiar. Prosecutions were successfully taken in 392 of the 465 cases dealt with by the courts that year. It is not correct therefore to suggest that the present law creates insurmountable problems for a successful prosecution.

Deputy Woods also suggested that the existing law in relation to receiving stolen property was defective because it failed to make the receiving of "the proceeds" of stolen property an offence. To overcome this problem he proposed a new definition of property which is contained in subsection (2) of the proposed new section 33B in section 4 of the Bill.

The effect of the amendment would not — as Deputy Woods has suggested — be to extend the scope of the offence of receiving but to restrict it. The 1916 Act already contains a definition of "property" in section 46(1) which applies to all offences under the Act including the offence of receiving and which includes:

not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise...

If Deputy Woods' intention was to replace this definition, the effect of his amendment would be to limit the extent to which proceeds acquire the character of stolen goods. I accept that such a limitation may well be desirable but the point remains that the existing offence of receiving does extend to the proceeds of stolen goods, contrary to what Deputy Woods has said.

One might also suspect from Deputy Woods' contribution that the effect of the Court of Criminal Appeal's decision in the People (Attorney General) v. Oglesby, 1966 I.R. 162 was to radically alter the law in relation to the offence of receiving stolen goods. That was not the case, as Deputy Taylor pointed out in his contribution. What the Court of Criminal Appeal did in that case was to confirm the application of the general principle that the onus of proof always lies with the prosecution in cases involving receiving in the same way as it applies to other criminal offences. The court in confirming that principle rejected the proposition that the possession of recently stolen goods by an accused person casts an onus on him or her to give an explanation or that the jury are entitled to convict him or her of receiving the goods solely because they reject the explanation. That does not mean that a jury are not entitled to draw an adverse inference in such circumstances — a jury may infer guilty knowledge in the absence of any explanation or where they do not accept the explanation given, provided that they are satisfied on all the evidence of the guilt of the accused. Such inferences can still are drawn as a matter of common sense from other facts.

The decision in the Oglesby case is consistent with earlier decisions of the courts both here and in England. That is clear from the judgment itself. Kenny J., for example, quoted the following statement of Reading L.C.J. in R v. Schama and Abramovitch, 11 Cr. App. R. 45, a case decided in 1914,

Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes, it always rests on the prosecution.

That statement of the law had already been approved by the High Court here in the Attorney General (Comer) v Shorten, 1961 I.R. 304. These decisions are also consistent with the way in which the law on handling has been applied in England under the 1968 Theft Act. That is not to say that some change in the law in regard to the onus of proof in receiving cases might not be desirable. This is a matter which the Government would obviously like to consider in framing amending legislation.

I should also mention at this point that the law in relation to those found in possession of stolen property has already been strengthened — a fact which Opposition speakers largely chose to ignore. Under section 16 of the Criminal Justice Act, 1984, a person found in possession of property reasonably believed to have been stolen will be guilty of an offence if he or she fails or refuses, without a reasonable excuse, to disclose to a garda who questions him or her the source of that property.

Deputy Gene Fitzgerald — who did mention this provision — suggested, however, that it would be of no benefit to the Garda. Section 16 is not intended for the type of case he mentioned but for circumstances where the Garda do not or are unlikely to have sufficient evidence for a prosecution for receiving. Section 16 will then allow the Garda either to establish the source of the stolen goods or, where the person fails or refuses to divulge that source, to take a prosecution for witholding information. In that way the section will allow proceedings to be taken against persons against whom there would be insufficient evidence to justify a prosecution at present, while also being of assistance in identifying those whose business is the trade in stolen property.

The public will, I would submit, be better served at this point in time if this and the other provisions of the Criminal Justice Act which remain to be brought into operation are brought into force rather than by having resources in the Department of Justice diverted to the preparation of new legislative measures whose purpose is essentially the same.

I do not propose to deal this evening with the provision in the Bill dealing with possession of house breaking implements. The points raised on that have already been extensively covered by the Minister for Justice and the Minister of State at the Department of Education and at the Department of Labour. There is, however, one final point I would like to make in relation to the debate that has taken place on this measure. Considerable stress was placed in contributions from both sides of the House on the fact that offences against property represent the vast bulk of indictable crime committed in this country. We are not, however, unique in that regard. The growth in crime against property is attributable far more to the transformation of this country to a modern consumer society than to any defect in the criminal law.

I should stress that I do not intend these or any of my earlier comments to suggest that the Government do not see any need for the law on larceny to be further strengthened. Amendments of the law on the lines proposed in this Bill may well be desirable and I can assure the House that the changes proposed will be among the matters considered by the Minister for Justice in preparing amending legislation.

It is not altogether surprising, I suppose, that the Opposition in the course of this debate, including Deputy Lyons who spoke before me, have failed to give the Government any credit for the measures they have taken to tackle the problem of crime in our society. Those measures do nevertheless deserve to be mentioned because they are concrete evidence of the Government's commitment to deal with the problem of crime. The measures taken by the Government include the strengthening of the Garda by way of extra manpower, new technology and additional powers with which to investigate serious crime.

