It was decided to take amendments Nos. 14 and 14a together.
Criminal Damage Bill 1990: Committee Stage (Resumed).
Debate resumed on amendment No. 14:
In page 9, lines 14 to 17, to delete subsection (8) and substitute the following:
"(8) A compensation order and an order under subsection (7) (b) shall be treated for the purposes of enforcement as if they were orders made by the court concerned in civil proceedings and, without prejudice to the provisions of subsection (7), a compensation order shall be treated for those purposes as if it were an instalment order within the meaning of Part I of the Enforcement of Court Orders Act, 1940.".
[Minister of State at the Department of Justice.]
The amendments we are currently considering, No. 14 in the name of the Minister and No. 14a in my name, attempt to address the problem of enforcement of compensation orders and how they should be collected in circumstances of default. In the Bill the Minister basically proposes that the compensation order be reduced to a civil debt and the consequences of that, as I explained the last day, are that a person can be brought before a court and committed for failure to pay compensation. I have argued in this House many times — and I repeat the arguments this morning — that it is, in principle, wrong and inhuman in its consequence that a person be imprisoned simply because they are unable to raise a sum of money. As I pointed out the last day, the statistics clearly show that the majority of people who go to prison for non-payment of a debt go in circumstances where they are living in——
On a point of order, I have nothing against my colleague from Cork North-Central who is a very able Minister in his own area but is it right that a Minister of State for Tourism, Transport and Communications should be here when we are talking about a matter relevant to the Department of Justice?
That is not a point of order.
It is relevant.
We must have an orderly debate.
Do not under-estimate me; it is not my first time here.
I certainly do not underestimate the Minister of State but I am pleased that Deputy Allen raised this point. I came into this House last night to deal with a very important issue relating to the custody of a Liberian national who had been in prison since 25 June for no other reason except that he sought asylum here. There was no sign of a Minister for Justice and he has not been in the House this session.
Let us get down to the business before us.
The Minister for Justice——
Deputy Allen has been a cause of disorder and if he persists I shall have to ask him to leave the House. He is bringing up irrelevancies.
The Minister of State will be answering questions on complex issues.
It is not relevant. Deputy Allen, resume your seat. We shall debate the matter before us and nothing else.
The point I was making was that the statistics and information available indicate that in the vast majority of cases the reason for failure to pay a fine or more particularly, for failure to pay a civil debt, was inability to pay due to poverty. It is wrong in principle that such a person be sent to prison, and it does not represent any form of humane or enlightened attitude on the part of Government or the Minister for Justice who has responsibility. In amendment No. 14a I propose that a clause be inserted stating that no commital to imprisonment or detention shall be ordered where the court is satisfied that non-payment of a compensation order arises from the inability of the person affected to pay. That is a very reasonable proposition to include in this legislation. No-one should be sent to prison for failure to pay a compensation order where the court dealing with the application is satisfied that the person simply cannot pay. I ask the Minister of State to convey this view to the Minister for Justice to see if it is acceptable.
A point was made in this regard on 6 November when we debated the Bill and another Minister of State was present, that a person who comes before a court could be ordered to a term of imprisonment, say six months for committing damage, and in addition ordered to pay a sum of money by way of compensation. I proposed that one order should be exclusive of the other, that if someone was ordered to pay compensation that should be as an alternative to a prison sentence. I made that proposal in amendment No. 6a which we dealt with on 19 June last. However, that amendment was not acceptable to the Minister.
Clearly there is the possibility in this legislation that a person could be sent to prison and ordered to pay compensation, the idea being that once the term of imprisonment is served as a punishment compensation would be paid as a retribution. Having served the term, of imprisonment the person may be unable to find employment or to get the money together to pay the compensation. In that case the defendant could be brought back to court and could face recommittal to prison for failure to pay the compensation. Consequently, under the provisions of this Bill a person could be sent to prison on two occasions for the same offence. That raises very important issues of principle with regard to our penal policy. Is it proper to punish twice for the one offence, particularly with the ultimate sanction of imprisonment? That is more objectionable in principle where a second term of imprisonment is imposed upon a defendant because he or she, through reasons of poverty, is unable to pay the compensation ordered by the court.
This point was taken up by Deputy Barrett the last day. On that occasion I asked the Minister to realise that there are ways and means of dealing with noncompliance with a compensation order other than sending the person to prison. It should be open to a court — it is not contemplated under this legislation or indeed under the legislation dealing with community service orders — to order, in lieu of payment of compensation, that the person be required to do community service work or to engage in some other voluntary work scheme that would repay at least to the community if not directly to the victim some of the loss caused by the original act.
Deputy Briscoe on the last day made the point that the courts should have this sanction but I ask him, and the Minister of State, in the event of the Government adopting that attitude to differentiate between the method of collection of a fine, which is the primary penalty imposed by a court, and the collection of an order for compensation. There is a qualitative and substantive difference between a fine imposed by a court by way of penalty and a compensation order imposed by a court by way of retribution to the victim. The same code of enforcement and sanctions for non-payment should not apply in both cases.
For those reasons I hope the Minister of State will be in a position to at least indicate a willingness on the part of the Minister to accept the proposal in amendment No. 14a or, alternatively, to bring the provision back to the House on Report Stage. It will not substantially take from the idea enshrined in the section, mainly that of compensating a victim in so far as is possible. There has to be a balance. We have argued in some respects that the section be broadened to make it more embracing, but on the other hand there is a need for balance. We are introducing a new concept, that statutory power be given to a court to order that compensation be paid to a victim. It is reasonable to ask in this englightened era as we approach a new century that at least we adopt in principle the concept that no one be sent to prison simply for reasons of poverty or because they do not have the means to make the payment ordered by a court. I am not saying it should be a matter of the defendant walking into court and saying: "I am sorry, I do not have the money". The amendment provides that the court should decide whether reasons of inability to pay exist. Therefore I hope that this amendment will receive the approval of the House.
I have argued that the provision in relation to the making of a compensation order is a huge step forward in criminal law. We are getting away from the traditional options of imposing a prison sentence or a fine. I welcome the Minister of State who is taking the Bill this morning. I do not mean to cast aspersions on him or his ability but I find it frustrating that when we are making an argument on Committee Stage, Ministers keep changing. It is an insult to this House that the Minister for Justice is not here to deal with this important matter — I cannot think of anything more important to the public in his area of responsibility. He has not found time to come into this House on any occasion during the course of Committee Stage of this Bill to consider serious amendments or arguments put by the Opposition to try to improve the legislation. Without meaning to be provocative or insulting to the Minister of State one feels one is just blowing hot air into the ceiling and that it makes no difference what is said because the Department of Justice, and the Minister, have decided that the Bill will go through as it stands. I feel we are just going through the process and that is a terrible shame.
I will give an example of what I am talking about. A deserted wife I spoke to on the phone recently asked if I would make representations on her behalf. A fine of £50 had been imposed on her for non-payment of a television licence. She did not have the money to pay it and was being committed to prison for five days for non-payment of the fine. I would appreciate it if the Minister of State listened to what I have to say. It would be better if we had another Minister if the Minister of State does not wish to take part in this debate.
The Minister is laughing and joking with the backbencher behind him during the course of this Committee Stage debate. It is an insult to the House to have sent the Minister of State to respond to this debate.
As it is Committee Stage, the Minister may intervene.
On a point of order, Sir, lest the tenor of the debate continues as at present, let me say that I have studied the entire record of this debate, and I know what Deputy McCartan, Deputy Seán Barrett, Deputy Ben Briscoe, and the then Minister of State, Deputy Noel Treacy have said. It is wrong to assume that I came into his House this morning not knowing the subject under discussion. I would appreciate if this atmosphere would disappear.
The Minister might listen to the argument I am trying to make. This deserted wife was fined £50 for non-payment of her television licence. As she did not have the money to pay the fine, she was sentenced to five days' imprisonment. She explained her case to the Garda Síochána, and outlined the difficulties she would have in making arrangements to find somebody to look after her children while she would be in prison. She had made arrangements for the care of her children, but as her father was very ill, the arrangement was cancelled for the time being. She was afraid that the Garda would come to take her to prison before she had made alternative arrangements. She asked if she could pay the fine in instalments but she was told no. Will anybody tell me in 1991 that our penal system is working when a deserted wife who does not have the television licence and wishes to pay the fine by instalments, cannot do so because there is no system that allows her to pay the fine by instalments, and she must be hauled off to Mountjoy Prison to serve five days' imprisonment at a cost of £400 to £500 to the taxpayer — as a form of punishment. This is utterly and totally absurd. I am not suggesting for one moment that anybody who does not adhere to a court decision should walk away scot-free. Under the criminal law code a person is either fined or sentenced to prison. I have to admit that the community service order is a forward move. When one looks at all the criminal legislation one sees punishments in terms of 12 months imprisonment and/or a fine of £500 or whatever, and this Bill continues in the same vein. We are trying to introduce a new concept, that is compensation orders, which I absolutely and totally support. I have made the argument over the course of the debate that the victim of malicious damage would far prefer to be compensated by the offender rather than seeing him spend five days or a week in prison. This new method of imposing a compensation order is more likely to stop vandalism than putting the offender in prison for a week.
In this subsection we are going back to the old concept, that someobdy who does not honour the compensation order would end up in prison. It would be better if we could find alternative punishments if they do not pay the compensation order. Prison should be seen as a deterrent for those who have committed serious offences, which gives them the means to integrate into society. It is a nonsense to put a person in prison for five days for the non-payment of a television licence. We should be able with modern technology to provide ways for the payment of fines by instalments. This subsection proposes to restrict to 12 months the period in which compensation can be paid. It should be left to the court to decide on the period of the compensation order. If somebody explains to the court that they cannot afford to meet the terms of the compensation order, the court should be able to decide whether to reduce the amount and extend the period or impose some form of community service, instead of the old method of putting an offender in prison.
