Dáil Éireann debate -
Wednesday, 27 Nov 1991

Vol. 413 No. 6

Criminal Damages Bill, 1990: Report and Final Stages.

Mr. McCartan

I move amendment No. 1:

In page 5, between lines 31 and 32, to insert the following:

"3.—(1) In any case under this Act, where the extent of the damage alleged exceeds £100, the accused person shall have the right, as shall the Director of Public Prosecutions, to elect for trial on indictment.

(2) In all other cases the matter shall be tried summarily in the District Court.

(3) The maximum penalty to be imposed on summary conviction shall be six month's imprisonment, or a fine of £1,000, or both.".

I am very pleased the Minister for Justice is present to deal with this important stage of the Bill. Having had a quick look at the Official Report, I see it is almost a year ago to the day that the Minister moved that the Bill be read a Second Time, which was the last we saw of him. It is a happy occasion to have him here during this very important debate.

Minister for Justice (Mr. Burke)

I am delighted to be here.

Mr. McCartan

Amendment No. 1 addresses a fundamental right of an accused person charged with criminal offences before the court, that is, the right to elect for trial by jury in certain circumstances. The cumulative effect of the provisions as set out in section 2 and elsewhere in the Bill is that the decision to allow the accused to elect for trial by judge and jury arises in two circumstances only; where the district justice should refuse to hear a charge of such gravity as not to be fit to be tried summarily or at the election of the Director of Public Prosecutions. It is particularly relevant to the provisions of subsection (5). Where an Act is silent on the issue as to who has the right to choose to elect for trial by jury but provides for penalties on both summary or indictable conviction, the High Court has construed this as a signal or facility to the Director of Public Prosecutions to select the venue for the hearing.

I believe it is a fundamental right of an accused who is faced with a serious charge to have the opportunity to elect for trial on indictment. The question of what is to be considered serious in this context must have a direct bearing on the position of the accused. In this context it must be remembered that where a person is charged with stealing or shop lifting an item of any value, from 1p upwards, he or she is entitled as of right to elect for trial by jury before 12 of his or her peers. A conviction on a small matter, on the face of it, could have horrendous consequences for the accused in terms of the impact it could have on the position of the accused in society, in the workplace or elsewhere. It is not sufficient to allow the right to elect for trial on indictment or choice of venue to rest solely with two of the three agencies before the court, namely the court or the Director of Public Prosecutions the prosecutor. There must be circumstances where the accused has the right in the interest of his proper defence to have the case dealt with by a jury of 12 men and women selected from his own community.

I acknowledge that the Law Reform Commission have consistently taken the opposite position in this matter. In virtually all of the reports on reform of various aspects of criminal law that the Commission have published over the past number of years, and which we in this House have dealt with, their approach has been to write out of our law the right of the accused to elect for trial by jury. In recent times, I have noted in a series of correspondence in the columns of a daily newspaper between the Chairman of the Commission, Mr. Justice Ronan Keane and the Chairman of the Progressive Democrats, Mr. Michael McDowell, Senior Counsel, a former Member of this House, that they are locked in the debate on this very issue. The view of the Law Reform Commission as expounded by the Chairman, Mr. Justice Keane, helps us to address the issue here.

In his view, the Law Reform Commission are obliged to follow a Supreme Court ruling in the case of McKevitt, Ryan and Hackett v. Delap D. J.—in fact, I was the solicitor acting for the accused — which related to their pursuit to elect for trial by jury for the offence of forcible entry and occupation of a shipyard in the mid-seventies under the Act dealing with forcible entry and occupation. The Supreme Court ruled subsequently that they did not have this right and Mr. Justice Keane has said that the Law Reform Commission are obliged to follow the reasoning of the Supreme Court as laid down in that case. This is very enlightening in terms of understanding why the Law Reform Commission have approached this issue in the current report dealing with malicious damage and why the Minister for Justice has adopted the same formula.

On Committee Stage the then Minister of State at the Department of Justice, Deputy Treacy, said this was the primary reason for the drafting of this section. This House is not confined to the reasoning of the Supreme Court but obviously we would be greatly guided by them. Indeed, we have often introduced legislation in response to a finding which they, of necessity, found in their interpretation of the law to bring the matter into perspective in terms of what we as legislators are seeking to do. A good example is the recent extradition ruling where the Government are now obliged to move with haste to amend the law to keep it in line with what we, as legislators, are seeking to achieve.

In relation to the right to trial by jury, as legislators we should attempt to draw a balance between the rights of the prosecutor and of the Minister in seeking effective legislation and, on the other hand, protect the right of an individual charged with an offence, whatever it might seem on the face of it, that could have potentially serious consequences for him or her, to ask the court to allow trial before a jury. As I say, when dealing with larceny offences, there is no prohibition, irrespective of the amount involved. For that reason I urge the Minister to accept the proposition outlined in my first amendment.

In that amendment I propose that in any case where the extent of the damage alleged exceeds £100, the accused shall have the right to elect for trial on indictment. The present position in law is that when an accused person is charged with an offence for which the amount exceeds £50, he or she has the right to elect for trial by judge and jury. In keeping with the movement of time and issues such as inflation, I propose that we fix on a reasonable figure of £100. However, I would have no objection if the Minister for Justice believed that threshold was too low and proposed that it be increased to another manageable figure. If he were to suggest £250 or £500, I would not object to that.

However, I do object to the fundamental position now being written into legislation that an accused person will never have the right to elect for trial by judge and jury, irrespective of the extent of the damage or the seriousness of the consequences of conviction for that person. I believe that is a fundamental departure this House should not undertake lightly. In saying that, all other matters below the threshold — whatever is agreed on — should be dealt with summarily in the District Court and maximum penalties should be fixed on conviction. I have no difficulty with the level of penalties outlined by the Minister. Malicious damage has to be dealt with in a serious way on conviction. Equally we have to recognise that a person charged stands in the dock innocent, that there does exist in our laws a fundamental right to trial by jury and that we should be very slow to remove that fundamental right except for very good reason. As I said, the Bill, as drafted, takes from an accused person the right to choose.

I hope the Minister does not come back, as the Minister of State did on Committee Stage, to say that the right of the accused will be protected by the Director of Public Prosecutions or by the court itself in serious cases, refusing to deal with the matter summarily because it should be tried elsewhere. The considerations that could impinge on the position of an accused person might not enter the mind of the prosecutor or the judge, and even if they were adverted to by the accused standing in the dock — who might say that he or she objected to the matter being dealt with in the District Court and believed it was of such consequence that it should be dealt with by the Circuit Court — it could well be that the consequences on employment, for example, might not carry any weight with the District Justice.

In dealing with this matter, I wish to draw briefly from my experience as a practitioner on the difficulties that an accused person — an innocent person standing in a dock before a District Justice — would have in entering into a debate on the venue of a trial. An accused person would have difficulty saying he or she believed the case should not be dealt with in the District Court but should be sent to a higher court for trial by jury because, while it might not have been intended, that could also be seen as an indirect criticism of the judge himself. It could be perceived that the accused person was unhappy with the way that judge performed, dealt with or dispensed justice, and was, therefore, attempting to get out of the arena of that judge and into a higher court. If a judge rules against such an accused and decides the case could be dealt with in his or her court, the defendant would feel very uneasy facing into a trial in front of the judge he may have been perceived to criticise or to suggest was not capable or fit to try the case summarily. That is one scenario. Another scenario is one I have found time and time again in my years practising in the criminal courts. Often the Director of Public Prosecutions will elect for trial summarily in circumstances in which he is perhaps in difficulty with the entirety of the proofs, for example, he is not satisfied that the quality of the testimony of a witness would stand up to close scrutiny by 12 men and women and thinks that a District Justice who might be a little more case hardened would be inclined to take either a harder view or a more benign view in the direction of the prosecution with the testimony that has been presented. It is a fact of life in our courts that judges of the District Court are perceived to be more receptive to prosecution cases than a jury.

There are many factors to take into account, such as the difficulty faced by the Director of Public Prosecutions when he thinks that in another six months, or whatever the date for a trial by jury is set his case might not be prepared; or witnesses might have moved on or emigrated, but such factors should not of themselves have a bearing on the issue of venue if one has regard to the right of an accused to trail by jury. However, those factors can and do arise on a day to day basis.

All I say is that I accept that there are occasions on which cases — and I would include the majority of petty crime — should be dealt with in the District Court by summary trial but we must by some means retain the right for an accused person to elect for trial by jury.

I have proposed the amount of £100 but I have no difficulty with a higher threshold so long as there are left some rights for the accused.

Minister for Justice (Mr. Burke)

At the outset, I wish to say that the Committee Stage of the Bill was the subject of very detailed debate. At the time the Minister of State undertook to reflect with officials on the amendments and suggestions put forward by all sides of the House.

The Department have tried to reflect the debate and have taken on board a number of the suggestions made and argued in a very practical and reflective way by Opposition Members. That is reflected in the number of Report Stage amendments tabled in my name. Of the 23 amendments tabled, 13 are in my name. As I said, many of those amendments take on board points made on Committee Stage.

