Subsection (8) (a) enables a Garda superintendent to require a person to give certain information. Does the Minister consider that it is necessary to put in a time limit within which the person to whom the requirement is addressed must produce the material sought? Does it mean that the person is to produce it forthwith, within 24 hours, seven days or 28 days? Surely it would be prudent to specify some time within which the material should be produced?
Prohibition of Incitement to Racial, Religious or National Hatred Bill, 1988 [ Seanad ]: Committee Stage (Resumed).
I recognise the point made by Deputy Taylor. I understand that in some cases there are time limits but not always.
If there is no time limit a person could say that he would send it on in due course.
Perhaps we could insert "within a reasonable time". If the Deputy agrees we will look at it before Report Stage.
I suggest that we should insert "within 24 hours"——
Let us take that on board as I also see the weakness in the phrase "within a reasonable time". Leave it with me and we will take it again on Report Stage.
We will now deal with amendment No. 22 in the name of Deputy Taylor. Amendment No. 23 is an alternative and I suggest they be taken together.
I move amendment No. 22:
In page 6, subsection (3), lines 31 to 35, to delete from "and the court" down to and including "subsection (1)" and substitute "it shall be presumed until the contrary is proved that the accused person was in possession of the material or recording in contravention of subsection (1)".
This is one of the most tortuous subsections in the Bill and I felt it was in need of some appreciable amendment. Apparently, the Minister came to the same conclusion because he also proposed an amendment which would improve it but not sufficiently. Under this section where it is proved that the accused person was in possession of material referred to in subsection (1) — unacceptable material — and the court is satisfied that it is reasonable to assume that the material or recording was not intended for the personal use of the person, he shall be presumed, until the contrary is proved, to have been in possession of the material or recording in contravention of subsection (1). How can the court possibly assume the intent of the person? This is a very badly drafted subsection and certainly the Minister's amendment will help. However, my main objection is that it talks about a reasonable assumption by the court that the material was not intended for the personal use of the person in whose possession this objectionable material was found. A court will have great difficulty in trying to make assumptions about the person's intent regarding his personal use. My amendment simply deletes that aspect in effect and provides that it is presumed, until the contrary is proved, that the accused person was in possession of the material in contravention of subsection (1). In other words, if the material is in contravention of the section it is fair that the accused should satisfy the court that it was for his own personal use. He should establish and satisfy the court that it was for his personal use. He may be able to do that and, if so, fair enough. The alternative is to ask the court to try to make an assumption about his intention and that is asking a bit too much of the court.
Amendments Nos. 22 and 23 are grouped together but there is quite a difference between them. I regard Deputy Taylor's amendment, No. 22, as a substantive one while my amendment No. 23, is a technical one. In my view to accept Deputy Taylor's amendment would impose what would be a wholly unjustifiable burden on the accused of proving his innocence.
Take the case where somebody has in his house a book, perhaps an old book, containing passages which are abusive of a racial or religious group and which, if published, might well stir up hatred against the group. The book may be a classic work and the owner may be a bibliophile; or it may be a scientific work and the owner may have it for the purpose of study or research. In either event, he has no intention whatever of using it to stir up hatred. The effect of subsection (3) as it stands is that, in order to raise a presumption against the accused, the prosecution must first prove, beyond reasonable doubt, that "it is reasonable to assume" that the book "was not intended for the personal use" of the accused. Only if the prosecution discharge this burden will the accused have the burden of proving that his possession of the book was not in contravention of subsection (1).
How can the prosecution possibly prove that?
In the imaginary case I have suggested, the prosecution would never discharge this burden.
In that case a prosecution should never be brought.
If amendment No. 2 were accepted, and the poor bibliophile or scholar were to be prosecuted because the book was in his possession, he would have the burden of proving his innocence when he should never have been prosecuted at all or the case should have been dismissed because the prosecution would have failed to prove an essential part of their case. I could not accept the injustice of the situation that the amendment would bring about.
With regard to amendment No. 23, my legal advisers tell me that the words "the court" in subsection (3) mean, in a case tried with a jury, the trial judge, and, in a case tried in the District Court, the district justice. Accordingly, under subsection (3) as it appears in the Bill, in a case tried with a jury it would be a function of the trial judge to decide whether or not it is right to be satisfied that it was reasonable to assume that the material or recording was not intended for the personal use of the defendant. The effect of my amendment will, where a jury is sitting, make that a function of the jury. Where there is no jury, it will be a function of the district justice.
The Minister is not responding to this important point. The example he has given of a bibliophile or a person having a book is not covered by the section. Subsection (1) states that it shall be an offence for a person to prepare or be in possession of any written material with a view to its being distributed, displayed or broadcast or otherwise published in the State or elsewhere. The example of the bibliophile would not be an offence and there would not be a prosecution.
A different category of offensive material would have to be involved before a prosecution could be brought. There are plenty of books around the place with offensive material in them, and they are not all old books, and, obviously, the owners are not in possession of them with a view to distributing, displaying, broadcasting or otherwise publishing them.
With respect, the Minister has not given a fair example. We are talking about different types and categories of material. We are talking about material in respect of which the Director of Public Prosecutions, or whoever else it may be, had decided was in the possession of the person with a view to its being distributed. If the Director of Public Prosecutions came to the conclusion that the person did not have it with a view to distributing it, or that there was not evidence of that, he would not, and could not, authorise a prosecution because an offence would not have been committed under section 4.
We then move to the position where the Director of Public Prosecutions comes to the conclusion that there is evidence that a person has material with a view to its being distributed. There are two important elements now, the objectionable material being found in the possession of the person and the evidence that the person had it with a view to its being distributed. We now come to the question of assumptions as to the person's intent. As I said earlier, to start making assumptions about a person's intent is getting into a very grey area. Where the objectionable material is of a kind that clearly lent itself to being distributed, and there is a strong possibility of that taking place, the impossible burden should not be placed on the prosecution to say what that person's intent was. If that is said the prosecution will be a non-starter from the word go because it will not be possible to prove intent.
