Dáil Éireann debate -
Thursday, 26 Oct 1989

Vol. 392 No. 3

Larceny Bill, 1989: Second Stage.

Minister for Justice (Mr. Burke)

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

This Bill is designed to make life harder for those who receive and deal in stolen property by replacing the existing offence of receiving stolen property with a more broadly based offence of handling stolen property.

As well as receiving, the new offence will cover such dishonest activities as undertaking or assisting in the retention, removal, disposal or realisation of stolen property by another or for another's benefit. If a prosecution is to succeed at present for an offence of receiving, it is necessary to prove that the accused had actual knowledge that the property in question was stolen. This presents serious difficulties for the gardaí and prosecuting authorities in bringing to justice people who deal dishonestly in stolen property. The new offence will require that the accused knew or believed that the property in question was stolen. "Believing" in this context will include "thinking that the property was probably stolen". This change will make it more difficult for people who handle goods dishonestly to escape conviction.

The Bill also contains important new provisions regarding the possession of articles for use in larceny, burglary and related offences. As well as covering such obvious items as jemmies and picklocks, the new provisions are widely enough expressed to include things like documents in connection with bogus charity collections, stolen credit cards or the like.

The Government regard the Bill as providing an important new legal weapon to the Garda authorities in the fight against crime. It is aimed at those who sustain the crime industry by providing a market in illegally obtained property. It can apply equally to the man who buys a video in a pub "at the right price, no questions asked" and to the shadowy wholesaler in stolen property, the "fence".

The handling or receiving of stolen property is profoundly threatening to our society; it fosters crime generally and larceny in particular. I have no doubt that if the highly organised receiving gangs were broken up, much of the pillage which takes place in our homes, factories and industrial estates would be significantly reduced. Obviously stolen goods have little value if no market can be found for them. For this reason the Bill provides a sentence of up to 14 years imprisonment for handling. This maximum is an appropriate reflection of the serious view that the Government and society take of what must be regarded as an insidious cancer.

This Bill largely follows from the 1987 Law Reform Commission Report on Receiving Stolen Property, which recommended that the Larceny Act, 1916, should be amended in order to address serious difficulties being experienced in the prosecution of receiving offences. The Bill also broadly reflects the intentions of the 1985 Fianna Fáil Private Members' Bill, which was entitled the Larceny (Amendment) Bill, 1985. This Bill was opposed by the then Government. However, they recognised that problems existed with this area of the law and subsequently asked the Law Reform Commission to formulate proposals for the reform of the law relating to dishonesty.

The commission decided as a first step to consider the law relating to receiving stolen property and, having examined the matter in some depth, issued their report at the end of 1987. The commission's further proposals in relation to larceny, fraud and other offences in the Larceny Act, 1916, are awaited. As I have indicated, the commission's recommendations are the principal source of the proposals contained in this Bill. The commission put the point succinctly when they say that:

.... the existing law permits receivers of stolen property to escape conviction for unjustifiable reasons .... it also facilitates crimes of dishonesty over a wide area.

The commission also remark that:

.... present law on receiving is in many respects unnecessarily favourable to the accused, presents unreasonable obstacles to the prosecution and is seriously out of date.

It is an old saying that "if there were no receivers there would be no thieves". Whatever the absolute truth of that statement, the law enforcement authorities here have been concerned for some time that there appears to be a ready market for stolen property in this country, and that the availability of willing buyers has encouraged theft to a significant extent. It is also clear that the relevant provision in the Larceny Act, 1916, is ineffective in securing the conviction of some persons who, on any objective view, are dishonestly trading in stolen property.

The core of the problem of establishing guilt in receiving cases relates to the mens rea or mental state of the accused which must be established. Section 33 of the Larceny Act, 1916, which deals with the present offence of receiving, requires that the accused person should have received the stolen property “knowing the same to have been stolen”. The requirement that the accused actually knew that the property was stolen excludes persons who, while not knowing for certain that the property is stolen, believe or strongly suspect it to be so. Neither thief nor receiver would, I am sure, be bothered, in the normal course of their transactions, to go into very great detail by way of discussion as to the provenance of the goods that one is selling to the other. A belief or strong suspicion by the purchaser as to the illicit origin of the goods may, however, be evident from the circumstances in which the deal was struck. However blameworthy, this would not amount to the guilty knowledge at present required by the law to justify a conviction for the offence of receiving stolen property.

In order to get over this problem, section 3 of the Bill provides that a person shall be guilty if he knew or believed that the property was stolen, and for the purposes of the section, belief is defined as including "thinking that the property was probably stolen". This new offence is more widely defined than the present offence of receiving. The wider definition of the offence brings within its scope, in addition to receivers, those who undertake or assist in the retention, removal, disposal or realisation of stolen property by or for the benefit of another, or those who arrange to do any of those things. "Stolen property", as defined by section 7 of the Bill, includes also property which has been obtained by false pretences, embezzlement, fraudulent conversion or blackmail.

Subsection (2) (b) of the new section 33 of the Larceny Act, substituted by section 3 of the Bill, places an evidential burden on the accused in a handling case in certain circumstances. It provides that where it is established that the accused handled stolen property in such circumstances that it is reasonable to conclude that he knew or believed the property was stolen, it will be taken that he knew or believed that the property was stolen unless the court or jury, as the case may be, is satisfied, having regard to all the evidence before it, that there is a reasonable doubt as to whether he knew or believed that the property he handled was, in fact, stolen. Evidence which could cast a reasonable doubt as to the guilty knowledge of the accused could be placed before the court, either by the testimony of the accused himself or that of others on his behalf; or the reasonable doubt could indeed be inferred by the court or jury from the appearance and demeanour of the accused, or the case made by his legal representative, or even from the evidence given for the prosecution itself.

One of the more unusual provisions in the Larceny Act, 1916, is that contained in section 43 (1) which renders admissible in receiving cases in certain circumstances evidence as to the previous conduct of the accused. This provision may be regarded as one of the exceptions to the general rule that evidence of an accused's previous misconduct or convictions may not be adduced during the course of a trial. Evidence which may be admitted under this provision includes proof of convictions in the previous five years for any offence involving fraud or dishonesty and/or evidence that other stolen property had been found in the possession of the accused in the previous 12 months. The Law Reform Commission have indicated their reservations about this provision as tending to admit evidence prejudicial to the rights of the accused when it was invoked. Accordingly, the commission advocated its repeal.

I have no difficulty in agreeing with the commission that the provision, as it stands, may go too far, in that it might tend to prejudice the rights of the accused. However, I feel that to repeal the provision outright might tip the scales of justice too far in the opposite direction. Since the offence requires knowledge or belief on the part of the accused that the property was stolen, it is surely relevant for that purpose that the accused has a recent history involving stolen property. I am satisfied that evidence of this type has been vital in the past in helping to establish the mens rea of the accused in cases where it might otherwise have been impossible to do so. It has helped to bring guilty men to justice for over a century. The Government are, I believe, correct in moving to retain this provision, albeit in a considerably modified form and with new safeguards, in the interests of preventing crime and bringing big time criminals to justice.

The safeguards I propose in regard to the new provisions are, firstly, that evidence of previous possession or previous convictions should be admissible only in cases where handling or receiving is the sole charge faced by the accused. Secondly, it is proposed to narrow considerably the range of previous convictions which may be cited in evidence to convictions for larceny and receiving or handling stolen property. At present the Larceny Act permits any offence involving fraud or dishonesty to be cited in this type of case. This could include, theoretically, submitting a false income tax return for instance. Finally, it is proposed in the Bill that, in future, evidence as to previous possession or convictions in respect of the accused could only be adduced in the trial after it has been shown that he had, or arranged to have, the property the subject of the charge in his possession or that he arranged to undertake or assist in its retention, disposal or realisation. Under the present section 43 the requirement that the prosecution must first prove that the accused was in possession of the property to which the charge relates applies only to the giving of evidence of his previous convictions but not to the giving of evidence that other stolen property had been found in his possession.

In their report on receiving, the Law Reform Commission referred to the anomaly in the law in so far as receiving property stolen outside the State is concerned. This is that, according to two decisions of the Supreme Court, it is not an offence at present to receive here property stolen in England, Scotland or Wales even though it is an offence to receive here property stolen anywhere else, including Northern Ireland. Section 7 of the Bill gets rid of this anomaly by applying the offence of handling to property stolen anywhere outside the State.

Another of the difficulties in the application of the present law on receiving relates to the finding of alternative verdicts in cases where there was a doubt as to whether the accused was the receiver or the thief of the property in question. At present a person accused only of receiving must be acquitted if the evidence shows that he was, in fact, the thief. I think Deputies will find little difficulty in agreeing with the Law Reform Commission's recommendation to remove this anomaly, which is followed in section 8 of the Bill. The particular need for alternative verdicts arises because the external circumstances of stealing and handling can be very similar though they are quite separate offences.

One of the questions raised by the commission's report on receiving stolen property related to the penalties provided under the Larceny Act for larceny and receiving offences. The commission advocated that both crimes should attract the same maximum penalty of ten years. I do not feel that a sufficiently strong case has been made out which would justify. removing the higher maximum penalty of 14 years which has hitherto applied to receiving offences — as compared with the present general maximum penalty of five years and the proposed new standard maximum of ten years for larceny. There are many instances in which the receiver of stolen property is, in fact, the instigator of theft — particularly where valuable or unusual items are stolen. It is wrong in my view that the courts should not have power to punish the generals of crime more severely then the footsoldiers whom they get to do their dirty work. For this reason, as I have said, the Bill provides a maximum of 14 years for handling stolen property, as against ten for larceny and other related offences.

The present law provides a wide variety of maximum prison sentences for different specific types of larceny and related offences. These range from a maximum 18 months for stealing a dog to life imprisonment for stealing, say, a will. The opportunity has been taken in this Bill to set at ten years the maximum sentence for all types of larcey specified in the 1916 Act, and also for the related crimes of blackmail, obtaining by false pretences, embezzlement and fraudulent conversion. A further innovation in the Bill is the power it gives a court, when passing sentence on conviction on indictment for handling, larceny or related offences, to impose a fine in addition to or in substitution for a term of imprisonment.

The Bill brings into line with the proposed changes in the Larceny Act, 1916, various provisions in the Post Office Act, 1908, and the Defence Act, 1954, dealing with receiving offences and larceny related offences.

I would like to mention the provision in the Bill, at section 2, in relation to the possession of articles for use in the course of or in connection with larceny, burglary, other types of dishonesty covered by the Larceny Act, and taking a vehicle without authority. This provision largely follows a recommendation in the Law Reform Commission's 1985 report on vagrancy and related offences and updates the law considerably on the offences of possession of housebreaking implements, etc. which is at present provided for in the Vagrancy Act, 1984, and at section 28 of the Larceny Act, 1916. The present offences relate to a narrow and outdated range of housebreaking equipment: picklocks and crows, etc. and somewhat anomalously, in the case of the Larceny Act, confines the offence to persons found in possession by night only. Members will be aware that the cloak of darkness is by no means an essential prerequisite for the criminal. The new provision goes somewhat further than the Law Reform Commission's proposal in that it brings in within the scope of the offence possession of articles for carrying out, for instance, an act of fraud or blackmail. This would encompass, for instance, begging circulars from bogus charities or any of the other items that door-to-door conmen use in plying their unscrupulous trade. The proposed penalty of a maximum of five years imprisonment and/or a fine is consistent with the present section 28 of the Larceny Act.

Before I finish, I would like to place on record my appreciation of the Law Reform Commission's work on the subject areas in question. They have surveyed the state of the present law, both in this jurisdiction and in many others, and have put forward reasoned proposals for legislative change. The task of the Government in considering the issues dealt with in this Bill was made very much easier by the reports of the commission, and the House as a whole owes them a debt of gratitude in this regard.

In conclusion, I would like to say that I regard this Bill as providing the law enforcement agencies with a powerful weapon in the fight against crime, whether petty or organised. There is a public perception that people who on any objective view are dealing dishonestly in stolen property are able to exploit the inadequacies of the present law so as to escape justice. I am convinced that this Bill will redress that situation and will strengthen the hand of the prosecuting authorities in bringing such people to book. I look forward to a constructive debate on this Stage, and the co-operation of the House in ensuring that the Bill becomes law as soon as possible.

I commend the Bill to the House.

Mr. J. O'Keeffe

I take the opportunity to welcome the Minister who is making his first speech to the House as Minister for Justice.

I welcome the Larceny Bill in principle but I have major reservations about its likely effectiveness in bringing to justice receivers and handlers of stolen property. Furthermore, I can foresee constitutional difficulties in relation to some of its provisions. I am particularly concerned that the approach recommended by the Law Reform Commission has not been adopted by the Government and no satisfactory explanation has been given by the Minister for Justice for deviating from the recommendations in that report. Overall, it is clear that the Bill is defective in many respects and will need to be substantially amended and, I believe, referred to the Supreme Court for a decision on its constitutionality.

I took with a grain of salt the references by the Minister to the work of the Law Reform Commission. It is marvellous work but the Minister, having complimented the commission on the work they did, has largely ignored their recommendations as to how this problem should be tackled. The onus is on the Minister to justify the approach he has adopted in the publication of this Bill and he has not discharged that onus of proof in his speech to this House.

