It seems section 6 is an improvement on the existing situation. It provides that in a trial of two or more persons indicted for joint handling of stolen property the court may find any of the accused guilty if it is satisfied that he handled all or part of such property, whether he did so jointly with the other accused. It seems to be an improvement and on that basis I am happy with this section.
Larceny Bill, 1989: Committee Stage (Resumed).
Question again proposed: "That section 6 stand part of the Bill".
Question put and agreed to.
SECTION 7.
I move amendment No. 10:
In page 6, between lines 17 and 18, to insert the following subsection:
"(5) For the purposes specified in subsection (I) of this section, `property' shall be deemed to include information."
In moving this amendment I repeat what I said throughout the passage of this Bill through the House. The Bill could be improved greatly if we accept modern circumstances of crime. So far as we can see the Bill fails to accept that we are living in an age of modern technology and modern methods of doing everything and of being able to commit crime by using every technology and device such as we discussed under another section last night. Types of larceny that obtain now did not exist even ten year ago and certainly not when the 1916 Act was brought in. In this respect I am trying to put some ideas into the Minister's head that will improve this Bill and make it fit conditions, not just for now but for years ahead.
The Bill lacks a great deal in not recognising that the crime bosses are the ones making a great deal of money from larceny but they never come to notice. We have tried to home in on these people by means of the Bill. In my view the Bill confines itself to physical handling. It should provide for the crimes of stealing information and the disposal of such information. If one illegally listens in to a commercial meeting and steals the information so gathered the dissemination of such information should become a crime of unlawful handling. A company's plans, information or research and development material can be stolen and sold for very large sums of money on the international market to other companies in the same business. This is carried on by seemingly reputable companies. It is particularly a fact of life in the pharmaceutical industry. Many of the large pharmaceutical concerns have branches in this country and they spend £millions. While I hold no brief for multinationals in that respect, I know people steal such information and make huge profits from selling it on international markets. A Bill such as this should provide for penalties against such action.
The purpose of my amendment is to provide that the Bill deals not only with manual handling and stealing of goods from a shop, a house or a car and trying to sell them somewhere else, I would like to see the scope of the Bill widened to take into account the type of larceny commited today which fetches perhaps great returns for the person who commits the crime and even more so for the person behind the scenes who has the contacts to whom he can sell the information or the research material. I hope that the Minister will take up this suggestion. If he feels it is inadequate I hope he will put down an amendment of his own.
Deputy Kavanagh has raised a very important point on which legislative action is needed. Whether this is the best way of dealing with it I am not sure. I am interested in hearing the Minister's detailed response on this point. I would like to comment on it later.
I also am very interested in hearing the Minister's response to the points Deputy Kavanagh raised. The year 1916 was a very long time ago. If this Bill is to stand the test of time in an era when information can be a much more valuable commodity than personal property, serious consideration should be given to the points raised by Deputy Kavanagh. I am not sure that this is the manner in which to give effect to the concerns he has raised but I should like to hear the Minister's response.
While it is layman's language to speak of information being "stolen", in the context of industrial espionage or computer hacking for instance, the plain fact is that information as such is not stolen in the literal and legal sense. It is possible to steal, say, documents or computer discs which contain information. There is something tangible stolen which is missing from the owner and is clearly property which could legitimately be the subject of a handling charge.
Let us be clear, however, about the difference between property, which is larcenable, and information which can perhaps be revealed to or shared with unauthorised persons but cannot in any except a metaphorical sense be said to be stealable.
If, for example, an employee of Telecom Éireann communicates orally an exdirectory telephone number to someone who should not know it and does so for cash, how can that be said to be stolen property? A search of Telecom's premises will show that nothing is missing. Similarily the person whose number has been communicated can show nothing missing. It is not possible to take back the telephone number from the person who paid because he still has the knowledge of it. Knowledge is not like property; it cannot be stolen as such and it cannot be restored to its rightful owner.
The inclusion of information in the definition of "property" is wholly inappropriate. Handling can only relate to tangible property. Any change in this law would be a matter for the Minister for Industry and Commerce who has responsibility for copyright and patent law.
I can only be disappointed with that reply. I thought we were looking seriously at the amendment. If someone steals computer software which contains information and sells it, I believe that is a crime of handling. We are not talking here about telephone numbers or conversations which may give information. I am referring to information stored by modern methods. Technology is now so far advanced that a person can make money by passing on information which a company or a person may have. It has a value and can be transmitted through software, recording or the use of plastic technology of one kind or another.
If this Bill relates only to the mechanical handling of goods and property it will be of very little use in the fight against crime. I have tried on other occasions to introduce the necessary changes to the Bill. The copyright and patent laws are out of date due to modern technology and the recording of other people's works is quite common. I accept that it is a matter with which the Minister for Industry and Commerce will have to deal.
We should be dealing in this Bill with a problem that is expanding at an alarming rate. The Minister told me at an earlier stage that he could interpret "believing" to mean "thinking". This being the case he should also be able to accept that property is information contained on a floppy disc or something of that nature. I am not stretching my imagination any further than the Minister when he told me that if I believed something I could be considered as thinking it. The Minister's reply does not satisfy me.
I have listened with interest to Deputy Kavanagh and the Minister. Looking at the issue objectively and dispassionately, Deputy Kavanagh's point is well made. There is need for a legislative response to the stealing of information. The old saying that information is power is very true, especially in the political and business sense. Anybody who knows anything about computers knows the modern crime of computer hacking, gaining access to someone else's computer information. This has raised enormous scandals in other countries but I am not sure if it is prevalent here. I hope it will not become prevalent, but our experience to date suggests that we will not be immune from the spread of new unlawful acts. I noticed recently that the United Kingdom were proposing a legislative response to the problem of computer hacking.