The point raised this morning by Deputy McCartan was also made on Committee Stage, when he made a very strong case for it. We considered it but I still regret that, for the reason I give now, I cannot go along with the Deputy on this amendment.

The position is that at present a person accused of causing malicious damage to property exceeding £50 is entitled to insist on a jury trial. The Law Reform Commission recommended that the accused should not have an absolute right to trial by jury for minor offences of this kind. They pointed out that the District Court could conclude that, having regard to the circumstances of a particular case, the offence charged was not a minor one. In that event the case could proceed only on indictment so that the constitutional right to a trial by jury in such circumstances is being fully preserved. I should emphasise that there is no constitutional right to a trial by jury for a minor offence. There is the statutory position that arises out of the Larceny Act, 1861, but it is not a constitutional right. I appreciate that under some old statutes, such as those relating to larceny, a jury trial can be insisted on for the most trivial of offences. That is an anomalous state of affairs in circumstances in which the great bulk of criminal offences is handled by the summary courts. Convictions for many of those offences can have consequences for the people involved that are just as serious as convictions for offences of criminal damage. I do not see that any special case can be made in this context for criminal damage offences.

There are many precedents for the provision in the Bill allowing the Director of Public Prosecutions to elect whether to proceed summarily or on indictment. As far as I am aware the operation of those provisions has not given rise to complaint. The powers of the Director of Public Prosecutions in this regard, of course, are subject to the supervision of the District Court so that, even if he were to decide to proceed summarily in what was not a minor offence, the District Court would refuse to deal with it and send the accused for trial before the Circuit Court and a jury whether or not the accused wished to have the case tried in the lower court.

For those reasons, despite the strong case made by the Deputy and the fact that he has indicated his willingness to increase the figure from the £100 about which he spoke, I do not believe that acceptance of this amendment would lead to an improvement in the Bill. There were other points made by the Deputy and by Deputy Seán Barrett on Committee Stage which I will be taking on board in amendments we will reach later in the day. I regret that in this case I cannot agree to the Deputy's amendment.

Mr. McCartan

Obviously I am disappointed at the Minister's response. Inevitably he borrowed from the recommendations of the Law Reform Commission, recommendations that are more often ignored by his Department and Government than are implemented. Indeed what easy succour they find in hiding behind their recommendations whenever it is to their advantage.

In the context of this Bill the Law Reform Commission made another very important recommendation, that is that malicious damage offences would be no longer scheduled for the purposes of the Offences Against the State Act, another matter that would have a fundamental impact on the rights of suspects and accused, if implemented. Needless to say that recommendation was ignored and will not be implemented. The Minister faced down my amendment in that regard on Committee Stage also. It is a hot and cold attitude on the part of the Government and the Minister to say: well, the Law Reform Commission say one thing and I am going to take it, but the Law Reform Commission says another and I am not going to take it. I am not making a special case. I am very disheartened at the Minister's response about the idea that the right to a jury trial is something special, that the opportunity for a person to be tried by his or her peers is something extraordinary and should be avoided as far as possible. The Minister has said he was not prepared to make a special case in this context. I hope that he, or anybody close to him, never has to face a change in the Criminal Court. I honestly believe that perhaps until some of us have to stand in the dock or in the Criminal Court faced with a charge we will not begin to appreciate the absolute importance and fundamental right of a person to be tried by his or her peers. It is cumbersome, in some respects, perhaps expensive, and it can take time but, when one is pursuing innocence and the right of people to be tried fairly, then the jury trial which always has been a major feature of our criminal process is not something to be regarded as extraordinary or special. While we argue from first principles it should be from the principle that the right to trial by jury is the right of an accused to select to be so tried in warranted circumstances. We should depart from that practice in extraordinary circumstances only.

I have made my case. I am deafened by the silence of Deputy Bell of the Labour Party and Deputy Seán Barrett of Fine Gael on this matter. I am not surprised by Fine Gael in that they did not support me in this matter on Committee Stage. For those reasons I would ask that the question be put.

Amendment put and declared lost.

Mr. S. Barrett

I move amendment No. 2:

In page 6, line 1, after "has" to insert "or has had".

This amendment refers to section 4 which deals with possessing anything with intent to damage property. This is a rather technical point I raised on Committee Stage. The Minister may have satisfied himself that the fears I expressed do not exist but I decided to table this amendment on Report Stage to seek clarification. My main fear is with the present wording which reads:

A person (in this section referred to as the possessor) who has any thing in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

I am afraid that if somebody actually disposes of, say, the rock or weapon that would be used to cause malicious damage just prior to being apprehended they could be relieved of responsibility on a technical point. For that reason I decided to retable this amendment to seek clarification from the Minister.

Mr. Burke

Since Committee Stage I have had this matter clarified with the parliamentary draftsman who was consulted and has confirmed that the form of words used in the section is adequate to cover the possession of articles or substances with intent to cause damage irrespective of when possession took place. Therefore he has clarified the point about which Deputy Seán Barrett was rightly concerned and has confirmed that it is already covered in the form of wording used.

Mr. S. Barrett

I thank the Minister.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 3 is in the name of the Minister. Amendments Nos. 7, and 10 are consequential and amendment No. 8 is related. I suggest, therefore, that we discuss the four amendments together. Is that satisfactory? Agreed.

Mr. Burke

I move amendment No. 3:

In page 8, line 6, to delete "the owner of the property" and substitute "any person (in this section referred to as the injured party') who, by reason thereof, has suffered loss (other than consequential loss)".

I tabled this amendment to meet a point made by Deputy Seán Barrett on Committee Stage. It proposes to replace the reference to "owner of the property" with a reference to any person who has suffered loss by reason of the damage caused by the convicted person. In so doing it recognises there may be cases where the owner of the damaged property would not be the person who would be liable for putting the damage right, say, in the case of a tenant who was liable to keep the premises in good repair.

The amendment makes it clear that compensation will be available for the actual damage to the property only and not for any consequential losses, for example, the hire of another car while the damaged car was being repaired or loss of profits while the damaged building was being reinstated.

The calculation of these consequential losses would go beyond what would be appropriate in criminal damage legislation. If the convicted person is a "mark" for these losses, they can be recovered in a civil action in the District Court for an amount up to £5,000, or otherwise in a higher court. I trust the amendment will be acceptable to the House.

Mr. S. Barrett

I thank the Minister for tabling this amendment. My main concern on Committee Stage was that the use of the phrase "owner of the property" would appear to restrict others from seeking compensation. I re-tabled my Committee Stage amendment in order to have a discussion on this point but, in the light of the Minister's agreement to introduce his amendment, which is satisfactory from my point of view, I will not press my amendment No. 8

Mr. McCartan

I welcome the amendments tabled by the Minister. Important issues were raised on Committee Stage and the amendments will greatly help to improve the legislation.

Amendment agreed to.

Mr. R. Burke

I move amendment No. 4:

In page 8, line 7, after "order" to insert "(including a compensation order made against a parent or guardian of the convicted person and notwithstanding, in such a case, any other statutory limitation as to amount)".

Deputy McCartan's amendment on Committee Stage to section 10, which he has retabled as amendment No. 21, revealed an inconsistency in section 9 (1) which my present amendment seeks to eliminate.

Section 9 (1), as it stands, empowers the court to make a compensation order only against a convicted person, although subsequent provisions of the section make it clear that it also contemplates that in some circumstances an order can be made against the parent or guardian of a child or young person convicted of criminal damage.

The amendment also removes the present limitation on the amount of damages parents or guardians can be made liable to pay where their children are found guilty of criminal damage. The present levels are limited by the amounts that can be imposed by way of fine or damages on the children and these are quite inadequate. For example, the maximum fine or damages that may be imposed on a child under 15 is £2. For young persons between 15 and 17 it is £10. These are the limits that also apply in cases where the parents or guardians are ordered to pay the fines or damages.

I should say, however, that parents or guardians cannot be required to pay for the damage caused by their children if the court is not satisfied that, in the words of section 99 of the Children Act, 1908, "they have conduced to the commission of the offence by neglecting to exercise due care of the child". That limitation will still apply.

I should say also that section 99 of the 1908 Act, along with the other provisions of that Act dealing with juvenile justice, are at present being examined with a view to updating and modernising all these provisions. That legislation is included in the Government's legislative programme.

I commend the amendment to the House.

Mr. S. Barrett

I have no difficulty with this amendment. There is a lesson to be learned from the level of violence and vandalism which has taken place on the outskirts of the city during the past few days. Children aged as young as nine or ten have been stoning fire tenders and police cars.

I have spoken in this Chamber on many occasions about the need to update our laws in relation to the responsibilities of parents. There are certain circumstances where parents are doing their very best and may not be able to do much more, but it is important that legislation should clearly place on parents responsibility for the actions of their children. We can always make allowances for certain circumstances but the principle of parental responsibility must be established. Nobody will persuade me that a child of nine or ten who is on the street at midnight is under parental supervision. This legislation can be seen to begin the process of beating home the message that people who bring children into this world have a responsibility for their behaviour until such time as those children are in a position to act of their own accord.