Before I go into the detail of the Bill I should like to say that there is virtually unanimous opinion that the law needs to be reformed. Receiving and handling the proceeds of crime is now a major industry. Last year alone the value of property stolen increased from £31 million to £34 million of which less than £3 million worth was recovered. Further confirmation of the current crime wave is provided in the figures for offences against property in the recently published 1988 report on crime. Such offences with violence, including burglary, aggravated burglary, robbery etc. increased to 35,679 and larcencies, forgeries and fraud offences of various kinds went up by over 3,000 to 51,291. That gives an idea of the scope of the problem with which we are dealing. In effect between the two categories of offences over 85,000 offences were recorded to the Garda. Despite these appalling figures over 268 convictions were recorded for receiving stolen goods. Obviously crime does pay in a big way nowadays. The job of Government is to initiate the necessary changes to reverse that position.

My own view is that no progress of any consequence will be made while the problem is handled in a piecemeal fashion. A major campaign against crime is necessary. Such a campaign must include changes in the operational structures and the management and training of the Garda Síochána. Crime prevention must be given a new priority and there must be a particular emphasis on relieving gardaí from routine office administrative duties and other non-police work so that more members are available on the streets and in housing estates. Changes must be made in our prison system so that the revolving door syndrome is ended. The Minister must ensure that minor offenders, such as those unable to pay fines, are not clogging up the available accommodation. Hardened criminals must serve their full sentences. For them there should be no prospect of early release because of over-crowding.

Furthermore, it is necessary to undertake urgently a whole programme involving a review and updating of our criminal code. While the new Bill is one necessary piece of legislation it is merely a small part of the comprehensive programme of law reform that is necessary. It is an even smaller part of the overall campaign against crime which is so urgently necessary.

The centrepiece of the Bill involves the replacement of the existing charge of receiving by a new offence of handling stolen goods. The Minister mentioned that under existing law nothing less than actual knowledge that goods are stolen is sufficient to found a conviction for receiving stolen goods. A belief that the goods were stolen, falling short of such knowledge, will not suffice and, of course, mere suspicion that they were stolen or recklessness — that is an important word in the context of what I have to say later — as to the provenance of goods is not sufficient to found a conviction. As a result many prosecutions have been unsuccessful and many more have not been brought at all. That is clear from the figures I have quoted: there were only 268 convictions recorded for receiving last year out of a total of 85,000 offences for larceny and related crimes. Clearly, our present law on receiving is unreasonably favourable to the accused. It presents unreasonable obstacles to the prosecution and is seriously out of date. So far we have common case but from here on we have some problems.

The main question to be addressed is whether the new approach outlined in the Bill will be effective. All of us in this House want to see a Bill that is going to be effective in tackling the godfathers of crime. My worry is that this Bill will not achieve that effect.

The Law Reform Commission examined 12 possible legislative strategies in considering the difficult question of the mental element in the offence of receiving or handling stolen property. Quite rightly, the Minister in his speech indicated that the core of the problem of establishing guilt relates to the mens rea, the mental state. If one looks at the various strategies examined by the Law Reform Commission, these ranged from liability based on receiving without regard to the belief of the accused as to whether the goods were stolen right up the line to the need to prove that the accused was actually certain that the goods were stolen. In the gradual process from complete disregard for the mental element the commission discussed possible approaches including reception, whether a reasonable person ought to suspect or ought to have been certain that the goods were stolen. They discussed an approach involving suspicion and also an approach involving recklessness. They also examined shifting the onus of proof. They looked at a graded solution where the severity of punishment would depend on the mens rea and they also looked at the question of imposing more onerous obligations on convicted receivers. Ultimately, the commission concluded after, obviously, much thought, debate, consultation and deliberation that the test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were unlawfully obtained. They recommended the definition of recklessness as provided for in the draft model penal code in the US. Clearly the Minister has taken a radically different approach. He seems to have adopted the UK approach of liability which is based on reception where the accused believed that the goods were stolen. I do not know whether it is symptomatic of a tendency in this country, not just by this Government, to look at the situation abroad and to end up following the British model. I am not saying that the British model in all cases is the one we should not follow but there is clear evidence in the Law Reform Commission report, in this instance, that it certainly is not the one we should be following. I think it is worth quoting the Law Reform Commission's comment on this legislative approach.

This solution was adopted in section 22 of the English Theft Act 1968, to unfortunate effect. These difficulties have been attributed to the judicial interpretation of the section.

Later on, the commission stated and again I quote:

There is however an inherent problem with using the word "belief" in this context, which the English courts were surely correct in sensing. Belief admits of different degrees of commitment, ranging from certitude to suspicion. There is little advantage in a legislative definition which leaves the question of the accused's mens rea in such an imprecise state.

There is a further quoted observation from the report which is relevant to this discussion. It goes as follows:

Sometimes you would think that the courts were trying to make a dog's breakfast of the law of handling stolen goods. In one line of cases in Section 22 of the Theft Act, 1968 they have interpreted the words “knowing or believing them to be stolen” to mean “knowing or knowing them to be stolen”, so perpetuating the defect in the earlier law which the addition of the words `or believing' was designed to cure.

My concern now that these dangers have been pointed out to us by the very intensive and marvellous work of the Law Reform Commission is that the Minister is making a dog's breakfast of this proposed solution. He has not followed the recommendation of the Law Reform Commission which was that the test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were stolen. I have a real concern that the Minister may be presenting a rogues' charter which will keep the courts busy for years with judicial interpretation and which will do nothing to seal the legal loophole which now exists.

When one compares the report of the commission with what appears in the Bill it is clear that the Minister has deviated from the recommendation of the commission which, clearly and unequivocally, stated that the same sentence should be provided for larceny and receiving. The Minister has provided for a maximum of 14 years for handling and a lesser period of ten years for the person who stole the goods. The Minister in his speech seemed to indicate that he thought the approach adopted by him was a better way of getting at the general of crime. Maybe he has a point, I will not quarrel with him. Obviously I would like to see the generals of crime brought to justice but it may be that those generals of crime may be engaged in the business of larceny. It may be that, as provided for in this Bill, when they are hauled before the courts the correct conviction to be recorded against them is larceny rather than receiving or handling. It seems the Minister has limited the weapons in the hands of the prosecution by limiting the penalty applicable to those who steal the goods in the first place. Clearly, it runs counter to the view expressed by the Law Reform Commission.

An even more serious point has emerged on the question of penalties. The commission recommended that the court should be able to order compensation by the handler to the victim of the primary offence. Again, this recommendation has been totally ignored by the Minister. Why? Surely it is sensible, proper, just and right that we should have consideration for the victim of the crime? If the generals of crime — to use the Minister's expression — have the means to provide compensation for the victim of the crime we should provide a route by which such compensation can be provided. This was recommended by the commission.

Similarly, proposals by the commission have been ignored in relation to providing that the offence would be committed in respect of goods unlawfully obtained as opposed to stolen. There has been no explanation by the Minister as to why he ignored this recommendation.

On the question of evidence the commission also looked at the problem of the admission of proof of business or administrative records which apparently causes so much difficulty in many prosecutions. They made a positive recommendation on changing that but this also has been ignored by the Minister who is taking a major risk in straying so radically from the recommendations of the commission. Let us remember that these recommendations were worked out after very considerable consultation. While the commission consist of a very senior judge, solicitors, barristers and so on they did not just produce their recommendations out of the air. They produced a working document first and they then consulted judges, barristers, solicitors, academics, the Attorney General's Office, the Office of the Director of Public Prosecutions, the Department of Justice and the Garda. It was arising from such consultations, following the issue of their working paper, that they produced this very valuable report of their conclusions, a summary of recommendations and the general framework of a Bill to provide for amendments of the law. Whatever the Minister says about his respect for the views of the Law Reform Commission it is very clear that the Bill as it is framed at present largely ignores the recommendations. There is a major onus on the Minister to justify his approach. He certainly has not discharged that onus in the House this morning.

I mentioned in my opening remarks my concerns about the constitutionality of this Bill. Section 5 provides for the giving of evidence of previous convictions or previous possession of stolen property. As the Minister said, this section replaces section 43 of the 1916 Act. The Minister has not followed the recommendations of the Law Reform Commission in this regard. They felt that the section should be repealed in its entirety because of misgivings about its constitutional validity. In the case of King v. the Attorney General where the Vagrancy Act was found to be unconstitutional, the judge made it clear that evidence of character or previous convictions should not be given at a criminal trial. It was because of doubts raised by the King decision that the commission proposed the repeal of section 43 in its entirety. The Minister seemingly is prepared to blunder in where the commission feared to tread and he must justify that decision. He has suggested that by limiting the situation it will be constitutional but I have major doubts on that score. If the Minister persists in his present approach he will have to refer the legislation to the Supreme Court for a decision on constitutional validity.

I am told by one of the country's leading criminal lawyers that this point is fundamental to our criminal jurisprudence and that in his experience — whatever the Minister said this morning about the use of the original section 43 as a weapon available to the prosecution — the original section was never availed of by the prosecution because of the fears that any conviction so obtained would, without question, be quashed and that view is borne out by the comment in the report of the commission. Why then is the Minister proceeding with such a blatantly questionable provision?

Similar constitutional doubts arise in relation to the shifting of the legal burden of proof on to the accused as provided in section 3. The commission very specifically stated that they do not favour setting specific circumstances in which presumptions may be raised in the section constituting the offence. This considered view is again based on the constitutional implications. Again, the Minister has blundered in without regard to these constitutional implications.

There are further less important defects which can be teased out on Committee Stage. The Minister in his speech referred to the changes which he is introducing in section 2 in relation to the possession of articles for use in the course of or in connection with larceny, burglary and other types of dishonesty covered by the Larceny Act. However, he has given no definition of "articles" which seems to create a legal lacuna. Surely the very least that might have been expected would be some definition of "articles". He has eliminated the earlier definition and has not provided any definition in the new section.

Furthermore, in relation to section 7, I am advised that these provisions will lead to great difficulties in the same way as did the provisions of section 46 (1) of the 1916 Act. That matter will have to be teased out fully on Committee Stage.

Looking at the overall picture, it is clear that there is broad agreement that the Larceny Act, 1916, in so far as its provisions are related to the crime of receiving, are clearly in need of replacement. The Minister has chosen to ignore virtually all of the advice available as to how this might best be done. If the Minister proceeds with his present blunderbuss approach he may very well end up rendering a bad position even worse. The reference in the report of the Law Reform Commisssion to making a dog's breakfast of the job will clearly apply to the Minister. I suggest very seriously to him that he should reconsider the whole matter at this stage, either withdraw and replace the Bill or, alternatively, indicate that it will be amended substantially on Committee Stage. He will have the assurance of his House of full co-operation in getting a Bill through but only if such a Bill will be effective in doing the job for which its provisions are intended. Particularly because of the major recommendations of the Law Reform Commission which have been ignored, I have the gravest doubts that the Bill, as at present drafted, will achieve that aim. Accordingly, I am indicating to the Minister my concern at the problem.

I appreciate the need for new legislation and will not oppose this Bill on Second Stage. However, I am putting down a clear marker that I have the gravest worries about many of its provisions, in that it is my contention that they will not be effective in bringing the godfathers of crime to justice and, in relation to two sections, I have serious doubts as to their constitutionality.

Mr. Kavanagh

This debate is very timely since it was only a couple of months ago that we received the report on crime from the Garda Commissioner. The contents of that report demand initiative on the part of the Government to deal with the very serious crime problems obtaining. After a period of approximately four years in which reported offences detected showed a slight drop each year the figures for 1988 showed an increase in crime level throughout the country. It was interesting to hear the Minister say in the course of his remarks that in 1985 the then Fianna Fáil Opposition considered the position so serious they introduced a Private Members' Bill to deal with larceny. That was done after a period of consistent increase in crime from 1979 to 1983 when the rate had escalated from approximately 65,000 to in excess of 95,000. That was a responsible action on the part of the then Opposition. The Minister had a little dig at the then Government in the course of his introductory remarks today, saying that they had not accepted their Private Members' Bill. It will be extraordinary when a Government accept a Private Members' Bill in this House. Usually they vote them down, saying they will introduce one themselves.

Mr. J. O'Keeffe

If they can.

Mr. Kavanagh

It will be clearly seen that the action taken by that Government at least had the effect of reducing the numbers of crimes committed for four successive years. At that time the Attorney General, Mr. John Rogers, invited the Law Reform Commission to bring forward proposals for the heads of a Bill in this area. The Minister has had that report for approximately 15 months and has now decided to act. In 1985 the overall position was considered urgent by Fianna Fáil. The Minister's predecessor had ample opportunity to take appropriate action during the term of office of the last Administration. As Deputy J. O'Keeffe has said, there is no area more in need of urgent attention than this one. He was quite right in saying that crime does pay. Indeed it does.

As a result of the report by the Garda Commissioner the Garda themselves, in their Garda Review dealt with that problem in an editorial underlining the problems they face dealing with crime at present. They also emphasised that the value of crime to its godfathers is considerable. For example, goods to the value of £34 million were stolen last year, that is those reported as having been stolen, which would not represent the true figure. For example, many people do not bother reporting smaller amounts stolen for fear of having their insurance premiums increased. Of those £34 million worth of goods stolen only £3 million were recovered and of the number of people who committed such crimes only one in four was caught or detected. Is it any wonder that the Garda have expressed their anxiety about the overall problem and sought a response from the Minister and Government?