I am worried that the Minister's reply does not indicate any intention whatever to respond to the legitimate points raised by Deputy Kavanagh. The Minister has made it clear that it is a very complex subject. He has also made clear why a change should not be made in the context of the present Bill. He has acted like Pontius Pilate, washing his hands of it, and has made vague references to the Minister for Industry and Commerce. That is not good enough.
The Minister could make a reasonable case that the specific wording of Deputy Kavanagh's amendment may not be the best way of handling the problem, which is fair enough. However, if he accepts there is a serious difficulty, he should be able to tell us what the Government are doing about this difficulty. He has not done this. We had a similar problem in regard to the Video Recording Bill. Everybody agreed that the Bill was only a partial solution to the problem of video nasties and that changes in the Copyright Bill would also need to be made. On checking the Official Report we were able to find that 12 months ago there were proposals to change the copyright legislation — I think the Bill was supposed to be introduced in December 1988 — but nothing has happened. When the present Minister for Industry and Commerce was questioned on the issue on the Order of Business a few weeks ago, he seemed to know nothing about it.
Changes in the copyright legislation may be a partial solution to the problem raised by Deputy Kavanagh, but it is very unsatisfactory from the Opposition's point of view to be left in limbo. When a legitimate problem is aired and it is accepted that a legislative response is needed it is unsatisfactory to be told it is the responsibility of another Minister and that something might be done. I feel strongly that the very minimum Deputy Kavanagh is entitled to expect is a clear commitment that the Government will deal with the problem.
If the problem is so complex that it needs to be examined by the Law Reform Commission, the Minister should go ahead and do it. The work the Department of Industry and Commerce have done on the Copyright Bill may be a solution but if so, the Minister should tell us. I believe he should give a more positive response to the point raised by Deputy Kavanagh.
I would like to be as helpful as I can. I fully appreciate the remarks of Deputy Kavanagh and Deputy O'Keeffe. Stolen property, such as a tape or a disc, can be dealt with under this law but knowledge or information is a different matter. I gave an example in regard to the information Telecom Éireann are transmitting. The Law Reform Commission are considering changes in this area and they are the appropriate body to look seriously at this proposal. I am prepared to put the Deputy's views to the Law Reform Commission as a matter of urgency. I hope that will be helpful.
I have no doubt that everybody who spoke in this House last night or today wants to make the Bill as effective as possible. Deputies will appreciate that difficulties will arise in court because of different interpretations of the law. There is no need for me as a layman to go into that as the legal people are well informed on this issue.
I wish to repeat that I am prepared to take the matter up immediately with the Law Reform Commission to see that appropriate changes can be made.
I appreciate the Minister has moved from his position of outright rejection and is now prepared to make some concessions on the point I have raised. I would be far happier if the Minister were to take action rather than refer the matter to the Law Reform Commission, because the issue of receiving stolen property was referred to the Law Reform Commission as far back as late 1986 or early 1987 and it has taken until now to bring the published report into legislative form. It could possibly take another two years before we see a new Bill before this House.
In rejecting my suggestion earlier, the Minister said as it dealt with copyright and patents it was a matter more relevant to the Minister for Industry and Commerce. I am glad he is beginning to see the point I was making. I was not referring to stealing information but to stealing information while it is being transmitted on tape, which makes the tape extremely valuable. If there was no information on the disc or tape it would be worth about a pound or two but the information contained on the disc or tape makes it extremely valuable.
In order that the Minister is fully aware that I am serious about the amendment, I will not withdraw it and wish to put the matter to a vote. I hope the Minister will understand that we are very serious about this proposal.
Amendment put.
The Committee divided: Tá, 18; Níl, 65.
Tá
- Byrne, Eric.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Mac Giolla, Tomás.
- Moynihan, Michael.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, Willie.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Malley, Desmond J.
- Power, Seán.
- Quill, Máirin.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies Howlin and O'Shea; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
I move amendment No. 10a:
In page 6, between lines 20 and 21, to insert the following subsections:
"(6) In the laying of an indictment or the making of a charge under section 3 of this Act it shall not be necessary to specify how the goods were stolen or otherwise unlawfully obtained.
(7) In this Act, `unlawfully obtained" shall be construed to mean obtained in circumstances amounting to an offence and the misappropriation occurred in the initial taking or subsequent to that initial taking.".
I am moving this amendment in the name of my colleague Deputy McCartan. As you know, a Leas-Cheann Comhairle, I did not get a great deal of notice that the Deputy would not be here to ask questions.
The purpose of the amendment is to insert a new subsection at the end of section 7 and it is really a provision in ease of the prosecution. It would simplify the task of the prosecution in a receiving charge. What is at issue is essentially a technical point on which I should like to hear the Minister. How an indictment is now framed is obviously dictated by current law and, under current law, in order to prove an indictment it would be necessary to prove how the goods were stolen. If the law is changed as proposed here, presumably the form of an indictment will require consequential changes and that essentially is the point on which I am seeking clarification from the Minister.
The Minister needs to fully clarify the point raised by Deputy Rabbitte. Indeed, there are two points, the first is the reference to goods unlawfully obtained which is a separate issue from goods being stolen, which we debated on Committee Stage and the second point deals with what goes into the indictment. It is important to ensure that we do not create an escape hatch for an accused person. We are changing the law and I understand that there are settled procedures in regard to the manner in which the indictment is framed. The question then arises whether we should provide for a change in those procedures so that we can be sure that the prosecution will not find that the charges are thrown out because the indictment is not properly framed and does not take account of the changes in the law. If the Minister can satisfy me in that regard we will all feel much happier about the situation.
