Dáil Éireann debate -
Wednesday, 19 Jun 1991

Vol. 409 No. 10

Criminal Damage Bill, 1990: Committee Stage (Resumed).

SECTION 1.

Debate resumed on amendment No. 2:

In page 3, subsection (1), line 16, after "operation of" to insert "and shall include damage caused to property resulting from the driving of a motor vehicle without insurance as required under the Road Traffic Acts".

—(Deputy McCartan.)

Mr. McCartan

As this is important legislation touching on an area of great importance, that of combatting crime, there should be a quorum in the House to listen.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

This amendment deals with what is probably the most significant issue which can be raised in the context of criminal damage. My amendment proposes that damage which accrues from the uninsured driving of a motor vehicle shall be considered as malicious damage for the purposes of this Bill. I am trying to deal with the problem of the unauthorised taking of motor vehicles and the driving of unisured vehicles by their owners where such cars are involved in accidents which lead to damage and loss to innocent parties.

I was prompted to put down this amendment after hearing about an accident in August last year involving an unfortunate constituent of mine from the Baldoyle area. I do not believe I need to over-illustrate the scale of this problem. Unfortunately I do not think there is any owner of a motor car who has not suffered some inconvenience, loss or damage arising out of interference with their car. A large body of people in the community have suffered substantial loss as a result of the unauthorised taking of motor cars or the driving of motor cars without insurance. If the perpetrator of the crime is apprehended he cannot be charged with malicious damage which often times gives the judge an opportunity of ordering the offender to pay compensation. What happens is that the offender is charged with the unauthorised taking of a motor vehicle or driving without insurance and the issue of damage to another person's property is not raised as an issue because it is not the substance of the charge before the court. It is very difficult to include damage caused by a motor car in the existing definition of malicious damage in this area. Even when the malicious injury code was in operation the damage which resulted from the reckless driving of a motor car was never construed in any circumstances by a court as malicious, on the judicial thinking that no one could be construed as being malicious towards oneself. Regardless of how recklessly a car was being driven it could never be construed as malicious driving as there was always the potential of personal injury being visited on the perpetrator. In the legal mind, this represented a nonsense.

In August of last year an unfortunate constituent of mine was driving along the road one evening when an old, battered Cortina being driven towards him which did not have any lights on and which had a Northern Ireland registration collided with him. When the accused was apprehended it was established that he had no insurance or licence, the car was not taxed or registered in this country and he was driving while drunk. The unfortunate victim of the accident ended up in hospital for seven days during which time glass which had been embedded in his throat was removed. The defendant was duly brought to court and prosecuted for all offences and fined the sum total of £180. In addition he was banned from driving for 10 years. This was of little consolation to my constituent, a hard working person, whose car was written off. The accused was not taken before the court and charged with causing malicious damage. The question of compensating my constitutent for the cost of replacing his motor car did not arise in the course of the proceedings as it was not the substance of any of the charges. This difficulty arises in virtually every case of this type, which unfortunately is very prevalent in our courts today.

My amendment proposes that in future a person who drives a motor car without a licence or insurance or takes the car without the consent of the owner or otherwise and drives it recklessly in circumstances similar to those I have just outlined should be answerable in a subsequent hearing for causing damage which amounts to a malicious act on their part. It is time we addressed this major problem of people driving motor cars without insurance. One of the effective ways of dealing with this problem is to constitute such driving as malicious in its intent when it causes damage or loss. This would leave it open to a court to address the loss to an individual arising out of such an incident. The person involved in the incident will not have the backing of an insurance company but it will give the judge hearing the case the opportunity of saying. "This is a substantive charge and relevant to it is the extent of the loss of the injured party. I want to know what contribution the defendant or their family can make to compensate the injured party for the loss he has incurred". I hope the Minister accepts that my amendment seeks to address a major problem which for one reason or another has not been dealt with in either the Criminal Court or in the malicious criminal code. It is time we addressed this problem on behalf of the beleagured victims who for too long have been seeking redress before our courts but getting little or no hearing because of the lacuna which existed.

Mr. S. Barrett

I welcome this amendment. I was informed by way of a reply to a parliamentary question that the number of vehicles stolen in the greater Dublin area in 1990 was in the region of 7,000. This is the equivalent to 20 vehicles per day. At present if somebody who is driving without insurance causes personal injury the Motor Insurers Bureau will pay some compensation to the injured person.

Mr. McCartan

Only for personal injuries.

Mr. S. Barrett

Unfortunately this means that the people who are paying their insurance premiums have to carry a portion of the cost of the payments made by the Motor Insurers Bureau. A person who takes another person's vehicle without permission and who does not have insurance should also have to pay for any damage he causes to that vehicle. If we adopt that attitude we will go some way towards discouraging them from taking other people's property.

When I raised this matter during the course of the debate on the proposal that we renew certain sections of the Criminal Justice Act, 1984, on Thursday last I said that it was quite obvious there were people in society who were willing to spend time in prison because crime paid. These people are prepared to break into 40 to 50 houses to take people's property for which they might get six months in prison. However, because of over-crowding they will have to be released early when they will be able to fall back on their windfall which was taken from other people. It is quite obvious that imprisonment is not a deterrent. Apart from increasing the powers of the Garda Síochána and making improvements in the law the only deterrent is to show that crime does not pay and that if people take a car without permission and damage it or take other property they will have to pay for it.

Section 9 which deals with the payment of compensation to the victims of crime is very welcome and marks a new beginning. We should send out a message loud and clear that society is no longer prepared to tolerate people taking other people's property, living off the proceeds and spending a few months in prison at the taxpayers' expense, perhaps at a cost of £600 per week, while the poor unfortunate victim does not get his goods back. If we say that we will confiscate their assets, in addition to imposing a penalty, then we may have a deterrent and people might say it is not worth their while spending a few months in prison because when they come out they will have nothing to live on or there will be an attachment to their earnings to ensure the goods are paid for regardless of whether it takes five or ten years to do so. As long as we are prepared to tolerate a situation where it is profitable to take or damage other people's property detention will not be a deterrent.

I fail to see how someone should be allowed to get away with a fine, as Deputy McCartan said, of £80 having taken a vehicle, driven it without insurance cover and damaged other people's property. Have we gone mad?

Mr. N. Treacy

One hundred and eighty pounds.