I should like to take this opportunity of wishing the Minister well in his new portfolio. I hope he will remain in office for some years to come and that we will have several constructive debates. Having proved himself a dynamic Minister in other Departments I expect him to take on the challenge of confronting this problem, particularly on behalf of citizens who, in certain areas, are beginning to doubt that there is the capacity to deal with or counteract crime. If one is lucky enough to reside in, say, Mayo or west Cork, one will discover there are only four to six crimes committed per thousand of population.

Mr. J. O'Keeffe

We are very civilised in west Cork.

Mr. Kavanagh

However, if one happens to live in the Dublin metropolitan area that figure escalates to 53 per thousand of population. The Minister lives in that area and a large part of my constituency is in that area also and all of us have been aware for some years past of the deteriorating position. Anybody now driving into this city without the luxury of car parking facilities will be very reluctant to park on the street. Certainly any car owner is very foolish to leave goods visible in a car for even the shortest length of time. Equally, if one owns a house in this city, or in areas such as, say, Bray or Greystones one knows one cannot go away on holiday unless one can leave somebody in occupation in one's absence. Equally, there will be a loading on one's insurance contents premium because one happens to live in this area. Indeed in certain parts of this city, when one dials 999, one discovers that the Garda just do not have the manpower or facilities to cope effectively with the demand on them.

I heard of one incident about a fortnight ago when a burglar alarm rang in a house in the process of a burglary being committed. This was in a house not far from where the Minister himself lives. A next door neighbour telephoned the Garda. Even though the Garda station was sited only a mile away, one and a half hours later the gardaí arrived in a squad car and had to explain that they had received six 999 calls within a very short space of time and had had to deal with them in the order in which they had been received. The gardaí informed the owner of the house that he was lucky the neighbour had telephoned because obviously the burglars had left the scene. They told the owner they would give him a note for his insurance company authorising him to be reimbursed for whatever he had lost.

Rather than a response to larceny in the legislative area alone, we would have expected a more dynamic approach to the whole problem of crime. We have not got that. In the new Estimates for the Minister's Department the number of gardaí to be paid out of public funds will be 500 fewer than in 1988, when we were promised last year that there would be additions to the Garda force. Not only that but the numbers of clerical staff have been reduced by 30 from 567 to 537. The number of Garda Síochána were reduced from 11,248 to 10,749 in this year. It is not enough to increase penalties and create new offences in dealing with crime. That is only one leg of a twolegged stool and the stool will not stand on one leg. We must also give the facilities to the Garda Síochána and increase their numbers to tackle this problem. When criminals have been caught there must be facilities so that we can put them away for the term decided by the court, with the usual reduction for good behaviour and so on. As we all know, those facilities are not there. I do not blame the Minister who is new in the job, but at least he has been in Government now for over two years. I hope to see a much wider and more vigorous approach from the new Minister.

The gardaí in an editorial told the general public that failure to acknowledge the present level of violence and frequency of crimes is totally unacceptable to our people and is inexcusable and that any undue delay in confronting this serious challenge would be unforgiveable. What we have been given here today is one approach by the Minister to deal with this challenge and it is totally inadequate. This Bill is a list of five or six amendments to the 1916 Larceny Act. When the previous Attorney General set the commission a task to bring forward proposals they did so with great speed and there was a great deal of input from as many sources as could be found who had a point of view to offer in this area. They produced recommendations and the general outline of a Bill so that in December 1987 the Minister was presented with a comprehensive set of proposals which introduced the new concept, or offence of handling, and dealt with several other areas. The parliamentary draftsman could have taken those proposals and adapted the wording so that the Bill could pass through this House and the Minister could have also added to it. Instead, we have this weak inadequate response, this list of amendments to a Bill which is in many ways outdated.

The Bill, even with the changes proposed will be inadequate to meet the problems. I do not understand why the Minister had to redraft the proposals. The proposals produced by the commission were more far-reaching than the Bill proposed here. The Minister in his Bill seems to have forgotten some of the concepts proposed such as that relating to reckless behaviour in dealing with the receiving of goods. That is not referred to at all. The Minister has missed an opportunity here.

I will comment on a few of the important sections in the Bill. Section 2 of the Bill deals with the possession of house-breaking implements and refers to "somewhere other than in the place of abode". If one has one of these instruments somewhere other than in the place of abode one can be convicted under the Bill. This is too tight to make good legislation. Many people would have instruments which could be used for larceny, though not necessarily for larceny, not only at home but while travelling. The section should be clarified and that concept should only be capable of being used where it has been proved in evidence that the accused has been involved in a crime.

Section 2 of the Bill relates to the term "to be in possession". The Law Reform Report throws doubt on this term. It can mean a lot of things. If the Minister is using it he should give a wider definition of the term. Are passengers in a car in possession of items in the boot, for instance? The driver of a car could be said to be in possession of items in the boot but he may not know they are there. They could have been put there by anybody and in this Bill that will not be an excuse and a person can be convicted. I came up here today with two friends in the car and they put bags in the boot. I do not know what was in the bags although I have a good idea, but suppose there was some money from a robbery, under this Bill I can be convicted and put away. That section needs to be amended.

Section 3 refers to the word "dishonest" and it is not defined. We all know that there are varying degrees of dishonesty, from dishonesty of the children at home to the big lies told in other areas, even in this House. We should not put in that term without some sort of clear definition of it.

Some of my colleagues have an advantage over me because they are legal eagles, but one of the most intriguing parts of this Bill relates to section 3 (c) where I found a very strange term indeed. It states that where a person believes property to be stolen property, including thinking that such property was probably stolen, he may be indicted and convicted. Something new is being introduced here whereby if you think about something you can now be convicted. We are all familiar with the phrase about "something falling off the back of a lorry" and know it is a euphemism. If somebody gets a good bargian and thinks it might have fallen off the back of a lorry, that is now an offence under this Bill. The Minister should look seriously at that area and define it more. The ordinary people cannot think anymore but they are committing a crime.

If I look at the articles for sale in tonight's Evening Press or Evening Herald and see a bargain such as “Video for sale, brand new, owner going away” and if I call to see it, think the place looks a bit suspicious and am told I am being offered the video at half price, am I committing a crime under this section if I buy it? Will it now be the responsibility of the press, in accepting small ads, to get total assurance that if somebody buys something as a result of an advertisement in their paper, without knowing it was stolen, they will not be taken to court? That area should be looked at again by the Minister.

Section 5 (1) (b) proposes to amend section 43 of the 1916 Act. The Law Reform Commission suggested that this whole section should be repealed and not just amended. They believe this section as it applies in that Act is probably unconstitutional. The Minister, having been given that advice by such eminent gentlemen as signed this report, is endeavouring to amend the section. It is not very often used and it would not be any great loss if it was not there at all but it may render this whole Bill unconstitutional as the previous speaker has suggested? The Minister should consider this matter between now and Committee Stage. This section also states that seven days notice must be given in writing to the accused if the details of a prior conviction are to be adduced. Can the Minister tell me if this seven days clause applies to the calling of witnesses on a deposition? It would be useful to know that.

The definition of handling, which is the real kernel of this Bill, should be widened to include the godfathers or the bosses of crime at whose orders an amount of crime is carried out in this city. These people never enter into the picture and this Bill falls down slightly by not having some clear reference to them. They should be included specifically in a Bill such as this. One of the great faults of the Bill as I see it is that it deals only with physical handling and therefore it is a little outdated. There are many sophisticated ways of doing business but unfortunately the same sophisticated ways can be used to commit crimes. This Bill has not taken into account the modern techniques being introduced into the whole area of crime. The crime of stealing information and the disposal of that information should be included in the Bill. The Minister has missed an opportunity here. If one illegally listens to a commercial meeting and steals information therefrom, dissemination of such information should become a crime of unlawful handling. It is reasonable to ask that that be included in the Bill.

Many people use cash dispensers in banks and use plastic cards such as Visa and Access. Crimes committed in this regard have been totally ignored. The Minister may say that it is covered in certain sections but crimes such as stealing somebody's pin number and using the money to buy goods should be specifically and clearly set out in a Bill such as this. Obviously this is an extension of handling but nevertheless it is a crime and people should be given clear warning that if they enter into that type of activity certain penalties will be imposed. Similar penalties should be imposed for crimes relating to Visa and Access cards and plastic cards in general.

I will mention one or two areas which I think should be amended. I would bring one section to the Minister's attention and I would like him to give me some explanation on it, that is section 10 which proposes to amend section 51 of the Post Office Act, 1908. It provides that a person who commits a crime in that area, who steals mail or money from An Post, will be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and if he is guilty of a misdemeanour he will be liable on conviction to a fine and to imprisonment with or without hard labour. As I have said, it is proposed to amend that section and to introduce new and very severe penalties. I would ask the Minister if any consultation has taken place with the management of An Post or with the various unions in An Post before that section was inserted. It is useful for good industrial relations that when we change an Act such as this and introduce very severe penalties, some discussion should take place with the people involved, in this case people who recently had to accept a whole new Act which set them up in a semi-State body. When making changes which affect people's future, we should consult them beforehand. I would like to know if consultation has taken place with the staff of An Post in regard to this section.

This Bill needs extensive alterations and improvements. I hope the Minister puts forward amendments on Committee Stage following an examination of some of the serious criticisms which have been made on the Bill here today.

Leaving aside the question of sentences, this Bill contains little or nothing which a sensible judge or jury could not deal with under the existing Act. The Bill is a poor one and adds nothing to what is there already. The publication of the report of the Law Reform Commission gave us the opportunity to introduce extensive and competent legislation dealing with crime, but this Bill still accepts the idea that there is only manual handling of problems and fails to attack blue collar crime which is increasing, as I have already stated. No attempt is made in this Bill to deal with it.

We will be tabling amendments on Committee stage, and do not intend to oppose the Second Reading of this Bill. We hope the Minister — this is the first Bill he has brought before the House since taking over this Department — will be prepared to accept our comments and criticisms on what is before us and that some of our amendments on Committee Stage will be accepted in an effort to improve the Bill and bring a little nearer to what the Law Reform Commission intended.

Mr. McCartan

I welcome this opportunity, on behalf of The Workers' Party, to make some comments on the Second Reading of the Larceny Bill, 1989. As many of the things which need to be said about the Bill from an Opposition's point of view have already been very ably and comprehensively dealt with by the two previous speakers, I hope I will not sound too repetitive.

The first thing we have to note is the origin of this legislation. During the life of the second last Government the then Attorney General requested the Law Reform Commission to look at the aspects of the criminal law and to report to the Government on the need for reform. They were also asked to look at the broad spectrum of laws with regard to dishonesty. The Law Reform Commission readily and willingly accepted their brief and, subsequently delivered to the Government a report on receiving stolen property.

The commission pointed out in the introduction to that report that they were confined to dealing with receiving stolen property, primarily because of the lack of resources. It is terribly unfortunate that they have to recite this fact in the opening paragraph to this very important document — that they were not in the position to deal with the major task presented to them by the Government, namely, a review of the law with regard to dishonesty, because they did not have the resources to do so. A common complaint of the Law Reform Commission is that they cannot get on with their work because they have not been given the resources to do. I do not know of anyone in this House who would suggest that the commission do not do a good job and are not deserving of the appreciation of all the Members of this House. When introducing this Bill the Minister indicated that he wished to express his appreciation and gratitude, but let me say that the Law Reform Commission would accept his appreciation and gratitude much more if it came in a more meaningful way. Words are welcome but I think the Government should give the necessary resources to the commission to allow them to do their job in a comprehensive way.

As Deputy O'Keeffe has already said, we should show our gratitude and appreciation by referring to the reports. One of the problems is that so many of the commission's reports are sitting on the shelves and are very rarely referred to. They are never debated in this House and rarely, if ever, converted into legislation. What we see here today is the exception to the norm, a very quick response to a remarkable document in terms of its comprehensiveness and breadth of investigation. However, when we do respond quickly we do so poorly. I wonder the extent to which the Government may be burrowing back into a Bill which they promoted when in Opposition simply to make the point? As the Minister said, this is a Bill they presented when in Opposition, the Government of the day opposed it and they are now bringing it back because they think it is sensible legislation. Perhaps that is a small, cheap political manoeuvre, but one cannot blame politicians who are not taking their job too seriously for engaging in this practice.

A major event occurred in the intervening period, that is, the commissioning of the report on receiving stolen property. In that report the commission reviewed the anachronistic laws with regard to receiving stolen property, commented very clearly on many aspects of the law and indicated how old those laws are. They also incorporate a review of the position in other jurisdictions of comparable standing and go on to make their own recommendations. In their conclusion to the report they suggest a formula for a draft Bill in this area and succinctly set out, so that no one would have any doubts, a summary of their recommendations of which there are 16. It is remarkable that the Minister has not given due regard to the findings, observations and recommendations in that report.