The Law Reform Commission suggested that the offence of handling would be committed in respect of goods unlawfully obtained. They also stated very clearly that it should not be necessary, on a charge or indictment for the offence, to specify how the goods were unlawfully obtained.
We welcome the thrust and the change in section 7 which means that property stolen in England, Scotland or Wales, which was not an offence under the previous Larceny Bill, is now covered. I should like the Minister to say whether he considers that this is a general amendment which should apply to the whole Bill and not just to this section. I believe it should apply to the whole Bill. I hope the Minister will accept this point.
This amendment would give partial effect to section 7 in the scheme of a Bill appended to the report of the Law Reform Commission. This was carefully considered during the drafting of the Bill and the Director of Public Prosecutions was consulted. He indicated that he is satisfied there is no need for a provision of this nature. Accordingly, no such provision has been incorporated in the Bill.
The precise drawing of an indictment will always depend on the facts in each case and that is well known. There may be cases in which, in order to do justice to the accused, it will be necessary to show in the indictment how exactly the property, the subject of the change, came within the definition of "stolen property". I hope I have explained that adequately. I must point out that the Minister did consult the Director of Public Prosecutions in the drafting of the Bill.
I appreciate what the Minister has said. However, I do not know whether he is saying that the Director of Public Prosecutions was consulted with regard to this specific amendment. Essentially its provision is in ease of the prosecution. Deputy O'Keeffe raised the question of a possible escape hatch purely because of some technical omission in the manner in which the indictment is framed. In that sense the intention of this additional subsection was to guard against that eventuality. I am not sure that the Minister has dealt with that point.
I want to make it clear that the Director of Public Prosecutions was fully informed of all of this. As the Deputy will be aware the drafting of an indictment always will be dependent on the facts of a given case. From all the information and advice available to me I am satisfied in this respect. I want to emphasise that the Director of Public Prosecutions was fully consulted and he envisages no need for Deputy McCartan's amendment. He is quite happy that the relevant section is satisfactory.
With that assurance is Deputy Rabbitte happy not to press the amendment?
Yes if that is the considered view of the DPP's office but I should like to reserve my position on it for Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."
There is one point in relation to this section on which I should like to get some assurance from the Minister. I am focusing on section 7 (2) which replaces section 46 (1) of the 1916 Act. Essentially it deals with the proceeds of theft. It is very clear, when we talk about receiving or handling stolen property, that we must cover the circumstances in which such property would have been laundered or changed, say, money having been changed into different denominations, so that there can be a change between the actual item or items stolen and what actually comes into the hands of a receiver or handler. I am advised by people who have experience in criminal matters that the provisions of section 46 (1) gave rise to many difficulties, that is the provision being replaced. The Law Reform Commission did examine this issue. I supose, to some degree, one could contend they handled it with a long fork. For example, they referred to the provision in the English Theft Act, 1968 and suggested that a new provision, drafted on the lines of section 24 (2) of the English Theft Act be considered, that that would constitute a useful reform. As far as I can ascertain that recommendation has been followed. Can the Minister now assure me that the complexities, as highlighted by the Law Reform Commission are resolved or is he satisfied that this new provision has been drafted in the most effective way to ensure that the proceeds of the crime, even if laundered or changed, can be followed through to the receiver or handler so that they be brought to book even where the proceeds of the theft have been laundered in the manner I have described?
This section makes clear what is intended by the expression "stolen property" in relation to the new offence of handling stolen property provided for in section 3. In relation to "stolen property", whether stolen in the State or elsewhere I should say that section 7 (1) removes an apparent anomaly regarding the receiving in this country or property stolen abroad. At present section 33 (4) of the 1916 Act provides for the offences of receiving and of possession of property stolen or otherwise unlawfully obtained outside the United Kingdom.
I am happy with that.
The Supreme Court has held that, owing to a provision in the adaption of the Enactments Act 1922 the provisions of that subsection do not apply to property stolen in England, Scotland or Wales though they do apply to property stolen anywhere else in the world including Northern Ireland. If he wishes I can give the Deputy additional explanatory information. I should say that, in this section, we are following the proposal of the Law Reform Commission for change.
I am very happy with subsection (1); that does not pose a problem. Indeed it is a very obvious change that should have been effected — that property stolen abroad should come within the ambit of the Bill. It was subsection (2) on which I was focusing. Is the Minister now satisfied that that is drafted in a way which will ensure that if goods or money are laundered we can still get at their receiver or handler?
Yes, I am in no doubt that that is being looked after, as are my legal team.
If the Minister is satisfied, then I am.
I anticipated that the Minister might make some reference to the additional subsection (7) our amendment sought to include. Specifically I was curious about his response to seeking to put a construction on the words "unlawfully obtained" that could include offences, for example, such as smuggling or various tax avoidance mechanisms; in other words where a person had received what one might call a tax-avoided good, that person would be deemed to be guilty. I had expected some clarification from the Minister on that point.
That has been dealt with under section 3 of the Bill. The Deputy can be assured that the necessary provision is included in this Bill to deal with the matters he has raised.
Section 7(3) refers to property that is restored to lawful possession or custody. This subsection states:
For the purposes specified in subsection (1) of this section, no property shall be regarded as having continued to be stolen property after it has been restored to the person for whom it was stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased, as regards that property, to have any right to restitution in respect of the theft.
Does the last part of that subsection imply that the person who is the victim of the theft has no right to claim for restitution in a civil court?
Yes.