I support Deputy McCartan's proposal in principle, but I would be concerned that we would not give the impression that the person who pleads inability to pay would walk away scot-free. We should be able to ensure that the person who is unable to pay carries the liability or does something for the community instead of serving a prison sentence. I urge the Minister to change this narrow way of thinking which defeats the whole purpose of the compensation orders. Why should the taxpayer be asked to pay £400 to keep somebody in prison for five days, as in the case I instance where somebody did not pay their television licence? In this case, the person accepts that she must pay the fine but she cannot afford to pay £50 in the required period. In fairness, I suggested to her that she contact the Minister's office and petition the Minister, but it must be appreciated that a great many people in this position do not know about this procedure and will end up in prison. I am quite certain that if the Minister — indeed any Minister no matter of what party — knew of the circumstances, he would reduce the fine or strike it out altogether.
I agree with the principle outlined by Deputy McCartan and I ask the Minister to consider seriously, as I asked the Minister of State previously, a number of amendments I have tabled on Report Stage to improve section 9. He should go ahead at full steam with the concept of the compensation order and leave it flexible. It is a good principle and it should be supported. Likewise, if people get into trouble and cannot meet the terms of the compensation order the courts should be able to be flexible to extend the period or say that in lieu of imprisonment the person must do so many months of community service work. At least the person would be giving something back to the community rather than taking all of the time.
I wish to intervene very briefly in this debate. I have listened carefully to what Deputies McCartan and Barrett have said and I recognise an amount of logic in their arguments. I am a little hesitant about the fact that an instalment order will have to be paid within a period of 12 months. I assume that the thinking behind the imposition of that time limit relates to compensating the victim. If, for example, a person does damage worth £2,000 to property and a District Justice decides that the best sanction would be to ensure that the offender compensated the victim to the extent of £2,000 and there was no time limit within which the £2,000 compensation order had to be paid, could it be said that the victim was being properly compensated? Is it proper for the District Justice, having considered the means of the accused, to decide that the accused could afford to pay £5 per week and thus compensate the victim over ten years? That is probably the thinking behind the time limit, but I agree a little more flexibility could be provided.
Deputy McCartan made the point that under the Bill a person could be the subject of a compensation order and sentenced to a term of imprisonment. I do not see how that could happen under the Bill as drafted. Section 9 provides for compensation orders and the main determinant of whether a District Justice will order a compensation order is the means of the accused. Deputy Barrett does not agree, but section 9 (4) states:
In determining whether to make a compensation order against a person, and in determining the amount to be paid by a person under such an order, the court shall have regard—
(a) to his means,
Unless the person against whom the order has been made has capital that would constitute sufficient means to make a compensation order against him or her it is difficult to see how a court could, properly applying the provisions of section 9, send a person to prison while at the same time impose a compensation order upon him or her. If a person who does not have means is sent to prison that person will be deprived of income for the time he or she is in prison and, therefore, his or her means would be nil. Taking into account the person's means at that stage, how could a District Justice order the payment of compensation? I cannot envisage that situation arising. I do not want to mention names, but if a member of one of the recognised crime families of Dublin or, indeed, my own city who has plenty of means is convicted of damage to property and the District Justice knows from that person's means that he or she can compensate the victim out of capital terms I can see no harm in the District Justice having power to sentence that person to a term of imprisonment also.
Deputy McCartan made the point that there is a qualitative difference between a compensation order under this legislation and a fine imposed for a specific offence. I agree with that, but Deputy McCartan will also agree with me that on the other hand there is a qualitative difference between civil damages awarded as a result of a civil action and a compensation order made under this legislation. A person who suffers an award against him or her for civil damages is presumably liable in contract and so on but a person who is made the subject of a compensation order is someone who went out deliberately to damage property in a criminal manner.
If the ultimate sanction of imprisonment applies to a person who was liable only for a civil debt surely there is a very strong case that it should be applied to a person who had been made the subject of a compensation order because that person would have been criminally prosecuted to conviction. To suggest that the ultimate sanction should be taken out in this regard when it continues to exist in civil law is putting the cart before the horse. I find it outrageous that people who cannot pay small fines or civil debts because of poverty should be sent to prison but it is an outrageous necessity because at the end of the day there must be some sanction. We have all come across people who have been fined or who have had an order made against them by a civil court for a certain amount of money and who recognise the courts and the legal system and pay whenever they get the money. However, there are those who never want to pay. If at the end of the day there is no sanction on those who do not pay, why should everybody not get away with that? I may be wrong in this, and I do not doubt that the Minister of State will clarify the position for me, but as I understand the civil procedure now being applied to compensation orders is that of committal order stage if a convicted person can satisfy a District Justice that he or she is unable to pay, the District Justice has discretion not to impose a sentence of imprisonment on that person.
Deputy Barrett asked why should we send people to prison, why should we not do this, this, or this. That is fine, but what is "this", "this" and "this"? We would like some positive suggestions about what could be done by way of an alternative. Community service orders have been developed. As far as I know, in the case of a person who has been made the subject of a committal order a District Justice has no discretion to impose a community service order on that person, the District Justice has to decide to either send that person to prison or not. I agree with Deputy Barrett in that regard, the law should be changed.
I agree that we should look towards other types of orders. If Deputy Barrett has suggestions of further options to imprisonment, an issue which has exercised the minds of penologists and writers for many decades, the Government would be delighted to hear them. Obviously, the sentencing of a person to give a specific number of hours a week to community service is one alternative to imprisonment. However, when a civil action comes to committal stage the sanction of a community service order should be available to a District Justice, a District Justice should not simply have to make a decision between imprisonment or non-imprisonment.
Section 9 provides that where a compensation order has been made a person may say, before he or she has fully complied with the compensation order, that his or her means do not permit payment and in those circumstances a District Justice may reduce the amount remaining to be paid or may order repayment if the victim has been over-compensated in the light of the most up-to-date evidence. On reflection, I agree with some of the points made by Deputy Barrett. There is room for some flexibility; it should not be a question of automatically reducing an order. Perhaps District Justices should be given discretion to allow people pay over a longer period rather than to simply reduce the amount remaining to be paid.
Looking at the section it would appear there are adequate safeguards included. In all honesty I do think that the sanction of a community service order should be available as an alternative to imprisonment at committal stage.
I thank Members for their contributions on this important section. I see that Deputy Bell has arrived. I forgot to mention him in my earlier litany of speakers whose contributions I read in preparation for taking this item this morning. I should like to deal with the various points raised by Deputies on amendments Nos. 14 and 14a. which were discussed on the last occasion we debated this Bill and again this morning.
I do not think there was any objection to the official amendment, No. 14, which aims at simplifying the enforcement of compensation orders. It does so by treating these orders as if they were instalment orders made by the District Court under the Enforcement of Court Orders Acts.
The effect of the amendment is that, compared with the existing provision in the Bill, the victim of the damage does not have to undertake the first stage of the normal enforcement procedure, that is he or she does not have to get the court to grant an examination order followed by an examination of the convicted person as to his or her means so that the court can decide on what should be the appropriate instalments or indeed whether the debt should be paid in one sum. There should be no need for this first stage of the procedure in the case of failure to pay under a compensation order. That is because the means of the convicted person would have been fully taken into account by the trial judge when making the order. Therefore, under the provisions of the amendment, the victim can go directly to the court requesting the court to enforce the compensation order. What happens then is that the convicted person is summoned to appear at the hearing and is given an opportunity to explain why he or she is not complying with the order.
That brings me to the powers of the court to enforce an order and to Deputy McCartan's amendment No. 14a. which seeks to ensure that a person cannot be imprisoned for failure to comply with a compensation order if he or she is unable to pay. However, I should say that that objective is being secured by amendment No. 14 which applies the general law governing enforcement of instalment orders to compensation orders. That law contains the necessary safeguards.
Section 6 of the Enforcement of Court Orders Act, 1940 provides for the case where a debtor fails to comply with an instalment order and the creditor applies to a district justice for the arrest and imprisonment of the debtor. Section 6 (c) prohibits the justice from ordering arrest and imprisonment and reads as follows:
...if the debtor... shows, to the satisfaction of such justice, that his failure to pay was due neither to his wilful refusal nor to his culpable neglect.
That subsection meets the Deputy's concerns with which I am sure we all agree, that is that nobody should be imprisoned for a debt he or she is unable to pay.
I should like to refer specifically to some of the points raised this morning, in particular that by Deputy Seán Barrett about the woman imprisoned for failure to pay a television licence. All of us public representatives will be aware of these types of cases. What the Deputy said is quite true as far as it goes. What was surprising to me was the fact that the Garda did not advise nor inform this woman that she should write to the Minister for Justice explaining her circumstances when the warrant for imprisonment would have been suspended. The Garda do this regularly when confronted by hardship cases. If I may say so, there should be more of that common sense type of approach to circumstances or cases such as those. Of course it is unacceptable that somebody should go to prison, somebody whose circumstances do not allow for payment of a fine, for the non-licence of a television set in one payment. If there is no provision obtaining under which such a fine may be paid in instalments we legislators, combined, would want to see to it that such provision is made.
The Minister of State is in Government.
We could continue to say whose fault it is or is not. At this point if we ascertain that something needs to be done we should do so. It is not acceptable that somebody should be imprisoned for their inability to pay a fine in one sum or should be refused payment by way of instalments. Perhaps the remit of the Garda does not permit them to do so but whatever is required should be attended to. Members will be aware that the Minister for Justice regularly accepts that fines be paid by instalments in hardship cases.
