Dáil Éireann debate -
Wednesday, 9 May 1990

Vol. 398 No. 5

Death of Cardinal Ó Fiaich. - Firearms and Offensive Weapons Bill, 1989: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 4:

In page 6, to delete lines 32 to 42, and in page 7, to delete lines 1 to 4 and substitute the following:

9.—(1) Subject to subsections (2) and (3), where a person has with him in any public place any knife or any other article which has a blade or which is sharply pointed, he shall be guilty of an offence.

(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that he had good reason or lawful authority for having the article with him in a public place.

(3) Without prejudice to the generality of subsection (2), it shall be a defence for a person charged with an offence under subsection (1) to prove that he had the article with him for use at work or for a recreational purpose.".

—(Minister for Justice)

Mr. J. O'Keeffe

I want to make it clear that I heartily endorse the effort to tighten the law to limit the availability and in particular the use of offensive weapons such as knives. From that point of view the approach adopted and the thinking behind that approach finds great favour with me. I have no doubt that the ready availability of knives of all kinds is a cause for great concern. I am very anxious to limit that availability and in particular to limit the carrying of such offensive weapons in public places. I indicated in my earlier remarks how appalled I was to read in the Irish Independent on Monday the article outlining the ready availability of these knives, the broad range of such weapons and in particular the very cheap cost of such knives, running to as low as a couple of pounds.

I can say directly to the Minister that I am very much with him in his thinking here. In the proposal as it is drafted at present I want to ensure that the new provision will result in good law and will not leave any openings for lawyers in defending people who carry these awful weapons. From that point of view I am anxious that the Minister would deal with the following points. The proposal is that a person who has with him in any public place a knife or any other article which has a blade or which is sharply pointed shall be guilty of an offence. Subsection (2) provides that it shall be a defence if the person so charged shows he has good reason for carrying such a weapon. I wonder whether it is necessary to give some outline of what a good reason would be. There is no such definition in the Bill. Will it be a matter for the court to adjudicate or will it be left to the Garda Síochána or the DPP to decide what would be a good reason? Another defence would be lawful authority. Again, there appears to be no definition of "lawful authority" for carrying these knives in a public place and it is important that such a definition be given.

The next subsection provides that it shall be a defence for a person charged with an offence under subsection (1) to prove that he has the article with him for use at work or for a recreational purpose. The question that arises here is whether somebody who might use such a knife in the course of work, such as a fisherman, would be entitled to have the same knife in his possession in a public place, for instance, at a football match on Sunday. There is no definition of what is a recreational purpose. Is this a loophole? What has the Minister in mind in including this particular phraseology? The House would wish to be satisfied about the points I have raised. I emphasise I am not nit-picking. I am anxious to ensure that the Minister's thinking, which I heartily endorse, results in good legislation appearing on the Statute Book.

I will give an example of the type of query that can arise. I carry a penknife. I do not carry it for a work or recreational purpose; I normally use it to pare tobacco for my pipe. Will I be guilty of an offence for carrying my penknife in my pocket from now on? If that is the intention of the House, I will find some other way to pack my pipe. It is important that law abiding people should be aware of the scope of the provision in this Bill as drafted.

There is one further point on which I would like clarification. The three new subsections, as far as I can see, will replace the existing subsection (1) because the proposal is to delete lines 31 to 42 on page 6 and also to delete lines 1 to 4 on page 7. That means that the old subsections (2) and (3) still stand. Is that the intention? The old subsection (2) deals with any flick-knife. Is it the intention that that provision will stand or is the intention that it would be covered by the new omnibus provision because, of course, any flick-knife would be covered by "any knife or any other article which has a blade"? The amendments do not suggest that the existing subsections (2) and (3) be deleted. Does the Minister intend letting subsections (2) and (3) stand? If so — and this is a very minor point — they would need to be renumbered because we are including new subsections (1), (2) and (3).

In the light of the fact that this is a new ministerial amendment on Report Stage, I am very much behind his thinking but this would need to be teased out further and explained more fully so that the House can be happy that the end result will be good law.

Mr. Kavanagh

I join in the welcome for the extension of this section. It is very hard to define the difference between flick-knives and other types of knives. The Minister has acknowledged this by the example he quoted. Unfortunately, certain people use knives to commit serious crime. It is unfortunate that law abiding citizens are having their civil liberties curtailed because of these people, and we all regret that. It would be very difficult to produce a Bill where certain knives are dangerous and others are not. All knives in the wrong hands are dangerous.