Mr. S. Barrett

One does not need to be a genius to come to the conclusion that there are people who do not care because they will not be affected. Having regard to the fact that they are used to going in and out of detention centres and prisons it is no longer a deterrent. They also know that they will not serve their full sentence because of over-crowding and if they mind their own business they will be released early on good behaviour. They are turning this into a big business. Prison sentences do not deter them.

We are suggesting a further deterrent to discourage those who feel they can walk into a person's driveway at night to take a car, waste the time of the Garda who have to chase them, ram the car into a Garda car or a wall, jump over a wall and get away while the poor unfortunate person whose car was taken is left without their property which they may still be paying for by way of a bank or credit union loan. What is worse is that if they have comprehensive insurance cover and they make a claim their premium will be increased the following year, that is if they can get cover. People living in certain parts of Dublin are finding it impossible to obtain insurance cover because of the reputation their area has. I am not referring here to motor vehicles solely but also to business premises.

It is time we put a stop to this. We should make a concerted effort to send a message loud and clear to those who feel they can do what they like with other people's property that those days are over. In addition to giving the courts, the power to impose a prison sentence, we should give them the option of making a person pay for the property damaged, including damage caused to a vehicle unlawfully taken and crashed. We should make it clear that those days are over and we are going to tackle this epidemic which is sweeping the country. Detention is no longer a deterrent. When we begin to hit these people in the pocket, take away their pickings and impose an obligation on them to repay the person whose property has been damaged then we may have a deterrent which will work.

Mr. N. Treacy

The amendment proposed by Deputy McCartan deals with the application of the Bill to damage to property by uninsured drivers — damage to other cars, walls, fences and so on. No one in this House would have any smypathy with those drivers. The case outlined by Deputy McCartan is a sad and traumatic one and the defendant involved was convicted. Deputy McCartan outlined the result.

As section 2 stands, damage by an uninsured driver will be an offence if all the elements required by the section are present. The first two elements will normally cause no difficulty. These are that there must be no lawful excuse for the act and that the damaged property must belong to another person. That leaves the third element — did the driver intend to cause the damage? If he or she did, then an offence under the section has been committed or, and this will probably be the typical case, was the driver reckless "as to whether any such property would be damaged," to quote section 2 (1).

To answer this question it is necessary to look at the definition of "reckless" in section 2 (6). Under that provision the driver was reckless if he had foreseen that the kind of damage that was done might be done and had gone on to take the risk and thus created the damage and the offence. I can envisage many cases where the actions of uninsured drivers would clearly be reckless in the sense in which the word is used in the Bill. The same could apply to reckless drivers who are insured and cause damage but it would be wrong to impose a special rule of criminal liability on uninsured drivers where similar behaviour by insured drivers would not be an offence. That would be contrary to what I think is a principle of the criminal law, that is whether an act is an offence should not depend on who the perpetrator is. Of course, a person who drives a car while uninsured is already committing an offence for which heavy penalties may be imposed. The problem as stated by the Deputies is that when the court is convicting a driver of the offence of uninsured driving, it has no power to order compensation for any damge to property which the driver has done while driving an uninsured vehicle. What is really needed is a general provision giving criminal courts a general power to award compensation when convicting a person of any offence whether it is criminal damage to property, uninsured driving, theft or otherwise. We should not make unintentional or purely accidental damage an offence merly to enable the convicting court to award compensation. That seems wrong in principle. The types of cases mentioned by Deputies McCartan and Barrett would not be helped by the amendment. The offenders in question would not be a mark for compensation because they would not have the resources from which compensation could be claimed.

Mr. S. Barrett

Not necessarily

Mr. N. Treacy

They may not have resources but that could be a matter for discovery of information. However, in many cases these young "buckos", if you wish to call them that, who cause horrendous problems for the forces of law and order, the Garda, and society in general would not have the resources. Certainly there would be more professional and regular gangsters who, as Deputy Barrett said, would make their living out of being constantly involved in robbery and other crimes.

I have explained the position as we see it and I hope this will help Members to understand further the effect of the Bill. For these reasons I am afraid I will not be able to accept the amendment.

Mr. McCartan

The Minister for Justice's concept of the new Irish society which he told us about this morning is slowly coming asunder in the hands of the Minister of State. The Minister for Justice did not take the opportunity to elaborate on his ideas of what would constitute this new Irish society which he told us about in great "capitals" this morning. The establishment of the Committee on Crime has the serious intent of tackling the problem of crime and the way in which crime impinges so horribly on all our lives.

The Minister of State's response to my amendment is disappointing in the extreme and this concerns me greatly. He suggests that there is adequate provision under section 2 for the inclusion of dangerous driving, driving without insurance in the circumstances where there is no lawful excuse; that the property belongs to another; and intending to cause damage, and being reckless. The problem is that time and time again in our courts the latter two criteria render driving dangerously, recklessly and otherwise, as being incapable of consideration as malicious in itself. The view of the courts generally is that where the person driving the vehicle is potentially putting himself or herself in danger of personal injury it would be disingenuous to ask the courts to consider that the person was visiting a malicious situation not just on others but on themselves as well. As the Minister of State said, circumstances amounting to accident or misadventure should not be tainted with criminality. I utterly reject that approach. In the single instance where such a so-called accident is coupled with the conscious decision of the driver not to have a valid policy of insurance when driving as required under the Road Traffic Acts, where a person whether through the unauthorised taking of a car of another, or their own conscious decision to drive a motor car on our public roads without insurance, we should have the courage to say in this House that that person or persons is or are being malicious towards the rest of the community or in particular towards the unfortunate person coming in the other direction who happened to be in the wrong place at the wrong time.

To come back to the case of my unfortunate constituent in Baldoyle, his car was written off to the extent of £1,500. He was a working class man of no great means and he was reducing to walking because he could not gather up the money to replace the car. I am not making the point that had the defendant in that case been charged with malicious damage the issue could have been resolved in favour of my constituent so that his motor car could at least be replaced or that he would get the financial equivalent, but he singularly complained that this whole issue was not addressed. The fact that his car was written off and rendered unsuitable was not an issue central to the proceedings at all because there was not before the court a substantive charge dealing with that aspect. The charge was dangerous driving, driving without insurance, drunk driving and driving without a licence and without tax. There was nothing that enabled the judge to rule that the charge in front of him which dealt with the loss to this party enabled him to ask the defendant to address that issue. That is what is wrong with the present corpus of law. To put it another way, I believe that convicting a person of driving without insurance is inadequate in those circumstances because unfortunately our reaction to that kind of conviction does not stamp it with criminality. For some reason the view abroad is that driving without insurance does not amount to an act of criminality.