Under this Government there has been a net increase of 700 in the strength of the Garda Síochána. The current strength of the force at 11,400 is at its highest level ever and the Government are committed to maintaining it at that strength. The Government's commitment to the Garda Síochána is also evidenced by the continued investment in the most up to date technology for the force in order, for example, to provide a national communications network and to extend the computer facilities at its disposal. Equally important has been the determination of the Government to ensure that the Garda should have adequate powers to investigate serious crime. The Criminal Justice Act, 1984, a measure which was introduced in the Dáil within a year of the Government taking office, ensures that this will be the case.

Under that Act the Garda for the first time will have a general right to detain for questioning persons whom they suspect of serious offences. The Act also enables the Garda to fingerprint and to carry out certain forensic tests on such persons. The new powers of detention under the Act and the new offence of withholding information about stolen property to which I have already referred will be of particular assistance to the Garda in dealing with those persons who engage in offences such as burglary, robbery and other forms of larceny. Other provisions of the Act should also contribute to an improvement in this regard. These include the provision dealing with the inferences which a court or jury may draw from the failure of an accused person to account for objects or marks or for his presence at a particular place at or about the time an offence has been committed, the power to fingerprint persons convicted of an offence or dealt with under the Probation Act and the changes in the law on bail.

The Garda have been encouraging also the community itself to become involved in the fight against crime through the establishment of the Neighbourhood Watch and Community Alert schemes. The response of the public to these initiatives has been very positive. These schemes offer considerable scope for tackling the problems of burglaries and larcenies in local communities. If the Garda are to combat these crimes successfully they must have the full co-operation and assistance of the community. The Garda should not be expected to act outside or independent of the community they serve. The community at large are the eyes and ears of the force; Neighbourhood Watch and Community Alert give the public a structure through which they can perform this important role.

These are some of the measures which this Government have taken to deal with crime. The Government will continue to give the fight against crime a high priority and to take the steps which they believe are necessary to respond to the challenge it poses.

I would like to repeat that the Government in common with the Opposition regard a reform and strengthening of the law in relation to offences against property as desirable. The Minister for Justice has already stated that he will consider the possibility of an early review of the Larceny Acts in the context of the Government's priorities in relation to future law reform work as soon as the availability of resources allows. Accordingly, I must recommend that this Bill be opposed.

Mr. Hyland

I wish to acknowledge the contributions of Deputies from both sides, all of which were helpful and objective. It is worth recording that all speakers in the debate agree that there is need for urgent legislation in this area.

However, it was disappointing that some Government speakers tried to belittle the efforts of Fianna Fáil in trying to have the law strengthened in this very pressing area of national administration, while accusing us of copying legislation from another jurisdiction. I refer to the contribution of Deputy Birmingham yesterday when, in the absence of any objective suggestion, he tried to castigate this party for endeavouring to assist the Government in regard to a matter that has been neglected sadly in the past four years. In our efforts to assist the Goverment in this matter we examined the legislation of a number of European countries and, therefore, though perhaps it is not technically perfect in every respect, this Bill is directed towards the protection of the property and lives of our people. For that reason the Government's negative attitude to this Bill is to be regretted. If I were to ask Deputies on the far side of the House in which area has there been the greatest failure over the past four years they would readily identify the areas of unemployment and law and order and everybody on this side of the House would agree with them. That view would be more than endorsed by all the people from the youngest to the old and infirm who live in fear and insecurity. This fear and insecurity is not now confined to our streets but has entered into what was regarded as the relatively safe haven of our homes.

I will not confuse the House with statistics in relation to the escalating crime wave. They are available for those who want to study them. The Minister of State's academic reply to this debate and her quotation of examples of court cases and High Court decisions of 50 and 60 years ago does not help the people looking to this House for protection. The Minister of State and the Government generally would have been better employed in trying to find a way to support this Bill even if it needs amendment. The Government's failure to do that is a frightening indictment of the Government in this crucial area.

The real picture of crime and violence is not truly reflected in the frightening statistics available. Day after day and night after night the media unfold great human tragedy in house break-ins, robbery and associated crimes on an almost hourly basis. That is only part of the tragedy. People are now becoming despondent and they have little belief in the capacity of this House to deal with the problem, so much so that many crimes are not being reported to the Garda. I warned this House against the danger of complacency on a number of occasions when speaking on other matters relating to the Department of Justice. Complacency presents a threat to the credibility of our democratic institutions. When people lose confidence in the ability of this House to legislate for their security, we have reached a critical stage. Our failure to legislate effectively in this area has resulted in despondency and a sense of helplessness in the Garda Síochána who find themselves in an almost impossible situation, being unable to cope with escalating levels of crime because of the weaknesses of the law under which they must perform their duties.

