There is one matter of this section to which I should like to refer concerning the date on which Part II will come into operation. At the moment the section provides that the Act shall come into operation on the day of its passing but that Part II shall come into operation on such day or days as may be fixed therefor by order of the Minister. After the long period of gestation in relation to this Bill, there should be as little delay as possible in passing it. How long will it take to get Part II into operation? I should like a strong commitment and assurance from the Minister that that day will not be delayed.
Firearms and Offensive Weapons Bill, 1989 [ Seanad ]: Committee Stage.
Question proposed: "That section 1 stand part of the Bill".
I can assure the Deputy that there will be no undue delay. We must sort out the situation in relation to people who already had crossbows and who needed licences. There will be no undue delay.
Will the Minister indicate the approximate length of time he is talking about?
A few months.
Three months?
That would be the maximum.
Question put and agreed to.
Sections 2 and 3 agreed to.
SECTION 4.
I move amendment No. 1:
In page 4, subsection (1) (c), line 11, before "a crossbow" to insert "a longbow or".
This is a very simple and straightforward proposal asking the Minister to consider extending the definition of firearms beyond that of a crossbow and to include the concept of the longbow as an addition. This matter was raised on Second Stage and, if my memory serves me correctly, it was also referred to — though not by specific amendment — in the Seanad. We should be as comprehensive and careful as possible in drafting the legislation. In this amendment we are trying to address the problem of a person who would be disposed to using a crossbow in irregular or illegal circumstances being thwarted by this Bill and simply turning to another form of weapon. Obviously someone with the expertise to use a crossbow for irregular or illegal purposes would be well capable of using the longbow.
I understand that the Minister agrees with the point raised on Second Stage and covered under amendment No. 2, that we should have no poundage draw weight restriction on the definition of a crossbow, a point that might have troubled the Minister on Second Stage and in the Seanad, and that it was the intention to allow a crossbow below a certain poundage because of the view among those who knew a lot about these weapons that a projectile fired from a crossbow below that poundage would not represent a serious threat and would facilitate the sporting usage of these weapons. If I understand the Minister's amendment correctly we are taking that out today so the argument does not stand. What is left as a matter of difference between a crossbow and a longbow? I recall the Minister's representative in the Seanad making the point that a crossbow can be cocked and ready to discharge at any time but I do not think that makes a substantial difference between the basic nature of either weapon. For those reasons, I urge the Minister to accept this amendment.
This is a commonsense amendment. All parties welcome this legislation to deal particularly with the crossbow but I do not see how we can outlaw a crossbow except under licence and yet have the longbow readily available. There is no need to enter into any great discussions about this amendment but people in society who are in the habit of using the crossbow for whatever purposes other than sporting will, to comply with this legislation, opt for the use of the longbow.
There is no reason for not including the longbow in the legislation because it is an equally vicious and dangerous implement as the crossbow. Perhaps we are allowing people who would resort to these bows a loophole under the legislation if we do not include the longbow. Apart from the sport of archery I cannot see why a crossbow can be issued under licence. The Minister may be in agreement with that statement and I should like him to refer specifically to the lawful uses that he sees for the longbow.
I want to respond as positively as I can to the debate as it progresses and I have tabled a number of amendments. I also want to take a commonsense approach, the phrase used by Deputy Flanagan. From the point of view of public order and safety, the longbow does not present the same problems or concerns as the crossbow. What makes the crossbow a potential danger is that, in the wrong hands, it can be used to devastating effect without the need for a great deal of practice. It can be carried, for example, in a cocked position, ready to fire by a simple squeeze of the trigger like a gun. It is smaller and less cumbersome than the longbow and can even be fitted with a type of telescopic sight normally found on rifles. On the other hand, considerable skills are required to use the longbow. It is cumbersome and would be very ineffective for use in committing crime. In the absence of any evidence that the longbow has been misused or is likely to be misused for criminal purposes, it would be wrong to bring it within the ambit of the firearms Bill, as the Deputies suggest in their amendments.
I will, of course, keep the situation under review. If at some future time evidence should emerge of criminal misuse of the longbow — there is no such evidence at this stage — I would certainly consider what the Deputies have suggested. We want to keep as much common sense as possible in the approach to this matter. With the cumbersome nature of the longbow and the fact that there is no evidence whatsoever of its use, I do not intend to accept this amendment.
I have listened very carefully to the Minister's argument. He has been open enough to say he will take on board the points raised by my colleagues and will consider them for the future. I suggest that that is a typical waiting until the horse has bolted approach. That should not be the manner in which the Minister approaches this problem. Serious concerns have been expressed by my colleagues in relation to the longbow. We are all agreed that the crossbow should come within the terms of the Bill. If we are to address the problem in a common sense fashion I do not think it would be sufficient to say one would need skill to use the longbow effectively. I am sure when crossbows are outlawed it would not take too long for those who may be interested in this type of weaponry to acquire the necessary skills to use the longbow in its place. The fact that the longbow may be somewhat more cumbersome is no justification for refusing to bring it within the ambit of the Bill. Anybody who has followed its history will know the lethal effectiveness of the longbow. The skill of the British archers and——
That applies to the strongbow as well.
——and the many battles in the fields of France certainly exemplify this fact. As far as I know, even in our children's story books the weaponery used by Robin Hood and his Merry Men fell into the same category. From all we have read in history and mythology, the effectiveness of the longbow is beyond dispute. It seems the Minister may be closing one door while opening another by leaving this loophole. I do not want to prolong this matter unduly, and neither do I want to engage in any bow and arrow warfare with the Minister, but it seems to be ill-advised to leave this loophole in the Bill, a loophole that will become more glaringly obvious with the bringing of the crossbow within the ambit of the Bill. Those people who are interested in this kind of weaponry will almost automatically turn to the longbow. I urge the Minister to close the loophole at this stage by accepting this simple amendment.
It is rather unfair of Deputy O'Keeffe to question the Minister's open approach to this legislation. I have had a brief glance through the list of amendments. The Minister is attempting, in the amendments he is introducing, to respond to a number of good points that were made on Second Stage, and I thank him for that. It reflects his honesty and his genuine desire to meet reasonable points that have been raised. I can see some validity in Deputy O'Keeffe's and Deputy Flanagan's arguments concerning the longbow but we must bear in mind what we are dealing with here. We are dealing with a situation where certain categories of weapons, in addition to firearms as they are commonly understood, will require a licence before a person can purchase them. We cannot extend the question of licensing indefinitely. I am sure the people who are in control of licensing, namely, the Garda, will not thank us for bringing every conceivable type of weapon within the ambit of the licensing requirements. There must be some limit to this if only from the point of view of administrative efficiency and what people are capable of doing administratively.
My experience has been that the crossbow has certainly been used as a weapon with which to perpetrate crime. The Minister recognised that when he specifically included crossbows within the licensing requirements. There is no great evidence as yet — certainly not from my experience — that longbows have been used in criminal activities. I do not know if there are any specific examples to which Deputies can point, but I am certainly not aware of any usage of longbows for the perpetration of crime.
I do not think it is fair or reasonable to suggest that the Minister is in some way leaving a deliberate loophole in the law. The Minister wants to deal with problems that have arisen since the firearms legislation was first introduced and that is why the Bill is before the House today. There is no deliberate intention to leave a loophole in the law on the Minister's part and I do not think any reasonable Minister would suggest that. It would not be worth his while bringing in legislation to outlaw certain types of weapons and at the same time deliberately leave a loophole where other weapons could be substituted in the commission of crime.
If a problem arises I would be prepared to accept the Minister's bona fides that legislation would be immediately introduced to deal with it. It is not a complicated matter. If there is evidence that the longbow is replacing the crossbow as an instrument of crime, I am sure the Minister will being in a single section Bill — it would entail only a simple amendment — to include longbows under section 4 of the firearms Bill of 1989. It is not a big deal and it would not be difficult to do. It could be done in a matter of minutes any day if a problem arises. In the meantime we cannot include an endless list of weapons because that would make the implementation of the legislation administratively impossible. As I said, if there is no evidence of any problem in relation to longbows at present. However, there is a possibility that this might become a commonly used weapon in the commission of crime and if that happens I would accept the Minister's bona fides. As I have said, it would not be very difficult to bring in a single section Bill to deal with the problem.
I agree with most of what Deputy O'Dea said. Nobody is saying the Minister is trying to deliberately leave a loophole in legislation but surely the Minister sees himself as having a role in the prevention as well as in the curbing of crime. Clearly there is an argument in favour of saying that people who up to now resorted to the crossbow for their unlawful uses will now move into the area of the longbow. I fail to see why, simply because there is no great evidence of longbows being used at present, these fairly vicious weapons cannot be included under the legislation. Is there a problem about the definition of longbows? The Minister has not referred to that but if there is such a problem, we might think seriously about the difficulties that would arise so far as enforcing the legislation is concerned. I do not see a definition difficulty. I think everybody, including the Garda Síochána, knows what a longbow is and there is no identification difficulty. I ask the Minister the question I asked him ten minutes ago. What use does he see for the longbow other than for sporting purposes? In the section we are talking about the issuing of a firearms certificate to cover crossbows in certain circumstances. If we do not wish to outlaw the longbow, if we see a use for it be it sporting or otherwise, then surely a firearms certificate can be granted, as in the case of the crossbow. However, nobody has come forward with any reason a person should be using a longbow other than for sporting purposes and until I get that answer I will not be satisfied. I do not see any reason the longbow cannot be included.
I should like to thank the Minister for his reply. I accept that he is endeavouring to find a balance. I do not wish to go overboard entirely on the issue but the amendment deserves some further consideration. I should like to draw the Minister's attention to the most recent directive from the EC on the control or acquisition and possession of weapons. The document, dated 8 November 1989, is No. 446 Final — SYN98. It contains a proposal to update the regulations of the Commission. It endeavours to deal with the problem of those who want to move from country to country with weapons. Under Annex 1 the Commission bring in for the first time any bow or crossbow. Has the Minister given consideration to that directive in the light of the Bill that is before us? Does he consider it prudent that we should keep our domestic legislation in line with what is happening in the EC? The EC up to this, if I am interpreting the explanatory note covering the directive correctly, have specifically not included bow or crossbows. It would appear that there is a view in Europe that those weapons should be subject to control.
The directive lays down different regimes to cover people who are buying for the purpose of the possession of firearms and those who have firearms for sporting use. The Commission are unashamed about this and say that weapons for the purpose of the directive should include the longbow. Has the Minister had regard to those trends emerging in Europe? Does he consider it necessary to keep our legislation in line with what is happening in Europe? If the Minister says he would wish to consider the matter between now and Report Stage I have no difficulty agreeing to the amendment being withdrawn until then. However, I am concerned that we are a little out of step with what is happening elsewhere.