I wish to raise with the Minister the question as to how the burden of proof would operate in respect of the offence under this section. If a person is found in possession of stolen property, does he have to give an explanation as to how he got it or is it a matter for the prosecution to establish his degree of connection with those goods or that property? Does the fact that the property is stolen put the burden of proof as to how he got those goods on to the person in whose possession the goods were found? Subsection (1) states: "provided that the stealing amounted to an offence". How could a stealing not amount to an offence?
That was dealt with under section 3 of the Bill and we went into great detail on it. I think Deputy Taylor will realise that an offence has to be proved. As he knows, when a person or persons are prosecuted for stealing goods, that has to be proved by the courts. The provisions are included in section 3 of the Bill to take that person or persons to court. Maybe the Chair will rule me out of order if I go back on that section and I do not want to create that difficulty.
I was about to decide that you would qualify for a week.
With hard labour.
I would like to be as helpful as I possibly can to Deputy Taylor. It would be far from me to be offensive to him. This whole issue was dealt with in great detail under section 3. As a layman, I think the person or persons who will be brought before the courts will be safeguarded because it has to be proved that they stole the goods.
I do not want to be difficult about this with the Minister of State for whom I have a great regard, as he knows. I am raising a very simple question. It may well have been dealt with under section 3 — I am sorry I was not here when that section was taken — but it is equally relevant to section 7 which deals with the scope of the offence relating to stolen property. I am asking a simple question and I just want a simple answer. I am not being critical; I am just looking for information. All I want to know is if a person is found in possession of stolen goods, is the onus of proof thereafter shifted from the prosecution, where of course it normally lies, to the defence? In other words, is it sufficient under this Bill, of which this is a key operative section, for the prosecution to say that the person was found with the goods in his possession and he must say how he got them whether innocently or otherwise, or does the prosecution still have to prove that there was a guilty frame of mind on the part of that person when he got the goods? I just want guidance from the Minister as to what the position is under this section.
Section 3 referred to that whole matter. The onus of proof will be on the accused.
Therefore, it is shifted?
My interpretation of the law, as a simple layman, is that in any court today the accused must defend with his counsel but the law is there to protect him as well. I would refer the Deputy to subsection (4) of this section which refers to this matter. Deputy Taylor will accept that I have the best legal information at my disposal. He will appreciate that when this Bill becomes law, any item in it can be contested constitutionally. When drafting the legislation we received legal advice and this is the opinion of all concerned but I appreciate the points raised by Deputy Taylor.
The Minister said that if any difficulty arises it can be tested constitutionally.
What I said is that persons can test any Bill constitutionally.
Of course they can and that is their constitutional right but our function in this House is to try to ensure as far as we can that that does not happen. It is quite relevant, having regard to that subject matter introduced by the Minister, to refer to the fact that the night before last we discussed a Supplementary Estimate for the Office of the Attorney General, introduced by the Minister for Finance. The sum of money sought in that Estimate was massive and when we asked the Minister what it was for, we were told it was based on the grounds that the State had been taken to the High Court and the Supreme Court many times on these constitutonal actions, which result in huge debts. There is a limit to what we can do but we must ensure that, in so far as we can, we iron out these difficulties here and not have the State and the taxpayer embroiled in funding the coffers of the legal people by fruitful constitutional actions.
The Minister told us that he has used the best legal brains at his disposal and I am sure he has. I do not doubt that for a moment but the legal expertise which has been forthcoming on occasions in the past has proven to be wanting. It has not always proven to be correct. There was at least one occasion during my period in the Dáil when some Members expressed reservations about legislation we were debating. The Minister for Justice assured us that the advice of the best legal brains had been taken, that the Act was A1, and that it was fine but when it was tested in the High Court and the Supreme Court it was not fine. It was found to be unconstitutional and new procedures had to be brought in speedily. It do not want to go into the deails now, but if someone wants me to I will.
It is not sufficient for a Minister to come into this House and give a block answer saying "Everything if fine. I have consulted the legal people and you need not trouble yourself about it any further and that is the end of the matter." That is not our function here. The Minister may consult whom he wishes but we are dealing with the matter afresh in this House and we have to use our knowledge and experience as best we can. All of us have some contribution to make on different aspects. That is what this House and democracy are all about. I do not think we should be waved away with the general encompassing statement "We have the best legal advice so forget about it, Deputies. You need not bother about it any further". When questions are raised that sort of answer should not be given. We should discuss any points raised on their merits.
If the Minister is giving his opinion on the best legal advice available to him what can we do beyond that?
It is as well to bear in mind that it has been proven wrong on different occasions.
The interesting and magic aspect of law is that there seems always to be a superior opinion than that which existed up to a certain point.
I am not stopping any one from giving a view on any aspect of the Bill, nor did I stop anyone. I would not want to interfere with the fundamental rights of Members to give a view of any aspect. I welcome those views. What I am saying is that this Bill has been drafted to the best of our ability.
I want to raise a matter with the Minister under section 7 (3) which states:
For the purposes specified in subsection (1) of this section, no property shall be regarded as having continued to be stolen property after it has been restored to the person from whom it was stolen or to other lawful possession or custody....
If the Garda find property which is readily identified and give it back to its rightful owner, could this subsection have the effect of deeming that the goods were no longer stolen property? Could this affect a prosecution in any way because the Garda restored the property to the possession of the rightful owner? Is that what section 7 (3) says?
Stolen property ceases to be stolen when it is restored to the owner. Section 7 (3) provides that so far as the offence of handling is concerned, property ceases to be stolen property when it has been restored to the owner or to other lawful possession or custody, for example, where it has been recovered by the Garda Síochána, or after the owner or anyone claiming through him has otherwise ceased to have any right to restitution in respect of the theft. That provision is pretty clear to me.