I should like to see, through this legislation, the message going out that we in this House regard parents as being responsible in the area of malicious damage. If, however, we are to ask parents to accept this sort of responsibility, we must also be seen to give them every opportunity of being involved at the outset. I ask the Minister to bear this point in mind in preparing the Juvenile Justice Bill. Parents should be informed if a child is in a police station or is being questioned outside the door of his own home by a garda. It should be obligatory to make certain that the parent is present or invited to be present. All future legislation in this field should help parents to become involved at a very early stage and to continue to become involved in the whole process. We should not just expect parents to come in at the end of the process and pay compensation.

I have no difficulty with this amendment.

Mr. McCartan

The Minister suggested that it was an amendment of mine which drew the attention of the parliamentary draftsman to an anomaly. I do not know if I want to take credit for what is proposed here. I have retabled my Committee Stage amendment and I note that the Minister has also tabled an amendment to that section. I have been told that the amendment before us will make my later amendment superfluous. It is provided that the person against whom the order is made will have the right to appeal and I presume that would include a parent or guardian.

I accept that the existing level of fines and compensation orders is ridiculous. Much of our law is outdated in that it provides for penalties which cannot be regarded as a useful mechanism. A breach of the peace carries a £2 fine, while the maximum penalty for being drunk and disorderly is £10. We heard yesterday that a ship which carries improperly labelled goods can suffer the imposition by the harbour master of a maximum penalty of £10, under an Act of 1946. The Minister should introduce some enabling Act which would provide for the movement of penalties in line with inflation or in line with orders made by this House from time to time so that the penalties would be relevant.

The Minister said that the maximum monetary penalty which can be imposed for a child under 15 years is £2 and £10 for children between the ages of 15 and 17 years; that is also the maximum penalty which can be imposed under compensation orders. I am not entirely sure that that is the everyday practice in the Dublin Metropolitan Children's Court where, on many occasions, I have seen compensation orders far in excess of the levels indicated by the Minister directed against a child or his parents. As they say, ignorance of the law is no excuse.

I accept that we should bring the orders into line with what is needed to make the legislation effective. However, having said that, I do not fully accept the proposition put forward by Deputy Barrett that this will of necessity, address the appalling incidents which have taken place in some Dublin suburbs over the past days and weeks. I join with him in condemning those youths and their parents for their lack of vigilance in trying to put an end to this unseemly mob violence. I wonder to what extent last night's events and the events over the past few weeks are a result of media hype. I have no doubt that teams of photographers and news reporters visit Ronanstown and Neilstown every night in expectation of violence. I believe they get what they look for if they give the right signals, give coverage to the stories in the newspapers and publish photographs.

I listened with interest to what the Minister of State at the Department of Education, Deputy Fahey, said in the House last night. His plea to the Government for more funding for youth services and youth support schemes is a far more constructive and positive way to deal with these problems. Nevertheless, we have a criminal code and people will continue to be brought before the courts so that they can be dealt with. However, the limits on the penalties which can be imposed are ridiculous in the extreme. The Minister addresses this issue in his amendment and I do not think anyone in this House could criticise him for doing this. Consequently, I support the amendment.

Mr. O'Dea

I welcome this amendment which will substantially improve the legislation. I listened carefully to what Deputy McCartan had to say. I take it he is proposing a mechanism whereby these penalties would be automatically adjusted in line with increases in the CPI. A development along those lines would be welcome and perhaps the Minister would give consideration to it.

Mr. Burke

There is a lot of merit in providing right across the board — and not just in this legislation — that these penalties can be updated by way of order. This would be a welcome development. I appreciate the welcome which has been given to this amendment by Members on all sides of the House. It is an important step forward and will place a greater onus on the role of the parent. I should say that I have already taken action in this area. For example, in relation to the attendance of children in court, last July I invoked powers which have been in place since the enactment of the 1908 Children Act. There is now a responsibility on parents and guardians to accompany their children to court. For far too long parents in Dublin and other areas abdicated their responsibility for the actions of their children and it is vital that parents and guardians fulfil their role in this area.

With regard to the disturbances which have taken place in some Dublin suburbs over the past number of nights, I should point out that this is not just a Garda problem; the difficulties go far deeper than that. I believe the amount of media coverage given to the events in one of these areas has given rise to copycat incidents in other areas. There are approximately 24,000 or 25,000 people, in about 4,500 homes, living in this area where there are major unemployment problems and very few amenities. Dublin Corporation who built the houses have left the people to fend for themselves. We as a society have a responsibility to these people. It is for that reason the Government decided yesterday to bring all the State agencies, including the Garda Síochána, together to make a concentrated effort to improve the situation in the Ronanstown area. I should point out that we are not just looking at one estate; we are looking at other areas in Dublin city and in other cities where there are particular problems which need to be tackled in a comprehensive way.

We are not long-fingering the problem; we are tackling the problem in a proper manner. While short term policing measures are being taken, long term measures are required to resolve the problems which have manifested themselves over the past number of days and months. I can assure the Deputies who have expressed concern about this matter that the Government are determined to take immediate, medium-term and long term action to tackle the problems which have manifested themselves in these areas in recent months.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 5. I observe that amendment No. 6 is related and is an alternative. I suggest, therefore, that we debate amendments Nos. 5 and 6 together. Is that satisfactory? Agreed.

Mr. Burke

I move amendment No. 5:

In page 8, lines 8 and 9, to delete "(not exceeding £2,500 in the case of such an order made by the District Court)" and substitute "(not exceeding £5,000 in the case of such an order made by the District Court or such other amount as may stand prescribed for the time being by law as the limit of that Court's jurisdiction in tort)".

On Committee Stage Deputy Barrett tabled an amendment to section 2 (9) to provide that the jurisdiction of a District Court to make compensation orders should be increased in line with any general increase in that court's jurisdiction in tort. The Deputy's amendment has been redrafted in minor respects by the parliamentary draftsman without affecting the substance of it. I submit the amendment for approval by the House.

Mr. S. Barrett

I thank the Minister for accepting the amendment suggested by me on Committee Stage. I have no difficulty with the parliamentary draftsman's wording as against my own. For this reason I will not be moving my amendment No. 6 and will support this amendment which is basically the same. This is a sensible amendment which will ensure that the Department will not have to update legislation unnecessarily.

Mr. McCartan

I, too, support the Minister's amendment. It is a practical amendment which will make the legislation more useful as time progresses.

Mr. Burke

Thank you.

Amendment agreed to.

Amendment No. 6 not moved.

Mr. Burke

I move amendment No. 7:

In page 8, line 13, to delete "owner of the property" and substitute "injured party".

Amendment agreed to.

Amendment No. 8 not moved.

An Ceann Comhairle

Amendment No. 9 is in the name of Deputy Barrett. I observe that amendment No. 11 is an alternative. I suggest, therefore, that we discuss amendments Nos. 9 and 11 together.

Mr. S. Barrett

I move amendment No. 9:

In page 8, to delete lines 16 to 19, and substitute the following:

"(3) The court, in making a compensation order, may require that the owner of the property concerned to be made known and that the approximate cost of making good the damage to the property (or, where appropriate, of replacing it) be made available to the Court.".

On Committee Stage I tabled an amendment requesting the deletion of this subsection. However, the House decided against my amendment and I have to accept that decision. I have attempted to draft an amendment which I felt could get the support of all sides, having considered the debate which took place on the last occasion. What I am suggesting is that the court in making a compensation order may require that the owner of the property concerned be made known and that the approximate cost of making good the damage to the property or, where appropriate of replacing it be made available to the court. I am attempting to give the court discretion. The Minister is suggesting an amendment to the subsection which basically places an obligation on the court. Section 9 (3) states:

A compensation order shall not be made unless both the owner of the property concerned and the approximate cost of making good the damage to it. . . . . are readily ascertainable.

There is an obligation on the court to ensure that the owner shall be known and that the approximate cost be readily ascertainable. Admittedly, the Minister has put down an amendment to soften the latter part of that subsection.

I said on the last day that the concept of introducing compensation orders in respect of malicious damage is a good one. The Minister is to be congratulated on bringing in this legislation. I ask him not to tie his hands and the hands of the court by requiring various safeguards whereby a compensation order shall not be made unless both the owner of the property concerned and the approximate cost of making good the damage to it are readily ascertainable. There are circumstances where it may be impossible for the court to ascertain the owner of the property or the cost of making good the damage. I do not see any need for that provision. We ought to leave discretion to the court.

In my amendment I am seeking to give discretion to the court by saying that the court in making a compensation order may require that the owner of the property concerned be made known. I am saying also that the approximate cost of making good the damage be made available to the court. I do not say that must be done immediately; it may be that the court will decide to postpone a decision until costs are ascertainable when the court, in its wisdom, can make its decision. That is perfectly sensible. I do not see why we have to tie the courts hands in any way.

I say that in all sincerity and I do not think I could be accused of making a political point. This is purely a desire to support the concept, help it work better and to give the court the necessary discretion which is important in cases such as this. After all, we are dealing with malicious damage. There is no justification for this type of vandalism or for any young person — as I said the last day — to be driving around town in stolen cars, ramming them into walls and burning and damaging people's property. I can understand many things but I cannot understand that type of vandalism. We have tried everything but we have not succeeded to date. One solution to this problem is to hurt people in their pocket by making them pay for the damage they have caused.