As regards compensation orders, often these will be ordered to be paid by instalments. Therefore, it will be seen that there is a parallel here in that people who are unable to pay fines in one sum should have that instalment facility afforded them.
Deputies Seán Barrett, McCartan and O'Dea asked whether a community service order should comprise an alternative to imprisonment where people refuse to pay compensation even in cases where they were able to do so. I pose that question. That may be an interesting idea and I am sure will be considered in the context of legislation dealing with fines and compensation, in other words, within the general context. I do not think it would be proper or appropriate to deal with it solely in relation to compensation orders.
Deputy O'Dea made the point that a district justice has discretion not to send a person to prison for the non-payment of a debt if he or she cannot pay — I go along with that — but it is more than that. Under section 6 (c) of the Enforcement of Court Orders Act, 1940 he is obliged not to do so and for example, can vary the order, to reduce the amount of the instalments.
I think I have dealt with all of the points raised on this and the previous occasion and that what I have said meets Deputy McCartan's concerns.
Is the Minister accepting my amendment?
The provision in Deputy McCartan's amendment No. 14a is adequately covered by amendment No. 14. There is not, nor is there intended to be, any contradiction in what I am saying.
Therefore, the Minister should accept my amendment.
With respect it is important that the Minister listen to what has been said. I do not think any Member said that anybody who can afford to pay under a compensation order, and who does not, should not be committed to prison or be meted out some other form of punishment; nobody said that. We are talking here about people who cannot afford to meet the compensation order and the terms under which it was made. I accept absolutely the principle that somebody who refuses to adhere to the decision of the court should not walk away scot-free. We must remember we are in 1991, using modern means to deal with people who commit offences.
Deputy O'Dea spoke about the 12 months provision and explained why he thought it had been inserted in this Bill when, with respect, I would maintain he was contradicting himself. The restriction to 12 months will have a greater effect on the victim of crime than the extension beyond 12 months. If damage to the extent of £2,000 is caused and the court is obliged to take account of the means of the individual, who in this case may be able to afford only £5 or £10 a week, then the court may make a compensation order for £500 since that is all the person will be able to repay within 12 months. If the order were extended over two or three years the victim might get back the full £2,000. It is time to grasp the nettle. We are talking about malicious damage and I do not accept that anybody in receipt of some form of income should be able to cause malicious damage to property without being penalised in some way for that act of vandalism. He may take a torch to five or six cars parked outside local authority houses whose occupants are paying high rents or mortgages for those houses and are repaying loans to the credit union or the bank for their cars. Surely the culprit should have to pay compensation. Nobody thinks about the unfortunate victim who still has to repay the loan for the car which has gone up in smoke. It is time to be realistic. If we have to attach the unemployment assistance or benefit which the culprit is receiving and he has to forfeit a couple of pints a week, so be it. We should not water down this legislation or pussyfoot around this growing problem in the Dublin area. Perhaps the same is true in Cork and Limerick. It is best to make people contribute to society by imposing a compensation order and/or a community service order rather than imprisoning them at a cost to the taxpayer of £800 a week.
I do not disagree.
We should be as flexible as possible. I do not know the technicalities of the Act the Minister of State has quoted, but I hope Deputy McCartan received a categoric assurance. If a person is not meeting the requirements of the compensation order on the grounds that he cannot afford it, it should be possible to amend the order or to provide for some form of work in society in lieu of imprisonment. If that is provided for in existing law, I presume it meets the point made by Deputy McCartan. He is saying that a person should not be imprisoned on the grounds that he cannot afford to pay but I am saying that the person should not walk away scot-free.
I thank the Minister of State for his reply. He has not given any categoric assurance or an emphatic "no"' to the proposal put forward in my amendment No. 14a. Perhaps that is to allow some scope for manoeuvre. I am happy to have heard from a representative of the Government the unambiguous statement that everyone, including those on the Government side, agrees with the principle that a person should not be put in prison for failure to pay a debt or fine if he is unable to do so. Despite the fact that this matter has been pursued time and again in this House, there has never been a concession to that effect from the Minister for Justice. If my amendment does nothing more than draw a Minister of State from whatever Department in this direction, I am quite happy. In time the view will percolate through. I acknowledge that some progress has been made.
The Minister has said there is no contradiction between what I am proposing and his own amendment No. 14, because of what is provided for in section 6 (c) of the 1940 Enforcement of Court Orders Act. If there is no contradiciton, why not accept my amendment? While it might seem on the reading of the 1940 Act that there are adequate safeguards and that a court should not send a person to prison on account of inability to pay, the working has not worked in practice as a safeguard. I must ask the Minister to accept my word on this, based on my experience as a solicitor in the courts for some years. It is provided in the Act that a judge should not imprison a person for failure to comply with an instalment order where the court is satisfied that the failure does not arise from wilful refusal on the one hand or culpable neglect on the other. The 1940 Act does not provide, as my amendment does, that a person should not go to prison where the court is satisfied that the person is unable to comply with the order due to inability to pay. There is a difference in wording and emphasis and in interpretation and practice.
Arising from basic class differences between those who seek work and those who sit on our benches, many judges consider persons unemployed and unable to work as being culpable and neglectful. They cannot seem to understand that there are almost 300,000 people who cannot find employment, no matter what effort they make, and cannot appreciate that between 30,000 and 40,000 people are forced to leave this country each year to seek work abroad. Judges will often not accept that a person is unemployed due to reasons beyond his control, and they will deal with such a person as if he were culpable and neglectful and wilfully refusing to pay.
I have often heard an arrogant judge ask what efforts a person has made to find work and when it appears that the unfortunate defendant had not spent 24 hours a day crawling from one premises to another looking for employment the judge says that is not good enough. When a person in receipt of unemployment assistance or benefit from the State is before a court and states that he has such commitments that he is unable to pay, the judge often cannot realise that there is no wilful refusal. The statistics show that between 200 and 300 people a year are sent to prison for failure to pay civil debt. More than 1,000 people are sent to prison every year for failure to pay fines, the vast majority of whom live in abject poverty. For some reason, the wording of the 1940 Act and the practical considerations which should exist do not, in reality, seem to be brought to bear in such cases. If, as the Minister says, what I am arguing for in my amendment exists in the law at present, why is Deputy Barrett's constituent, a separated women, who was not able to pay the fine for not having a television licence now facing five days' imprisonment?
I do not want to be over-critical in my remarks about District Justices and say they do not realise what is going on in the real world because many of them do, but on occasions the wording of the 1940 Act on the civil side does not work to keep people in genuine poverty out of prison. Therefore, I am asking the Minister to update the wording of the legislation so that we say exactly what we mean. I contend that a person should never go to prison if the court is satisfied he or she is unable to pay the amount being ordered, and that discretion should be left to the judge to make inquiries in that regard. The wording of the 1940 Act does not work in the way I think the Minister of State wants it to work, and the way in which we as legislators believe it should work.
I wish to refer briefly to Deputy O'Dea's remarks for which I thank him and which I found helpful to some degree. I think we all agree that there is a substantive and qualitative difference between a compensation order on the one hand and a fine on the other. A fine is a penal sanction imposed by way of punishment whereas a compensation order is qualitatively different. The Minister takes this into account in his amendment which provides that: "A compensation order and an order under subsection 7 (b) shall be treated for the purposes of enforcement as if they were orders made by the court concerned in civil proceedings... ". Therefore, a fine is being given the status of a civil imposition and not a penalty.
Deputy O'Dea determined very colourfully that there is this outrageous necessity in the area of civil debt. I have to take issue with this because I do not believe we should ever bind ourselves into the clear contradiction of saying that something is necessary on the one hand while conceding on the other hand that it can be outrageous. Deputy O'Dea's argument is that there will always be people who will never want to pay. I agree that there are people who never want to pay — but my answer is to ask the credit companies and other leading institutions to put their house in order and ensure that they never lend money to people who "never want to pay". These people are well known to credit institutions which keep and pass this information between them. I have no doubt that credit institutions in Dublin, Limerick, Cork and eleswhere maintain lists of names which enable them to assess people seeking finance, particularly those who have defaulted or who fall into the category of those who never want to pay.
In this context it is worth putting on the record the experience of one of my constituents who needed money coming up to Christmas. Because of a family bereavement he had major problems meeting his financial commitments and thought a loan of £300 would tide him over the Christmas period. He went to a credit company — which I will not name for the moment — and was interviewed by a girl who said he could get a loan. However, when he said he needed only £300 he was told they did not give loans of that amount; they gave loans of £1,000 or nothing. Because he badly needed money he accepted a loan of £1,000. A few days later he received a cheque for £1,000 in the post but there was no covering letter on the terms of the loan. This man now has major difficulties making his repayments. He got money he did not need and he was not prepared to say no when it was offered to him that easily. Loan companies seem to have a tendency to push money at people and from this they run up massive debts and then are classed as people who "never want to pay". Such people should never get money in the first instance because they do not have the capacity to repay it.
This is the way we should approach the phenomenon about which Deputy O'Dea is concerned. I do not think we should ever send someone to prison to collect a civil debt. While I have argued this before I want to again make the point that this system is totally inefficient from the point of view of getting value for taxpayers' money. At the end of the day, we spend five times as much keeping people in prison for the non-payment of civil debts than we collect on behalf of creditors. We are just throwing good money after bad and we do not get any return on it. We must bear these considerations in mind in the context of this amendment. The Minister proposes in his amendment that on the civil side, compensation orders should be dealt with by way of enforcement.