I should like to thank the Deputies for their contributions. I should like to assure Deputy O'Dea that I will keep this matter under review and if at some future time evidence emerges of criminal misuse of the longbow I will consider introducing a simple Bill to extend the scope of the section to cover them. I am anxious to take a common sense approach to the Bill. I should like to assure Deputy Flanagan that crime prevention is top of my agenda and that is why the Bill is before the House. It is a preventive measure and will assist the gardaí in their fight against crime. However, there are hundreds, and perhaps thousands, of responsible people who are members of archery clubs here and who use longbows. I do not want to put them to considerable cost and trouble when there is no evidence of trouble with longbows. I should like to tell Deputy McCartan that the EC directive leaves the question of legislation to the discretion of the national governments.
I am not prepared to accept the amendment for practical reasons. If I was convinced that there was a difficulty I would be pleased to accept it but there is no evidence of the longbow being used in crime. In the absence of that evidence I do not wish to include in the Bill a provision that may become cumbersome.
Perhaps the best approach for us all is to consider the discussion this morning and review the matter between now and Report Stage.
I will have another look at the matter between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 2 is in the names of the Minister and Deputy McCartan.
I move amendment No. 2:
In page 4, subsection (1) (c), line 11, to delete "with a draw weight of at least 1.4 Kg".
The purpose of this amendment is to delete the exemption from the definition of "firearm" of a crossbow with a draw weight of less than 1.4 Kg.
When the Bill was being drafted it was decided that toy crossbows, that is those with a drawn weight of less than 1.4 Kg., should be excluded from the controls which were being introduced for crossbows generally and this is why the exemption was included in the Bill, However, I have been advised that the reference to a specific draw weight in the section would require the gardaí to prove in every case that a crossbow had a draw weight of at least in excess of 1.4 Kg. in order to secure a conviction against a person for having a crossbow without a firearm certificate. I believe this would impose an unnecessary additional burden on the gardaí and for that reason I am satisfied that the exemption for toy crossbows should be removed. I might also mention that there appears to be no need to make special provisions for toy crossbows since they are not readily available in this country.
Amendment agreed to.
Amendment No. 3 is in the name of the Minister. I observe that amendment No. 4 in the names of Deputies O'Keeffe and Flanagan is an alternative and I suggest that we discuss amendments Nos. 3 and 4 together.
I move amendment No. 3:
In page 4, subsection (1), lines 12 and 13, to delete paragraph (d) and substitute the following:
"(d) any type of stun gun or other weapon for causing any shock or other disablement to a person by means of electricity or any other kind of energy emission;".
The purpose of this amendment is to extend the definition of "stun gun" in the Bill to weapons other than those which inflict an electric shock. This is being done to deal with a point raised by Deputy O'Keeffe on Second Stage when he said that the existing definition of stun gun might not be adequate in view of the possibility that new weapons could be developed which could stun a person by some other means. I share the Deputy's concern in this matter and I am grateful to him for raising it.
My amendment is designed to ensure that any stun gun or similar type weapon will be brought within the definition of firearm in the Bill and will thus be subject to all the controls which operate in respect of firearms under the firearms Acts. Deputies will note that the new wording I am proposing would cover not only stun guns but also any device which could be used to cause shock or disablement to a person by means of electricity or any other kind of energy emission. I am advised that the words "energy emission" are wide enough to encompass any possible way in which a person could be stunned and I am satisfied that the amendment is fully adequate to deal with any future technological developments which could produce a stun device capable of being used against a person.
I am aware that there is an amendment in the names of Deputies O'Keeffe and Flanagan which has been put down to achieve exactly the same result as my amendment. I appreciate the fact that the Deputies have taken the trouble to produce their own amendment on this point but, on reflection, I believe that the wording I have proposed is to be preferred since it is more comprehensive than that used in the other amendment. Accordingly, I would ask the Deputies concerned to withdraw their amendment and to accept what I propose.
I am glad to hear the reaction of the Minister to the point I raised on Second Stage. My attention was directed to this problem by a case in the UK where a pair of binoculars, which were fitted with a type of laser beam, were used, according to the evidence in court, to nobble a horse. It seemed to me that such type of weapon did not come within the original definition in the Bill. The Minister has accepted the point in principle and I appreciate that. In examining his amendment as opposed to mine it appears that the Parliamentary Draftsman has an advantage. The amendment proposed by the Minister probably covers the situation much better than the amendment in the names of Deputy Flanagan and myself. In that case I am prepared to agree to the withdrawal of our amendment and the substitution in the Bill of the Minister's amendment covering the same point.
Amendment agreed to.
Amendment No. 4 not moved.
Amendments Nos. 5 and 6 are related. I am suggesting, therefore, that we discuss amendments Nos. 5 and 6 together.
I move amendment No. 5:
In page 4, subsection (1), between lines 15 and 16, to insert the following paragraph:
"(f) any article which would be a firearm under any of the foregoing paragraphs but for the fact that, owing to the lack of a necessary component part or parts, or to any other defect or condition, it is incapable of discharging a shot, bullet or other missile or of causing a shock or other disablement (as the case may be);".
The primary purpose of these amendments is to ensure that a defective firearm will be caught by the definition of `firearm' and thus be subject to the controls which are imposed by the Firearms Acts. It is not clear whether a firearm which is not capable of discharging a bullet or shot comes within the scope of existing firearms legislation and these amendments are being introduced to put the matter beyond doubt. This is a matter which was raised by Deputy O'Dea at Second Stage and I am sure that all Deputies would agree that the amendments are worthwhile as it would be completely ridiculous if a person could get around the very strict firearm controls merely by removing a firing pin or making some minor adjustment to a firearm. I thank Deputy O'Dea for his comments on Second Stage and for bringing it to our notice.
Amendment No. 5 provides for the insertion into the definition of firearm in section 4 of a new paragraph which provides that notwithstanding that a firearm cannot discharge a bullet etc. it will be treated as a fully operational weapon for the purposes of our firearms legislation. The provision itself is quite clear and does not, I believe, require any further elaboration.
Amendment No. 6 will allow a Garda superintendent to grant an authorisation to a person to keep a firearm as a souvenir or curio without the need for a cartificate where the firearm has been rendered incapable of discharging.
Subsection (1) provides that a superintendent may issue an authorisation to a person to hold a defective firearm where the superintendent is satisfied that the person has a good reason for having it and could do so without endangering the public safety. The type of case to which this provision would apply would be one where a person had inherited a gun which had been used by a relative. It could also be availed of by museums. Subsection (2) allows a superintendent to attach conditions to the granting of an authorisation. It also allows him to revoke an authorisation when he considers it necessary.
In regard to the proposal to include defective weaponry, I fully agree that this is a positive proposal and I compliment Deputy O'Dea who originally raised the point. It certainly improves the legislation. When I first read the amendment I wondered whether it would cover another aspect which gave me cause for concern and which I raised on Second Stage: that is the question of imitation and replica firearms. As the Minister is very well aware, imitation and replica guns are regularly used in robberies. We have only to recall the recent cause célébre in Belfast at a bookmaker's office of the killing of three people who were apparently using replica guns. I wonder if there is any way in which the Minister could devise an amendment which would proscribe replica weapons so as to ensure that replica or imitation firearms are not available to criminals. This problem is very serious. I accept there is considerable difficulty in framing an amendment to cover the point. I have given some thought to it and the question that arises is where one draws the line between imitation and replica weapons and toy guns, some of which can look very realistic in their presentation. I raised this point on Second Stage. I would again ask the Minister to seek the advice and assistance of his officials and of the parliamentary draftsman on this issue. It would be a great advance if we could make some progress to outlaw replica and imitation firearms. If the Minister is not able to come up with an amendment on that point I want to give notice that I will attempt to produce an amendment on Report Stage to deal with it. I ask the Minister to direct his energies and efforts to seeking and finding a solution to that issue.
In regard to the proposals to provide for authorisation to hold defective firearms without a firearms certificate, has the Minister thought through this amendment? I appreciate the situation in relation to museums — old antique weapons, curios and so on — but my understanding is that that is covered already. I am not sure that it is wise to leave defective firearms around the place. I was in that situation at one stage where in my own legal office I found a firearm which dated back to the so-called troubled times. Having discussed the matter with the local sergeant he indicated that the option was open to me to have the weapon rendered ineffective and that I could then retain it. This happened some years ago but apparently that is still the situation. Having considered the matter at the time I realised that that weapon could have fallen into wrong hands and could have been used for criminal or even possibly subversive purposes. I handed in the weapon.
In recalling that experience and applying the lessons of that incident to the general position, is it wise that we should have pistols and revolvers and so on, even if they have some historic or sentimental value, lying around the place, bearing in mind the frequent use of weaponry in robberies where the actual weaponry may not be fully effective? My concern about the increase in armed crime and the use of weapons in robberies in this country stems from the fact that in the last crime report there were 672 cases of robbery and aggravated burglary in which firearms were used. We are talking about two such crimes per day. Is it wise that we should have a situation where defective firearms can be retained and may fall into wrong hands? Would it be wiser to have these weapons handed into the Garda Síochána except where we are guaranteed that they are in secure hands, in a museum or some such place? I raise that point for discussion.
This very point is one which also concerns me. I would like to hear the Minister's view on it. When this Bill was being debated in the Seanad the Minister took the view that imitation firearms would be covered under the current definition of "firearm" in the Firearms Acts and if a person used an imitation firearm for the purpose of an offence the definition of "firearm" would cover the imitation firearm in those circumstances. However, I do not think that addresses fully the problem we are dealing with here. We are trying to introduce a positive code for dealing with weapons right across the board in a comprehensive single Act. We have addressed the problem of imitation weapons to some degree but the question now is whether we should require them to be licensed or held under certain authorities. This question has be be addressed seriously.
The Minister's amendment, as drafted, seems to address the question of defective firearms. I accept that the amendment states "... or to any other defect or condition ..." but the overall interpretation of the section is that it deals exclusively with defects. That is the general principle of interpretation which is described as an ejusdem generis principle when what will be looked at is what the word “condition” represents. I believe it will be linked to the word “defect”.
Amendment No. 6 refers to defective firearms. It does not refer to defective, replica or imitation firearms. It deals entirely with defective weapons. Deputy O'Dea raised a very valid point and quoted case authority for the matter but we have to address the question of replica weapons and whether it is desirable to have them licensed or controlled in any way.