A substantial case has been set up by the facts that the objectionable material is found in the possession of a person and, secondly, that there is evidence that a person had it with a view to its being distributed. It is fair, and reasonable, if the section is to have any meaning or if there is to be any type of control, to shift the burden of proof on that point on to the accused, to get the accused to explain to the satisfaction of the court that he or she did not intend to distribute the material and that it was intended for their own use. Ideally, the prosecution should have to prove every element but the prosecution is not going to be able to prove intent. A court will have great difficulty, or find it well nigh impossible, in making assumptions as to a person's intent. A person who has such material must explain and satisfy the court that he or she did not intend to distribute that objectionable material but wanted it for his or her own use. It is a perfectly reasonable point and it is essential if the legislation is to work. There is little point introducing legislation that cannot be enforced. If we do that we will be a laughing stock and the provisions of the Bill will be meaningless.
I have some difficulty with the amendment proposed by Deputy Taylor and I should like to articulate my views and hope for a response from him. The first principle is that the onus should always rest on the prosecution to prove their case. The prosecution should be in a position to establish their proof in the first presentation of the prosecution. The general principle coupled with that is that possession by itself is not an offence.
There are exceptions to that rule for example, in regard to the possession of an illegal substance under the Misuse of Drugs Act. It can be argued that that exception is tolerable because, unless there is a medical prescription allowing for it, the possession of a prescribed substance under that Act is illegal and can allow of no innocent explanation unless a defendant can make a case to the satisfaction of a court that he or she did not know that the substance was in their pocket. In that case the person is not strictly in possession of the substance.
However, in all other instances in the criminal code an object is capable of innocent explanation. We have to concede that there are instances in which a document contemplated under subsection (1) can give of innocent explanation. I am thinking of instances of research, of innocent possession, or non-hatred use or intent. In instances where the use of the object in question is capable of innocent interpretation, possession of the object must be accounted for or some other set of circumstances must qualify that possession. The section as drafted allows the court to look at the wider context in which possession is established. For example, if somebody is found with 100 copies of a leaflet the suggestion that those leaflets are for immediate or personal use will not stand up to scrutiny. I think there have been a number of instances of this recently where in the context of seditious documentation in a number of prosecutions in the courts persons accused of membership of an unlawful organisation were found with posters. The significant element of proof in those case was that despite the fact that the defendant made a claim of innocent possession — in one instance posters had been found in a bedroom and in another instance they had been found in a livingroom — the quantity of posters was such as to allow the court in part to infer that they were not simply for private personal use and that there was a wider intent attached to them.
I would be worried that the amendment proposed by Deputy Taylor would seek to throw on to the shoulders of the defendant an obligation to prove his or her innocence. That should rarely if ever be the rule in criminal prosecutions. It is the rare exception that allows for presumptions, although I will concede that presumptions are becoming all the more frequent in more modern criminal legislation which we draft. I believe that possession per se should not be an offence — I think that is the direction in which Deputy Taylor's amendment is taking us — and there should be an onus on the prosecution to prove something broader than mere possession. I do not think the court would have difficulty with this. For example, in terms of the possession of an offensive weapon such as a knife or any other implement of offence, under the law the court requires the prosecution to prove that the person was carrying the implement with an intent to commit some felonious act and must specify what that act was. With regard to similar offences such as the possession of pick locks or other items listed in section 4 of the Vagrants Act, again the prosecution is required to prove that mere possession is not the offence and that the person carrying the implement had a specific reason for carrying it — the principle being that possession of a knife has innocent explanations but a knife carried in a sheath hidden in a belt by somebody who is drinking after hours or by a person lurking in an alleyway waiting for somebody else is capable of far greater sinister connotations. Perhaps this is difficult to prove but in the context of a balance between civil liberty, the rights of individuals on the one hand and the common good on the other, the section as it stands measures that balance better than perhaps what Deputy Taylor is suggesting. Those are some of the views I have on the amendment. I am open to conviction or suggestions about it but I would like to hear Deputy Taylor's response before I make up my mind on it.
This is a little bit confusing. Am I reading lines 33 to 35 of section 4 (3) correctly? Is there an onus on the defendant to prove his innocence? The subsection says "... he shall be presumed, until the contrary is proved, to have been in possession——
That is still there anyway.
——of the material or recording..."
That is correct. That only comes after the court assumes that it was not for his own use. At that point the presumption comes in but the point I am making is about the assumption of the intent, which is preliminary to that.
Perhaps the Minister will answer this question. The one difficulty I saw in regard to section 4 (1) (a) is the requirement to prepare or be in possession of any written material with a view to it being distributed.
That is the key.
That could be very difficult to prove. That is the key area.
That is the point.
If I have a bundle of leaflets in a corner of my premises and somebody walks in and sees them it can be difficult to prove that I was going to distribute them. If the leaflets are just left there but are not in my possession one would have to prove — and I suppose it would be easy to prove that I prepared them — that I was going to distribute them. This could be extremely difficult.
If you had more than one document you would not have it for your own use.
Any of us who have fought election campaigns, with all the literature that is published at election time, will know that the garages and car boots of supporters around the country are full of literature that will never be distributed.
I have that problem too.
The Deputy was only seeking people to support and love him.
That literature is there and one cannot prove that it is going to be distributed.
But the onus is on you to prove your innocence if you lose your seat.
The other question I wanted to ask on this section is whether there is any liability on somebody who is not in possession or has not prepared leaflets but has assisted in distributing them, putting up posters or whatever. Surely they should be caught under this section also? Maybe this aspect is covered and I have not copped it but that is another point I want to check.
The two points I wanted to make is that it could be difficult to prove that these documents were going to be distributed and — perhaps the Minister will answer this — whether people who assist in the distribution of documents in, for example, an estate but who when they are caught are not actually in possession of them can be prosecuted?
