Amendment No. 1 is in the name of Deputy McCartan. Amendment No. 2 is an alternative to amendment No. 1, and amendment No. 3 is related. I am suggesting therefore that we discuss amendments Nos. 1, 2 and 3 together, by agreement. Deputy Pat McCartan.
Larceny Bill, 1989: Report and Final Stages.
On a point of order, this Bill was introduced by the Minister for Justice. I am delighted to see the Minister of State. Deputy Geoghegan-Quinn, here this morning but I was amazed to see the Minister for Justice walking out of the House as soon as we commenced Report Stage of this Bill. It is quite outrageous that, if the Minister has confidence in his Bill, he would not come in and present it to the House.
Please, Deputy, let us get down to the subject matter of the Bill.
It is important to observe that the Minister has not been involved in the Committee Stage of this Bill. There have been reasons, that he was out of the country or otherwise, but he was actually in here this morning and he walked out as soon as we commenced this Bill.
I had called Deputy McCartan to move his amendment. The Deputy in possession is dealing with irrelevance.
I must record my disappointment at the Minister's lack of concern for his own legislation.
I move amendment No. 1:
In page 2, to delete lines 17 to 29.
I join with the concerns expressed by Deputy O'Keeffe, with no disrespect to the Minister of State present. This is the fourth change of Minister of State since Committee Stage and that is not a satisfactory way of dealing with the matter. It should not have been ordered for debate this morning if the Minister responsible was not available. I do not see why we are dealing with it at all in the absence of the Minister for Justice. However, I intend to get on with what is before us.
I withdrew this amendment on Committee Stage on the understanding that the Minister of State who was in the House at the time agreed to look at the matter and see if the Minister could take on board what has been argued. While we are taking amendment No. 2 as an alternative, it does not substantially alter the Bill as proposed.
Consequently, I have resubmitted my amendment and I want to briefly explain my reasons for so doing. In amendment No. 3 I have also corrected an oversight on Committee Stage, that is to take out the words in subsection (2) "made or adapted for use". What I now hope to achieve is a single universal rule governing the possession of weapons in all circumstances; that there should be no differentiation between a weapon that can be specifically adapted for the purpose of crime on the one hand and a weapon that is capable of an innocent domestic use on the other. My argument is that we should work towards legislation which is as simple, clear and concise as possible and does not create confusion.
Section 2 of the Bill as it stands, with the ordering of standards and rules with regard to different weapons in different circumstances, certainly is a seabed of confusion and will be a minefield for the prosecution and a goldmine for the defence lawyer seeking to exploit the nuances of the section to avoid conviction when ultimately brought to court. What we should work towards is one single universal test to be applied to all weapons irrespective of their nature and where they may be found.
The reasoning of the Government in support of the Bill as drafted is that we should have regard for the person in his home whose possession of an implement can be for innocent domestic use, an implement such as a screwdriver, a kitchen knife or a hammer, as opposed to the person found abroad in possession of an implement clearly intended for use to commit a crime such as burglary. If we have a single universal rule applying to all situations, that it is unlawful to be found in possession of a weapon or article to be used for the purposes of committing a crime, the circumstances of possession will be the dominant feature in the first instance of the case. If a garda finds someone on the street who can give an explanation for his possession of an implement, such as that he is a carpenter or a plumber or some other tradesperson and that the article is for the purpose of trade, we can rely on the judgment of the garda. If, on the other hand, circumstances arise where an officer finds a person at home in possession of such a weapon or implement, the garda can look at the circumstances and make a reliable judgment as to whether the person's explanation is valid. We need not be unduly concerned about having different standards between the circumstances. Ultimately if a person is prosecuted and brought to court he can give his explanation to the court and receive judgment there. Acceptance of my argument would result in more effective and tidier legislation which would be far more easily understood by the public, easily employed by the Garda Síochána and make the legislation more straightforward for the purposes of the court if a prosecution is brought.
The new section 28 (1) now proposed to be inserted into the 1916 Act will give rise to a number of confusions. The new section makes it a felony when a person, when not at his place of abode, is found in possession of any article for use in burglary or larceny. The Minister here proposes an amendment to my amendment and I have no difficulty in accepting that.
I have no difficulty with taking out "for use" and inserting "with the intention that it be used". That is a sensible amendment but it does not address the central issue. That section incorporating in the Minister's amendment, "with the intention that it be used", deals with a person who is not in his place of abode. Subsection (2) provides for a person who is without lawful authority or reasonable excuse in possession of any article made or adapted for use in the course of or in connection with larceny or burglary and so on. Here, the Minister does not introduce the same formula proposed under subsection (1). The Minister uses the words under subsection (1) "with the intention that it be used" but it is specific here that the implement would be for use in the course of or in connection with a larceny or burglary. Why do we have the broader formula for being found abroad whereas in this instance we are simply relying on the more strict formula of the person being without lawful authority to have it for use?
Further on in the Bill the Minister allows this formula "without lawful authority or reasonable excuse." That formula can and should apply in all instances. I do not see the need for establishing a different regime for a person who is found at home and for a person found abroad. For that reason I will press my amendment that we take out subsection (1), correct subsection (2) by my amendment No. 3 and provide for a universal standard for all articles found in all circumstances.
Government amendment No. 2 is designed to make it clear that the offence under subsection (1) of the new section 28 of the 1916 Act consists of possession of any article with the intention that it be used in larceny, burglary or any of the other offences specified in the subsection. On Committee Stage, Deputies had expressed the view that the intention element was not absolutely clear from the subsection as worded at present and I indicated then that I would have the matter examined for Report Stage.
The revised wording which has now been prepared by the parliamentary draftsman will have the added effect of highlighting the contrast between the offences at subsections (1) and (2) of the new section. Under subsection (1) it is the intention of the possessor which makes possession of what may be an ordinary everyday article an offence. Under subsection (2), on the other hand, it is the nature of the article which makes possession an offence: anyone who possesses an article which is made or adapted for use in larceny, burglary etc. will be guilty of a subsection (2) offence unless there is lawful authority or reasonable excuse for such possession.
Returning to subsection (1), it is not necessary that the accused had the article for use by himself or herself in larceny and so on: possession of an article with the intention that another would use it will be encompassed by the subsection. If, for instance, a woman is in possession of a stolen or forged credit card in the name of a man, then she is clearly incapable of using it herself to obtain goods by false pretences; but if it is shown that she was in possession of it with the intention that it be so used by a male accomplice, then she will be convicted of a subsection (1) offence.
Deputy McCartan's amendments, Nos. 1 and 3, on the other hand, would bring about an undesirable situation. The effect of the two amendments would be that the substantive provision of section 28 would read as follows: "A person who is, without lawful authority or reasonable excuse, in possession of any article with the intention that it be used in the course of or in connection with larceny etc. shall be guilty of felony...."
There is an inherent fatal inconsistency in this formulation: that is, that there can never be lawful authority or reasonable excuse for criminal intention. That paradox alone is sufficient ground for opposing the Deputy's amendments.