It is for that reason that Fianna Fáil have given so much time and thought to what we had hoped would be seen by the Government and the people as a genuine effort to deal with this matter. Our party are disappointed at the Minister's response. The Minister said that the Government were opposing this Bill which is defective in a number of respects and could not easily be put into proper shape by putting down amendments. Will the Minister tell the House what Bills are not defective in some respects when first circulated? Will the Minister admit that most Government Bills are amended as a result of examination and debate? The Criminal Justice Bill is an example of a Bill which was totally changed from its original form as a result of amendments from this side of the House, particularly those put forward by my colleague, Deputy Woods. The reality is that the Minister and the Government are unwilling to tackle the serious problem. They are now prepared to abandon our citizens in this crucial area of national administration and leave our gardaí vulnerable and weak in their efforts to enforce inadequate laws.

This House has every reason to be disappointed with the negative tone of the Minister's reply in view of the lip service given by the Minister's colleague the Minister, Deputy Bruton to the need for reform in this House. I recall the vigour with which this Government on coming to office outlined the need for constructive opposition, the need for back-up services for the Opposition and the need for doing what we are doing here tonight, the need for introducing Private Members' Bills. That has all been forgotten. It was another example of Government rhetoric without action or commitment. This is the second Bill which Fianna Fáil have brought before the House and it has been treated in the same dismissive way by this Minister and the Government.

Let us look at the Minister's reason for opposing this Bill. The Minister said it would take a disproportionate amount of work and would divert resources from the Government's existing legislative programme to have the adequacy of the Bill analysed in complete detail and that this was especially so when, as he hoped to explain later, they would be introducing alternative legislation. What does the Minister mean by that statement? Apart from the fact that he is deliberately turning his back on the victims whose homes have been broken into he is, in effect, saying that it is too much trouble to examine the Fianna Fáil Bill in depth. This is an admission that a great deal of thought and research has gone into the preparation of the Fianna Fáil Bill and undoubtedly that is so. For selfish political reasons, the Minister has chosen to ignore all this work because he is too embarrassed to admit that legislation is required in this area.

I can understand the Minister's political motivation but I cannot understand the recklessness of such a decision, particularly at this time. The Minister also said he opposed the Bill because it would interfere with the Government's legislative priorities. I ask the House to note the word "priorities". What priorities is the Minister talking about? They were outlined to us in the early days of the session when the Taoiseach ordered the First Reading of a number of Bills for debate in the current session, many of which are being introduced as mere legislative statistics rather than for their relevance and content. Indeed, the same could be said of much of the very limited legislation brought before this House by the Government. Is there any more urgent or crucial area in need of the Government's attention and reform than the protection of the lives and property of our citizens?

The Minister also said the Government could not divert resources from their own legislative programme to deal adequately with this Bill. That is an unintended recognition of the value and content of the Bill and is an indictment of the Government's legislative priorities. I wish to remind the Minister that the resources to which he refers are those which the Government extracted through taxation from the people. By implication, he said that the homes, property and the lives of the people who made that contribution are no longer important and are not a Government priority. That is a reckless and disgraceful situation. It is a shameful admission and not worthy of any Government or Minister.

The Government's opposition to the Bill will not deter Fianna Fáil from preparing and bringing before this House other Bills in areas where they find them necessary. I was very pleased to have been associated with my colleague, Deputy Woods, in the preparation of this Bill, particularly in the very crucial area of Government administration. I found the exercise fulfilling and my colleagues on our party's committee on law reform deserve our appreciation for their advice and guidance even though the Minister of State, Deputy Birmingham, belittled those efforts by aligning us with an administration outside the country.

I hope the publication of this Bill will be seen as a genuine and deliberate attempt by Fianna Fáil in helping and encouraging the Government to come to grips with what is undoubtedly a very frightening and neglected area of Government administration. I do not need to remind the House of the difficulty for the Opposition in formulating a Bill of this nature. It is the second Bill brought before the House by Fianna Fáil in recent months and I know that other Bills will follow as the occasion arises. The House will agree that law reform in this crucial area is long overdue and that the failure to do something about it before now has resulted in the Garda and the law generally being unable to deal adequately with the frightening increase in house breaking and robberies.

The phraseology used in the Bill is easy to read and to understand from a lay person's point of view. I have commented on this on a number of occasions in the past. The Bill is wide ranging in content and covers the entire area — regardless of what the Minister of State said — of robberies, burglaries and other offences relating to crime. It deals in particular with the disposal of goods arising from property taken in raids of various kinds. Our party believe that, if we can become effective in the area of receiving and disposing of stolen property, we will have removed the motivation for robbery.

There has been much talk from the Government about the need for reform in the House and the desirability of more objective and constructive debate. Yet we had the recent example of the Government deciding politically to torpedo our Bill in relation to domicile even before it could get an objective hearing in the House. If the Government Bill was not an example of copying and duplication of legislation from another jurisdiction I should like to know what is. I regret the Minister's unhelpful and dismissive approach to the Bill. The frightening increase in the level of crime in recent years has reached alarming proportions and has created an atmosphere of fear and insecurity. While perhaps this phenomenon is worldwide, the rapidity of its increase here and our failure to deal effectively with it is a matter of great concern and presents a very serious challenge to the House and the Government.