I have been comparing the amendment and the subsection and it seems that perhaps the subsection as drafted in the Bill is going over the top in a way in having so many safeguards, for example, "to be satisfied", "that the intention was not" and so on. As Deputy Barrett said, and it was agreed to on this side of the House, it may be very difficult to prove that there has been a view to distribution as well as possession. Deputy McCartan spoke about not assuming that simply because somebody has something in their possession he is going to distribute it, has a view to distributing it or a view to using it in a way that is not permitted. The Bill requires two things to be produced in evidence before one gets to any other assumptions: one is possession and the other is that that possession is with a view to distribution, broadcasting or whatever. I believe that section 4 (3) as it is drafted at present is somewhat cumbersome. If we are to get down to what we intend, I would have assumed that we intend that anybody who has, say, 250 leaflets in their possession which are contrary to this Bill, and the court are satisfied that it is with a view to distribution, realistically the whole ethos of this Bill should require that to be explained and the onus should be put on that person to say "I was using them as notepads" or give some such excuse. As the section is drafted — and I know this is being amended by the Minister — the court has to be satisfied that it is reasonable to assume that the material was not intended for personal use. I think that is irrelevant if the previous requirements have been satisfied in the court, that is, possession with a view to distribution, broadcasting or whatever.
I would like to assure the House and Deputy McCartan that I am every bit as concerned about civil liberties as he is. The Minister correctly made the point earlier this morning that one should not duplicate provisions in a section on a particular matter and that it is unnecessary to do that. I would like to turn that argument to him on this issue and to put it to him this way. Under section 4 (1) this offence has two initial elements and without both elements no offence is committed. Element number one is that the person is found in possession of the objectionable material and element number two is that the person has that material with a view to its being distributed.
If those two elements are essential to constitute the offence how then does the assumption arise that it was not intended for personal use? In other words, if it has to be proved that the material is being distributed, then it cannot be for personal use. At best that is a duplication. If the prosecution goes into court and can only prove possession per se— a point made by Deputy McCartan — the case falls immediately because possession per se is not sufficient; it must be possession with a view to distribution. That is contained in section 4 (1). These two elements are essential to constitute the offence.
To get beyond the direction stage the prosecution have to prove — according to Deputy Colley even that burden may be too difficult and too high, but so be it; I accept it is a heavy burden — that the person had the material with a view to distributing it. The prosecution get beyond that hurdle and they establish, with evidence, that this person is in possession of the objectionable material with a view to it being distributed, then the question of the court having a reasonable assumption that the person had it for their own use does not follow and makes no sense. In all sense, it must be the person who has to establish that they did not have this material with a view to its being distributed. That is perfectly reasonable and perfectly logical. To leave the two sections there is doing the very thing the Minister told me this morning, in another context, could not and should not be done.
Undoubtedly, this is a very technical legal point which is at issue between us and has primarily to do with the burden of proof. I am satisfied that acceptance of Deputy Taylor's amendment would impose an unjustifiable burden on the accused of proving his innocence. I believe that to be so. I feel this is unnecessary. Section 4 creates a new offence of preparing or possessing written material or making or possessing a recording——
With a view to its distribution.
——where these are threatening, abusive or insulting with a view to distribution, display or broadcasting, showing, playing or any other publication where the material or recording is intended or is likely to stir up hatred. This offence will make it possible to prosecute those who prepare racist material for distribution here or abroad where the material is likely to stir up hatred against groups of persons or any other country. In reply to Deputy Barrett, a person who insists on the distribution or the preparation of inflammatory material is equally guilty of the distribution, etc.
Subsection (1) establishes the offence. A person is guilty of an offence under this subsection if he prepares or possesses inflammatory written matter or makes or possesses inflammatory recordings with a view to distribution, etc. The offence is committed whether the material is published by the person himself or by another. The written material or recording concerned must be threatening, insulting or abusive. An offence will only be committed if the material or recording is intended to stir up hatred or if because of publication, or other circumstances, it is likely to stir up hatred. The provision of this subsection are expressed in a way that the purpose of the defendant's intentions can be ascertained and for deciding whether, in all the circumstances, hatred is likely to be stirred up.
Subsection (2) provides a defence in cases where the defendant is not shown to have intended to stir up hatred. This defence is available where the defendant can prove that he was not aware of the content of the material or recording. For example, it might have been innocently packaged or in a language that the defendant did not understand or where he can show that he did not suspect and he had no reason to suspect that the material or recording was threatening, abusive or insulting.
Subsection (3) is concerned with the case where the court is satisfied that the offending material was not for the defendant's personal use. In such cases the court will be entitled to presume, until the contrary is proved, that the material or recording was in the defendant's possession in contravention of subsection (1) with a view to publication.
The quality of material is one of the factors which the court can bear in mind in assessing the defendant's intention. Large quantities of the same pamphlet might suggest that his purposes were not wholly innocent and by contrast a person who has been handed a single leaflet in the streets is clearly outside the ambit of the section.
The effect of Deputy Taylor's amendment and the mere fact that the document is in the possession of the accused raises a presumption against him. It does not require the prosecution to prove that there is any reason to suppose that he has the material for the purposes of distribution. That is why I am having difficulty with Deputy Taylor's amendment. I believe that what we have in the section is right and proper.
Would the Minister consider at Report Stage coming back to us on that section. I believe that section could be rewritten to cover the points which most of us have made. I do not see why it is necessary to put in "with a view to it beng distributed". If the Minister rewrote the section taking in the point made by Deputy Taylor that some onus would be shown that it was for personal use we would not have the same level of confusion as we have at present.
I would be prepared to look at it again to improve it for Report Stage bearing in mind what the Deputy said and having regard to the discussion which took place here this afternoon. God only knows when we will be back for Report Stage, we have so much to look at, but so be it. We will do it properly while we are at it.
Is it agreed that the matter be further looked at on Report Stage? Agreed.
I move amendment No. 23:
In page 6, subsection (3), lines 31 and 32, to delete "the court is satisfied that".
I move amendment No. 24.
In page 6, subsection (4), lines 37 and 38, to delete "or ethnic or national origins" and substitute ", ethnic or national origins or membership of the travelling community".
Amendments Nos. 25 and 26 cannot be moved. Is that agreed?
Not entirely, I want to make it quite clear that amendment No. 25 in the name of The Workers' Party deals with more than is dealt with in amendment No. 24. This point has been made earlier and I simply want to reiterate if for the record. While the ruling is there, we reserve the right to come back on Report Stage to deal with the issue of sexual orientation which is not dealt with in the amendments by Deputies Barrett and Flanagan.
The Minister has agreed that this can be looked at on Report Stage.
I will be raising amendment No. 26 on Report Stage.