For the benefit of the general public the Minister should explain that traditionally certain groups use knives for recreational activities and for show pieces. I am thinking particularly of the scouts, girl guides, etc. Are they now to be prevented from carrying knives? Are knives which are used to whittle away at pieces of wood to start camp fires, etc., to be banned? Another example was given by Deputy O'Keeffe of the fisherman who carries a knife to gut fish, to cut lines or to make adjustments to parts of boats, etc. Will he be covered by this section?

When one talks about being in possession in a public place, if one has a knife in a car, is that also regarded as carrying a knife personally? If a person parks his car in a public place and there is a knife in the car does this section cover that area of activity? One can throw things into the back of a car and find them months afterwards when looking for them. Other people who use the car may leave something like a knife in it for whatever reason. Does this section cover that? Also it would be useful for the general public to know what is meant by another article which has a blade or which is sharply pointed. This could run into such a long list of articles that it would be difficult to know where it begins and ends. The Minister has a difficult task to cover all these offensive weapons but it would be useful for us all to be clear about where and when one can or cannot carry a knife and what other articles are to be regarded if he includes articles which have blades or are sharply pointed. Perhaps the Minister will tell us so that we and the general public can be aware if we are committing an offence when we innocently bring one of these articles along with us.

Mr. McCartan

I welcome the amendment the Minister proposes to deal with possession of knives and other weapons of offence and injury. The Minister and the House will recall that I argued very strongly on Second Stage for a movement in this direction perhaps further than the Minister has suggested, and on Committee Stage I had prepared an amendment to supplant the section in its entirety. While the Minister has not taken on board everything I proposed at both those Stages, what is here is a vast improvement on what was originally intended in the Bill and for that reason I welcome it fully and support the amendment as it now stands and the section as it will be amended.

The Minister has indicated quite correctly that the areas and opportunities for the use of weapons such as knives are not confined to the multifarious areas indicated in the original section 9 — dance halls, dance marquees, discotheques etc. or other such public places — and he referred to the tragic, unfortunate incident that occurred on O'Connell Bridge in our city when a young man was here on a visit to celebrate his intended wedding and his best man was brutally attacked and killed. Therefore the areas of recourse to these weapons are not confined to places of recreation or resort as originally suggested. It is correct that we try to address that.

I believe another argument had to be addressed in the drafting of section 9. That was the complexity and virtual unworkability of the section as originally drafted from the point of view of the police officer seeking to enforce the section and the subsequent problems that might arise at a court hearing where the various loopholes could be worked on, exploited and developed in an attempt to evade conviction of any prosecution that would arise from an arrest under the Bill and the section. The Minister has adopted a general proposition that in any public place the carrying of a knife, blade or other sharply pointed weapon will be an offence, and goes on to offer the two standing defences, one of good reason or lawful authority and the other the carrying of one such implement in the course of a person's useful work or recreational purposes. The Minister has addressed the issues we have raised out of concern in maintaining the balance.

I understand, though it is not explicitly made clear, that subsection (2) of the original section will stand in relation to the flick-knife and that it will become subsection (4) of the new section. I suppose one must accept that the flick-knife is a particularly heinous and vicious implement worthy of its own considerations not only in policing but in prosecution and that there are greater penalties by way of trial on indictment at the election of the DPP relating to that implement should a prosecution occur. It is difficult to argue with that, given the fact that the overall original approach has now been taken of simplifying in a straightforward proposition that the carrying of all weapons in a public place will be unlawful.

I have to raise some question about the issue of "public place". I raised this on Committee Stage and wondered why under the Bill the Minister sought to include a specific definition of it. His amendment proposes to retain the original subsection (6) defining "public place". I had suggested that that is a concept well and truly determined and defined under existing legislation by the Judiciary, and I raised by way of query whether there was a concern that by including a further definition of the concept we might be confusing already pretty clear lines of thought and idea on that concept. Has the Minister had an opportunity to look at that issue in the course of the review for Report Stage?