A further reason these amendments should be rejected is that they would leave a gap in the criminal law as far as articles made or adapted for use in larceny etc. are concerned. Under subsection (2) in the Bill as drafted at present, once it is shown that the articles in question were made or adapted for such use, it will not be necessary for the prosecution to show any intention on the part of the possessor in order to obtain a conviction: it need merely be shown that there was neither lawful authority nor reasonable excuse for such possession. Thus, if the Garda Síochána find a person in possession of a supply of circular letters begging for a bogus charity, designed specifically for obtaining money by false pretences or, as I mentioned on Committee Stage, an article specifically designed to obtian money from telephone coin boxes, they need not show an intention on the part of the possessor that they were to be used in that connection: nor, in my view, should they have to in such circumstances. Under Deputy McCartan's proposals, however, a prosecution could not succeed without proving criminal intention.
At the risk of labouring the point, I will quote from paragraph 12.5 of the Law Reform Commission's Report on Vagrancy and Related Offences which recommended changes in the law in this area and which is the basis for section 2 of the Bill and the two-handed approach to the matter.
In the Law Reform Commission's view the proposed new offence should apply to possession anywhere of an article for the purpose of burglary, etc. The onus of proof of the offence, including the requisite intent, will be on the prosecution, so that if the article is of such a kind that possession of it is as consistent with an innocent as a guilty explanation, then it will be very difficult indeed to prove mens rea, in the absence of accompanying suspicious circumstances. Such circumstances are unlikely to exist where such an article is found in a person's home. On the other hand if the article is one made or adapted for use for the purpose of burglary, theft or taking a vehicle without authority, there should be a burden on an accused to give an explanation of his possession — i.e. he should be under an “evidential” burden to adduce sufficient evidence to raise an issue as to the innocence of his possession but he should not be under a “peruasive” burden to prove his innocent intent (the burden of proving guilty intent would remain on the prosecution). If the article is one so made or adapted it is difficult to see why possession of it, even at a person's home, should not be an offence in the absence of an innocent explanation.
I have been listening to the discussion in an effort to form a view regarding the best balance. I am convinced by the argument that there should be the two-handed approach referred to by the Minister. There is need for a distinction to be made between possession of such articles within the home and outside it. However, I have one remaining concern regarding the Minister's amendment. We debated absolute liability on Committee Stage and I was concerned about the way the first part of the subsection was originally drafted. However, I am now wondering if we have gone too far the other way now by putting such an onus of proof on the prosecution. My concern is whether the prosecution will be able to discharge the onus of proof. How will they be able to prove that possession of the article means that there was an intention on the part of the accused to use it in the course of or in connection with a larceny or burglary? I see major difficulties in the prosecution proving that intent.
A better way of handling the matter would be to put the responsibility on the accused but to provide that if the accused could prove lawful authority or a reasonable excuse it would absolve him. I am concerned that we are putting so much onus on the prosecution that the subsection may be of no use to the Garda or the DPP in bringing a prosecution against people who are clearly in possession of articles in suspicious circumstances outside their home although the State may not be able to prove that they intended using them in connection with a larceny or burglary. Why not leave the onus on the accused but provide the defence of "reasonable excuse" by the person who is found in possession of such articles?
May I have a brief right of reply?
Yes, if Deputy McCartan wishes to intervene now I wish to indicate to the House that he is replying to the debate on amendment No. 1 and the other amendments which are taken together. He is closing the debate, unless another Member wishes to intervene now.
Is it in order to allow the Minister to deal with the point raised in regard to "reasonable excuse" as opposed to her approach? I should like to be satisfied that the Minister's approach is correct but I am not completely happy about it.
The Minister of State is entitled to reply at this stage.
When I spoke originally on the Government amendment, I explained that, as a result of a commitment I made in the House on Committee Stage on this section when Deputies O'Keeffe, Flanagan, Kavanagh and McCartan made the point that the intention element was not absolutely clear, the officials in the Department of Justice would go to the parliamentary draftsman on the basis that perhaps an amendment could be introduced to make the purpose of the section clearer. This would make it easier for the courts and the prosecution in larceny or burglary cases. Because of that it is now proposed that in amendment No. 2 "for use" would be deleted and "with the intention that it be used" be substituted.
The circumstances are always taken into account. For instance, if someone is found in a car park with a bunch of car keys it is obvious that he is acting suspiciously. The same applies to someone found in possession of the article to which we referred on Committee Stage and which is specifically for removing coins from a telephone kiosk.
The Minister gave an instance of a woman in possession of a credit card in the name of a man. Does the Minister consider that an offence under subsection (1) or (2)?
Subsection (1).
I had difficulty with this section on Committee Stage and the Minister has attempted to meet our concerns. The section should clarify that it is only operative where there is evidence of an accused being involved in a crime. This was not the case in the original section and the Minister has clarified it. I accept what she has done to meet the problem.
I thank the Minister for her remarks although I am not convinced. I want to briefly respond to the points made. As a general proposition I had hoped we would achieve a single standard applicable to all persons found in possession of any or all articles and allow the circumstancs to dictate whether a prosecution should follow. It should be a simple, universal standard, easily understood and easily applied.
The primary reason there is a difference between subsections (1) and (2) is because of the protection of the constitutional position of the home. My question to the Minister, which in some respects is rhetorical because of the way the debate has been ordered, is, under what subsection will the woman found in possession of a credit card in the home, as instanced by the Minister, be prosecuted? If I understand the nod of the head again, she would not be prosecuted and I wonder why? Why should the home give protection to a person who is clearly on the face of it engaged in criminal activity? The home is often the place where these crimes are planned.
In regard to forgery, work has to be done on doctoring a credit card, an identity card and so on and where is that carried out? If the Garda, in the course of a search for stolen goods, find such items as credit cards that clearly do not belong to the person of the house and have a reasonable suspicion that the woman is in cahoots with a person who is involved in forgery or a crime of dishonesty, will she be prosecuted? Why should she not be prosecuted? Will she not be prosecuted because she is in the home? I do not understand the Constitution, or the law, to give that type of protection to the criminal and if it does it is something we should address.
The basic argument by the Minister against my amendment is that there is some type of fatal inconsistency in it. While I accept many of the arguments put forward, I must say that the inconsistency the Minister spoke of is not there. The Minister suggested that under subsection (2) there is the element of allowing for a lawful authority or reasonable excuse explanation to be advanced in the circumstances, that under subsection (1) there is some form of absolute liability, to use that misplaced suggestion, that mere possession is in itself an answerable crime. That is not the law and it can never be, no matter how much we legislate for it. The courts have been interpreting similar provisions and have extended such offences to require circumstances above and beyond mere possession. The courts have said they must be surrounded in circumstances suggesting a crime on the basic principle that every crime requires not just simply being found in possession but the mens rea of an intent to commit some form of crime or to have a criminal intent.
If the Minister is suggesting that subsection (1) makes it absolutely an offence merely to be found in possession of an item, then I say she is forgetting what will be the inevitable traditional interpretation. It is my belief that the courts will import into that a requirement of the proof of intent which will give the opportunity to a person to argue his or her way out of the offence on the basis that they have a reasonable excuse or that there is a lawful authority. For example, in regard to the element of duress, a person may seek to satisfy the court that circumstances above and beyond their control require them to be equipped with an article which might be used in the commission of a crime; that is a classic theme we encounter in the common-day activities of terrorism.