I wish to refer to the point made by the Minister. His amendment would cut out many of the preliminary stages — there would be no examination order or instalment order as on the civil side. The matter would come back before the District Court based on the existing order for compensation as though it were an instalment order per se. The issue which will have to be addressed by the District Justice in the court on that day is whether a person will pay, and if not, why not, and should be imprisoned. The alternative is for the judge, having asked for an explanation, to decide whether to send a person to prison. This is a very limited process.
While the Minister's amendment will bring that day nearer in a single move, if the section was left as originally drafted in the Bill as circulated, the matter could be converted from an order of the court on the compensation side to an order of the court on the civil side so that an examination notice could be served, an examination would take place and there would be an instalment order. This would allow for that extra process. I have no particular difficulty with the Minister's amendment but it would speed up the process and bring the proceedings to a very quick conclusion.
The option being left to the District Justice is far more critical. Time and again case hardened judges frustrated and disappointed with the working of the law and having thought the payment of compensation was a good idea six or nine months earlier may be faced with time running out on the 12 month period and may say, "I will not let this guy get away", take what might be crudely disguised as a knee-jerk reaction and may send him back to prison because "I am not going to be bested". In that context considerations like wilful refusal or culpable neglect do not feature and it is a net issue for the judge, who will ask "are you paying or not and, if not, you are going where I put everyone else like you, into Mountjoy". I accept the Minister's point that in essence there is no contradiction in what we are talking about, but in practice the contradictions will and do emerge. Therefore I ask the Minister to insert a positive statement in our law that a court should not put some person into prison for reasons of inability to pay. I hope the Minister will accept the amendment in the circumstances.
I have listened to the debate on this very important subject, I was of the impression that the purposes of the Bill was to put the emphasis on compensation to the person who was injured, the person whose property was damaged, the person whose house or car was burned and there are many examples of that. I thought we were trying to strengthen the law and discourage people from wilful destruction of property and damage against the person. I would much prefer to be dealing with ability or inability to pay on the basis of the social welfare legislation rather than on the basis of legislation dealing with this subject, because we all know in this House that the question of ability to pay can often be arranged and abused. For example, I have seen cases where the maintenance payment to a wife and her young children was reduced because the guy who was supposed to pay the maintenance order at a certain level arranged to go on the dole or did not work any overtime or had his income reduced to such a degree that the court had no alternative but to reduce the level of maintenance. I have no doubt the same type of situation would arise here. We have to consider that whether the person has the ability to pay, that is the person who has committed the crime against the other person and that the main thrust of this Bill should be to ensure that there is a disincentive for people to injure and damage the person and people's property.
If we talk about ability or inability to pay — I will not talk about people in receipt of social welfare because very often they may have, in terms of total income, as much if not more than the people who start work in the morning at 8 a.m. for seven days a week in a shop or wherever — we must conclude that it would then be deemed to be OK to set somebody's house on fire or to wreck or steal somebody's car or run it up against the wall, in the knowledge that when this eventually comes before the court, because his income is low, he will not be sent to prison. If that concept was to develop you would sentence a person for murder based on his level of income. The vast bulk of criminal law is based on the crime, not on whether the person can pay the fine. There is no justification for this new concept that because one is on a low income, for whatever reason, one can break the law.
Naturally, I would have sympathy with a person on a low income but the legislation to deal with that is social welfare legislation to assist people on low income or by some other means of State subsidy. We should not say: you should not go to jail, you can do whatever you want, you can commit a crime against somebody which will cost them up to £50,000, £60,000 or £100,000, and because you cannot pay you go down the street because the judge said: "Sorry, this man cannot pay" and the hard working person has to pay. That would be bad law.
I am calling Deputy Seán Barrett.
Deputy Barrett has already spoken.
Acting Chairman
The Chair calls the speaker. He had indicated before you——
He has already commented on this amendment.
Acting Chairman
He is entitled to do that as it is Committee Stage. I indicated that I had intended calling him. I will call Deputy O'Dea next.
I am glad to see Deputy O'Dea is taking an interest in this matter. I think we are getting into very dangerous territory here because we are beginning to mix up the arguments in relation to civil law and the circumstances that may prevail where somebody enters into a contract in civil law cannot afford to meet the requirements and where, perhaps, the lending institution was somewhat at fault for giving the money in the first place. There is a hell of a difference in that scenario in civil law from what we are talking about here. This is a question of compensation orders in relation to malicious damage which is a different ball game altogether.
I think we should get back on the rails. We are talking about people who go out and damage other people's property. It is not a question of whether they should or should not have got involved in this particular contract or whether they were 50 per cent right or 50 per cent wrong. This is malicious damage and this is what the punter outside is complaining of bitterly day in day out and rightly so, where people are going around damaging other people's property for no good or genuine reason, going into our courts at present and, perhaps, walking out under the provisions of the Probation Act or else finding themselves in detention for a given period and not even serving that sentence because of overcrowding in our prisons and so on. This is a new concept. This is where we might say, we may send you to prison, or we may send you to prison and you must pay compensation or, perhaps, we will just make you pay compensation. I am totally in favour of making people who damage other people's property compensate that person for the damage they caused.
As I said here the last day, the real deterrent in this type of crime is when you hit people in the pocket, where they themselves suffer for what they have done. Whether it is a community service order with compensation or compensation on its own, the victim is entitled to be compensated. What is wrong with our debate this morning is that we do not know what the Minister and his Department are going to do about the other amendments on which we got a commitment that they would be considered further on Report Stage, such things as the period of payment of compensation. The options vary if the period of compensation changes. For argument sake, if it is open-ended it gives the judge more discretion. If somebody comes before him and says: "I cannot afford at the moment to meet the requirements of the compensation order" and the judge knows that he can extend the compensation order over two or three years, he can reduce the level of payment so that the person can pay the compensation over two years and he can direct the person to come back to him in six months to see how things are going. With that sort of flexibility what we are talking about here this morning becomes a different case, but we do not know what attitude the Department of Justice will take to our amendments relating to the period over which compensation must be paid.
It is important for us to try to persuade the Minister and the Department, in introducing this new concept of compensation order, not to put obstacles in the way before they start. They should leave the discretion to the courts. It should hurt a person to have to pay under a compensation order because we are talking here about malicious damage and not about a civil action. If a person vandalises a car or breaks a window just because he feels like doing it and is only getting £40 odd a week from the State in unemployment assistance, I do not want to be told that he cannot afford to pay for some of the damage that has been caused. If such a person has to forego one or two nights in a local pub for six months to make good the damage, so be it. There is a difference in judging whether someone can afford to pay under those circumstances rather than under some other circumstances.
I am arguing for the principle of Deputy McCartan's amendment not because I want a person to be able to go into the court and plead inability to pay and have the appeal accepted. If a person goes into court to plead that he cannot pay, instead of being put into prison, the court should have the discretion to alter the compensation order, to extend the period, impose community service work or something like that. The culprit must have to do something to repay. The same criteria need not apply in a civil case, but only in cases of malicious damage.
The only way to combat the sort of vandalism which occurs in towns or cities is by being tough with compensation orders. We should not be afraid to stand up to the thugs who have no consideration for other people's property. We should not compare the circumstances of a person who commits malicious damage with the circumstances in which perhaps a person takes out a loan at Christmas time and then finds he cannot repay it. That is a human aspect which I can understand. However, I cannot understand somebody lobbing a brick through a plate glass window for no apparent reason. The circumstances in these cases are totally different.
I would ask the Minister of State to use his influence to persuade his Minister and the officials in the Department not to water down the provisions of this compensation order by including unnecessary restrictions.
We are talking here about new legislation on damage to property. Section 9 provides that a district justice or a judge may order a person accused of causing damage to compensate the victim to some degree. In determining the compensation order the judge must take into account the means of the accused. If the accused can satisfy the court that he cannot pay anything, the court is compelled not to make a compensation order against him. The level of the compensation order will depend on the extent to which the judge is satisfied that the person has means to pay it. A judge can be satisfied that a person can pay £500 over a 12 month period, but if during that 12 month period the person's means change, he has the right under subsection (7) to appeal to the court for a change in the compensation order. In those circumstances the court will consider the matter and will say, for instance, that a person can pay something and can reduce the payment to perhaps half what it was before, and the total amount of the compensation order will accordingly be reduced.
Deputy Barrett suggested that I was contradicting myself when I referred to the 12 month period. I hope he did not misrepresent me intentionally. I went out of my way to agree with Deputy Barrett. I am not happy with the 12 month restriction. There should be more flexibility with regard to it and to what the court may do under subsection (5). It seems that the only discretion the court has is to reduce the amount. The court should also have the power to extend the repayment period. My reference to a ten year period was in an effort to find some theory as to how the 12 month period was arrived at by the parliamentary draftsman. My theory may be wrong and there may be some other thinking behind it. If there is, I would like to hear it.
I agree that there should be more flexibility. One would have to be pretty dense not to see that if all a person can afford to pay is £5 a week and he can only be ordered to pay compensation for 12 months, that amounts to only £260, whereas if he could be ordered to pay it for two years the victim would be compensated to the extent of £520 under the compensation order.
Deputy McCartan referred to the wording of the 1940 Act. I do not know if the superior courts have ever given any directions or guidelines on how district justices should interpret these words, but perhaps Deputy McCartan who is more experienced in this area might enlighten us. With regard to Deputy McCartan's statement about some district justices adopting a class attitude, or a biased attitude, and not accepting that unemployment can cause people not to be able to pay fines, civil debts and so on, if there are such district justices who are so blinkered, so out of touch with reality, they will equate obvious abject poverty with wilful refusal to pay. It will hardly be possible to satisfy such a district justice that non-payment arises from inability to pay. Therefore, even if the amendment is well intentioned and even if the wording of the 1940 legislation should be updated——
Would the Deputy agree that it is at least more explicit?