While throughout section 9 the Minister refers to offences of a person having with him — or her for that matter — a weapon of offence, is he satisfied that is an adequate concept? Should the section cover "possession or control", the wording used usually in dealing with this area? In the area of firearms the Legislature has previously provided for the concept of not only immediate possession but of control. Take the simplistic idea of the hardened leader of a gang looking to a fall guy or junior member of a mob or gang to carry the weapon. In the current wording of the section it would not cover a gang leader for whose purposes the weapon is being carried or conveyed to or from the scene of a crime. The wording here is "with him in any public place". Is that adequate to deal with all the eventualities that could arise? Perhaps we should use wording as I suggested in the original amendment of a person "having in his possession or under his control in any public place a weapon of offence".

I welcome what the Minister has done here. It is a good development and means we will have more effective, much more easily employed legislation once this amendment is put in place.

Mr. Burke

In relation to the last point the Deputy made, rather than the wording he suggests we believe the wording that is here — having the article "with him"— is broader than "under his possession and control" and will be more effective to achieve what everybody in this House wants to achieve.

I thank the Deputies for their welcome for this amendment. Obviously, the amendment is not intended to interfere with the pipe-smoking activities of Deputy O'Keeffe or the boy scouts or girl guides or anything of that nature. That is covered by "good reason or lawful authority" and "for use at work or for a recreational purpose". Common sense has to prevail in the operation of this and I have no doubt that will be the way the Garda will approach it.

There is a heavier penalty for having a flick-knife and that is why it is dealt with separately from the others. In this context, "car" is regarded as a public place. Regarding why there is not a list of articles, we felt that rather than having a list we would just cover "other articles" as such. We want this as broad as possible. There is nothing in Deputy McCartan's point about the definition of "public place". He seemed to be saying there is a general judgment rule of what "public place" means in a statute. He will be aware there is nothing of the kind. As he said, there is a definition of "public place" in section 3 of the Road Traffic Act 1961 which provides that: " `public place' means any street, road or other place to which the public may have access with vehicles, whether as of right or by permission and whether subject to or free of charge' ". That is not what is wanted in section 9 of the Bill we are discussing here today.

I can say to the Deputies that the intention is as outlined in my opening remarks, to come to grips with the problems we have had in our streets and the prevention of the use of knives which has resulted in death and injury, and not just knives but other articles which have been altered in such a way as to have a lethal or very harmful effect. I believe that as we have drafted it here, it gets to what this House wants to achieve and in its operation, as in the operation of all legislation, common sense will have to prevail. It is not intended, nor will it ever be, to prevent decent people going about their work or smoking a pipe.

Mr. J. O'Keeffe

There are other restrictions against that. May I ask one question?

Acting Chairman (Mr. Wyse)

I will allow one question.

Mr. J. O'Keeffe

The Minister has put my mind at ease on both points. Regarding draftsmanship is it necessary to have a formal amendment to change the numbering? I take it from the nod from the official that it is not necessary. Some of the numberings in the subsection will also have to be changed. For instance, the penalty provision in relation to flick-knives is covered under the present subsection (5) (b) and I take it that follows as a consequence.

Mr. Burke

That is just numbering and takes place at the printing stage. Amendments are not necessary for it.

Amendment agreed to.

Mr. J. O'Keeffe

I move amendment No 5:

In page 7, line 40, after "train," to insert "aircraft,".

I tabled this amendment in the light of some concerns I have about the definition of "public place". Obviously I want to ensure again that no loopholes will be available for thugs and criminals carryings offensive weapons. I tabled the amendment on the basis of including aircraft, but let me make a point. I wonder whether we are wise to provide for a public place in the way the provision is now drafted, whether the approach should be to include any place other than a person's residence or place of work and define the situation the other way round. If, say, a robber has gained access to the house of another person and is in possession of offensive weapons; he has not committed any offence other than gaining access to the House, and some vigilant member of the Garda Síochána arrests him on the spot it could be said that at that stage he was not in a public place although he may have been in possession of a flick knife or some other offensive weapon. Are we leaving a loophole in the Bill which will permit such a person to escape? Will his lawyer be able to argue that he was not in a public place if he was found in a private house? The provision is drafted on the basis that the offence arises when the offender is in a public place. I should like to ask the Minister to consider that point.

I appreciate that the point I have raised is broader than my original amendment in which I sought to ensure that when there was a reference to a train or a vehicle used for the carriage of persons for reward an aircraft should be included. I am concerned about an aircraft because of the danger of a person being found in possession of an offensive weapon during a flight. Such a person would be a greater danger to the passengers of the aircraft than a person found in possession of a similar weapon on a train. There is a danger of hijacking an aircraft. There is a need to cover aircraft and we must ensure that we are not leaving a loophole by leaving the definition as it is in the Bill. We should ensure that a person who is found in a house with nefarious intent will not be able to plead successfully that he was not in a public place.