The lifelike reproduction of weapons is startling. It is incredible to see pictures of young children in strife-torn cities such as Belfast running around with what only can be described as lifelike imitations of the weapons used by paramilitaries and other armed personnel. It is remarkable to think that this can happen. It is even more remarkable when, as has been pointed out, this can lead to a loss of life, as happened to the three robbers when they were coming out of the bookmaker's shop. I do not condone what they did but it helps to illustrate the point that the possession of these weapons can be used to a remarkable extent and can lead to the inevitable loss of life.
I ask the Minister to address the problem of the proliferation of replica weapons in particular. I do not think we can ever ultimately deal with the problem of imitation weapons in the context of this legislation. In a recent case in Britain a man who was arrested after committing numerous offences was found to have been carrying a cucumber and not a firearm in his pocket. The press report showed a very vivid picture taken by the surveillance video of him standing at the counter and for all practical purposes he seemed to have a firearm in his pocket but when he was arrested it turned out to be a cucumber.
We need to deal with the almost exact reproduction of weapons which can be sold. I believe many people collect these weapons as a hobby. They can have very serious consequences in the hands of the wrong people and we should be working towards controlling their use, not just in the area of offences but in the wider context also. I do not like to see guns in any shape or form being used by people on our streets. People may say we have to draw the line between a toy and a replica weapon but if we are to err in this area we should err against rather than allow the present situation to continue.
I thank Deputy O'Keeffe and Deputy McCartan for their kind remarks. However, I did not understand Deputy McCartan's initial point. He said the Minister had said on Second Stage that imitation firearms were included within the definition. I may have misunderstood what Deputy McCartan said but I understood the Minister to say that if somebody attempts to commit a crime using an imitation firearm there are sufficient laws to deal with this. I agree with Deputy McCartan's interpretation of the word "defect" in the Minister's amendment.
Deputy O'Keeffe adverted to the difficulty of finding an adequate definition for imitation firearms. This matter is dealt with in section 57 of the UK Firearms Act, 1968, which defines imitation firearms as anything which has the appearance of a firearm whether or not capable of discharging any shot, bullet, etc. The real problem here is that there is a distinction between imitation firearms which, as Deputy McCartan has said, are very closely related in appearance to actual firearms and other imitation firearms. While the English definition demonstrates that it is a relatively easy matter to define an imitation firearm, if we are to bring imitation firearms within the ambit of the legislation we will have to bring all sorts of toy guns within its ambit. I do not think it is possible to bring in a definition which would distinguish between imitation firearms which have a genuine appearance of firearms and other imitation firearms. Therein lies the difficulty in which the Minister finds himself.
That is the problem I have. I am not scoring any points but this problem was acknowledged by Deputy O'Keeffe during the course of Second Stage debate. He pointed out the virtual impossibility of distinguishing between an imitation firearm and a toy gun for the purposes of legal definition. I want to reassure Members that under existing statutory provisions there is a maximum penalty of 14 years for carrying a firearm or imitation firearm with criminal intent.
With regard to the authorisation to be given by a superintendent, it will be absolutely essential for the superintendent to be sure that before allowing anybody to retain an old weapon it has to be for a very good reason. As Deputy O'Keeffe pointed out, most of these firearms would be connected in some way with the 1916 period. That is the type of case we are talking about here. I share Deputy McCartan's concern about the number of guns in Northern Ireland in the hands of paramilitary groups. Too many guns are in use there on a daily basis or hidden away in some dump for future use. That is a matter of concern to the Government and to every Member in this House.
I am afraid that in our enthusiasm to make sure this Bill covers every eventuality we may ban the game of cowboys and Indians.
That is it.
Children play this rather innocent game using inefficient longbows and plastic guns — they were made of metal in my day — and the superintendent of the Garda may round up all these guns and take them away. I hope we do not get to the stage where we will look a little ridiculous in what we are trying to achieve. The Minister has taken a very balanced approach in this Bill and he has covered in his amendments all the questions raised on Second Stage. The Minister says that many households keep guns with the firing pins sawn off and the barrels drilled out as mementoes and keepsakes. Do the owners of these guns now have to go back to the Garda to get a note or letter allowing them to keep these guns in their possession? In addition guns of an ancient vintage are displayed in hotels and guest houses, museums or places where there is a large tourism element. Such weapons may date back for centuries. Are they now covered by this Bill and, if so, is it only necessary for the owners to go to the local superintendent to get permission to keep them as curios which give an ambiance to particular rooms? Can the Minister assure us that people will not be in difficulties because they keep something that gives a certain ambiance to particular establishments?
I appreciate the Deputy's comments in relation to what I am trying to achieve here, which is a balance between the real and the unreal. People who have guns that have been in their family for generations will, when this legislation comes in, merely have to notify the superintendent who will, if appropriate, give them clearance. Antique guns in the case the Deputy mentioned, are already covered under existing Firearms Acts and nothing has to be done in relation to them.
Amendment agreed to.
Section 4, as amended, agreed to.
Section 5 agreed to.
NEW SECTION.
I move amendment No. 6:
In page 5, before section 6, to insert the following new section:
"6.—(1) The superintendent of the Garda Síochána of a district may grant an authorisation in writing to a person resident in the district, not being a person disentitled under the Firearms Acts, 1925 to 1990, to hold a firearm certificate, to have in his possession, without a firearm certificate, a firearm where he is satisfied that the firearm would not be a firearm but for section 4 (1) (f) and that the person has a good reason for wishing to keep it and may be permitted to do so without danger to the public safety or the peace.
(2) The superintendent of the district where the holder of an authorisation under this section resides may, at any time, attach to the authorisation any conditions, whether as regards safe custody or otherwise, which he considers necessary and may at any time revoke the authorisation.".
Amendment agreed to.
SECTION 6.
I move amendment No. 7:
In page 5, subsection (2), lines 24 to 26, to delete paragraph (b).
This amendment deals with the section on the possession of silencers. I am proposing to delete paragraph (2) (b). Subsection (2) deals with the powers of a superintendent to grant an authorisation under the section. It says:
A superintendent shall not grant an authorisation unless he is satisfied that the person who is to have possession of the silencer or to whom it is to be sold or transferred is the holder of a firearm certificate for a firearm to which the silencer can be fitted...
I agree with that; it is an eminently sensible proposition. Paragraph (a) states:
having regard to all the circumstances, the possession, sale or transfer concerned will not endanger the public safety or the peace,
I cannot disagree with that either. I think that is enough supervision. I do not understand the need for paragraph (b) which I propose should be deleted. It reads:
The person has a special need that is, in the opinion of the superintendent, sufficient to justify the granting of the authorisation for the silencer.
My point here is that if the superintendent is of the view that the possession of the silencer will not represent a danger to public safety or the peace, as is required under paragraph (a), that should end the matter and there should be no other consideration. If there is no threat to peace then let people possess these silencers but I do not see why a person has to make a special case. In the area of balance this seems to have dominated the debate so far. These are a peculiar piece of the weaponry used by some people and not by others, depending on the circumstances in which they work or hunt. Provided the superintendent is satisfied that there is no danger to safety or peace, then people should be allowed have these silencers.
I cannot accept this amendment. The purpose of section 6 is to limit the availability of silencers to those persons who have a bona fide need for such an item and who can be safely entrusted with them. I need hardly reiterate the reason for introducing this restriction. We can all envisage the nefarious use to which such items can be put if they fall into the wrong hands. However, we cannot ban them completely. I understand that from time to time people like veterinarians, people in charge of stud farms, etc., can have a legitimate need for a silencer for a gun for the destruction of animals or vermin in circumstances where a loud shot would cause disturbance among other animals. It is such a need that section 2 (b) is designed to deal with and I believe it is important that it be left within the Bill because silencers can be very dangerous and can make guns even more lethal. We should have as many safeguards as possible, and that is why this provision is in the Bill.
I am convinced by the case made by the Minister, and I will remain silent on silencers.
I thank the Minister for his reply. He has given a reasonable explanation of the circumstances in which he would envisage a person having a special need. I have to think long and hard to come up with a situation where a person could go beyond the stage of saying that there is no harm having a silencer to lay a special case. The Minister has given some interesting examples. I have no hard view on that. I am happy to withdraw the amendment but I was anxious to tease out the reason this paragraph was there. What we are doing here is legislating for the maintenance of public safety and if the superintendent is happy that the possession of a silencer in particular circumstances would not threaten that, I do not see the need to require the citizen to make a special case. If the Minister is standing firm I will not press the amendment.
Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7
I move amendment No. 8:
In page 6, line 5, after "not" to insert "or who, without lawful authority, discharges a firearm in the period after nightfall and before daybreak".
I am very anxious to hear the Minister's response to this amendment. It has been represented to me that in some parts of the country there is a considerable amount of poaching during the night involving the shooting of deer and pheasant in barbarous ways. I gather that searchlights are used in the same way as the old rabbit dazzler; that the animals are mesmerised by the lights and very often deer are wounded but escape to die in the hills. It seems that the discharging of weaponry during the night can have few legal causes. I understand that Garda officers and the military should not be covered by this. Even as regards sportsmen with licences I do not believe it is sport to be out after dark killing animals and birds in this fashion. I understand legislation exists in the UK on this. I am anxious to ensure that we do not have weapons discharged after nightfall and before dawn for any purpose other than where there is lawful authority for carrying such weapons, and I do not regard a licence issued to sportsmen as being lawful authority.
I am open to any views of the Minister's officials, as may be expressed by the Minister, as to the validity of the point or of the manner in which I have attempted to cope with the problem. I ask the Minister to take the matter on board seriously. I have received a number of reports from around the country which would suggest that this is a problem that needs to be tackled.
The effect of this amendment would be to make it an offence, as Deputy O'Keeffe said, for a person to discharge a firearm at night unless he has specific authority to do so. I have considered the amendment and my view is that it is not necessary to make such a change in our law. We already have very strict legislation on the control and use of firearms and this has been supplemented by the creation of the new offence of reckless discharge which is provided for in this Bill. The Garda Síochána will be well placed to deal with any situation where they need to act to prevent the abuse of a firearm.
If the amendment were accepted it would give rise to serious practical difficulties. These would rise directly with the use of the expression "without lawful authority." This is normally taken to refer to where a person is specifically authorised by law, for example, a garda, to carry out a certain function, and the result could very well be that nobody, except perhaps a member of the Defence Forces or a garda, would be permitted to discharge a firearm during the hours of darkness. If that were the case a farmer, for example, would not be allowed to fire at a fox which was raiding his farm. I do not believe that is what Deputy O'Keeffe wants and it would not be acceptable.
I share the Deputy's concern in relation to firearms being discharged at deer etc. at night. That is poaching but it is not really poaching or hunting that we are about in this Bill, it is public safety. If there is a need for a provision of the type the Deputy suggested I think it would be better teased out in the context of a wildlife Bill rather than this Bill. That whole area of hunting, poaching and farmers using their guns at night for defending their farm against pests could be teased out under other legislation.