I do not want to make unfair political charges, but there can be no doubt that the complacency of the Government in not recognising the extent of the problem and their failure to take positive steps to contain the situation must be taken seriously by this House. I appeal to the Minister, even at this late stage, to come down from cloud nine and make an effort to help defend our defenceless citizens instead of trying to protect the Cabinet for their failure to provide that much needed protection for which the people are crying out.

In this Bill we are playing our part in helping the Minister to achieve that objective. We cannot enforce the law of the land but we have a bounden duty to legislate to update the law and ensure that it is effectively enforced. Such legislation is urgently needed to enable our gardaí to keep abreast of the highly organised, professional and sophisticated crime syndicates which operate openly. This legislation is also needed to eliminate the alarming increase in house breaking, robbery and theft which has been of great concern to householders not only in the urban areas but, tragically, to old people living alone in rural areas. The past 12 or 18 months have seen an escalation and transfer of crime from the greater urban areas to the relatively safer environs of the rural community.

How often do we hear it said that nothing is safe any more? This is a general comment made by ordinary, decent, law abiing citizens. That is a true statement, a frightening indictment of the deteriorating standards in society and a reflection on this House because it shows a general deterioration in the economic structures of the country. I regret that time does not allow me to go some way along that road because, as I said on a number of occasions, there is a direct link between the economic conditions prevailing at any given time and the level of crime and violence. There can be no doubt that the present serious economic situation is a major contributing factor in the breakdown of law and order.

It would be very wrong to blame the socially deprived for the increase in crime; it would be more accurate to say that they are far too often the scapegoats for the highly organised professional gangs who have made crime their career. Earlier in this debate, my colleague, Deputy Lyons, referred to the statistics which some people would like to ignore but which in fact represent reality. Those grim figures were also unfolded by my colleagues, Deputy Woods, in his opening contribution. He indicated that there was an increase in indicatable crime from 62,000 in 1978 to 99,720 in 1984, and burglaries accounted for 93 per cent of that frightening increase.

It is obvious that robbery is now big business in this country. This Government have been successful in undermining, through legislation, legitimate industries and businesses and it is ironic that Government inaction has resulted in the growth of a dangerous and illicit industry based on the stolen, hard-won property of law abiding citizens. In 1984, £32 million worth of stolen goods were not recovered. That sum of money in any man's language represents a massive industry, but it is also an indication of the level of the serious deterioration in law and order.

For the Government and the Minister to come into this House in a negative fashion for the purpose of ridiculing Fianna Fáil about this Bill is nothing short of a national disgrace. We spent hours and days in this House over the past four years debating legislation which was not as relevant as this Bill. As I said earlier, if there is one area of this Government's administration which has been a total failure, it has been in the administration of the Department of Justice.

Mr. J. Doyle

Since becoming a Member of this House I have always felt that Members who have legal experience have a great advantage over other Members, especially when we are speaking to Bills dealing with criminal law. I welcome the Opposition's initiative in introducing a Bill with a view to updating the law on larceny.

I note in the Bill that the Principal Act referred to is the Larceny Act, 1916. This has served Ireland and Great Britain well for a number of years but in recent times there has been a need for a revision of the law in this area. On 18 March 1959 the then Home Secretary gave the following terms of reference to the Criminal Law Revision Committee:

To consider, with a view to providing a simpler and more effective system of law, what alterations in the criminal law are desirable with reference to larceny, and kindred offences, and to such other acts involving fraud or dishonesty as, in the opinion of the Committee, would conveniently be dealt with in legislation giving effect to the Committee's recommendations on the law of larceny.

The committee decided to treat their terms of reference as extending to all the offences covered by the two principal Acts concerning larceny and related offences, the Larceny Act, 1861, and the Larceny Act, 1916. The most important offences are stealing, robbery, burglary and other offences involving breaking and entering, obtaining by false pretences, blackmail, receiving stolen property and possessing housebreaking equipment and other instruments for criminal purposes.

The committee were of the view that the then law in relation to larceny, the Larceny Act, 1916, worked reasonably well, that it was only exceptional cases which caused difficulty and most of the difficulties could be got rid of for practical purposes by amending the 1916 Act. Nevertheless, they were strongly of the opinion that the time had come for a new law of theft and related offences based on a fundamental consideration underlying this branch of the law and embodied in a modern statute. The committee's deliberations led to the Theft Act, 1969.

The committee were of the view that the chief defects in the existing law of larceny are, first, its difficulty and complexity and, secondly, its failure to deal with certain kinds of dishonesty which ought certainly to be punishable. Lord Goddard in a judgment in 1958 referred to by the committee in their report, after alluding to the law of larceny as a law which is exceedingly technical and which has been the subject of many great decisions, quoted a statement from Mr. Rupert Cross, Professor of English Law at Oxford:

That some of the decided cases of the retention of property innocently come by emphasise the utter unreality of the present law of stealing and are a public scandal both because the courts are reluctantly compelled to allow dishonesty to go unpunished and because of the serious waste of judicial time involved in discussion of futile legal subtleties.

