Supplementary Estimates, 1996. - Criminal Law Bill, 1996: Second Stage.

I move: "That the Bill be now read a Second Time."

The main purpose of the Criminal Law Bill, 1996, is to provide for the abolition of the distinction between felonies and misdemeanours. That distinction marked the original approach to the classification of offences, felonies being the graver class and misdemeanours the less grave class of offences. The distinction has been eroded over many years and in today's conditions has no real relevance. Today, for example, serious offences such as fraudulent conversion, obtaining property by false pretences and some sexual offences are classified as misdemeanours. This classification would suggest, for example, that fraudulent conversion is a misdemeanour, regardless of the amount involved, whereas stealing a penny is a felony.

The distinction also gives rise to a number of unnecessary complications and anomalies in the law. Certain statutory provisions and common law rules depend on the continuing distinction between those two classes of offences. The Bill is for the most part comprised of provisions that are consequential on the abolition of the distinction between felonies and misdemeanours and related matters. It provides that in general the law and practice for misdemeanours before the commencement of the Bill will apply to all offences. The abolition of the distinction is also a very positive step as it provides the opportunity to amend and restate the law in a modern form. It is, therefore, a progressive reform. It means that a considerable number of older enactments can be repealed or, in some cases, simplified.

Deputies will be aware that there is a long history to the preparation of the Bill. In England and Wales, the abolition of the distinction between felonies and misdemeanours was given effect by the Criminal Law Act, 1967. In this jurisdiction, work proceeded almost simultaneously on the same task — it was of course substantially the same law that was being reformed in both jurisdictions. The Criminal Justice Bill, 1967, which contained those proposals lapsed on the dissolution of the Dáil of the time and it is only now that the proposals carried in today's Bill are being proceeded with. Deputies will be aware that other key proposals contained in the 1967 Bill have since been enacted. The intervening years represent a highly unusual delay in bringing forward reform in this area of the law and I am extremely pleased to have the opportunity to influence and advance this much demanded and necessary reform.

I think we would all agree that the criminal law must be more relevant and responsive to modern day crime. This Bill, by modernising and clarifying the law in key respects such as in relation to the powers of arrest, is a very significant advance in that regard. I might also mention that I obtained Government approval last month for my proposals for a Criminal Justice (Miscellaneous Provisions) Bill. It will contain provisions for a more effective and efficient use of Garda time and resources and other proposals for reform of procedure in criminal cases. Both of these Bills are key elements of a comprehensive programme of legislative reform that I have undertaken to modernise and codify important areas of the criminal law. The Criminal Justice (Drug Trafficking) Bill is at Committee Stage in the House. Other legislative measures which are at an advanced stage include a Non-fatal Offences Against the Person Bill, a Juvenile Justice Bill and a Criminal Justice (Insanity) Bill. I have also done a substantial amount of work on proposals for fundamental legislative reform in the area of fraud. In addition, I am at present consulting with my colleagues on comprehensive proposals to deal with the problem of offending while on bail.

These reforms, which were set out in my criminal justice plans announced on 30 January last, form part of my law and order response to today's crimes. In this connection there has been some comment in the media and elsewhere about the worrying development of gangland style murders or professional killings by so-called "hit men". Murder is murder whether it occurs in the context of a family dispute or whether it is a cold-blooded killing carried out by a professional assassin. The authorities are often depicted as powerless to respond to these sinister gangland murders. The reality is that they must be dealt with in accordance with the rule of law and comments which characterise the authorities as powerless ignore the seriousness with which this Government is responding to developments and trends in modern day crime. My law and order response is comprehensive and far-reaching. It includes making available additional prison places, improvement of Garda structures, reform of the courts and putting in place meaningful legislative changes to our criminal justice system. This response is geared to tackling crime of all description whether it is so-called gangland murder or serious crime in rural areas. Considered reform of the law within constitutional precepts that is aimed at standing the test of time, not quick-fix solutions, is the most appropriate and long-lasting response to developments in crime patterns. That is the course I am following.

I will deal with the individual provisions of the Bill. Section 3, the pivotal provision' abolishes all distinctions between felonies and misdemeanours. It provides that the law and practice in relation to offences shall be that applicable to misdemeanours. In my opening remarks I explained how the distinction between felonies and misdemeanours, which was originally a distinction between serious and minor offences, has become blurred over the years. So, as a consequence of abolishing the distinction, the law needs to be updated and in some cases restated.

