Amendment No. 34 is in the name of Deputy Mitchell. I observe that amendment No. 38 is related. I suggest, therefore, that we discuss amendments Nos. 34 and 38 together. Is that agreed? Agreed.
Criminal Justice (Public Order) Bill, 1993: Report Stage (Resumed).
I move amendment No. 34:
In page 6, between lines 12 and 13, to insert the following:
"or
(c) to enter any vehicle or be within the vicinity of such vehicle,".
There is a huge problem in Dublin due to vehicles being stolen. I had a very helpful reply from a Garda station in my constituency today regarding a particular problem in an area where, according to Garda records, 18 cars had been stolen in a very short period. The cars were stolen by a number of people who have since been charged by the Garda. Those people were from many areas, only one or two were from anywhere near the area in question. The cars are not simply stolen and driven away. Those who steal the cars drive around, entertaining their friends, in a sort of street version of Mondello Park.
There is also the problem of cars being damaged by people trying to steal them. I do not believe these figures are reflected in the crime statistics. It is my understanding that if a car is recovered within a certain period it is not included in the statistics. In addition, people have simply stopped reporting damage to their vehicles. If there is damage to locks after an attempted theft has failed because an alarm goes off, it is unlikely that the Garda authorities will be informed because there is not much they can do at that stage. Therefore, I believe the crime statistics are understated.
The theft of vehicles should be mentioned in this section. It should be an offence to be in the immediate vicinity of such a vehicle with intent to commit a crime. I raised this with the Minister on Committee Stage and she undertook to have a look at the issue before Report Stage. If the Garda find somebody in the immediate vicinity of a vehicle with a jemmy or one of those instruments which, I understand, they now make on FÁS courses and at metal work classes in schools — I think it is called a plunger and when it is pushed into the lock the whole centre of it can be taken out — it should be possible to adduce from that that the person has intentions of stealing a vehicle. In all the circumstances, this would be a reasonable amendment to include.
I do not have the latest statistics on the number of cars stolen or the number of attempts at thefts of cars. Has the Minister this information? It would be a very interesting figure. The vast majority of people who purchase a car have to spend an extra couple of hundred pounds on an alarm system. Yesterday, I saw a 1993 car parked outside a swimming pool in what is probably one of the most fashionable suburbs in the city, with a very big chain and padlock on it. We should not turn our backs on the plight of people who are simply afraid to park their cars in many parts of the country, certainly in many parts of this city. In all the circumstances it is reasonable that it should be an offence under this section to be found within the immediate vicinity of such a vehicle with intent to steal. I hope the Minister will take on board the general thrust of the amendment.
I have no difficulty with the first part of Deputy Mitchell's amendment which makes it an offence to enter any vehicle. Clearly it is an offence to break into a vehicle. However, to make it an offence to be within the vicinity of a vehicle causes me a little difficulty. What is meant by the "the vicinity of a vehicle"? If a vehicle is parked on the side of a street, it would be very easy to be within the vicinity of the vehicle. Subsection (2) of this section effectively puts the onus on the person who is accused of this offence of proving his innocence. It provides that a person who was present at any place to which subsection (1) relates — as it stands, subsection (1) relates to either buildings or the curtilage of buildings — in such circumstances that it is reasonable to conclude that the person was so present as a trespasser with intent to commit an offence, shall be presumed, until the contrary is shown, to be so present with the intent to commit an offence. I would like to hear the Minister's observations on this, but my reading is that this means there is a presumption of guilt until a person proves his innocence.
There might be some grounds for saying that somebody who has broken into a house or a vehicle has some explaining to do and would be expected to have a good reason for being there. However, it seems that it is pushing the boat out a bit too far to suggest that there should be a presumption of guilt on the part of someone who is found in the vicinity of a building or a vehicle until his innocence is proven.
I would like to hear the Minister's explanation of how this would work. I would give rise to much difficulty and is a matter that might be usefully looked at before the Bill goes to the Seanad. Our law has always been based on the principle of innocent until proven guilty. Great difficulties will arise if we stand that principle on its head and assumptions are made that people are guilty until they prove their innocence in respect of offences such as this.
I sympathise with Deputy Mitchell's view that people who break into cars are a scourge. However, I agree with Deputy Gilmore's remarks. If being found in the vicinity of a car with intent to commit an offence — an offence which falls short of attempting to break into a car — is to be criminalised, that would create an offence of a very uncertain nature. If a well known car radio thief is seen walking down the street looking into cars or slouching at a lamp post near a car, will his behaviour be construed as committing an offence?
I sympathise with the purpose of Deputy Mitchell's amendment, but I have grave doubts as to whether the law should be pushed that far. Subject to the Minister's correction, I understand the Road Traffic Acts provide that it is an offence to attempt to enter a vehicle without the consent of the owner and there is a hefty penalty for that offence. The unauthorised taking of a car carries a penalty of five years imprisonment. To extend a similar penalty to people who are found slouching at lamp posts near parked cars stretches the criminal law further than it can reasonably be imposed. Will the Minister indicate if she is satisfied with the law in relation to people being found in a public place with items which may be used to commit offences? I am aware that under the Larceny Act it is an offence for a person to travel abroad carrying housebreaking equipment in his or her possession.
Deputy Mitchell's worries may be addressed to some extent if the criminal law is extended to cover situations where a person is found in a public place in circumstances which suggest he or she intends to commit an offence and is in possession of implements for that purpose. I understand the Larceny Act covers a person who travels abroad equipped for theft, but I do not believe it covers a person who may carry equipment to hot-wire vehicles or force locks to gain entry to vehicles. I ask the Minister to investigate, between now and the Bill going to the Seanad, if interference with vehicles is adequately covered by present law and if it is a criminal offence for a person to be equipped to interfere with vehicles.
I agree with Deputy McDowell's remarks. There is enough legislation on the Statute books in relation to the Road Traffic Acts to cover situations where people may be found in the vicinity of vehicles. This amendment may be mirroring the provisions of section 50 of the Road Traffic Act. That section covers a person who may be found in possession of keys in or around the vehicle in relation to drunk driving incidents. Under that section it may be construed that such a person may be attempting to commit a road traffic offence. Deputy Mitchell's amendment may be attempting to cover what is already covered by road traffic legislation. I agree with Deputy McDowell that the position in respect of vehicles is well covered under existing legislation and that Deputy Mitchell's amendment may be covering an area that is not envisaged in respect of public order. There may be a case for introducing new road traffic legislation, but this is not the appropriate legislation to provide for this.
I support the notion intended in the amendment, namely, to deal with positions where vehicles are entered or interfered with. However, while the first part of the amendment in respect of entering any vehicle is covered by the Road Traffic Acts, the second part of the amendment is not. The second part of the amendment is too vague to deal with the problem which Deputy Mitchell seeks to address, namely, people who loiter with intent and interfere with vehicles. Vehicles are parked by footpaths, main streets and everybody can stroll pass or loiter in the vicinity of vehicles. It would be extremely difficult to make being in the vicinity of a vehicle a criminal offence.
I do not accept the amendment in its present form. I would welcome a statement from the Minister outlining the provisions of the Road Traffic Acts in respect of the first part of Deputy Mitchell's amendment refers to entering a vehicle with the intention to trespass and commit an illegal act. That is not stated in the Deputy's amendment, though it is stated in section 11 (1) (a) and (b).
It is stated in the section.
The first part of the amendment is covered in section 11 (1) (a) and (b).
My amendment proposes an insertion in the section.
The first part of the Deputy's amendment is covered specifically in section 11 (1) (a) and (b).
It is implied in the section.
Section 11 (1) (a) covers the position in respect of a trespasser and section 11 (1) (b) covers the position in respect of for the purpose of trespassing. Therefore, it is not clear from the Deputy's amendment to which part of section 11 (1) his amendment refers.
My amendment should follow section 11 (1) (b) and precede the words "with intent to commit an offence".
Regarding the question of trespass, the Deputy's amendment is vague as to whether the position of trespasser or for the purpose of trespass is intended. However, my main concern relates to the second part of the Deputy's amendment. I believe it would be impossible for the Garda to implement that provision and, therefore, I oppose the amendment.
I would like to clarify a point.
The Deputy has the right to reply to the debate on his amendment, but in the meantime Members may speak only once. This is not Committee Stage.
I forget we were on Report Stage.
We had a lengthy debate on these amendments on Committee Stage and I an unable, essentially for the reasons which I gave at that time, to accept the amendments tabled by Deputy Mitchell. However, I and, I am sure, the previous speakers, appreciate what the Deputy seeks to achieve. I hope the Deputy will accept, in the light of what I have to say, that these amendments are not necessary and could if included in the Bill, give rise to legal difficulties as referred to by Deputies.