The Minister's amendment is implanting the concept of intention and intent into the section. Rather than improving the section by highlighting the contrasts between subsections (1) and (2) we are, in fact, creating muddier water, we are clouding the issue further. We should stand on one universal application where it should be open to an accused in all circumstances to advance, as the courts will allow, lawful authority, reasonable excuse or other proper defences to possession. Where such lawful authority or reasonable excuse is absent, whether it is in the home or elsewhere, the criminal should be made answerable for possession. I regret I must press my amendment in this instance, although I stand alone.
I am putting the question: "That the words down to and including ‘of any article' in line 18 stand." Will the Members who claim a division please rise in their places?
Deputies De Rossa, Mac Giolla, McCartan, Sherlock, Gilmore and Byrne rose.
As fewer than ten Members have risen, I declare the question carried.
Amendment declared lost.
I move amendment No. 2:
In page 2, line 18, to delete "for use" and substitute "with the intention that it be used".
Amendment agreed to.
Amendment No. 3 in the name of Deputy Pat McCartan was discussed with amendments Nos. 1 and 2. How stands this amendment?
In view of the vote already taken in respect of amendment No. 1, I do not intend to pursue this amendment.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 3, line 11, to delete "may" and substitute "shall".
It is important that we send a signal to the criminal elements that in so far as we need to tighten and toughen up the law we are prepared to do so. Essentially what I have in mind is that we provide that where any person is convicted of an offence by way of possession of an article to be used in the commission of a crime that article must be forfeited. As the section stands there is a discretion to the court as to whether such forfeiture should occur. I cannot conceive of any situation where there would be a conviction and such forfeiture should not automatically follow. Even if my amendment is allowed the court has discretion as to the disposal of the item. I want it to be forfeit as far as the convicted criminal is concerned. If there is a case in regard to some third party rights to the article in question, the court has discretion to dispose of the article as seems right. Let us put into the legislation the provision that we have no sympathy whatever for the convicted criminal. In that case the article in regard to which that criminal is being convicted must be forfeited. On Committee Stage the Minister of State indicated a possible scenario where somebody who was the owner of welding equipment was found lurking behind a bank in the dead of night, that there would be a case for non-forfeiture of that equipment so that the welder could pursue his honest livelihood. I am not convinced that a welder who is carrying his welding equipment and lurking behind a bank in the dead of night, following which he is convicted of an offence under this section, is about his lawful business, and he does not seem to me to be the kind of person that should be left in possession of such welding equipment. The welding equipment in my view should be forfeited.
I am not convinced by the arguments made by the Minister of State on Committee Stage. We must send out a signal to the criminal elements that we are not prepared to put up with any nonsense and if they are using equipment for unlawful purposes it must be forfeited. To a large degree I accept that under the section as drafted, the court has a discretion but, even more important, is the signal we send from this House that anybody who is prepared to use an article, be it welding equipment or otherwise, for the commission of a felony, is putting that equipment at risk and it will be automatically forfeited on the conviction of such person.
Apart from the change I am proposing, it is part of an approach which involves a tougher attitude to people who are prepared to engage in crime. Because of the appalling crime figures we have in Ireland it is necessary for us here in the Oireachtas to send that message to the criminals and for that reason I am pressing this amendment. I urge the Minister to accept it. We are talking about offences which are occurring at an appalling rate. In the last crime report the number of offences involving violence, aggravated burglary and robbery increased to over 35,000 in the year. There were larcenies, forgeries and fraud offences of various kinds in excess of 50,000. We are talking about indictable offences in excess of 85,000 in the year, and this does not include minor offences. There is a very strong case for making the change I propose. Let the signal go out from this House to those who use articles or equipment in the commission of a crime that automatically it will be forfeited. That is the reason I am pushing this amendment.
This amendment was opposed by me on Committee Stage and is being opposed again now for precisely the same reasons. The reasons are that it would be too harsh to the offender to order confiscation regardless of the circumstances and that the article in question might be the property of an innocent person, like the welder whose equipment might be owned by a welding company and not by himself.
It is not appropriate that the court's discretion to confiscate articles in particular cases should be fettered in the manner proposed by Deputy O'Keeffe. What is appropriate is that the court should in each case decide whether or not confiscation is the right course in the particular circumstances of that case, and if so, to order the confiscation. That is the effect of the provision as it stands in the Bill — just as it is in analogous provisions in the recently enacted statutes on incitement to hatred and on video recordings. I pointed out on Committee Stage that a formula such as this which confers a power on a court is generally accepted as placing a duty on the court to exercise the power in appropriate cases. I draw Deputies' attention to the fact that the Law Reform Commission in its report which dealt with this topic at paragraph 12.7 clearly recommended that the court have a discretion in the matter, that is, discretion to order forfeiture of the article or articles in question.
I have to say that nothing in the Deputy's contributions either before, on Committee Stage or here again this morning has come near persuading me that there should be an exception in this provision to the standard manner in which a power of confiscation is conferred on a court.
I wish to say briefly that I am inclined towards the Minister's view in this regard. I think it is better that we confer a permissive power on the court and leave the discretion to the judge in the particular case to decide what is appropriate. There are circumstances where people can wrongly give in to resorting to crime and, perhaps, the use of the tools of trade would be the very means whereby that person could be pushed back on to the road of rehabilitation. Losing the means of earning a living might well be the one single factor that would ensure the person would be inclined to offend again. It is a factor that can and has occurred in cases in court. I think it is better that we leave it on a discretionary basis and available to the courts to decide. There is the general power, and usually the Garda Síochána ask the court to order forfeiture of weapons of offence even as the law stands. This is simply reflecting the general principles in circumstances such as this. The clear message about which Deputy O'Keeffe talks and in which we all join him is signalled in the Bill in the fact that we are addressing this whole area. For that reason I am inclined to the Minister's views as the better formula.
I join with those who are opposed to Deputy O'Keeffe's amendment. He seems to be of the opinion that the type of article is small but of reasonable value. I should like to give an example of an extreme case of somebody who used a bulldozer to break into a builder's yard and to load up equipment with it. Having seen the background and the hardship it would cause the family if the court did not have the discretion they might not have been in a position to look at all the facts. The proposal in the Bill leaves that discretion to the courts. We all appreciate the argument made by the Deputy but in the end some discretion in this area should be left to the court.
Deputy J. O'Keeffe to reply to the debate on his amendment No. 4.
The Minister said that such a provision would be too harsh for an offender. We are talking about a section which provides that apart from a fine there can be a term of imprisonment up to five years. Obviously we are talking about very serious offences. Whether we are referring to welding equipment or bulldozers the message must go out to people that if things are being used in the commission of a crime there is a danger of forfeiture. Our whole approach must be to help the Garda who have a duty not only from the point of view of detection of crime but also from the point of view of its prevention. The purpose of this amendment would be to help the Garda from the point of view of prevention. If somebody owns welding equipment or a bulldozer that person would think twice, or perhaps ten times, before using that equipment for the purpose of the commission of a crime if they were aware that it would be followed by automatic forfeiture. That is the signal I would want to send to such persons from this House. Where the forfeiture is discretionary there is always the chance that the person who might be tempted to engage in crime will say: "Well, I can get the case argued and have a plea of misericordia put in by a capable defence solicitor and I will get away with it.” That takes away then from the kind of signal, the tough message I want to send to people who would be even considering using equipment for the commission of a crime. On that basis I want to press this amendment and send that signal to criminals. We just will not stand for people using equipment in that fashion.