Lord Goddard added, "These are strong words, no doubt, but it would be a good thing, I think, if the law of larceny could be somewhat simplified and cleared up". The committee considered it quite remarkable that the law should still be in a state in which so many cases, most of them involving the simplest of facts, could have produced so much difference of judicial opinion and controversy among legal writers. The defects in the law of larceny arise mainly from it being regarded as essentially a violation of the owner's right of possession and not of his right of ownership.

I feel it was the revision and updating of the Larceny Act of 1916 that has prompted the Opposition to bring in the present Bill which would go some way to updating our larceny laws. The Larceny Act of 1916 is outdated in many ways as Deputy Woods outlined in his speech, especially in relation to offences that are committed at night. The situation today is that just as many offences are committed during daytime as at night and indeed the 1968 Theft Act makes no distinction whatsoever between night and day.

The law which governs the crime of receiving stolen goods is the Larceny Act of 1916 but, again, it has long been regarded as obsolete and ineffective. Clause 21 of the Theft Act of 1968 replaced the existing offence of receiving stolen property by a new offence of handling stolen goods. This will catch not only the receiver as the term is generally understood but also those who have lesser roles in the enterprise, for example it will also catch the intermediary who puts a thief in touch with a buyer or a man who moves stolen goods from one place to another.

The Garda have been seeking increased powers in this area and the courts have been calling for action and any amendment of the law in this area would be very welcome. When a layman speaks about the law dealing with larceny he must bear in mind what the legal experts say about its difficulty and complexity. As Lord Goddard said, it is a very technical area.

I welcome the fact that the Opposition have raised this issue and the Bill is welcome from that point of view. However, the Minister for Justice has told us he cannot accept some technicalities contained in the Bill. As a layman, I do not know about them but I am sure they exist. The committee to which I referred earlier thought there was a possibility of amending the 1916 Act but then they decided it would be better to have a totally new measure. If we are to update the 1916 Act dealing with larceny it must be done by way of a Bill to be introduced by the Minister. I hope that the action of Fianna Fáil in moving this Bill in the House will prompt the Government to bring in new legislation in this area.

Legislation is essential because of the many offences committed. Deputy Woods is Chairman of the Committee on Crime, Lawlessness and Vandalism on which I serve and at our weekly meetings we discuss the serious problems that affect the community. We hear what is happening every week in our advice centres and when we meet our constituents. No longer do people feel safe in their own homes and that is a matter legislators must consider. Last night Deputy Leonard informed the House of his experience at the hands of thugs. It is only when one comes into contact with the problem oneself that one realises the serious effect it can have on society. Last July I left my house to visit my sister for three hours and on my return I found it had been burgled. It was the first time I had such an experience. It is not just the things that are missing but the fact that somebody has been in one's house. It leaves one with a very strange feeling that is hard to describe. It is a most worrying experience. When I returned home last night after listening to speeches on this matter in this House I found that all the lights were on in my home. My wife explained that the house of a neighbour had been burgled in the afternoon. In a small row of houses two homes have been burgled recently. This kind of crime is being committed all the time. There is a need to update the law to deal with the problem.

We have an excellent Garda force. I am glad to see from the report of the Commissioner that their detection rate with regard to the crime of larceny has increased slightly. It is most important that the Garda should have a high success rate in the detection of crime. It is surprising to see the number of gardaí involved in court procedures who should be out on the streets in an attempt to combat crime. Better management of the force is necessary if we are to tackle the crime problem.

I hope that the Criminal Justice Act will have the desired effect. Like Deputy Woods, I spent many long nights here last summer when the Bill was going through the House. I took a special interest in it because I wanted to see a balance between the prevention of crime on the one hand and the protection of the civil liberties of the individual on the other. As Deputy Woods said, I think, we succeeded in getting that balance but certain sections of the Act have not yet been implemented because the legislation regarding the complaints procedure has not yet passed into law. When the Act is implemented in its entirely I hope it will have the desired effect in helping the Garda to improve their detection rate in respect of crime. It is desirable that the Garda should be empowered to detain a criminal in order to allow them to investigate the crime committed. Also, the taking of fingerprints from a person detained is a very important aspect of crime detection. I should hope that when all sections of the Act are in operation, the Garda will have at their disposal an instrument that will help them in their fight against crime.

There is a further aspect to the area of crime detection. I refer to the neighbourhood watch development, to which reference was made in the first report of the Committee on Crime, Lawlessness and Vandalism. There are now many neighbourhood watches in operation and the initial reports indicate that the development is proving successful. The Garda can do so much but, if everyone in the community participates in a neighbourhood watch, the Garda can be much more effective in their work and the person breaking the law will have a lesser chance of continuing in his criminal activities. The community can be the eyes and ears of the Garda, as it were, in the area of crime prevention and detection.