Deputies will be aware that amendment to section 11 raises two separate issues. First, the amendment provides that it should be a specific criminal offence for a person to enter a vehicle with intent to commit a crime. The situation the Deputy is concerned about is already adequately covered under existing law and, accordingly, I do not see any need for creating a new offence along the lines he has suggested. In particular, I would draw the Deputy's attention to the Criminal Damage Act, 1991, which makes it an offence to damage another person's property, including a vehicle. The maximum penalty for a criminal damage offence under the 1991 Act is imprisonment for ten years and a fine of £10,000. In addition, where a person enters a vehicle without causing damge to it he can, depending on the circumstances, be charged with attempt to commit larceny or unlawful taking of the vehicle. In that context also the amendment to section 13 would appear to be superfluous given that it is difficult to envisage circumstances where a person enters another vehicle in a manner which causes fear in another person where another crime or an attempt to commit another crime was not being committed.
The second part of the amendment would make it an offence for a person to be in the vicinity of a vehicle with intent to commit an offence. I have given serious consideration to this proposal and I do not think it would achieve the Deputy's purpose. The Deputy may have proceeded on the basis that a person who is intent on stealing or breaking into a car will spend a significant amount of time close to the car before committing the crime. The reality in most of these cases, however, is that where a criminal finds a likely target he does not tend to wait around but commits his offence without delay. In any event, where a person has anything in his custody or under his control to damage any property belonging to some other person — say, for example, implements intended for use in hotwiring or forcing an entry into a car — this too is an offence under section 4 of the Criminal Damage Act, 1991, with a maximum penalty of up to ten years. Thus, from a practical point of view I am not convinced that the proposal the Deputy has made would make any additional contribution to tackling the problem of offences involving vehicles.
I have a further concern about the second limb of the Deputy's amendment. It is that the wording in so far as it would relate to a vehicle would be extremely difficult to interpret and this could give rise to legal difficulties. In that regard I should mention that the offences which are provided for in paragraphs (a) and (b) of section 11 (1) are related to trespassing on property. I would be concerned that what the Deputy has proposed would lead to enforcement disficulties — for example would a person have to be in the vicinity of a vehicle for a certain length of time before he could be charged — and this is another reason I cannot accept it. The considerations of proof in relation to establishing that some one was in the vicinity of a building for the purpose of trespassing onto it with intent to commit a crime would in reality be different from those in relation to crimes involving vehicles.
For the reasons I have given I cannot accept the Deputy's amendments. I know that the Deputy is sincere in trying to address the serious problem of thefts of and damage to motor vehicles but I do not think that the amendments would make any worthwhile contribution towards dealing with the problem. I hope he can accept that the existing law which I have outlined is sufficient. By putting down the amendment he has provided a good opportunity to highlight these laws and the various remedies available under the Criminal Damage Act, 1991. I believe that the powers being given to the Garda under section 8 to move people on, for example, where there are grounds to apprehend for the safety of vehicles should help deal with the type of problems the Deputy has outlined.
I have made the point in relation to the amendment to section 11 and there is obviously no support for it. It seems strange that the existing legislation is not being applied in relation to the number of interferences with and thefts of vehicles. It is extremely risky to park a car anywhere in this city and in other parts of the country, too, because of the likelihood of its being stolen. Perhaps I did not sufficiently address the second part of my amendment No. 38 which proposes the insertion in the section of the words "or vehicle". In the event of the amendment being accepted section 13 (1) would read as follows: "It shall be an offence for a person, without reasonable excuse, to trespass on any dwelling or the curtilage thereof or vehicle in such a manner as causes or is likely to cause fear in another person".
Are Members of the House aware that at a number of crossroads and bridges, certainly in Dublin — one example is Dolphins Barn Bridge in my constituency — it is very dangerous for a woman to stop her car? This relates particularly to women who carry handbags in the car — men do not tend to leave their wallets lying on the seat of their cars. It is a regular occurrence for a car window to be smashed, causing fear to the driver of the vehicle. This is a separate offence from simply stealing or snatching a handbag. It terrifies people, causing them great distress, and should be treated as a separate offence. It has been suggested that in some cases rats are thrown into cars to terrorise drivers so that goods can be taken from the car or the car can be stolen.
Members of this House have been mugged at the crossing to which I referred. I am one such victim. It is clear that this House is out of touch with reality. We do not realise the extent of the terror being experienced by people while travelling in their cars. Any gurrier who smashes the window of a car while it is stopped at traffic lights or elsewhere should be liable to a penalty similar to that proposed for the offence of trespassing on any dwelling or the curtilage thereof as provided for in section 13, a penalty on summary conviction of a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months or to both. That would be a perfectly reasonable provision to include in this section.
I do not know whether Members have read amendment No. 38 in the context of the section. I presume they have because this matter was debated on Committee Stage. The offence for which I am trying to provide should be a separate one. To take a handbag or other property from a car is an offence in itself, but putting terror into the driver of the car should be a separate offence. Therefore I believe that these amendments are perfectly reasonable.
Amendment put and declared lost.
We now proceed to amendment No. 35 in the names of Deputies Harney, O'Donnell, O'Malley and Michael McDowell. I observe that amendment No. 36 is consequential and suggest therefore that we discuss amendments Nos. 35 and 36 together.
I move amendment No. 35:
In page 6, to delete line 13 and substitute the following:
"in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein.".
Lest it go unremarked that Members of this House are not out of touch with the phenomenon about which Deputy Mitchell spoke, I assure him that is not the case. If fear is caused to the occcupant of a car that constitutes assault, but if a gurrier merely stands at Dolphin's Barn Bridge——
Or Baggot Street Bridge.
A gurrier who is merely standing at Baggot Street Bridge will not be deemed to be committing an offence. If someone does something wrong they are deemed to have committed an offence but it is very hard to envisage a criminal law which will deal with a gurrier who "might" do something.
The purpose of this amendment is to widen the criminal trespass notion to cover situations which do not relate solely to trespass with an intent to commit an offence. My colleagues and I tabled this amendment to draw to the Minister's attention a defect in our criminal law as it stands. For example, I am not aware of any law, though I am open to correction on this, which makes it an offence for me to walk into the Department of Justice with a view to leaving a tape recorder under the Minister's desk, looking at the files in her office or taking photographs of documents in her possession. Perhaps this is an offence under the Official Secrets Act, but I am not talking about the State. For example, it is not an offence to go into a trade union office and leave a tape recorder there or to go into a business competitor's premises with a view to rooting through his files for the purpose of seeing what is there. The offence of burglary is trespassing with the intention to commit a felony. Under the offence of criminal trespass as proposed by the Minister one must intend to commit an offence. However, a person who, under false pretences, breezes into a place where confidential information is stored, who stays on a premises after hours with a view to looking at files or, as was supposed to have been done by a major criminal in this city, goes into the Director of Public Prosecution's office to see what is on file and goes through the available evidence against him, is not deemed to have committed an offence.
My party want situations such as the famous Watergate scandal in America, where the individuals in question committed the crime of burglary and were so convicted to be taken into account in this legislation. Under our criminal law there is no offence of trespassing on somebody else's premises with the intent to unlawfully interfere with their property, for example, by leaving a tape recorder, rooting through their private documents, etc. It is not an offence for a member of the press to leave a camera or a recorder in a person's house or enter their house for that purpose. The Daily Mirror may be light years ahead of our media in its inventiveness, as shown recently. If an Irish newspaper left a tape recorder or bugging equipment in an office belonging to a politician or business man or in somebody's home and it was subsequently proven that one of its sleuths, newshands, had done it, it would not be deemed to have committed an offence under our law as it stands.
It is very important for people to be entitled to some criminal sanction against someone who enters their house, not with the intention of stealing or committing a crime but to root through their personal documents to find out something about them. Private detectives in Ireland have a free licence to enter any newspaper office and root around to see what they can find. This is wrong. Therefore, we should extend the offence of criminal trespass to cover situations where the intent is not to commit a further offence but rather to invade privacy or commit a similar civil wrong. The amendment proposes that it should be an offence to enter a place with intent to interfere with any property therein. Perhaps there is a better way of phrasing this proposal. It should be a criminal offence for a person to walk into a businessman's office or a newspaper and leave a tape recorder there. The law as it stands is adequate in this regard. I will not press the matter further.
I am interested in hearing the Minister's reply to this amendment. I do not know how it will be possible in practice to prove that a person entered an office with the intent of making an illegal recording. For example, it is not uncommon for journalists to have in their possession——
Bugging equipment.
——dictating machines. Indeed, it is not uncommon for Members of this House to have dictating machines in their possession. This matter should be considered, if not in the context of this legislation, perhaps in the context of the Criminal Justice (Miscellaneous Provisions) Bill. I would like to hear the Minister's arguments for and against the amendment before I come down in favour of it.