At present there is a power of arrest without warrant at common law in respect of felonies. No such power exists in relation to misdemeanours. As a result, it is necessary to obtain an arrest warrant in respect of a number of serious offences which are classified at present as misdemeanours, such as fraudulent conversion, obtaining property by false pretences and some sexual offences.

Because it is now proposed to abolish all distinctions between felonies and misdemeanours, section 2 will put in place a new category of arrestable offence which will comprehend most felonies and the more serious misdemeanours. An offence that is punishable by imprisonment for a term of five years or by a more severe penalty, including an attempt to commit such an offence, will be an arrestable offence for the purposes of the Bill.

For the most part the Bill restates and clarifies the existing law relating to arrest. The fact is that practically all present felonies come within the new arrestable offence category as nearly all of them are punishable with maximum sentences of at least five years imprisonment. The only substantive change is that the new category of arrestable offence extends the power of arrest without warrant to include some of the more serious misdemeanours. These are misdemeanours which at present carry a penalty of at least five years imprisonment. I am satisfied that this change makes the law relating to arrest much more relevant and effective as the new powers will now be related to the seriousness of the offence in question as determined by the penalty that may be imposed for the commission of that offence. That this is the most appropriate test is self-evident.

There is a clear need for an effective power of arrest without warrant. It would be hard to justify in today's conditions the retention as part of our criminal justice system of the requirement that arrest for the commission of some serious offences can be effected only on foot of a warrant while other equally serious offences do not necessitate obtaining a warrant. I am satisfied the criterion of a penalty of at least five years imprisonment is an appropriate and proportionate indication of what constitutes a serious offence.

The definition of arrestable offence is the same category of offence referred to in section 4 of the Criminal Justice Act, 1984 in respect of which the provisions of that Act relating to periods of detention in Garda custody apply. It is no coincidence that the new arrest provisions before the House today and the provisions of the 1984 Act have a common reference point in terms of the seriousness of offences to which both provisions relate. This represents an important step in the codification of our criminal law. It is desirable that the law in relation to arrest and the law relating to Garda procedure after arrest are underpinned by a common reference point in respect of offences committed.

Section 4 is concerned with the powers of arrest which are exercisable by private citizens and by gardaí. At present the powers of arrest without warrant are either contained in statutes, of which there are many, or conferred by the common law in respect of felonies. Statutory powers of arrest are unaffected by the provisions of this Bill. The section contains powers that correspond to the present common law rules in respect of felonies. They are exactly the same as the power of arrest conferred by section 19 of the Criminal Law (Jurisdiction) Act, 1976 in respect of offences in Northern Ireland and associated offences in the State.

There is of course a crucial distinction in law between the relative positions of private citizens and gardaí in the matter of arrest. When a private citizen exercises a power of arrest, it is essential that a felony can actually be proved to have occurred. If no felony has in fact occurred, the private person will be liable to a civil action. Therefore, a private person must exercise caution when they decide to exercise a power of arrest. However, a garda may arrest any person whom he or she reasonably suspects of committing a felony whether or not any offence has actually taken place. The garda is immune under the law from a civil action for damages should the offence not actually have been committed.

It is appropriate to maintain the distinction in law between the powers of arrest of gardaí and the powers of arrest of private persons. While it is appropriate that private persons should have a power of arrest, and the courts have commended such persons for exercising these powers in particular cases, there is a question of balance here which must be settled in the context of the constitutional right to personal liberty. It is worth emphasising that the only substantive change proposed in the Bill is that such powers of arrest without warrant will now extend to a number of serious offences previously classified as misdemeanours.

Cheating at cards will be one of them.

That is a serious offence if one is playing cards.

One can imagine what it will be like if they start arresting one another because of it.

The powers of arrest of private persons is in practice of most relevance to store detectives or security personnel who do not and who will not have under this Bill any additional powers at their disposal in the matter of arrest than has any other private person.

