I agree, but I am talking about a phenomenon in my constituency where people on their way home from a disco in Howth move through residential areas causing damage. On the other hand, people take part in wanton vandalism and the public are totally exasperated by the fact that their property or that of their neighbours or the community is damaged or interfered with on a regular basis. People may then come together and someone may say that he was told by so and so who did it or that it could be Mr. X because that is his form. Suspicions begin to emerge. Indeed some well intentioned citizens may have seen the incident and passed on the information to such a local committee or for want of a better word to a local "do gooder" who, armed with that information seeks to effect an arrest. I am extremely concerned about such a scenario because I have had direct experience of the actions of people who travel under the label of "concerned parents".
I have no doubt that other Deputies have had experience of the same phenomenon, the so-called concerned parents movement; parents concerned about drug dealing took the law into their own hands a few years ago. When they suspected people in their community, they arrested them and took them off and dealt with them in the way they believed best. In the present climate where it is believed that vandalism has got out of hand and is as great a pariah as drug dealing was some years ago, and perhaps still is, we will see in time, in the not too distant future, committees of concerned parents against those who cause malicious damage, because in Northern Ireland their compatriots are doing this at present. Such people have been taken out of the community and told to get out of the area; they are given an option they cannot refuse with the assistance of breeze blocks, firearms and so on. The concerned parents deal in this way with the people they consider "unsocial" in the community. I have no doubt that this phenomenon will emerge here, if it has not already done so.
Attempts have been made to set up vigilante groups in my constituency, but thankfully the whole community in an area considered a black spot of the city, ostracised them and ran them from the estate in which they tried to operate. However, this is going to recur, and when this happens the Minister will see subsection (3) being abused. I am extremely concerned that this House should give to any person, as the subsection provides, the power to arrest a suspected person, if he has reasonable cause, as provided for in the Bill, but who is to decide on that? The only body which can decide on that issue subsequently is the court, after the aggrieved person has taken a civil action and has brought a case against the concerned parents of this world. That is not the way to deal with this situation.
Where an act of malicious damage occurs, it is well and good if the citizen catches the person in the act or catches them fleeing from the scene, having seen them commit the crime or, as the law allows, acts to prevent the crime being committed. That is reasonable. But should the citizen wake up in the morning and find that his property has been damaged, the proper course of action is for them to go to the Garda Siochana, report the matter and tell them their suspicions, should they have some. The Garda can then investigate the matter. Indeed if an independent person witnessed the event, it is his or her duty to go to the Garda Síochána, report the matter to them and let them act on it. This section allows the person to go to the local committee and tell how he saw Sonny from No. 3 interfere with a car. The people who have now the necessary suspicion will call around to No. 3 and haul Sonny to the local Garda station. I am extremely concerned about the powers being given to people under subsection (3). These powers are totally unnecessary. The Garda Síochána are provided with adequate powers which by and large should be exercised by people who are trained, who understand how to deal properly with suspects, who know what a reasonable or just cause means and know how to approach and apprehend a person. The ordinary person is not so equipped.
I am aware of the ever increasing presence of security personnel. If one looks at how they present themselves, one will understand the thinking behind this. I have seen them come into court to give evidence and one would have difficulty in distinguishing them from a member of the Garda Síochána because of the clothes they wear. A cult is building up in security firms, that the staff are indeed law enforcers on a par almost, if not entirely, with the Garda Síochána. This development has to be watched extremely carefully. We have to make the point that people who work in the security business have no more powers of arrest than the ordinary citizen in the community.
We are all entitled to our freedom and we are entitled to exercise it beyond unreasonable interference. The power of arrest has been grudgingly and gradually handed over to the law enforcers on the basis that it will be used in exceptional circumstances where a felony has been committed. Indeed for a long time our law recognised that a raft of offences known as misdemeanours would be dealt with only by a summons, and even a member of the Garda Síochána could not arrest a person for misdemeanour. By and large the powers of arrest should be given only to people who have been trained, who understand how potent the power is and have the expertise and knowledge to use it properly. The argument that the aggrieved citizen who is wrongly arrested by another citizen may subsequently take a legal action is not a remedy and indeed will not deal with the emerging phenomenon of "concerned parents mark II" or the damage done to the person wrongly arrested.