It is time that we in this House gave a lead and tried to change that attitude. We have done it in the case of drink driving to some degree and we had a good example of this last Christmas with the drunk driving campaign. For far too long we had a bravado attitude that driving while drunk or driving without insurance was fair game and that it was the great man or woman who was not caught. Very recently I listened to an RTE programme — I often wonder if it was contrived but I would not suggest that of the programme in question — on which Mr. Pat Kenny interviewed a woman, a typical responsible housewife who, for all her driving life, drove without insurance. She told of the buzz she got from driving late at night or to work during the day without insurance. She had never had car insurance. I remember the presenter becoming more incredulous as the interview went on and as he was drawing it out of her. They then followed up this incredible phenomenon over the next few days, which led us to believe that this was more frequent than any one of us would dare to imagine.

Deputy Barrett touched on the problem of unauthorised taking of a vehicle. There were 7,000 incidents in Dublin alone over the past year. That is an area which we must have no doubt amounts to criminality. However, I want to cast the net more widely and draw into it those who consciously step into a motor car and drive it without insurance. They know that if an accident occurs they have nothing to offer because they have no insurance cover, as is the respectable thing. It is time to say that if an accident occurs or if there is a case of misadventure in those circumstances, where a person consciously drives with no insurance cover, it is an act of criminality. It certainly is from the point of view of the poor unfortunate victim who is left with no prospect of compensation.

I listened to the Minister for Justice address the new Irish society and he stated his great determination to tackle crime in the city. In fact very recently I heard him address very comprehensively the position of the victims of crime. I acknowledge his great gesture — that he is going to increase the budget of the Irish Association for Victim Support for the princely sum of £8,000 to £12,000. Is he serious about helping the victims of crime in society? If the Minister is serious in this regard, this amendment represents an opportunity for him to take on board the reasonable and responsible proposition that a person who takes a car without the consent of the owner or drives his own car without insurance and causes damage is liable in those circumstances to be prosecuted at the suit of the Director of Public Prosecutions, or the election of the garda in charge, for the offence of malicious damage. If a defendant can show that whilst he or she did not have insurance or the consent of the owner to drive the car there were other extraordinary circumstances that would not allow the charge of malicious damage to stand, let that be determined by the court.

Let this House and the Minister be in no doubt that on this issue we have clearly in our sights the interests of the victim and of the beleagured owner of property. Later we will deal with the principles of compensation to the victims of crime. In this specific instance we must look more closely at what is being suggested. If the Minister is not prepared to adopt this proposition today, I would ask him to look at it again before Report Stage.

Mr. S. Barrett

I do not wish to be disrespectful to the Minister regarding his reply but after four years in office the Government are out of touch with the seething anger among the public about what is happening in our streets and in our courts. If we do not put into our law a clear expression of what we feel about this type of activity, people will begin to take the law into their own hands. They are fed up with what they see around them and our seeming inability to tackle the problem.

It is not an excuse for rejecting this amendment that people would not have the money to pay. That is for the court to decide. A person who does not have the money today might have it next year and that liability should be carried until it is discharged. If a person borrows money from a building society or a bank and subsequently becomes unemployed or runs into business problems, the lending agency will either repossess the house or put that person out of business. A person who damages a car or other property may be put on probation or committed to Mountjoy for a month or two and that will be the end of it. That will be no good to me as an individual who has lost property. I may have taken out a loan to buy the car in the first place. The bank will not express sympathy and write off the balance in view of the circumstances. They will insist that the money borrowed be repaid. Nobody will ask where I am to get the money; I will simply have to find it. In the case of an unpaid debt the bank may pursue a person who has given a personal guarantee in respect of the loan.

I see nothing wrong with including in this Bill the principle contained in the amendment. Let the courts decide, depending on the circumstances. We must shake off the shackles of the principles which were built up over the years. All these principles devolve from the last century when criminals were normally illiterate, uneducated people who were unable to defend themselves and who had no representation or legal aid available to them. The onus was on the prosecution to prove that the person was guilty. We are dealing today with people who are in business, people who do not care about other people's property once they get what they want for themselves. If they want to rob a bank and see my car as being convenient for the job, they will take it. Then they will carry out the robbery and set fire to the car. That is the reality.

We must tackle these problems and express in our law the way we feel about people who behave in this fashion. The fact that it will not be applied in every case does not matter. If the powers are there under the law, the appropriate charge can be brought. If not, the public become totally frustrated and ask if we as public representatives do not know what is happening. If we cannot tell people who come to our clinics that we intend to do something about this, they will go down the road, in some cases to the Provos, and they will be offered a deal and the job will be done outside the law. I know this has happened. A person came to me who told me he had been approached in a pub by a man who had heard that his house was broken into. This man asked him if much had been taken and offered, for £50, to get the property back and inflict a broken arm. Anyone who does not believe me should spend some time on the streets and find out what is happening. We are not giving those in authority the power to take these people in hand through the proper process of law. If the public believe that our laws are not capable of dealing with realities of contemporary life, the numbers of those behaving outside the law will increase and we will have an even bigger problem.

Let us shake off the shackles. We do not often get an opportunity like this. Let us show that we are serious about tackling crime and let us not have the nonsense we heard this morning. The Minister's speech is a PR exercise. Bunny Carr must be proud of him. The Minister is telling the public that crime is on the decrease and that Garda numbers are reaching a record level. This morning, however, we picked up our papers and read that the PRO for the Association of Garda Sergeants and Inspectors, who is not a disreputable person, said there were 11,400 gardaí in 1985 and that there are 10,500 in 1991. Then the Minister comes in here this morning and tells us Garda numbers will be at a record level. Who is he fooling? The Minister's party blame us for Eoin Harris and Twink. Let them stop trying to fool the public. They are not fooled. Their houses are being broken into, their cars are being stolen or burned, many of them cannot park their cars in the middle of town and if they stop at traffic lights and there is a handbag on the back seat — whether it should be there is another question — it will be snatched. They also fear for the safety of their sons and daughters who are out at night. That is what the public feel. Let the Minister not insult their intelligence with outdated statistics showing that in 1989 there was a percentage drop in this, that and the other. That does not wash.