The amendment raised a general point which needs to be addressed. Concerns do not arise only about the criminal intent of people who invade property or privacy and use surveillance or recording equipment to steal ideas of copyright or to go through files. I am very concerned about the number of advertisements for the sale of surveillance equipment which is easily available and easy to use. Under this Bill the advertisement of brothels is banned. I am not sure if it would be correct to ban the advertising of surveillance equipment in this Bill, but nevertheless a fundamental question arises here which needs to be addressed. There is a standard advertisement in in-flight magazines and other magazines available in the city for the sale of easy to use surveillance equipment. There is something seriously wrong with this sort of advertising in principle. It is wrong that a person should unknowingly have their deeds or actions recorded for whatever purpose — it is an infringement of their rights.
These advertisements are not directed merely at individuals: some of them suggest that the equipment can be used by business people to learn their opponents' trade secrets. They may even try to sell the equipment to TDs so that they can learn what other TDs are up to. This matter needs to be examined and should be legislated for. I am not in favour of interfering with the legitimate right of people to make necessary recordings.
However, there is something undemocratic about a business which makes its profits by selling surveillance equipment over which there is absolutely no control. I ask the Minister to give some consideration to this matter. She may consider dealing with it under the Criminal Justice (Miscellaneous Provisions) Bill or some other Bill.
With regard to amendment No. 34, I do not think the kinds of instances given by Deputy Mitchell would come within the category of trespass. They might come within the category of malicious damage. That is the point we were trying to make — we empathise with what Deputy Mitchell was seeking to do but it is taken care of in other legislation. People who interfere with cars in that way would not be trespassing on the cars as such.
With regard to amendment No. 35, I understand what Deputy McDowell is seeking to do. While I agree that this offence should be extended I have a problem with the wording of the amendment which states that it shall be an offence "to unlawfully interfere with any property". There is really no definition of "unlawfully interfering with property". That would have to be clarified in some way. Rather than dealing with it in this legislation it could perhaps be dealt with in some form of invasion of privacy legislation, having regard to the various scandals that have taken place, such as Watergate, where bugging devices were used. We should have legislation with a wider scope which would cover areas such as entering a premises with intent to interfere with property, whether it be papers or otherwise. I agree with the intent of the amendment.
I am glad that we have moved on from dealing with criminals in denims to dealing with criminals in pinstripe suits.
And wigs sometimes.
I was becoming a little concerned——
Is that a pinstripe suit I see?
——that our definition of the criminal was becoming a bit narrow.
The double-breasted criminal.
I agree with the amendment. Deputy McDowell has highlighted a gap in the law regarding interference with property and that needs to be addressed. I am not sure whether this is the precise way to do it but he has certainly put the issue on the agenda and I compliment him for having done so.
Deputy McDowell did not refer to amendment No. 36 which I believe is being taken with this amendment. It addresses the point I made earlier about subsection (2) which seems to contain a presumption of guilt until one proves one's innocence. If a person is found in a building or in the vicinity of a building, there is a presumption in subsection (2) that that person is there to commit a crime unless he or she can show to the contrary. That is a dangerous provision and I agree with amendment No. 36 which proposes to delete that subsection. I would have thought it was possible to deal with that issue without having this presumption of guilt until one proves one's innocence.
As a lay person I listened carefully to the Members who are familiar with legal language. We are in their hands when it comes to the interpretation of the law. We depend greatly on the contributions of Members with a legal backgrounds to advice us. However, as a lay person one cannot fail to have opinions on issues that will affect the majority of lay people. The general public are no trained in the law and therefore depend on Members of the House to examine legislation, thereby ensuring that it contains nothing that could be used subsequently for purposes for which it was not intended.
Amendment No. 35 would appear to be reasonable but I wish to be reassured in regard to a particular point. People who enter Government Buildings and other public buildings could find themselves in the very awkward position of having to explain why they are there. People of a legal background try to define everything and cover all eventualities. They try to forecast problems down the line that cannot even be envisaged at this stage. If a person was found on a premises who could not give a reasonable explanation for being there but who had no intent to commit a crime or to destroy or interfere with property, there is an onus on that person to prove that he or she had not intended committing such a crime.
I understand the thinking behind the amendment but as a lay person I am concerned that this problem could arise on occasion in the future. If I am proved wrong in this regard, so be it, but it must be absolutely clear in this legislation who defines that the offence is an offence. In other words, who will decide whether a person is on a premises with the intention of committing a crime or interfering with material? I would like the Minister to respond in this regard.
It would seem that the first part of Deputy McDowell's amendment is covered in the section that he seeks to delete namely, "in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence ...". The actual section that he wishes to delete states "... in such circumstances that it is reasonable to conclude that the person was so present as a trespasser with intent to commit an offence, ...". It would seem to me that they are coterminous and that that part of the amendment is repeating what is there already.
We then come to the second part of Deputy McDowell's amendment which states "with intent to unlawfully interfere with any property situate therein.". If someone is being penalised for trespassing with intent to commit an offence, surely "with intent to unlawfully interfere with any property" would be regarded also as the commission of an offence or am I to take it from what Deputy McDowell said that we do not have this category of criminal offence? It would seem that "with intent to commit an offence" should cover the other categorisation in the amendment, namely, "with intent to unlawfully interfere with any property situate therein". I would like clarification from the Minister in this regard because it would appear that the matter is adequately covered in section 11.
I share also the concerns articulated by my colleague in relation to what is an inference in a case where someone might be on a premises with some equipment on their person but might have casually entered that premises for a particular purpose. Obviously, it is a very subjective matter as to whether that equipment could be used for purposes which might be described as unlawful, whether it involves a piece of electronic equipment or otherwise. There is a question as to what is a subjective inference and what is a reasonable objective inference in relation to a case of that nature and I would like to hear what the Minister has to say on the matter.
Deputies will recall that when we discussed this Bill on Committee Stage, an amendment similar to these amendments was tabled in the name of Deputy Harney and Deputy McDowell. At that time, we had quite a lengthy discussion and I explained that there were difficulties with the wording of the amendment but that between then and now I would consider the possibility of marrying the intention of the Committee Stage amendment with the wording contained in the Bill.
I am now faced with a problem because the amendment before us takes a somewhat different approach from the amendment put down on Committee Stage. I have listened carefully to Members and I do not think any Member has raised very substantial objections to Deputy McDowell's amendment. Although I am not sure that he is pressing to have the amendment accepted, I would be disposed towards accepting it.
Deputy Mitchell was concerned about an issue that I have raised within the Department in relation to the advertising of various pieces of surveillance equipment. That is an issue I am examining in the context of the Miscellaneous Provisions Bill. If there are proposals I can put in place in that Bill or in a more appropriate one, I will be delighted to do so.
A number of Members asked what was the difference between what is sought in the amendment and what is now contained in the Bill. I am not sure that there is a substantial difference. One might contend, as have a number of Members, that in reality there is no difference between what is proposed in the amendment and what is contained in the Bill. Having said that, I am disposed to accepting Deputy Michael McDowell's case.
I think it was Deputy Eamon Walsh who asked: who decides? I am delighted we have now decided that gurriers can appear in pinstripe suits as well as in denims, a very important point made by a number of Members. With regard to who decides, of course it is the courts who will decide. It will be up to the Garda to provide the evidence to enable a case to stand. In the absence of any strong objections by other Members to the amendments, as proposed, I am prepared to accept them.
I am glad the Minister is accepting our amendments. Just in case a query is raised about our proposed removal of section 11 (2) and its replacement by "reasonable inference", I should say that as at present drafted subsection (2) says:
A person who was present at any place to which subsection (1) relates in such circumstances that it is reasonable to conclude that the person was so present as a trespasser with intent to commit an offence, shall be presumed, until the contrary is shown, to be so present with the intent to commit an offence.
I honestly do not think that was very happily phrased, with respect to the draftsman. Effectively, it meant that if the court reasonably concluded that a person was there with criminal intent, it should be presumed that one was there with criminal intent; whereas in fact a court will not conclude something unless it is proven beyond reasonable doubt. Therefore, a presumption of something already established by the evidence beyond reasonable doubt is not much help. I am glad the Minister is accepting the amendment because I think it will improve the Bill.
I raised an issue and perhaps the Minister or Deputy Michael McDowell would address it. That was the definition of "to unlawfully interfere with any property." As far as I am aware, there is not definition of unlawfully interfering with property. Would the Minister or Deputy McDowell say whether there is any provision in any Bill that would address that issue? For example, how is a judge obliged to interpret that phrase if the Minister is willing to accept the amendment?
To "unlawfully interfere" means interfering in a way which would amount to either a crime or civil tort, a crime of any kind or a civil tort.
Amendment agreed to.
I move amendment No. 36:
In page 6, to delete lines 14 to 18.
Amendment agreed to.
I move amendment No. 37:
In page 6, line 28, to delete "dwelling" and substitute "building".