I listened to what the Minister and Deputy McCartan had to say in relation to the happenings in the city over the last couple of evenings. We have a great habit in Ireland of blaming everybody except ourselves. The latest now is that the media are being blamed for encouraging this type of behaviour. I do not accept that for one minute. If one switches on one's television set any night on most channels one will see nothing but violence and this type of behaviour. It is the responsibility of the media to highlight what is happening in these communities.

With due respect to the Minister of State, Deputy F. Fahey, who made a marvellous outburst last night, and who has had responsibility for youth and sport for the past four-and-a-half years, it is rather late to come into this House and say that the Government should be putting money into community centres and providing all facilities in Ronanstown or anywhere else. What in God's name has the Minister been doing for the past four-and-a-half years? If he did not like what was happening he should have resigned from his post. He should be asking the question that most people outside this House are asking, what is happening to the lottery money?

I was deeply involved in setting up the national lottery during my term of office. The whole purpose of the lottery was to raise money from the public, not through taxation, but on a voluntary basis primarily to provide sporting and recreational facilities the length and breadth of this country. It was decided that other moneys from the lottery would be allocated to other activities. It is very convenient for politicians from all sides of the House when there is a shortage of money for anything to take it from the lottery. The purpose of setting up the lottery was to provide the sporting and recreational facilities the Minister of State, Deputy F. Fahey, talked about last night. Where has the money gone for the past four-and-a-half years? I expected that by now when driving around the country regularly one would see large hoardings saying: "This facility is being developed through national lottery funds". I have never seen such notices. I have not seen one regional sporting development take place with the assistance of national lottery funds.

The Minister for Justice, Deputy Burke like myself, had the great privilege and honour of being chairman of Dublin County Council and he represents a constituency within the boundaries of Dublin County Council. The allocation of national lottery funds to Dublin County Council has decreased during the past three years. The figures were supplied by the local authority. I support the Minister of State, Deputy F. Fahey, on the need to tackle this problem by investing funds and providing facilities. I do not think any member would disagree with that. Putting more gardaí on the street and imposing compensation orders, for which we are making provision here, is not the sole answer to the problems we are experiencing. I am aware that in addition we must also put in place various facilities; for example job opportunities, proper education facilities and a proper environment in which people can live.

The Minister and I know that if we are to wait around for these facilities to be provided God only knows what will have happened in the meantime. Whether we like it or not, until all these facilities are put in place we need gardaí on the streets to protect the ordinary citizen. We need this legislation which provides for compensation orders, so that people can recover some of the losses they are experiencing through vandalism and damage to their property.

It is trendy to say, nowadays, that having more gardaí on the streets or having laws is not the answer to the problem. Of course, it is not the answer to the problem. Of course, there are other aspects, but if we have to wait around until the Government provide 260,000 unemployed people with jobs so that we will not have vandalism and robberies or savage attacks on people, God help us. In the meantime, we need gardaí on the streets, we need compensation orders, and we need our courts to be tough on people who damage property for no good reason. I do not care where a person comes from or their social background; there is no excuse to set fire to a person's car. This happens in working class housing estates as much as it happens in middle class estates. The people in working class housing estates are not prepared to tolerate that sort of vandalism any longer. They do not stand back and say the unfortunate chap who set fire to their cars is deprived or underprivileged or needs facilities. As far as they are concerned, their cars have been burnt out and the credit union still has to be paid.

I congratulate the Minister on introducing the concept of compensation orders but I would ask him not to weaken them, not to tie the hands of the court. I accept the Minister's amendment improves the Bill but he could take it a bit further by taking my suggestion on board. If the Minister has a better suggestion I will be only too pleased to accept his advice and that of his officials. In supporting the concept of compensation orders the Minister should give the courts plenty of discretion. Instead of using the word "shall" the Minister should use the word "may" which gives them a little more discretion and which allows for flexibility taking into account the circumstances of the case. I accept the principle of the decision of the Dáil on Committee Stage. I tried to have the decision changed but I did not succeed. I am asking now that the Minister gives a little more flexibility by accepting the wording I am proposing.

Mr. Burke

As my amendment is being debated with the amendment put forward by Deputy Barrett it would be helpful to the House if I gave my views in relation to it.

Under the existing text of section 9 (3) which Deputy Barrett proposes to replace, the court may not make a compensation order unless it knows who the injured party is and the approximate cost of making good the damage to the property. It is a reasonable guideline to impose on the court so that the compensation will be paid to the right person and the amount of the compensation is a reasonable approximation of the amount of the damage. I emphasise "approximate cost". The court does not have to have the exact figures. In many cases the convicted person will not be in a position to pay the full cost of the damage so it will be the convicted person's ability to pay rather than the cost that will be the primary consideration in determining the amount to be paid in a compensation order.

The amendment put forward by Deputy Barrett requires that the owner of the property be made known and that the approximate cost of the damage should be made available to the court. I appreciate that what Deputy Barrett wants to emphasise is that the court should not be prevented from making an order where the necessary information, while not immediately available, would be readily forthcoming in a short period. For that reason I put down an amendment to subsection (3) on the lines recommended by the Deputy in his Committee Stage contribution. I trust my amendment will be acceptable not only to the Deputy but to the House.

I thank the Deputy for his congratulations in relation to the introduction of this concept of compensation order. It is a major step forward in the battle against vandalism and malicious damage.

Mr. Bell

I appreciate the Minister's explanation because it answers a number of the points that have been raised. On balance, amendment No. 11 meets the points made in previous discussions. My basic difficulty arising from my experience as a member of two local authorities relate to the length of time it sometimes takes to identify the owner. In a case I dealt with recently, the identification of the owner took about eight years. The property had passed through probate; some of the people who had been willed interests in the property were in Canada and in America and some had died and passed their interests to other people. We would get into all sorts of difficulties if we went down that road. The Minister's amendment adequately meets the points.

Mr. O'Dea

Like Deputy Barrett, I compliment and congratulate the Minister on introducing this revolutionary concept of compensation orders. It is a mechanism which I envisage will be used on a wide scale by district justices. Deputy Barrett was right when he says that one of the ways to bring the consequences of crime home to people is to make them pay for their crimes. I support the Minister's amendment but on reading the original subsection (3) not even that much was needed. The Minister mentioned the possibility of someone being before the District Court and the district justice might want to make a compensation order but would not be able to because the information as to the cost or as to the owner of the property was not immediately available. The subsection as originally drafted indicates that the court does not have to have the information immediately available, but that it can be readily ascertainable. In that case the district justice could request someone to ascertain the actual cost and bring the information back in a short time. I accept the Minister is trying to eliminate the possibility of the wrong interpretation ever being taken and he is trying to make assurance doubly sure. I support the Minister on that.

Deputy Barrett's amendment cannot be accepted. I agree with the Deputy's sentiments and I agree 95 per cent with what he is saying but there is no real need for this amendment. The original section 9 introduces the concept of a district justice making a compensation order against a person who has damaged property, ordering that person to pay compensation related to the damage done. If a district justice wants to make such an order he must know who is the owner of the property, as there is no point in making a compensation order if the court does not know who is to be compensated. The court must also have some idea as to the approximate cost of the damage done as, even if the court knows the owner, they cannot make a compensation order in a vacuum. The district justice must know both these facts. If a case comes before a district justice that he thinks is a proper one for making a compensation order, and if the information is not readily available, he must get that information if he wishes to make the order. That is all possible under the section as drafted and amended by the Minister. Deputy Barrett's amendment seems to provide that if the information is not readily available the district justice "may" inquire about it. The fact is that if the district justice wants to make a compensation order he will inquire anyway.

Mr. S. Barrett

I am not saying that.

Mr. O'Dea

Deputy Barrett's amendment takes the situation further. He wants to delete subsection (3) and insert a new subsection which would provide that the court, in making a compensation order, may require the owner of the property to be made known and may require the approximate cost of making good the damage that has occurred to be made available to the district justice. The use of the word "may" there, indeed the general tenor of Deputy Barrett's proposal, would seem to suggest that a district justice be given the power to make a compensation order if he does not know the owner and if the cost of the damage is not known to him. In reality a district justice cannot make such an order. He must know who the owner is and must have some idea of the damage. Otherwise he could not make an order. Therefore there is no need for this amendment.

Mr. McCartan

My approach to the amendments we are discussing would be to opt for that of the Minister. The issues were well argued by Deputy Barrett on Committee Stage. I support in principle what he is attempting to achieve, that is, to give an element of workability to the section so that it will be effective and will not be avoided because of difficulties that may arise in ascertaining who the owner is or the extent of the damage. That is admirable and must be supported. To balance that, there is also the need for some degree of certainty in regard to the identification of the property and the extent of the damage so that an appropriate figure for compensation can be arrived at taking into account the means of the accused and the approximate cost of compensation.