I have been in Government and I know the difficulty facing the Minister of State. I have found him to be a reasonable person and on the ball in many instances, but coming into this Chamber is he given the authority by his Minister to accept positive arguments? Can he, on his own initiative, say he will accept an amendment because he has listened to the argument?

This is supposed to be a debating Chamber. The Minister comes in and presents his proposals. We table amendments and try to argue our case and if we are successful, he should be prepared to accept it. The present trend is that he comes in with a script and keeps arguing the point even though we are hoping to prove there is a need for something else. I hope the Minister for Justice is giving his Minister of State authority to accept amendments if the arguments persuade him they are worth accepting.

Mr. N. Treacy

We never blamed Deputy Barrett or his party for anything Mr. Harris or Ms. Twink did nor do we intend to go down that road.

Mr. S. Barrett

I did not say the Minister of State.

Mr. N. Treacy

He blamed us but we are not blaming him for anything. I accept what the Deputies are saying. They are very positive. They are committed to ensuring we frame laws that are relevant, practical and operable and will have the effect of deterring crime. That is what we want to achieve; that is why we are all here. I had no preset ideas before I came in here. I am as flexible as I can be. I have been four years in this business now and I have tried to be as flexible as I can and will continue to do so. However, there are certain parameters within which we must all operate and which are relevant. Be they legal, constitutional, or the result of very high powered court decisions, all these things have an effect on how laws are framed and how the legal process should evolve. Against that background we have to proceed.

Deputy McCartan talked about malice and said is is not at present addressed in uninsured driving because malice is inappropriate when the driver is himself at risk. Under this Bill the test is whether the driver was reckless as defined, and there seems to be no reason that should be affected by the fact that the driver was also at risk.

Mr. McCartan

He should be intending to cause the damage.

Mr. N. Treacy

Sorry?

Mr. McCartan

The criterion the Minister talked about, intention to cause the damage, enables the uninsured driver or the unauthorised taker to argue strongly in the court that while he caused an accident he did not intend to cause the accident or damage. That is another area that allows a great deal of latitude and opportunity for the defendant. I thank you, Sir, for allowing me to interject. That is also an area of concern.

Mr. N. Treacy

I appreciate what Deputy McCartan is saying but as far as this Bill is concerned it is enough for that person to be reckless. I assure this House that I am not out of touch; the Government are not out of touch. We know what is happening but this amendment is not the way to go about dealing with the problems that have been propounded in this debating Chamber by these excellent Deputies. As I have said, what is needed is a general provision to give all criminal courts dealing with any offence a power to award compensation. We must proceed against the background of the paramaters to which I have referred.

I am fully in favour of that proposal and I will have it examined with a view to bringing forward the appropriate legislation as a result of the very strong, reinforced commitment and contributions that have been made here, but it is outside the scope of this Bill and we must all recognise that. We should not be in a hurry to cast away the basic principles of criminal law. That could run contrary to the Constitution. Serious offences should not be capable of being committed if the person concerned does something accidentally. I would be the first to be criticised if I were to abolish an important element in mens rea necessary to constitute a crime. I think Deputy McCartan will appreciate that. That there must be a deliberate conception to commit the crime is a basic premise of criminal law.

I am in favour of the general provision but I regret I cannot accept this amendment. I would love to be able to do so. I acknowledge that the Deputies are sincere, factual and practical in their efforts to improve this criminal situation, to alleviate the sadness and trauma and reduce the opportunities for criminal activity but it is outside the scope of this Bill. We cannot do it here. We will look at it in our Department and perhaps we can come forward with legislation to ensure there are no loopholes for criminals to escape the law, and that they make adequate compensation to innocent victims.

Mr. McCartan

The Minister seeks to add further ground to his cause of defending the indefensible. He says the proposed amendment is outside the scope of the Bill. The Title of the Bill reads: "An Act to amend the law relating to offences of damage to property and to provide for connected matters". I have no doubt the Minister's office and that of the Ceann Comhairle would have ruled my amendment out of order and without validity if it was outside the scope of the Bill. I do not believe it is and I think the Minister is clutching at straws.

Mr. N. Treacy

I have a good grip.

Mr. McCartan

And he does not let go too easily. He addresses his obduracy with good grace, nevertheless he holds on with a firm grip.

The second issue he has introduced is mens rea. The mens rea, the mental element I am seeking to apply here, is the conscious decision of a person to take the car of another and drive it without insurance or to drive his own car without having proper insurance cover. It is time to make both actions criminal in their basic essence. For that reason I do not accept the Minister's position and I ask that the amendment be put.

Amendment put.

The Committee divided: Tá, 49; Níl, 67.

Tá

• Ahearn, Therese.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Peter.
• Bell, Michael.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Bruton, Richard.
• Connaughton, Paul.
• Cotter, Bill.
• Currie, Austin.
• D'Arcy, Michael.
• Deasy, Austin.
• Deenihan, Jimmy.
• Enright, Thomas W.
• Farrelly, John V.
• Fennell, Nuala.
• Ferris, Michael.
• Finucane, Michael.
• FitzGerald, Garret.
• Flaherty, Mary.
• Flanagan, Charles.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Lowry, Michael.
• McCartan, Pat.
• McCormack, Pádraic.
• McGahon, Brendan.
• McGinley, Dinny.
• Mac Giolla, Tomás.
• Mitchell, Jim.
• Moynihan, Michael.
• Noonan, Michael.
• (Limerick East).
• O'Brien, Fergus.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• Pattison, Séamus.
• Quinn, Ruairí.
• Reynolds, Gerry.
• Sheehan, Patrick J.
• Sherlock, Joe.
• Stagg, Emmet.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Yates, Ivan.

Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Vincent.
• Brennan, Mattie.
• Briscoe, Ben.
• Browne, John (Wexford).
• Burke, Raphael P.
• Callely, Ivor.
• Clohessy, Peadar.
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Ellis, John.
• Fahey, Jackie.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• O'Leary, John.
• O'Malley, Desmond J.
• O'Rourke, Mary.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Stafford, John.
• Flynn, Pádraig.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kenneally, Brendan.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Lyons, Denis.
• Martin, Micheál.
• McDaid, Jim.
• McEllistrim, Tom.
• Morley, P. J.
• Nolan, M. J.
• Noonan, Michael J.
• (Limerick West).
• O'Dea, Willie.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Tellers: Tá, Deputies McCartan and Sherlock; Níl, Deputies V. Brady and Clohessy.