Question put: "That the word proposed to be deleted stand."
The Dáil divided: Tá, 82; Níl, 54.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Collins, Gerard.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Gerry.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mitchell, Gay.
- Mitchell, Jim.
- Nealon, Ted.
- Noonan, Michael
- (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- Owen, Nora.
- Reynolds, Gerry.
- Shatter, Alan.
- Sheehan, Patrick J.
- 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.
We now come to amendment No. 5 in the names of Deputies Jim O'Keeffe and Charles Flanagan. Amendments Nos. 6 and 7 are consequential and I suggest, therefore, that we discuss amendments Nos. 5, 6 and 7 together. If amendment No. 5 is negatived amendments Nos. 6 and 7 cannot be moved.
I move amendment No. 5:
In page 3, line 27, after "property" to insert ", or being reckless as to whether such property has been stolen".
This amendment goes to the very heart of the Bill. We are talking about the whole issue of mens rea; the intent that should ground a finding of guilt of a person charged with the handling of stolen goods. When the Minister for Justice first trumpted the circulation of this Bill he indicated that it was intended to make life much more difficult for receivers. Initially I was delighted to hear this and I assumed that the recommendations of the Law Reform Commission were the basis on which the Bill was grounded.
The central recommendation of the Law Reform Commission is that the test of recklessness should apply when we are considering whether an accused person should be found guilty of handling stolen goods. If he was reckless as to the providence or ownership of the goods it should not be essential, as it is today, to prove he knew the goods were stolen.
We are all very well aware of the difficulties which have arisen under the present legislation, the 1916 Act, and it is, probably, because of the difficulty in proving knowledge that the number of convictions obtained under that Act for receiving is very low indeed. As I mentioned earlier, the last crime report indicated that there were over 85,000 offences against property with only 268 convictions for receiving stolen goods being recorded. The discrepancy between the value of property stolen and the amount recovered was very wide. The value of the property stolen in that year amounted to £34 million with less than £3 million worth of goods being recovered.
We start from the basis that the existing law is unsatisfactory and needs to be toughened to make life more difficult for those receiving or handling stolen property. We are on common ground there. However, there is a clear difference of opinion as to how this should be done between the Government and the Fine Gael Party and, from our discussion and the amendments they put down on Committee Stage, The Workers' Party and the Labour Party. In case it might be suggested I am trying to claim a monopoly of wisdom on this issue, let me say it was not off the top of our heads that Deputy McCartan, Deputy Kavanagh and I made such a serious effort to toughen the Bill on Committee Stage; rather was it based on the considered view of the Law Reform Commission.
I have the highest regard for that Commission and the work it has done on a variety of subjects. On this topic it has gone far beyond the call of duty. It was not a question of producing a report; the Law Reform Commission, because of the complexity of the issues involved, produced a consultative paper and then arranged a number of discussions and seminars to obtain views on the issue, following which, and only then, they produced a report which basically says that the major change which should be made is to introduce the definition of recklessness so far as an accusation against a person for handling stolen goods is concerned. We should not look for the definition which the Minister has come up with, of requiring the State to prove the accused knew or believed the property to be stolen. That is the central issue in the Bill.
It is my approach that we have to have a tougher regime so far as the receivers and handlers of stolen goods are concerned and we must make it easier for the Garda and the Director of Public Prosecutions to bring prosecutions against such persons. We must also remove the defences at present available to those who — where it sticks out a mile — are clearly guilty. Obviously we do not want to go overboard on the issue, but we must find the balance between the prosecution and the defence to ensure as far as possible that the guilty are found to be guilty and the innocent are not found guilty. That is where we have to find the balance and this is why it took the Law Reform Commission so much time to come up with its recommendation. Following the publication of its consultative paper and the discussions and seminars it produced a final report and it opted for this approach.
No clear explanation has been given by the Government as to why this approach has not been adopted in the Bill. I accept that the Bill as at present drafted marks some improvement but, on the other hand, the present legislation clearly bends massively in favour of the criminal. Therefore, I do not think it is any great advance to say that the present Bill bends somewhat less massively in favour of the criminal. We should establish the law in a way which will ensure as far as possible that the guilty criminal is so found by the court. I do not believe that will be the effect of this legislation. As at present drafted, it contains too many escape hatches for the criminal. Despite all our discussions and the efforts of the Law Reform Commission, those receiving and handling stolen goods will largely carry on as before. Clearly, this is not in the interests of society.
If the House were to accept the amendment I propose which seeks to have this approach adopted we would have much tighter legislation. I would like this House to give this issue serious consideration, but as I look around the House I see that the only Deputy on the Government benches is the Minister of State and it is clear to me the Government party are not taking any great interest in it. The only solution is to ask them to come into the House and for that reason I am calling for a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
My worry is that if the Minister does not take on board the proposals in this amendment receivers of stolen goods will be able to escape with their ill-gotten goods in the future in the same way as they have done in the past. That is the core and essence of my argument and the basis of my concern. The Minister's proposal seems to be based on the English Theft Act and it is quite clear that that provision in that Act has given rise to major difficulties there. The Law Reform Commission obviously went further afield and looked at the situation in many other countries and ultimately came to the conclusion that the approach under consideration in the US was the best precedent to follow. In their recommendation they followed the model penal code in the US which defines recklessness. The result of that was a clear and unambiguous recommendation from the Law Reform Commission and I quote from page 115 of their report: "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"; plain, bald, unvarnished and unambiguous and a totally unanimous recommendation from the Law Reform Commission.
After all their consultation and work, why is that test not included in the Bill? The purpose of my amendment is to incorporate the approach recommended by the Law Reform Commission. It is as simple as that. I believe that if my amendment is not accepted there is a major danger, indeed, that we are leaving a major escape hatch for criminals in the future. That is why I am putting this amendment.
I fully support the amendments of Deputy O'Keeffe in this area. As he said, correctly, this goes to the core of what is sought to be achieved in this Bill in attempting to address the offence of receiving. The amendments are a credit to his skill in drafting something that would be slightly different from what had been advanced by himself and myself on Committee Stage where we attempted to introduce the element of recklessness into the definition of mens rea in receiving cases. While I was unable to think of a formula that would get me back in here on Report Stage, it is to the Deputy's credit that he was able to convince the persons in the drafting office that there was another way of going about the same thing. We are beholden to him and to Deputy Flanagan for the opportunity to pursue this very crucial issue on Report Stage. We voted on it on Committee Stage, lost the issue there and now we have the opportunity, perhaps again in repeating it, of convincing the Minister that the Government are going about this issue entirely incorrectly.