Mr. Kavanagh

It is my view that the Deputy's concern about aircraft is covered as far as international flights are concerned, but I wonder if domestic flights are covered. We must bear in mind that a person boarding an aircraft may have a knife in his or her possession, or in their luggage, with the intention of using it on some sporting activities and I wonder if that will be considered an illegal act under the Bill. It is my understanding that incidents that occur on aircraft are covered by international aviation agreements.

Mr. Burke

Deputy O'Keeffe raised the point about a thug entering a person's home carrying a knife and asked if he could argue that he was not in a public place. I should like to tell him that section 10 covers trespassing with a knife, weapon or other article. In relation to the amendment tabled by Deputy O'Keeffe, I should like to say that the effect of it would be that the Bill would provide that it would be an offence for a person to have with him on an aircraft any article intended by him unlawfully to cause injury or to incapacitate or intimidate another person. The amendment is unnecessary given that section 19 of the Air Navigation and Transport Act, 1988, already makes an offence the conduct at which this amendment is directed.

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 on whose possession it is for such purpose. Even if an amendment of this nature was thought necessary it would be more appropriate to deal with it in terms of the Air Navigation and Transport Act which is a body of legislation specific of the particular problem that arises in relation to aircraft and airport security and not in a general criminal Bill. The offence referred to by the Deputy is covered in the 1988 Act. I should like to tell Deputy Kavanagh that commuter and domestic flights are covered.

Mr. McCartan

Is there any harm in making it an offence twice over? In many instances in our courts people can be prosecuted under different Acts. The offence of prostitution comes to mind. A person could be prosecuted under the Dublin Police Act, 1842 or the Criminal Law (Amendment) Act, 1935, for such an offence depending on which was the more convenient or more appropriate. Will we be knocking the legislation terribly out of joint if for completeness we include among the other vehicles and places an aircraft?

Mr. Burke

Aircraft generally and airport security are covered by specialised legislation. I do not wish to complicate the two Acts and I would prefer the matter to be left as it is.

Mr. J. O'Keeffe

I am concerned that to a degree the definitions in the Bill are somewhat different from those in the Air Navigation and Transport Act. Under the Bill, we are making it an offence to have a knife or any article which has a blade or which is sharply pointed, in one's possession. I am sure that the Air Navigation and Transport Act does not have a definition in the same terms. However, the definition in that Act, which refers to a person who has possession of an article which may cause damage to a person, may cover my point. If the Minister is happy about the position I will not press my amendment.

Amendment, by leave, withdrawn.

Mr. Burke

I move amendment No. 6:

In page 9, lines 48 and 49, to delete "of the places referred to in subsection (1), (2) or (3) of section 9" and substitute "public place (within the meaning of section 9 (6))".

Amendment agreed to.

Acting Chairman

We now move to amendment No. 7. Amendment No. 8 is related and the House will debate amendments Nos. 7 and 8 together, by agreement.

Mr. J. O'Keeffe

I move amendment No. 7:

In page 10, between lines 15 and 16, to insert the following:

"(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.".

Earlier I expressed my concern about the power of the Garda Síochána to search a person suspected of an offence. My concern was that the power in the Bill was not sufficiently wide and, in particular, that the Garda did not have the power to bring a suspected person to a Garda station or, in certain circumstances to a temporary Garda centre for the purpose of being searched. I understood from the Minister that he would consider the points I raised on Committee Stage and I had hoped that he would table an amendment along the lines I had suggested. This point was brought to my attention by a senior member of the Garda Sióchána who felt that while the power to search was included there was no power to require a suspected person in such circumstances to accompany a garda to a Garda station for the purpose of being searched. He pointed out that 15,000 to 20,000 people might be present at a rock concert while the Garda deployment for such an event would be relatively small. He then suggested that circumstances could arise in which there was a suspicion that an offensive weapon had been used to inflict injury or that someone was in possession of an offensive weapon and that it might not be prudent or practical for the Garda to use their power of search at that place. The concern is that if suspicion has fallen on a particular group there might only be a handful of gardaí available in the area to deal with the matter. In that case it was felt that the wise and prudent course would be for the gardaí to require the suspected person to come to the nearest Garda station or — if the incident occurred in a remote area where a rock concert was being held — to the temporary Garda centre which is normally provided in such places.