We will take amendments Nos. 27 and 28 together with the agreement of the House.
I move amendment No. 27:
In page 6, paragraph (a), line 41, to delete "or Committee of the Oireachtas" and substitute "of the Oireachtas or a committee of the Oireachtas or of either such House".
I accepted an amendment in the other House adding reports for proceedings of committees of the Oireachtas to those of either House of the Oireachtas. The draftsman has advised me that the wording of the amendment does not fully meet its objective, that is, to include reports of committees of the Oireachtas or of either House of the Oireachtas within the scope of section 5. These amendments meet that objective.
I move amendment No. 28:
In page 6, paragraph (a), line 42, after "House" to insert "or such a committee".
I move amendment No. 29:
In page 7, subsection (1), line 12, after "secretary" to insert "or any employee or agent".
This is the section that deals with offences by bodies corporate. It refers to the connivance of either the director, the manager, secretary or other similar officer of a body corporate. I propose to amend that to put in "or any employee or agent" of the company. An agent of a company would not be the director, the manager, the secretary nor a similar officer and the intent ought to be that he should be equally responsible if he is committing an offence within the terms of the Act.
When this Bill was in preparation I very deliberately saw to it that the words "or other similar officer of the body corporate" were inserted after the word "secretary". I wanted to ensure that persons in a position of responsibility such as managers, secretaries or other similar officers could not escape prosecution by attempting to put all the blame on an employee who may have only been following orders. The amendment seems to be based on a misunderstanding of the purpose of directors' clauses of this kind which are common in legislation. The point of these clauses is that by common law a body corporate can commit an offence only if the persons who do the act are in such high positions in the body corporate that, in the words of Lord Denning, they represent the directing mind of the company and control what it does. If this is the case, the company is regarded by law as having acted through them and therefore as having committed the offence. These clauses, then, ensure that the directors and so on should in addition be personally liable for the acts which the law has attributed to the company if they have connived at the offence such as mentioned in the section. If the offence in question was committed by somebody no higher than an employee or agent the offence would not be attributed to the body corporate at all and therefore there would be no offence committed by the body corporate and section 7 would have no application.
I do not see that. The section provides for a director, a manager, a secretary or similar officer. I do not know what is meant by "or other similar officer". What I am trying to avoid is that some device should be used here to escape responsibilities under the Act. A person can set up a company and have this material produced under the name of the company and say they are just the agent of the company. He would not be shown on the company's records as a director or as a registered secretary of the company's office. He would be just the agent and would thereby escape prosecution. That is not what we want. There are unscrupulous people who use companies to escape their responsibilities. We have to be careful not to open up a new door of escape here. "Other similar officer" would not include an employee or an agent. There is no doubt about that. We are leaving open the situation so that some unscrupulous smart person can evade the whole Act and set up some nominee company but he will not be down as a director in the company's office or as a secretary in a company's office. He will be doing its work but will not be responsible. If the Director of Public Prosecutions tries to prosecute he will find that the company is a shell and there will be nobody to make amenable. This agent can escape liability because the Minister will not agree to putting him in as amenable to prosecution, as I am asking in this amendment.
I agree with Deputy Taylor that the role of an agent should be included. From my reading of section 7 (1) it is very much based on the managerial structure of a company and the role of an agent is parallel rather than similar to that. The role of an agent could not be described as being similar to that of a manager, director or secretary. There could be something in what Deputy Taylor is saying, that people would recognise this as a loophole. There is no doubt that companies are set up in order to escape prosecution or responsibilities. I would like to see the word "agent" in there whatever about the word "employee" because if an employee is to be prosecuted where the company is committing the offence, in company law one has to prove that the employee had some responsibility or was acting with those others who are managers or directors. However, the agent is somebody who could well be parallel and escape from prosecution under this section.
If the Minister would agree to "agent" I will drop "employee".
I agree that there is no great difference between what we want to do. We want to ensure that everybody involved will be prosecuted. I want to find the best way to come to grips with this and that is why I believe the section as it stands is as strong as it was, bearing in mind the situation I have outlined. We very deliberately put in the words "or other similar officer" after the word "secretary" to ensure that persons in positions of responsibility like managers and so on could not escape by attempting to put the blame on somebody lower down the line who may have been only following orders. I am advised that there is a possibility of a misunderstanding of the purpose of directors' clauses of this kind which are common in legislation. The point of these clauses is that by common law a body corporate can commit an offence only if the persons who do the act in question hold such high positions in the body corporate that they represent the directing mind of the company and control what it does. If this is the case the company is regarded by law as having acted through them and therefore as having committed the offence. This secures that the directors should, in addition, be personally liable for the act which the law is attributing to the company if they have connived at the offence.
If the act in question was done by somebody no higher than an employee or an agent, his act would not be attributed to the body corporate.
The agent should be liable. I can see the point about the employee.
It would not be attributed to the body corporate and there would be no offence committed by the body corporate, so section 7 would not be applicable at all. I shall have another look into this matter between now and Report Stage. We all want everybody associated with the issue to be made answerable. I would be prepared to look into it with a view to tightening it up.
I would ask the Minister to agree to the insertion of the word "agent" at this point. I can see the argument regarding the word "employee", but I do not think that it applies to an agent. To save having a vote on this issue, I suggest that we insert the word "agent". It will strengthen the section. There could be a loophole otherwise. One could see a situation in which a "shell" company might employ a person as their publishing agent and when they come to prosecution that person would say that he was acting only as the agent, so he could not be prosecuted because the Act does not say "agent".
I shall have a look at that. We can deal with it again on Report Stage.
Surely the agent himself or herself would be liable under the Act?
They would claim that they were acting as agents for the company.
But in their own right?
The agent in employ is liable anyway, but we want to catch the people up along the line also. We want to get at the directors and everybody involved.
At the other end of the scale it would be grossly unfair to a company if somebody did something and the directors genuinely did not realise that this was being done and the company were found responsible even though they were not aware. I can understand what Deputy Taylor is getting at in relation to bogus-type companies, for want of a better word. However, in the case of a genuine company, if somebody printed material in the name of company ABC Limited and the directors or managers were unaware of this, although the person was an agent of that company it would be unfair to hold that company liable. Certainly, the person responsible for it should be.