On reflection, I do not. I would like to know if the superior courts have ever considered the wording of the 1940 Act or commented on exactly what it means. If there is such a case I would like to be referred to it because I would be recommending amendments based on the outcome of the case and on what members of the Judiciary may have said.
Deputy McCartan referred to certain credit companies. I take his point. We have a serious problem with credit companies and moneylending organisations down in Limerick. I do not want to stray from the amendment but some of the moneylenders I have had dealings with in Limerick do not resort to the courts to collect their debts. However, we will deal with that on another day.
Even if there is some provision to deal with the credit companies who have undoubtedly acted irresponsibly over a period, it is only addressing a small part of the problem. There are multitudinous other areas where people are liable for civil debts either in contract or tort which will not be dealt with if we put some restrictions on the credit companies. We will still be faced with a dilemma; there must be some sanction at the end of the day. As Deputy Barrett says, there is a world of difference between a credit company irresponsibly pushing too much money on somebody and a person going out to wilfully and maliciously damage the property of another.
That is the situation as I see it. We have to bear in mind at all times that under subsection (7) a person can come back at any stage to the District Court if his circumstances change and he cannot pay. Even though that subsection is there it will not impress a district justice with the attitude so colourfully described by Deputy McCartan earlier on. All we can do here is write the best law we can. We must then depend on the Judiciary to apply that law in a logical and sensible manner.
I certainly support the comments of Deputy Bell and Deputy Seán Barrett. With all due respect to Deputy McCartan, this amendment is ridiculous.
The Minister of State says it is the law anyway.
We now have an opportunity to deal a blow to the mindless vandals in our society by making them pay for the damage they commit. I also am one of those who feel that this compensation should not be restricted to 12 months. It should go on. A person who destroys somebody else's car should pay that person compensation. I do not care if he pays only £1 a week for 20 years but he should have to pay something so that he will think twice before putting a brick through another windscreen or setting fire to another car. Here is an opportunity to finally deter some of these criminals. For years I have been calling out for compensation to be made payable to the victims of crime.
What about the poor man who has a car worth only a couple of hundred pounds which, because he happens to be a good mechanic, he is able to keep on the road? What about that man who cannot afford insurance to protect his car against fire and theft, who has the minimum of insurance, third party only? How is he to be compensated when he has to pay more money in bus fares to get to work because he may not be able to get another car? At least if some fellow is paying £5 a week into a fund that man might be able to eventually buy another car, perhaps on the basis of a loan.
I am very fervent in urging on the Minister that here is the opportunity we have been waiting for. We will not get an opportunity like this again for a long time. As we all know it takes years for legislation to come before this House, before we can enact it. Let us put teeth into this one. If we just introduce a hopeless Bill so that lawyers can go into court and plead on behalf of their client, who is getting free legal aid for which the State is paying, who has no job and has only £60 or £70 a week in unemployment benefit or assistance and who is not in a position to pay, we will not be achieving justice. Justice comes into it; justice is relative. If the person has a job and is earning £20,000 a year or £16,000 or £17,000, he can afford to pay more and it should be that way. The person who is receiving money from the State, from the taxpayer, and who sets out to persecute the taxpayer by destroying his property, should be made liable before the law, and I do not care if 10 per cent of his welfare has to be taken away from him. We should make him pay and I can assure you, a Chathaoirligh, that will be the best deterrent.
Many of these people could not care less about going in and out of jail. It is a way of life for them. Sometimes they get caught and other times they do not. They go to jail. They have heat in the winter. They have good food, shelter, probably better living conditions than many of them have in their own homes. Jail does not hold any hardship for those people and anyway they are out in a couple of months because the jails are full. If we make them pay that sting will stay with them every week that money is missing out of their income. That will sting, and every time they contemplate picking up a brick with which to damage someone else's property, or putting a match to a car they will think again.
This is what the people want. We are here to interpret as best we can what the wishes of the people who elect us are. Without any hesitation I can say that the wish of the people who elect me and my colleagues in our constituency is that we should do something about this problem of criminal damage. This is an opportunity to do so. I would urge the Minister to be brave and to take this problem on board.
The people who are always calling for a reduction in this kind of penalty are often the people who benefit from crime, who have cornered the market in crime. I am not casting any aspersions on Deputy McCartan, in case he thinks I am.
You could have fooled me.
The Deputy has said that he does not practice as a lawyer anymore, whatever about the family business, and that is neither here nor there. I want to make it clear that people are sick and tired of people in, for example, The Workers' Party, going out and telling people how terrible crime is and then, in here, opposing any type of legislation which is intended to finally deter the criminals on our streets. This is the best measure I have seen before this House in many years. Let us make the most of it.
The first thing I want to say is that I am not accepting amendment No. 14a, and I gave the reasons earlier. It is already covered in law; I quoted the Act for the Deputies. As regards the suggestion that Deputy McCartan's amendment is a better safeguard than section 6 of the 1940 Act because of the way it may be interpreted by judges, it is difficult to see any difference in substance between inability to pay and failure not to due to refusal or culpable neglect. We could end up with the same result — that is, misinterpretation — if the amendment were to be accepted. We cannot make provision for the fact that some judges take a narrower view than others of how the formula in the 1940 Act should be applied in a particular case. I suggest that no matter what formula is used that problem will always be there.
Deputy Barrett mentioned that a compensation order may provide for the payment of compensation by instalments during a period not exceeding 12 months. This period is specified in subsection (5). Previously the Minister of State gave an undertaking, and I repeat it now, to bring in an amendment on Report Stage to make this provision more flexible — such period as the justice in any given set of circumstances would consider reasonable. I do not know whether there was telepathy at work but before Deputy Barrett spoke I had written down my own assessment. I agreed with him or anyone else who suggests that we should not water down the proposed legislation to make it ineffective in striking a balance between the offender and the offended.
Deputy Briscoe, Deputy Bell and others made the point that we must not lose sight of the deterrent aspect. It would be very bad if at the end of the day people could say they could not afford to pay compensation and therefore could do what they liked. The opportunity is being given to us in this legislation to either maintain the existing deterrent or to establish a stronger one. While provision must be made for a person's inability to pay, it should be our objective to provide a deterrent.
I would like to make a small point on the question of inability to pay. As has been suggested by Deputies Bell and O'Dea, a debtor can arrange to go on the dole or not to work overtime so that when the hearing comes up they can prove they are unable to pay. However, they would be less likely to get away with this under the culpable neglect formula which reads "neither to his wilful refusal nor to his culpable neglect." Evidence could be given to show that a person had entered into an arrangement, such as going on the dole, for the time being. The existing law covers this aspect much better than the way many Deputies have suggested. As I have already said, the principle outlined in Deputy McCartan's amendment is already covered. Therefore there is no need for me to accept the amendment.
Again, I thank the Minister of State for his reply and accept that he is not accepting the amendment. I will be asking you, Sir, to formally put the question. The Minister of State made the point before other Deputies came into the House that there was no disagreement between him and myself in principle on this issue. He had made the point also that the issue I am talking about is covered more comprehensively by section 6 (c) of the 1940 Act but I believe we should make a firm statement in this Bill.
It was with great regret that I had to listen to the intervention of Deputy Briscoe who, because he arrived late for the debate, clearly missed the central point that there was no disagreement. I take issue with him when he says that I am seeking in this amendment to take teeth from or to water down the section. As the Minister of State has already said, this has been the law since 1940, in statute form at least. I do not know whether this point has escaped Deputy Bell's attention but the point my amendment is attempting to address is that the vast majority of people who come before our criminal courts on these charges are living in abject poverty and do not go to court believing there is one law for them on the basis that they can pay or otherwise.
Yesterday at the meeting of the Select Committee on Crime I sat beside Deputy Briscoe. I almost had to console and help him hold back his tears in the face of a submission from Fr. Paul Lavelle who spoke for a few moments about people living in abject poverty. He described them so aptly as "no tomorrow's children". That is the matter I am trying to address in this amendment. Yesterday we had the opportunity to utter pious and polite platitudes on the horrible plight of these people, today we can suggest that the only option is to stick the boot in and make them pay when they cannot do so.
It is unfortunate that that element of inconsistency and unnecessary remark has been made in this debate — that there is a double standard on behalf of The Workers' Party. There is not. What I and every other Member of The Worker's Party have tried to do is to maintain consistency. If the Deputy had listened to the debate he should have taken the point that the Minister of State and I were talking about the same issue, that we were in agreement, in principle, and that it was only a question of whether we repeated in this Bill the law which has been in existence since 1940. To suggest that The Worker's Party are trying to water down, to go soft on or to take from the legislation is to ignore what I have said and to introduce contention unnecessarily when there is none. Having clarified the record perhaps the question can now be put to the House.
I want to make it quite clear in relation to any remarks——
I should say to Deputy McCartan that I did not have to put the question. It is only when the Ceann Comhairle is in the Chair that it can be taken.
The issue has been debated. We could move on.
Acting Chairman
Deputy Briscoe intimated that he wanted to speak.
I am aware that Deputy McCartan would like to have the question put in order to prevent me from replying to allegations made in relation to——
Acting Chairman
Ní hé sin an cheist.
Deputy McCartan alleged that I was almost in tears yesterday at the meeting with Fr. Paul Lavelle who went before the Committee at my suggestion. The chairperson agreed to bring him before the Committee.
The Deputy blew hot and cold.
I have always been consistent when it came to law and order——
No way.
——and there is not one person either inside or outside this House who could say otherwise.
We were talking about law and order yesterday.
Acting Chairman
We are having repetition.