To some degree this amendment takes on board the point raised in Deputy McCartan's amendment in which he referred to having regard for the privacy and bodily integrity of the person being searched. I can understand that in some instances, from every point of view, it might be better that such searches should not take place in front of the general public. The senior Garda officer also mentioned that many types of weapons can easily be concealed next to the body which would not be visible from a visual inspection and which might require a more detailed search to detect them. From that point of view, the provision I propose gives extra power to the gardaí which might be necessary in those circumstances.

There is a precedent for such power to be given to the Garda in the Misuse of Drugs Act, 1984. My amendment is modelled on that precedent where power was given to a member of the Garda Síochána to require a suspected person to accompany him to a Garda station for the purpose of being searched. It would be a useful addition to the Bill and unless the Minister can advance reasons to the contrary, I strongly urge him to give this additional power to the gardaí. The member of the Garda to whom I spoke is experienced in these matters and he was concerned that the Garda's hands might be tied in certain circumstances in relation to a search which is provided for in this section.

Another senior member of the Garda Síochána raised the question of whether the section as drafted at present would cover a suspected person fleeing the scene and being apprehended perhaps a considerable distance from the place where the incident occurred. He wanted to know if the section empowered the gardaí in that other place to make the search without warrant. I have checked the section very carefully and it probably does but I should like the Minister's assurances in this regard. Subsection (1) specifically refers to a breach of the peace occurring, or a member of the Garda Síochána having reasonable grounds for believing that a breach of the peace might occur in that place. The concern is whether the consequential power of search without warrant applies only in the place where the breach of the peace occurred or where it was reasonably suspected it might occur. The senior member of the Garda Síochána, to whom I referred, was concerned that the Garda having pursued the suspect a considerable distance, would be able to search him without warrant in the other place. I strongly suggest that my proposal in relation to the additional subsection should be included. As I said, it is included in the Misuse of Drugs Act and there is no reason for the same power not being included in this Bill.

Mr. McCartan

I wish to speak on amendment No. 8. The Minister indicated on Committee Stage that he would look at this matter to see what could be done in relation to a "half-way house" suggestion. As the Minister has not tabled an amendment I presume he intends to leave the section as originally drafted. In the Official Report, column 1790, of 7 March 1990, the Minister said that 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.

I am concerned that a skilful and devious person will have no difficulty concealing any weapon which would not be found by mere frisking. It involves not just concealment on the body or in clothing but in any article that the person might be carrying, such as a bag or brief case or — in these 007 situations — the umbrella or the walking stick with a sword or a knife concealed.

Does the section as drafted give the Garda enough powers to deal with every eventuality? I do not think so. The garda must have, in addition to simple powers of arrest where he or she reasonably suspects an offence has been committed, the power also to detain for a reasonable period of time in such a place as is necesary to fully investigate the matter. The Minister suggested that there was such a power of arrest without warrant for offences under sections 8, 9 and 10 of the Bill. Arrest can only take place where an officer has a reasonable suspicion that an offence has been committed. Mere suspicion or intuition that a person in a group or someone on his own might be carrying a weapon is not enough to warrant an arrest. Indeed, if a weapon was ultimately found the entire prosecution could fall or be frustrated if the officer could not show initial reasonable suspicion for the arrest. In addition to the power of arrest, a garda should have the right to detain a suspect for the purposes of carrying out a search if he believes he is carrying a weapon against the law.

There is a need to expand the powers provided in section 16. I am surprised at how often the needs of the Garda in this regard are overlooked in various amending legislation. I recall that when the Government were promoting the Bill to give powers to customs and excise officers to carry out searches for drugs an intervention by myself and other Members drew attention to the fact that we were not giving them adequate powers to detain people for the purposes of carrying out a search. When the legislation to deal with detectors and the invasion of places of archaeological and architectural importance, national monuments, etc., was being discussed we again raised the point that the needs of the Garda were being overlooked. When we were discussing the legislation dealing with trespassers on railway lines we again referred to the need to give the Garda powers of arrest, a point which was acceded to. This is another example where the Minister is not looking at the legislation from the point of view of the Garda and the powers they need in particular circumstances.