I wish to refer to several passages contained in one of the foremost textbooks on the criminal law, The Irish Criminal Process, written by Mr. Ryan and Professor McGee. They support fully my understanding of the common law and also, interestingly in a legal textbook, make some of the points I sought to make about the dangers of extending the power of arrest unduly to any person at large.
I accept that the Minister of State on Committee Stage drew my attention to section 19 of the Criminal Law Jurisdiction Act as a precedent for the provision intended to be included by the Minister in this Bill. There is a similar provision for offences under that Act. Having regard to the offences the Criminal Law Jurisdiction Act seeks to deal with, I suggest to the Minister that there may not have been an arrest recorded in this State by any person under the powers of section 19 (1). That Act 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 an offence under section 2 (1). Subsection (2) states that when an offence under section 2 (1) or (3) 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. While I accept that there is a legislative precedent for what the Minister is arguing for in the Bill, the Criminal Law Jurisdiction Act was different legislation to deal with a vastly different situation. In fact, exception may not have been taken to it back in 1976 because I do not think anyone would then have reasonably believed that a citizen would attempt to apprehend or confront the kind of persons envisaged and dealt with under the provisions of the Criminal law Jurisdiction Act.
The proposal before the House is extraordinary and flies in the face of long-established common law dealing with this area. The issue of persons who may arrest is dealt with in the book written by Mr. Ryan and Professor McGee under the subheading, Arrests Without Warrant at Common Law. It states:
Every person of full age and, a fortiori, a member of the Garda Síochána is obliged by law to endeavour to effect an arrest if treason or a felony is committed in his presence.
It goes on to state:
There are no reported Irish cases where a person has been prosecuted for breach of a duty in relation to this matter and the duty is now more in the nature of a power of arrest. A private citizen who sees another attempting to commit treason or felony, may arrest him and hand him over to the gardaí.
It is a question of being in that person's presence or seeing him commit the offence. A further quotation reads:
Private individuals are also empowered to arrest persons who are engaged upon a breach of the peace while that breach is continuing or if there are reasonable grounds for believing that such a breach is imminent.
Another passage states:
Although an arrest effected immediately after a breach of the peace is permissible, any greater delay will mean that an arrest may only be effected by warrant.
The issue of what occurs immediately after a crime is committed is covered in the common law power of an individual to arrest. Another passage in the book states:
A private person who entertains reasonable grounds for suspecting that a felony has been committed is entitled, but not obliged, to arrest the suspect. Alternatively, he may direct a member of the Garda Síochána to effect the arrest.
The following is the important passage in this regard:
It is essential where any person purports to effect such an arrest or to give such a direction to a Garda, that a felony should actually be proved to have occurred, although the subsequent acquittal of the person arrested is of no consequence.
The authorities are making the point that it is essential that the offences actually occurred to warrant the movement by an individual to either effect the arrest himself or herself or to direct a member of the Garda Síochána to act. The book continues:
A Garda must distinguish carefully between a direction given to him by a citizen to arrest and information given to him by a citizen about an offence. The powers of private individuals to arrest are rarely exercised today but they loom largest in cases involving shoplifting. Neither store detectives nor private security officers enjoy any powers of arrest beyond those granted to other citizens. In any instance where a private citizen makes an arrest he ought to hand over his prisoner to the Gardaí as soon as possible.
The most important feature differentiating the common law powers of the gardaí to arrest without a warrant from those powers which all other citizens enjoy, is that a Garda may arrest any persons whom he reasonably believes to have committed treason or felony, and it is irrelevant in this instance whether or not any offence has taken place.
I have made the point that I wanted to make in relation to this measure.
I believe the subsection is unnecessary and that the present law covering malicious damage as reflected in sections 2 (2), (4), (5) and (6) is more than adequate to deal with all circumstances that could arise. For that reason I ask the Minister to delete section 2 (3) from the Bill.