The whole idea of compensation is an innovation in our criminal law. It has long been the practice for District Courts and courts of higher jurisdiction to dispose of cases by way of compensation orders. The concept is not new. What is new is that for the first time we are providing statutorily for it in our law in so far as section 57 of the previous Road Traffic Act was not really in keeping with what we are talking about here. The Law Reform Commission report states: "There can be no offence in respect of which it would be more appropriate to make statutory provision for the payment of compensation to victims than the offence of criminal damage and the related offences we have proposed". It is highly appropriate to include provision for compensation, which will make this an effective piece of legislation for the courts in dealing with wanton and mindless crime in our community.

The other extremely important element of the law that has been introduced for the first time in regard to malicious damage is that proof of ownership is not an essential ingredient of the charge. The concept as outlined by the Law Reform Commission is that when one comes to deal with compensation one is not dealing with a penalty but with a device to compensate. It is, broadly speaking, in ease of the accused that he is given the opportunity to co-operate with the court in seeing that some restitution is made to the injured party.

In those circumstances it is important that the court would have some latitude in determining the amount that should be paid. I get the impression from some of the contributions that it is felt that there must be absolute certainty as to the full amount, that the court be given all the time it needs to get the absolute final figure on it and that then the accused would be expected to pay every last penny. I do not think that is what is envisaged by the legislation, and I do not think that is what the Minister intends with regard to it. The compensation is intended to be fixed having regard to a number of considerations, including the extent to which compensation should be made, the capacity of the accused to pay and the length of time that would be needed to pay it back. We are not dealing with the need for absolute certainties. We are talking about a process after conviction, where the penalty has been decided and the accused is being afforded the opportunity to co-operate in a scheme of restitution to the person who has lost money or property.

The Minister's amendment meets the point raised as to the difficulties about knowing at the time the case is determined the amount of compensation necessary by allowing for a reasonable period thereafter to establish it. Otherwise a court would be entitled to use its own common sense and fix an appropriate figure, having regard to the general facts surrounding the case. Judges, particularly in the District Court, deal with these matters on an everyday basis and would have a general idea of what it would cost to replace a window, to repair a motor car, to do a re-spray or whatever is needed to put things right.

I am a bit confused about Deputy Barrett's amendment. For that reason I am more inclined towards the Minister's amendment. It is not clear what he is trying to get at by suggesting that the court, in making a compensation order, may require that the owner of the property concerned be made known. If he is trying to suggest the opposite, that a court need not have regard to the identity of the owner, then the amendment should say that. It would seem somewhat inconceivable that a court could make an order for compensation without knowing who the owner is or being in a position to order to whom compensation should be made payable. This is specifically a device to see that the owner of property is compensated, not a means of making an extra penalty payable to the court or the State for damages caused where the identity of an owner cannot be ascertained with reasonable certainty after a reasonable period of time. I believe that the Minister's approach is reasonable and that the section as amended will be a good and workable proposition. For that reason I support his amendment.

Mr. S. Barrett

I accept the views of others. I make no apologies for attempting to improve this section even further than the Minister has done with his amendment. I do not accept that a district justice must know at the time who the owner of a property is. Why should he? What this subsection is saying is that he shall, that he must, know.

Mr. O'Dea

No.

Mr. S. Barrett

Yes, it does. It says a compensation order shall not be made unless both the owner of the property concerned and the approximate cost are readily ascertainable.

Mr. O'Dea

Readily ascertainable. It is a different thing.

Mr. S. Barrett

My amendment will not in any way weaken what the Minister is trying to do but it removes any grey areas, any doubts. I am a lay person, not a lawyer, but I have come across court decisions that do not make sense to the ordinary person. Like many other people I am sick to death of listening to judgments being handed down interpreting what is in the Constitution and in law in ways never intended by the people who drew them up. But convention, court practices and the grandiose airs which permeate the Four Courts and the Law Library are as near to the public as communism is popular today. I often wonder if these people are living in the same world as I am. Let me cite the recent case in the Supreme Court in relation to our extradition laws as an example. Can anybody tell me that the normal human being would say that it is a political offence for me to hold a gun up to a person's head and threaten to blow their brains out and that, consequently, I cannot be extradited but that if I pull the trigger I can be extradited? Can anybody tell me that any law ever passed or any constitution intend that intelligent people make a decision like that?

Mr. McCartan

The Deputy should read the 1987 Act.

Mr. S. Barrett

The Deputy should not upset my train of thought. We assume that certain things will happen when we pass laws but we know from experience that that is far from the truth. Ordinary mortals like ourselves assume that certain things will be interpreted in certain ways——

Mr. Briscoe

Another game for the lawyers to play.

Mr. S. Barrett

Exactly, but when we read our newspapers and the judgments handed down we say that we all thought that so and so would be the case but that these legal people have interpreted the legislation in a different way.

My amendment in no way weakens what the Minister wants to achieve nor does it tie the hands of the court. All I am saying is that in making a compensation order the court "may require...". Any sensible district justice is going to inquire as to who the owner of the property is. Just like everyone else, I am using my common sense. Of course he is going to ask who owns the property and what is its value but how many times have the drink driving laws, for example, been challenged on technicalities? Some bright spark some day is going to challenge this and will say that the district justice did not establish who the owner of the property was and did not mention the person's name in court; in other words, they will so argue if the district justice is obliged to ask the question "who is the owner of this property" when every Tom, Dick and Harry might know that it is either A, B or C. What I am trying to do is to ensure that the legislation cannot be challenged and that common sense will prevail.

I do not accept that the wise heads will interpret the law in the way the layman would because, from experience, I know there are people walking out of courts on technicalities which do not make sense to ordinary people and that interpretations are being put on the existing laws by the courts which, with respect to the gentlemen who make those decisions, were never intended by those who passed the laws in this House. Even interpretations are being put on the Constitution that were never intended by those who drew it up.

Let me quote the words of ex-Taoiseach, Mr. Liam Cosgrave. He said that every country needs a constitution but that no country can afford one which could not fit on the back of a postage stamp. There is a lot of sense and wisdom in that. A constitution is necessary but the more words are put into it, the more opportunities people will have to pick holes in it, and I do not want a good idea to be destroyed by people picking holes in it.

I do not see how my amendment interferes in any way with the intentions of the Minister. Despite his generosity in coming forward with his own amendment to try to meet the points I made here the last day I honestly believe that the wording I have put forward is far better and safer than what will remain in the legislation, if passed in the form suggested by the Minister. For this reason I would like to press my amendment.

Acting Chairman (Mr. Sherlock)

Is í an cheist——

Mr. Burke

May I——

Acting Chairman

I have a very strict brief, Minister.

Mr. Burke

I have not replied to my own amendment.

Acting Chairman

Unfortunately, you do not have the right to reply.

Mr. Burke

I was going to try to be helpful to the Deputy.

Acting Chairman

I would have allowed you to reply but I have a strict brief.

Mr. Burke

I will look at the amendment before the Bill is taken in the Seanad. Does the Deputy want the question put?

Mr. S. Barrett

If the Minister is prepared to do that and come back to us once the Bill has passed through the Seanad I will not press the amendment.

Mr. Burke

I am not saying that I will include it, rather that I will look at it.

Mr. S. Barrett

I will be beaten anyway, so there is no point in pressing it. If I can get it included through persuasion all the better.

Mr. Briscoe

Where there is life there is hope.

Acting Chairman

Can I have your attention for a moment, Deputy Barrett?

Mr. S. Barrett

My apologies.

Acting Chairman

May I take it that Deputy Barrett is withdrawing the amendment and is not pressing it?

Mr. S. Barrett

I am not pressing the amendment because of what the Minister has said.

Amendment, by leave, withdrawn.

Mr. Burke

I move amendment No. 10:

In page 8, lines 16 and 17, to delete "owner of the property" and substitute "injured party".

Amendment agreed to.

Mr. Burke

I move amendment No. 11:

In page 8, line 19, after "ascertainable" to insert "at the time of the conviction concerned or within a reasonable period thereafter".

Amendment agreed to.

Acting Chairman

We now come to amendment No. 12. As amendment No. 13 is an alternative, both amendments may be discussed together by agreement. Is that agreed? Agreed.

Mr. Burke

I move amendment No. 12:

In page 8, line 30, to delete "by instalments during a period not exceeding 12 months" and substitute "by such instalments and at such times as the court shall in all the circumstances consider reasonable".

On Committee Stage there was a fairly long discussion on the proposal in section 9 (5) allowing the court to provide for the payment of compensation during a period not exceeding 12 months. I made it plain during the debate on Second Stage that there was no particular sanctity about the period of 12 months and that the appropriate period could be teased out on Committee Stage. This was done.

On the one hand, there is a view that payment by instalments should not be so prolonged as to become oppressive or unrealistic. On the other, there would certainly be cases where payment could reasonably extend over a period exceeding 12 months. Deputy Barrett, in his amendment on Committee Stage, proposed to impose no upper limit on the period of repayment.

The Minister of State undertook to table an amendment for this Stage which would not provide for any fixed repayment period but would leave it up to the court to decide, in the light of the circumstances of each individual case, what a reasonable repayment period would be and what should be the amount of each instalment. I trust the amendment, which is in line with the current powers of the District Court in dealing with payment of debts by instalments, will have the approval of the House.