We agree with the proposal in section 13 (1) to render it an offence for a person, without reasonable excuse, to trespass on any dwelling or the curtilage thereof in such a manner as causes or is likely to cause fear in another person. But I think the provision should apply to all buildings, because the manner in which a person trespasses in order to cause fear can happen just as easily in a building that is not a dwelling place as it can in a dwelling, in particular, large business premises — for example, somewhere like a warehouse, where there might be very few people or one person on his own, so that the sudden appearance of a trespasser could cause a great deal of fear. Similarly, in the case of something like an agricultural building, if somebody is accosted there, almost certainly they would be alone; but it would not be a dwelling place.
While accepting that the section, as drafted, covers the greater number of such cases — no doubt the majority of cases the Minister is endeavouring to cater for do happen in dwelling places — I do not think it would be unfair to extend it to buildings generally. For example, such an incident could arise in the case of an hotel which could cause a great deal of fear, depending on the circumstances of the trespass, or equally in certain types of business premises. Obviously, it would not apply in the case of a a busy shop or the like, because probably it would not cause fear in the same way; but certainly it would cause such fear in a remote building that was not a dwellinghouse, or could cause such fear in the case of a large, thinly populated business premises such as a warehouse or some remote building standing alone.
For those reasons I would ask the Minister to give careful consideration to extending the scope of the section in the slight manner suggested by this amendment, which I think would be useful.
I agree with what Deputy O'Malley said in regard to the amendment. Perhaps there is a reason that the draftsman restricted it to "dwelling". The case advanced by Deputy O'Malley is a good one and should be accepted by the Minister. I should like to know whether the Minister has any objection to so doing.
I too would be interested in the Minister's reply, because the term "dwelling" to most people means a place where somebody lives or resides. I gave an example at an earlier stage of a local convent in my parish of Farranree where youths congregate right beneath the windows at night, only 100 yards from the main road, causing tremendous problems there and at the schools adjoining that convent. The fact that they can congregate there at all hours of the night causes huge problems. While the Garda can go in there, there is very little they can do unless these people are causing some definite disturbance.
I too would be interested to hear why the term "dwelling" has been inserted here. If the Minister can confirm that the term covers premises such as those I have just mentioned, I would be very pleased; but I would be interested to hear her confirm that fact.
I, too, agree with Deputy O'Malley's amendment. As I understand it, the term "dwelling" is very specific. As a lay person, I would presume it meant a place where one resided, a home or some dwelling occupied by people; whereas the term "building" would appear to be more appropriate so that the provisions of the Bill would cover such premises. If the term "building" is substituted I would presume that that would cover dwellings also. I would be interested to hear whether the Minister has any difficulty with that proposal.
Everybody wants to know why the draftsman chose the word "dwelling" as opposed to "building". Of course, this was based on a recommendation of the Law Reform Commission, which confined itself to dwellings, meaning residential places.
I do not think anybody in the House has any difficulty with Deputy O'Malley's amendment. Changing the word "dweling" to the word "building" means that automatically dwelling will be included. I have no difficulty in accepting that amendment.
I thank the Minister for her reasonable approach.
I am being very agreeable.
May I commend it to others?
Amendment agreed to.
I move amendment No. 38:
In page 6, line 28, after "thereof" to insert "or vehicle".
Amendment No. 38 has been discussed earlier. What is the position?
I am pressing the amendment.
Amendment put and declard lost.
I move amendment No. 39:
In page 6, line 32, to delete "12 months" and substitute "6 months".
This is not a major amendment but it does seem that a term of 12 months imprisonment, on summary conviction, is somewhat excessive for this new offence, particularly when the monetary side of it is limited to a fine of £1,000. I would think that for almost anybody 12 months imprisonment is umpteen times worse than a fine of £1,000. The people who are likely to be sentenced to imprisonment are those who would have no possibility of paying a fine. In the circumstances perhaps a six month prison term would be adequate, particularly where this is a new, statutory type offence. It is not simply a re-enactment of some old common law offence that existed for hundreds of years. This is broader in its intent and in its coverage than many offences of a similar type. I ask the Minister to consider the possibility of a six month term of imprisonment because 12 months seems to be out of all proportion to £1,000. I understand the £1,000 fine is limited for constitutional reasons in a court of summary jurisdiction. If it were challenged the High Court would almost certainly have to come to the conclusion that 12 months imprisonment is much more severe than a fine of £1,000 and is probably equivalent to a fine of £5,000 or £10,000 or even more. One wonders if a period of 12 months imprisonment would be open to a constitutional challenge. Perhaps the Minister has some views about it. She might consider the amendment favourably.
I understand the point being made by Deputy O'Malley. I have some concerns about this amendment which are on the following lines. A growing offence in Dublin relates to dwellings. Because houses have alarms, burglars are waiting for people to enter their houses and turn off the alarms before actually carrying out the burglary. I suspect there is a proliferation of breakins while people are in their homes, whereas heretofore I suspect burglars waited for people to go out before committing the offence. If somebody enters a dwelling while the occupant is present and instils fear in them, it comes back to the same principle I mentioned on amendment No. 38. In circumstances where the courts see fit it should be open to them to impose that stiffer sentence of nine or 12 months imprisonment.
The section as drafted refers to "a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both". We should leave the option to the courts. If the Minister feels otherwise I will not press this amendment. I understand the points being made by Deputy O'Malley, which are not unreasonable. The amendment is about the question of fear. Section 13 (1) provides that it shall be an offence for a person to trespass on any dwelling in such a manner as causes or is likely to cause fear in another person. The incidence of breaking into dwellings where people are present is on the increase. In some cases weapons are left near exits in case somebody should attempt to block their escape. I have misgivings about the amendment. My preference would be to leave the section as it stands and to leave the decision to the courts.
I had not intended to intervene but I support Deputy Mitchell in that I believe the term of imprisonment should remain at 12 months. In our legislation we should show the public and the criminals that we mean business. At the end of the day the judge has discretion to impose a sentence. If the term of imprisonment was pitched at six months it might not mirror the gravity of this type of crime.
I have no strong view in relation to the amendment except that I would echo the points made by Deputies Mitchell and Ahern. Sometimes when we put down a marker in legislation in relation to a maximum penalty everybody assumes immediately that the maximum becomes the norm. In fact, as we see the courts operating, the maximum does not become the norm in very many cases. I would be inclined to go along with both Deputies when they say we should leave some discretion to the judges. They will hear both sides of the story, will be privy to all the information and all the evidence and will have had the opportunity of hearing the person accused being cross-examined by the law-years from both sides. I have no strong views on the amendment but perhaps Deputy O'Malley, as a former practising lawyer, would accept that it would be better to leave the imposition of the term of imprisonment to the judge.
I have heard what the Minister and other Deputies have said and I will not press the amendment. Like the Minister I agree it is a matter of judgment. While the term of imprisonment of 12 months may appear excessive particularly by comparison with the fine — it is a new offence of a statutory nature — nonetheless it is probably as well to leave the discretion to the court in the hope that they will exercise it sensibly, as I am sure they will.
Amendment, by leave, withdrawn.
We now come to amendment No. 40 in the name of the Minister. Amendment No. 41 is related. It is suggested that we take amendments Nos. 40 and 41 together.
I move amendment No. 40:
In page 7, lines 26 and 27, to delete "shall be guilty of the offence of violent disorder only if" and substitute "shall not be convicted of the offence of violent disorder unless".
These amendments arise from similar amendments Deputy Gay Mitchell tabled on Committee Stage in relation to riot and affray which I promised to look at again. I am grateful to Deputy Mitchell for having raised the issues involved. I am advised that such a provision is not necessary in the case of a riot as, unlike in the case of unlawful assembly, actual violence has to be used. However, I understand there would be merit in including such a provision in the case of affray, as has already been done in the case of violent disorder. This is proposed in amendment No. 41. Amendment No. 40 is essentially a technical drafting matter intended to ensure consistency between sections 15 and 16.
I am grateful to the Minister for taking these suggestions on board. They go a long way to meeting the weakness in the section. I am very happy with the Minister's amendments.
I should like to raise a point on the section and perhaps you would give me a little leeway. I note that this section and the previous section — section 14 — included new offences of riot and violent disorder. Does this have implications for the criminal injuries code where, at present, in order to qualify for malicious injury compensation one has to get a certificate from the local superintendent stating that an illegal organisation was involved or that there was a riot?
Section 15 (5) may take care of this situation but I wonder if sections 14 and 15 restrict the qualification under the malicious injury code?
I am informed by my officials that they do not have that effect.
Amendment agreed to.
I move amendment No. 41:
In page 8, between lines 14 and 15, to insert the following:
"(3) A person shall not be convicted of the offence of affray unless the person intends to use or threaten to use violence or is aware that his conduct may be violent or threaten violence."
Amendments agreed to.
I move amendment No. 42:
In page 8, to delete lines 37 to 39.