Amendment declared lost.

Section 1 agreed to.

SECTION 2.

Mr. S. Barrett

I move amendment No. 3:

In page 5, subsection (6), line 30, after "foreseen" to insert "or should have foreseen".

Section 2 refers to damaging property. Subsection (6) states: "For the purposes of this section a person is reckless if he has foreseen that the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it". That places an onus on the prosecution to prove that a person foresaw the particular kind of damage which was done and yet went on to take the risk. For that reason I suggest that we insert the words "should have foreseen" so that the onus is on the person who caused the damage. It makes the section far more reasonable and lessens the risk of people getting off on technicalities. It also shows a firmer intention to deal with the situation. For that reason I recommend that we insert the word "should" in line 30.

Mr. N. Treacy

The effect of this amendment would be to introduce an objective concept of recklessness into the present law of malicious damage. This would be a fundamental change. The background to the present definition of "reckless" in section 2 (6) is that the Bill proposes, as recommended by the Law Reform Commission, to drop the term "maliciously" which was used in the 1861 Act to describe one of the mental elements in criminal damage to property. That mental element is now expressed in the Bill as intention or recklessness. This change is not one of substance because it is well established — I quote from Kenny's Outline of the Criminal Law published as long ago as 1902:

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) an actual intention to do the particular kind of harm that was done; or (2) recklessness as to whether such harm should occur or not.

In that work Kenny spelt out what "recklessness" meant, i.e. that the accused had foreseen that the particular kind of harm might be done and yet had gone on to take the risk of it. That interpretation has been accepted in this country ever since. It is a subjective interpretation. The accused must have foreseen the risk of damage. It is not enough that the risk would have been obvious to a reasonably prudent person who stopped to think. For example, a blind man would not be held to have recklessly damaged propery because he was unaware of a risk which would have been obvious to a sighted person. To take a more extreme example, a person might strike a match being unaware, because of a heavy cold, that the premises were reeking with petrol fumes. He would not be reckless in this context.

If "recklessness" was not defined in the Bill there would be uncertainty as to how the courts would define it, i.e. whether subjectively or objectively. In the United Kingdom, in a similar situation, the House of Lords decided that, in the absence of a statutory definition, "reckless" had to be given its ordinary meaning. It held that, if a person did any act which created an obvious risk — that is obvious to a reasonably prudent person — that property would be damaged, he would be reckless if he had not given any thought to the possibility of there being such risk or had recognised that there was some risk involved and had, nonetheless, gone on to do it. In other words, it decided that "reckless" was to be interpreted objectively. That is why the Bill defines "reckless" and defines it in the traditional subjective sense. The result should be to avoid any possible uncertainty that might result from the change from the archaic and misleading term "maliciously" to "intention or recklessness" as constituting an ingredient of the offence of criminal damage.

Mr. S. Barrett

It all sounds very interesting.

Mr. Bell

It is very poetic.

Mr. S. Barrett

Let us get back to reality. We spent a lot of time dealing with the question of driving without motor insurance, people taking other persons' cars, damaging them and so on. Deputy McCartan made various points in relation to how difficult it can be to prove something. I do not care what was said in 1902. At that time 9,000 houses per year were not being broken into in Dublin and 7,000 cars were not being taken from the streets every year, because people did not have cars. Up to 1950 or 1960 people could leave keys in their doors, whether it be in the Liberties, Sheriff Street or Sean McDermott Street, while going shopping and when they went to bed at night. If that was the case in the fifties and sixties it must have been much better in 1902. The best of luck to the gentlemen who thought up these things then but we are legislating in 1991 and the circumstances now are totally different from the circumstances of 1902. Everything we deal with refers to Acts from years ago. Legislation dealing with fraud refers back to 1870 and 1916. It is no wonder the Garda cannot deal with modern-day crime. We should forget about what was said in 1902 and think about what is suitable for today.

Under this Bill a person who without lawful excuse damages any property belonging to another or intending to damage any property or being reckless as to whether any such property would be damaged shall be guilty of an offence. I do not want to tie the courts in knots. Subsection (6) to which my amendment refers states: "For the purposes of this section a person is reckless if he has foreseen that the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it." I do not want to get into legal argument about the definition of a person being reckless if he has foreseen something. The person must have foreseen and must be fairly positive about something. It is common sense to foresee things.

For example, a person should foresee that to light a match near a can of petrol with the lid open will cause a problem and should therefore light the match somewhere else. We do not want to get into legal argument as to whether lighting a match over a can of petrol is a wise thing to do. Basic common sense will tell you that you should not do things like that. Basic common sense tells me that if someone takes my car without being insured they should foresee, given the number of accidents in the city, that there is a reasonable chance that they might drive into somebody. If they exceed the speed limit, hit a wall and damage my car they should have foreseen that that was a possibility. The fact that a person does something like this means they are taking a risk that they should not be taking in the first place.

With due respect to the gentleman who made the profound statement in 1902, we should try to legislate for the problems that the courts and the Garda have to deal with in 1991. The hands of the Garda are tied enough at the moment, so let us not tie them any further. People who behave in an unacceptable fashion should be answerable for their actions. Let us think about the victims for a change and stop worrying too much about people who take other people's cars, damage other people's property or do stupid things like setting fire to cars parked outside houses.

I will give an example of what happened in Ballybrack. An 18 year old was brought before the court for setting fire to people's cars. This happened outside the homes of ordinary working class people. The cars were parked in the driveways of corporation houses. These people do not have garages and therefore it cannot be said that they should put their cars in garages. Some people would say they should not have cars — that is the sort of attitude that is taken. These people have no option but to leave their cars outside their doors. Some little hooligans — that is what they are — set fire to the cars in the early hours of the morning. It was due to the mercy of God that some of the cars did not explode and set fire to a whole row of houses. People had to take their children out of bed and evacuate their homes because these people, for amusement, set fire to seven cars. One man, a painting contractor, had his van containing his equipment burned out and therefore was put out of business.

Are we going to start arguing in court about the word "foreseen"? Anybody who sets fire to a car outside a house should foresee that there is every possibility that it could cause the deaths of ten or 20 people or that their houses could be burned down. The people who set fire to the cars in Ballybrack should have foreseen that there was every possibility that they would cause major damage to houses and their contents, not to mention the loss of life.