The second part of my amendment recognises the important point that searches can often be of an intimate nature and may involve very close scrutiny of the clothing and/or the body of the person being detained. There is a need to ensure that there is no infringement of the general regard a male officer should have for a female member of the public or vice versa. Regard should be had for the dignity of an individual and there should be no undue infringement of the sexual dignity of the person being searched. If a female member of the Garda confronts a male member of the public, or vice versa, it is equally important that he or she should have the power to bring that person to a Garda station or some other location where the search can be carried out by a member of the same sex. As I have said, such searches can involve close scrutiny of the body and/or the clothing of a person being searched. Such searches should not be carried out in public, in a hall, a doorway or on a busy street. In those circumstances a garda should be able to bring the person to a Garda car or Garda station where the search could be carried out. My amendment takes account of the powers an officer may need in certain circumstances. The Minister should have had more regard to these issues, as he promised to do between Committee and Report Stages. The amendment proposed by Deputies O'Keeffe and Flanagan is equally acceptable if my amendment is not accepted. However, I should like the Minister to accept my amendment because it deals with the respect, privacy and integrity of a person, which should be provided for.

Mr. Kavanagh

Amendments Nos. 6, 7 and 8 are complementary and, if accepted, would be an addition to the Bill. I am interested to hear the Minister's views on these amendments. If he accepts amendment No. 7 in the names of Deputies O'Keeffe and Flanagan then Deputy McCartan's amendment will fall.

I see great merit in these amendments because on rare, and I hope very exceptional, occasions it may be necessary to set up a booth to search, for example, a crowd of hooligans who may visit this country for a football match — I am not saying our football supporters are very well behaved — and to detain such people for quite a long period while the search is being carried out. The proposal in paragraph (4) of amendment No. 8 is somewhat different from the proposal in paragraph (4) of amendment No. 7. It may take a reasonable time to carry out such a search and, therefore, such a provision should be included in the Bill. It may not just be a question of frisking someone who has a knife; there may be a number of people involved and it could take a long time to carry out a search. If Deputy McCartan's amendment is accepted it will be an addition to the Bill, and would certainly be acceptable to me. I think it is fair to say all of us accept that searches on women should be carried out by women and, where possible, searches on men should be carried out by men. The acceptance of Deputy McCartan's amendment would be an addition to the Bill.

Mr. Burke

I want to say — and I am not being in any way controversial — that I regret Deputy McCartan's approach. Just because I have not accepted all the points made on Committee Stage does not mean I have not given deep regard to them.

Mr. McCartan

I did not suggest that the Minister had not given regard to them.

Mr. Burke

That is what the Deputy suggested. I tried to take on board the points made on Committee Stage which I could accept and that is why I introduced the major amendment in relation to public places. I want to assure the House that I listened very carefully to the Deputies on Committee Stage and I tried as far as I possibly could to take on board the points which will improve the Bill. I can assure the Deputies that the points I could not accept, including these points, were given very careful consideration.

I appreciate why the Deputies put down these amendments. While I am just as concerned as they are that the Garda should have adequate powers to search persons who may be carrying offensive weapons I cannot accept the amendments. There is a number of reasons for this which I want to outline.

As I indicated on Committee Stage, I do not believe there is any necessity to provide a garda with powers to take a person to a Garda station or otherwise detain him simply for the purpose of searching him for an offensive weapon. All a garda would need to do in those circumstances would be to "frisk" a person. This can be done in seconds, since the type of dangerous article which a garda would be looking for would, in the normal course, be easy to detect. After all, it would be unlikely that "frisking" would not reveal a knife or any other type of weapon which could be used against another person. Furthermore, there is already a power of arrest without warrant for an offence under sections 9, 10 and 11 which could be used in an appropriate case, for example, where a person refused to allow himself to be frisked.

Secondly, I would be opposed to any attempt to make additional provision in legislation for searches of persons which would involve anything more than frisking outside of a regular Garda station. This is because where full searches are carried out it is vital that proper procedures and safeguards be provided in the interests of both persons concerned and the gardaí who may be the subject of complaint about the way in which the search was conducted. Such procedures and safeguards operate where searches are carried out in Garda stations by virtue of the Treatment of Persons in Custody in Garda Stations Regulations, 1987. It would not be practicable to apply those regulations to searches conducted away from Garda stations, whether in temporary Garda booths or otherwise. For example Deputy McCartan referred to a search being conducted in a Garda car. I genuinely do not think that would meet with universal approval; it could lead to all sorts of allegations.