Section 5 provides that a member of the Garda Síochána may execute a warrant for the arrest of a person or an order of committal without the need to have the actual warrant or order in his or her physical possession which is what the common law appears to require. There are precedents for this approach contained in the Criminal Justice Act, 1984, as regards arrest on a warrant for failure to surrender to bail and in the Extradition (Amendment) Act, 1994, as regards arrest on extradition warrants and I am happy to extend this to cover all arrests on warrants. I think it is most unsatisfactory that a garda is not generally empowered to arrest a person when he or she knows that a warrant for the arrest of that person has been issued. Nevertheless I consider it to be a prudent safeguard that the warrant or order must be shown to the arrested person on demand as soon as practicable.

Section 6 sets out the powers of entry and of search of premises to effect an arrest for an arrestable offence or on foot of an order of committal. This power restates in a much clearer way the existing common law rules of entry applicable to felonies which will now apply to arrestable offences as defined in the Bill. That the use of force to effect an entry must be reasonable is, I think, a vital qualification of the power; it is an important safeguard for the citizen and a strong direction to the Garda as to the appropriate manner of implementation of this power. I would stress that the purpose of the power of entry is to effect an arrest. It does not entitle the Garda to search a premises once they have arrested a suspect.

The current law varies as to how persons involved in a crime who do not actually carry out the deed are treated depending on whether the offence in question is a felony or a misdemeanour. With regard to felonies, distinctions are made between a principal in the first degree, that is the person who does the act in question, a principal in the second degree, that is a person who aids or abets the commission of the offence by the principal in the first degree and an accessory before the fact, that is a person who counsels or procures the principal in the first degree to commit the offence. For misdemeanours, there are no such distinctions made and all persons involved are treated alike as the principal offender. There are no good reasons for maintaining the distinctions in regard to felonies and accordingly section 7 provides that the misdemeanour rule will now apply to all indictable offences so that all of those who aid or abet, counsel or procure the commission of such an offence are treated alike as principal offenders.

The section also creates a new offence of impeding the apprehension or prosecution of a person who has committed an arrestable offence. This replaces the common law offence of being an accessory after the fact to a felony. A scale of penalties for this new offence which are graduated according to the seriousness of the principal offence is set out in the section. For example, where a person A has committed the arrestable offence of murder, a person B who commits the offence of impeding the apprehension or prosecution of person A, shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years.

Section 8 creates a new offence of concealing an arrestable offence. This arises from the abolition of the distinction between felonies and misdemeanours. As a result of abolishing felonies, the old offence of misprision of felony disappears. The new offence will in effect be one of accepting a bribe not to disclose relevant information to assist the prosecution or conviction of an offender. The new offence of concealing is similar to the existing offence of compounding a felony with one important difference. The old offence of compounding a felony also covered any consideration accepted for not disclosing information including consideration consisting of the restitution of or compensation for stolen goods. Under the section, it will no longer be an offence not to disclose information about an arrestable offence where the loss is made good or compensation is made for it.

The current rules about alternative verdicts, that is where a person may be found guilty of a less serious offence than that on which he or she has been arraigned, differ as between felonies and misdemeanours. At present on a charge of felony the accused may be convicted of a less serious felony of which the ingredients are included in the felony charged. While the same rule applies to misdemeanours, a person charged with a felony cannot be convicted of a misdemeanour except under statute. As a consequence of the abolition of the distinction between felonies and misdemeanours, section 9 provides for a general rule on alternative verdicts in relation to all indictable offences.

In addition, I decided that it was prudent to provide in the section for the alternative verdicts which should be open to a jury on a charge of murder lest there be any doubt arising from the abolition of the distinction between felonies and misdemeanours. The section provides for a limitation on the extent to which a person found not guilty of murder may be found guilty of a lesser charge. There is a clear need for certainty as to the verdicts open to the jury in murder cases. In this connection, I will be publishing a Bill as soon as possible to amend the law on criminal insanity which will involve a further development of the law in respect of alternative verdicts. The section also make a similar special provision for alternative pleas in respect of an indictment for murder to which section 3 of the Criminal Justice Act, 1990, relates — which was formerly referred to as capital murder — or an attempt to commit such murder. The section also provides for a general rule for alternative verdicts in relation to all other indictable offences.

The section restates the law that a person charged with having committed an indictable offence may be convicted of attempting to commit that offence. It also provides that a person charged with the attempt may be convicted of the attempt even where the person is proven to be guilty of the completed indictable offence. Although this is a restatement of the present law where the completed offence is a felony, the section clears up uncertainty on the same legal point in respect of misdemeanours by applying the rule to any offence which is an indictable offence.