Mr. N. Treacy

I have listened with interest to Deputy Barrett's contribution and I appreciate it. He is obviously frustrated with the law as it stands. It does not follow from the fact that there is a subjective test of recklessness that an accused person can say that he did not foresee a risk and expect the court or the jury to believe him. They simply will not believe him if he is of average intelligence and capacity and that is obvious to the court, the judge and the jury. What would be wrong would be where a person who genuinely, because of limited intelligence or otherwise, did not foresee the risk, would be convicted. The law does not allow for that.

The fact that a principle has been accepted since 1902 does not make it less worthwhile now. Our criminal law and procedures must be fair to both the victim and the accused. If they are not, they are unconstitutional. It is not fair to convict and sentence people who suffer disabilities. Basically what we are saying is that a court will interpret and adjudicate on a particular case on the evidence before it. A defence by an individual that he did not foresee the after-effect of what he did when committing the offence would be a matter for the court to decide and therefore he would not get away in that type of case.

Mr. S. Barrett

Why would he not get away?

Mr. N. Treacy

The court would make the decision.

Mr. S. Barrett

If we put into law that "for the purposes of this section a person is reckless if he has foreseen", the onus is on the prosecution to prove that the person foresaw that the damage that was done might be done but yet took the risk of doing it. That point would have to be proved. Of course we do not want to convict people who have mental disability. We do not suggest that such people should be put into prison or that we harm anybody who does not have his or her full senses. The courts will take that into account. That is what they are there for. Why consistently put the onus on the prosecution? At present people get off on technicalities. One is reckless if one should have foreseen that certain actions would cause damage — that is basic common sense. The prosecution should not have to prove that a person foresaw damage and was therefore guilty. There are certain things one should foresee. The person who sets fire to a car can foresee the likely damage to be caused. I do not see any principles of law being massively changed by modernising our legislation. I hate to detain the House on this issue, but it makes me feel very frustrated, to be honest.

Mr. N. Treacy

I do not want to add to Deputy Barrett's frustration, but it is obvious that anybody of average intelligence who sets fire to a car outside a house and was physically able to get there must be able to foresee that a major offence is being committed. No matter what defence such a person puts forward once it is proved that he or she committed the offence then the courts would find that person guilty, I am confident of that.

Mr. S. Barrett

Yes, for burning the car but what about the burning of a house ten doors down as a result?

Mr. N. Treacy

If that occurred as a result of the burning of a car then the person would obviously be guilty of and liable for the burning of the house.

Mr. S. Barrett

It would have to be proved that the person foresaw that the action was likely to cause damage to a house perhaps six houses down the road. That would have to be proved in court.

Mr. N. Treacy

There is an onus of proof in every case. I am a layman but I know there is an onus of proof at all times. However, someone could not go to court and put up the defence that resultant damage was not foreseen.

Mr. S. Barrett

Of course a person would do that. In court he or she would say: "I intended to burn the car, your Honour, but I did not mean to burn the house." There would then be a big argument and the court would go into a long rigmarole about whether resultant action had been foreseen. Senior counsel would be brought in, the case would be challenged right up the line and we would all sit back and wait for a decision. That is the reality and we should not fool ourselves. If a person set fire to a car outside a house it would have to be proved by the prosecution that resulting damage to a row of houses, including a house that might be five doors away, was foreseen. A lawyer would argue in defence of an accused person that the person had intended to set fire to the car but did not foresee damage to the houses. Next would come arguments about how much petrol had been in the tank of the car, and the accused would say that he or she did not know that the tank held any petrol or that it was likely that an explosion would result.

Mr. N. Treacy

For the burning of a car alone — if it is proved that a person did that — a person could be sentenced to life imprisonment under our laws. Concurrent sentences can be imposed if more damage is caused. The laws are there and we have to operate them under the constitutional and legal parameters. A person could not claim that he or she did not foresee resultant damage just because of what is stated in the law. When it is obvious that a person could foresee that damage was likely to occur, no matter what defence is put up, so long as he or she is of average intelligence and it is proved conclusively that he or she committed the offence then that person is liable to conviction, and the courts will convict.

Amendment put and declared lost.

Section 2 agreed to.

NEW SECTION.

Mr. McCartan

I move amendment No. 4:

In page 5, before section 3, to insert the following new section:

"3.—Any offence charged under this Act shall not be a scheduled offence for the purposes of the Offences Against the State Act, 1939, as amended."

This is a succinct amendment that states that for the purposes of the Offences Against the State Act, 1939, as amended, no offence under this Bill shall be scheduled. In other words, the amendment proposes to deschedulise offences of malicious damage as under this Bill from the workings of the 1939 Act. That would mean that for the offence of malicious damage alone a person could not be detained under section 30 of the Offences Against the State Act, 1939, for a period of 48 hours or any part thereof.

I should not have the slightest difficulty with the Minister of State on this amendment, considering the earlier debate on the Statute of Limitations (Amendment) Bill. During the debate on that Bill I moved two amendments to delete two subsections on the basis that the legislation would be better served without them. The Minister very cogently argued against me and won the issue on the basis that he was simply doing what the Law Reform Commission recommended and in that respect this Bill followed the commission's recommendations. What I am proposing here is what the Law Reform Commission recommended. The Minister of State, being a great man for consistency, will, no doubt, accept my amendment.

I am perhaps being a little tongue in cheek in saying that because, on the other hand, according to the speech to the House by the Minister for Justice some time ago when he moved the Bill's Second Stage reading he said he would not accept the recommendation of the Law Reform Commission. The reason given by the Minister for that has no substance whatever. He said that the commission's recommendation to deschedulise was not relevant to the proposed Bill because the scheduling or descheduling of an offence was a matter to be effected by a Government order under section 36 of the 1939 Act.

The Minister was saying that that was not the business of the Bill but the Law Reform Commission did not take that view. They made a very strong recommendation on the grounds that the 1984 Act was in existence, providing for the detention of persons for six hours and for a further six hours. In fact, it has been illustrated by many commentators that that detention can approximate up to 40 hours over two days, depending on the hour of the day on which a person was initially detained, the period of time that questioning was suspended in the interim and so on.