With regard to the first part of Deputy McCartan's amendment, the position is that the power to detain a person for a reasonable time in order to conduct a search is inherent in the search power itself. What would be deemed to be a reasonable time would have to be determined in the context of the type of search provided for in the section, generally a superficial frisking. With regard to the second part of the Deputy's amendment, I should say the Garda are constantly required to observe the conditions set out and a further provision in this regard is not necessary.

For the reasons I have given I must oppose the amendments. A number of other points were made. With regard to the point made by Deputy O'Keeffe in relation to somebody fleeing from arrest, I should say that, if an individual flees, he can be arrested on suspicion under the provisions of section 14; after arrest he can then be searched in the normal way.

On the general question of frisking not always being good enough, we must endeavour to keep a sense of proportion here — the vast bulk of dangerous weapons are bulky although certainly a razor blade strapped to the leg might not be detected. However, in a crowd people might escape detection in any event. I want to emphasise that if there is reasonable suspicion that a person has a weapon, he can be arrested and thoroughly searched. We must be careful that whatever powers we give do not lead to circumstances in which there can be full body searches carried out, other than frisking, which might interfere with the integrity of the person and so on. Those are not powers to be given lightly.

Mr. J. O'Keeffe

I am not satisifed with the Minister's reply. I must point out that the issue has been raised with me by a superintendent of the Garda Sióchána, somebody who is involved in the front line of the battle against crime. He feels there is a need for such greater power to be given to the Garda in connection with a search. I must take note of the views of somebody who has the experience of dealing with these matters on the ground. The Minister indicates that, in most circumstances, what we are talking about is frisking which would take place in a matter of seconds. This superintendent has pointed out to me that an offensive weapon could be such that it would be easily concealed next to the body, would not be detected either by a visual inspection or frisking procedure. He makes the point that if such weapons were being concealed a more thorough search would be imperative, that the Garda have not the power to bring such a suspected person to a Garda station for that purpose. He asked me specifically to ensure that that power be included.

Quite frankly, the superintendent has an excellent case; he is the type of person who must deal with such circumstances. It was he who raised with me the problem of the temporary Garda booth. He pointed out that, in certain circumstances, there can be large numbers of people attending functions, such as rock concerts, which can be held in fields or other locations a considerable number of miles from the nearest Garda station. He mentioned that there can be, say, 15,000 to 20,000 people attending such functions. I cannot speak from personal experience in this regard. Deputy McCartan may be able to confirm, from his experience, that very large numbers of people attend these rock concerts. The same superintendent points out the difficulty of traffic congestion on adjacent roads, obviously with such huge numbers of people in the immediate vicinity. In those circumstances — even if the Garda had power to bring a suspect to the nearest station — it might take a very long time. He mentioned that the normal procedure, in such circumstances, is for a Garda centre to be erected near the function.

I do not accept the point raised by the Minister, that it might cause a problem for the Garda in having a more thorough search carried on in such a temporary Garda centre or indeed in the nearest Garda station. I must stress that it is the Garda themselves who have raised this issue with me.

Mr. Burke

One garda, not the Garda authorities.

Mr. J. O'Keeffe

It would not be fair to mention the name of the superintendent. I accept that it is a superintendent who has written at length on this issue, somebody who has had practical experience of dealing with this type of problem, who is an expert. We talk about these problems; he must deal with them.

I come now to the major leg of my argument which is that this power is included in the Misuse of Drugs Act, obviously for a specific purpose or reason. Presumably it was included because it was felt necessary to give the Garda power under that Act. With that precedent in existence, with the obvious need to have had it included in that Act, surely if we are serious about tightening up this Bill, giving the full and necessary powers to the Garda to operate its provisions effectively, the same provision should be included in this Bill. I cannot understand the Minister's attitude on this point. All Members of the House are of the one mind, that we want a Bill as watertight as possible, without loopholes, one that will give adequate powers to the Garda to operate its provisions effectively. Although there is the precedent to which I referred the Minister refuses, as it were, to translate that precedent into this Bill.

On that basis I must urge the Minister to come along with me. If he cannot see his way to so doing, then I want to indicate the strength of my view by insisting on having a vote on the issue.

Amendment put.