The effect of my amendment to delete paragraph (a) of section 17 (3) would be to ensure that the offence set out in section 17 could not be triable summarily. The reason we tabled an amendment that blackmail, extortion and demanding money with menaces should not be triable summarily is that the offences envisaged by section 17 are very serious. When one reads the section, one does not get a full idea of what is involved but it is stated more clearly in the side note where the offences are described in the terminology used previously. I assume this section is in addition to the common law crimes of blackmail, extortion and demanding money with menaces. In the present context the crimes of blackmail, extortion and demanding money with meances are, unhappily, quite common. They were not common years ago and were regarded as very serious crimes. They are still very serious but because they are more common, people are less shocked by them. If somebody is convicted of blackmail, extortion or demanding money with menaces he should not be tried summarily and given the opportunity of being fined a sum of only £1,000 if convicted. I am making the opposite argument here from what I made on an earlier section because the penalties that can be imposed on summary conviction are not adequate for the series of crimes envisaged by this section, which should be tried on conviction.
An alternative would be to seek to increase the maximum penalties under the summary conviction paragraph (3) (a), but that cannot be done because it would be unconstitutional to go beyond the two figures mentioned in the paragraph. A person accused of any one of the three offences, which I regard as very serious, should be tried on indictment and the summary option should not be open to him. In the past — I am talking about 30-50 years ago — people convicted of those common law offences of blackmail, extortion and demanding money with menaces tended to be sentenced to very long terms of imprisonment. These crimes were relatively rare, but, unhappily, they are now almost a daily occurrence. Every effort should be made to put them down and it should not be possible for somebody to make a bargain whereby he would plead guilty to some lesser offence if dealt with in the District Court.
Deputy O'Malley has a point and unless there is some good reason for not doing so, his amendment should be accepted.
Since the question of kidnapping was not raised on Second or Committee Stages, I am advised it is not possible to put down an amendment on this Stage. We must take a very strong stand on the question of kidnapping and demanding money with menaces. I am sorry it is not possible to amend the Bill to make kidnapping an offence that carries with it not just a life sentence but a life sentence for a minimum of 20 years, the sentence for attempted capital murder.
The kidnapping offence should at least equate with that but since we cannot deal with that offence under this Bill the section dealing with blackmail, extortion and demanding money with menaces needs to be strengthened.
People do not kidnap others simply for the notoriety but because they intend to demand money with menaces or to blackmail others. This House needs to take a strong stand on that type of behaviour. Sadly, there is evidence that the offence of demanding money with menaces is on the increase. We should put down a marker that this offence will not be dealt with summarily and that in future all such cases will be dealt with on indictment and that, if convicted, somebody may go to prison for up to 14 years and pay a fine of an indeterminate nature. Knowing the type of sentence to be applied, might put the frightners on people who have an intention of committing such crimes and it may also persuade some of those involved to have second thoughts.
I support Deputy O'Malley's amendment and I hope the Minister finds it possible to accept it.
While I agree with some of the sentiments expressed by Members on the opposite side it boils down to a matter of degree. Earlier, we were discussing the issue of the Judiciary's discretion and perhaps when initiating legislation we should be concentrating on giving the DPP and the prosecuting gardaí power to use their discretion in the use of particular legislation. I understand there is existing legislation, the Larceny Act, which deals with some ares of minor offences. If we restrict this Bill we are, in effect, restricting the discretion of the prosecution to go one way or the other, for example, when an itinerant is begging on the main street, he is, in effect, demanding money with menaces. If this amendment was accepted we would be restricted to treating this as a minor offence under the section. Another example is where bigger schoolboys demand money — known as "odds"— from younger schoolboys. It is a matter of degree. I understand that the intention behind this amendment is to deal with more serious offences but I am loath to restrict the discretion of those instituting the proceedings to decide which Act to invoke. I believe the Minister should let things stand the way they are.
This is a very important section. A clear message should go out that what has been happening of late will not be allowed continue. There may be other legislation to deal with the area of protection money, another activity that we read about frequently. Whether it is hearsay or otherwise there seems to be clear evidence that it is going on. If this section is to deal with the problem we must make it clear that it cannot be allowed continue. It must be stressed that there is a determination on all sides of the House to ensure that the Garda have the necessary powers to deal effectively with that type of crime.
I would be inclined to leave the section as it is because it gives discretion as to the best way to deal with the case being addressed. The discretion should be allowed to the courts to make a decision as to whether it is suitable to apply the appropriate section.
Most, if not all, cases under the heading will be tried on indictment. I would like to send out the sort of signal suggested by Deputies O'Malley and Mitchell to people involved in the kind of activity in question. Nevertheless, it is important to leave the discretion to the Director of Public Prosecutions. Deputy Ahern mentioned the kinds of cases which might rarely arise, but it is safer to leave the discretion to the DPP. The Director of Public Prosecutions might decide that a case should be tried summarily and the District Court might refuse to accept jurisdiction on the basis that the offence was of such gravity that it should be dealt with in a higher court but, on balance and having listened to all the contributions, we should leave the discretion there. I am sure Deputy O'Malley would not envisage the Director of Public Prosecutions directing that a very serious offence would be sent to the District Court.
I am disappointed with the Minister's response as she has been fair and open minded about all of the amendments that have been tabled. I did not want to go into specific detail in relation to this but what happened a little over a week ago is exactly what is covered here — extortion and demanding money with menaces. So that the Minister and the House will understand the seriousness of this, the menace with which money was demanded was that if the person did not pay up, his wife and children would be injured or killed. What menace, what extortion can be greater than that? It should not be possible to have such cases tried in the District Court because of their seriousness. If the word went out from this House that if one is charged with an offence of that kind one would be charged on indictment it might be a deterrent.
People are revolted by what has happened in the past week or so and this was not the first such event. We have had such crimes every three or four years going back over the last 15 or 20 years. They are very serious and terrifying, and only God knows how many people are not living here today because of these kind of occurrences. The Minister will recall one case where, happily, the victim of the kidnap was rescued but the country lost a soldier and a garda who were both shot dead on that occasion in the most tragic circumstances simply because they were doing their duty in rescuing the unfortunate man. In that case a large sum of money was being sought and what happened showed the extent to which the people concerned were prepared to go.
With regard to last week's event people are asking why the person who took delivery of the money, who has been identified to the police and has visited the police and made a statement, has not been arrested and charged? The Garda may have their own reason for wanting to delay that process, but on the face of it it seems very serious. Because nobody has been apprehended yet for that offence and because the kidnappers could get the substantial sum of money which they sought, it might act as some kind of encouragement to others to try the same thing in respect of some other unfortunate family.
If this was Committee Stage I would strongly urge the Minister to think again and come back to us on Report Stage but unfortunately this is Report Stage. I wonder if there is some way in which we could limit the possibility of any except trivial cases, being tried in the District Court. I accept that some cases might be trivial, but they would be half jocose, whereas the average case of this type is very serious, even if the amount of money involved is small. The very fact of demanding money with menaces or through blackmail is a serious matter indeed. If the Minister can assure me that she will look at the case between now and when the Bill goes to the Seanad and will devise some way whereby none but the most trivial of cases would come to the District Court, that would be satisfactory and I would be glad to withdraw this amendment. I know it is not easy to draft these things but the matter is very serious and this section deals with the very events of the last week or so which so deeply shocked many people. This House should be seen to respond seriously to it.
Do I gather that the Deputy is withdrawing the amendment?
I would be glad to withdraw it if the Minister would give an indication that she will look seriously at trying to meet this point between now and when the Bill goes to the Seanad.
Strictly speaking, we are on Report Stage and the Minister can only intervene once.
Deputy O'Malley accepts the point which Deputies made in relation to the absurdity of any Director of Public Prosecutions referring to a district court a matter with such serious consequences as events of the last two weeks in this city. I do not believe any of us could conceive a position in which that might happen. I am as anxious as Deputy O'Malley and others to send a strong signal to the people involved in that kidnapping. First, I want to send a signal of support to the Garda that they will apprehend those involved and that they will be dealt with by the courts and, second, a signal that when they are apprehended they will be dealt with appropriately. I visited the Lacey family and saw at first hand the great distress caused to all members of that family — Mr. Lacey, his wife and children and their babysitter — over a long period. I am aware of the trauma that family face as a result of their kidnapping.
I am anxious that the signals sent from this House are that the law is tough, that we intend to deal with such criminals, that they are not wanted in our community, that we will root them out and that all the necessary support and resources will be given to the Garda to enable them apprehend those responsible. Deputy Ahern and others referred to a number of less serious crimes under this section. Therefore, it is necessary not to close off the avenue open to the DPP to refer matters to the District Court. I will reconsider the matter before the Bill goes to the Seanad. I am glad Deputy O'Malley recognises the difficulty of devising a suitable formula, but if we can devise one I will be delighted to introduce it.