This discussion has helped to clarify the issues to some degree. It is clear to me now that we do not have legislation to cover the point I have raised. Secondly, it may be that the manner in which I have framed this amendment is not the best way of tackling the problem. On the other hand the only alternative the Minister has come up with is to leave it to a wildlife Bill. We are talking about the proper use of firearms. While I accept it is not a crime in the strict sense, to mesmerise, shoot and wound deer out in the hills at night, it is an improper use of firearms. Reflecting on the Minister's comments I would ask him to have the matter discussed again with his officials to see whether some more acceptable clause could be included on Report Stage. If he takes on board the point that legislation is necessary it seems to me this is appropriate legislation in which to include it. We are talking about the proper use of firearms. I do not intend to press the issue at this stage. I invite the Minister to consider the point raised in this discussion and I think we can look at it again on Report Stage.
I will be delighted to consider that and any other points made. I will think about it between this and Report Stage. I do not want to promise the Deputy progress on it but if anything can be done to meet the point I will, of course do so.
Amendment, by leave, withdrawn.
Section 7 agreed to.
NEW SECTION.
Amendment No. 9 in the name of Deputy Pat McCartan. Amendment No. 17 is consequential. I suggest, therefore, that we discuss amendments Nos. 9 and 17 together. Is that satisfactory?
May I make a suggestion? I have no objection to taking it that way, but amendments Nos. 10, 11, 12, 13 and 14 also deal with the section and we could take them together, all told.
I would prefer to proceed as I have outlined.
That is fine. I move amendment No. 9:
In page 6, before section 8, but in Part III, to insert the following new section:
"8.—(1) A person shall be guilty of an offence if he possesses or has under his control in any public place, without lawful authority or reasonable excuse (the onus of proving which shall lie on him) any weapon made, or adapted, for causing injury to, incapacitate, or intimidate any person.
(2) A person guilty of an offence under this section shall be liable—
(i) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding twelve months or to both, or
(ii) on conviction on indictment, to a fine or to imprisonment for a term not exceeding five years or to both.".
In taking the amendments in this way I intend to address the kernel of this legislation, that is how we proceed to deal with the control of weapons of offence. We are in the process of repealing and updating legislation that has existed from as far back as 1824, and which was dealt with under subsequent legislation — the Dublin Police Act, 1842, the Prevention of Crimes Act, 1871 and the 1916 Larceny Act in terms of the possession of weapons of offence and of housebreaking implements. We are beginning now to address in a central, single way under one Bill the regulation of the possession of knives and other articles of offence. On Second Stage I made the point that I felt the Minister was going completely the wrong way about it, that he was engaging in so many different scenarios and situations that it would make this which should have been very central and clear legislation, much too cumbersome, much too complicated and packed with all kinds of arguments, that would make the situation for the policemen on the ground almost impossible and for the officer in the court subsequently prosecuting liable to all kinds of legalistic traps.
Section 8 is in Part III of the Bill under the heading "Offensive Weapons" while "Possession of knives and other articles" is the side heading in the margin. The Minister provides under section 8 (1) to deal "with any knife or any other article which has a blade." That is the first matter. We are dealing with a knife or an article with a blade that is sharply pointed and is not a folding pocket knife. It shall be an offence to have one of those things in any one of a number of different locations, "any dance hall, dance marquee, discotheque, cinema, theatre, concert hall, recreation hall, amusement hall or similar place,... any club premises, or any premises in which food or drink (whether intoxicating or not) is served to the public". We have 12 different locations. Even before we get beyond subsection (1) we have three separate articles and 12 different possible locations. All of those are then qualified by the definition "at a time when people are likely to be resorting thereto". Then there is reference to any place where there is a sports fixture, a carnival, a bazaar, outdoor concert or any similar function being held and where people are likely to congregate. All of those in their own right will be the subject of a debate on their definition but more importantly the subject of practical consideration by the police officer. Where was he? Was he in a dance hall, club premises, was intoxicating liquor being sold, had the knife a blade that is sharply pointed, can it fold or not? The section is full of problems for the police officer investigating the case and equally when it comes to court for proof, all kinds of issues will be raised in defence.
Section 8 (2) (a) of the Bill — by no means the second scenario, I think we have counted 20 already — deals with another implement, the flick-knife, and section 8 (2) (b) deals with "any other article whatsoever made or adapted for use for causing injury to or incapacitating a person,". In fact paragraph (b) covers everything that can be contemplated under paragraph (a) because "any other article whatsoever made or adapted for use for causing injury" will obviously include a knife or an article with a blade that is sharply pointed, a flick-knife or any other article, and it will be a crime to have them in any public place without lawful excuse. I believe that paragraph (b) makes paragraph (a) virtually redundant.
Section 8 (3) deals with another concept where a person has with him any article intended by him to unlawfully cause injury to, incapacitate or intimidate any person. What article is contemplated that is not already covered by paragraph (b)? I am at a loss to know what subsection (3) deals with that is not clearly covered by subsection (2) (b).
Section 8 (4) is a tortuous qualification of the person whom it was intended to intimidate or whom it might have been intended to intimidate under subsection (3). It states: "It shall not be necessary for the prosecution" to prove that the person had the weapon for the purposes of intimidating and that they do not have to prove that you were in pursuit of a particular person. There can be a general intent to intimidate. I believe this is an unnecessary modification and qualification of subsection (3) which in any event is subsumed under subsection (2) (b) and it should not be in the Bill at all.
Section 8 (5) deals with penalties. There are varying penalties because there are various scenarios. I think we should have a single scenario and a single sentence. Section 8 (6) tries to define a "public place". In fact "public place" is so well defined in judicial law arising from the road traffic legislation that it does not need definition and we will now have a major problem with arguments on the definition in court where lawyers will be borrowing from judicial interpretations of the public place provision under the Road Traffic Act and, if I am correct, when the Road Traffic Acts were originally introduced it was seen by the Legislature that there was no need to define a "public place". It was left to the courts to subsequently give a commonsense definition of public place: a public place is a place to which the public have access. Whether entry was under licence or for a fee was irrelevant. If you have access to a place it is a public place for the purpose of the legislation.
Finally in section 8 (7) we have a definition of a "flick-knife". The Minister will have to agree that he had a tough job getting a definition that was comprehensive enough to cover all the eventualities of how a flick-knife can be created. It can be either a knife which has a blade that can be shot out by a spring or a blade that can be thrown out by the force of a hand movement and that can be withdrawn into the knife by a flick movement. There were all kinds of imponderables.
The section is much too cumbersome and envisages far too many variables and will in fact make the workings of this central pivot of the Bill difficult to implement. I have suggested a proposed amendment to section 8 which covers all of the scenarios envisaged by the Minister. Section 8 (1) of my proposed amendment states:
A person shall be guilty of an offence if he possesses or has under his control in any public place, without lawful authority or reasonable excuse (the onus of proving which shall lie on him) any weapon made, or adapted, for causing injury to, incapacitate, or intimidate any person.
As a consequence there is no necessity for the tortuous qualification of what intimidation is all about and one penalty will be provided. Therefore there is no need to define a flick-knife. As I have said a public place is well and truly defined in existing legislation and it is not for us to have to produce another definition here. A section that runs to over 60 lines involving seven subsections can be comfortably reduced to two subsections with a central proposition as in subsection (1) of my amendment.
The Minister talked at length in the Seanad and on Second Stage in the Dáil about achieving the balance of trying to protect the boy scout with the folding pocket knife or the man who needs a knife to cut his plug tobacco and he felt that it was important to recognise that there were many uses of knives that had domestic and innocent explanations and many tools of a trade that clearly had innocent explanations and that we should envisage allowing for universal entitlement to have these knives or weapons in innocent and easily explained situations. My reply to that is, rather than create this cumbersome code of traps that appear in section 8, the Minister should go for a simple, all-embracing proposition as I proposed in my amendment and that you allow the defence of lawful excuse should a prosecution be brought. In the unlikely event — I use an extreme example because it is easy to illustrate — that the boy scout ended up in the dock on account of possession of the hunting knife or camping knife with all its accoutrements, it is open to him to simply say: "Your Honour, I was out about my business as a member of the boy scouts and I intended to cut sticks and prepare ropes and I had no unlawful intent."
How could a judge convict a person in those circumstances? How are the rights and interests of that person not defended in that case? In any event their position would be completely covered because if the police officer comes across a person carrying a weapon in a public place, I believe that under my amendment he has the discretion to say that he is not prepared to believe a lawful excuse exists, and to confiscate the weapon and prosecute if necessary. We are approaching this in a far more sensible way. We are giving the widest possible discretion to the garda to address each situation in the circumstances in which they find it and to make a decision consequent on that. A garda officer presented on the street with the various different propositions contained in this section will be faced with all kinds of questions before he or she can act. I am extremely worried that we have created a monster here which will render this legislation virtually unworkable and I would urge the Minister to have regard to an amendment.
I have listened carefully to Deputy McCartan and I have to admit a certain amount of sympathy with what he has said. If we try to make the legislation too complicated we run the risk of rendering it ineffective. The reverse is also the case. If we try to over-simplify it we may also make it ineffective. In the section the Minister is deliberately trying to address a number of situations.
I am not happy with the way Deputy McCartan's amendment is drafted. The amendment would only penalise people who, without lawful authority or reasonable excuse, are in possession of weapons made or adapted for causing injury. I can understand the concept of a weapon adapted for causing injury. A bottle is not made for causing injury but if it is broken it may be presumed to be adapted for causing injury. The vast majority of weaponry with which the crimes we are talking about are committed is not specifically made for causing injury to other people. For example, a chisel, a kitchen knife and a screwdriver are not made for causing injury to a person.
Under section 8 (1) if a person goes into a crowded place, a dance hall or a football stadium with a sharply pointed weapon he can be prosecuted for an offence. Under section 8 (3) if he goes to the same place with an iron bar or any weapon which is not sharply pointed and does not have a blade he also commits an offence. The burden of proof is very different in relation to the two offences. In the first case all the prosecution have to prove is the simple fact of possession. In the second case the prosecution have to establish intent to commit injury, incapacitate, intimidate, etc. A person can wreak as much havoc with an iron bar or a knuckle duster as with a weapon which just happens to be sharply pointed or has a blade. I am unhappy that these are distinguished in this way. In one case there is an additional heavy burden of proof of intent, while this ingredient is lacking in the other offence.