Section 10 limits to two years the maximum term of imprisonment to apply in respect of indictable offences where no maximum penalty is provided. A number of obscure and quite minor statutory misdemeanours prescribe no maximum penalty and in theory there is at present no limit to the term of imprisonment that may be imposed. These offences mostly relate to the making of false statements for the purposes of the particular statute.

The section gives statutory effect to the existing rule of practice whereby the maximum fine or term of imprisonment for an attempt to commit an indictable offence should not exceed the corresponding punishment for the completed offence.

Under common law there is no general power to fine in the case of felonies; that power exists only in relation to misdemeanours. The Bill confers a general power on a court to fine an offender convicted on indictment except in the case of treason and murder where the sentence is "fixed by law" as defined in section 2. The power to fine a person convicted on indictment will be unlimited except where there is a statutory limit on the amount of a fine and the power is also subject to any statutory requirement that the offender be dealt with in a particular way, for example by disqualification.

Moving away from the provisions of the Bill that relate to the abolition of the distinction between felonies and misdemeanours, I come to deal with a long obsolete area of the law badly needing to be updated. Penal servitude, which was sentence of imprisonment with compulsory labour, was substituted for transportation in the middle of the last century. For many years there has been no distinction in the treatment of prisoners sentenced to penal servitude or imprisonment. Imprisonment with hard labour as a form of punishment has fallen into disuse. Prison divisions — the placing of prisoners into divisions of varying severity — no longer applies either. It is past time that the law was cleared of these outmoded categories of imprisonment and that is the main purpose of section 11.

The sentence of whipping is available to the courts under statute in respect of males but it is, never used in practice. Whipping of females is prohibited by statute. The European Court of Human Rights had adjudged the practice of birching to be degrading and contrary to the European Convention on Human Rights. Accordingly, section 12 abolishes whipping. There are, and probably always will be, some who consider such punishment should be part of the answer to the problem of crime. I believe that the answers to crime lie far deeper than this.

Section 15 mainly enables prosecutions commenced before the coming into effect of the Bill to be dealt with on the basis of the existing law. I look forward to hearing colleagues' comments about that. The procedural provisions of the Bill will apply where the accused is arraigned after the Bill comes into effect. Where the accused is arraigned in respect of a felony committed before the Bill commences, all the procedural provisions of the Bill relating to trials for a misdemeanour shall apply. Where an indictment has been framed and signed in accordance with the law existing before the coming into force of the Bill, the accused may only be found guilty of an offence under the previous law. The particular purpose of this provision is to clarify the position in relation to alternative verdicts.

Sections 13, 14 and 16 introduce the Schedules to the Act which provide for necessary amendments, modifications and repeals which are in the main consequent on the abolition of the distinction between felonies and misdemeanours.

I have put particular emphasis in my speech on the powers of arrest which the Bill provides. I have no doubt these provisions will attract attention both inside and outside the House. I stress that essentially these provisions restate and clarify the existing law in those areas. It is certainly true that these powers will relate to a wider range of offences than heretofore by virtue of the abolition of the distinction between felonies and misdemeanours and by the creation of a new category of arrestable offences. I am satisfied that where the legislature has decided that an offence can be punished by five years imprisonment or by a more serious penalty, that is the most appropriate test to put in place now as the basis for a modern and effective power of arrest. It is essential that we put in place a clear and comprehensive legislative framework to provide the gardaí with the necessary powers of arrest. These powers are a vital support to the work that the gardaí must do in investigating and detecting crime. In relation to these and other matters, I am satisfied that the Bill achieves a balance between the liberty of the individual and the protection of society from crime.

I am confident that this House will welcome this Bill. As legislators, we should endeavour to reform the criminal justice code so as to ensure that it has the relevance and immediacy to accommodate the realities of contemporary crime. This Bill goes a long way to advance that process of modernisation and reform.

I commend the Bill to the House.

The Minister for Justice should be congratulated for assembling, after a period of protracted procrastination, a Bill which represents a hitherto unimagined mixture of the unworkable garnished with the unconstitutional. No parliamentarian in living history has feigned to work so hard and produce so little.

Nothing has been done since 1967.

No Minister has managed to so comprehensively misunderstand his or her area of responsibility so as to produce a Bill such as this. From its commencement in section 1 to the close of its voluminous Third Schedule it is, in its entirety, an edifice created out of ignorance.