In advance of what the Minister may say, I can borrow from the explanations offered on Committee Stage to understand the Government's thinking for using the formula of belief as a better way of dealing with the issue. We have to understand exactly what we are trying to tackle here. It is universally and historically accepted that convincing receivers of the offence of handling or dealing with stolen property has been traditionally difficult. The proofs to be established by the prosecution beyond doubt have in the past rendered it almost impossible to win home convictions against receivers of stolen property to date. For that reason we are specifically addressing that crime in the context of this Bill and attempting to produce a working formula that makes the law much more relevant to modern circumstances and reflects our experience of dealing with this area of the law since 1916 over the decades past.
One of these singular difficulties that has been experienced over the years is the question of mens rea, the mental element to be proved by the prosecution. “Well knowing same to have been stolen” was a 1916 formula, the concept of knowledge, and the English authorities in addressing this matter adopted the formula in the Theft Act, 1968 that has now been taken on board and proposed by the Minister in the Bill as circulated. The Law Reform Commission, as has been referred to on Committee Stage, again by Deputy O'Keeffe, dealt with this matter at length. They worked through all nine different formulae of mens rea or intent that might be borrowed on or used, and analysed each one of them in the context of arguments and submissions received from right across the board, not just from the Director of Public Prosecutions but from everyone in the field who has experience in the area, and analysed them in the context of comparative studies of what had happened abroad.
The Minister told us on Committee Stage that the concept of belief is one that is well recommended by the commission. We must put the record correct on that. I quote from the Law Reform Commission's report, page 94,
7. Liability based on reception where the accused believed that the goods were stolen.
120. We must now consider whether the test should be one of belief
—the one the Minister wants us to take on board—
that the goods were stolen. 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. Spencer
—a criminal text commentator in the English jurisprudence—
observed that:
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.
That is the end of the quote from Mr. Spencer. I use his words "making a dog's breakfast of the law" to describe what the Minister is attempting to do with this Bill as it is currently drafted. We are making a dog's dinner of the work we are trying to engage in in this House to improve the law. The Law Reform Commission report discards this approach by saying:
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 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.
That is the Law Reform Commission's attitude to the concept of belief.
On Committee Stage the Minister seemed to advance a different impression of the views of the Law Reform Commission and suggested that they gave strong support to the concept of belief as second best after giving their strongest recommendation to the concept of recklessness. We have to understand exactly what is being suggested. The Law Reform Commission are unambiguous in saying that the concept of belief did not work in the English context, it is imprecise and will, borrowing Spencer's phrase, end up making a dog's breakfast of the points we are trying to address at present.
In the Official Report of 6 December 1989, volume 394, column 407, I think the Minister of State, Deputy Geoghegan-Quinn was misreported when she said:
I think it is important to note that the Law Reform Commission were able to provide any example...
I believe that should read: "were unable to provide any example of this concept actually in use." The Minister continued by making what I believe is her strongest argument against the concept of recklessness and giving the reasons the Government are moving in this direction. I again quote from volume 394, column 408, of the Official Report:
It is not favoured by the Director of Public Prosecutions whose office would have to apply this provision in practice.
In a later amendment, which Deputy Rabbitte moved on my behalf as I had been suspended from the service of the House, the Minister advanced that reason for not accepting my amendment, which was the same as the Law Reform Commission's proposal. The fact that the Director of Public Prosecutions was not in favour of the concept of recklessness is not a valid argument. With the greatest respect to the office holder of the office of Director of Public Prosecutions, for whom I have the highest regard, I want to make it absolutely clear that it is a wrong day in this House when we fashion our law to respond to the views of one person in the community.
The Director of Public Prosecutions is not a legislator, but he was consulted and was involved in the deliberations of the Law Reform Commission. We were all there and were able to listen, contribute, submit and argue on what should be formulations of the law. The Law Reform Commission, who were specifically charged with making recommendations on reform in the law considered his views and after weighing them up came down with a counter view. In fairness to the Law Reform Commission and the Director of Public Prosecutions I do not think it is fair to expose the view of the Director of Public Prosecutions simply because the Minister cannot think of a good argument.
The Minister cannot say the Director of Public Prosecutions is not in favour of the concept of recklessness in the context of dealing with handling and receiving cases. I ask the Minister to outline the context in which the DPP made his remarks. Has the Minister made his submission available to us so that we can examine the arguments behind his views? We should not borrow one line phrases as arguments when we cannot think of anything else to say. That does no credit to the Director of Public Prosecutions and the Law Reform Commission who have gone to great lengths advising the Government and it is no credit to the Minister or the Minister of State to try to borrow reasons for ignoring the arguments for proper reform procedures in this House. I hope the Minister will abandon that type of facile approach to serious arguments in the House.
On Committee Stage, the Minister of State suggested that recklessness was an imprecise concept in law and would create difficulties in the area of receiving. She acknowledged that there is a clear drift in the Department to accept and bring on board the element of recklessness. The Law Reform Commission dealt at length with this concept, as it is the correct concept in their view, and quote from well regarded commentators and academics in the area of criminal law, such as Professor Mary McAleese who acknowledges that recklessness is the standard that should be applied under criminal law with regard to intent in the future, recognising that it creates the correct balance between the subjective interest of the accused and allowing the jury the opportunity to have a real function as to whether recklessness stands up to reasonable observation.
I now quote from Professor Mary McAleese, a former Reece Professor at Trinity college on the subject:
We need some standardisation of the definition of concepts basic to criminal liability, e.g., intention, negligence and the one in question, recklessness. If the courts cannot do it, why not the Legislature?
I ask that question again. Why cannot we, the Legislature, do so? There is nothing imprecise in the concept of recklessness. The Law Reform Commission give us their definition of recklessness in the summary of recommendations and I advanced a definition on Committee Stage which I believe is eminently workable. I will now quote from the conclusion on page 100 of the Law Reform Commission report on receiving stolen property, because I cannot put the argument any better.
We think that the present law is undoubtedly too favourable to the accused. After detailed consideration of the several options for reform mentioned above, we have come to the conclusion, and recommend, that the test of liability in the new office should depend on whether the defendant knew or was reckless as to whether the goods were unlawfully obtained.
They say — and I think we all agree — the law is too favourable to the accused, which is the problem we are trying to address. We are trying to bring in a law that makes it much more difficult for the receiver or handler, as we now define him, to evade prosecution. The report fully illustrates that the formula borrowed by the Minister is one that will not alter the law one iota.
As has been shown in the English context, reliance on belief will advance the law little in this area. I am urging, with all the strength capable of being assembled in these austere surroundings of empty seats, but with serious intent, that the Minister listen to the argument advanced in Deputy O'Keeffe's amendment and acknowledge that collectively we can improve this Bill. Otherwise, I join Deputy O'Keeffe in accusing the Minister and Government of being easy on the handlers and not being at all serious in their intent to improve the law.