The Law Reform Commission make a clear admission, and this is a matter for Government, that they did not have the resources to take on the greater task. Certainly, it is a matter of criticism that we have not had a comprehensive review of the law with regard to larceny or theft, to use its modern term in neighbouring jurisdictions at least. It is also remarkable that we still burrow back to the 1890s and 1916 for our basic legislation on larceny, theft and receiving. It is also a matter of criticism especially when we consider that England, our neighbouring jurisdiction, comprehensively reviewed this law in 1968. Twenty one years ago they at least codified their law and brought it up to date, recognising that the basic legislation of 1916 and before simply was not appropriate to the socio-economic conditions existing in that country during the sixties. This applies all the more in Ireland in the eighties. The Theft Act in Britain was preceded by a major royal commission of investigation which indicated the need to update the law. At that stage the same law applied to both Britain and Ireland so that what was debated in that parliament and jurisdiction during the sixties was relevant to our law here. It is a remarkable indictment of anyone who has been in Government here from 1968 that we have not properly addressed our laws of dishonesty in the way the British did.

So this Bill represents a very poor governmental response to the area of law reform. It deals with a minute portion of the law. In a different context the Minister referred to the offences of false pretences, embezzlement and fraudulent conversion. He referred to them in the context of property dishonestly obtained giving rise to the ongoing offence of handling. In 1988, according to the commission's report there were 261 cases of embezzlement and 897 cases of false pretences detected. Fraudulent conversion is not mentioned. It is probably included in the category of other frauds of which there were 293. This is a miniscule rate of report and detection of these crimes simply because our laws are so complex and outmoded. They have never been addressed during the lifetime of this State with a view to bringing them up to date and made workable in the current socio-economic conditions. That is a major condemnation that must be levelled in this debate. The Minister should not be happy to be presenting this very small contribution to the reform of the law, a very poor response to the reports and recommendations of the Law Reform Commission.

To put it even more in context we must look at the extent of the crime we are seeking to address. Deputy O'Keeffe referred to the large number of larcenies that have been committed. The vast majority of these involve property of little or no value. The Deputy cannot be blamed for pointing then to the value of property stolen, some £34 million worth during the year; but we are talking about insurance claim values which are grossly inflated and in no way relate to the real value of the property. Even more alarming are the figures in regard to the offence of receiving. There were 1,090 offences of receiving detected and reported during 1988. That is not a scale of crime that calls for hard or rash reaction unless we investigate it a bit more to see why if so many thefts are committed, of so much property is not recovered only 1,000 cases are detected and reported in 1988. It seems incredibly small in the overall complexity of the figures that have been advanced from the commission's report.

I wonder to what extent this is because the laws are out of date. One must ask of this Bill, in amending the law, will help people to report the offence of receiving. Is receiving an offence that is easily reportable? Is it the kind of offence that the person in the street often witnesses? To what extent will the law, as changed, assist the Garda in getting people in the community to report on the extent to which property is passing in a dishonest way in public houses, in communities, within business generally? I do not believe it will help a great deal.

Here a point arises that in some way explains the excessive delay on the part of Governments in addressing the whole question of dishonest handling. There are areas here where it is a way of life. It is a profession of bravado to be a smuggler, a dishonest handler of goods across the Border where whole communities, if some of the contributions from Deputies in that area are to be taken seriously, look on it as a way of life.

There is no doubt but that the crime or receiving is a crime of the middle classes and upwards. This strong vested class interest may be the reason it has not been seriously addressed as a crime by legislators in the past. How many shopkeepers, bar owners, people in businesses, big and small, will accept goods through the back door that can be quickly put on the shelf, assimilated into the stock and sold on with little risk of detection? To what extent is that a problem? I believe it is far greater than anyone in this House might be willing to admit. Dishonesty is rife in the community, not just on the streets. Tax fiddling is not discussed at all in the context of acts of dishonesty. It is considered fair game if one can beat the State and not pay a fair amount in return.

In the context of the debate inside and outside this House recently about insurance of beef, never has it been suggested that there is an element of dishonesty. Why is the Garda not investigating obtaining credit by false pretences?

I believe that the delay of upwards of 70 or 80 years in this House in addressing the outmoded nature of our laws of dishonesty generally is because there are strong vested interests, at a subterranean level, right throughout our society that has not pushed for investigation. I know the Minister for Justice and his predecessors have had numerous representations from the Fraud Squad, from the Garda Síochána, from the commissioner's office asking that urgent attention be given not just to receiving but in general to the laws in regard to dishonestly. It has not happened to date. This legislation is a very weak and poor response.

Nevertheless The Workers' Party clearly could not object to this Bill on Second Stage. In principle any improvement and development in the law, particularly in this area, is to be welcomed and we will not oppose the Second Reading. There are, however, individual features in the Bill which must be addressed. We welcome the wider definitions and the fact that the concept of receiving in the narrow sense in which it was judicially interpreted is now being abandoned in favour of the wider concept of handling.

Regarding the question of intent, I do not share Deputy O'Keeffe's view regarding the constitutionality of the change in emphasis on the belief element within the legislation. I welcome the fact that persons must be asked in suspicious circumstances or, as the report suggests but the Bill does not provide, circumstances of silence to answer for the handling of property. The extent to which the Bill addresses the vast range of legal anachronisms which the Law Reform report fully explored and highlighted for us is to be welcomed. There are, however, major reservations which will be addressed by The Workers' Party and other Deputies in opposition.

I hope the Minister in advance of Committee Stage will take on board some of the points raised. The first relates to section 43 (1) of the old legislation, which is section 5 in the new Bill. Coincidentally I was the solicitor who acted for Mr. King in the case referred to. It is a story that can safely be told now that while we were pursuing the constitutional rights of the citizen, Mr. King was in fact a native of South Africa, a fact which thankfully never came to light during the currency of those proceedings. We have today very good pronouncements from the High Court and the Supreme Court in that area of the law. The fundamental issue addressed by Mr. Justice McWilliam in the High Court was that it is a cornerstone of criminal investigation and prosecution that the character of an accused person should never be brought in aid of the prosecution in attempting to find guilt in a particular case. For that reason the anachronistic law of 1824, the Vagrancy Act dealing with the suspected person found abroad at night or in suspicious circumstances, was struck down by the High Court. That decision as to its constitutional infirmness was upheld unanimously by the Supreme Court. It is to be conceded that there was a different emphasis by the Supreme Court but the fundamental reasoning of Mr. Justice McWilliam was not criticised. We have to accept the proposition that a person's character should not be called in support of the proof of guilt as immutable and that must be respected.

The Law Reform Commission highlight this fact and go on to make the point that the 1916 Act and section 43 (1) are virtually never used. Is the Minister in a position to say when last a prosecution in this State relied upon the provisions of section 43 (1)? I worked virtually full time for 14 years as a criminal practitioner before coming into this House and I never once came across a case of receiving where the State relied upon that provision. I recall defending people who were subsequently convicted on the evidence available and in the recall of the person's record it was shown that any number of offences of receiving were recorded against them. The police simply did not rely on this provision because it is difficult to prove. It is a proof which it skillfully challenged can boomerang against the prosecution because it can be said that their facts are weak and they are trying to rely on judicial or forensic muck-throwing. I believe the reason it has virtually been abandoned is due to advice from counsel in individual cases or perhaps because of a directive from the DPP's office to the effect that the section is open to constitutional challenge and should not be relied on. The Law Reform Commission, not just because of its constitutional infirmness but because in practice the section is not used, recommended that it should not be included in the Bill. Its inclusion is a mistake and I would urge the Minister, rather than introducing unnecessary rancour in regard to this section of the Bill, to remove it before Committee Stage. If he is seeking to rely on it he should be able to inform the House on Committee Stage as to the extent to which it has been used in the past and indicate how he supports the view expressed earlier that evidence of this type has been vital in the past in helping to establish the mens rea of the accused in cases where it might otherwise have been impossible to do so. That statement by the Minister should be expanded upon when concluding or on Committee Stage.

This is not the most fundamental or important change in the legislation. The Bill has far more urgent and important contributions to make in the area of criminal law and we should not have undue differences over this. I have given the view of the Law Reform Commission and I have some experience in this area. I merely ask the Minister to tell us how and when this section which is being incorporated in this Bill has ever been vital to prosecutions in these cases.

The definition in regard to mens rea is weak and will lead to undoubted difficulties. The 1916 legislation seemed eminently sensible to the then legislators. The courts, aided and abetted by skilful advocates, took the legislation asunder letter by letter, sentence by sentence, expression by expression, with the result that the definition of intent currently employed by reason of judicial interpretation is so narrow as to make the offence of receiving virtually impossible to prove in court. The jury must be told that if an accused's explanation is believable they must acquit. If the accused's explanation for possession or handling is not believable by them but could possibly be true, they should still acquit.

Thirdly, if the accused's explanation is not believed and is, in their minds not true, by itself that does not mean the accused is necessarily guilty. Regard must be had for the broader context of the circumstances. Judicial construction of mens rea has over the years virtually made it impossible for courts and juries to find guilt in cases of receiving. It is a difficult crime to prove. As legislators we should be addressing that history as it has emerged.

In my view the definition introduced in the Bill by the Minister will allow for a repetition for that judicial construction. The concept of belief is in the section and we have had the experience in Britain under similar provisions judicially interpreted in the theft Act. In my view we will end up in virtually the same position before too long. I have no doubt that lawyers when they come to work this legislation will simply leap-frog back over all the judicial decisions that have been in place since 1916 and before, borrow on them and seek to invade the new legislation with the old thinking or adaptions of the old thinking. We needed a departure in legislative construction of the judicial mens rea of intent.

The formula was set out in the report; it was recommended in black and white in the summary of the recommendations. Those who did not have the time, energy or inclination to read through the very reasoned basis why the commission reached their conclusion could have consulted the summary. According to the summary the test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were stolen. A paragraph reference is given so that one can find the very good reasons why that should be so. It is referred to in their assessment of the law to date and where they were looking at the comparative laws in other states. In their own conclusions they reasoned out why recklessness was a better approach and definition than relying on the formula of belief.

The judicial necessity in interpreting belief will be a subjective one, such as if the accused reasonably believed, and in that context reasonable belief of the accused will be what he knew. In that event we will be back to the concept of knowing. I am not suggesting the Minister should tear up the Bill or readdress it because I want the legislation to be put through the House speedily. I hope it will be dealt with by the House and the Seanad before the end of this term and be on the Statute Book before the end of the year. However, it is important that the Minister should redefine the mens rea aspects of the Bill and depart from the concept of belief as a basis of proof to one of recklessness, as recommended.

The Myers case in Britain, as the report acknowledges, was never totally adopted into our domestic law hook, line and sinker but nevertheless in practice virtually every time an issue of proof in this area arises counsel first reach for the Myers decision as the bedrock. I should like to ask the Minister to say if he disagrees with that view. It has been accepted by every court here as a good basis of our law. The Myers decision is used as a working precedent on a daily basis where issues of proof arise. It will continue to do so unless we address this matter.

There was some reluctance expressed about borrowing the British model but at least they responded to the Myers decision in that within two years of it being handed down they had amending legislation in place to put the matter right. It is our job as legislators to try to keep abrest of conditions that emerge and develop outside, such as the changing socio-economic scheme. In this day of computers, computer print-outs and greater movement of goods it is important that we address the question of proof. The Bill should contain a provision that addresses the problem exposed by the Myers decision. There should be a need to prove every entry on a record document when trying to trace ownership. It is incumbent on us to address modern business conditions in our legislation but we have failed to do so.

The report contains a recommendation on goods unlawfully obtained but the Minister did not address that in the Bill. He indicated that we should get away from the narrow view about goods stolen or otherwise unlawfully obtained but I submit that the Bill is not as clear-cut as is required in regard to that area of the law. I was disappointed with the provisions dealing with penalties. I do not understand the proposition advanced by the Minister on equal penalty. He has not convinced me in regard to that.

Judges, when sentencing people convicted of receiving, invariably remark that if we did not have receivers we would not have thieves. The impression is that receiving is considered to be the more heinous crime of the two. I can understand the frustration of a court if so many people accused of receiving evade conviction. There is a great inclination to throw the book at a person who is ultimately convicted of receiving but, in practice, receivers tend to come from the better-off sections of the community, they tend to be people with business interests. It is the rare occasion that one finds the guy on the street corner being prosecuted for receiving. As the Minister said, he is one of the foot sloggers and he is usually in the dock facing the burglary or theft charge.

I should like the Minister to indicate the comparisons between penalties handed down for receiving offences as against those for aggravated or grand larcenies. From years of practice in this area I have come to the conclusion that receivers have not been dealt with severely by the courts because they are people with a position in the community. By and large they are in a position to argue personal detail and family considerations that would not weigh so heavily with the more unwashed.

I have to challenge the suggestion, no receivers, no thieves. It is a myth first because all goods stolen are not received at one stage or another. It is a myth also because theft is by and large petty, or the greater incidence of it is petty, and it is committed out of necessity. Whether the thief has a market to pass it on does not really come into it in the vast majority of petty larceny cases.

I am glad it has not been advanced here that we could abolish the crime of larceny if we could comprehensively deal with the receivers in our community, but there is an element of it in the disparity of penalty that has been introduced where the thief will receive a maximum of ten years and the receiver a maximum of 14 years. I am not going to fall out with the Minister one way or another. I was just curious to know why he did not follow the recommendation of the commission's report suggesting the same penalties for everyone and I was simply addressing it lest there was a subconscious acknowledgement of this great formula one hears daily from the District Court benches and elsewhere, that we must hammer the receiver because then we will get rid of the thief. It will not happen that way.