I am glad to know it is clear to the Minister but it is far from clear to me. I am at a loss to understand the purpose of section 7 (3). Why is it included in the Bill? When a subsection like that is included in a Bill it is there to deal with a possible situation which may arise. Can the Minister explain what situation section 7 (3) will deal with?
That is explained in the Law Reform Commission report.
It may be but what situation is it meant to deal with?
It is explained in the Law Reform Commission report.
Can the Minister explain it now?
When the owner gets his property back it is not regarded as stolen.
That is obvious and we do not need a subsection to say that. The crucial factor is that it was stolen at the time the prosecution was brought.
No.
Why do we need to say that?
That would be a matter for the courts, and has to be.
What difference would it make if that subsection was not included in the Bill? I am not clear what situation it is supposed to deal with.
This section will stop property continuing to be treated as stolen property. I do not want to get into an intricate legal argument but if anyone wants to take me down that road I will go down it. Section 7 (3) is included in the Bill to set out clearly the position in regard to property which has been returned to its rightful owner.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
I move amendment No. 11:
In page 6, in column (2) of the Table, to delete "ten years" and substitute "fourteen years".
Essentially what I am proposing is that the same maximum penalty of 14 years, which is proposed for the receiving or handling of goods, should apply for larceny also. I want to have the same penalty for both offences. As drafted the Bill proposes a maximum penalty of 14 years for receiving goods and a maximum penalty of ten years for larceny.
I appreciate that there is an obvious need to indicate how seriously we view the offence of receiving or handling by providing for a substantial maximum penalty but we will be going overboard if we do not provide at the same time that the person who committed the original crime by stealing the goods should be liable to the same maximum penalty. The Law Reform Commission stated clearly that the same sentences should apply for larceny and handling. This proposal which is specifically set forth in paragraph 151 on page 110 of the Law Reform Commission Report makes sense. While it might be good for the public relations section of the Department to hear the Minister say how seriously he views the offence of receiving and is providing a special maximum penalty for this offence, and even more for larceny, it does not make common sense. The offence of receiving or handling stolen goods should be considered in the very serious category of offence and this is provided for in the Bill with the maximum penalty of 14 years. However, we should not go overboard about this. We should not forget that stealing, particularly grand larceny, can be a serious offence. If goods were not stolen they could not be received or handled unlawfully. Larceny is the primary offence.
To restore the balance we should have the same maximum penalty for larceny and receiving and it should be a 14 year maximum. I am not saying that that penalty should apply for petty larcenies or for minor charges for receiving or handling. I am suggesting that the maximum penalty for stealing and larceny should be increased from ten years to 14 years. If that suggestion is adopted we will be accepting the recommendation of the Law Reform Commission.
Deputy O'Keeffe must be aware that his proposal is a matter of pure academic interest. During the 30-plus years that I have been watching the results of criminal cases I have yet to see a penalty of ten years imprisonment being imposed by any court for any larceny, receiving or embezzlement charge. The maximum penalties bear little relation to the everyday enforcement of the law in the courts. In the UK they operate on different principles when imposing penalties, and they have the notion of preventative detention for habitual criminals, something that has never been adopted by the courts here, and probably, rightly so. A penalty of five years or seven years' imprisonment for any of the offences mentioned represent a heavy penalty in terms of those imposed by our courts. Increasing the maximum penalties from ten to 14 years does not bear much relationship to what goes on in our courts daily.
The amendment does not tackle the nub of the problems that arise in regard to the imposition of prison terms for such offences. In my view the major problem is that the penalties imposed for broadly similar offences vary between different judges and justices. It is well known that judges and justices hold different views on the severity of the sentences that should be imposed. Some judges and justices take a lenient view and others are known as hanging judges and hanging justices because of the serious view they take for roughly comparable offences.
A court in Dublin will adopt a certain approach on a regular basis while a court in Cork or Limerick will take a different view. It depends on the attitude of judges and justices to offences. Frequently, judges and justices get the notion that they will crack down on a particular offence and announce that they intend imposing heavy penalties for those offences notwithstanding the fact that their colleagues in the next county may be applying the Probation of Offenders Act hand over fist for similar offences. We ought to tackle that problem although I am not saying that we should do so in the Bill. I will be interested to hear what the Minister has to say about this.
There is a missing element in the administration of justice here in that discussions do not take place between judges and justices. As far as I am aware they are never brought together for a seminar to be addressed by senior law officers or senior judges of the High Court or the Supreme Court. They are never brought together to discuss broad guidelines on sentencing policy. That is in marked contrast to what happens in the UK, much as I hate to hold up the UK as an example as far as the administration of criminal justice is concerned. However, on this issue the UK operate a worthwhile system.
The Lord Chancellor on a regular basis calls the magistrates and junior judges, who carry the major responsibility for sentencing policy, together and puts forward suggested guidelines. He listens to their views on how the courts operate in their areas. Broad parameters are discussed for different offences, and that must be good. At least this introduces into the country as a whole a measure of consistency in sentencing policy. It is completely untenable that we should have a judge or justice in one part of the country giving the defendant the benefit of the Probation of Offenders Act for a shoplifting offence, for example, while their colleagues in a different county regard such offences as serious and impose sentences of 12 months in prison. I am not going into the question of which decision is the correct one but we ought to have consistency in regard to sentencing.
I accept that no two cases are the same, that all cases differ, but we should have a set of guidelines for the different offences taking into consideration the circumstances of the person charged with the offence. I would welcome an announcement by the Minister of State that he would ask the Minister for Justice to consider bringing judges and justices together to consider a sentencing policy.