I will not press my amendment, but as the Minister stated the DPP will not send people guilty of serious offences to the district Court, I would remind her that he has not sent a gentleman, referred to as "Joe", even to the District Court.
Amendment, by leave, withdrawn.
I move amendment No. 43:
In page 8, after line 41, to insert the following:
"18.—(1) It shall be an offence for any person to have in his possession or under his control any thing or recorded information, in circumstances which give rise to the reasonable inference, that such possession or control was for the purpose of the commission of a serious offence.
(2) In this section, `serious offence' means any offence which is punishable on indictment by a term of five years imprisonment or any greater punishment.
(3) In a prosecution for an offence under this section, it shall not be necessary for the complaint, charge or verdict to specify any serious offence, where the court or jury trying the offence is satisfied beyond reasonable doubt that the possession or control was for the purpose of committing any one or more of a number of serious offences.
(4) A person guilty of an offence under this section shall be liable on conviction on indictment to a term of three years imprisonment or a fine of £50,000, or both."
This amendment proposes the insertion of a new section before section 18 to cover a matter which is not an offence at present, the unlawful possession of incriminating matter. I have personal experience of this difficulty and I know what inspired Deputies McDowell, Harney, O'Donnell and me to table this amendment. At present the gardaí can search a person or his or her house under warrant and find obviously incriminating material.
It would be evident from the material found that he or she intended to commit a serious crime, but that person has not committed an offence unless it can be proven that he or she conspired with others to commit the offence or had actually attempted to commit it and failed. If the crime was still at the planning stage, possession of incriminating material relating to it would not in itself amount to an offence. To illustrate this I will give the House an example of what inspired us to table this amendment. This is by no means the only such case because we were told by the gardaí at the time that they had dealt with many similar cases.
Approximately one year ago a barrister acting for me went to a particular place in Dublin five days a week, Monday to Friday. He normally took the same route every day from his house to a location in the centre of Dublin. In pursuing an investigation into another crime, the gardaí arrested a person and following his arrest went to his flat in Dublin and among his papers discovered drawings relating to the daily journeys of the barrister working for me. Those drawings showed where his house was located, the time he left his house, from where the car was collected, the route he took and the approximate time at which he arrived at his destination each day. Two or three places on the map where the car would normally have to stop because of traffic congestion or traffic lights were marked with an asterisk. The Garda got in touch with the person immediately and warned him he was in danger of being kidnapped. I was told about it the same day and it caused me great concern.
We assumed that the person on whom that incriminating documentation was found would be charged with carrying out some form of activity preparatory to kidnapping, but that was not the case. He was charged with offences relating to firearms found in his flat, but he was not charged with the possession of incriminating matter although it was evident that he was carefully planning a kidnapping. He could not have been doing anything else with the documentation in his possession because it would have been meaningless in any other context.
This proposed new section endeavours to make it an offence to draw up or possess such documentation in circumstances that give rise to reasonable inference that such possession or control is for the purpose of the commission of a serious offence which is defined as being punishable on indictment by a term of five years' imprisonment or any greater punishment. It is obviously not intended to relate to what might be classified as a medium offence, it relates only to the planning of serious offences. The amendment specifies that it is not necessary to prove beyond reasonable doubt that a kidnapping, a murder or an assault which may cause grevious bodily harm is envisaged. The prosecution must prove only that a serious offence is planned and the proposed penalty on conviction on indictment is a term of not more than three years' imprisonment or a fine of £50,000, or both.
Numerous crimes of that nature take place. It is well known, for example, that there is a certain criminal in Dublin who plans crimes but does not execute them himself; rather he gets other people to execute serious crimes on his behalf. If he was found in possession of maps or other documents which made it clear that he was planning a crime would the Garda Síochána and the State not look foolish if they could not charge him with anything? That is the position under the law at present. I understand that that man is free even though the Garda Síochána publicly associate him with the commission of a variety of serious crimes in this city. I do not think that this should be allowed to continue. The Oireachtas should give whatever powers are necessary, within reason, to the Garda Síochána and the courts to convict a person who is clearly planning a serious offence.
The reason these surrogate criminals, these godfathers of crime, do not physically commit crimes themselves but rather hire others — usually younger people who are paid, I presume, a proportion of the proceeds of the crime for carrying it out on their behalf — is because this loophole exists in the law. This amendment would close it, with the result that these people would be caught. Neither I nor my colleagues are suggesting that the average person might have some doubts; nobody would have any doubt about what the intention of the person caught with a document was, because the person concerned would not have had it for any purpose other than kidnapping or something more serious. As I said, the reason people plan crimes but get somebody else to carry them out is because there is a breach in the law.
I should point out to the Minister that crimes being planned, which are carried out by other people, include not only burglaries and other run of the mill crimes but also murder. Of late there has been a number of murders, particularly in Dublin. The Garda Síochána seem to be in no doubt and so tell the media that the people who carried them out were hired hitmen. If the Garda Síochána were to get evidence, either on the person, in the car or in the house of somebody who was making an arrangement to have somebody else murdered or kidnapped, is it not outrageous that they would not be able to prosecute them? This amendment, which would insert a new section 18, would cover that point and I strongly urge the Minister to accept it.
We have constantly to think in terms of keeping not just one step ahead of the criminals but at least keeping up with them. Ideally, we should be one step ahead of them at all times in framing the criminal law. However, we are about two steps behind them. All I am asking is that we keep up with them. It is a sick and sorry joke that somebody can plan a murder or a kidnapping and nothing can be done, even though there is clear evidence that this is the case. He is able to laugh, yet again, at the Garda Síochána, who have had plenty of experience of this, particularly in Dublin. For these reasons I strongly urge the Minister to accept the amendment.
I have not had an opportunity to discover if there are corresponding provisions in other countries, but I am quite confident that there are similar provisions in other countries. If somebody was caught in the act of planning a crime such as this and was in possession of an incriminating document, I have no doubt that in jurisdictions such as the United States and on the Continent they would be guilty of an offence and convicted.
I am surprised to learn from Deputy O'Malley that there are no similar provisions in the existing legislation and, if that is the case, they should be included. It was my understanding that the Offences Against the State Act dealt with this problem but perhaps my memory is faulty in that regard. I support the thrust of Deputy O'Malley's amendment. Even though it has its defects its intent is clear and it is worthy of strong support.
In the early to mid-eighties I was asked by a television interviewer if I was aware there was organised crime in the city. I replied that I had only heard rumours, that I could not produce any substantial evidence which would stand up, but there is no question that we have moved on since then. There is now an organised criminal underworld.
Recently in Dublin somebody casually walked up to a man who was standing near a Halloween bonfire with his daughter and shot him, reloaded and shot him again. That person knew that that man was going to be there at that time. It has been suggested that this was carried out by a subversive or by somebody who was hired. It appears that there is now a guns for hire service available on the criminal market in Dublin, not just the gun but the hitman or the gunmen also. I do not know how such a service has taken off so quickly in recent years. Perhaps some of these criminals have noted the ease with which the subversives have been able to tout guns and to take life. This development should be the source of grave concern to Members of this House. The fact that these crimes are planned and executed indicates clearly that a business like and callous approach has been adopted.
When these people are caught they seem to be well informed as to where they stand legally. Indeed, some have defended themselves in court. The wrong balance has been struck in the law. It should be a crime to be in possession of plans or recorded information which indicates clearly that it is their intention to commit a serious crime. If there are reasonable grounds for believing they are planning a crime then it should be possible to charge them and present the evidence to the court.
The amendment put down by Deputy O'Malley is defective. Subsection (3) of his proposed amendment is too widely drawn and subsection (4) is drawn in a way that might give rise to difficulties; it does not specify a term not exceeding three years but a term of three years. That is a statutory sentence and, generally, statutory sentences can cause problems. The general intent of what the Deputy is proposing is certainly worthy of support. In fact I do not think three years would be enough. It should be up to five years or more, depending on the gravity of the offence.
Perhaps the Minister will indicate if the existing legislation covers the difficulty raised by Deputy O'Malley and, if it does not, will she agree that this amendment or an amendment similar to it is desirable? If she is not prepared to accept this amendment — and I recognise that there are defects in it — I would urge her, if it is not already provided for in law, to bring in an amendment before the Bill goes to the Seanad.
This is an area of growing concern. There seems to be a great increase in planned crime. Areas of the city will be divided between different gangs of criminals. We are heading in that direction. We clearly must tackle this problem. If the Minister accepts the general thrust of this amendment, I would ask that she incorporate a provision along those lines. A statutory sentence of three years is not sufficient. A sentence of up to at least five years should be provided for.