The other point recommended by the report, and again not addressed by the Minister in the Bill, is the prospect of writing into legislation powers of compensation and the powers to forfeit property, perhaps identifiable, belonging to the receiver convicted that could be identified as coming to him through the proceeds of his crime or crimes. Again, I wonder to what extent we are inhibited in bringing in this kind of legislation in this area because of the very strong statement on property in our Constitution. It is remarkable that in no area of our criminal law and our penal sanction is any power available to the courts to order substantial forfeiture of property identifiable or potentially identifiable as coming to the thief or the criminal by reason of his or her involvement in crime or being the proceeds of the crime. We do not have it in the drugs area, though it exists elsewhere. We do not have it in any of the crimes of dishonesty. It would be very appropriate in the context of receivers whenever they are brought to justice.

In summation, as I have indicated The Workers' Party will not be opposing Second Stage. This legislation, with all its limitations, should be addressed quickly by the House on Committee Stage and passed on to the Upper House without delay, but I urge the Minister to take on board the very genuine points expressed by the Opposition spokes-persons dealing with this matter and those others who will contribute. I think the legislation can be improved so as to represent a significant though small contribution in the whole area of the reform of our laws of dishonesty which clearly has a long way to go.

Mr. O'Dea

I welcome Deputy Ray Burke on his appointment as Minister for Justice and Minister for Communications. I have occasion to have quite an amount of correspondence with the Department of Justice and I take this opportunity to thank the Minister for the speedy and efficient way in which he deals with correspondence.

Before I make some remarks on this Bill I want to revert to what has been said on the other side. Deputy O'Keeffe's main criticism seemed to hinge on the fact that the report of the Law Reform Commission, which admittedly was excellent and strongly researched, was not followed closely. I have read the report of the Law Reform Commission and I have read the Bill as carefully as I could and it seems clear that the parliamentary draftsman in the course of drafting this legislation was very conscious of the recommendations and of the research done by the Law Reform Commission. I do not agree with everything in this Bill, but I do not think anybody can be justified in criticising this Bill simply and solely because it does not slavishly follow the recommendations of the Law Reform Commission.

I have often campaigned inside and outside this House to end the practice we have here of following slavishly British legislation a few years after it has been enacted. My objections to following slavishly the recommendations of the Law Reform Commission, or any other commission, are similar. If we are to adopt the approach Deputy O'Keeffe seemed to suggest — I will not do him the injustice of saying he meant this but it seemed to come across in part of his speech — we might as well let the Law Reform Commission write all the laws. The Law Reform Commission, the British legislature, the American legislature, the Irish Legislature, nobody has a monopoly of wisdom. The Minister for Justice is an experienced man, he has a Department at his disposal and there are a number of people in this House who know enough about this area and have enough contact with it in real life to be able to improve on the recommendations of the Law Reform Commission.

Mr. Flanagan

The Minister said he was following a Fianna Fáil Private Members' Bill of 1985.

Mr. O'Dea

I will come to that. If Deputy Flanagan will take the trouble to read the Minister's speech he will see that he referred on a number of occasions to recommendations of the Law Reform Commission. This Bill is full of sections which have been recommended by the Law Reform Commission. Let us not misrepresent the situation.

Deputy O'Keeffe referred to various constitutional difficulties, as did Deputy Kavanagh, in relation to the amendment of section 43 by section 5 of this Bill. Deputy McCartan by and large answered that criticism. He has given us the benefit of his very considerable experience in this area. My research indicates that the section 43 procedure is very rarely used. Deputy Kavanagh seemed to be under the misapprehension that if section 43 was found unconstitutional because of the King case and related cases, then the entire Bill would be struck down. Of course, we know that is not correct; it would be just a section that would be struck down. If the section is not being used to any great extent anyway, it seems it does not make a great deal of difference. However, let me say in deference to Deputy McCartan and Deputy Kavanagh, in view of the new definition of "receiving" the new offence of handling into which "receiving" has been elevated, and in view of the new mens rea, I wonder if it is really necessary to have this section in the Bill at all.

I join in the Opposition calls to the Minister to look at the Bill again between now and Committee Stage to see if this section could be left out. It is practically never used in practice, and the last thing we want now is the prospect of a constitutional action for a section of the amended receiving legislation which is struck down. I do not think that would be desirable in the general atmosphere that prevails at present.

Deputy Kavanagh condemned this Bill as a very inadequate response and in the next breath he criticised the new mens rea as being too severe. He was talking about men giving excuses about things that fell off the back of lorries as if he wanted a situation whereby that excuse could still be given and a person clearly guilty could walk free because he could not be proved to have knowledge that the property was stolen. Deputy Kavanagh cannot have it both ways. He cannot say this legislation is a very inadequate response to what he perceives as a serious problem and, at the same time, criticise the Government for trying to expand the mens rea to bring more of these people within the ambit of the criminal law.

Deputy Kavanagh was also under the misapprehension that the sort of offences being dealt with here have some sort of physical implication, that there must be some sort of physical handling of the goods. It is quite clear that is not correct. Even a person making a telephone call can be convicted of handling under this section as drafted. Deputy McCartan gave us the benefit of his long experience in this area and I listened to him with interest. He told me a great deal I did not know. I thank him for his contribution which, however, I think was marred by one rather silly suggestion, the one which has been adverted to by Deputy Flanagan, namely, that the Government were trying to pull a political stroke or execute a political manoeuvre by falling back on their own Bill which was introduced in Opposition rather than following more closely the recommendations of the Law Reform Commission. Deputy McCartan and I and everybody in this House knows that Governments and politicians only pull political strokes when they have something to gain from it. What have we to gain as a party or as a Government from executing a manoeuvre to the effect that we are falling back on our own legislation which the Government of the time did not implement? If in doing that we are introducing legislation which will not put more receivers behind bars I can assure the House we will lose rather than gain. The real political gain, if there is to be a political gain will be legislation which will combat the handling of stolen property much more effectively and be seen to do so.

I agree with Deputy McCartan that it is a pity the Law Reform Commission did not consider the whole area of theft law. For Deputy McCartan's information I can tell him I made inquiries and I was told that the Law Reform Commission are now looking at the area of theft law and they hope to have a report shortly, and we welcome that. I am not saying that I would recommend an approach to amend or to update theft law which would follow too closely on the English Theft Act, 1968, because the case law and the academic writings on the English Theft Act, 1968, illustrate that grave mistakes were made in the drafting of that legislation. I will advert to them briefly even though it is not strictly within my brief.

The situation for the past two decades is that we have been exposed to a diet of particularly horrendous offences against the person, some of those have been terrorist-related, the effect of which has been to immunise people and make them soft on larceny. An offence against property is not as sensational, newsworthy or as dramatic as some of the offences against the person which we hear and read about every day. In our more sympathetic attitude towards larceny and thieves we seem to overlook the fact that many larcenies and theft offences are committed with great violence and intimidation.

We had an epidemic of crime in Limerick during the months of August and September which involved a gang of young thugs from Limerick city going ten, 15 and 20 miles out the country and terrorising elderly defenceless people in their own homes. One case involved a man over 70 years of age who was detained for eight hours and constantly tortured and physically assaulted during the course of theft. I had another case, a few miles from where I live, of a publican who has a small pub in a remote rural area and who suffered a stroke during September. One of these roving gangs learned of his stroke and raided his premises on average three times a week in September. In both cases, those people had a ready market, in the sense of receivers to whom they could pass on the property. If they did not have that market they would not have been out terrorising, beating and intimidating in the first place. It is incumbent on us as a Legislature to take this on board and try to do something about updating and improving the law with a view to securing convictions in this type of case. The wife of that publican came to see me and I said to her: "You are living in a house beside the pub, why do you leave stock in the premises at night when it is possible to remove it?" Her reply was: "We have to leave something for them, otherwise they might get angry and come in and attack us in our own home". If that is the situation that prevails in this country in this day and age no Minister for Justice could move soon enough to try to correct it in some way.

Sometimes we hear sociological, economic justifications for criminals. I would go along with those to some extent. There is no doubt that deprivation and alienation are some of the reasons for crime. I am acquainted with many people who have been convicted of crimes of larceny and even crimes of receiving and if they came from a different background if they had more advantages or fewer disadvantages, perhaps they would not have been before the courts in the first place. No such sociological or economic justifications can be advanced for the vast majority of receivers who, as Deputy McCartan has rightly said, come from the better classes, the middle class section of society. It is a correct approach by the Legislature, despite what Deputy McCartan has said, to send out a clear signal today that we regard receiving as more heinous than ordinary crime. The interpretation of the legislation is not that higher penalties must be imposed on receivers, than on ordinary criminals. The maximum penalty for a receiver or a handler, as he will now be, is 14 years under this legislation. The maximum penalty for an ordinary thief will be ten years. It is no harm to send out the signal that we recognise that many blameworthy, guilty receivers have walked away because of the difficulty of proof resulting from the courts' interpretation of the Larceny Act, 1916, that we are now getting serious about it, that we regard receiving as a particularly heinous crime, and that a lot of crime — I am not saying half of the crimes or most crimes of larceny — would not take place if there was not a ready market in the shape of receivers to take the goods on board. I take Deputy McCartan's point and I agree with it. It is ridiculous to say that if you had no receivers you would not have any thieves. One has only to state that proposition to see how ridiculous it is. Deputy McCartan, Deputy Flanagan and Deputy Ahern have their experiences but my experience is that many people would not be before the courts for crimes of larceny and burglary or whatever unless there was a ready available market there to receive the goods that have been stolen. Deputy McCartan spoke at length about the necessity for updating the larceny law as a whole. I was glad to learn that the Law Reform Commission are looking at that at present and I hope they report quickly. The experience of some people seems to suggest that the Larceny Act, 1916, represents a better model for this country than something akin to the UK Theft Act, 1968. I am not one of those people. I think the law would need to be updated but I am not saying that the 1968 Act is perfect.

The new scheme in the UK Theft Act, 1968, provided the offence of theft for dishonest appropriations. It also provided a series of offences which involved obtaining by deception. The offence of theft in the United Kingdom Theft Act, 1968, replaced the old rules and substituted the concept of dishonest appropriation which embraces a wider range of conduct in taking and carrying away which is an essential part of the actus reus of larceny under the 1916 Act. Its implementation has not been without problems and difficulties and it has not been uncontroversial.

I will mention a number of cases without going into detail, for the purpose of the record. Anyone who wants to refer to them will see them as illustrating the point I am making, particularly in relation to the difficulties encountered by the courts with the concepts of appropriation and dishonesty. I refer to the case of The Crown v. Feeley, 1973, Queens Bench, 530, the Crown v. McIvor, 1982, I All England Reports, 491, The Crown v. Ghosh, 1982, Queens Bench, 1053. Anyone who takes the trouble to read the House of Lords judgment in the case of the Crown v. Morris, 1983, III All England Reports, 294, will be almost dizzy with the gyrations into which the House of Lords had to go in dealing with those concepts of dishonesty and appropriation. Part of that is relevant to this Bill because the concept of dishonesty has been introduced to this Bill in the new mens rea of handling.

On the other hand, there is no doubt that the 1968 Theft Act in the United Kingdom catches some very undesirable activity, the criminal status of which is uncertain under the law of this country. There is an interesting case called The Attorney General's Reference, 1984, 2 All England Reports, 216, which deals with a case of people who had been involved in property development, who were the sole shareholders in a number of property development companies, ripped off those companies in the sense that they took money out of the bank accounts of those companies, leaving suppliers of building materials, etc. stranded. That sort of activity could not be criminally committed here. It is punishable in the United Kingdom even though the memorandum and articles of association of the relevant companies allowed people to draw money from the bank account as they wished and without an explanation to anybody.

It is evident that the 1916 Act needs to be updated immediately in some very obvious areas. For instance, section 7 of that Act refers to "any of His Majesty's estates, palaces and houses". "His Majesty" does not have any estates, palaces or houses in this country now. However, there is a serious legal problem as references to the Crown cannot be assumed to have been adapted here, either expressly or by implication, because the case of Byrne v. Ireland, 1972, Irish Reports, 241, is authority for the proposition that in constitutional theory the State is not the successor of the crown.

The 1916 legislation, to which Deputy McCartan adverted, is drafted in a rather verbose style which reflects the sort of drafting common in the last century and certainly does not reflect contemporary drafting style. The 1916 Act provided widely different maximum penalties for different types of offences which reflected the values and views of a bygone age. A person who stole a will, for instance, could get a maximum of life imprisonment whereas a person who stole documents of title to property received the comparatively minor maximum penalty of five years. I welcome the change brought about by the Minister in sections 3 and 9 of this Bill. Section 3 provides that there will be a new offence of handling for which there will be a maximum penalty of 14 years. Section 9 provides for a maximum sentence of ten years for all larcenies referred to in the Bill.