Another aspect of sentencing policy that is relevant is the attitude adopted by some judges and justices in regard to certain offences. For example, a district justice may adopt a certain line in regard to people found driving without insurance cover. That is a serious offence and, unless a good explanation is forthcoming, warrants an appropriate penalty. However, judges and justices often announce in their courts that they regard such offences as serious and that their penalty will be £500. They carry that policy into effect irrespective of the circumstances of the defendant. They do not take into consideration such mitigating circumstances as the person charged not having been before the court on a previous occasion for a similar offence or the financial circumstances of the defendant. We should have reservations about such a policy. The means of a person on whom a fine is imposed should be taken into consideration. A fine of £500 to a company director is a matter of little consequence because he is in a position to write a cheque for that amount but for another person such a fine for an identical offence could be the equivalent of a sentence to 12 months in prison. That person may not have any hope of raising that money. It would be a waste of time imposing such a fine on that person and the court would be better to sentence the person to 12 months in prison and have done with the matter.
The sentencing policy of judges and justices should be exercising the minds of the Minister, and the House, rather than seeking, as Deputy O'Keeffe is in his amendment, an increase in the maximum penalty for an offence.
I understand the motives behind moving this amendment. There would be no sense in applying different sentences for the primary offence and the offence of receiving, but I wonder if Deputy O'Keeffe's amendment seeks to do much more than introduce a note of symmetry into the administration of criminal justice in this jurisdiction. As has been pointed out, this would be largely academic as the maximum term of imprisonment of ten years would rarely be imposed for the habitual type of offence we are talking about. After all, in the case of criminal offences involving violence the maximum sentence as suggested here would rarely be imposed and very rarely exceeded. For crimes such as kidnapping a sentence of 14 years would be considered severe and I would have thought, other than for reasons of symmetry and commonsense, it probably would not have very real application. I do not dispute what the Law Reform Commission have said. It would make much more sense if similar sentences for the crimes of larceny and handling were applied.
Deputy Taylor has raised an issue which is a source of concern for a great many people, that is, the lack of uniformity in sentencing policy. Practising criminal lawyers and indeed practising petty criminals could tell us about the major discrepancies in sentences imposed as between one court and another and one judge and another. I do not think this amendment addresses that problem. Although I understand the reasons behind moving it I do not consider that it would have a great deal of real application.
I would like to refer briefly to Deputy Taylor's comments. I have first hand experience and knowledge of the system in the United Kingdom. I am not criticising Deputy Taylor's suggestion. It is a good one and perhaps the Minister of State should consider taking it on board. I do not know if Deputy Taylor is aware of this or not, but in the United Kingdom where the system he has mentioned is operated there has been a great deal of disquiet in recent years about the problem he has raised, the lack of uniformity in sentencing. There has also been a great deal of media comment on this problem in recent times. So far as I am aware, I am speaking from memory now and open to correction, the Lord Chancellor's Office in the United Kingdom examined this problem in the recent past, but nothing concrete came out of their deliberations.
I have read most of the media comment, and suggestions, on this problem in the United Kingdom and unfortunately, I have come to the conclusion that it is not possible to find a solution to it. As Deputy Taylor readily accepted, we cannot have a system of mandatory sentencing, and mandatory sentences for certain crimes, as the circumstances of each case vary. While I welcome Deputy Taylor's suggestion and support it, I am pessimistic about our chances of finding a solution to this elusive problem. In relation to the amendment——
We have to try, Deputy.
I have made the point that they have tried in the United Kingdom where there has been a great deal of media comment on this problem.
Let us show them that we can do better.
No one has come up with a solution. If Deputy Taylor can come up with a solution which the Lord Chancellor's office and various commentators in the United Kingdom have failed to do, fair play to him and I will be delighted as I want to see this problem solved also.
At least they have tried.
Yes, they have.
They are still trying and perhaps we could improve on it.
I think Deputy Taylor would accept that while we can sit down and try, as they have done in the United Kingdom, we have to be fair and call a spade a spade. If they cannot come up with a solution to this problem which is not exclusively either an Irish or an English problem our chances of coming up with a solution are very slim.
Not at all, they would be better as we are a smaller country and our Judiciary is more close knit. They have got much bigger numbers to cope with and it should be much easier for us by reason of our size.
As Deputy Taylor is aware, if we were to take the English system, county by county, his arguments could be applied but it has not worked there. If I had anticipated Deputy Taylor raising this point I could have brought in some local English publications which show that this problem is being experienced in different regions. This problem gets more media attention when it occurs in a small region.
In relation to the amendment, as has been rightly said by Deputies Taylor and Rabbitte, it would be largely academic as only in very rare circumstances would the full sentence be handed down. I am trying to figure out the Minister's thinking behind having different maximum sentences for the crimes of larceny and receiving. His objective, I think, is to send out a signal that the Government regard receiving as a particularly heinous crime. In criminal law debates in this House, various justifications have been advanced for ordinary crime, such as sociological and economic problems. No such justification can be advanced for the crime of receiving. The people involved in receiving and handling stolen property are in it for the money. To a large extent, they are middle class, wealthy and organised people. It is right that the Government should send out this signal although, as has been said, this will be largely academic as only very rarely would the maximum sentence be handed down.
The Government take the view that ten years' imprisonment pitches at about the right level the maximum for larceny and for the other crimes of dishonesty covered by section 9 of the Bill. This level is in the context of: a maximum of ten years at present for a second or subsequent conviction for simple larceny; a maximum of 14 years for burglary, which as well as possibly including an act of larceny, involves an additional element of entering as a trespasser; a maximum of life imprisonment for robbery, which involves larceny with the additional element of violence or the threat of violence; and a proposed maximum of 14 years for handling, which I regard as generally being a more serious offence than simple larceny.