In the past I have criticised the Minister for failing to introduce legislation where it was needed and for introducing legislation which was a poor copy of Private Members' Bills introduced by Fianna Fáil. Having seen what she is capable of when left to her own devices, I am forced to the conclusion that having no legislation would be better than what she has introduced. This ill-considered, half baked jumble which the Minister pleases to call a Bill is proof, if proof were needed, that her policies are capable of leading Ireland triumphantly into the last century.

At a time when the criminal law needs to be strengthened to deter criminals and assist the gardaí, she has managed to concoct a cocktail that is remarkable, not for its confused and curious inclusions, but for its extraordinary omissions. The Minister who pioneered the revolving door prison system, to the extent that a clever criminal can now——

The Deputy should reread Deputy McDowell's comments about the Fianna Fáil Minister.

——aim to commit an optimum number of crimes which eventually will lead to that criminal being released to make way for none other than himself or herself, has delivered what, in footballing parlance, can best be described an another "Owen goal".

Criminal law and procedures cry out for reform, there is unanimity on that issue. When that is the case, why has the Minister chosen to busy herself, in obscure alterations to the statute law relating to South Australia, infant felons and coinage offences? This Bill is a crocheted collection of curios behind which the Minister seeks to hide from real issues. All but the most hardened of criminals will find it extraordinary that the Minister, surfing on the crest of a crime wave, found it expedient to squander her Department's resources contemplating reforms to the Sunday Observance Act, 1964, the Civil Rights of Convicts Act, 1842 and section 700 of the Merchant Shipping Act, 1984. Reformists who wish to see the creation of a statutory offence of kidnapping a dog while disguised as a begonia will know that their hour is nigh. No trivia is too obscure to escape the Minister's detailed consideration in her flight from legislative reality.

The Minister is clearly of the view that when the people of Ireland gather at crossroads and corners, the issues of slave trading, whipping and corrupt practices in public bodies are seldom far from their lips. These are the matters to which she has turned her attention. No doubt the country as a whole will arise and applaud her foresight and vision in bringing about reforms to that more relevant and useful legislation, the Garrotters Act, 1863. I am forced to ask if this is the end of garrotting as we know it. The Minister's preoccupation with whipping, garrotting and slave trading in the midst of a crime crisis is commendable. What would be more commendable would be a similar interest on her part in the issues of bail, court delays and drugs.

The conscientious criminal must know that in the latter part of the 20th century the Minister's attention is fully focused on white boys rather than white powder. Had the Minister for Finance walked through the same time warp as the Minister for Justice he would now be contemplating an increase of a farthing on income tax and grappling with the contentious issue of VAT on muskets.

The primary purpose of this Bill is not to reform the law, it is to feign a veneer or activity behind which the Minister can continue her policy of studied inactivity. It is consistent with her track record of viewing legislation as an optional extra rather than an essential ingredient of a coherent criminal justice policy. The Minister continues to be a legislative athlete striving for imperfection and obtaining top marks in the hop, skip and fall contest. She would be well advised to cease paying hide and seek with the issue of bail. Since taking office she has alternatively ignored the issue. She announced a referendum, cancelled her announcement, received the report of the Law Reform Commission, produced that report out of a hat on the eve of a debate on Fianna Fáil legislation, considered it, studied it and contemplated it. That consideration, study and contemplation have been detailed, ongoing, thorough, advanced and very advanced. The sole theme running through this farce of episodic adjectival evasion has been the absence of action. This Minister has done nothing. She has lived up to her political motto "expect nothing and I will deliver".

The reality is that she has had the Law Reform Commission report long enough to memorise it.

Perhaps I have.

I believed she was bereft of further adjectives to disguise the monumental sloth which she has brought to bear on this issue until I heard last Sunday of the multifaceted document which she claims to have circulated to the Government. How many facets does this document have? Is there a favoured facet? Is there a Labour facet? Does Democratic Left have a separate facet or does that party share the Labour facet?

It is like a green diamond.

In reality, a facet is something the Minister seeks to hide behind when the examination, study, contemplation and consideration have ended.