Section 2 deals with possession of housebreaking implements, etc. and provides for a maximum penalty of five years on the first conviction and ten years on subsequent and other convictions. The legal difficulty with the 1916 Larceny Act is twofold. First, the accused had to have knowledge that the property he received was stolen. That had to be proved beyond a reasonable doubt. The second difficulty related to having to prove that he received the property. To say that somebody received something means that it came into their possession. Possession is a nebulous and elusive concept and a great deal of the difficulty in proving a case under this 1916 legislation related to possession. I say that for a reason which will become evident. When hearing cases brought under the 1916 legislation the courts had to consider at length the extent to which the alleged receiver had to be conscious of the fact that stolen goods were in his possession, under his control or in a place where he could get at them. A distinction was drawn in cases such as the Attorney General v. Kelly in 1953 between actual and constructive possession, a distinction which increases rather than reduced the difficulties. The courts had to consider questions such as whether goods in the possession of somebody over whom the defendant had control were actually in the possession of the defendant. I am talking about cases such as the Crown v. Wiley (1850) and the Attorney General v. Nugent and Byrne (1964) Irish Law Times 139.

All the difficulties relating to the actus reus of receiving stolen property have been swept away by the new offence of handling but the concept of possession has been retained in this legislation. Section 7 (2) says that where goods have come back into the possession of the original owner or into the possession of his agent or somebody in lawful authority, a person accused of handling those goods shall not be guilty if, before the act of handling is proved, they have come back into the possession of the other person. This represented the common law up to now so the difficulties experienced by the courts in cases like the Crown v. Vilensty, (1892), 2 Queen's Bench, 597, and the Crown v. King (1938), 2 All England Reports, 662, will continue.

The Law Reform Commission referred in detail to those cases and they have illustrated that they give rise to great conceptual difficulties and uncertainty in the law. The Minister should have a chat with his parliamentary draftsman to see if we can arrive at a situation covered by section 7 (iii) without resurrecting or perpetuating all those difficulties. The concept of possession again arises in section 5 (1) (a) which replaced the old section 43. However, that need not concern us. I am concerned about section 7 (3).

I referred to maximum sentences and I welcomed them for the reasons I stated. I note that the Law Reform Commission in paragraph 151, page 110, of their report recommend that provision should be included for compensating victims and it is disappointing that it is not included in this legislation. I ask the Minister to include a section dealing with compensation.

Section 2 of the new Bill is intended to update the law on possession of certain housebreaking implements. There is a great deal in the section which I do not understand. I agree that something like that is necessary because the only alternative to having a section which specifically provides for that would be to charge somebody with attempted burglary. Usually a person in possession of house-breaking implements could not be convicted of attempted burglary because it would be at too early a stage; the mere possession of the housebreaking implements would not lead to the conclusion of an attempted burglary unless he was found with the implements at the premises in question and perhaps actually beginning the process of burglary. I agree that something should be done to prevent people having housebreaking implements. There should be a specific offence to punish the possession of house-breaking implements because people who have those types of things in their possession clearly are morally blameworthy and should be made criminally blameworthy also.

I do not understand precisely what the provisions of section 2 intend to achieve. For example, section 2 (1) states that a person will be guilty if found in possession, away from his place of abode, of any article for use in the course of or in connection with a burglary. Section 2 (2) states that a person who is found in possession of any article made or adapted for use in the course of or in connection with a burglary shall be guilty of an offence. First of all, I do not see the reason for two different subsections here. I do not know how one can distinguish one from the other. Are the provisions of subsection (2) intended to cover a person who is in possession of those implements at home? Why is the defence of lawful authority or reasonable excuse given in subsection (2) when it is not given in subsection (1)? It appears to me that a person who is charged under the provisions of subsection (1) — and who advances the defence of lawful authority or reasonable excuse — will be able to do so anyway. That type of argument can be advanced to disprove mens rea, or to establish a reasonable doubt as to guilt. I do not understand the need for the two subsections. I do not know what they are trying to achieve. Certainly it is not clear to me that the provisions of subsection (2) are intended to deal with different circumstances from those obtaining under the provisions of subsection (1). I do not know why a specific defence was written into subsection (2) which arises by implementation anyway under the provisions of subsection (1). Perhaps the Minister would deal with that when replying.

The question has often arisen before the courts as to whether it was an offence to receive the proceeds of stolen property. In other words, if a thief stole property, sold that property and handed on the cash to a receiver, in those circumstances would the receiver be guilty? That is a question that exercised the minds of the courts. As far as I can understand it, there appears to be a conflict between the judicial position in Ireland and that in the United Kingdom on this matter. The Law Reform Commission and a number of textbooks on this subject referred to the case of the Attorney General v. Farnan, 1933, 67 Irish Law Times Reports 208 as authority for the proposition that receiving the proceeds of stolen property would not be an offence. I do not know whether that is the latest word from the Irish courts on this subject. If it is, clearly it is wrong because it flies in the face of having precise terms of the definition of property in the 1916 Act. On the other hand, in the United Kingdom — in the case of D'Andrea v. Woods, 1953 II All England Reports 1028 — the opposite was decided.

The Law Reform Commission, on page 11 of their report referred to this case. I will read the section for the benefit of the House:

In this case a number of savings stamps were stolen and converted for their cash value. Some of the Bank of England notes received from them were handed to the appeleant who knew that they were part of the proceeds of the theft in conversion of the stamps. The Queen's Bench Division had no hesitation in upholding a conviction for receiving. Lord Chief Justice Goddard is quoted as saying

Obviously the act was contemplating the theft of property which was then changed into some other property or into money and that money being used to buy something else. It is quite sufficient to say here, without going further, that this money falls exactly into the definition of property converted or exchanged. As the appellant knew that these notes had been acquired by theft he was properly convicted.

The Lord Chief Justice there was interpreting the provisions of section 46 (1) of the 1916 Act.

In the explanatory memorandum accompanying this Bill it is said that section 7 (2) replaces a provision in the definition of "property" at section 46 (1) of the 1916 Act which appears to have the effect of making the offence of receiving apply to any property derived, however remotely, from the original stolen property. That would indicate to me that the Legislature in this country were doing something to confine the definition of "property" set out in section 46 (1) of the 1916 Act, that they were attempting to confine the definition to property directly derived from the stolen property. If that was their intention — and that is my understanding from a reading of the explanatory memorandum — then they have made a bad job of it.

The wording of section 7 (2), particularly the use of the words "directly or indirectly" appears to me to bring about a situation exactly similar to that envisaged in section 46 (1) of the 1916 Act. I happen to believe that section 46 (1) of the 1916 Act should have been repeated, should have been inserted in Irish legislation, that it is proper and correct that the proceeds of stolen property, no matter how often laundered, coming into the possession of a receiver — if he has the mens rea set out in section 3, that he knows or believes they represented directly or indirectly stolen property, should render him liable to conviction, that he is a proper person to be convicted. Why are we changing the wording of section 46 (1) of the 1916 Act expressly in our explanatory memorandum to confine the circumstances more directly and, at the same time, doing something which brings about the same result as the provisions of section 46 (1) of the 1916 Act? That is my interpretation. If somebody else can advance another I shall be delighted to hear it.

Section 7 (4) of this Bill introduces a new definition of stolen property, that is the property that has to be handled in order to give rise to an offence under the provisions of this Bill. The provisions of the 1916 Act covered property which was stolen or obtained in any way whatsoever under circumstances which amounted to a felony or a misdemeanour, that is section 33 (1) of the 1916 Act. The Irish Bill does not follow that definition. It defines stolen property in a fairly specific way.

I wonder if the approach adopted in the Bill before the House omits some property which was wrongly acquired, or acquired otherwise than in the various ways set out in the section. I think it does. For instance, the section does not cover property which has been smuggled or which has been the subject of a customs offence. It is only right that the guilty, dishonest receipt of that sort of property should be criminally punishable. I would ask the Minister to take a further look at this definition of stolen property. It is my belief that the definition contained in the 1916 Act was preferable. Difficulties have arisen in relation to the definition of stolen property in the 1916 Act, in that if a person is accused of the felony of receiving stolen property, then the prosecution would have to establish that the original theft was a felony. If they established only that the original theft was a misdemeanour then the accused receiver would not be guilty. With a slight alteration in the wording the approach adopted in the 1916 Act was preferable.

I welcome the provisions of section 7 (1). By a curious anomaly in the law property stolen anywhere outside the Republic and received within the Republic could be the subject of a prosecution for receiving unless that property was stolen in the United Kingdom, and by the United Kingdom I mean the United Kingdom mainland. If the property had been stolen in Northern Ireland a successful prosecution could be brought here but because of the Supreme Court's interpretation of the adaption of enactive legislation, property stolen within the United Kingdom could not be the subject of a prosecution here. That was a clear anomaly in the law that is dealt with in section 7(1).

I have one brief query on the interpretation of the provisions of section 7 (1). The subsection states that an offence will be committed if property is handled here which was acquired in a way which amounted to an offence where and at the time the property was stolen. Circumstances can arise — and I know of one that arose from practical experience in recent years — in which the actual acquisition of the property, the act by which the property was acquired, had ceased to be an offence at the time it was handled here. What is the position in such circumstances? I should like the Minister to advert to that when replying.

The provisions of section 3 of this Bill introduces a new mens rea for the new offence of handling. These provisions are based on section 22 of the Theft Act of 1968 but is subdivided to overcome certain procedural difficulties set out in the report of the Law Reform Commission, page 60, lest anybody might think we had not carefully considered their recommendations. We are following their suggestions here in relation to that part of section 3.

The concept of the offence of handling is so widely defined that if one is to read it strictly it covers certain things that are physically impossible to do. I wonder is "handling" is the right word. Perhaps "dealing in stolen property" would be a better phrase to use. If we are to use the word "handling" we should make it absolutely clear that it does not imply just physical touching, because under this Bill even the making of a telephone call or the sending of a letter can constitute handling in relation to conveying an instruction where to deposit stolen property.

Much has been made of the concept of "knowing or believing". "Believing" was a word used in section 22 of the 1968 Act. Deputy O'Keeffe referred to the Law Reform Commission reservations about the use of the word "believing". The Law Reform Commission adverted to the fact that the use of the word "believing" in the 1968 English Act was unfortunate. The difficulties in trying to expand mens rea by the use of the word “believing” were starkly illustrated after a number of court cases in the UK. The Law Reform Commission referred to the case of the Crown v. Moys (1984) 79 Court of Criminal Appeal, 72. For the purpose of the debate I will briefly read the facts of this case from the Law Reform Commission Report at page 60. In that case the trial judge told the jury:

... that strong suspicion coupled with a deliberate shutting of the eyes was not merely an alternative to but equivalent to belief.

The Court of Appeal held that this was not correct and quoted an extract from the judgment of Lord Chief Justice Lane who said:

The question is a subjective one and it must be proved that the defendant was aware of the theft or that he believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes in the circumstances, is not enough although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed.

That illustrates that the attitude of UK courts was that belief was something akin to actual knowledge. The Law Reform Commission in order to get around this diffitulty and ensure that cases like that would be decided differently here, recommended that the criterion for guilt should be actual knowledge or recklessness. The legislation does not go that far. The approach adopted by the parliamentary draftsman here was to give a fairly detailed definition of "belief". The definition of "belief" given in section 3 is quite clearly designed to bring suspicion within the ambit of mens rea for the purposes of this offence, but does it actually do so as well as it could otherwise be done?

Section 3 of this Bill inserting new section 33 (2) (c) says that a person shall be taken to have believed that a property was stolen if he thinks that such property was probably stolen. That could be tidied up. It represents some sort of compromise between the English Act of 1968 and the recommendation of the Law Reform Commission, and it will be inadequate.

The concept of "recklessness" which the Law Reform Commission recommend is not an easy one. One can find any amount of academic writing or judicial reasoning about the meaning of "recklessness", but it is a safer, more direct and simpler criterion than saying "belief includes thinking that something was probably stolen". The more case law I read in this area, the more it becomes clear to me how complicated is the law and the easier it is for guilty people to walk free. We are not justified in adding layers of definitions and words to mens rea. The law in this area should be kept as clear and simple as possible. The Law Reform Commission recommendation is not perfect but on balance it is better than defining “belief” as including thinking that property was probably stolen.

There are some very simple sections under the 1968 Act and people who were charged under some of those sections walked away scot free because it was held by the superior courts that the direction given by the trial judge was inadequate. I can imagine some of the directions that will be given here by trial judges when this thing starts to operate.

I do not know what the word "probably" adds to the situation. If we say "believing includes thinking" the use of the word "includes" indicates that believing, something is more than actually thinking, so by saying it "includes thinking" we are widening it anyway. It represents an inadequate compromise between the difficulties encountered in the use of the word "belief" in section 22 of the 1968 Act and the recommendation of the Law Reform Commission. I assume that what the legislature here intends is to bring suspicion within the ambit of mens rea, and I presume that the parliamentary draftsman feels that defining “belief” in this way, together with the shift in the evidential burden in section 33 (2) (b), will bring suspicion within the ambit of mens rea for this new offence of handling. I hope it does but it could have been done more simply following the recommendations of the Law Reform Commission.

A question that has arisen from time to time, particularly before the court in the UK, relates to attempted receiving. In the case of Haughton Smith (1975), Appeal Cases 476, the House of Lords in the UK held that goods had to be stolen, that it had to be established that goods were stolen in order to get a conviction for receiving and that if the goods were not stolen the accused could not be convicted of attempted receiving on the basis that one cannot attempt to do the impossible, that one cannot attempt to receive stolen goods if they have not been stolen in the first place.

The UK legislation in the Criminal Appeal Act, 1981, allowed prosecutions to take place for attempted handling where the person believed the goods had been stolen and that belief turned out to be false. Something similar should be enacted here. Perhaps the Minister wishes to wait for a general review of the law of larceny, but it is something that might be more properly considered in conjunction with this, because we are dealing specifically here with receiving/ handling.