The problems highlighted by Fr. Lavelle yesterday were sorrowful. He stated — Deputy Barrett was present and is a witness — that we were living in two different worlds, where people — the losers — were not given a chance in life but, he said, this did not mean he was against centres of detention. With the best will in the world, Deputy McCartan is trying to render this Bill useless. Let me read his amendment to remind him what is in it:
..."save that no committal to imprisonment or detention shall be ordered where the court is satisfied that non-payment of a compensation order arises from the inability of the person affected to pay".
It is clear that if the person is unemployed or on a low income he or she should not be asked to pay.
That is not what it says.
Acting Chairman
Deputy Briscoe should be allowed to make his point. I will give Deputy McCartan an opportunity to speak.
Compensation must be made payable to the victims of crime, based on the person's ability to pay. It can be as low as 50p or £1 per week but they must pay something; the alternative of prison will be imposed in very few cases because, as I said in an earlier contribution, many of these people are used to prison and do not regard it as a bad way of life. Perhaps the Minister will say on Report Stage whether he will review the 12 months' limitation. It should be extended and the court should decide whether the period should be longer. I would not limit it to 12 months in the case of a person on very low means paying 50p to £1 over 52 weeks for damage costing hundreds of pounds.
Recently there was a lot of damage to houses in my constituency as a result of the corporation carrying out works and knocking down a wall. People came streaming through and threw rocks at windows in houses in the neighbouring streets. These people should be compensated if the perpetrators of the crimes are caught.
Deputy McCartan is quite clear in his objection to parents or guardians of these children being held responsible for their crimes. However, we will come to the section in the Bill dealing with that matter in due course——
We have passed that stage.
Deputy McCartan is a lawyer and he can quote sections of the law which most people do not understand. The problem is that very often, in legislation of this type, the lawyers take over. I am not saying that lawyers here do not represent ordinary people but they see things in terms of black and white; there are no grey areas. However, there are grey areas in all legislation and we must allow manoeuverability by the courts and judges, trusting to their wisdom. I hope that the majority of judges are wise and will use the law in such a way that justice will be served.
I often wonder how charity is acquired. Is one born with it or is it acquired through experience? I think of the people who destroy property mindlessly; perhaps if you took something very precious belonging to a person — a bicycle, radio or record player — and you ran a steamroller over it, you could then tell the person that you know exactly how he or she feels and that they should try to understand how other people feel when their property is destroyed. Many of the people who commit those kinds of crimes in society do not have any compassion or feelings for the victims. They feel they are entitled to damage property. Of course it is dreadful that they are born into a society where they have to grow up like this, nevertheless the community must be protected. Our legislation must be strong and flexible so that the courts may administer it in a humane, just manner.
Acting Chairman
We are having a lot of repetition. I will now call Deputy Seán Barrett and then Deputy McCartan. Before the Minister replies I understand that Deputy O'Dea wants to contribute.
Any views I have in relation to this matter are coloured by the fact that we are speaking about malicious damage. I have views on matters outside that area but I will confine my remarks to malicious damage. I argued the last day we debated this Bill that under subsection (7) if the convicted person had the right to come back to the court to plead that his or her circumstances had changed, the victim should have the same right. That would be good, common sense legislation.
We are in trouble here because we are dealing with the technicalities of the 1940 Act. We should legislate for the nineties. I would prefer if the Minister withdrew this amendment and came back on Report Stage with a new provision where, if compensation orders are not being complied with, the courts will deal with the matter in a certain way.
The provisions of this Bill are copied from other legislation. Under subsection (7) a person has the right to go back to court and plead that he cannot comply with the terms of the compensation order as outlined by the court and seek to have it altered. If someone refuses to comply with a compensation order, after attempts by the court to extend the period for payment or to reduce the amount to facilitate the convicted person, the court, instead of putting the person in prison, should extend the compensation order for two years or make the person do community service. I do not want the person to be sent to prison because it is a total waste of time.
Regardless of the 1940 Act and all the flowery language here, will the Minister tell me that if the judge is satisfied the person cannot afford to make the payments or can afford to make the payments but will not, what options the judge or court has to deal with that person? Is it the same old story of putting him in prison? Can the judge order the person to do six months community service work? At present the only option open to the court is to put the person into prison. I do not think that any Member of the House wants that alternative.
The Minister should draft his own provisions where as a result of a person failing to comply with a compensation order, the options open to the court would be to extend the period, to alter the compensation order or to impose a community service order. We should spell it out. There is no point in trying to deal with this in the same way as civil proceedings or under Part I of the Enforcement of Court Orders Act, 1940, 51 years ago.
Let us think about today. Are we not capable of drafting legislation to deal with today's world rather than referring back to the Enforcement of Court Orders Act, 1940? To the point of being boring I would remind the House that in this instance we are talking about malicious damage only, and we should not confuse any other issue with that. I would like the Minister to consider this provision rather than continue with the traditional practice of sending people to prison after everything else fails. The Minister should not lose the opportunity that arises in this instance. The period should be extended to ten or 20 years or, if that is not done a community service order should be left hanging over the head of the individual. If the person is released from prison after a couple of weeks it is of no benefit to society, to the individual or to the victim. It has been proven that a short prison sentence is not a deterrent. We are talking about malicious damage.
Deputy Barrett has put the case better than I could. I want to deal with two items of misinformation on the part of Deputy Briscoe. Out of six Deputies in the Chamber at present there are two lawyers, one on the Government side and one on the Opposition. The proposition which relates to section 6 (c) of the 1940 Act was introduced by the Minister of State who is not a lawyer, but he was not here when that was dealt with. The principle with regard to making parents liable for a compensation order was dealt with in section 4 of the Bill.
Deputy Barrett anticipated a point I wished to make in relation to the victim having the right to go back to court. It seems unfair and unbalanced that the accused can go back to court as many times as he wishes to seek a reduction of the compensation order whereas the victim has no similar right. I ask the Miniser if there is a restriction on the number of times the victim can go back to court? If people can go back to court practically every week seeking a reduction in the compensation order because they cannot afford to pay the full amount the position will become ridiculous.
I compliment the Minister on his flexibility in this matter and on his clear understanding, given that he is not a legal person, of the issues involved. He has given an undertaking that he will consider this point between now and Report Stage and I welcome that. I hope that the parliamentary draftsman comes up with more suitable proposals which will provide for more flexibility in this area. I would point out to the parliamentary draftsman that when considering this issue, he should take into account the provisions of section 11 which we will deal with subsequently. I want to make sure that if there is flexibility which will allow the district justice to make an instalment order for compensation over, say, ten or 20 years, it does not affect the victim's right to gain full compensation from his insurance company. For instance, where property is damaged to the extent of £2,000 and is covered by insurance and the victim has to take proceedings in court to establish that the damage falls within the terms of the insurance policy, and if a compensation order has already been made for the payment of £2,000 over ten or 15 years, is the victim thereby placed at a disadvantage? I would like the parliamentary draftsman to consider that question.
On each occasion that the accused person comes back to court to appeal the case — apparently, according to Deputy O'Dea, he can come back on as many occasions as he wishes — does he get free legal aid?
The general consensus of opinion is that the timescale of 12 months mentioned in subsection (5) is unacceptable. I will ensure that some flexibility is introduced in that regard. For obvious reasons it is necessary that the justice in any case has flexibility in setting the timescale beyond 12 months. The underlying aspect of the debate on this section is that the offended person is compensated, and if it takes one day or 20 years the offender is obliged to pay for the damage caused.
I have already given my views on the amendments. The question of giving the victim a similar right to have the order reviewed is being considered. That answers the question raised by some Deputies.
The suggestion was made that a provision be introduced on Report Stage to give greater effect to section 9 and I will certainly pass on that request. I should indicate that the Attorney General is being consulted on this matter. In summing up, the general thrust of the debate has moved a little from what is in the section. Deputies are suggesting that we are giving over-protective powers to the offender and not enough to the offended. The Deputies have indicated that we should not water down this legislation but rather that we should strengthen it on Report Stage. However, they should keep in mind the important deterrent aspect of this Bill.
Amendment 14 agreed to.
Amendment No. 14a not moved.
Section 9, as amended, agreed.
NEW SECTION.
I move amendment No. 15:
In page 9, before section 10, to insert the following new section:
"10.—No order made against a parent or guardian under section 9 (4) (b) shall be construed as attaching any civil liability to that person for the damage done."
This amendment deals with a simple statement of consequence, that "No order made against a parent or guardian under section 9(4)(b) shall be construed as attaching any civil liability to that person for the damage done". Under section 9(4)(b), in circumstances provided under the Children Act, 1908, the court can require a parent or guardian to pay any fine, damage or cost imposed on a child or young person.
While in principle I have no difficulty in accepting that parents are made answerable to the criminal court for the activities of their children, that should not be the basis of extending answerability to the parent or guardian on the civil side. I hope exception will not be taken by Deputies to the fact that we are talking about an Act that predates 1940 by 32 years. It is not my difficulty that Governments do not introduce up-dating or amending legislation. We are dealing with a regime that makes parents and guardians answerable under a provision of legislation that predates the founding of the State, but that is not my fault. It is a good working regime that parents can be answerable in a court for the actions of their children. However, the civil law is a different matter. Section 9 (4) (a) deals with the means of the person. The section also deals with other factors surrounding the well-being of the child, and ability and culpability of the family. A court in making an order under subsection (4) would have regard to the parents' efforts to deal with problem children in the family and their attempts to seek guidance or assistance outside the home. I am concerned that if a civil liability is to be attached to the parent or guardian they may be made responsible in a way we, as legislators never intended. I hope the Miniser of State will respond by saying that this could not arise under existing law or, alternatively, if it is so, he will accept the amendment.