We have entered a new phase of prevarication, the facet phase. The Minister hopes this will lead to the Government doing something. Last Sunday she stated, "I still intend to do something about bail and so do the Government". What is something? Is "nothing" one of the facets in the multifaceted document? Could the Government consider that by doing nothing, it has done something? The reality is that this Government, 18 months after it entered office, still does not have a policy on bail and never will. It is paralysed by dissent and the Minister must bear the primary responsibility for this paralysis. She has failed to bring any coherent proposition to Government and her Cabinet cohorts must also share the blame and shame.

It is extraordinary that Ministers who profess to have an opinion on everything extraneous to their own portfolios invoke the right to silence when the issue of bail arises. Chief amongst the Trappists of this Government is the Minister of State, Deputy Rabbitte. He is the quiet man of the Rainbow, sent out to advance the "it's all right, don't worry" school of jurisprudence. In the absence of a policy he pretends that there is no problem. The sonorous snorings of Rip Van Rabbitte on the issue of criminal law reform have become an anthem in inactivity readily adopted by the Rainbow. This Marcel Marceau approach to criminal law reform is the best that can be offered by this once angry young man, now retired to comfortable complacency. Where are the values of the Democratic Left? The party which the electorate rejected has become the cornerstone of the Government. To paraphase a well known adage "power results in inactivity and absolute power results in absolute inactivity". Deputy Rabbitte no longer stands for action. He now depicts still life. Who framed Deputy Rabbitte?

I invite Deputy Rabbitte to tune in to reality, to walk the streets and meet the people. Real, not imagined, crime has imprisoned the elderly in their homes. Real, not imaginary, drugs have corrupted and killed. Real, not imaginary, offences are being committed on a hitherto unprecedented scale. From inside the darkened windows of State Mercedes, the red band of the Rainbow believes there is no problem. So be it. Let the people decide.

Amid the historical irrelevancies and legal obscurities which form the nucleus of this Bill, one provision stands out like a shining beacon. It is a provision so devoid of constitutional integrity as to beggar belief and flies in the face of over six decades of jurisprudential development of the Irish Constitution. The Minister brings it before this House that it may pause briefly on its way to the Supreme Court and well deserved legislative oblivion. Does the Minister have the courage of her convictions? Will she resign when section 6 of this Bill is declared unconstitutional? For a Minister to introduce legislation which seeks, in effect, to amend Article 40.5 of the Constitution is extraordinary.

The Constitution is clear: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". The manner in which the courts have interpreted that article of the Constitution is also clear. Mr. Justice Walsh in The People v. O'Brien [1965] Irish Reports 142 at page 170 stated:

In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the constitutional rights of the citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence.

No stronger declaration of the fact that section 6 of this Bill is unconstitutional could have been made by the Supreme Court. Section 6 seeks to negate what the Supreme Court termed a "superior constitutional right". The Minister's legislation seeks to set aside the constitutional guarantee given by the people to themselves. It seeks to bypass a constitutional right by legislation in a manner which will not withstand an inevitable legal challenge. The Minister would have been well advised to take time to read the judgment of Mr. Justice Barr in Ryan v. O'Callaghan in the High Court on 22 July 1987 where he upheld the constitutionality of the power of search granted by section 42 of the Larceny Act, 1916, because it:

...contains important elements for the protection of the public... The investigating police officer must swear an information that he has reasonable cause for suspecting that stolen property is to be found at the premises to be searched and he must satisfy a Peace Commissioner who is an independent person unconnected with criminal investigation per se that it is right and proper to issue a warrant.

The legislation which the Minister has introduced does not refer to any independent person. It cuts out an essential element of constitutional guarantee, and transgresses what Mr. Justice Henchy in King v. Attorney General [1981] Irish Reports 233 described as "the fundamental norms of the legal order postulated by the Constitution".

The phrase "in accordance with law" as recited in Article 40.5 of the Constitution means far more than merely authorised by statute and courts have again and again made this point clear. The warning sounded by Mr. Justice Lardner on 22 February 1988 in O'Mahony v. Shields to the effect that the Oireachtas might consider it desirable to amend section 8 of the Wireless Telegraphy Act, 1926, to require more substantive information to be put before a District Court judge who issues a search warrant has been ignored by the Minister in crafting this legislation. Instead of reforming the law, she has chosen to embark on an inevitable path of constitutional challenge and hampered the fight against crime.