In relation to the new mens rea in section 3, to be convicted of handling a person either has to receive the property, undertake or assist in its retention, removal, disposal, etc, or arrange to do any of these things dishonestly. Looking at this as objectively as I can I believe that if somebody receives property and knows it to be stolen he is acting dishonestly anyway. If he receives property and believes, within the terms of the definition of belief here, that it is stolen he is acting dishonestly. I do not think there is a necessity to add this new element of dishonesty into mens rea. I have already referred to United Kingdom case law where the concept of dishonesty has given rise to great difficulty in practice. I heartily congratulate the Minister on bringing in this legislation to deal with a specific problem in the law, but my experience is that the shorter and simpler we keep it the better. If it is too complicated and if there are too many layers of proof in regard to mens rea the inevitable result will be that guilty people will walk free. I would ask the Minister to consider that.

Another question that has arisen before the courts is whether the accused person, in order to be convicted under the 1916 Act, must know or believe that the property was stolen at the time he received it. That belief is essential under the 1916 Act and the Law Reform Commission quote various cases in support of it. I wonder what the position will be now and I would like the Minister to advert to that when he is replying. If the receiver or the handler of the stolen property is innocent and later decides to dishonestly misappropriate the property, what will be the position now? My own view is that if he has been charged for handling or receiving he can now, as a result of section 8 (2) of this Bill, be convicted of larceny but I would like the Minister to confirm that that is the case.

Deputy McCartan referred to the fact that the new section 33 (2) (b), introduced by section 3, shifts the burden of proof on to the accused and he was concerned that that might have constitutional implications. I do not agree that it has shifted the burden. My understanding is that the traditional position will remain. The burden will be on the prosecution from start to finish to prove their case. What is shifted here is the evidential burden. If the prosecution can provide evidence, firstly, that the property was stolen, secondly that it was handled, thirdly, that all the circumstances are suspicious and fourthly that the accused does not have a reasonable explanation, the court can come to the conclusion that the person guiltily or with mens rea handled that property.

The Law Reform Commission referred to the case of The People v. Oglesby, 1966. What the Minister is doing in this subsection is putting that in statutory form. That case and the decision of the Court of Criminal Appeal represent a good, sound, comprehensive statement of the law. It is right and proper that it should be put into statutory form and I compliment the Minister on so doing — at least that is my understanding of what he is doing and I think that circumstances will bear that out.

Section 8 allows the court to bring an alternative verdict when a person accused of handling is being tried and it becomes clear during the course of the trial that he is guilty of one of the larceny offences or vice versa. That gets over some of the difficulties set out in the Law Reform Commission report, again lest it be thought that the Minister did not take into account what the Law Reform Commission said.

The Criminal Justice Act, 1984, which was debated at length in this House, states in section 16 that where a member of the Garda has reasonable grounds for believing that an offence consisting of the stealing, fraudulent conversion, embezzlement or unlawful obtaining or receiving of money or other property is being committed, then certain action will be taken. I wonder should the wording be amended to read "receiving or handling" to take account of the fact that the law on receiving is now being updated?

Deputy McCartan lamented the fact that the law has not been updated since 1916. I want to repeat what I have said on a number of occasions, that the 1968 Theft Act in the UK is not a very good model to follow. We will have to build legislation on larceny from the ground up. I am not in favour of this trend of slavishly following British legislation because it has proved again and again to be wrong and costly. We have been debating Committee Stage of the Companies Bill, one part of which deals with loans to directors. In the Bill as originally brought into this House in 1987, the 1986 English legislation was repeated word for word and it was a total absurdity. It was a total absurdity in England and we imported it, warts and all. When that became clear the Minister at the time, Deputy Burke, in fairness to him, took the legislation back to the Irish parliamentary draftsman who reconstructed it and made it comprehensible and proper legislation.

I would make a number of suggestions to the Law Reform Commission in their present consideration of the general law on theft. There are some forms of dishonest debt evasion that should clearly be criminalised because the civil law is not sufficient to deal with them. When people evade their debts and there is a clear intention on their part to do so right from the beginning that should be criminalised. The question of dishonest acquisition of services or labour should also be criminalised. Section 13 of the Debtors Act (Ireland), 1872, goes part of the way to solving this problem but it is very inadequate and the law in that regard will have to be updated when introducing new theft law here.

The unauthorised use of credit cards and cheque cards is something that has also given rise to great difficulty in practice. It has been suggested that in a limited number of cases it might amount to a false pretence, but again that is an area that will have to be updated and clearly and comprehensively dealt with.

Deputy McCartan and others spoke about computer fraud. Given the difficulty in establishing the old concepts of taking, obtaining or conversion, surely special provision is necessary to deal with this prevalent and growing area of crime.

I do not want the Minister to take anything I said as being critical of him personally. Nobody has a monopoly on wisdom, not the Minister for Justice, myself, the Law Reform Commission or the English legislators. I welcome this Bill. It goes some way towards solving a very real legal problem, a problem of proof, of convicting people who are providing a market for property stolen by thieves, and that is good. There could be a number of improvements in the legislation as drafted. I know the Minister Deputy Burke, and I know his record. I congratulated him at the outset. He has an excellent record in every Department in which he has served and I know that with this record and with his openminded approach to legislation, he will be prepared to listen to a reasonable case when Committee Stage is debated here.

Mr. Flanagan

I will begin where Deputy O'Dea finished by availing of this opportunity to congratulate the Minister, Deputy Burke, on his appointment as Minister for Justice. I hope the fact that we are discussing new legislation in this area so early in the Dáil session is an indication of the tenacity with which he endeavours to tackle the very real problems which come within the ambit of the Department of Justice.

I was interested to hear Deputy O'Dea state that the Law Reform Commission are at present undertaking a review of the wider aspects of larceny. If that is the case I wonder is it right that we should be enacting legislation that clearly does not go far enough towards solving the very real problems that exist in that area, problems of a very technical nature, as far as the burden of proof is concerned, that were so vividly outlined by Deputy O'Dea? More importantly, it fails to address society's response to an ever-increasing crime rate.

I would have thought if the Law Reform Commission were carrying out a comprehensive review of the law with regard to larceny it would be better for us as legislators to await the production of that report and then consider introducing consolidated legislation similar to that produced in the social welfare code in 1981. However, given that this Bill is before the House it is up to us to make the best of it.

Each Member of the House would agree with me when I say that the increase in crime in recent years is alarming. One has only to go down to the Children's Court in Dublin on any morning of the week to see that, despite the best efforts of the Garda Síochána and the courts, we do not appear to be solving the problem or going anywhere near to solving it. The figures contained in the various Garda annual crime reports bear this out. In spite of a large increase in the number of convictions, we do not appear to be tackling the problem in the way society might wish.

I am not sure if the changes envisaged in this legislation will make all that much difference. Vast areas are now so socially and economically impoverished that many people feel stolen goods are an extension of household goods. A recent social worker's report on this topic pointed out that receiving and handling stolen goods is now an everyday occurrence and the people engaged in this practice do not see themselves as doing wrong. A few hours before the Minister introduced this legislation the Secretary of the Inner City Traders' Association, Mr. Tom Coffey, was asked on radio for his response to a complaint with regard to the high levels of security in some stores in Dublin. He pointed out that the level of crime in Dublin is three times that of London, that we have by far the highest rate of crime against property in the European Community whereas we have the lowest rate of crime against the person. Clearly, our attitude to property demands serious scrutiny but this Bill fails to do so adequately.

Obviously we must view this matter in the overall context. The trend was downwards between 1983 and 1987 but since then, unfortunately, it appears to be creeping up again. If we compare the number of crimes detected with the number of offences recorded we will see that in the years since the early eighties the gap between those two figures has not become closer. The latest figures available, those for 1988, show that 89,544 crimes were recorded in that year, whereas only 29,685 were detected. Therefore it is clear there is a huge gap between the two figures. It is up to us as legislators to try to ensure that as many recorded offences as possible are detected. This brings me back to the hardy annual, the level of resources we make available to the Garda Síochána to enable them to combat crime.

We have to bear in mind that it is only the official figures we can look at and that there is a very high level of unrecorded crime. It is fair to say that, particularly in the larger urban areas, people do not bother reporting many minor thefts and burglaries. For instance, bag snatching is now an every minute occurrence and bicycles now command an inordinately high level of security, such as chains and padlocks. There is also the problem of shoplifting. If we take these into account we can see how big a problem unrecorded crime is. We should also examine the amount of money insurance companies have paid out in respect of claims arising out of burglaries in recent years to get a figure more authentic than the one released from the Garda Press Office or the Department of Justice. As has already been mentioned, the value of stolen property in 1988 was a massive £34 million, of which just under £3 million was recovered.

The Government have failed to deal with this problem adequately. I hope, in line with what Deputy O'Dea stated, that this perhaps is only an interim measure pending the production of a comprehensive report by the Law Reform Commission. However, I suspect that may not be the case given the way in which the proposals from the commission were treated by the Minister.

Irrespective of how watertight we can make legislation we cannot ignore the question of the level of resources we make available to the Garda Síochána to combat crime. The stark reality is that there are 155 Garda stations in rural areas without the services of a sergeant. In Garda stations up and down the country there are gardaí, trained in crime fighting and detection, who perhaps may be six foot two inches tall and seventeen and a half stone in weight but who are deployed typing memos with both forefingers. This problem has been highlighted on a number of occasions, yet we have failed to resolve it. Currently there are gardaí engaged in duties which perhaps a 17 year or 18 year old clerical officer would be more than well equipped to carry out.

I think that legislation such as this has to be dealt with in the light of the resources being made available to fight crime, and the lack of communication between the Government and such groups as Neighbourhood Watch and Community Alert, voluntary groups that are endeavouring to come to terms with the ever-increasing crime rate. We must look at this legislation in that context. By doing so we will see that the Bill goes a little way towards solving our serious problems. Everybody will agree that the law relating to receiving stolen goods and larceny was flawed, in so far as technical acquittals by the courts were giving rise to serious concern. Clearly the evidence was such that it was not possible under the existing 1916 legislation to prove a conviction, and daily people who had serious question marks over their particular involvement in incidents walked free.

Section 2 goes some small way towards tightening up what was a glaring loophole — the possession of dangerous weapons to commit a burglary at night. It seemed to be acceptable to carry freely house-breaking implements down the street during the day, but not at night. I am glad that the Minister has seen fit to change that. However, I wonder if that section is sufficient? One has also to take account of the availability of implements and weapons of a dangerous nature that could well be used for house-breaking purposes and the manner in which they are freely available. I accept that a Bill has already been published which will deal in some detail with extending the law relating to firearms and offensive weapons. I hope that legislation will be enacted as quickly as possible.

The reality is that in this city and throughout the country we have seen in recent years the alarming growth in Army surplus stores. For a country that spends less of our gross domestic product on defence than any other European country we seem to have a very flourishing trade in Army surplus goods. I would have thought, and certainly it was the case some years ago that Army surplus goods were for the boy scouts. Woolly socks or Army boots or gas lamps were useful for people going on camping holidays and they appeared to be innocuous. Today Army surplus stores are openly displaying swords, knives, bayonets and hatchets.

The fact that weapons of a very dangerous nature can be sold freely over the counter in this city without there being a breach in the law is a very serious problem we have not addressed. I hope the new firearms legislation coupled with section 2 of the Bill will go some way towards addressing that problem. I think it is important in that regard that the Minister has included a forfeiture clause in section 2 (4). The new section 28 (3) enables the court to order the forfeiture of any article for the possession of which a person has been convicted. I think that is very important as it will take out of circulation many of these items that could be used at a later stage if they had not otherwise been forfeited.

The Law Reform Commission report refers to this. However, I do not think the Minister was being fair to them when he said in the course of his speech that the Law Reform Commission

... have surveyed the state of the present law, both in this jurisdiction and in many others, and have put forward reasoned proposals for legislative change.

He states that the House owes a debt of gratitude to the Law Reform Commission. However, I think if the Minister were honest and fair to the Law Reform Commission he would not have said that because if he is of the opinion that the Law Reform Commission have published a fine report he would have followed on in detail some of the more comprehensive proposals, which clearly have been ignored under this legislation. That weakens this legislation. I do not think the Minister is being fair by complimenting the Law Reform Commission on the one hand and ignoring their report in so far as the substance of the Bill is concerned.

Deputy O'Dea takes the view that we should not slavishly follow, for the sake of following, proposals either of the Law Reform Commission or indeed the British model. I agree to an extent, but we must on all occasions legislate for the common good and enact legislation that is as watertight as possible to ensure that the spirit of the legislation is followed through in the best possible manner. I am not sure we have done this. While I would accept Deputy O'Dea's comments that we should not slavishing follow the British or other European models, nevertheless in this legislation as in any other legislation we have to bear in mind the greater interaction between states nowadays than at the time of drafting the original Larceny Act in 1916 or indeed any of the legislation that we brought forward in the twenties and thirties or in the early years of this State's existence. We now have to look at the European scene. The more we harmonise our legislation in the criminal law code the more likely we are to be victorious in society's fight against crime.