I would also remind Deputies that the Law Reform Commission recommended, effectively, a ten-year maximum for larceny.
If the maximum for larceny is to be increased to 14 years, how is one then to reflect the more serious nature of burglary offences, unless it is by increasing the maximum for those to, say, 18 or 20 years? It becomes difficult to comprehend the reality of such extremely long periods; and in any event, to talk in terms of such lengths of sentence raises issues of a much wider nature than it would be in order for us to debate on this Bill.
The proposed differential between the maximum for larceny and that for handling reflects the present position as between larceny other than on first conviction and felonious receiving. That differential is designed to reflect the more serious view which society must take of the handling offence, since handlers create a demand for stolen property.
It is important to remember that the maximum sentence for any offence is designed to cater for the most heinous instance of that offence. Judges have a wide discretion up to the maximum, and when passing sentence they take into account all the circumstances. Given all that, I am satisfied that the sentence provisions of the Bill as they stand are appropriate, and that the amendment proposed is inappropriate. I have spelled that out pretty well.
Deputy Taylor referred to the Judiciary. I dealt with the circumstances of the offences and it is a matter for the Judiciary then to decide on sentence.
I have listened to the various points raised but we must bear in mind that the Bill before the House under section 3 provides for a penalty not exceeding 14 years for the offence of handling stolen goods. The Minister put in the 14 years in relation to handling stolen goods. The Law Reform Commission were quite clear and explicit in that the same sentence should apply to larceny and to the handling of stolen goods. I accept the Law Reform Commission said that consideration might be given to applying a period of ten years for both offences, but the basic point was that the same sentence should be applied to both crimes. That makes sense. My amendment seeks to provide the same sentence as that provided for larceny. The Minister having included a 14 year penalty for receiving or handling under section 3 and I am providing for 14 years for larceny and related offences under section 9.
We are not talking about minor offences here. Minor offences would be dealt with summarily before the District Court. He we are talking about a maximum penalty on indictment before judge and jury and we are covering a whole series of larceny offences covered by the 1916 Act. We are also covering offences like embezzlement fraudulent conversion, obtaining property by false pretences and blackmail. Those offences can be very serious indeed. I have come across cases covered by this provision which have been as serious as any charge of receiving or handling that I can think of. I take the point that we are talking about a maximum sentence and that it can be academic in most cases, but there are situations which would merit the maximum sentence. From that point of view we as legislators should provide the maximum sentence and then the judge can decide how far he wants to go.
A number of other points were raised but they are not actually appropriate to the point at issue here. Deputy Taylor talked about the sentencing policy and perhaps at some stage we should have a full debate here on the question of sentencing policy and penal reform. It cannot be encapsulated within this debate on the amendment. I, for instance, have very strong views on alternatives to custody in many instances. I have strong views in regard to jail not being there for people just because they are poor and cannot pay instalments or whatever. Many changes need to be made but that is a separate question with which I will not get involved.
The point which should be decided by a vote of the House is, are we prepared to follow the recommendation of the Law Reform Commission that the same sentence should be provided for larceny and for handling? If we are, I seek support for my amendment. Are we also prepared to take into account the fact that the offences covered in section 9 can be very serious, for instance, grand larceny, a great train robbery such as that which occurred in the UK, fraudulent conversion and blackmail? I see no reason a maximum penalty of 14 years should not also be provided here. If the Minister is not prepared to accept my amendment I will put it to a vote.
The Bill touches on the close connection between stealing and receiving. Section 8 refers to alternative verdicts because in some instances there is a blurring of the line as to whether the person before the court was actually a robber or a receiver, and the Bill rightly covers the point that there can be alternative verdicts. It has to go so far that is somebody is charged with stealing and ultimately it turns out that the person handled the property he can be so convicted, but because of the anomaly of having only ten years for larceny he cannot then be sentenced up to the maximum penalty, he can be sentenced only up to the ten years. We are creating an anomaly in this Bill by not having consistency. Whether you go on the basis of consistency or symmetry or whether you are more impressed by the force and logic of my arguments, I ask that we do not create this anomaly, that we have the same maximum penalty. On that basis I am pushing my amendment.
Regarding the different categories of offence, is it right to have the same maximum sentence for, say, stealing a dog as for blackmail? We have provided in section 9 of the Bill a single maximum sentence for a number of offences under the Larceny Act. First, the maximum sentence for some of the offences under the Act are far too low. Secondly, a single maximum sentence of sufficient severity for all offences of larceny leaves the courts a wide discretion to take into account particular factors relating to an individual offence before imposing an appropriate penalty for it.
This proposal is, I believe, in keeping with recent thinking on sentencing policy in general. It simplifies the law of larceny in a way which would not have been possible unless the varying penalty approach in relation to the different larceny offences reflected in the relevant sections was abandoned. Moreover, a person may even at present be sentenced to ten years' imprisonment on a second or subsequent conviction for larceny. I do not believe, by the way, that this proposal should result in any general increase in sentences for larceny offences, except perhaps in a few cases where the present maximum penalty is on any view far too low.
I instanced offences under section 31, threatening to publish with intent to exhort, as an example of such an anomaly. This offence is simply a form of vicious blackmail, yet it carries a maximum penalty of only two years' imprisonment under the present law. This apparently derives from the Victorian attitude that it was good enough for the victim of that offence because he had something to hide from the public. Similarly it is inconsistent, to say the least, that the present maximum penalty for stealing a dog under section 5 of the Larceny Act is 18 months even if the dog is Master McGrath or his modern equivalent——
Or the damaged statue — does the Minister remember?