As I indicated in response to a similar amendment on Committee Stage, I have sympathy with what is being proposed here. However, I am sure that Deputies O'Malley and McDowell appreciate that the issues raised by the amendment, impinging as they do on the law generally in that area, are extremely complex ones. I am reluctant to proceed with an amendment along the lines proposed without the benefit of a detailed review of issues in this area generally. Unfortunately, as I indicated on Committee Stage, it would not be possible to have my consideration of the issues involved completed without delaying the passage of this Bill. That was accepted by all sides. In the circumstances, I regret that I am not in a position to bring forward an amendment at this stage or to accept this amendment. However, I would like to assure the Deputies that I have directed that an assessment be undertaken with the Garda Síochána as to any deficiencies in the existing law in this area which might be hampering the fight against crime. Obviously I would prefer to have the outcome of that assessment before supporting or, indeed, making any specific proposal in this area.
I propose shortly to bring forward a Criminal Justice (Miscellaneous Provisions) Bill which might well prove a suitable vehicle for an amendment along the lines proposed. I emphasise that I am not rejecting the principle of the amendment. I accept that a very strong case is made by Deputy O'Malley, one that was made by his colleagues, Deputies McDowell and Harney, on Committee Stage. I would like to be in a position to consider it further and to bring forward an appropriate amendment largely based on the amendment before us this evening in the context of the Criminal Justice (Miscellaneous Provisions) Bill to be introduced later.
I understand what the Minister is saying. There are a few points I would like to make in relation to this proposed offence. The Minister will be aware that in relation to criminal offences, there are various degrees of participation. First, there is primary participation; second, there is participation as an accessory before the fact or an accessory after the fact; third, there are the people who conspire to commit offences and, fourth, there are people who attempt to commit offences. The latter categories, when I was learning criminal law, were called inchoate offences in that they fell short of the completed act but, nonetheless, were criminal in themselves. What is merely a preparatory step is not, in our existing criminal law, an offence per se in the vast majority of cases. There are some statutory exceptions. A preparatory step involving more than one person usually betokens a conspiracy which is an offence. Our law relating to conspiracy has not been updated as it has been in England and therefore in Ireland we have a far more draconian law. If two people agree together to do an act which is either contrary to public morality or a civil wrong and not even a criminal offence in itself, that agreement can itself amount to a criminal offence. I suggest to the Minister if she is reviewing this area of legislation that she should take a look at the conspiracy legislation introduced in the United Kingdom which, at least, tried to modernise and make some sense of the law of conspiracy.
The offence envisaged here does not involve more than one person but does involve a preparatory step of a kind which can be detected and which amounts to something less than an attempt to commit the offence. It is not simply a matter of the grave circumstances which Deputy O'Malley outlined, where apparently no prosecution was open on what ought to be clear grounds for prosecution and punishment. It goes further than that. In many instances, in Northern Ireland at any rate, people are convicted of having in their possession information which would be of use to terrorists and, therefore, notes on movements of UDR men or prison warders or RUC men or their wives, etc. are of themselves things which it is not lawful to be in possession of.
If one goes back to the Tom King conspiracy trial in England which ended in a quashing of the conviction by the Court of Criminal Appeal on different grounds, the situation was that the prosecution were faced with a fact, if the evidence was as they alleged it to be — and bearing in mind the quashing of the conviction, one has to be careful. They could prove observation of Tom King by people from a distance. They could prove that somebody was involved in keeping his premises under observation. They could prove, apparently, that people had in their possession recorded information which was for some nefarious purpose, the precise nature of which was never quite clear. As I understand it, the issue arose in that trial as to whether there was a conspiracy to murder shown by the facts that were proven and the information that was found or whether it amounted to something less than that such as a conspiracy to accumulate information on movements solely. Such issues arise in conspiracy trials and I believe that it is better to have a law which is clear as to what it means.
Deputy Mitchell criticises subsection (3) on the grounds that it is unduly wide. I do not think it is because if somebody other than, say, a member of the press, has an account of my movement, or my wife's or children's movements and observations about means of access to my house in their possession, I cannot show, and the Director of Public Prosecutions cannot show in such a case, whether this is with a view to coming into my house and burgling it and destroying it or burning it down; it could be for the purpose of kidnapping or murdering me. Nobody knows the precise offence that might be contemplated. If information relating to a person's movements or in respect of access to a household had been found in the possession of a person who was on trial, the jury might conclude that the possession of such information was for the purpose of kidnap, murder, robbery or a serious assault. If an offence of this kind is to be put on the Statute Book it must contain a provision that the prosecution do not fall into the dilemma, as happened in the Tom King case, of having to prove precisely what was in the mind of the people who gathered the information. It need not be proved that the information related to a kidnap rather than a murder and the proposition need not be put to the court that it must decide the ultimater aim if the court can arrive at the conclusion beyond reasonable doubt that, whatever the aim was, it amounted to a serious offence being contemplated.
I ask the Minister to consider not only the scenarios that Deputy O'Malley and I mentioned but all the things that may be happening around this city now. It is absurd that if somebody is found walking down Grafton Street with careful notes about the alarm system in a jewellery shop, the movements of its employees and the name and home address of the watchman of that shop, the possession of such information is not an offence under our criminal law. If someone is found in possession of a map or plans and has no reasonable excuse for possessing such material and the court can conclude that the possession of such information was for the purpose of committing a serious offence, that should be a criminal offence. Deputy Mitchell made the point that the possession of such information should carry a penalty not exceeding three years' imprisonment.
Five years.
Five years or a lesser term, but that is not a serious criticism of the section. A serious offence means any offence punishable by more than five years' imprisonment, in accordance with the definition in the Criminal Justice Act, 1984. To do something in contemplation of a serious offence should not necessarily carry the same penalty as a serious offence. That is the thinking that lies behind a lesser penalty than the five year imprisonment term. Whatever penalty is imposed the principle must be conceded that unless something amounts to an attempt or a conspiracy, it falls between two stools and out of the criminal system.
I note that the Minister would like to consider the matter further and perhaps deal with it under the proposed Criminal Law (Miscellaneous Provisions) Bill. If someone is caught tomorrow with a file of papers on another person's movements and it appears that person was putting together a plan for kidnapping, is the criminalising of such behaviour to be put on the long finger? It does not matter under which Bill this matter is dealt with. However, the Minister cannot afford to generally review the law relating to the whole area before acting in the matter. The provision in the proposed amendment, or a similar one, is urgently required. It would be a great scandal if another instance such as that to which Deputy O'Malley referred goes unprosecuted.
I agree with Deputy McDowell's comments. I thank the Minister for her assurance that she will consider a section on the lines proposed in the amendment in other legislation, but I am concerned about the delay. I do not accept that the proposed section is badly drafted, except for an error in the last subsection where it should state, "to a term not exceeding three years, imprisonment" rather than "to a term of 3 years imprisonment". I would be open to the term being extended to five years, as proposed by Deputy Mitchell, and the offence should also be subject to a fine not exceeding £50,000. That error was probably typographical. Otherwise, the section stands up. Subsection (3) stands up also. It could be made clearer by including that it should not be necessary for the complaint charge or verdict to specify any particular serious offence, where the court or jury trying the offence is satisfied beyond reasonable doubt that the possession or control was for the purpose of committing any one or more of a series of offences.
The arrangement for crime from a position of one step removed is becoming more common. The godfathers of crime in Dublin organise crime but never take part in criminal acts. They hire people to carry out such acts, but they do the planning. The only incriminating evidence one may get on such people is some form of document or recorded information of the type envisaged in the amendment. The amendment proposes that it shall be an offence for any person to have in his possession any thing or recorded information. The word "thing" is deliberately broadly drafted to include, for example, a gun. Some of those people have guns for hire. The unlawful possession of a gun is an offence, but if it is possessed for the purpose of committing a serious offence the person in possession of the gun is guilty of a more serious offence in this regard.
Similarly, recorded information — for example, tapes of telephone conversations illegally tapped, maps, plans, drawings and accounts of people's movements on a habitual basis — may be in a person's possession for only one purpose. Deputy Mitchell suggested that the Offences Against the State Act covers the possession of incriminating documents. I was very familiar with all the Offences Against the State Acts. However, my recollection is that incriminating documents relating to offences under the 1939 Act and the amending Acts do not relate to a document that would be incriminating in terms of what the Department of Justice regards as ordinary crime as opposed to subversive crime. If it was thought necessary to include such a section in the 1939 Offences Against the State Act because one would not get a conviction against some of those people without a section of that kind, it is surely necessary in the nineties to have a similar section or an analogous section for non-subversive or ordinary crime.
Today ordinary crime is almost as organised as subversive crime. It is no longer carried out by some lone ranger. Serious crimes are carried out by organised gangs, often made up of ten to 12 people, each of whom has a specialised job in the preparation and planning of the crime. They often base their methods on what subversive gangs have done. Therefore it is not unreasonable to ask in the nineties that there should be in our ordinary criminal law a section akin to the section in the Offences Against the State Act, 1939, regarding the possession of incriminating documents. This should have been done before now. I accept that the Minister may want to think a little more about this matter, but on the other hand I am fearful about long delays. I strongly urge her not to leave the matter to another Bill; rather she should try to have whatever examination is necessary carried out on the matter between now and Committee Stage in the Seanad.