Mr. S. Barrett

I thank the Minister for bringing in his amendment. Both Deputy McCartan and I have tabled amendments along the same lines which would achieve the same objective. By deleting the words "twelve months" we will improve the legislation. I could never understand the reason a 12 month period had to be established. If the court decide, depending on the circumstances of a case, that the period should be more than twelve months, then so be it. It is wise to leave it up to the court to decide, in the light of the circumstances of a particular case.

Given that, in subsection (7), we are giving a person the right to go back to the court to have an order changed, depending on the circumstances of the case, the courts will have flexibility to extend the repayment period further. This is a very sensible amendment and I thank the Minister for listening to the points of view expressed by this House.

By his actions and by accepting a reasonable argument he has done a favour to all Members in the House, he makes us feel that a good and proper debate on Committee Stage can often produce better legislation. I am very pleased in regard to this.

Mr. McCartan

I am also happy with the formula proposed by the Minister in his amendment and, therefore, I will not be moving amendment No. 13.

Mr. Briscoe

I wish to assure Deputy Barrett that Members on this side of the House are also supportive of the general thrust of his amendment. I am happy that the Minister tabled this amendment.

Mr. O'Dea

I thank the Minister for introducing this amendment. I also wish to thank Deputy McCartan and Deputy Barrett for bringing the matter to the attention of the Minister when we debated the Bill previously. A ludicrous situation pertained under the previous legislation. However, there is no point going back on it now; the amendment has achieved what we wanted and it shows, as Deputy Barrett said, that you can achieve things and improve legislation by having a reasonable, informed debate in this House, particularly when the Minister is ready to listen.

Amendment agreed to.

Amendment No. 13 not moved.

Acting Chairman

We now come to amendment No. 14. Amendment No. 15 is an alternative and, therefore, amendments Nos. 14 and 15 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Burke

I move amendment No. 14:

In page 8, to delete lines 40 to 48 and in page 9, to delete lines 1 to 13 and substitute the following:

"(7) At any time after a compensation order has ceased to be suspended by virtue of section 10 (1) and before it has been complied with or fully complied with, the District Court may—

(a) on the application of the convicted person concerned—

(i) reduce the amount to be paid, vary any instalment payable, or direct that no payments or further payments be made, under the order if it appears to the Court—

(I) that the means of the convicted person are insufficient to satisfy the order in full, or

(II) on being satisfied that the injured party concerned has been given an opportunity of making representations to the court on the issue and having regard to any such representations that are made by him or on his behalf, that the damage in respect of which the order was made is less than it was taken to be for the purposes of the order, and

(ii) if any amount paid under the order exceeds the amount appearing to the Court to be reasonable compensation for the damage, order that the amount of the excess be repaid by the injured party to the convicted person, and, upon the making of such order, the compensation order shall cease to have effect,

or

(b) on the application of the injured party concerned, increase the amount to be paid, the amount of any instalment or the number of instalments payable, under the order if it appears to the Court—

(i) that the means of the convicted person are sufficient for the relevant purposes aforesaid, or

(ii) on being satisfied that the convicted person concerned has been given an opportunity of making representations to the court on the issue and having regard to any such representations that are made by him or on his behalf, that the damage in respect of which the order was made is more than it was taken to be for the purposes of the order.".

On Committee Stage there was a very full discussion on whether the injured party in a case of criminal damage should have the right to ask the District Court to increase the amount of compensation or the amount of any instalment, if the circumstances of the convicted person improved and it could be shown that he or she could pay more or pay it more quickly.

At the time the Minister of State expressed the view that such a provision might be open to challenge in as much as it could be contrary to the principle that a penalty should be certain and not capable of being increased: a compensation order is not, of course, a penalty but it will be made by a criminal court in conjunction with, or as an alternative to, a fine or imprisonment, and is, therefore, intimately connected with it.

However, in deference to the views expressed in the debate he agreed to refer the matter to the Attorney General for his advice. I am glad to be able to say that the Attorney General has no objection to a provision on the lines of what so many Deputies supported being included in the Bill, that is, a provision giving both the injured party and the convicted person a right to have the compensation order altered if the situation on the basis of which the order was made had changed substantially.

The amendment meets the case made in Deputy Barrett's amendment and I trust it is acceptable to the House.

Mr. S. Barrett

This is my lucky day and another win for democracy. We fought long and hard about this principle the last day. I will not be moving amendment No. 15 as the Minister's amendment meets the points I made on Committee Stage. We were saying that if the perpetrator of the crime had the right to go back to court because circumstances had changed, then the victim should have the same right. The Minister has found a way of meeting the requirements of this side of the House. I thank him for doing so and I will support his amendment.

Mr. Bell

The amendment adequately meets all the points made during the very lengthy debate on this section on Committee Stage. It is very encouraging for Opposition spokespersons to see that the Minister took the points raised into consideration. Therefore, I will support his amendment.

Mr. McCartan

The Minister has responded fully and fairly to the issues raised on Committee Stage in regard to this point. It was said at the time that if the order for compensation could be varied and reviewed by the court on the motion of the accused, a similar right should prevail in respect of the injured party in certain circumstances. I am glad that it is not a right at large in respect of the injured party and that the section establishes two basic grounds on which the injured party can come back: where, clearly, the circumstances of the accused have changed dramatically perhaps as a result of winning the lottery, found useful employment or received a windfall. Subsection (2) deals with the issue of the time the court fixed an appropriate cost which, subsequently, proved to be conservative and allows the court, on the motion of the injured party, to fix a greater sum. In those circumstances the court may vary the order. It is a very reasonable, sensible and workable amendment which will be supported by me.

The only matter about which I am concerned is the issue with which I dealt on Committee Stage, the position of the parent or guardian in the context of the right of appeal against an order for compensation. In the Minister's amendment the right to vary the instalment is confined to the application of the convicted person concerned under section 7 (a). I am concerned about the parent or guardian who is affixed with the compensation order under the provisions of section 9 (4) (b). Why are they not being given the right to apply to the court to vary the order? Section 7 (a) seems to be confined to the convicted person and section 7 (b) to the injured party. Will the Minister advise us of the position of the parent or guardian who has a compensation order attached to them under the provisions of section 9 (4) (b)? How will they have access to the courts to seek a variation in certain circumstances? Will their right be confined exclusively to appealing, and nothing else?

Mr. Briscoe

There is a principle involved in the amendment which I very much welcome, the fact that, for the first time as far as I am aware, legislation is now weighted in favour of the victim of crime. Up to now all legislation seems to have been about the rights of criminals and perpetrators of crime; very little regard was had for the rights of the victim. This is an encouraging example to the suffering people. The principle enshrined in the amendment should be followed. Legislation should be weighted more heavily in favour of the victims of crime because, over the years, there have been great injustices in regard to these people who have to pay for everything and suffer while the perpetrators of crime have been getting free legal aid. Everything was to their benefit and now victims of crime will be able to appeal when the income of a person has changed.

Mr. Burke

I thank the Members for the expressions of welcome for this amendment. The only concern was raised by Deputy McCartan and it is covered by amendment No. 18.

Amendment agreed to.

Amendment No. 15 not moved.

Mr. Burke

I move amendment No. 16:

In page 9, line 23, after "order", to insert "and subsections (5) and (6) of that section shall not apply in relation to a compensation order".

This amendment is to a large extent consequential on amendment No. 18, which makes it clear that subsection (1) of section 9 allows the court to make a compensation order against the parent or guardian of a convicted child or young person. The existing law, section 99 of the Children Act, 1908, which empowers a court to make such a compensation order has two subsections which are inconsistent with the procedure proposed in this Bill for enforcing, and for appealing against, compensation orders.

Subsection (5) of section 99 provides that any sums ordered to be paid by a parent or guardian may be recovered from him by distress or imprisonment in like manner as if he himself had been convicted of the offence. In contrast, under section 9 (8) of the Bill compensation orders are to be treated, for the purposes of enforcement, as if they had been made in civil proceedings. Subsection (6) of section 99 deals with appeals against orders made against parents or guardians. The appeal procedure under the Bill is covered by section 10 (4) of the Bill, as proposed to be amended. As Deputies can see, this is a technical amendment and I submit it to the House on that basis.

Amendment agreed to.

Acting Chairman

Amendment No. 17 arises out of Committee Stage proceedings. Amendment No. 19 is an alternative and it is suggested therefore that Nos. 17 and 19 be taken together. Is that ageed? Agreed.

Mr. R. Burke

I move amendment No. 17:

In page 9, between lines 27 and 28, to insert the following:

"(11) The making of a compensation order against a parent or guardian of a convicted person shall not of itself give rise to any other liability on the part of the parent or guardian in respect of the damage concerned.".

Amendment agreed to.

Mr. Burke

I move amendment No. 18:

In page 9, lines 32 and 33, to delete "references in subsections (6) (b) and (7) to the convicted person" and substitute "the third reference in subsection (1), the first reference in subsection (2) and the references in subsections (6) (b) and (7) to a convicted person, however expressed,".

This amendment arises out of the amendment tabled to section 10 by Deputy McCartan on Committee Stage and is now retabled as amendment No. 21. As I mentioned earlier, that amendment revealed an inconsistency in section 9 (1) in that that provision did not specifically authorise a compensation order to be made against a parent or guardian of a child or young person convicted of criminal damage. This amendment makes it clear that the section will now do so.