Adequate provision exists in the normal corpus of our criminal law for powers of detention for members of An Garda Síochána for malicious damage offences and, indeed, for many other offences. The Criminal Justice Act, 1984 is now the standard legislation in that regard. On the other hand, the 1939 Act is extraordinary legislation brought in under the aegis of Article 38 of the Constitution at the time of the Second World War to deal with inordinate subversion within the State. As the Act states in its preamble and Title, it is an Act to deal with offences against the State and the activities of unlawful organisations at large. It was never designed to deal with the ordinary, everyday, common criminal occurrence.

What has happened is that the Schedule to the Act has on several occasions — and I think I am correct in saying that the most recent occasion was in 1971 — been added to. Malicious damage is one of the offences not originally scheduled but added in later times. Unfortunately, that has led to an extension of the use of the 1939 Act being extraordinary in its concept and original design, beyond what it was originally designed to deal with, namely offences against the State and the activities of unlawful organisations. It is now used almost daily by members of An Garda Síochána and was until 1984, as a device of necessity to deal with recurring, pernicious and difficult crime of interfering with people's property. Take the case of a house break-in in which the method of entry was by the breaking of a window and the house was probably cleaned of all its valuables to the value of several thousand pounds. Though the malicious damage element would be no more than the price of a pane of glass, a person could be, and was, detained for up to 48 hours under the Offences Against the State Act as the only device available to the Garda Síochána at the time to investigate the crime within the confines of the Garda station.

That has now changed fundamentally and under the 1984 Act last week we made permanent in our law the power of detention generally. The ridiculousness of this situation is illustrated in the extreme case of Timothy Bowes where the Garda had to try to operate using section 30 in circumstances for which it was not originally designed. The suspect had been detained on suspicion that he had been the perpetrator of a very serious crime, the crime of murder. He was detained under section 30 on the grounds that the kitchen knife used as the weapon of offence had been bent in the course of its being used in the attack against the unfortunate victim.

Mr. Bowes sought recourse to the High Court. The President of the High Court at the time had no difficulty criticising what the Garda had done. They had sought around for powers that would enable them to investigate the most serious crime known and had used this device, that there had been malicious damage caused to the knife that had been found in the house of the victim and used in the course of the crime. That was very serious and the Garda were severely criticised for that incident.

It threw up the whole question of whether section 30 was ever designed for the purposes for which it was now being used by the Garda Síochána. This led in time to a judgement of the Central Criminal Court delivered by Mr. Justice Barr in the mid-eighties when he ruled that section 30 was never designed for the purposes for which the Garda were using it. He said that what the Garda were doing amounted to an extension of the Act way beyond what had ever been intended by the Legislature. He, in turn, was criticised by the Supreme Court who said that the question of interpreting the extent of legislation was a matter for the Legislature and not the courts and that the judges of the criminal courts in our country had to apply the Offences Against the State Act in the way it was originally drafted, even though in practice it had been given a very wide and extensive use greater than was originally intended by the Legislature introducing the legislation and as reflected in the Title of the Bill.

The point is that there has been confusion and ambiguity in this area which led to the Law Reform Commission pointing up that there was unnecessary confusion, that all of this had now been addressed succinctly by the provisions of section 4 of the 1984 Act and that therefore, the confusion should end. I have to say that there are still considerable misgivings among practitioners and commentators on the civil liberties side of things in our community against the use of section 30 for purposes for which it was never designed.

Many of us, labouring under these concerns, welcomed the fact that an august body of commentators and experts in this area, the Law Reform Commission, had come to the conclusion that this confusion and extension of the original Act beyond the original intent should be ended and, therefore, welcomed the publication of the report and believed there would not be the slightest hesitation on the part of the Minister and the Government in accepting this recommendation. I was, therefore, singularly disappointed that the Minister used a very spurious argument during Second Stage to avoid responsibility in this area.

The Law Reform Commission also spoke about the issue of expense because of people being detained for longer periods than was necessary. It does not seem to worry the Minister greatly although there is talk about saving on public expenditure in a lot of other areas. The Minister does make the point that when we put this Act in place consideration will have to be given to rearranging the Schedule of the 1939 Act to accommodate the new provisions of this Act once it is passed into law. If the Minister is not accepting the recommendation of the Law Reform Commission at this stage, if he is not taking on board the amendment I am proposing, he should at least indicate firmly and unequivocally that the Government accept in principle the recommendations of the Law Reform Commission and when addressing the question of scheduling of the provisions of this Act under the 1939 Act will give consideration to taking out the offence of malicious damage generally from the working of the 1939 Act.

This is a reasonable proposal, an enlightened proposal, and the Law Reform Commission ought to be congratulated for recommending it. I hope the Minister of State who is a great advocate of consistency will not abandon that aspect at this stage and disappoint me in my amendment.

Mr. N. Treacy

I want to be consistent with what the Minister for Justice said on Second Stage, and with the rights of the Government to schedule and deschedule offences at any time. In the interests of law and order, in the interests of the protection of the State and to allow the necessary flexibility to Government in responding to a particularly serious situation, this discretion must remain with the Government.

The fact is that the scheduling, or descheduling, of an offence under the 1939 Act is a matter to be effected by the Government under section 36 of that Act. Section 36 provides that whenever the Government are satisfied that the effective administration of justice and the preservation of public peace and order can be secured through the medium of the ordinary courts in relation to offences of any particular class or kind or under any particular enactment, they may declare by order that those offences shall cease to be scheduled offences.

As the Minister for Justice said when this matter was raised on Second Stage, the need to continue scheduling particular offences is reviewed periodically, but he did not at this juncture propose to ask the Government to deschedule malicious damage offences. However, the matter will come up for review again when this Bill becomes law in the context of making a consequential amendment of the scheduling order, which refers to offences under the 1861 Act. In the course of the next review, the Government will be guided by the views of those responsible for the investigation and prosecution of these offences. They will also take into account the views of the Law Reform Commission and, in particular, the views expressed in this House.

Even if I agree with all the Deputy is saying — and I do not — I could not go along with his amendment. I say that because he is proposing that in no circumstances would the Government — any Government — be able to schedule criminal damage offences in the future. That would be an unacceptable restriction on the freedom of a government to safeguard public peace and order.

Mr. McCartan

You could amend the Act.

Mr. N. Treacy

Deputy McCartan said the Minister for Justice said on Second Stage that descheduling of malicious damages offences was not relevant to the Bill whereas the Law Reform Commission have recommended that it should be in the Bill. In fact, the Commission did not include a provision to this effect in the scheme of the Bill which they appended to their report. Clearly they accepted that any descheduling would not be effected by the Bill but by an order of the Government under the Offences Against the State Act. We must be consistent. This is a very important provision. It is an opportunity for Government to respond to particular situations and I am sure Deputy McCartan can accept that.