As I have said this area was dealt with very well by the commission set up in England to produce a new Act. That committee dealt fully with the technicalities in relation to the law on larceny and other matters. I trust that the Government will address themselves to producing similar legislation here. If the Bill proposed by the Opposition can have the desired effect, I trust it will be given due consideration.

Mr. B. Ahern

I congratulate Deputy Doyle on an excellent speech and one that can be interpreted only as supportive of our measure. His arguments are similar to those that would be offered by people on this side of the House and are in line with the thinking of my colleagues who did all the work in the production of this measure — Deputy Woods and Deputy Hyland.

The argument that there are technicalities involved in the Bill which would cause some difficulty is erroneous and should not be represented here. An example of what I have in mind is that a valuation Bill brought in by the Coalition on three occasions was postponed on each of those occasions until the legislation was right in technical term. The point is that that piece of legislation was not abandoned. It was not voted against. That does not happen in a parliamentary democracy.

We cannot take the arguments of the Minister for Justice very seriously anymore. I am giving him the benefit of the doubt as to whether we considered his arguments seriously in the past. When we left office in November 1982 or, more accurately, were thrown out by the Coalition long before our time, the Criminal Justice Bill was ready. It was brought into the House in October 1983 and was not passed until the end of 1984. The delay was as much if not more because of the arguments from the other side of the House as because of the arguments we put forward. The legislation setting up the complaints commission is only before the House now, so one must question whether the Minister is serious about ever implementing the Criminal Justice Act. Presumably he would much prefer that the legislation should be implemented long after he had gone from the job. Perhaps he thought he would have been promoted by now.

We on this side of the House are accused often of not being constructive or of not having ideas. We have our own policies. We have a lot of support from back up teams. In this case Deputy Woods and his colleagues worked extremely hard to bring forward legislation at this stage. Were it not the urgency involved, we would have waited and included the legislation in our programme for Government later this year. Because of the breakdown in law and order in both urban and rural areas we considered it necessary to bring the Bill forward now.

The speech of the Minister for Justice exposed one basic deficiency in this Bill. The Larceny Acts, as he said, were designed to penalise dishonest behaviour. This Bill if enacted would be no more useful than its predecessors in combating the type of intellectual dishonesty which pervaded the Minister's speech and which indeed has become the only consistent feature of his incompetent occupancy of his distinguished office.

When this Bill was introduced, Fianna Fáil made it clear that it represented a responsible and constructive attempt to tackle the most prevalent type of crime which afflicts the people of this country. As was the case when we introduced the Conflict of Laws Reform Bill last November, we were willing to debate the proposal fully and consider any amendments which any Member of this House might propose. Last November, the Government decided to reject our Bill and, by implication, two full reports prepared by the Law Reform Commission. They circulated instead a much more restricted and much less significant Bill, the Domicile Bill, 1985, which they have yet to introduce in this House. But on that occasion, our initiative at least had the effect of forcing the Government finally to do something to end a blatant piece of discrimination against women of the type they have for so long ineffectually bleated about.

On this occasion, however, the Minister has no lucky bag, instant whip proposal. On this occasion, unable to think up even a face saving alternative to our proposals for action against the criminals, he has instead resorted to the type of nitpicking approach which more usually typifies school debates than parliamentary proceedings. In view of the fact that, in the annals of parliamentary democracy, his speech must represent the first occasion on which a Minister for Justice implied that the abolition of juries in personal injury actions was a more important priority to him than the protection of the citizen in his own home, perhaps the Minister should abandon his pretence at parliamentary debate and return to presiding over the school debates in which he would quite obviously be more at home.

The Minister stated that the Larceny Acts are technical and complex and it certainly cannot be doubted that the Minister himself has found them to be so. Indeed, the Minister has quite obviously found even this short five page Bill to be so complex that, if his speech accurately reflects his own views, it can only be assumed that his comprehension of it does not extend past or even include the Long Title. The Minister stated that the Long Title is misleading. Quoting accurately from the Long Title, he pointed out that one of the purposes of the Bill is to reform the law in relation, inter alia, to the carrying out of robbery and burglary. He then stated that the Bill proposes, and I quote him, “to make no changes in the law on the offences of robbery and burglary”.

The present law was enacted long before the criminals discovered the potential of the balaclava or the crash helmet as a means of facilitating the commission of robberies. It was enacted long before the invention of the sophisticated equipment often used nowadays by professional burglars to detect and deactivate alarm systems. It is not surprising that a law, enacted in 1916, should not be aimed at dealing with modernly equipped robbers and burglars and instead refers only to such items as pick locks and jackbits. This Bill contains similar provisions to those introduced in England in 1968 to take account of the modern implements used to carry out robberies and burglaries. The Minister, therefore, might perhaps reconsider — if, in fact, he himself ever considered at all — this "technical and complex" proposal.