Amendment agreed to.

Amendment No. 19 not moved.

Acting Chairman

Amendment No. 21 is an alternative to amendment No. 20 and it is proposed therefore that both amendments be taken together, by agreement.

Mr. Burke

I move amendment No. 20:

In page 9, to delete lines 50 and 51 and, in page 10, to delete lines 1 to 4 and substitute the following:

"(4) A person against whom a compensation order is made may appeal against the order to the court to which an appeal against the conviction concerned may be brought and subsections (1) (b) and (3) shall apply in relation to an appeal under this subsection as they apply, or would apply, to an appeal against the conviction.".

This amendment meets a point made by Deputy McCartan on Committee Stage and again now in relation to providing for a right of appeal against a compensation order made against a parent or guardian of the offender. I trust the official amendment is acceptable to the Deputy.

Amendment agreed to.

Amendment No. 21 not moved.

Mr. McCartan

I move amendment No. 22:

In page 10, to delete lines 30 to 32.

I thank the Minister for acceding to the other proposals which I raised on Committee Stage. I would almost have traded all of them for agreement on this amendment. We had very little time to debate this matter on Committee Stage — only about ten minutes — and I consider it of crucial importance to the whole process. I propose that the provision in section 12 dealing with powers of arrest — subsection (3) — be deleted. That subsection gives a general power of arrest to a private citizen. It gives the private citizen the right of arrest equal to that of the Garda Síochána. Section 12 applies to offences of malicious damage. Subsection (2) gives the right to any person, including a member of the Garda Síochána, to arrest without warrant anyone whom he, with reasonable cause, suspects to be in the act of committing an offence to which this section applies. As I understand it, that is the current position in common law, that members of the Garda Síochána and any citizen can arrest a person whom they, with reasonable cause, suspect to be in the act of committing an offence.

Subsection (3) goes much further. It states that where an offence to which this section applies has been committed — the time of committal of the offence is not specified — any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects of being guilty of the offence. Subsection (4) deals with the powers of members of the Garda Síochána to make an arrest in certain circumstances. Subsection (5) deals with the general power of arrest of members of the Garda Síochána. Subsection (6) gives power to a member of the Garda Síochána to enter, if need be by force, and search any place. Thankfully that power has been curtailed to members of the Garda Siochana. It has not been extended, as has the power in subsection (3), to any person.

I am extremely concerned about subsection (3), particularly in a climate where there is a perception that there are not enough gardaí on the streets and when there is a belief that there is no effective policing and that there is need for individuals to form committees, set up watches and become more involved in policing and crime curtailment. In this context I am not talking about the neighbourhood watch scheme which is vastly different from the practice we have been hearing about in places such as Bunclody and elsewhere. People in these areas decided it was time to take to the streets to stop crime themselves. I made the point on Committee Stage that I understand that one of the people involved in the Bunclody affair talked about carrying firearms on the street in pursuit of their objectives.

It is in that climate that I am concerned about a provision such as subsection (3). Subsection (3) allows any person, without warrant, to arrest a person suspected of being guilty of an offence. Heretofore in common law the general principle was that any citizen or person could not interfere with another person's rights other than in the commission of a crime, where they were a witness to the crime. The point was raised on Committee Stage that this subsection is designed to cover the position where the crime had been committed, where the window had been broken and the person was running from the scene. That is covered by the common law provisions which already exist. Fleeing from the scene is part of the commission of the crime. Where the citizen has observed a crime being committed and has seen the person running from the scene there is no difficulty with the common law power of arrest by a citizen in those circumstances. We do not need subsection (3) to cover such an eventuality. What is dangerous in the context of malicious damage is that, for example, people on their way home from a disco in high spirits interfere with cars, break windows and throw stones.

Mr. Burke

They do not have to be in high spirits.

Mr. McCartan

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.

Mr. Burke

I would like to explain the background to the provision. The present law, the Malicious Damage Act, 1961, states that any person may arrest anyone found committing malicious damage.

The Law Reform Commission stated in their report:

As we are recommending the creation of indictable offences with penalties ranging at the upper end of the scale from ten years to life, it is only reasonable to recommend a power of arrest without warrant for all such offences. This power should extend to the Gardaí and any other person, where, in either case, there is a reasonable belief that (a) such an offence has been committed and (b) the arrested person committed such offence.

The Government considered that that recommendation went too far because it would give a civilian a greater power of arrest than he or she has now in the case of a felony in that the civilian would be protected even if no offence had actually taken place. The Bill provides that civilians should have the same powers of arrest and the same liabilities if they are wrong as apply under the common law in the case of felonies. That is a reasonable approach that will commend itself to most Deputies. The incidence of criminal damage offences is such that we should not be seen to provide lesser powers of arrest for those offences than are provided for felonies such as larceny. I shall be opposing this amendment.

I remind the Deputy that in many of the points he makes he is confirming my point of view. I refer the Deputy to section 12 (3), which covers the point he made. It states:

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.

Mr. McCartan

Yes, suspects.

Mr. Burke

The offence has to be committed, which is a very important point. I am opposing the amendment.

In the first part of Deputy McCartan's contribution he dealt with vigilante groups. I answered that question in the House yesterday. I welcome citizens operating Neighbourhood Watch and Community Alert, but I could not and will not condone, and will do everything possible to prevent, groups operating outside that mandate.

Mr. Bell

I share Deputy McCartan's fears in relation to this section. Of all the amendments we have welcomed I should have thought that section 12 (3) and (6) would have been amended. With respect I must say I am not really convinced having heard the Minister's explanation. Probably that is because to some extent section 12 (3) is contradictory in that on the one hand it says:

Where an offence to which this section applies has been committed,

and then goes on to say:

. . . with reasonable cause, suspects to be guilty of the offence.

That wording would indicate to me that, in effect, a person could arrest another because he or she suspects that that other person actually committed the crime. It would be very different if the subsection were to say: where a person sees an act or crime being committed or observes such. The subsection, as at present worded, could lead to arrest by hearsay, because a person had a gripe or grudge against another in a housing estate, within an area, or perhaps because they did not like the political party of which they were a member. I predict it could lead to all sorts of possible abuses. I would ask the Minister to reconsider the wording of that subsection even by way of amendment in the Seanad.

Again I contend it would appear to lead to the same type of circumstances obtaining in local authorities where work formerly undertaken by full-time employees of local authorities is now being undertaken by people participating in FÁS courses receiving half the rate of pay. It would be better were we talking in terms of employing more Garda Síochána so that there would be more of them on the beat, on our streets, particularly in urban areas rather than, as it appears to me, to be transferring their powers to some extent — certainly on the strength of the wording of the subsection — to the ordinary citizen who is not trained or equipped and who could be subjected to influence in regard to a crime committed merely because his or her next door neighbour or somebody else tells them that, say, Joe Pentley down the street committed that crime, or that they would "suspect" he had committed such crime. After all, the wording of the subsection says: "... with reasonable cause, suspects to be guilty of the offence".

If the subsection were worded to the effect that where a citizen observes or sees a person commit a crime I would view it in a different light. I feel very strongly about the power of a garda to enter a house, property, home, at any time of the day or night, simply battering down the front door. That would not be a good development. I am not saying that the Garda generally would act in an irresponsible manner. In the vast majority of cases I am sure they would act in a reasonable manner but always there are exceptions to the rule. I would prefer that that subsection would stipulate at least that the owner or resident of the property would have the right to allow the Garda to enter the property by agreement. I have a vision of the Garda coming to a house at midnight and merely because somebody suspects that the person who committed the crime is in there — people may be in bed asleep or not even there — and, without warrant, simply force the front door and forcibly enter that property. I contend that would be going considerably over the top. I would appeal to the Minister in that regard.

We have had a good debate so far and have reached a fair degree of agreement resulting in a strengthening of the provisions of the Bill. I would ask the Minister, as I did on Committee Stage, to take a serious look at those two subsections and ascertain whether the same objective can be achieved while at the same time protecting the rights of the innocent.

Mr. S. Barrett

I have given this matter some thought since we last debated it. I listened carefully to what Deputy McCartan said and share a certain amount of the concern he expressed. It is rather confusing. The Minister's reply could have been more comprehensive although I think I recognise what he is endeavouring to get at. Without putting words into his mouth I imagine the intent behind this subsection is that if somebody saw somebody else commit an act of vandalism, or cause malicious damage, and if the perpetrator disappeared into a crowd and the first person saw him down the next street five or ten minutes later, the first person could physically arrest him because he had been seen breaking that window and running away. I cannot see a lot wrong with that. It would be foolish were we to stand back and say: I saw that person commit that offence ten minutes ago; but I cannot touch him; I have no powers to do so.

Deputy McCartan tells us that, in common law in certain circumstances even after the event has occurred, there would be the right to arrest a person under subsection (2). If I interpret him correctly that is what he said. The Minister has not confirmed or denied that contention. How far can we go? For example, could we say that a person, immediately after the event occurred, could arrest somebody or do so within a very short space of time? I do not know what words to use.