The purpose of this Bill is to replace the existing offence of receiving stolen property with a new one of handling stolen property. In section 3 — that section proposed to be amended by Deputies O'Keeffe and Flanagan — we are reverting to the main argument advanced on Committee Stage. On that occasion I said that, leaving aside the issue of sentences, there is little or nothing proposed in this Bill that a sensible judge or jury could not deal with under the provisions of the 1916 Larceny Act. When the former Attorney General, Mr. John Rogers, requested the Law Reform Commission to examine this whole area of receiving stolen goods they had recourse to the best legal brains, received submissions from people world-wide and spent a good deal of time formulating their recommendations and the heads of a Bill to deal with this whole aspect. I said it was my opinion that the Minister for Justice had failed when he omitted to adopt those heads of a Bill and recommendations in order to build up a proper Bill using them as a basis. Rather, he appeared to merely refer to those recommendations where the argument suited and reject them where it did not.
In regard to this section he did depart from their recommendations. Indeed, one could almost contend he was reckless in his treatment of this whole area, losing a great opportunity to deal with what is now by far the greatest crime being perpetrated in this country, that of receiving stolen goods. It will be seen from the report on crime of the Garda Commissioner it is in this area that the vast majority of crime is committed. This is also the area in which there is least success on the part of the Garda in apprehending criminals or in recovering the vast amount of property and money stolen. For example, something of the order of £3 million out of a total of £34 million was recovered in the year 1988.
I do not see how we can accept this section without amendment. My party intend to support the amendments being advanced in a last ditch attempt — with the other parties on the Opposition side of the House — to effect some improvement in this area. I criticise the Minister and Government on the basis that the Bill, as it stands, is a lost opportunity to adopt the new methods and modern technology available in this area. The Bill, as it stands, is out of date. It appears we can assume that this Bill will be passed more or less in its present form which will be some help in that sentencing will have been updated. I anticipate the Minister will have occasion to return to this House in the near future when he realises that very little will change as a result of the passage of this Bill in its present form. If, on reflection the Minister feels there is merit in the arguments advanced even before Christmas I hope her approach will be somewhat different on this occasion.
These amendments are opposed. On Committee Stage the House on a vote rejected the suggestion that the mens rea for the offence of handling stolen property should consist of recklessness rather than what is provided in the Bill, namely, knowing or believing that the property was stolen. The amendments now before the House propose that these two concepts of mens rea should co-exist. This would result in complicated circumstances which would present difficulties for prosecution, defence, judges and juries alike.
The effect of these amendments would be to bring about circumstances in which neither the last thoughts of the Law Reform Commission — as recommended in their report — nor their earlier proposals, which the Government developed in the Bill, would be implemented. In each case it would be necessary for the jury to go through an elaborate and cumbersome process in order to arrive at a verdict, having first to decide whether the accused engaged in activity which would constitute handling, then having to decide whether the accused knew or believed at the time that the property in question was stolen. Then, if the accused neither knew nor believed so, they would have to determine whether he or she was reckless as to whether the property was stolen.
We would all agree that "recklessness" here could not have a broad meaning such as a simple "could not care less" attitude but rather must mean, even in the absence of a statutory provision to that effect, something on the lines of what the Law Reform Commission recommended: that it involves a conscious disregard by the accused of a substantial and unjustifiable risk that the goods were stolen. The judge must spell all of this out to the jury with indications as to when a risk is substantial and unjustifiable and the jury must apply those tests also to the facts of the case. I am quite convinced that the ensuing confusion in the minds of juries would be counter-productive and that the amendments would result in fewer convictions than would be the case under the provision as it stands.
I might say to Deputy O'Keeffe that the Government considered the recommendation of the Law Reform Commission in relation to recklessness and rejected it for the reasons I have already outlined on Committee Stage. That is the prerogative of the Government. A decision was taken after full consideration of the pros and cons of all the recommendations of the Law Reform Commission. However, the formula in the Bill draws heavily on the work of the Law Reform Commission in their final report and earlier consultation paper.
Section 3 (3) — which provides that believing, as referred to in subsection (1), includes thinking that the property in question probably was stolen — is intended to cover circumstances in which the accused strongly suspected that the property was stolen. The discussion paper produced by the Law Reform Commission on this topic in May 1987 put forward this option as their preferred approach at page 164. In their final report, paragraph 118, page 93 — while not recommending this option — the Law Reform Commission say that a strong case may be made in favour of it.
As regards the criticism of the English provision mentioned by the Law Reform Commission and referred to by Deputy McCartan, I should say that the problems experienced initially were promptly corrected — I think I said so already on Committee Stage — in the decisions of higher courts.
For those reasons, the amendments are opposed.
The Minister and indeed the Government appear to have a poor opinion of the common sense of those men and women who make up juries in this country. I have seen them deal with very complex issues both on the civil and criminal sides and it never ceases to amaze me how they are able to boil down the issues involved and reach clear decisions. Therefore, I am firmly wedded to the concept of juries in criminal trials. In the main, I contend the system has withstood the test of time, that juries have shown they are able to cut through the verbiage, get to the core of the offence and produce sensible decisions. It is not a good defence for the Minister to raise the difficulty that juries might have in interpreting the concept of recklessness. Let us be clear: the jury do not make decisions at their own discretion; they listen to the arguments from both sides and then get a charge from the judge. Any difficulties in regard to interpretation are clearly pointed out to them. Therefore, that is not a valid defence to my amendment. Neither is it the defence that after long deliberatons the Law Reform Commission recommended this approach.
The Law Reform Commission is not an anonymous body. It is chaired by a very respected judge of the High Court and consists of people from different disciplines, including barristers, solicitors, psychologists and so on. It is a body whose opinion has to be given great weight. The other defence offered by the Minister to my amendment was the traditional one of power. She said it is the prerogative of the Government to decide on these matters. It is the prerogative of the Government to propose matters and it is the prerogative of the Dáil to decide on them. That is why I am pressing this amendment.
Finally, there is no doubt about the extent of the problem. Recent figures have shown that, on a square footage basis, the extent of property crimes in Dublin is three times that in London. In property terms Dublin is the crime capital of Europe. We have to react and update our laws but we must do so in a way that will give the Garda and the prosecution a reasonable chance of securing convictions. It is very clear that the law as it stands at present in relation to receiving is inadequate and as a consequence the Garda and the prosecution have great difficulty in obtaining convictions.
Now we have a chance to do something about the matter, 74 years after the original Larceny Act was put in place. I hate to think of the criminals getting away with receiving to such an extent for another 74 years under a benign régime. This is the last chance the Dáil will have to make this change because we are now on Report Stage. I would make a final plea to the House — obviously the Minister has a stony heart on the issue. That is something I would not expect from her——
I do not really have a stony heart.
I accept that in general terms, but this is an exception. My real concern is that the legislation we are now putting in place as drafted by the Government will not do the job that is intended. As regards receivers and handlers of stolen goods, the prosecution will still have major difficulty proving that the goods were stolen. That is not just an escape hatch; it is a back door we are leaving wide open for the criminal. The way to close and bolt that door is to introduce the concept of recklessness as proposed by the Law Reform Commission and as has been so ably argued by way of support for my case by Deputy McCartan from The Workers' Party and Deputy Kavanagh from the Labour Party. On this issue it seems clear that everybody on this side of the House, as well as the Law Reform Commission, is of one view, but the Minister and the Government stand obdurate on the issue. On that basis I will be pressing this amendment to a vote.