They would not be held liable under this Bill.
But the company would be.
I want to voice a few opinions on this section for consideration. We are agreeable that we will have another look at the matter on Report Stage. On the general provisions, I could be concerned about the inclusion of an employee for the following reason. The section imposes a regime that is certainly appropriate to the officials or the officers, namely the director, manager and secretary or similar officer, because there is a provision suggesting that if it can be proved that the act was committed with the consent or connivance of or to be attributable to neglect on the part of the person and if that person is an employee that person would be liable. The problem is, how does an employee assert his diligence or authority to ensure that he does not leave himself open to accusations of neglect or connivance? For that reason I would be concerned. Deputy Taylor, however, is correct, in that if an employee engages in an activity that would amount to an offence under the Act he can be prosecuted in his own name. It is correct that that should be so. He is personally liable. Even taking into account some of the considerations that Deputy Barrett has, it is right to leave it at that. This section, as I understand it, is trying to ensure that when a company act then the officers of the company cannot simply walk away saying that it has nothing to do with them. In leaving open prosecutions against companies, it is right that senior management — directors, secretaries and officials — should be put in the first firing line. We should protect that course of action.
In trying to bring in people who act as agents there is a real problem. The Minister should look very carefully at it. There is the whole question of delegation and officers of the company attempting to delegate guilt by delegating responsibility for acts to be done. The case where a person is appointed as an agent as opposed to a person who is an employee must be looked at. All the onus cast on an official or officer of the company should also rest on the shoulders of the agent. Agents should be susceptible. If they are guilty of connivance, they should be drawn into the net and prosecuted along with the company and the officials. I urge the Minister to include "agent" but not "employee". Employees are better attacked in their own name.
In answer to Deputy Taylor's remarks, we will have a look at the situation, bearing in mind what has been said by all Members on the amendment, and come back on Report Stage.
Amendments 30 and 31 should be taken together.
Is that agreed? Agreed.
I move amendment No. 30:
In page 7, line 22, to delete "such" and substitute "any".
The purpose of section 8 is that proceedings for an offence under section 2, 3, or 4 may be instituted only with the consent of the Director of Public Prosecutions. Since in a case where the accused is arrested, proceedings actually commence with the arrest, section 8 is designed to secure that the arrest and any remand in custody or on bail following such an arrest may take place in advance of obtaining the consent of the Director of Public Prosecutions. However, since section 8 as it stands refers to such demands as the court may think necessary, a district justice acting outside the court or a peace commissioner could not remand a person without the consent of the Director of Public Prosecutions. The amendment to section 8 will ensure that such consent will not be required whether the remand is by the court or by a justice outside the court or a peace commissioner. This would be important when an arrest is made at a time, for example a weekend, when the court is not sitting.
I have some worries about section 8 generally. I would like to voice them at this stage. Why does the Minister consider it necessary to have the prior consent of the Director of Public Prosecutions in most instances for prosecutions to be brought? The office of the Director of Public Prosecutions has a very heavy workload. It would have to be conceded that it often takes months to get a response from that office. I am sure that many of the senior gardaí who submit files will confirm this and those who practise and correspond with the Director of Public Prosecutions appreciate the difficulties that the office is subjected to. I think the important feature of all criminal prosecutions is speed, speed must be of the essence. In such situations it is essential that proceedings move with speed. In that way the problem is nipped in the bud and the prosecution relates closely in time to when the material is produced and is current and relevant.
First, we dispose of the amendment before we come to the section.
Deputy Taylor has put down an amendment to the section.
I move amendment No. 31:
In page 7, line 23, to delete "as the court may think necessary".
I move amendment No. 32:
In page 7, line 25, after "Prosecutions" to insert "or by a member of the Garda Síochána not below the rank of inspector".
I put down this amendment largely on the grounds that Deputy McCartan had begun to enunciate a few minutes ago. I have very serious concerns about limiting the right to institute a prosecution to the Director of Public Prosecutions. Obviously the Director of Public Prosecutions should have that right, there is no doubt about that, but I do not believe by any stretch of the imagination that that right should be limited to the Director of Public Prosecutions alone. As we know, there is provision in our legal system from time immemorial for private prosecution under which a private person can initiate a prosecution. Having regard to the type of material involved, a strong case could be made for allowing private citizens to initiate a prosecution under the terms of the Bill. However, my amendment does not seek to go that far, but in effect seeks a compromise between the two positions. It provides that proceedings for prosecution under the Bill may be initiated either by the Director of Public Prosecutions or by any member of the Garda Síochána not below the rank of inspector. That gives the offences a special status that would not normally apply. As Deputy McCartan has said, and he is right, the office of the Director of Public Prosecutions is heavily overburdened and there are long delays before a decision is given. In many of these cases it is very important that there should not only be a prosecution but that it should be speedy and that the matter should be dealt with shortly, sharply and quickly, because if it is not the material may be disseminated and the damage done before any serious action could be got underway. I know that the Garda Síochána have powers of seizure and all the rest, and that is quite right, but even so it is particularly important that there should be as speedy a process as possible.
To be put in the position where you have to prepare statements, books of evidence and all the rest and send it to the office of the Director of Public Prosecutions and then wait for a decision to be made in the Director of Public Prosecution's office would not be tenable in the circumstances and in an attempt to get around that I think we would all agree that the Garda Síochána of the rank of inspector have more than a sufficient degree of responsibility to ensure that a proper prosecution would be brought and that frivolous or unnecessary prosecutions would not be authorised by them. I think it is a fair compromise and I ask the Minister to consider seriously accepting it.
The effects of section 8 is that proceedings for an offence committed under sections 2, 3 and 4 may not be instituted except where the consent of the Director of Public Prosecutions has been obtained or proceedings have been instituted by him. The purpose of this provision is to ensure that trivial or mischievous proceedings which might bring the law into disrepute are not brought, thus ensuring that prosecutions are brought only if the evidence appears to be sufficient to justify the proceedings.