I will illustrate what I am worried about by way of a putative case. Let us suppose that a problem child sets fire to the property of another, causing damage of the order of £20,000 and is brought before the courts. Under section 99 of the Children Act, 1908, the court may attempt to draw in the parents and involve them in some scheme of compensation or repayment, if that is possible. Given the circumstances of the accused, and the scale of the damage, the court may design a scheme under which some token compensation would be paid.
In many cases that come before the court, the notion that the young person, or the parents, can pay back £20,000 over a period is not on. Nonetheless the court, in applying the principle of hitting people in the pocket, may decide it would be of advantage to make a compensation order and have the parents and the young person pay something out of their pockets. That would be useful. However, under the 1908 Act the court is able to make the parent or guardian responsible for the actions of the child and as a result the victim may pursue a civil action and compensation in full, that is £20,000 could be levied against the parent or guardian. That order would stand against the person or be put against, for example their family home or other property. I do not think we envisaged this scenario in the legislation, especially when one considers we are dealing with people who are one step removed from the incident and who are not the primary perpetrators of the crime. For those reasons, if the law is unclear or uncertain in this area — I hold the view that it is — the Bill should have succinct statement as I propose in my amendment, "no order made against a parent or guardian under section 9 (4) (b) shall be construed as attaching any civil liability to that person for the damage done."
It is doubtful if any civil liability for the damage done could be attached to the parent or guardian of the offender in the circumstances referred to in the Deputy's amendment. I was waiting to hear the case the Deputy made for his amendment. His concluding remarks that the point is somewhat complex sums it up and I agree with him. I will have the matter examined in conjunction with the law officers of the Attorney General. I should like, therefore, to have the opportunity of considering the point further to see if an amendment is necessary. I suggest that the Deputy withdraws his amendment. We will return to it on Report Stage. I agree with him that it warrants deeper examination and consultation.
I will be happy to do that. I have illustrated, as best I can, my concerns.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 9, subsection (1), lines 34 and 35, to delete paragraph (a).
I want to establish the reason a compensation order shall be suspended. Subsection (1) (a) states: "(a) in any case, until the expiration of one month from the date of the conviction to which the order relates". I can understand postponement in the event of an appeal but in the normal course of events why should the operation of a compensation order be suspended for a month. Is there a technical reason for this or is it solely to deal with the possibility of an appeal?
Yes. The Deputy has answered the question; the compensation order is suspended pending appeal.
Will the Miniser answer the question I raised on the previous section because it applies also to this section. Is there any limit on the number of appeals that might follow a compensation order and will the offender be entitled to free legal aid each time he appeals? I am concerned that the Bill for free legal aid might fly out of control.
The Deputy raised that question on the previous section and I regret I did not answer it. My information is that a person can avail of free legal aid any number of times and is not normally limited.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 9, subsection (4), line 47, after "person" to insert ", including a parent or guardian,".
I seek to amend subsection (4) which states:
If a person against whom a compensation order is made wishes to appeal against the order but not against the conviction to which the order relates or the sentence imposed, he may appeal against the order to the court to which he could have appealed against the conviction, and subsections (1) (b) and (3) shall apply as if he had appealed against conviction or sentence.
The problem is that under section 9 (4) (b) an order for compensation can be made against a parent or guardian, but the right of appeal in a criminal case reposes exclusively in the hands of the defendant, namely the child or young person before the court. It appears that the Minister of State has been distracted for a moment.
Legal aid has me——
That is a herring of some colour that is being thrown into the debate, but I will not rise to it. I will deal with it later. Legal aid is not at all expensive. If the Deputy took time to look at the national figures, he would see what we got for so little.
Acting Chairman
The Deputy should proceed with the debate.
I am concerned about the right of appeal because in a criminal case that right reposes exclusively in the hands of the convicted person, to the extent that the prosecutor, the Director of Public Prosecutions, has no right of appeal except in very limited cases. Under section 9 (4) (b) orders for compensation can be levied against a parent or guardian. My concern is that we have to provide for them the right of appeal when the order is made against them.
Section 10 (4) provides "If a person against whom a compensation order is made wishes to appeal". That may well include a parent or a guardian but the general law at the moment is that the right of appeal in criminal cases rests only with the defendant, and a parent or guardian is never the defendant in these circumstances. Therefore, if we wish to extend the right of appeal in these areas, it is important to name the parent or guardian against whom orders can be made. By and large, section 10 deals with appeals and the way in which compensation orders are suspended pending an appeal. There could well be circumstances in which there is a difference between the parent or guardian and the defendant in the dock and in which the defendant in the dock is quite happy to have his or her parent or guardian caught with a compensation order. It might happen that a parent or guardian says: "Listen, Johnny, this is over the top. We cannot deal with this" and Johnny says that he is not going to appeal, that he is happy that his parent or guardian has to pay. In those circumstances the parent or guardian is left without the right to a hearing in a higher court. Parents and guardians should be entitled to that. I am concerned that because the general principle of law is that the right of appeal in criminal cases is with the defendant only, parents and guardians may in some way find themselves in difficulty. There is a right for a parent or guardian to come back to the court to seek a review under section 9 (7) but this is a completely different matter. Earlier contributions made by several Deputies confused the two: first the right to reapply back to the original court for a review of the amounts to be paid, and second, the right to appeal to a higher court. The position should be clarified by specifically referring to the right of a parent or guardian, as I suggested in my amendment.
In view of what the Deputy has said and having read his amendment, I should like him to afford me an opportunity to consider the matter in more detail, and I will have an amendment brought back on Report Stage——
All right.
—— which I think would meet the concerns expressed by him in both his amendment and his contribution to the House.
I am happy to do that.
If I understood Deputy McCartan correctly, he is saying that when a parent or guardian has to pay compensation, then that person should be allowed under this legislation to appeal any decision of the court, since the compensation has been levied against that person. Is that what the Deputy means?
Yes.
Certainly I see nothing wrong with that. It is obvious that the person who has to pay must have some kind of recourse if it is felt that they have not been justly treated. That would appear to be common justice.
Yes.
Deputy McCartan, are you putting your amendment?
I am withdrawing that amendment on the Minister's undertaking to come back on Report Stage.
Amendment, by leave, withdrawn.
Section 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Does this section provide that if, for example, a compensation order is made for a figure of £5,000 to cover damage to a vehicle and the person who suffered the damage subsequently takes a civil action for damages, the civil court cannot award damages in excess of the £5,000 because £5,000 was the cost of replacing the actual damage done to the vehicle? Am I reading that correctly? In other words, does a person's right to a civil action disappear if they have received the maximum compensation that can be awarded under a compensation order?
The Deputy is correct. Section 11 (b) (i) states:
If the damages, as so assessed, exceed any amount paid under the compensation order, the damages to be awarded shall not exceed the amount of that access,
It is quite simple.
Are we not getting into very dangerous territory? There are all kinds of measures to take into account. We had a long debate about section 9 (3) which states that both the owner of the property and the approximate cost of making good the damage done to it must be readily ascertainable. In a civil case is there no provision for loss of earnings or loss of use? If I were to go into a criminal court and tell a judge that the actual damage caused to my vehicle amounted to £5,000 and the judge made a compensation order for £5,000, that £5,000 would not take into account a loss of possible future earnings, the loss of the use of my vehicle and so on, that I might suffer. It also does not take into account the fact that if the Minister decides to accept an extension of time limit then the compensation order may be paid over a period of three to five years. I could lose the value of my money because it would not be received for three or more years. I would therefore be deprived of a civil action that I could take within, I think it is two years——
Three years.
I would be deprived of my right to take a civil action within three years for the loss of the use of my vehicle or because the money I was receiving through the payment of compensation was deferred over a period and there was an actual loss of money. Surely I should not be deprived of that right?
I suggest that the totality of the case would have been dealt with in all respects when before the court and that it would have been a matter for the offended party to assess all of the loss.
No.
That is the way it is usually done, in my short experience of the working of the courts.
If the Minister looks at section 9 (3) he will see that that is not the case.
We are now dealing with section 11, which is what the Deputy is asking me about.
But the Minister has to go back to section 9 (3) to get the point I am making. We are talking here about a compensation order.
Yes, and section 9 (3) indicates that a compensation order——
It is stated in that subsection "(or, where appropriate, of replacing it)", so if a vehicle is replaced that does not take into account the loss of use of that vehicle for a period, it does not take into account the payment period and any other losses.
Should that not form part of the total claim before the court — all the expenses, all the damage in one claim? That is my opinion.
No, it does not.
My understanding is that Deputy Barrett is right in his interpretation of section 9 (3). It relates to the damage of the actual property in question. If there is a difference between what the accused is ordered to pay and the actual damage to the property in question, then the plaintiff can be awarded only the excess. However, that does not in any way affect the plaintiff's right to consequential damages such as a loss of earnings.
That is right.
Is the Minister confirming this?
Yes. In short, I am.
Question put and agreed to.
SECTION 12.
I move amendment No. 18:
In page 10, lines 30 to 32, to delete subsection (3).
It is regrettable that we have such a short time to dispose of this amendment because, while it is the last on the list, it is crucial. It may well be that the Minister will indicate at an early stage that he is accepting my amendment. If not, we will lose the opportunity to debate a fundamental point of principle.
I quote section 12 (3) because it is as important as it is pernicious in its provisions:
Where an offence to which this section applies has been committed, any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be guilty of the offence.
It will be seen that this subsection gives to anyone the power of arrest equal to that held by a member of the Garda Síochána.
I hope people will not take exception to the law being quoted here, though we be law makers, but the principle of the law always has been that the power of arrest of a citizen, that is on the part of a non-police officer, shall arise in cases where a felony has been committed in the presence of or witnessed by a citizen. In other words, it is saying that a citizen in the street can apprehend an offender in the course of the commission of the crime; for example, if they have their hand in the till, lobbing the brick through the window, or setting fire to a property and are caught in the act. Then, because there is certainty of accusation on the one hand and an element of prevention on the other, the law has allowed the citizen power to intervene and arrest, that power being to detain the person until the police arrive or, alternatively, take them to the nearest police station.