Perhaps the amendment could be drafted in a different manner. As I read it, the vast majority of weapons would be excluded. I can think of one or two weapons made deliberately for the purpose of causing injury to other people. I would argue that even a flick-knife is not made exclusively for causing injury to other people and that it has some uses apart from that. It is a difficult and complex matter. The Minister is setting out to address a number of possible situations. In our attempts not to over-complicated the Bill, we must not fall into the trap of over-simplifying.
Acceptance of this amendment would involve the deletion of section 8 of the Bill and I cannot accept it. Perhaps I should repeat what I said in my Second Stage speech about the reasoning behind section 8 and why it takes the form it does.
The difficulty in devising statutory controls to deal with the availability of offensive weapons, other than firearms, is that many ordinary everyday articles can be employed as offensive weapons and even those articles which most readily come to mind as weapons, e.g. knives, have many legitimate uses. In recognition of this fact it is attempted in section 8 to provide for controls which will deal with the problem of abuse in a realistic and balanced way.
A scaled approach is taken. Firstly, knives and similar instruments are prohibited in those places where people congregate for entertainment or recreation and where there is no legitimate reason for a person to have such items. Secondly, those weapons which have no legitimate use such as flick-knives are prohibited in public places generally. And thirdly, having any weapon in a public place with intent to injure or intimidate is made an offence.
Deputy McCartan, in his amendment, seeks to simplify the matter by attempting to provide an all embracing provision to cover everything from the ordinary kitchen knife to a flick-knife to a razor studded belt. This would be an attractive approach if it could work but it cannot.
The Deputy proposes that we simply make it an offence to have in a public place "any weapon made, or adapted, for causing injury to, incapacitate, or intimidate any person". The effectiveness of this provision depends on what is to be regarded as a "weapon made or adapted". It is well settled that an ordinary knife, or a screwdriver or any other implement which has a legitimate use cannot be regarded as a "weapon made or adapted".
The Law Reform Commission in their Report on Vagrancy and Related Matters — LRC 11 of 1985 — dealt with the significance of this point. At page 76 of their report they quote from Smith and Hogan, Criminal Law, fifth edition in relation to English law in this area. I should mention at this point that although the passage quoted by the Law Reform Commission relates to English law, it is relevant also to section 8 of the present Bill. The passage reads as follows:
There are three categories of offensive weapon: (i) Articles made for causing injury would include a service rifle or bayonet, a revolver, a cosh, knuckle-duster, dagger or flick-knife. (ii) Articles adapted for causing injury would include razor blades inserted in a potato or cap-peak, a bottle broken for the purpose, a chair-leg studded with nails or so on. "Adapted" probably means altered so as to become suitable. It is not certain whether the intention of the adaptor is relevant. Is an accidentally broken milk bottle "adapted for use for causing injury to the person"? It is submitted that it is not and that if the article was not adapted with intent, it can only be an offensive weapon in category (iii) below. It has been held that a bottle broken for the purpose of committing suicide is adapted for causing injury to the person; but since the question is whether it is an offensive weapon and "offensive" implies an attack on another, the "injury" to which (it is submitted) the adaptor must contemplate, must be injury to another. (iii) It is very important to distinguish the third category of articles which are neither made nor adapted for causing injury, but are carried for that purpose. Whether D carried the article with the necessary purpose is essentially a question of fact. Articles which have been held to be carried with such interest include a sheath-knife, a shot-gun, a razor, a sandbag, a pick-axe handle, a stone, and a drum of pepper. Any article is capable of being an offensive weapon; but if it is of such a nature that it is unlikely to cause injury when brought into contact with the person, then the onus of proving the necessary intent will be very heavy.
The importance of the distinction is that, in the case of articles "made or adapted", the prosecution have to prove no more than possession in a public place. D will then be convicted unless he can prove, on a balance of probability, that he had lawful authority or reasonable excuse. But if the article falls into the third category the onus is on the prosecution to show that it was carried with intent to injure.
My advice is that that third category referred to in the extract I have quoted would cover the vast majority of knives, sharp tools, etc. Therefore, in the provision proposed by Deputy McCartan possession of an ordinary knife or a sharp tool would not be prohibited. A person carrying an ordinary sheath-knife or a screwdriver or say a "Stanley knife" would not be in possession of something that could be automatically classed as a weapon in the context of the Deputy's amendment. Proof of intent to use the item as a weapon would be needed which could, of course, be difficult to provide.
The Deputy's amendment, if accepted, would be a retrograde step and would greatly weaken the Bill. That does not mean I am not prepared to accept the point about the pocket knife, its length and the difference between the man who is using it for cutting tobacco and so on. We will try to regularise that on Report Stage.
Deputy O'Dea referred to a blunt instrument. An iron bar or a hammer can be used as weapons but the line must be drawn somewhere in the Bill. Almost any heavy item can be used as a blunt instrument and we cannot bring everything within the ambit of the Bill.
I should like to thank the Minister and Deputy O'Dea for their remarks. There seems to be a degree of unanimity about simplifying the law and I should like to pursue the matter to see if there is a possibility of a simpler code. On Second Stage Deputy O'Dea made a very interesting contribution to the Official Report, volume 394, column 1607, where he referred to the man travelling on the train from Limerick with intimidatory purposes in mind. He said that under the section the man travelling up on the train with a weapon was committing an offence whereas, going home with the same weapon, he was not. That oddity arises because we are trying to do too much in the section.
In an attempt to draft something that might appeal to the Minister I relied too much on the Minister's wording in the Bill by adopting the words "made or adapted". I fully accept that they are inappropriate words to deal with all the situations the Bill needs to cover. I wonder if the words "capable of causing injury to, incapacitate or intimidate" would cover the deficiency in the wording I used. The section could then refer to "any weapon capable of causing injury to, incapacitate or intimidate".
I cannot follow the line of thinking that if we are too wide and all-embracing the legislation might equally become ineffective. I would have thought that the all-embracing legislation which gives on the one hand discretion to the police officer to act in certain circumstances and on the other the open defence of lawful excuse to the defendant if prosecuted to explain why he or she felt the weapon could be carried, is the best approach to take. I do not fully agree with the Minister's statement that the section could not work. I borrowed the words "made or adapted" from the original section and I agree they are unduly restrictive. If we introduced the words "capable of" would we be getting closer to something that would commend itself to the Minister?
I wish to thank the Deputy for his acknowledgment of the difficulties surrounding this section. I would like to have had it as broad as possible but I have outlined the difficulties. I have not had an opportunity to consider his remarks but my immediate reaction is that a person carrying a sheath knife, a screwdriver or a Stanley knife would not be in possession of something that could automatically be classed as a weapon in the context of the Deputy's amendment. We are back to the whole question of intent and proof of intent in relation to the Deputy's point.
I obviously do not intend to press my amendment because I am grateful for the good advice of Deputies on the other side although I am not entirely happy with the wording. However, I will come back to it on Report Stage because it is an issue of central principle to the working of legislation that we keep matters as simple and concise as possible. Perhaps I will leave this matter because we will shortly be discussing an amendment in the name of Deputy O'Keeffe in regard to the public place definition. Why did the Minister feel it necessary to give a definition of "public place" in the context of this legislation when ample and adequate definitions already exist?
Account was taken of club premises which would normally not be regarded as public places.
Why did the Minister not make it an offence to possess or own a flick knife apart from using it in a public place? I do not see any reason for anybody having such an implement because it is an offensive weapon and cannot be used for any other purpose, unlike the other knives which have been mentioned. Why do we not ban this weapon instead of allowing it to be bought and in the possession of people in certain areas which are not public places? Perhaps I am wrong but I thought the flick knife had been banned many years ago and that it was an offence to possess one. Does the definition of "club premises" extend to the sports ground attached to such premises? There are many GAA, soccer, rugby and golf clubs which have premises and extensive grounds. I certainly agree with banning any knife on the fourteenth hole in Portmarnock during the Carrolls' Irish Open although it is an unlikely happening. Nevertheless, I wonder if one would be in contravention of this law if one was found in possession of an offensive weapon in the sports ground area rather than on the club premises.
It is the intention under section 11 to ban the importation and sale of flick knives. As far as a public place is concerned, we do not want to search people's homes and it should be sufficient to refer to a public place in regard to club premises. Gardaí will not enter them unless there is a complaint.
I was referring to the extension of the club premises.
The same thing applies.
I am not entirely happy with the Minister's response to the question of a public place but we can tease it out later when dealing with Deputy O'Keeffe's amendment to that provision. How is it maintained that there is a substantial difference between subsection (2) and subsection (1)? Do not the words in subsection (2) (b) "any other article whatsoever made or adapted for use for causing injury to or incapacitating a person" potentially include every weapon contemplated under subsection (1)? I want this specific question answered before we come to Report Stage on the necessity for these two subsections.
This subsection deals with something that would be normally adapted, such as a hammer.
It is coming back to the words "made or adapted".
Yes.
I withdraw the amendment at this stage but I want to give clear notice that I will come back to it on Report Stage when I have improved the wording.
Amendment, by leave, withdrawn.
At this stage it is best to dispose of the amendments and then we will come to the section. Is that agreed? Agreed.
SECTION 8.
I move amendment No. 10:
In page 6, subsection (1), line 17, to delete", other than a folding pocket knife,".
Amendments Nos. 10 and 11 follow on from amendment No. 9 and try to improve the section as it stands. I am merely proposing that "other than a folding pocket knife" be taken out of subsection (1). I do not see why we should differentiate between a knife whose blade is sharply pointed and one which can be folded. The provision as it stands would give too much leeway to the potential offender. Therefore, we should delete those words.
The folding pocket-knife was included to allow for pipe smokers or others who might habitually carry a pen-knife or pocket-knife for peeling tobacco or for doing many other jobs for which a pen-knife is useful. I do not want to stop such people from carry their penknives or to put them in a position where they must check their pockets before going to a football match, a dance or for a drink to be sure they are not carrying a pen-knife. In my view the exception is a reasonable one. However, I am prepared to consider a compromise on Report Stage to limit the length of any blade or folding knife to, say, three inches or eight centimetres. This was done in the British legislation and I think it might meet the concerns the Deputy has expressed.
As the only pipe smoker here, I would say there are legitimate reasons for carrying a folding pocket-knife. I was searching in my pocket for the one I normally carry and wondered whether I should get rid of it before we conclude the debate here.
Is this a scheduled place? Does it come under the heading of a club premises?
I would encourage the Minister along the lines he now seems to be going. It seems there can be a whole variety of pocket-knives. The ordinary small one which pipe smokers or fishermen use is probably legitimate, but I imagine there are types of folding knives which could be very lethal. The approach now being taken by the Minister limiting the length of the knives might be the best one.