I also want to ensure a policy of uniformity in prosecutions brought before the courts. The nature of the offences are such that if there were no violence, threats of violence, damage to property or threats of such and if there were no restrictions on the rights to start a prosecution, all sorts of minor insults, real or imagined could end up in court cases, not only cluttering up the courts and wasting their time but eventually bringing the law into disrepute. In those circumstances the provisions could turn out to be counterproductive with the type of serious incitement of which we are all aware either being lost sight of among the trivia or very real disrespect for the new laws being engendered. It is true that the proposal in the amendment to allow an inspector of the Garda Síochána to institute proceedings would lessen or remove the dangers I have mentioned——
I hope it would remove them altogether.
But it would not have the advantages I have mentioned of securing a policy of uniformity in bringing prosecutions. Moreover the practice of the Legislature, where it is desired to restrict the rights of prosecution for a widely defined offence, is to require the authority of the Director of Public Prosecutions and occasionally the Attorney General. It would be quite inappropriate in my view, and I think unprecedented, to confer such a discretion on a member of the Garda Síochána. For that reason I am opposing the amendment.
I am happy to be able to deal with this matter in the context of the section. With the greatest of respect, may I say to the Minister that the two reasons he advances for not accepting the amendment in the name of Deputy Taylor are matters that are not primarily and should not be his responsibility and concern. The question of bringing prosecutions, whether they be trivial, mischievous or otherwise is a matter primarily, and I suggest exclusively, for the Garda Síochána.
The question of uniformity of prosecution is again a matter for the Garda Síochána. Our job is to legislate and to lay down the legislative directions and sanctions of the criminal code. That is what we are seeking to do here. The practice and the degree to which those laws are implemented are a matter for the law enforcement agency, the Garda Síochána. We cannot seek in rules and regulations to try to lay down parameters in which the Garda Síochána can operate. If anything that is a matter for consultation between the Minister and the Garda Commissioner or indeed with the Office of the Director of Public Prosecutions if that is conceivable. I do not believe that these are concerns for the Minister or indeed for any legislator. Neither do I believe that the transfer of these functions to the office of the Director of Public Prosecutions will in any way achieve what the Minister desires, but perhaps it will in some respects.
However, I suggest that they would be achievable, as they are in the vast majority of crimes, through the discretion of the officers enforcing the law, the Garda Síochána. I do not think it can be suggested that the Garda Síochána bring trivial or mischievous prosecutions in the area of larceny, or in all the range of offences where they have absolute discretion. I do not believe they are given to producing disunity in terms of the pattern of prosecutions. They are eminently sensible and levelheaded people in the first line of our defence of the community and I think they are the people who should have the authority to make decisions in this regard.
For technical reasons I think I might have been happier if the amendment had allowed the proceedings to be instituted by a member of the Garda Síochána not below the rank of superintendent because I understand that in the ordinary run of authority within the Garda Síochána the inspector has more to do with administrative day-to-day management of the Garda station, deployment of staff and the like but that when it comes to decisions on prosecutions it is the superintendent who takes decisions. However, I think what is being sought by the amendment is eminently sensible and I do not understand what the Minister sees as so important about this type of prosecution. The offences we are legislating for are damnable acts as damnable as any other area of the law we have to deal with. They are particularly odious acts. Incitement to hatred is a problem we are troubled with in Ireland today. I do not think we should attach this status to them, that only the Director of Public Prosecutions can say whether a prosecution be initiated.
Under section 10, the scope for prosecutions by arrest without warrant is extremely limited. I suggest that perhaps 90 per cent, if not more, of all prosecutions that will ever be brought under the Bill, if it passes into law in this form, will come by way of summons after the director of Public Prosecutors has looked at them, and that will be after an inordinate lapse of time. In Dublin the summons procedure is now a computer system, and a summons sought to be issued by the Garda, the Director of Public Prosecutions or anyone else, must take its place in the queue and lodged. One day it will see the light in terms of being issued for service in three, four or six months' time with the return date for court invariably anything from nine to 12 months from the date and complaint is lodged.
Prosecutions under this Bill, having gone through the office of the Director of Public Prosecutions and having taken a number of months to get there, will then be issued by way of summons. I take it the Director of Public Prosecutions will issue the directive to the Garda to proceed, then they will draw up their complaint and lodge it with the computer office. I suggest we are talking about 12 to 16 months before a prosecution will make its way back to court. Such is the reality of the workload of the courts at the moment through the computer system.
Under section 10 only in a very rare instance has a Garda officer the right to arrest and proceed without warrant to court. Section 10 (2) provides:
If a member of the Garda Síochána reasonably suspects that a person has committed an offence under this Act (other than an offence under section 2 (1) (b) or 9 (2) (b)), he may require him to give him his name and address and, if the person fails or refuses to do so or gives a name or address that the member reasonably suspects to be false or misleading, the member may arrest him without warrant.
I, therefore, suggest that only very rarely would the arrest without warrant procedure be embarked upon. We will find 90 per cent of these procecutions coming by way of consent of the Director of Public Prosecutions only.
This is much too cumbersome. It will render the legislation very much less effective. I urge the Minister to look at what Deputy Taylor is advocating and I suggest that the status of the superintendent should be brought into play here, if not that of the inspector.
I am quite prepared to have another look at this for Report Stage and see if we can improve it, if Deputy Taylor is prepared to withdraw his amendment.
Very well, I agree.
I support that.
I have no objection to the rank being taken as superintendent if that will help matters.
I agree with that.
I do not understand this fully, because I am puzzled by the middle of the section, whether it is necessary and how it will work. It provides:
Proceedings in respect of an offence under sections 2, 3 or 4, other than an arrest pursuant to section 10 or such remand in custody or on bail following such an arrest as the court may think necessary, may be instituted only by or with the consent of the Director of Public Prosecutions.
How would there be remand either on bail or in custody before the Director of Public Prosecutions, superintendent or whoever it was had instituted the proceedings? A person can be arrested and so on, but before he gets into the area of remand as I understand it, he has to be charged. As he cannot be charged without the prior consent, I am puzzled about that section.
The effect of section 8 is that proceedings for an offence committed under sections 2, 3 and 4 may not be instituted except where the consent of the Director of Public Prosecutions has been obtained or the proceedings have been instituted by him. The purpose of this provision is to ensure that trivial or mischievous proceedings which might bring the law into disrepute are not brought and to ensure that where proceedings are brought the evidence is sufficient to justify the proceedings.