What the law always said is that, once the perpetrator got away from the scene of the crime and the element of investigation enters, or where the element of suspicion or reasonable cause arises, those elements can and should only be dealt with by a member of the Garda Síochána, trained, responsible officers who know how about reasonable suspicion, who know what is reasonable cause and who know how to investigate and pursue the offender. The provisions of this section allow a citizen, myself and anybody else — I might add it is a power I do not want or, I contend, one anybody else would want to have on serious reflection — become detectives because it allows anyone whom he or she suspects of being guilty of the offence to make an arrest.
Let us examine the overall position. As I understand it in a town in my home county of Wexford, Bunclody, a group of businessmen have appointed themselves as law-keepers. While I did not hear them I understand that one of them on the national airwaves recently suggested they would be using shotguns in the course of their law enforcement. I understand also that a very responsible Deputy from that side of the House representing that constituency described them for what they are, that is, vigilantes. There is that phenomenon developing in our community, coupled with the type of power being provided here.
I have no difficulty with the concept of a citizen apprehending an offender in the course of committing a crime where there is certainty of accusation — in the sense of, you were caught doing it; I held you until the police arrived. Where there is the element of deterrent in that it prevents the person completing the crime or getting away with the swag. But I have great difficulty with people in their committee saying: "someone broke a window the other day in the main street of Bunclody; we are now calling a committee because we suspect a stranger that was seen passing through the town that day, or we know the person who is committing the crime though none of us saw him; we have the suspicion; let us arrest that person and lodge him in the local police station." That has never been contemplated by our law. It is a very dangerous departure from long-established principles, that we allow citizens or, as the subsection says "anyone", begin to form suspicions and act on them. If people have a suspicion then they should do what we have always expected them to do, go to their local police station, their local garda, or community officer and say a crime of malicious damage has been committed in their area. Then one tells them why one suspects it was so and so, and allows the detectives and their colleagues to investigate that suspicion. When there is reasonable, probable cause, one allows the police officer to arrest without warrant and when he has evidence to prosecute the offender.
It is an extremely dangerous departure from the principles of law to allow as do the provisions of the subsection, anyone to arrest without warrant somebody whom he or she suspects to be guilty of an offence. I am extremely concerned about this. We have very little time to tease out the implications of the provisions of this subsection — that was not my design; we did agree to a guillotine question being put at 1.30 p.m. — but this subsection worries me profoundly. I hope the Minister will be prepared to reexamine it, if not now, at least that he will give a firm undertaking that it will be re-examined on Report Stage.
I am reasonably happy with the remaining sections of this Bill but I have very definite reservations about this one. Many of the relevant points have already been made by Deputy McCartan. I had been hoping to hear what the Minister would have to say about this section. It had been my hope to table a fairly strong amendment on this section because I am worried about its provisions.
For example, if a property is damaged by a male who is six feet tall, and the owner of the property is a woman it would not be reasonable to assume that she would be able to arrest that man. There, the physical element might very well determine the effectiveness of the arrest.
I would be concerned also that a solid rumour factor would enter into the law, in other words, that a neighbour might suggest that they had reasonable suspicion that X had committed a crime. In such circumstances there would be an arrest carried out by a citizen virtually on hearsay. It would be introducing a very dangerous element into the law.
I agree that there should be some strengthening of the law in this area but this provision is going overboard and I would be extremely worried about it. It appears to allow a member of the Garda Síochána to walk into somebody's home, without warrant or notice, perhaps on foot of a suspicion or a rumour of an alleged suspicion, and carry out a search. We are going somewhat too far here. I am concerned about a person being arrested who would be innocent of any such crime. I am not suggesting that the emphasis of the law should not be placed on the person who commits the crime, but we must also safeguard against possible abuses of the law in circumstances where people are innocent.
It appears to me that there is no caution required in this operation, that people could be arrested simply without their being advised under what section of an Act or for what reason they were being arrested. A person might very well be arrested simply because somebody did not agree with his politics, with the football club of which he was a member or did not like the colour of his eyes. A very definite explanation is required in relation to this section.
Deputy McCartan makes the point that this section allows private citizens to become detectives. It is certainly not envisaged that anyone will be compelled to become a detective, whatever about being allowed. My recollection is somewhat hazy on the common law position, but there is a common law right for a citizen to arrest a person on suspicion that a felony has been committed.
Subsection (2) covers it.
It does not. It only covers the case where a felony is actually being committed. It must be in the course of commission.
That is all common law allows.
My understanding was that common law covered the case where a crime had just been committed. There is a fine distinction between a crime which is in the act of commission and an act which has just been committed. In the UK the distinction between felonies and misdemeanours has been abolished. In this case the citizen must have reasonable cause and have very definite grounds for suspicion that the person he is apprehending has actually committed the crime. It is not envisaged that people will become amateur detectives, Agatha Christie characters, forming committees of investigation.
There are a few of them around here.
Anybody who takes it upon himself to arrest a person whom he suspects of committing a crime is exposing himself to an action for damages for wrongful arrest which would have serious consequences. If a person is walking down O'Connell Street in Dublin and sees a person whose name he does not know lobbing a brick through a window, he has power to apprehend that person and detain him until such time as the Gardaí arrive.
That is covered in subsection (2).
Subsection (2) provides that the person has to be in the act of committing the crime. If a person lobs a brick through a window and runs down the street he is no longer in the act of committing the crime.
If I were advising a citizen as to his powers under this section, I would tell him he would need to have witnessed the crime and have very good grounds for arrest, otherwise he would run the risk of action being taken against him for wrongful arrest.
Deputy McCartan made a powerful argument but I concur with the points made by Deputy O'Dea. The intention here seems to be that if a citizen sees a person throw a brick through a window and run down the street he can apprehend him after the event. The technical argument is as bad as the loophole in the Extradition Act where a person in possession of a submachine gun cannot be extradited because he is regarded as having committed a political offence, but if he was caught in the act of pulling the trigger he could be extradited. This is the ridiculous situation under our law.
We are talking here about malicious damage and it is often very difficult to apprehend a person actually throwing a brick or setting fire to a car. If he drives a stolen car into a wall and jumps out he is no longer in the act of committing the crime. Can citizens not arrest such people, having seen them setting fire to a car, throwing a brick through a window or driving a stolen car into a wall. It would be ridiculous not to have this provision. The person who would wrongfully apprehend someone would expose himself to an action.
It is difficult to get people to make a citizen's arrest. The Minister might consider the case where a citizen, in the course of making a citizen's arrest, calls for help from another citizen who has not seen the crime being committed but is helping in the chase. The second citizen may have a gut feeling that there are sufficient grounds for this arrest but he has not witnessed the crime. The Minister might comment on that point.
This is obviously the critical aspect of the Bill. I appreciate the points made by Deputy McCartan. The Bill tries to address a real problem in respect to damage to property. It is evident from what Deputy McCartan has said that one can arrest a person before the brick hits the window but not afterwards. How do we deal with the person who is running down the driveway having thrown a brick at the window? What is the experience in other countries and what is the view of the gardaí.
There are safeguards in the section and we do not want the public to abuse them. The phrase regarding reasonable cause provides a safeguard. Co-operation between the garda and the public in operating this legislation in a sensible and practical way will address the problem. The example I have referred to of the person running away——
It is covered by subsection (2).
I understand the subsection refers to the event being witnessed.
I cannot accept that subsection (3) should be dropped. Section 12 extends to criminal damage offences the present power of a civilian to make an arrest where certain serious offences have been committed.
Subsection (2) of the section provides that any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing criminal damage. This corresponds to the common law rule in relation to felonies and the position under the Malicious Damage Act, 1861. Subsections (3) and (4) confer powers to arrest a person without warrant on suspicion that he has caused criminal damage. If the offence of criminal damage has in fact been committed, then anybody, whether a member of the Garda Síochána or not, may arrest anyone who is guilty of the offence or whom the person arresting suspects, with reasonable cause, to be guilty of it. But in the case of a member of the Garda Síochána it is not necessary that the offence should have been committed: it is sufficient that the member suspects, with reasonable cause, that it has been committed by the person in question. The civilian some distance from the place where the offence is alleged to have been committed has no protection if it should turn out that no offence was, in fact, committed. That could happen if the person concerned had a lawful excuse for causing the damage and the civilian who made the arrest would then be liable for damages for unlawful imprisonment.
These, as I have said, are the rules governing arrest without warrant for felonies and they correspond with those given statutory effect in section 19 of the Criminal Law (Jurisdiction) Act, 1976, in relation to certain offences under that Act.
Regarding citizens' arrest, the present law is that any person can arrest anyone who is "found committing" malicious damage. The Law Reform Commission recommended that this be extended to cases where there was a reasonable belief that such an offence had been committed and that the arrested person had committed it. The Government felt this went too far because it would give a citizen a greater power of arrest than he has now in the case of a felony because he would be protected even if no offence had actually taken place. The Bill instead provides that civilians should have the same powers of arrest and the same liabilities if they are wrong as apply in felonies.
Acting Chairman
As it is now 1.30 p.m. I am required to put the following question in accordance with the order of the Dáil this day: "That the sections undisposed of and the Title are hereby agreed to and the Bill, as amended, is accordingly reported to the House".
Question put and agreed to.
Acting Chairman
When is it proposed to take Report Stage?
Next Wednesday, subject to the agreement of the Whips.
Report Stage ordered for Wednesday, 27 November 1991.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.