Since 1765 courts in this land have prevented the Executive from claiming a general warrant to look through private premises. It has been one of the cornerstones of our jurisprudence. Article 7 of the 1922 Constitution contained such a provision and it has continued to the present day.

The Minister seeks to circumvent the Constitution by legislation, and for good measure she has thrown in a general power of search. The best that can be said for this ill-considered section is that it is not out of place in this Bill.

The Minister has also seen fit to introduce in criminal law the concept of an "arrestable offence", and in so doing she has brought into being the concept of a "non-arrestable offence in respect of which a power of arrest exists". This lamentable confusion, which is the hallmark of legislation emanating from the Minister's Department, is a tribute to the lack of thought in preparing the Bill. The consequences of this lack of thought will be manifold and the beneficiaries will be criminals. Once again the Minister has delivered the gift of court confusion to the criminals. There is a persistent public perception that criminals get off on technicalities — the Minister has seen fit to introduce what is in effect a Criminal Technicalities Bill giving a menu of confusion on which bogus defences are the main course.

The substantive law on arrest as it currently exists is a mess. The Minister, rather than introducing detailed, thought-out proposals, has — for the sole purpose of being seen to do something — compounded that mess. The proposed confusion starts in the definition section of the Bill. By defining an arrestable offence as "an offence for which a person of full capacity and not previously convicted may... be punished by a term of imprisonment of five years or more" the Minister has imposed an extraordinary burden on a garda who proposes to make an arrest.

Under the Minister's proposals, a garda who proposes to arrest a person must first address his mind to whether that person is "of full capacity". What does this vital expression mean? The definition section of the Bill is unhelpfully silent. The garda will have to turn his mind to the general body of criminal jurisprudence before deciding whether he can lawfully arrest. There, full capacity is understood to refer to two factors — the age of the person and whether he is legally sane. It is baffling that the Minister introduced an element of mental adjudication into the arrest process at a time when the law relating to insanity is in need of the most urgent attention. To exclude a power of arrest for all persons who are not of full capacity is folly. If the Bill is carried, the criminally insane will be exempt from arrest.

Simultaneously with the instant psychoanalysis required as a prerequisite to arrest under this Bill, an unfortunate garda will have to address his mind to whether the person has been previously convicted of such an offence, his or her age and by extraneous grounds warranting an arrest. The power of arrest proposed in this Bill could be lawfully exercised only by an athletic, eager senior counsel who also qualified in psychiatry. If the Minister intends to pursue this proposal, I suggest that she alter the Garda uniform to striped trousers, white coat and an optional horse hair wig so that members of the public can readily identify such well qualified people on our streets.

That is only the beginning of the confusion that will be caused by these provisions. The power of arrest is not vested solely in the Garda or other State officials but, by virtue of section 4 (2) to "any person", irrespective of whether "any person" has seen the offences being committed. The Minister should give thought — as she clearly has not done — to the consequences of this section since groups of tattooed skinheads, Hell's Angels, punk rockers, bizarre do-gooders and parties of four-year-olds visiting the zoo will all be given a general power of arrest in respect of offences they have not seen being committed.

This is John B. Keane stuff.

This is a provision which will permit the formation of vigilante groups with a power of arrest and lead to a new category of treasure hunt whereby hordes of people will pour out of publichouses after "Crimeline" in the hope of winning a prize for arresting a suspect.

The Deputy should go back to law school. For a solicitor, he is ill-informed of the present law.

In all seriousness I advise the Minister to go back to the drawing board and abandon this nonsensical provision which compromises the safety, liberty and bodily integrity of citizens. It is a Rambo's charter. The deeper one delves into the provisions of this Bill the thicker the fog becomes. How can it be contended that the provisions of section 8 are an asset to our jurisprudence since they purport to create a new statutory offence of concealing the commission of an arrestable offence? This new offence carries a penalty of up to three years imprisonment. It is not in itself an arrestable offence and, remarkably, the Bill does not propose a statutory power of arrest. It is a new concept of criminal offence — I presume to be known as an "arrestable offence". It appears the Minister proposes a new category of offender to be known as "the unarrestables".

Since taking office the Minister has behaved like a solo entrant in a synchronised swimming contest, thrashing about in a pattern that makes sense to nobody but herself. This Bill is a leaden lifebelt which will hasten the Minister's inevitable descent into the pool of legislative inactivity. Very soon only the ripples will remain.