The power of arrest given to the Garda Síochána in section 10 is specifically excluded from the proceedings referred to in this section as are such remand in custody or on bail following such an arrest as the courts may think necessary. This means that the consent of the Director of Public Prosecutions will not be necessary for such arrest. The arrest is part of the proceedings.
I understand the part about the arrest, but can a person be arrested, even under section 10, and then remanded even before he has been charged? Surely he cannot be arrested and kept in custody or even on bail before being charged.
He could not be charged until the Director of Public Prosecutions has consented.
How would the question of remand arise then? He could not be kept in custody before he was charged.
He can be arrested. Can he then——
He can be arrested, but we are talking about remand. The section states: "... such remand in custody ..."
If you are arrested, something has to happen to you.
He can be arrested and brought before the court and remanded in custody until such time as the Director of Public Prosecutions——
Surely he could not be remanded in custody unless he has been charged?
I am advised, yes.
So he could be arrested and remanded in custody before he was charged with something?
He can be arrested.
When you are arrested you have to be charged within a particular time or let go. You cannot be kept in custody forever.
I am advised he is told why he is arrested. He is brought before the court and he can be remanded in custody until such time as the Director of Public Prosecutions——
That could not be right.
He would get habeas corpus very quickly if that happened.
I see. Proceedings are in abeyance until the Director of Public Prosecutions makes a decision.
Does the Minister mean he has been charged but that further proceedings are in abeyance? Is that what he is saying?
I am advised that the formal charge does not take place until the Director of Public Prosecutions has approved.
Surely he is not going to be kept in custody until then. That could take months.
That could not be right. Is the Minister seriously telling the House that a person can be arrested and kept in custody for months on end without having been charged with the commission of an offence? I know we have some tough regulations but we have not become that bad yet.
Section 10 provides that if a member of the Garda Síochána reasonably suspects a person has committed an offence under section 2 (1) (b) he may arrest him without a warrant.
That is true, but he has to charge him. In this country you cannot keep people in custody indefinitely without at least charging them with something.
He could charge him with other things, could he not?
If he is charged with something, that is all right.
He could be charged with not giving his proper name and address or with being disorderly.
I understand the position to be that he can be arrested, charged formally by the garda and held under common law in custody until such time as the Director of Public Prosecutions decides that there is a charge against him. This section provides for that.
The Minister should have another look at it. Perhaps it is all right but I have some doubts. The Minister is saying that the garda arrests him under section 10 and then charges him with an offence under this Act and he is then remanded.
He can be remanded in custody or on bail following such an arrest, as the court may think fit.
If that is the sequence, the accused person when he has been charged by the garda and comes up for remand will say that the charge is invalid because it has been instituted without the consent of the Director of Public Prosecutions, while the Act clearly states that it can only be instituted with the consent of the Director of Public Prosecutions. At that point the consent of the Director of Public Prosecutions has not been obtained.
The consent of the Director of Public Prosecutions will not be necessary for such arrests or remands under this section.
Would it be possible for the Minister to confirm whether the actual charge is the point at which the proceedings are instituted or is it pursuant to the charge that the proceedings are instituted? Deputy Taylor says that section 8 requires that the proceedings can only be instituted by the Director of Public Prosecutions. I believe there is a gap in the sequence as between the laying of the charge and the proceedings continuing. Whether they are instituted by the Director of Public Prosecutions following the charge is not absolutely clear. There is another unclear point. What is the status of the accused person as between the time he is charged and the proceedings are instituted or continued by the Director of Public Prosecutions? If, as is likely to be the case, the Director of Public Prosecutions will take some length of time to institute proceedings, what is the status of this accused person in the meantime?
My understanding is that the only exception in section 8 relates to an arrest pursuant to section 10. Section 10 is quite specific as to the conditions under which an arrest can take place. Would it not be fair to say that if an arrest takes place under the provisions of section 10 the Director of Public Prosecutions need not necessarily be involved in instituting proceedings? Section 8 states that proceedings in respect of an offence under section 2, 3 or 4 may be instituted only by or with the consent of the Director of Public Prosecutions. In the case of section 10, proceedings could be instituted other than by the Director of Public Prosecutions.
No, only the arrest.
Section 10 gives the Garda Síochána powers of arrest for specified offences committed under the Act. These powers are necessary to make the Act enforceable. Other proceedings under the Act would be initiated by way of summons. Section 10 also gives the Garda the power of arrest without warrant where they suspect that a person has committed an offence under section 2 (1) (b), that is the offence of using offending words or behaviour or displaying offensive written material heard or seen by persons in a public place or at a public meeting. This type of offence has significance for public order and it is important that the Garda be in a position to act immediately, without the necessity of having to obtain a warrant, by arresting any person suspected of committing such an offence.
The second part of that section is concerned with all the other offences under the Act, apart from the offences under section 9 (2) (b). In the case of offences covered by this subsection a garda may require the person concerned to furnish name and address and the failure or refusal to do so or giving a name and address which are suspected of being false or misleading will give the Garda the power to arrest the person concerned without warrant.
The final part of the subsection gives a garda acting under the authority of a warrant under section 9 power to arrest without a warrant a person he reasonably suspects has committed an offence under section 9 (2) (b). For example, in the course of a search of a premises under warrant a person found on the premises may refuse to give a proper name and address to the garda concerned.
The powers of arrest given to the Garda Síochána in section 10 are specifically excluded from the proceedings referred to in section 8 as "such remand in custody or on bail following such an arrest as the court may think necessary". This means that the consent of the Director of Public Prosecutions would not be necessary for such arrests or remands.
That is correct but there is a difficulty. If it were not for that provision in the section, a garda could not even arrest somebody without the prior consent of the Director of Public Prosecutions. There is a clear fault in this draftsmanship which will have to be looked at. The person will be arrested but he cannot be remanded if he has not been charged. He must be either charged or let go. It is quite clearly stated that he cannot be charged without the prior consent of the Director of Public Prosecutions. The Minister's officials know a lot and they are very clever people, but they can get these things wrong in the same way as anybody else.