Mr. McCartan

I fully accept that it is a very important issue. It is one I will be pursuing to a vote unless I can persuade the Minister of State to change his mind, or if I cannot extract from him some clear indication that the Government accept the principle of what the Law Reform Commission argue and recommend in this area. It is a very important issue touching on the balance between the powers of the Garda Síochána to investigate and pursue crime, and the interests of innocent people at large and the protection of liberties in our community.

The Minister has also indicated that the Government would have regard primarily to the views of the Garda Síochána in respect of whether they should deschedule the offence of malicious damage at any stage. I do not expect the Garda Síochána to easily give up those powers to which they have become accustomed. I made the point on the debate on the motion for the permanent inclusion of section 4 in our legislation, that there has not been a substantial falling off in the number of section 30 detentions irrespective of the existence of section 4 which has been in use since 1987. The rules and regulations, and the application of the law as amended by the 1984 Act vis-a-vis section 4 detention is very cumbersome and it is often difficult for members of the Garda Síochána to operate under those rules and regulations. I appreciate the point made by the Minister for Justice that those same rules should apply to section 30 detentions. In practice section 30 is used as a far more informal and ready device than section 4. Section 4 has been implemented carefully, slowly and methodically. It is a whole new process being brought into the everyday work of the Garda Síochána since 1987.

Practice has shown that section 30 is used with greater ease and more often than it was ever intended. Section 30 is far more succinct legislation. It requires the initial suspicion of the officer that a stated offence has been committed by the person concerned, and then the person is detained initially for 24 hours; there is no question of consultation with a superintendent of the Garda Síochána until 24 hours has almost expired, and the officer needs a further 24 hours. That is one of the advantages for the officer investigating a crime under section 30. He does not have to seek higher approval for what he is doing until 24 hours have almost expired. Under the 1984 Act the officer is accountable to his superior officer within six hours and again at the conclusion. Section 30 will continue to be widely availed of by members of the Garda Síochána irrespective of the desire of this House and the Legislature that the 1984 Act become the norm in all situations where it should apply. That is why the Law Reform Commission make this strong recommendation and argue for an end to the unnecessary expense of the dual situation with regard to most crime and with regard to the unnecessary confusion that has existed heretofore.

This is an important issue and while the Minister might believe that we should not legislate for it at this stage, I argue that it is an extremely important matter of civil liberty. We should use this Bill to lay down a marker that malicious damage type offences were never envisaged under this section. We should bring to mind the original concept of the 1939 Act which was introduced to deal with acts against the State, undermining the status and existence of the State. In what way does malicious damage represent a vehicle through which unlawful organisations will attack the existence or stability of the State in our present context? I accept that unlawful organisations have cachés of armaments and explosives in hides and safe houses in the State and I do not condone that but one has to ask where is the evidence to suggest that they represent a threat to the existence of the State? That question must be asked in the context of debating the use of section 30, providing for 48 hour detention in the context of malicious damage offences and recognising that detention under the Criminal Justice Act 1984 should be the norm.

The Minister said that my amendment if accepted would mean that we would never again be in a position to allow a Government to schedule malicious damage for the purpose of the 1939 Act. There is nothing to stop the Minister, with co-operation from all sides of the House in an emergency, as the Government did in 1973 with regard to the same Act, from introducing emergency legislation. If the security of the State was threatened and we were convinced that malicious damage should be re-entered as a scheduled offence, the Minister could bring in amending legislation with the co-operation of all sides of the House.

The extension of malicious damage for the purpose of the 1939 Act represented the Government of the day taking a degree of licence that allowed the Garda Síochána to divert the use of the 1939 Act to a use which the Legislature of the day never intended. The provisions of the 1984 Act give adequate opportunities to the Garda Síochána to investigate crimes in the police station, with a reasonable period for questioning and detention available to them. If my amendment is not accepted for technical drafting reasons, the Minister should at least give an indication that the Government have a serious intent in this regard. I will not press my amendment if the Minister does that but will wait for the moment when the Government decide, so as to bring matters into line with what the Law Reform Commission recommend in this area.

Mr. N. Treacy

This amendment is not appropriate to the Bill. It is appropriate to a Government order under the 1939 Act. When the Act comes into force all views will be taken into account—the views of the Law Reform Commission and the views of this House—and at the end of the day the Government will make the final decision. I dot not want to sow seeds of destruction but we can all envisage situations where certain organs of the State or facilities of the State would be under threat. We must ensure that the Government of the day have flexibility to be able to respond rapidly under the 1939 Act. The review will take place and everything will be on the table. Ultimately the Government, in the interests of law and order and in the interests of the country, will take a final decision.

Mr. S. Barrett

A programme for economic and social progress, No. 3?

Acting Chairman (Mr. Jacob)

Does the Deputy wish to press his amendment?

Mr. McCartan

As it is of fundamental importance I ask that the question be put.

Amendment put.

The Committee divided: Tá, 18; Níl, 65.

Tá

• Bell, Michael.
• De Rossa, Proinsias.
• Ferris, Michael.
• Gilmore, Eamon.
• Higgins, Michael D.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• McCartan, Pat.
• Mac Giolla, Tomás.
• Moynihan, Michael.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• Pattison, Séamus.
• Quinn, Ruairí.
• Sherlock, Joe.
• Stagg, Emmet.
• Taylor, Mervyn.

Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Vincent.
• Brennan, Mattie.
• Briscoe, Ben.
• Browne, John (Wexford).
• Callely, Ivor.
• Clohessy, Peadar.
• Connolly, Ger.
• Flynn, Pádraig.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kenneally, Brendan.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Lyons, Denis.
• Martin, Micheál.
• McDaid, Jim.
• McEllistrim, Tom.
• Morley, P.J.
• Nolan, M.J.
• Coughlan, Mary Theresa.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Ellis, John.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Noonan, Michael J.
• (Limerick West).
• O'Dea, Willie.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• O'Leary, John.
• O'Malley, Desmond J.
• O'Rourke, Mary.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Stafford, John.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Tellers: Tá, Deputies McCartan and Gilmore; Níl, Deputies V. Brady and Clohessy.

Amendment declared lost.

Progress reported, Committee to sit again.