Amendment put.
The Dáil divided: Tá, 77; Níl, 81.
Tá
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Collins, Gerard.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael
- (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P. J.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies V. Brady and Clohessy.
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Belton, Louis J.
- Boylan, Andrew.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- FitzGerald, Garret.
- Flanagan, Charles.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
Since amendment No. 5 has been lost, amendments Nos. 6 and 7 in the names of the same Deputies, Deputies Jim O'Keeffe and Flanagan cannot now be moved and accordingly fall.
Amendments Nos. 6 and 7 not moved.
I move amendment No. 8:
In page 4, between lines 21 and 22, to insert the following:
"(3) In a prosecution for an offence under this section in relation to fish or shellfish, it shall not be necessary to prove that the said fish or shellfish shall have been reduced to captivity before being sold.".
This is a technical amendment which arose from a point made to me regarding the problem of proving a case in relation to the larceny or receiving of shellfish. I was told that there would be difficulty in proving that shellfish on the open sea had been reduced to captivity. However, in the light of the reaction of the officials in the Department of Justice who teased out the problem, I should leave this argument for another day. Their approach has been very open and I am sure when the matter has been teased out further that open approach will continue. I compliment the officials for their attitude to the matter and my best course is to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 9 is in the names of the Minister of State and Deputies J. O'Keeffe and Flanagan. Amendment No. 12 is consequential and, therefore, I suggest we deal with amendments Nos. 9 and 12 together, by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 4, to delete lines 44 to 46, and in page 5, to delete lines 1 to 27 and substitute the following:
"5.—Section 43 (1) of the Principal Act is hereby repealed.".
There is no argument in relation to this amendment.
I should like to thank the Minister for accepting our argument on Committee Stage. Obviously, we agree with the consequential amendment.
Amendment agreed to.
A consequential amendment has just been circulated. It is amendment No. 10a in the name of the Minister of State and it will be dealt with later. We now come to amendment No. 10 in the name of Deputy McCartan.
I move amendment No. 10:
In page 6, between lines 20 and 21 to insert the following;
"(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."
This amendment is similar to amendments moved on my behalf by Deputy Rabbitte on Committee Stage as I was unfortunately, requested to leave the House in stormy circumstances.
Ordered, not requested.
An order in this House is taken as a request. I wish to again pursue these amendments in the hope that in the meantime, there may have been a change of view in the Minister's Office in regard to what was sought to be established. The first section of the amendment proposed that "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". The current position is that receiving requires an ingredient of well knowing the item to have been stolen. The amendment proposes to extend it beyond simple larceny to include "unlawfully obtained" which 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".
The first point is that, in the drafting of an indictment, it is not necessary to specify the method in which it is maintained the item was unlawfully obtained or stolen and, secondly, an extension of the definition of "unlawfully obtained" should include not simply stealing but in circumstances amounting to an offence. This follows a proposal contained in the report of the Law Reform Commission on page 103, paragraph 134:
To resolve these difficulties we consider that the legislation should provide that the offence would be committed in respect of goods "unlawfully obtained" and that it should not be necessary to specify how the goods were unlawfully obtained. "Unlawfully obtained" could be defined as "obtained in circumstances amounting to an offence (including any breach of Section 106 of the Customs Consolidation Act, 1987)". The definition should be extended to cover cases where the goods were obtained lawfully and were subsequently criminally misappropriated.
They are reasonably sensible proposals and I do not see any objection in principle to them in the report or indeed in anything the Minister said on Committee Stage.
The Minister of State, Deputy Connolly, dealt with this section on Committee Stage and it appears that the single ground relied on by the Minister in not accepting these proposals was that the Government and the Minister had consulted the Office of the Director of Public Prosecutions. I referred earlier to this strange procedure in formulating legislation, and I do not intend to go back over it.
I should like to quote from column 1578, volume 394, of the Official Report of 14 December last which states:
He [the Director of Public Prosecutions] is satisfied that there is no need for a provision of this nature. Accordingly, no such provision has been incorporated in the Bill.
The simple approach of the Government is, if the Director of Public Prosecutions says there is no need for such a provision, they will not include it. However, the Law Reform Commission have expressed the view that there is a need for it and I say there is a need for it. On Committee Stage my colleague was supported in that view by Deputies Kavanagh and O'Keeffe. There is a wide view that there is a need for such a provision. If the only countervailing argument is that the prosecuting authority, the Director of Public Prosecutions, thinks he can get on just as well without it, I wonder if there is any harm in including it. It would not take away from his armoury, although he believes it would not add to it. Is there any harm in acceding to my proposal and doing something which the Law Reform Commission consider necessary?
Where goods are unlawfully obtained in any circumstances they should be the subject matter of an offence of handling. We are talking in particular about offences committed in contravention of the customs consolidation legislation, goods smuggled. The great old story advanced on a daily basis in answer to such charges refers to the Jonesboro Market. Many people charged before the Dublin District Court, and elsewhere, have referred to that market in their defence. I wonder if the Jonesboro Market was popular in Wicklow, LaoisOffaly or west Cork, but I am aware that ladies and gentlemen in the centre city of Dublin found with transistor radios, electrical goods or other property suspected of being stolen invariably said that they went to Jonesboro and purchased them. Many of them said they believed those goods were the produce of sales after bombings in Northern Ireland or, more particularly, were the produce of smuggling exercises but were definitely not stolen goods.
That odd situation was referred to by the Law Reform Commission at paragraph 39. They referred to the decision of the English Divisional Court in the Nieser case in 1958. The Commission stated:
...it was held that, where a person is charged with receiving property obtained under circumstances amounting to misdemeanour, the prosecution must prove that he "knew that the property fell into the general category of property which has been obtained under circumstances which do in law amount to misdemeanour", though it was not necessary to prove that he "knew that [it, the property] was obtained under circumstances which amount in law to the specific misdemeanour by which [it was] in fact obtained.
That exposes another oddity. If goods were obtained under circumstances amounting to a felony they could not be the subject matter of a receiving or handling charge and that is why we talk about obtained in circumstances amounting to an offence. That is an important addition to the whole area of the law in which the offence of handling can arise. That is important here where smuggling is an endemic problem and is an exercise engaged in along the Border by those involved in organising paramilitary crime. We should make life a little more difficult for them by including goods that are smuggled in the category of goods handled or subject to the charge of receiving. The Minister should give a clear response to that.
On the drafting provision in regard to indictments I should like to ask what is the necessity, now that we are setting a broad campus in which goods can be the subject matter of receiving charges, to add the precise difficulty for the prosecution of establishing clearly the grounds upon which it is believed the goods were unlawfully obtained. It should not, as the commission recommend, be necessary for the prosecution under the 1924 Act to specify in the indictment the way property is stolen. That should be established as a matter of proof in the course of the case and dealt with by the court. It appears that the only argument advanced on Committee Stage was that the Director of Public Prosecutions felt that these additions were not necessary. If he believed that I do not think there is any harm in us acceding to what the Law Reform Commission, and the Opposition parties, are arguing for. I should like to ask the Minister to accept the amendment as being a sensible and useful addition to the law.