——yet theft of a single sheep under section 3 can render the offender liable to a 14 year jail sentence.
The most important thing to remember in the context of this section however, is that the maximum sentence for any offence is designed to cater for the most heinous occurrence of that offence. Judges have a wide discretion up to the maximum and when passing sentence they take into account all the circumstances of the case in applying, in a somewhat more sober context, W.S. Gilbert's injunction to, "let the punishment fit the crime". The Judiciary, generally speaking, I think we all agree, are independent.
On the wider question of sentencing policy, though not strictly under the Bill, it may interest Deputies to know that the Law Reform Commission have already been asked to look at the matter. We lay down in this Bill the maximum sentence which can be imposed by the courts but the judges have discretion having regard to the type of crime committed and its circumstances, so far as I can understand, for those who are deviously involved in this racket, if I may so call it, of removing stolen goods and receiving, the punishment should fit that offence. I have no doubt that is what every member of this House wants to happen under the Bill.
There is a great deal in what the Minister says in regard to judges and so on. I agree with him totally, but that is not really relevant to the point. I think we all accept the independence of the Judiciary and that their powers are propery exercised, but that is not the issue. The issue here is whether we give the Law Reform Commission another kick in the teeth. They have made this positive proposal here. They have made many positive proposals. Most of them were rejected and here they have a positive proposal that it be the same sentence. I say we should have the same maximum sentence for larceny and receiving.
You can take examples. Consider the Les Miserables type of offence where an impressionable young fellow sees a child stealing a bit of bread when he is starving in the streets of Paris. You would say that it is an offence but perhaps it is justified in the circumstances. You can take a most extreme case under section 9 of some frightful blackmailer exercising ferocious pressure on his victim. We need not have to think of the range of the cases where we might see some justification for what we would consider minor. We could have the same range in regard to receiving Somebody might be in court for receiving a 2p piece or a bottle of Guinness. Obviously that is different from receiving huge consignments of goods.
I will not delay the House further on this issue. We should follow the recommendations of the Law Reform Commission that there should be the same maximum sentence. On that basis I am pressing my amendments.
The question is that the words proposed to be deleted stand. Is that agreed?
Is that the correct formulations?
Acting Chairman
The question is that the words proposed to be deleted stand? Is that agreed?
I am opposing the amendment.
I am pushing the amendment to a vote.
Question put: "That the words proposed to be deleted stand".
The Committee divided: Tá 63; Níl, 51.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- de Valera, Síle.
- Ellis, John.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Smith, Michael.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Barrett, Seán.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connor, John.
- Cosgrave, Michael Joe.
- Creed, Michael.
- D'Arcy, Michael.
- Deasy, Austin.
- Durkan, Bernard.
- Fennell, Nuala.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kenny, Enda.
- Lowry, Michael.
- McCormack, Pádraic.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gery.
- O'Sullivan, Toddy.
- Owen, Nora.
- Rabbitte, Pat
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Boylan.
Question declared carried.
Amendment declared lost.
Amendment No. 12 in the names of Deputies J. O'Keeffe and Flanagan was discussed earlier with amendment No. 5.
I move amendment No. 12:
In page 6, after line 50, to insert the following subsection:
"(2) In addition to, or in lieu of, any penalty imposed by a court under subsection (1) of this section on any person, the court may order such person to pay such compensation as it considers appropriate to the person (if any) considered by the court to be the victim of the offence.".
I want the court to be in a position to order the payment of compensation in addition to imposing a fine or prison sentence. I feel very strongly about this issue but when we discussed the matter earlier, the Minister was not prepared to accept our approach. We voted on it earlier and I do not intend to put it to a further vote at this stage.
I ask the Minister of State, Deputy Connolly, to make our very strong views known to the Minister for Justice regarding the fact that there should be a statutory provision whereby the courts could order compensation to be paid to the victim of the crime. I do not intend to let up on the very strong views I hold and I will be pressing the Government to introduce changes not only in relation to offences under this Bill but all offences, and to provide a statutory basis whereby the court can order that compensation be paid to the victim of the crime.
Before I formally withdraw the amendment, will the Minister confirm that he will make my views known to the Minister for Justice?
I will inform the Minister for Justice of the Deputy's views. The Deputy will appreciate that I cannot give him an undertaking on the substance of his amendment. However, it can be debated again on Report Stage.
We will deal with it again on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 13 in the name of Deputy McCartan was discussed with amendment No. 5. I observe from my note that if amendment No. 5 was negatived, amendment No. 13 cannot be moved and falls.
I was merely going to underline that the thrust of the amendment is the same as Deputy O'Keeffe has outlined. I trust the Minister of State will make our views known to the Minister for Justice.
Yes.
Amendment No. 13 not moved.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I do not know how much time we have left to discuss the section, but I wish to raise the point of introducing an amendment to the Post Office Act, 1908. How can we pick out one semi-State body which had its legislation passed under the Postal and Telecommunications Services Act, 1983, and change penalties in regard to it? It is not now within the ambit of the Department and I find that the various changes made in that Act which included in the Schedule very widespread amendments to the Post Office Act, 1908——
I would have been able to explain that but time does not allow me to give a very detailed explanation.
I am sorry to interrupt the Minister. As it is now 1.30 p.m. I am required to put the following question in accordance with an order of An Dáil of this day: "That the sections undisposed of and the Title are hereby agreed to in Committee and that the Bill is hereby reported to the House without amendment.
Question put and agreed to.