The Minister next stated as his no doubt learned opinion that there had been difficulties in the operation of the Theft Act of 1968 in England which he correctly identified as the source of many of the proposals in this Bill. The Anglo-Irish Conference, if it achieved nothing else, could at least perhaps provide a vehicle for the Minister to communicate his insights in this respect to the British Government who are not apparently as informed as the Minister concerning their own legal system. In fact, for his information, there have been amendments to the Theft Act since 1968 and account was taken of those amendments by Deputy Woods when preparing this Bill.

The Minister then proceeded, in a complicated if not very technical way, to give a few examples of what he claimed were serious defects in the Bill now before this House. For example, he compared and contrasted subsections (1) and (4) of the new section 28 we proposed to insert into the 1916 Act. As subsection (4) would retain the offence of having house-breaking implements in one's possession without lawful excuse, the Minister felt that it was superfluous in view of the fact that subsection (1) covers possession of any article for use in the course of burglary etc. The Minister then criticised subsection (4) for placing an onus of proof on an accused to furnish a lawful excuse for having house-breaking implements in his possession. The reason why subsection (4) is not superflous is precisely because it is desirable that there should be such an onus on people found in possession of easily identifiable house-breaking implements whereas such an onus would place an unfair burden on a person charged with possession of an article which could be for innocent as well as criminal use.

Also referring to the proposed new section 28, the Minister sought to suggest that the fact that under the Vagrancy Act of 1824 it is an offence for a person to have house-breaking implements in his possession in day time is a sufficient excuse for rejecting the portions of this Bill which propose to deal with the commission of burglaries and robberies in day time. He has conveniently ignored the fact that the provisions of subsection (4) of section 28 of this Bill relating to the onus of proof, are not duplicated in the Vagrancy Act, 1824. As matters stand, if a criminal is found at night with housebreaking implements he can be sentenced to five years imprisonment unless he has a lawful excues for having them. If, however, he is found with them in the day time he can only be sentenced to a maximum of three months imprisonment if the Garda can prove that he did not have a lawful excuse for having them. If the Garda are aware of a person who has such implements, does the Minister think that they should wait until dusk, check their watches and then affect an arrest or does the Minister feel that three months is a sufficient penalty for such criminals?

In approaching our proposal to deal with the handling of stolen goods, the Minister appeared to suggest that it might not go far enough. Perhaps he is right and it is a great pity that rather than enlighten us as to his views and perhaps assist the Garda by proposing an amendment to strengthen our proposal, he suggested the type of further examination which viewers of the series "Yes, Minister" will know is usually calculated to ensure inactivity, prolong inertia and conceal inability.

The Minister also made several criticisms of certain peripheral aspects of the Bill. Concentrating on the part of the new section 33 which deals with handling goods dishonestly obtained outside the State. The Minister suggested that a person could be guilty, and I quote him, "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". It is hard to see how one could be said to handle stolen goods which were never stolen, but I assume that what the Minister was endeavouring to say was that handling goods in the State obtained in a way outside the State which was not illegal under the law of the place where they were obtained, could become an offence under Irish law. Most extraordinarily, if the Minister were correct, this undesirable state of affairs currently exists, as our proposal merely modifies the existing law in this respect to take account of the new offence of handling, and the Minister has not made and apparently does not intend to make the simple but necessary amendment to rectify matters.

Fortunately, the Minister is again wrong as the present law and this Bill do not and would not penalise a person for receiving or handling such goods if there was a lawful excuse for the handling or receiving. Quite clearly the fact that the goods were not obtained illegally under the law of the place in which they were obtained would constitute such a lawful excuse. The Minister can, therefore, be assured that even the present law is somewhat less defective than he seems to believe and that is just as well in view of his inactivity as regards rectifying the many defects in it which do exist.

Most of the criticisms of this Bill made by the Minister were to the effect that a number of its provisions might be unnecessary or superfluous. It will hardly be of much consolation to the tens of thousands of our citizens who fall victim to crime that the Minister for Justice intends to oppose a Bill containing measures which he agrees are necessary because it also contains measures which he thinks might be unnecessary. Somebody should inform him that there is a Committee Stage process in this House. He has never served in Opposition and knows little about the regulation of the business of the House. He does not seem to know much about a lot of other things as well.

Even if the Minister were correct in all of his criticisms, and it is quite clear that he is not, he would be failing in his duty if he did not endeavour to ensure passage of this Bill in a form acceptable to him. It is not good enough to say that certain aspects of the Bill might be unnecessary or may be superfluous or do not conform to some stylised concept of drafting but the Department of Justice has not sufficient time or the Minister has not sufficient interest to table the amendments which the parliamentary draughtsmen might feel are necessary. The suppression of crime may not be an immediate priority of this Government but it is certainly a priority for the people of this country and for the Fianna Fáil. The Minister may well be, and I quote him, "cautiously optimistic" about crime; the countless victims of crime hardly share his optimism.