Deputy Kavanagh wants me to tell the House about the strict regulation in the House of Commons where you cannot bring your sword into the Chamber. Maybe Deputy O'Keeffe can be asked to leave his pen-knife outside also. The section states "without lawful authority or reasonable excuse" therefore the pipe smoker has nothing to worry about if the words are deleted. The folding pocket-knife is being excluded. If the pipe smoker can produce his tobacco tin or his pipe, that would be a lawful excuse. I do not see a difficulty in that but I do see a difficulty if we get into the area of the British legislation trying to regulate measurements. If a police officer is dealing with a busy discotheque, bazaar, dance hall, recreation hall or amusement hall, is he to have a ruler with him and ask the person to wait until he measures the knife to see what length it is? That would be unworkable. As the words "lawful authority or reasonable excuse" are included, the innocent person has nothing to worry about. I am trying to address this matter with effective legislation that is workable from the point of view of the police officer as well as covering the rights of those who have nothing to worry about in the first place. I acknowledge that we are coming back to this matter on Report Stage and I hope the Minister will keep those points in mind.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 11 and 12 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 11:
In page 6, subsection (1), line 18, after "in" to "insert" or in the environs of".
I use the words "or in the environs of" because that concept is probably better known to the law than the concept of being near. I think Deputy O'Keeffe and I are attempting to achieve the same ends and I have no particular worries provided the Minister accepts either amendment.
I can see merit in these amendments. As they are framed they would achieve slightly different results. Deputy McCartan's amendment would relate only to places referred to in paragraphs (a), (b) and (c) but not to those places referred to in the final paragraph. The amendment proposed by Deputies O'Keeffe and Flanagan would have the converse effect. Be that as it may, I am attracted by the intention behind these amendments and I am prepared to consider an amendment along these lines for Report Stage.
On that basis I am prepared to let the matter rest for the moment. It seems to be important when talking about seizing these knives and offensive weapons at sports centres, bazaars and so on, that the case should not fail merely because the person was not inside the turn-stile in the football ground. There could be a crowd congregated outside, and this is really what I had in mind. If the Minister accepts the intent of our amendments we will leave it to him to bring in an amendment on Report Stage.
We will have it drafted for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Acting Chairman
Amendment No. 13 is out of order because it relates specifically to the protection of wildlife and the prevention of cruelty to animals, matters which are more proper to the Wildlife Acts and the Protection of Animals Act.
I do not want to challenge your ruling in any way but if I had an assurance that a wildlife Bill would be introduced in the near future I would be happier with that ruling. The point was raised by the Minister in the context of an earlier amendment which I put down about the use of firearms after night fall and before daybreak. I have to reluctantly accept your ruling but I would strongly encourage the Minister to speak with his colleague in charge of the wildlife area with a view to bringing forward legislation in that regard.
I will do that.
I know my colleague, Deputy Flanagan, has a particular interest in this amendment and may be he would like to comment before we conclude. If it is ruled out of order I cannot proceed with it.
I am sorry I was not in the House for the reasons to which the Minister referred.
I can understand that because it often happens to myself. However, I do not make an issue of it when it happens on the far side.
Acting Chairman
Amendment No. 13 is ruled out of order.
Amendment No. 13 not moved.
I move amendment No. 14:
In page 7, subsection (6), line 22, after "train," to insert "aircraft,".
The purpose of this amendment is very simple and straightforward. I was examining the definition of a public place where these offences might be committed and the subsection refers to the obvious public places, such as a highway and any other premises or place to which the public have or are permitted to have access. It makes it clear that any club premises, a train, a vessel or vehicle used for the carriage of persons for reward are also included. It does not appear to me that we are talking about modern forms of travel because an aircraft has not been included. I am seeking to broaden the definition of "public place". In many ways the possession of knives or offensive weapons on an aircraft would be more serious than if they were in the possession of a person on a train or other vehicle. It was for that reason I tabled my amendment and I should like to encourage the Minister to accept it.
The effect of this amendment would be that the Bill would now provide that it would be an offence for a person to have with him in an aircraft any article intended by him unlawfully to cause injury to incapacities or intimidate another person.
I believe that this amendment is unnecessary given that section 19 of the Air Navigation and Transport Act, 1988, already makes the conduct at which the amendment is directed an offence. That section provides, inter alia, that it is an offence for a person on an aircraft to be in possession without lawful authority of any article which is made or adapted for causing injury to or incapacitating a person, or for damaging or destroying any property, or which is intended by the person in whose possession it is for such use.
As I have already indicated, I do not think this amendment is necessary but I think I should also mention that I do not think it would be appropriate to deal with a criminal offence which might be committed on board an aircraft in the current Bill. This is because there is specific legislation — i.e. the Air Navigation and Transport Acts — which is concerned with what happens on aircraft and I believe that offences which take place there should be dealt with in that particular legislation. For the reasons given I would oppose this amendment.
If the point is covered in other legislation my concerns are at rest and I am prepared to withdraw the amendment.
I should like to ask the Minister to clarify one point. The Minister has advised that the current definition of a public place does not include club premises and I should like to know the reason for this.
We want to make clear what we are talking about.
I had proposed the deletion of the entire section in preference to my shorter version of section 8, an argument I have lost for the time being, but I should like to ask the Minister to consider this issue more closely between now and Report Stage. He should consider if there is a necessity for a further definition of a public place. It is my understanding that the current definition is adequate and covers club premises. Lest we are creating unnecessary duplication, I should like to ask the Minister to have another look at the issue.
As the Deputy has raised the matter I undertake to have another look at it.
Amendment, by leave, withdrawn.
Sections 8, 9 and 10, inclusive, agreed to.
SECTION 11.
I move amendment No. 15:
In page 8, lines 40 to 45, to delete subsection (7) and substitute the following:
"(7) Where it is proposed to make an order under this section, a draft of the order shall be laid before each of the Houses of the Oireachtas and the order shall not come into effect until a motion approving of the draft has been approved by each such House.".
This section deals with the powers of the Minister to prohibit the manufacture, importation, sale, hire or loan of offensive weapons. That is a welcome provision but nonetheless the Minister is entitled to make orders under the section. The section provides that the order shall be laid before the House and become law if there is no motion to annul or object to it moved within 21 sitting days. I am opposed to such a provision in principle. All orders or resolutions emanating from legislation should be in the positive form requiring an Act of the Oireachtas in advance of them being passed into law. The fact is that there is virtually no opportunity under current orders of the House for an Opposition Deputy to move a motion within the time constraints. Effectively, it is a meaningless provision. I am asking the Minister to adopt my amendment which seeks to require the House to actively pass such a resolution.
When such matters go before the Whips, on representation from the Government Whip, the motion is explained in brief terms and nine times out of ten it is passed by the House without debate. This is a better process in that the House will be given an opportunity to decide if there is an issue to be debated. In that event a limited period could be allowed for debate and I do not think it would take any more than 30 minutes of the time of the House. The formula I am suggesting is better than the standard formula which operates and means that the House will not address such resolutions at any stage.
In principle I prefer the approach of using the affirmative resolution, particularly where matters of substance are involved. I get the feeling, and I am not pointing the finger at the Minister, that the Executive are normally advised by the public service that the easier course of action is not to go by way of affirmative resolution but to follow the procedure laid down in the section. Where matters of substance are involved I lean towards the affirmative resolution as being the preferred course to follow from a democratic point of view. I am thinking in particular of the Bill dealing with genetic fingerprinting under which regulations will be a major part of the approach. Members should have an opportunity of debating regulations made under that legislation.
The type of order to be made by the Minister under the section does not appear to be of major substance and on that basis, while agreeing with the general principle put forward by Deputy McCartan, I do not think it is the type of order on which we should go to bat. I would give a higher priority to seeking an affirmative resolution in regard to many other orders. This section might be appropriate for the negative resolution approach.
This amendment is opposed. The purpose of the regulation making power provided for in section 11 is to empower the Minister for Justice to prescribe weapons, other than firearms, which are dealt with the Firearms Acts, whose manufacture, importation, sale, etc. will be prohibited.
The types of weapons which will be prescribed in the regulations will be weapons which are considered particularly dangerous or undesirable and for which there is no legitimate use or need. The Garda authorities are being consulted in this regard and a tentative list of such weapons has been compiled. Items already on this tentative list are as follows: flick-knives, belt buckle knives, throwing stars, hand spikes, foot claws, judo sticks, lead filled sap gloves, lead filled flat saps and knuckle dusters. What a charming list.
There will undoubtedly be need to amend these regulations from time to time as new weapons come on the market. I will rely very heavily on the advice of the Garda authorities as to what weapons should be prescribed. I think it must be accepted that they are the experts in this area.
I do not see any need for the elaborate procedure proposed in Deputy McCartan's amendment whereby both Houses of the Oireachtas would have to pass a motion of approval every time regulations may be needed to prescribe some new exotic weapon with a Chinese name which comes alone. This would simply cause delay and would serve no useful purpose.
The negative resolution procedure, which the Bill proposes, is suitable for cases where the Oireachtas have approved of the policy in general and have decided to authorise the Minister to select the cases where it is appropriate for the policy to be applied but to reserve the power to ensure that the Minister exercises the power correctly. The affirmative resolution procedure is appropriate where large questions of policy are involved and the approval of the Oireachtas should be sought in advance. In the case of section 11 the Oireachtas will have approved the policy that restrictions such as mentioned should be imposed in respect of articles of certain kinds and, as I have mentioned, it is appropriate for these to be specified from time to time as necessary subject to the overriding control of the Oireachtas.
I oppose this amendment.
I accept that the Garda would be considered the experts in this area but not exclusively so. We are representatives of the people. We are the people in touch with what is going on in our constituencies and in our communities and we have a certain expertise that should be listened to. The Minister suggests that it is a cumbersome procedure. It is no more cumbersome than the negative approach that is being provided for. In both you must drawn up an order and in both cases it must be laid before the Houses of the Oireachtas. The only difference required is that it be the affirmative, that the Whip presents it at a Whip's meeting and says: "This is the Order, this is why we are bringing it in. What do you have to say about it?" In nine times out of ten, the matter appears on the Order Paper and is taken without debate but there may well be an occasion when Deputies feel it would be important to debate it. For someone who says it is not really an important provision, it is dealing with the manufacture, importation, sale, hire or loan of certain weapons of offence and their availability in the community. The Minister, by his own litany of intended contemplated weapons illustrates the importance of these martial art type weapons that are becoming more and more popular in the community. These should be controlled or prohibited by the legislation. They are unwelcome as has been made clear in the contributions to the debate this morning as well as on previous days when this provision was debated. Deputies have shown a wide range of knowledge and information on the subject. It was through our arguments on this side of the House that the definition of stun gun will be extended. That is an important item.