Among other matters covered by the word "thing" in subsection (1), which can only have the inference that they are there for the purpose of committing a serious crime, would be, for example, sets of handcuffs which are used in kidnappings; masks and balaclava helmets, which are used for robberies and various other crimes; and elaborate disguises such as wigs and so on that are also used——
Wigs of a certain kind.
I am not to be taken as suggesting that everyone who wears a wig is necessarily a criminal or has criminal intent. As on a previous occasion — perhaps this is slightly outside the rules of order — I invite the Minister to tell me whether she will consider this matter between now and Committee Stage in the Seanad rather than leave it to a Bill. With the best of intentions, a Bill of the kind she is talking about may, through nobody's fault, not appear in this House for 12 to 18 months and may not be passed for two or three years. Therefore, I would like her to consider the matter in the Seanad.
The reason I said I would prefer to have time to consider the matter between now and the introduction of the Criminal Justice (Miscellaneous Provisions) Bill is because that Bill is nearing finality in the Department and I hope it will be published early in the next session. Therefore, we are not talking about a 12 or 18 month or a two year delay. Because of the urgency in relation to this Bill and the fact that Senators are pressuring Members of this House to get it into the Seanad for discussion, I felt I might not have sufficient opportunity between now and then to include an amendment such as this. If I felt there was sufficient time I would give that commitment here, but I would not like to give a commitment that I could not stand over.
Amendment, by leave, withdrawn.
We will now deal with amendment No. 44. Amendment No. 45 is related and I suggest that both amendments be discussed together.
I move amendment No. 44:
In page 9, line 5, before "on summary conviction" to insert "having elected for summary disposal of the offence,".
This is a matter of fundamental interest to me, a matter about which this House should think long and hard. There are two schools of thought on this issue: first, that a person accused of assaulting a policeman in the due execution of his duty should be entitled to a jury trial; and, second, that he should not be so entitled. There are overwhelming reasons that a person accused of assaulting a policeman in the due execution of his duty should be entitled to a jury trial. The old excuse trotted out on occasions such as this that a comparatively trivial offence does not merit a jury trial does not stand up to scrutiny, because a comparatively insignificant assault may be prosecuted at the insistence of the Director of Public Prosecutions as a common assault charge. In those circumstances an accused person is not given an absolute right to a jury trial.
However when it comes to what is certainly a more grave matter, an assault on a peace officer, normally a garda, in the due execution of his duty, a fundamentally different set of considerations comes into play, that is, the appropriate mechanism for determining the rights or wrongs as between a garda and a member of the public in the event of a conflict of evidence. I am not talking about making barristers rich by having unnecessary trials on indictment. I am dealing with what I believe is a very real problem. For example, in places such as the west, where the local district judge is well known to the Garda, where he sees them day in and day out in his court, in those circumstances he is not the appropriate person to deal with such an offence. Everybody who has ever been involved with the criminal law knows that, as time goes by, judges become was weary and battle scarred. Their innocence and naivety evaporates and they build up much scar tissue in terms of the cases with which they deal — in many cases that could be described as experience.
However, I know of cases where members of the Garda Síochána have assaulted ordinary individuals. The individual has to go before a District Court judge who is well known to the Garda and who has heard him testify on many occasions. In the circumstances — let us bear this in mind — this judge has to give a verdict whereby to doubt the garda's word would make future operations of the court on that garda's evidence very difficult indeed. I say that simply because I know that is what happens on the ground. District Court judges have to work with the Garda day in and day out and they have to accept their word on speeding and licensing offences and so on.
When it comes to a decision as to whether a garda pulled the baton unnecessarily or shoved the drunkard unnecessarily, it is almost humanly and emotionally impossible for most members of the Judiciary to hold the scales of justice fairly in their hands. I am not putting any blame on the Judiciary, but it is very difficult for them to apply the ordinary principles of criminal law in these cases and to say that if there is reasonable doubt they will acquit the accused. Members may think that such cases rarely arise, but that is not so. When I became a barrister in the mid-seventies such an offence, which is equivalent to the offence being created under this Bill, was dealt with under section 38 of the Offences Against the Person Act. Frequently people availed of their right to a jury trial. On many occasions I witnessed cases where the jurors' mouths were hanging open by the end of the case and they wondered who should be in the dock and who should be the witness giving evidence. In those circumstances the jurors had no problem about acquitting the accused. On many occasions juries considering a fracas between the gardaí and the accused, decided that they still had a doubt about the issue, were not satisfied that they had been told the entire truth by the gardaí and acquitted the accused. Unfortunately, a directive was issued by the Director of Public Prosecutions office to avoid wherever possible laying a charge under section 38 of the Offences Against the Person Act and to use instead a late 19th century summary jurisdiction Act, which, deprived the accused of the right to a jury trial. That directive was very clear in its terms. It told the Garda that it was not to bring charges under that section anymore as it gave the accused the right to opt for trial by jury. That is most unsatisfactory.
It is not as if this is an extreme rarity. In a recent case the Supreme Court heard how a District Court judge had heard a case involving the prosecution of an accused by gardaí in respect of an assault on them. It turned out that the District Court judge had bent over backwards to secure a conviction, had rubbished the evidence which tended to support the accused's account of the incident and had imposed, but had revoked, a sentence of imprisonment on one of the witnesses for the accused for lying to the court. The Minister will be sorry to hear that this happened within the past six months.
The issue is not whether the odd case like that comes before the Supreme Court; the significant issue is who should hold the scales of justice between the ordinary person and the Garda. When one is dealing with a situation where an offence of this kind is punishable, either on indictment or on a summary basis, the question must arise: who makes the decision and on what grounds do they opt for summary jurisdiction in the District Court or decide to allow the accused a trial on indictment? I have great sympathy for anyone who says that a jury trial should not take place in regard to what is a comparatively minor incident. Equally, I hold a very strong and passionate view that nobody who gives an account of an incident involving an assault and on whom violence has been used should be imprisoned if he and his neighbours are not satisfied at the end of the day that he has had a fair trial by people who have no axe to grind in the issue and who are not predisposed to, or acquainted with one witness rather than another.
Because of the local nature of the District Court and the inevitable familiarity of the judges with the Garda in the District Court jurisdiction, it is necessary in some cases for the accused to have the right to opt for a jury trial. There are circumstances where a person accused of assaulting a garda in a fracas where he has sustained major injuries should be entitled to opt for trial by his peers. That was the position well into the eighties until some clever person in the Office of the Director of Public Prosecutions noticed that this right could be avoided by using a later Act. In Dublin most of the District Court judges do not know individual gardaí and it is no embarrassment to them to disbelieve a garda. However, in rural Ireland it is a major issue if a garda, especially a sergeant, is disbelieved by his local District Court judge on a charge of this kind.
There is another issue which needs to be raised in this context, that is, compensation to gardaí arising out of a fracas. It frequently happens in such circumstances that a garda is entitled to compensation under the Garda Síochána Compensation Act. If the garda secures a conviction against the other person involved in the fracas he will clearly be entitled to compensation. I am worried that in circumstances where gardaí may have used excessive force they will be tempted to go to the local District Court judge and get a conviction against the person involved in the fracas and, second, have a right to compensation.
Nobody in this House admires the Garda Síochána more than I, but the issue of holding the scales of justice between the Garda on the one hand and the ordinary Joe Soap on the other is fraught with difficulty when it comes to the word of one against the word of another as to whether excessive force was used, whether a baton was unnecessarily used, who struck the first blow, who pushed whom and who was the causing agent in the dispute. It is precisely in such cases that an individual is entitled to a fair trial by 12 ordinary people who will listen to all the evidence and possibly find against the Garda. I am not calling for trivial cases to be heard before juries as such cases can be dealt with in the same way as cases of common assault.
District Court judges dealing with these cases not only face the embarrassment of potentially having to disbelieve a garda whose evidence is in conflict with that of a member of the public but they can find themselves in the position of imposing a sentence in respect of an injury done to a person whom they know very well. There is pressure on them to hand down a tough sentence to mark disapproval of assaults on gardaí, which is a perfectly reasonable policy. However, as a person well known to them has been assaulted, impartiality is not written over the entire transaction. The hallmark of a satisfactory criminal case is when an accused person, if convicted, at least says it was a fair trial. The hallmark of an unsatisfactory criminal case is when the accused person says of the trial "It more or less had to be that decision. The sergeant was well known to the District Court judge". The proper way to get around this is to hold open the right, which this section proposes to close, given in the 1840s or 1850s to persons accused of assaulting police to have the matter decided by a jury and not just by a local magistrate.
Debate adjourned.