The Government are satisfied that this amendment is unnecessary and inappropriate and I must therefore oppose it. The amendment is based on section 7 of the scheme of a Bill appended to the Law Reform Commission's report on Receiving Stolen Property, but the amendment fails to take account of the differences of substance between the Law Reform Commission's proposals as to the definition of the offence of handling and the provisions of the Bill.
The question whether any special provision, other than section 4, should be included in the Bill as to how charges of offences under the Bill may be framed was, as Minister of State Ger Connolly said in replying to the similar amendment at Committee Stage, as reported at column 1578, volume 394 of the Official Report, carefully considered during the drafting of the Bill; and the Director of Public Prosecutions was consulted and he was satisfied that there is no need for any such provision.
As Minister Ger Connolly pointed out, the precise drawing of an indictment will always depend on the facts in each case. 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 charge, came within the definition of "stolen property". This is a matter of the general law and, therefore, as I have said, a special provision such as proposed is not necessary.
Moreover, as I have also indicated, the amendment does not correspond to the definition of the offence of handling in section 3. Both subsections (6) and (7) in the amendment are based on the Law Reform Commission's proposal that the offence should apply to property which has been "unlawfully obtained", but the Bill does not use the expression "unlawfully obtained". Instead it specifies, in section 7 (4), the offences which are to be the relevant initial offences, stealing, embezzlement and so on, in relation to which the offence of handling is to apply.
Further, subsection (7) in the amendment refers to whether "the misappropriation occurred in the initial taking or subsequent to that initial taking" but, apart from the drafting point that the Bill does not use the expression "misappropriation" at all, the amendment is in conflict with the provision in the definition of the offence in the substituted section 33 (2) (a) that the receiving and so on must take place "otherwise than in the course of the stealing".
For all these reasons I am clear that the amendment should not be accepted.
Amendment put and declared lost.
I move amendment No. 10a.
In page 6, lines 38 and 39, to delete ", subject to section 43 (1) (as substituted by this Act) of the Principal Act,".
Amendment put and agreed to.
I move amendment No. 11:
In page 6, after line 50, to insert the following:
"(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.".
This is the last point of major substance that I wish to refer to and it is a matter about which I feel very strongly. My proposal is that when a person is convicted of an offence of receiving or handling stolen goods the court should have statutory power, apart from imposing a fine or sentencing the individual to a term of imprisonment, to order the payment of compensation to the victim of the crime. For too long insufficient consideration has been given to the victims of crime. We have an opportunity to show our concern and provide a practical vehicle whereby in certain circumstances the victim will gain some compensation. I accept that it does not provide a comprehensive answer to the problem of compensation but it provides a vehicle which could be very useful in certain circumstances and could be used by the court to order compensation to the victim of the crime.
I cannot understand why the Government will not accept the amendment. It is totally logical. One could argue that in many instances the convicted person would not be capable of paying compensation — I accept that — but we often hear about the real enemies, the godfathers of crime who, it is alleged, are living in luxury on the proceeds of crime. Is there any reason these people, some of whom are alleged to own a number of houses, apartments, and other worldly goods, should not have some of their wealth transferred to the unfortunate victims of crime? The principle appears to be so logical that I am amazed the Government are not prepared to accept it. I understood I had secured a commitment from the Minister of State, Deputy Connolly, who was then deputising for the Minister for Justice who, as usual, had not bothered to attend the Committee Stage debate on this Bill. I understood from the Minister of State he would inform the Minister for Justice of my views and that it might result in a new approach on Report Stage. Nothing has come from the Government in this regard and I want to press this amendment strongly since I believe very sincerely in it. I know a number of colleagues will probably support me. I conclude by strongly urging the Minister to accept this very sensible amendment.
We are all agreed we should conclude Report Stage. We strongly supported such a proposal on Committee Stage and I had tabled an amendment in similar form. The lot of the victims of crime has not been a good one when one considers the record of this Government. The Irish Association for Victim Support are crying out for help. The Rape Crisis Centres are suffering from lack of funding. We have virtually closed down the Criminal Injuries Compensation Tribunal and the malicious injuries code has been abandoned. The victims of crime do not do well.
This is just a simple working proposal which would enable courts, where possible, to call upon the convicted person to compensate the victim. If we ever get before the court the godfathers, the handlers of goods, the people who pull the strings of the little guy in the street, the fat cats who let others do the work, we should fleece them. This provision would allow for that and it would show an earnest on the part of the Government to look after the victims of crime if they were to accept this amendment.
It is obvious that people have made a great deal of money out of misdemeanours over the years and their victims do not seem to be compensated. The courts should have the ability to take some of the value of those goods and hand it to the people who have suffered. That ability should be given to the courts as this amendment endeavours to do. We lend our support to the amendment.
I indicated on Committee Stage that the principle which underlies this amendment is not opposed. It makes good sense that the court should be able to order an offender who has just been found guilty to compensate the victim of the offence in appropriate circumstances.
We are all aware of informal arrangements made daily in District and Circuit Courts throughout the country. The Cork Examiner reported a case on 29 January where a man was given a clear choice by the justice. He was ordered to pay a total of £730 compensation by a certain date or else face six months in prison. There is no statutory basis for these kinds of informal arrangements, which are an exercise by the court of its judicial discretion. Since suggestions made in these circumstances are not orders and not enforceable, there is no element of compulsion, although the prospect of a stiffer sentence may well have a persuasive influence on the offender.
The Minister for Justice is on record as having indicated an intention to have legislative proposals prepared which will deal with the question of compensation across the full spectrum of the criminal law. I am willing to convey to the Minister the vigour of the concerns expressed this morning and on Committee Stage. This matter should be considered in the context of crime generally as indicated by the Minister for Justice and, therefore, we are opposing this amendment.
The arguments raised by the Minister of State confirm that we should make this change. I am convinced that in her heart she sees the good sense of this proposal. She used those very words in responding. I accept she does not have the authority because she is standing in for a different Department. She quotes the Minister for Justice as being on record. The Minister for Justice has come into the House this morning for three or four divisions. Why is he not here to tell us his views? I regard it as utter contempt of the Dáil that he does not come in and tell us clearly why this amendment cannot be accepted. I hazard the guess that he knows nothing about it and that is part of the problem.
The amendment I propose is eminently sensible. The fact that there are informal arrangements lends further credence to putting the compensation provisions on a statutory basis. We have an opportunity to do so now and for that reason I am pressing the amendment. It is an utter disgrace that on an issue as serious as this the Minister for Justice has not come in and argued his own case.
Amendment put.
The Dáil divided: Tá, 70; Níl, 82.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Collins, Gerard.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P. J.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- 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.
- Lyons, Denis.
- Martin, Micheál.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
Amendment declared lost.
There has been agreement that we dispense with the remainder of the Business which, I understand, will take about two or three minutes.
I move amendment No. 12:
In page 8, line 8, after "This Act" to insert "(other than sections 1, 5 and 14 of this Act)".
Amendment agreed to.
Bill received for final consideration and passed.
When is it proposed to take Fifth Stage?
Now.
Question, "That the Bill do so pass", put and agreed to.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.