Perhaps it can be discussed again on Report Stage.
It is a question of passing the section. I can see the difficulty and I am wondering how best to deal with it. I am quite prepared to say this is something we will have to look at in depth.
It seems there is something seriously amiss.
I misconstrued section 10. I indicated previously that upwards of 90 per cent of all prosecutions would be brought with the consent of the Director of Public Prosecutions. I understood that section 10, giving the power of arrest to the Garda must, by definition, also give them power to lay charge and institute proceedings. The principle of Dunne and Clinton is that an arrest is for the purpose of bringing the person before the court, and that can only be done on foot of a charge sheet. The Garda cannot just take somebody into custody, wait for the consent of the Director of Public Prosecutions to prosecute and, in the meantime, just get his consent for the purpose of a remand. Therefore under section 8 all offences must be prosecuted by the Director of Public Prosecutions. I took section 10 to mean that where an arrest was effected under the section, it would automatically follow that the Garda would have the power to lay the charge without reference to the Director of Public Prosecutions. There is a major problem here. How does one get around it? If we allow section 8 to be passed now, is it the suggestion that we cannot delete it or substantially amend it?
No. That would be an improper suggestion. We can deal with this as it is now and come back to it on Report Stage. Deputy Taylor's amendment No. 32 has been withdrawn.
I just want to be helpful.
I appreciate that and I am very thankful. It is throwing up something that we want to deal with properly. This is what Committee Stage is all about. I very much appreciate that we can tease this out in the way we are doing. There is no difference between us on anything. It is only a question of having proper legislation at the end of the day. I accept that we all have an input into this and I would be naive to believe that the input can only come from this side of the House. I accept that that is not so.
Recognising that Deputy Taylor has withdrawn amendment No. 32, that does not prohibit us in any way from dealing with the issues we have been talking about on Report Stage. The section will have to come up for examination on Report Stage and I feel it must be amended. I will amend it, and Deputy Taylor can put down an amendment if he wishes.
I move amendment No. 33:
In page 7, subsection (1) (b), to delete lines 49 to 52, and in page 8, to delete lines 1 to 5 and substitute the following:
"(i) that a requirement specified in subparagraph (I) of section 3 (8) (a) was made in relation to it and was not complied with,
(ii) that the requirement specified in subparagraph (II) of section 3 (8) (a) was made in relation to it and was not complied with, or
(iii) that, in all the circumstances, it is necessary to issue the warrant notwithstanding that a requirement specified in the said subparagraph (I) or that specified in the said subparagraph (II) was not made in relation to it.".
Under section 9 (1) (b) (i) a district justice or peace commissioner will not be able to issue a warrant to the Garda to enter and search a premises unless satisfied that a requirement was made pursuant to section 3 for the production to the member of the Garda of the script or recording, and that the relevant item was not produced to the member. This is subject to the provision in subparagraph 9 (1) (b) (ii) empowering the justice or commissioner to issue a warrant where he is satisfied that this is necessary in all the circumstances notwithstanding that the requirement was not made.
However, there is no provision for the situation where a script or a recording was produced to the member but he was not afforded an opportunity of making a copy of the relevant item. This amendment mainly seeks to remedy that omission by the inclusion of the new subparagraph (ii).
This amendment highlights the point I was making earlier in connection with the requirement notice the Garda superintendent would issue under clause 3 (8) (a). The Minister will remember my making the point that a time limit ought to be provided there for the requirement by the Garda superintendent. The district justice may say that the requirement was made but he cannot say at that point whether it has or has not been complied with and that maybe it is too soon to say that it has not been complied with. In the meantime the material could be dispersed so that by the time the search warrant came to be executed the material would not be there at all.
The same argument about the time limit was made earlier and should be looked at.
It highlights my point. Otherwise there could be a prolonged delay during which the material could be dissipated.
I would like the Minister to consider in general terms the restricted powers of arrest given to the Garda under the Bill by virtue of section 10. Legislation, if it is to be effective, must be coupled with effective powers of arrest. This conviction comes out of bitter experience of watching the Garda having difficulty dealing with particular offences that do not carry with them the power of arrest and detention. It can be very difficult, particularly when dealing with a sector of the community well versed in what their rights are, where they stand and where they can go.
This legislation will be dealing primarily with people who are well versed in its intricacies and know how to play it. The powers of arrest under section 2(1)(b) cover one aspect of a very large range of offences. The Garda have power to deal with someone acting in public or in the open street. Where a garda is dealing with a perceived offence, challenges the alleged offender and asks for detail and the person fails or refuses to give a name or address, I have to suggest, and experience will show, that a garda in that situation is dealing with someone who is clever, devious and well able to lead him a merry dance. It is an extremely difficult area to operate. On being confronted by a member of the Garda who suspects he is breaking the law and asks for his name and address, he may give a false name and address and on parting company with the Garda, he has, for all practical purposes, got off scot free. If the officer suspects that what he is being told is not correct, he has to weigh that and try to investigate further, because he has to be able to satisfy a court subsequently that he had reason to believe what was being said was not correct. There are all sorts of difficulties and nuances.
In view of the gravity of the offences we are dealing with and the difficulties of enforcing this legislation, I would ask the Minister to consider extending the Garda's powers of arrest when trying to enforce this legislation. I would go so far as to say that an officer dealing with these offences should have the discretion to deal with all offences under sections 2, 3 and 4 of the Bill in its entirety. It is a matter for the officer to decide whether he will make an arrest or whether he will simply let the matter go on the basis that he knows the offender well, knows where he or she lives and will have no difficulty serving a summons.
I will be quite prepared to consider what Deputy McCartan has said before we deal with Report Stage to see if I can do anything to ease the restrictive nature of the powers of arrest for the Garda that exist under this section.
When is it proposed to take Report Stage?
Not before two weeks and then only with the agreement of the Whips.
In view of what has been suggested here, I would appreciate if the Minister could do everything in his power to let us have his amendments in good time so that we can consider them.
I will try to let the Deputies have them at least a week beforehand so that they will have an opportunity of considering them.
Would the Minister agree that Report Stage be taken this day two weeks?
Yes, subject to the agreement of the Whips.