The Dáil divided: Tá, 53; Níl, 66.

Tá

• Ahearn, Therese.
• Barnes, Monica.
• Barrett, Seán.
• Bradford, Paul.
• Bruton, Richard.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Finucane, Michael.
• FitzGerald, Garret.
• Flanagan, Charles.
• Gregory, Tony.
• Harte, Paddy.
• Higgins, Jim.
• Higgins, Michael D.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Lowry, Michael.
• McCartan, Pat.
• McCormack, Pádraic.
• McGahon, Brendan.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Gay.
• Mitchell, Jim.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Creed, Michael.
• Currie, Austin.
• D'Arcy, Michael.
• Deenihan, Jimmy.
• Doyle, Joe.
• Durkan, Bernard.
• Fennell, Nuala.
• Moynihan, Michael.
• Nealon, Ted.
• Noonan, Michael.
• (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, Seán.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Timmins, Godfrey.
• Yates, Ivan.

Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Andrews, David.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Briscoe, Ben.
• Browne, John (Wexford).
• Burke, Raphael P.
• Callely, Ivor.
• Clohessy, Peadar.
• Collins, Gerard.
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• de Valera, Síle.
• Ellis, John.
• Fahey, Jackie.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• Harney, Mary.
• Haughey, Charles J.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kenneally, Brendan.
• Kirk, Séamus.
• Kitt, Tom.
• Lawlor, Liam.
• Leonard, Jimmy.
• Leyden, Terry.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, Jim.
• McEllistrim, Tom.
• Molloy, Robert.
• Noonan, Michael J.
• (Limerick West).
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• O'Malley, Desmond J.
• O'Toole, Martin Joe.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Stafford, John.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Woods, Michael.
• Wyse, Pearse.

Tellers: Tá, Deputies J. Higgins and McGrath; Níl, Deputies V. Brady and Clohessy.

Amendment declared lost.

Amendment No. 8 not moved.

Question, "That the Bill, as amended, be received for final consideration" put and agreed to.

Agreed to take Fifth Stage today.

Question proposed: "That the Bill do now pass."

Minister for Justice (Mr. Burke)

I would like to thank Deputies on all sides of the House who contributed to the debate. I found their approach to the Bill constructive and helpful. That is fully evident by the amendments which were made to the Bill, some of which were suggested and some of which were influenced by Deputies from all sides. We now have a useful and practical Bill which will strengthen the hand of the Garda in dealing with those who carry weapons illegally or for use for criminal purposes. I sincerely hope that the provisions of the Bill will help to curtail crimes of violence and the carrying of knives and other dangerous implements by young persons for reasons of bravado.

As the Bill was initiated in the Seanad it will be necessary for me to bring it back to that House to deal with the significant and worthwhile amendments which were made in the course of its passage here. I hope that this can be done quickly and that we can get this legislation into operation without delay.

Mr. J. O'Keeffe

I am very glad that we have reached the Final Stages of this Bill in the Dáil. It is a year since this Bill was originally circulated. It became a casualty of the general election and of the various recesses. The Bill was urgently needed and I am very glad that it has now been cleared through this House.

I agree with the Minister that the amendments made have improved the Bill. I have some regrets that some of the other amendments we proposed have not been taken on board. That, however, is the democratic will of the House and I accept that. I hope the Bill which has now cleared the Dáil will be a major additional item in the armoury of the Garda Síochána in their fight against crime and I hope they will be effective in their effort to try to control the possession and use of firearms and other offensive weapons.

Mr. Kavanagh

This legislation has been demanded by the general public and by the Garda Síochána in their attempt to curtail the violent crime which has been on the increase in this country over many years now. The Bill has been well debated in this House and seems to close many of the loopholes that existed. I hope it will have the effect we would all like of reducing the incidence of violent crime in the years to come. I congratulate the Minister on getting the Bill through the House as quickly as possible.

Mr. McCartan

I would like to join with other Deputies in my appreciation of the Minister's work in bringing this Bill before the House and thanking him for taking up some of the arguments that were advanced by parties on this side of the House. The Bill, passed into law, will prove to be a useful addition to the armoury of the Garda and I hope they can move quickly to curtail the use of those lethal firearms that have been covered, the stun guns, crossbows and other weapons, in particular knives, that are a blight in our community. I am pleased to have been able to contribute to this legislation.

Question put and agreed to.