There are all sorts of things happening now I would never have predicted. I would be afraid people could abuse the provisions of this subsection. I have a fear of groups who call themselves concerned parents and vigilante groups of all descriptions. My experience of some of them is that they operate under that type of banner but, when we all know who they are, they turn out to be different groups. Therefore, I have fears given the circumstances in which we now find ourselves generally.

Given the recent increase in extreme right-wing groups coming to the fore in many parts of Europe, particularly in relation to immigration policy — and recent results in the Belgian elections show that this is on the increase — I have a genuine fear that this racism is building up through these extreme groups. I do not like extremes in any area. I do not want to vote against this subsection if its intent is what I think it to be, but at the same time I do not want its powers abused. I want it rigidly controlled. I see sense in being able to point the finger at somebody who, ten minutes earlier in another street smashed a window in a car or whatever. That is sensible, but I do not want, the following day, some group being able to wander up to somebody's house and say there was a car smashed last night and that they are arresting the occupant because they suspect he did it. People might tell me not to exaggerate.

I do not want people in housing estates trying to create an impression by organising a group to sort out their problems. The Garda are the ones to deal with such matters. Will the Minister tell us whether this sort of thing is covered or can we limit the powers under subsection (3) in respect of personal arrest after an event has happened so that the fears expressed by Deputy McCartan will not be realised? There is a danger under this legislation that vigilante groups could get control. There is a widespread feeling that malicious damage will no longer be tolerated.

I can envisage the scenario if ten cars are smashed in the driveways of a housing estate. The following day a public meeting will be called and a heavy gang formed who will take it upon themselves to sort out the suspects by arresting them. I do not want that kind of thing to happen. In those circumstances it is time to call in the Garda and let them do the job. At the same time, however, if I see a person walking down the street who has, to my knowledge, thrown a brick through a window ten minutes earlier. I want to be able to tell him that I saw him do it.

Mr. Burke

That is what we are trying to do.

Mr. S. Barrett

I accept that, but the wording goes beyond that. That is my difficulty.

Mr. O'Dea

I listened carefully to Deputies McCartan and Barrett and I can understand the fears expressed. On reflection, however, those fears are groundless. The Minister is trying to give the private citizen the power of arrest in the same situation instanced earlier by Deputy Barrett, namely, when that citizen has witnessed a crime being committed or in the immediate aftermath of the crime when he or she has reasonable cause for suspicion that the person being taken into custody is the perpetrator. The private citizen has no power to impose any penalty, so there is an implied legal obligation on the citizen to hand over the detained person to the Garda without delay.

I have not had the opportunity of reading the Law Reform Commission's report on this matter, but I was interested to hear the Minister state that the Law Reform Commission, who have a specific brief to give mature consideration to these matters, recommended that the Government should go further than the Minister is going. They suggested that in certain categories of offence, some of which are covered in this Bill, the private citizen should be given power to arrest even when no offence has been committed. That has been considerably restricted here and the power of arrest is confined to a case where an offence has been committed. Take the case of a person who hears glass breaking but does not see the window being broken. If he sees someone running away from the scene in circumstances where it is reasonable to suspect that the person has broken the window, the citizen is entitled to arrest the suspected person. If it turned out that no offence had been committed and that the window had been broken accidentally, the private citizen would be liable to an action for damages for false imprisonment. That indicates that this legislation is very severely restricted.

I listened carefully to Deputy McCartan. I gave a commitment previously to check the common law in relation to the power of arrest for felonies. I have to apologise, since I did not get the opportunity to do so. I have a certain recollection of it. As I understand it, the position is that any private citizen has power to arrest a person whom he suspects of having committed a felony. I cannot see how this subsection takes the law any further. That common law position has existed for many years and there is no evidence that it has been abused or that people have been adversely affected by it.

Deputy McCartan seemed to indicate that under common law the citizen carrying out the arrest must have witnessed the felony being committed. That is not my understanding. The Deputy cited an authoritative textbook which explained the common law position. If a person suspects a felony has been committed and arrests a person whom he with reasonable cause suspects, he has power to do so under common law. If that is the case, what is the difficulty about writing it into legislation? I agree with the point made by Deputy Barrett concerning the law on extradition. The law must be as clear as possible, to exclude the possibility that the courts will give interpretations of the law which we do not intend. That is precisely what we are doing here. We are writing into legislation the common law position in relation to felonies.

We have a horrendous problem in regard to criminal damage to property. During the ten years since I became a Member of this House my car has been stolen five times. I am paying through the nose for insurance and not once has anybody been arrested or charged with stealiing my car. I suspect that the detection figures in relation to damaged property are very low. I do not believe any democratic politician is in favour of vigilantes interrogating people in a Gestapolike fashion and threatening to beat them up if they do not confess. It is not our intention to move towards that and certainly the courts would not countenance it, but, anything that would increase detection rates would have my full support.

Deputy McCartan mentioned that people should report crime to the Garda. There are housing estates in Limerick city where people will not report crime because they are in fear of their lives. In one estate 60 houses which cost £2 million to build are locked up. When people move out, the vandals move in and rip the houses apart. We cannot get people to move into that estate. People queue at my clinic every Saturday begging me on bended knees to be moved elsewhere. We must bring that situation to an end. I am not advocating vigilantes or people taking the law into their own hands. This legislation will not give rise to that. There is a common law right when a felony has been committed for a citizen to arrest a person whom he reasonably suspects has committed the offence and there is an implied obligation on him to hand the suspect over to the Garda. This is what this subsection is writing into this very controversial area of criminal law which has caused much anxiety to the people in my constituency and in other areas; it is doing no more or less than that. Therefore, I do not see why this subsection should be excluded.

Mr. McCartan

I thank the Deputies for their contributions on my amendment. Even though the remarks made by some Deputies are diametrically opposed to the position I hold, the debate has been useful.

The problems outlined by Deputy Barrett succinctly sums up my worries. We need to be vigilant about how we draft our laws. Unfortunately, a new and worrying dimension has emerged in communty life, not just in Dublin city but other cities. We need to ensure that what we do here does not in any way unwittingly or indirectly aid or assist unlawful associations or groups such as the vigilante groups about which we spoke. I am opposed to subsection (3) because, in the worst scenario, I believe it could provide for this.

The other subsections of section 12 are more than adequate to deal with the issues and problems of apprehension and detection of crime. I would rhetorically ask Deputy O'Dea whether, if this power of arrest was available, a citizen could have prevented his car being stolen on any of the five occasions mentioned. If the people of Limerick are so terrified, how could they make a citizen's arrest of any of the people, about whom they will not talk to the Garda unless they band together? If they do this, what will they become? That is the kind of difficulty I see arising if people cannot meet merely to discuss these matters but can do something directly about them under subsection (3). While there may be an implied duty on them under that subsection to hand over the person detained to the Garda Síochána, there may be too much manhandling and roughing up in the process.

Deputy O'Dea referred to the report of the Law Reform Commission. He may not have had a chance to look at the report but the Minister for Justice read out exactly what they say. They deal with this issue in about six lines on page 39 of their report. I have to admit that they dealt with this issue in a larger discussion document, which I do not have with me today. Nevertheless they deal with this issue very briefly, succinctly and to the point in their recommendations. The report has been ignored in other respects and to borrow it in this instance and say we should follow their recommendations is not an argument. I am concerned that we are unnecessarily adding to the law in the context of what we are trying to do. For this reason I ask that the question be put.

Question put: "That the words proposed to be deleted stand".

The Dáil divided: Tá, 70; Níl, 60.

Tá

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

Níl

• Ahearn, Therese.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Peter.
• Bell, Michael.
• Belton, Louis J.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Cosgrave, Michael Joe.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• D'Arcy, Michael.
• Deenihan, Jimmy.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernard.
• McGrath, Paul.
• Moynihan, Michael.
• Noonan, Michael (Limerick East).
• O'Brien, Fergus.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• O'Sullivan, Toddy.
• Owen, Nora.
• Farrelly, John V.
• Fennell, Nuala.
• Ferris, Michael.
• Finucane, Michael.
• FitzGerald, Garret.
• Flaherty, Mary.
• Flanagan, Charles.
• Gilmore, Eamon.
• Gregory, Tony.
• Harte, Paddy.
• Higgins, Jim.
• Higgins, Michael D.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• McCartan, Pat.
• McCormack, Pádraic.
• McGinley, Dinny.
• Mac Giolla, Tomás.
• Pattison, Séamus.
• Quinn, Ruairí.
• Ryan, Seán.
• Sheehan, Patrick J.
• Sherlock, Joe.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Timmins, Godfrey.
• Yates, Ivan.

Tellers: Tá, Deputies D. Ahern and Clohessy; Níl, Deputies McCartan and Howlin.

Question declared carried.

Amendment declared lost.

Mr. R. Burke

I move amendment No. 23:

In page 12, to delete lines 36 to 38 and substitute the following:

"6A. Any offence under subsections (1) and (4) or subsections (2) and (4) of section 2 of the Criminal Damage Act, 1991 (arson).'.".

This is a drafting amendment.

Amendment agreed to.

Question "That the Bill do now pass" put and agreed to.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.