The Minister has agreed that the question of the bow will be looked at afresh. That is another illustration of that debate and information which comes from the Floor of the Chamber can often be important and useful. If we receive notice of a resolution that does not seem to cover enough or that is not covering something adequately, it gives us the opportunity to say so. In practical terms, the current operation of the rules of the House mean that under subsection (7), we will not have that input. That is why I think the amendment is important.
Is the Deputy withdrawing the amendment?
Certainly not.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Section 11 agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
This section deals with a member of the Garda Síochána who may arrest without warrant any person whom he suspects with reasonable cause to be in the act of committing an offence under sections 8, 9 and 10. Section 8 (1) and (2) deal with possession. Section 9 deals with possession and section 10 deals with producing an article capable of causing injury etc. Section 8 (3) deals with the case where a person is in possession of a weapon with intent to cause injury. I know it is possible for a member of the Garda Síochána to suspect that a person has a weapon in his possession but is it possible for a member of the Garda to suspect that a person not only has a weapon but also has intent?
There may be reasons to infer that.
Question put and agreed to.
SECTION 14.
I move amendment No. 16:
In page 9, line 15, to delete "or a Peace Commissioner".
This is an amendment which is succinctly to the point. It proposes that we delete from the section the power being conferred on a peace commissioner to issue warrants of search and seize under this section.
I outlined in more detail on Second Stage the reason I have reservations about the giving of powers to peace commissioners. Those reservations are based on my experience of that institution and office during the years I worked as a practising solicitor. My firm belief is that these office holders were incapable and, indeed, on some occasions unwilling to exercise their functions and authorities in a proper quasi judicial way. I illustrated the occasion where it was brought most vividly home to me on visiting Lucan Garda station one Sunday morning to visit people in detention; while waiting for them to arrive into the room, I began to fidget with the rubber stamps lying on the desk in front of me only to establish to my horror that the rubber stamp lying in the Garda station — obviously available for use whenever needed — was that of a peace commissioner. That exemplifies the unfortunate development to which the office of the peace commissioner has now drifted. For his own convenience the man has said: "Look, do not annoy me, if you want a search warrant, an arrest warrant or a fingerprint warrant and so on, there is my stamp, stick it on it." It was brought home further to me on another occasion on entering an hotel, where I knew that the proprietor was a peace commissioner and when I observed a number of gardaí from the local Garda station standing at the reception desk while the receptionist was busily signing their summonses and warrants on behalf of the hotel proprietor; he was too busy to do so. This happened in daylight where everyone who was passing by could see this young girl busily appending to the document the signature — so-called — of the peace commissioner.
It is time to review entirely the office of peace commissioner; whether or what function they serve must be questioned. We must leave that aside as that is not the debate here today. The debate today is on whether we afford to the peace commissioner the powers, based on sworn information from a member of the Garda Síochána, to issue warrant of search and entry and seizure of goods. The power is needed because the home is considered the castle. The Constitution recognises the importance of the home and property of the individual and we are legislating for potential incursions into the Constitutional rights of citizens. We should only do that on the basis of a judicial directive, that of a District Court. There are enough of them around. They are available as often as necessary. It presents no difficulty in any part of this country to find a district justice, at any hour of the evening, for the purposes of obtaining the document necessary. Anyone who suggests otherwise is not being entirely frank on the matter. Consequently, that is how I think the matter should be dealt with. I acknowledge that courts have judicially pronounced that the signing of a search warrant is not an unconstitutionally infirm procedure from the point of view of the peace commissioner but his role has been sufficiently eroded. Previously he was entitled to initiate proceedings by the signing of summonses to prosecute but the courts have now said that that is not something a peace commissioner should do.
The functions of peace commissioners have been eroded, and correctly so in view of the sad practices by some of them. I am not saying that every peace commissioner is guilty of the slipshoddiness I referred to earlier and on Second Stage but we should not, as a matter of principle, continue to extend the quasi-judicial powers of peace commissioners. There are many other functions they can carry out such as signing and authenticating documents for passports, registers of births, marriages, deaths etc. If they want to continue to do this then so be it but I would call a halt when it comes to giving them the authority to authorise members of the Garda to invade homes and seize the property of individuals.
The view presented by Deputy McCartan in regard to the availability of district justices is a typically Dublin one. I do not know whether Deputy McCartan is aware of the position in my part of the country where our district justice lives in Cork city, which is about 100 miles away from Castletownbere. Under this section the Garda Síochána may seek a search warrant if they suspect that an offence has been or is being committed. If they want to search a premises over the weekend they will have to travel 100 miles to Cork city to locate the district justice and get him to sign the search warrant. This is all very well in Dublin where one third of our population are living within 30 miles of one another but it is a different story in the country. From a practical point of view it would be very unwise to restrict the issue of search warrants to district justices.
I do not think the question of how peace commissioners discharge their functions can be addressed by removing their responsibilities. Deputy McCartan is doing an injustice to the very many peace commissioners who are conscientiously and responsibly discharging their functions, by suggesting that possibly one or two are not so doing. Perhaps the warrants should be removed from those people who are not discharging their functions properly and the matter brought to the attention of the Minister who signs their warrants for them. This does not detract in any way from the honourable traditions and very responsible behaviour of many peace commissioners throughout the country. A general debate on the role of other peace commissioners is a matter for another day in the context of a review of our court practices and procedures but it should not be done by removing from the peace commissioners the power to issue search warrants under this Bill. As I have said, from a practical point of view this would be a very unwise move.
I concur with what Deputy O'Keeffe has said. Like Deputy McCartan I live in an urban area and while I agree with him that there are a fair number of district justices it is nothing like the number of peace commissioners. This section is dealing with a situation where time will invariably be of the essence. Deputy McCartan's point could be met by redrafting this section to read "... a district justice or, if he is immediately unavailable, a peace commissioners". I could not support any suggestion that this power should be confined to district justices.
I agree with what Deputy O'Keeffe and Deputy O'Dea have said. The effect of this amendment is that it would not be open to a peace commissioner to issue a search warrant under section 14. I believe a peace commissioner should be in a position to issue these warrants and in that regard it must be borne in mind that circumstances might well arise where a garda would require a warrant but a district justice would not be available for exactly the reasons given in regard to distance, etc., by Deputy O'Keeffe.
I understand that this case was decided in the High Court in July 1987 where it was held that the issuing of search warrants by peace commissioners was not contrary to the Constitution. In addition, the power to issue warrants conferred on peace commissioners under the Bill is practically identical to those powers which have been conferred on commissioners by recent legislation which has been passed by both Houses. As well as that the search power under section 11 will be applied mainly to commercial premises and not to private residences. The power relates only to offences under section 11, which are trading offences.
With regard to the general question of peace commissioners, I must say that Deputy McCartan took a broad brush and seemed to paint everybody with the same colour as the commissioners in the two examples he gave. On the face of it there was misuse of the warrants by the peace commissioners and I would be grateful if Deputy McCartan would give me the details of the two examples he mentioned so that I can have them examined. If the circumstances are as we were given by the Deputy — I have no reason to doubt the Deputy's assertions — I will withdraw the warrants of the two commissioners involved. Clear specific guidelines are laid down for peace commissioners for the operation of their duties and if they go outside those their warrants can be withdrawn. I invite the Deputy to submit details of the two cases to me so that they can be examined immediately.
We are taking this issue a little bit too lightly. The balance of convenience, because of the distance involved at rural level, is being presented as one reason why what I now believe to be the decrepit office of peace commissioner should be defended. I instanced two cases of the misuse of warrants but I believe there are a myriad of such cases. I have to deal with these people in police stations when they have acted virtually as puppets for police officers by looking for people to be put into custody, not wanting bail to be fixed, etc.
As the Deputy knows, both custody and bail are now gone.
I know but that has been my experience over the years in dealing with these people. They were unable to take any sort of independent view whatsoever and were as much a part of the police woodwork as the desks, benches or chairs in the rooms in which we sat. The notion that they are capable of fulfilling a quasi-independent judicial role is long gone. This function is now reserved for people who serve political parties in Government well and is a way of acknowledging their service to the party. That is not the basis upon which we should be deciding who should be appointed for the purposes of issuing warrants to invade homes, seize property or deal with other transgressions which would otherwise be ones of constitutional right. I want to make that point very clearly.
I have made my point on the basis of my experience of working at close hand with this institution over the years. I make this point with regret but nonetheless with conviction. A far better way of dealing with the geographic diversity and non-availability of district justices — this issue has begun to be addressed slowly by the Law Reform Commission, and I accept that there are difficulties in rural areas currently — is to expand the law to use modern conveniences like fax machines for the transmission of warrants or sworn information to and from the offices of the district justices. It is a far more preferable arrangement, with all the problems that it could present than dealing with the institution of the peace commissioner.
This is an issue that I feel very strongly about. Having spent 15 years working in close proximity to the institute of the peace commissioner, I am not prepared to see myself legislate or be part of an agreement to legislate for the further extension of their powers, and I am sorry that the issue has not been taken up in that light. I appreciate that there are difficulties on all sides here, having appointed wholesale personnel to the institution of the peace commissioner over the years. Let there be absolutely no doubt about it that the first opportunity I ever get to deal with the peace commissioners I will be abolishing the office entirely.
I did not wish to interrupt the Deputy at the time but I think the word "puppet" used in reference to peace commissioners should be withdrawn.
I do not think that in the context in which I used it is conveyed anything of the offence that you make of it. The word "puppet" is a very common word in the English language; I see no difficulty with it but, if it is offensive to your ear, let it be withdrawn.
I listened to that intemperate outburst by Deputy McCartan in relation to the role of the peace commissioner and his citing of his own 15 years of practice as a solicitor. I do not doubt what he has said in relation to his 15 years of practice, but I would be more inclined to go along with the High Court myself rather than listen to a solicitor with 15 years practice. This case was decided by the High Court in July 1987 and it was held that the issuing of search warrants by peace commissioners was not contrary to the Constitution.
No one argues with that. That is not my point. If anything, I acknowledged that very point long before the Minister alluded to the High Court decision. I am making the point, based on experience, that the practice of peace commissioners in the area of authorising peace officers to invade our constitutional rights is not a happy one and that we, as legislators, should not be extending it.
Amendment put and declared lost.
Section 14 agreed to.
SECTION 15.
Amendment No. 17 not moved.
I move amendment No. 18:
In page 9, between lines 46 and 47, to insert the following subsection:
"(4) Where a member of the Garda Síochána decides to search a person under this section, he may require the person to accompany him to a Garda station or to a temporary Garda centre or Garda booth for the purpose of being so searched at that station, centre or booth.".