I would not like if it were the view of the House that we should not follow legislation in other jurisdictions simply because it has been enacted in other jurisdictions and we should have our own. I think we should certainly look at the manner in which legislation is operating in other jurisdictions and if it is reasonably satisfactory we should proceed to take a leaf out of their book. In the post-1992 era this will be of fundamental importance in the criminal law code, as it is in the economic field, and we must look towards a harmonisation on the great European scene of our criminal law code. Indeed, it may be incumbent upon us to look at legislation operating in Britain and continental Europe. I do not think we should immediately dismiss the 1968 Theft Act simply because it was enacted in a jurisdiction other than our own.

The essence of the Bill is in section 3 which deals with knowledge and possession of stolen property. The present law is stated quite clearly by Mr. Justice Henchy on page 26 of the Law Reform Commission report when he says that it is essential for a conviction for receiving stolen goods that the accused must at the time of receiving have actually known the goods to have been stolen. Recklessness as to whether they were or were not stolen is not sufficient; actual knowledge of the fact that they were stolen is of the essence. On reading that statement as to law one can immediately understand why the Minister felt it was necessary to update the law. Nothing more than actual knowledge that the goods were stolen will now be sufficient evidence on which to found a conviction for receiving stolen goods.

When the Minister and his Department were looking for a tightening up of that knowledge they definitely should have given more consideration to what the law Reform Commission had to say in their report on that aspect of knowledge. Recommendations 3 and 4 on page 115 of the Law Reform Commission report should have been adverted to by the Minister when he was drafting this legislation rather than the new section 3. Recommendation 3 states: "The test of liability for the new offence should depend on whether the defendant knew or was reckless as to whether the goods were stolen". It is stated quite clearly in recommendation 4 that "Recklessness should be defined so that a person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the goods were unlawfully obtained. The risk must be of such a nature and degree that considering the nature and purpose of the defendant's conduct and the circumstances to him its disregard involves culpability of a high degree". That recommendation puts a duty of care on a person either handling or receiving stolen goods to inquire where the goods have come from. Section 3 of the Bill is somewhat weak so far as knowledge is concerned. We must place a strict duty of care on the accused which will represent a higher burden than that envisaged in paragraph (c) of section 3 which states "believing property to be stolen property includes thinking that such property was probably stolen property". As Deputy O'Dea has stated already, that is perhaps a little messy as a definition and I wonder, were we to include that higher degree of care on an accused, whether we would be doing ourselves a greater service. I think we would.

The second aspect of section 3, which I believe is the kernel of the Bill, to which I should like to refer is the question of physical possession, which was dealt with earlier by both Deputy McCartan and Deputy Kavanagh. Broadening the definition of possession is one area where the Minister followed the Law Reform Commission's proposals and in the circumstances subsection (1) is reasonable. While it does give rise to technical difficulties, I am not sure how it could be tightened up even further. Of course, the description of handling will include much more than "physically handling" in so far as any association whatsoever by an accused with stolen goods, which could render him or her in serious difficulty, is concerned. We should not let it go out that the word "handling" actually means any form of physical touching; clearly undertaking assisting, removing, disposing or arranging of goods is going to be sufficient. Again I would share Deputy O'Dea's concern that perhaps the word "handling" is not an appropriate label, that perhaps some form of wording like "association, associating with or dealing in" might be more realistic.

An Leas-Cheann Comhairle

I do not want to interrupt the Deputy's train of thought but Deputy Byrne has indicated to me that he wishes to rise for a moment on a point of order. Can I ask for your understanding and indulgence?

Mr. Flanagan

Indeed, a Leas-Cheann Comhairle.

Mr. Byrne

Thank you very much. I attempted this morning to seek permission to speak on the Adjournment tonight on the issues of the fining of Aer Lingus. With your permission, a Leas-Cheann Comhairle, I request permission to move——

An Leas-Cheann Comhairle

I take it that the Deputy is seeking prmission to raise on the Adjournment the question to which he referred. I have to advise the Deputy that the Ceann Comhairle's office will advise him on that matter later.

Mr. Byrne

I appreciate your assistance in this matter.

An Leas-Cheann Comhairle

Thank you, Deputy.

Mr. Flanagan

The next point I should like to refer to relates to section 5 and that portion of the Bill which deals with evidence. Perhaps we might address ourselves more comprehensively to this matter on Committee Stage. I believe there is a difficulty here in so far as the evidence of previous convictions is concerned. I am not sure why the Minister has seen fit to hold on to a section of the old legislation over which there was perhaps a serious question mark for some time. The evidence of previous convictions in any trial on any matter could well give rise to serious constitutional difficulties, as has already been mentioned. If the Minister's answer is that it is a deterrent, that it may not be used but can be included in the legislation as a deterrent, why did he not broaden the earlier definitions to include recklessness as a duty on the accused so that one would not have to rely on the introduction of evidence of previous convictions as a deterrent?

I bow to the expert practical knowledge of Deputy McCartan in this regard. He stated that before he entered the House he was engaged as a criminal lawyer for 14 years. Of course, documentary evidence of that is already on the record of the House, and also that he was a successful criminal lawyer. I accept what Deputy McCartan said, that during his years of practice he did not see section 43 (1) of the 1916 Act being used by the courts. From my own inquiries I would certainly agree with that contention. However, when referring to the evidence of previous convictions the Minister said:

I am satisfied that evidence of this type has been vital in the past in helping to establish the mens rea of the accused in cases where it might otherwise have been impossible to do so.

When the Minister is replying to this debate he would be providing a service to the House if he were to give a number of instances where that evidence of previous convictions has helped in the past. Earlier speakers who appear to have expert knowledge in this regard have stated that section 43 (1) of the 1916 Act has not been used in the past and the Law Reform Commission on page 109 of their report, in so far as section 43 (1) of the Larceny Act, 1916, is concerned, state:

In the light of misgivings we do not recommend the expansion of the section, although that has been suggested to us. Indeed, as the section is apparently rarely relied on by prosecution, we think that no useful purpose is served by its retention in our law. Accordingly, we recommend that it be repealed.

There is a need for the Minister to explain why he sees fit to hold on to this section of the 1916 Act over which there is clearly a question mark of a constitutional nature.

The Bill is not adequate to tackle the problems we have. Consideration might have been given to placing an onus on dealers and pedlars of goods of various types to make inquiries as to the source of these goods. In recent years there has been a proliferation of flea marketeers, Sunday morning markets. I would question the operation of many of these markets and the source of the goods sold there. Nowadays there are many door to door pedlars selling goods of questionable origin in housing estates. Similarly pawn broking businesses are flourishing. Let me give one incident where I feel a duty of care might have solved a particular problem. I refer to an incident that was brought to my attention where a 17 year old boy received a sum of £100 for his mother's wedding ring. There is a compelling argument that a duty of care should be placed upon a pawnbroker or any dealer to inquire of a 17 year old whether he has obtained the ring under false pretences. I think we have lost an opportunity to place such an obligation on dealers to inquire where goods might have come from. All too often we see the "Arthur Daly" type character where people are handling goods with the proviso that no questions must be asked about where the goods came from. If such a duty had been placed on the middle man to inquire as to the source of goods we might not have the problems we now have.

I want to refer to penalties which have been dealt with by previous speakers. The threat of anything from ten to 20 years' imprisonment is not a deterrent. We have to look at alternatives to imprisoning people. Imposing prison sentences has proved costly and statistics show that people who have spent some time in prison are more likely than not, because of the lack of rehabilitation procedures, to return to crime. We have lost an opportunity in not providing that compensation should be paid to the victims of crime in this legislation. In other jurisdictions that has worked quite well as a deterrent because where a victim is compensated by the receiver or burglar he realises society is doing something in response to the crime that has been perpetrated against him; similarly the wrongdoer is also seen by society to engage in the physical handing over of compensation, whether by doing work or paying money, under the supervision of the probation and welfare services. Up to now, the victim of crime has been ignored, and with the increase in crime over the past few years far too many of our law abiding citizens are becoming disillusioned with the legal process. From the time an accused person is charged until the case is finally disposed of, the victim is in many ways made to feel like the accused. There is a lack of consultation, a lack of courtesy on the part of the prosecution towards the victim, which adds further to the lack of success of prosecutions. In this legislation the Minister should have provided for orders for compensation to be made where courts see fit.

Finally, I am delighted to see crime fighting legislation, albeit weak, at the kick off to the new Dáil session. I hope it augurs well for the current Dáil session and that we will see much of the legislation promised by the last Government and the present Government to update our criminal law. I hope the Minister for Justice will announce the reintroduction of the special committee on crime, lawlessness and vandalism which did not sit in the course of the last Dáil but which, throughout its existence in the previous Dáil, worked hard and published a number of fine reports, some of which have already been acted upon. There is a great need for that committee and I hope it will be reconstituted at the earliest opportunity.

I wish the Minister well in his new portfolio but cannot let the opportunity pass without registering my absolute amazement at a Cabinet Minister holding such an important portfolio as Justice in addition to that of Communications. Perhaps that is why the Minister has not seen fit to listen to the Opposition responses here this morning. I wonder if it is in the interests of the Department of Justice that the Minister responsible should also be responsible, in an unprecedented manner, for Communications. I hope the area of justice does not suffer because of that. Having said that, I wish the Minister well. I hope this is the first of many Bills which are badly needed if we are to tackle the spiralling crime rate.

Mr. D. Ahern

I, too, add my congratulations to the Minister for Justice, this being his first time to put forward a Bill in this capacity. The point made by Deputy Flanagan is a bit ungracious. I have no doubt that one of the reasons the Taoiseach appointed Deputy Ray Burke as Minister for Justice and Minister for Communications was the excellent job he was doing at the Department of Communications. He probably was best informed in the matter of bringing in legislation to fix up the mess left by the Fine Gael-Labour Coalition Government in regard to illegal radio stations. I agree that the Justice ministry is one of the most difficult and I have wondered why a junior post has not been created. I recall the previous Minister spent many hours in the Chamber dealing with the Judicial Separation Bill and other measures. This necessitated much background work apart from time spent here. Deputy Burke has taken on a very difficult ministry but I have no doubt that he will excel as he has in his previous ministries, particularly in Communications.

This is a very short Bill and it would be naive to think that it is the Government's sole answer to the problem. The Bill is the first response of the current Government to the problems of crime in our society. Crime figures, while they may be down in some areas, are up in others. There is a false perception that crime, particularly petty burglary, happens only in the cities. As much crime, if not more, takes place in rural areas, the perpetrators often coming from the cities and urban areas. We have a serious problem and this is one of the first efforts by this Government to address it.

No piece of legislation, no matter how big or small or how technical, will cure all ills. There is a need for extra gardaí. This Government and the previous one brought forward proposals to recruit 1,000 gardaí up to 1991. This will have an effect in areas where they are most needed. I acknowledge that there are Garda stations which are unmanned or under-manned. These extra gardaí, even though it will take slightly longer for them to come onstream, will help matters particularly in rural areas where there would appear to be a greater increase in crime than in the cities.

A number of Members mentioned the need for gardaí to be taken out of offices. Most people would be surprised to know how many gardaí are working in offices. I understand the Minister and the Department are considering the matter. Perhaps civilians could take over certain duties such as typing. There is, of course, an element of confidentiality which is vital in Garda work and this is probably one of the main reasons that civilians have not been doing this work. Their employment might lead to leaks of information from Garda stations.

I compliment the various neighbourhood watch schemes and I do not accept Deputy Flanagan's claim that the Government's response is negligible. These schemes have been well worked by the gardaí, particularly in urban areas. There is a current proposal for community gardaí in the city of Dublin. I hope when the extra gardaí come onstream we will have more on the beat than in squad cars. This is vitally important if we are to prevent crime taking place.

The Act of 1916 badly needed to be changed. Any practitioner in the courts knows it is outdated. As Deputy O'Dea said, the Act is verbose and technical and there was always a perception in regard to receiving that it was easy to get off. Perhaps due to the quality of the district justices in my area I have not seen many men getting off because they said they did not know goods were stolen. Common sense has prevailed and by and large those who were guilty of receiving stolen goods were convicted.

The nub of the question centres on mens rea, malice aforethought. A number suggestions have been made as to the way it should be handled. The Bill suggests leaving in “knowing” and including “believing it to have been known”, which would include thinking the goods were probably stolen. The Law Reform Commission came down in favour of the term “recklessness”, but I would be wary of that. In criminal law malice aforethought was always necessary. A person in possession of a particular item in a reckless way would not necessarily have malice aforethought. The inclusion of the term “reckless” could bring in many people who would not have malice aforethought. Malice aforethought would imply much more than just an intention to receive or to handle. It would encompass a decision on a person's part to receive particular goods. The Bill opts for the middle ground and probably covers the best of both worlds.

I would agree somewhat with Deputy Kavanagh regarding section 3 which refers to a person thinking that property was probably stolen. I am not sure this is the best phrase and the Minister should have another look at it. I do not think it is the best solution, although I am not necessarily saying that some other provision such as "recklessness" should be included.

Many Deputies are alleging that the Government did not go along with the proposals of the Law Reform Commission. I agree with Deputy O'Dea that we should not slavishly accept the recommendations of the commission or any legislation introduced in other jurisdictions. It is correct to say that we should bear in mind such legislation and take into consideration other judicial decisions on it. However, our legislation should deal with the problems we have. Our laws should suit our circumstances.

Debate adjourned.