The Minister's speech represented a party political response to a constructive attempt by Fianna Fáil to facilitate the Garda in their fight against crime. It constituted a narrow and selfish approach to a very serious national problem. It attempted to excuse the Government's inactivity in this area by pleading that the Government did not have the resources to amend this Bill to their satisfaction.

If the Minister was honest in the reasons he gave for opposing this Bill, I wish to make a proposal which should enable him to permit this Bill to go to Committee Stage. In view of the Minister's comments, we are willing to reexamine the text of this Bill. We are willing to re-consider it in the light of the Minister's criticisms. If, having done so, we feel that amendments are necessary we ourselves will table those amendments. If, notwithstanding our efforts, the Minister is still unhappy he can then impose his whip and have the Bill rejected. No "valuable" Government time need be wasted. No "vital" Government legislation need be delayed. No "rigid" ministerial schedule need be affected.

I ask the Minister to withdraw his opposition on that basis. I ask him to do so in the name of those who might thereby be spared the effects of crimes which this Bill might deter. I ask him in the name of justice for those whom provisions of this Bill might bring to book. I ask him for once, just once, to rise above party politics and put the people first.

Since the Minister did not bother to come I am sure the Minister of State could accept those terms, allow this Bill to be read a Second Time and arrange Committee Stage for another night.

Question put.

The Dáil divided: Tá, 63; Níl, 74.

Tá

• Ahern, Bertie.
• Ahern, Michael.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Paudge.
• Brennan, Séamus.
• Briscoe, Ben.
• Browne, John.
• Burke, Raphael P.
• Byrne, Seán.
• Calleary, Seán.
• Collins, Gerard.
• Conaghan, Hugh.
• Connolly, Ger.
• Coughlan, Cathal Seán.
• Cowen, Brian.
• Doherty, Seán.
• Fahey, Francis.
• Fahey, Jackie.
• Faulkner, Pádraig.
• Fitzgerald, Gene.
• Fitzgerald, Liam Joseph.
• Flynn, Pádraig.
• Foley, Denis.
• Gallagher, Denis.
• Gallagher, Pat Cope.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Hilliard, Colm.
• Hyland, Liam.
• Kirk, Séamus.
• Kitt, Michael.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leonard, Tom.
• Leyden, Terry.
• Lyons, Denis.
• McCarthy, Seán.
• McEllistrim, Tom.
• Molloy, Robert.
• Morley, P. J.
• Moynihan, Michael.
• Nolan, M. J.
• O'Connell, John.
• O'Dea, William.
• O'Hanlon, Rory.
• O'Keeffe, Edmond.
• O'Kennedy, Michael.
• O'Leary, John.
• Ormonde, Donal.
• O'Rourke, Mary.
• Power, Paddy.
• Reynolds, Albert.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Walsh, Seán.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Níl

• Allen, Bernard.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Myra.
• Barry, Peter.
• Begley, Michael.
• Bell, Michael.
• Bermingham, Joe.
• Birmingham, George Martin.
• Coogan, Fintan.
• Cooney, Patrick Mark.
• Cosgrave, Liam T.
• Cosgrave, Michael Joe.
• Coveney, Hugh.
• Creed, Donal.
• Crotty, Kieran.
• Crowley, Frank.
• D'Arcy, Michael.
• Deasy, Martin Austin.
• Desmond, Barry.
• Desmond, Eileen.
• Donnellan, John.
• Dowling, Dick.
• Doyle, Avril.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernard J.
• Enright, Thomas W.
• Farrelly, John V.
• Fennell, Nuala.
• Glenn, Alice.
• Griffin, Brendan.
• Harte, Patrick D.
• Hegarty, Paddy.
• Hussey, Gemma.
• Kavanagh, Liam.
• Keating, Michael.
• Boland, John.
• Bruton, John.
• Bruton, Richard.
• Burke, Liam.
• Carey, Donal.
• Cluskey, Frank.
• Collins, Edward.
• Conlon, John F.
• Connaughton, Paul.
• Kelly, John.
• Kenny, Enda.
• L'Estrange, Gerry.
• McGahon, Brendan.
• McGinley, Dinny.
• McLoughlin, Frank.
• Manning, Maurice.
• Mitchell, Gay.
• Mitchell, Jim.
• Molony, David.
• Moynihan, Michael.
• Naughten, Liam.
• Nealon, Ted.
• O'Brien, Willie.
• O'Leary, Michael.
• O'Sullivan, Toddy.
• O'Toole, Paddy.
• Owen, Nora.
• Pattison, Séamus.
• Prendergast, Frank.
• Ryan, John.
• Shatter, Alan.
• Sheehan, Patrick Joseph.
• Skelly, Liam.
• Taylor, Mervyn.
• Taylor-Quinn, Madeline.
• Timmins, Godfrey.
• Yates, Ivan.

Tellers: Tá, Deputies V. Brady and Barrett(Dublin North-West); Níl, Deputies Barrett (Dún Laoghaire) and Taylor.

Question declared lost.