Acting Chairman
Amendment No. 19 is related so I suggest that it be taken together with No. 18.
My amendment would be extending the powers of the Garda Síochána. I tabled this amendment following some practical advice I received from a senior member of the Garda Síochána. He pointed out that the power of search without a warrant lacks pragmatism under certain circumstances. He referred to the problems that would arise at a major rock concert where there is a very large number of people present when the number of gardaí that might be available to deal with the problem might be very small in proportion to the big attendance. In that situation it might not be prudent or practical, in certain circumstances, to use the power of search on the spot. From the point of view of the numbers involved, if one had only two or three gardaí to deal with the situation I could certainly understand why it might be difficult to carry out a search on the spot. Therefore there should be powers to enable the gardaí in exercising the power of search under this section to require the suspected person to accompany the garda to a Garda station. That power is included in the Misuse of Drugs Act. I refer in particular to section 12 of that 1984 Act which specifically provides that a member of the Garda Síochána who decides to search a person under that section may require the person to accompany him to a Garda station. So there is a precedent for the approach which I am suggesting. I am also including in my proposal the power not just to bring the suspected person to a Garda station but also the power to bring that person to a temporary Garda centre or Garda booth for the same purpose. I suggest this because I am told that rock concerts and other such gatherings may take place in areas which are a good distance away from a Garda station. I am further told that where big numbers are expected it is quite usual for the Garda to erect a temporary Garda centre or Garda booth. In that situation that would be the obvious place for any search to take place rather than having to travel five or 10 miles away to a Garda station.
There is also the question of privacy. I am further advised that an offensive weapon could be a strong string with a number of loose balls on it or jagged edged blades. That type of offensive weapon could be easily concealed next to the body and would not be evident on visual inspection. I can see that Garda would not wish to invade one's privacy with so many people around, so I would urge the Minister to accept my amendment. It would improve the Bill if we include a provision of the kind I now propose and I urge the Minister to accept it.
The primary purpose of this amendment, as outlined by Deputy O'Keeffe, is that when a garda exercises the powers of search under section 15 he will have adequate opportunity to carry out the search. I do not believe it is necessary to provide that when a garda is searching a person under 15 that he should take that person to a Garda station or otherwise detain him. All that a garda would be required to do would be to frisk the person which could be done in seconds, since the type of dangerous article which the garda would be looking for would be easy to detect. Furthermore, there is already a power of arrest without warrant for offences under sections 8, 9 and 10 which could be used in an appropriate case where a person refused to allow himself to be frisked. Drugs are different because they can be hidden in ways and in places where a knife, for instance, could not. However, the Deputy has made the point in relation to taking persons to a side booth, say for the purpose of a more thorough search to find if there are some of these more exotic weapons which can be quite small and dangerous. If the Deputy will agree to withdraw his amendment I will see what I can do on Report Stage in relation to this halfway house suggestion.
That is a fair response. In the circumstances and for the purpose of having the matter examined further by the Minister I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 9, between lines 46 and 47, to insert the following subsections:
"(4) A member of the Garda Síochána, exercising a power of search under this section, may detain that person being searched or requiring to be searched for such reasonable period of time to facilitate such search.
(5) In determining how and where a search under this section shall be carried out, a member of the Garda Síochána shall have due regard for the privacy and bodily integrity of the person being searched.".
Amendment No. 19 has already been discussed. It is not being pressed?
That is not my understanding but my colleague did not tell me a great deal about it one way or the other. My understanding is that he is pressing it.
It is a pity he had to leave.
He has a good reason, and I mean no disrespect to the Minister or the House.
If Deputy Rabbitte is requesting that we put the question on amendment No. 19 it seems to me it has to be put. We will not proceed to discuss it further.
Then all I want to say is that it is very similar to the amendment just moved by Deputy O'Keeffe. The consideration and motivation are the same. However, it goes on to specify that where a person is so detained for the purposes of a search being carried out due regard should be had to the requirements of privacy and bodily integrity. The Minister referred to frisking and so on. If the Minister takes that on board and comes back on Report Stage, what Deputy O'Keeffe said will meet the situation.
I will have a look at it.
Amendment, by leave, withdrawn.
Question proposed: "That section 15 stand part of the Bill."
I want to question the necessity for this section. As I understand it there is a number of statutory powers which authorise the search of a person without effecting arrest. There are at least six different Acts so providing at present. Let me inquire from the Minister as to how this will improve or change provisions in previous legislation. I suggest to him that a specific power of search is conferred by the following Acts: section 29 of the Dublin Police Act, 1842, section 30 of the Offences Against the State Act, 1939, section 23 of the Misuse of Drugs Act, 1977, section 8 of the Criminal Law Act, 1976, section 22 of the Firearms Acts, 1925 to 1971 and section 72 of the Wildlife Act. While there appears to be adequate legislation at the moment, I wonder why it is necessary to change, if we are changing, from existing legislation and in what way this will change existing legislation which, in one case, has been there for 150 years.
This section provides the Garda with power to search persons for offensive weapons without warrant in specified circumstances. The important feature of this section is that it gives the Garda Síochána powers to search for weapons in crowd situations — which is what we are really trying to get at — where trouble is likely to occur, for example, football matches and pop concerts. Such a power is necessary if the Garda are to be in a position to enforce the new legislation on offensive weapons.
Question put and agreed to.
Section 16 agreed to.
NEW SECTION.
I move amendment No. 20:
In page 10, before section 17, to insert the following new section:
"17.—Section 4 of the Vagrancy Act, 1824 (as extended to Ireland by section 15 of the Prevention of Crimes Act, 1871) is hereby repealed.".
I am simply proposing that now the opportunity presents itself to us we do not withdraw just a section or part of section 4 of the Vagrancy Act, 1824. I am proposing, as has been the call for many years, that we get rid of that invidious legislation, that entire section of the 1824 Vagrancy Act. This is the section that has notoriously been used and recognised as the means of dealing with our homeless, poor and destitute people. For years the Simon Community have campaigned and argued that it should be done away with in its entirety. I would like the Minister to indicate the position here. My suspicions are that by reason of what we did in the recent Larceny Bill the 1824 Act is effectively redundant. I am simply seeking to have the formal declaration made in the course of this important legislation that the invidious section 4 of the Vagrancy Act, 1824, is hereby done down once and for all.
I am opposing the amendment. A considerable number of offences were provided for in section 4 of the Vagrancy Act, 1824, and detailed discussions on these can be found in the Law Reform Commission's report on vagrancy and related offences. In that report the commission considered the offences in section 4 of the 1824 Act and related Acts and made detailed recommendations in relation to them. They recommended that some of the provisions of the section should be repealed without replacement but others should be replaced by modern, up-to-date provisions. It is not, therefore, simply a case of replacing section 4 of the Vagrancy Act, 1824, simpliciter. Thought, very careful thought at that, has been given to replacing some of its provisions in the way recommended by the Law Reform Commission. I agree with the Deputy that section 4 should be repealed in its entirety but I hope he will appreciate that this will have to wait until other more urgent legislative priorities have been disposed of and I have had the opportunity to consider what replacement provisions may be required. However, this Bill is not the appropriate vehicle for such an exercise. It is far too complex. I agree that the section should go but not in the simplistic way the Deputy proposes.
In relation to the larceny legislation there are other items in section 4, begging, fortune telling and all that sort of thing, that obviously the legislation does not cover.
I noted, as the Minister made this point either in this House or in the Seanad, on Second Stage, that the more invidious portions of section 4 of the Vagrancy Act had been expunged over the years in some shape or form. What is left in the Vagrancy Act that we want to avail of? The Minister mentioned begging and fortune telling. If there are provisions in there for dealing with begging and fortune telling and that is all we are still holding on to, then let us be honest and straightforward enough to recognise the age in which we live and get rid of that section in its entirety. It is a gross anachronism, offensive to all good thinking people and has been the butt end of a great deal of criticism from successive Governments in this administration that we cannot get beyond a section of the law introduced to deal with wayward soldiers returning from the Napoleonic wars and displaced citizens from the country moving into the cities, a phenomenon causing problems in that era that had to be dealt with by this legislation. Despite our revolution in 1921 and all the years we have had this legislation, we cannot get beyond the section. We are never going to get beyond the section. The Minister has indicated that there are all kinds of other demands on his time and other priorities of government and legislation. I am asking him to do no more than leave the beggars on the street, leave the fortune tellers wherever they carry on their trade but let us get rid of section 4 of the Vagrancy Act and be done with it.
Section 4 also covers such things as indecent exposure and I am sure the Deputy would not suggest that the provision in that regard should be got rid of.
That is adequately covered by the 1935 Act.
I have already accepted the need to be rid of——
The Minister for Health's gear could be under that category as he appears in today's paper.
This is serious. I fully accept the need for getting rid of section 4 and my intention is to bring in amending legislation which will remove it for all the reasons the Deputy has given and a number of others.
I take it Deputy McCartan is not pressing his amendment.
I am inclined to press it. Accepting fully the Minister's good wishes, and the practical difficulties he is going to face as a Minister in Government trying to convince that busy administration that this matter should be addressed, and that the position of pedlars, poor people, beggars and fortune tellers should be looked after. I ask the House to record its vote today that it should be sent on its way. It may help the Minister in presenting his case to Cabinet.
On behalf of the Labour Party I wish to say the Minister has been bringing a great deal of legislation before the House and when he threatens us again with bringing forward legislation, he is quite likely to do so in the very near future. We would all like to see him taking the initiative in this area, but having given us that assurance, I am prepared to accept it.
Thank you, Deputy.
I would like to see this question considered in the context of comprehensive legislation rather than in the manner I understand Deputy McCartan is seeking. I would like to see comprehensive legislation in this area.
There is no comprehensive legislation promised.
I can assure Deputies that it is my intention to bring forward this legislation, and the House is at one in relation to section 4 of the Vagrancy Act. I can assure the House that the legislation will be brought in. The manner in which it has been proposed in this House is by a simple swipe with the back of the hand, and that is not the way to tackle the situation.
In the past few moments has Deputy McCartan been to Damascus?
I am merely acknowledging the fact that my collegues have climbed rapidly down in the cause of comprehensive repeal of the legislation. It does not need it. Section 4 of the 1824 Act is a singular offensive section of the code of law that we are still hanging on to and which has been in existence for about 160 years. We have not managed to deal with it in the lifetime of the State, and I have grave doubts that it will be dealt with, but recognising that my colleagues on my left have disembarked, I do not see any point in pressing the matter. I urge the Minister to see that this pernicious legislation is sent on its way quickly.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage.
Next Tuesday, subject to the agreement of the Whips.
Report Stage ordered for Tuesday, 13 March 1990.