On Second Stage I and my party had seriously considered opposing this Bill.

Very short-sighted of them.

Having levelled valid criticisms, recognising the few opportunities the Minister provides by way of legislative change in this House, we decided not to oppose it on Second Stage but to table copious amendments to ensure its provisions will reflect and address the reality of modern society and its problems. Rather than stand at the bus stop and howl derision as the bus leaves, we thought it better to jump aboard and endeavour to replace the engine en route.

The Deputy wants it every way. His party colleagues appeared worried when he said he was going to vote against it.

The Minister said she had no doubt that these provisions would attract attention inside and outside the House, giving the impression that she is fully aware that some of its measures may be unconstitutional.

On a point of order, it is important that there should not be any impression given that I would knowingly put anything unconstitutional to this House. I am sure the Deputy does not mean that but it is important that she should not so imply.

My party and the Fianna Fáil Party has called consistently for a thorough examination of all aspects of our criminal law to ascertain whether they meet the requirements of a modern criminal justice system and requested reforms in those areas found wanting. We are all aware of many areas in need of reform. There are many loopholes in respect of small and large issues would could be amended without costing the Exchequer a lot. These have been valiantly highlighted by the Opposition over many months. All the legislative proposals introduced and debated in Private Members' time have been rejected by the Government out of hand. Many areas in need of reform were highlighted in my party's Private Members' Bill — the Prosecution of Offences and Punishment of Crimes Bill, 1996 — introduced earlier this year. Such reforms were dismissed by the Minister as "unrealistic", yet they were all reasonable, such as those on bail, prisons and a whole range of procedural reforms which would have righted many of the current inadequacies of our justice system.

The Minister might be congratulated in principle for eventually bringing forward some legislative measure in this area. An example is the attempt to tackle one of the most arcane areas in our criminal law, namely, the distinction between felonies and misdemeanours, but that distinction was abolished in the United Kingdom almost 30 years ago. Therefore a Bill dealing with this issue has to be welcomed. It must be acknowledged that all of the distinctions drawn between felonies and misdemeanours were anomalous. For example, one of the most important distinctions related to powers of arrest — a person could be arrested for a felony without warrant but not for a misdemeanour unless it involved a threat of a breach of the peace or of personal injury.

While this Bill abolishes the distinction between felonies and misdemeanours, it proposes to maintain that powers of arrest, without warrant, are available only in respect of more serious offences. While this distinction is sensible, the method by which the Bill attempts to achieve that aim — through the concept of an "arrestable offence"— will lead to other anomalies, already outlined by Deputy O'Donoghue. It is doubtful whether the Bill will achieve any improvement over the existing position in this regard.

Some of the other measures of this Bill give rise to serious concerns, particularly the new powers of forcible entry. These are supposedly no more than consequential on the abolition of the distinction between felonies and misdemeanours but in reality are more far-reaching. For example, power of forcible entry without warrant, to be exercised in the case of arrestable offences by virtue of section 6, had no counterpart in the common law relating to felonies.

Other reforms, such as the formal abolition of corporal punishment and the obsolete concept of penal servitude, are to be welcomed, as is the rescindment of the Whipping Act of 1820 and the Garrotting Act of 1863.

I note that Deputy Michael McDowell, the Deputy's "back-up books" has just arrived.

The Minister could do with a few books herself.

The Deputy need not worry, we have looked at them all.

If this is the best the Minister can produce with the whole of her Department behind her along with programme managers and advisers, I do not know what is ahead of us.

It was drafted by fine, eminent people like Deputy Michael McDowell and his colleagues.

While the Bill abolishes the distinction drawn between felonies and misdemeanours, it proposes to resurrect one of the most important distinctions between them, namely, the powers of arrest exercisable, to be achieved by the introduction into Irish law of the concept of "arrestable offence". In section 4, the powers of arrest without warrant and, in section 6, of forcible entry without warrant will be exercisable only in respect of "arrestable offences". An "arrestable offence" effectively is one for which a statute permits or requires a punishment of at least five years imprisonment, whose concept has its origins in the English Act which abolished the distinction between felonies and misdemeanour some 30 years ago.

Section 4 deals with the power of arrest without warrant. The current position is that a garda or citizen can arrest, without warrant, in respect of felonies or to prevent personal injury or a breach of the peace. The abolition of the distinction between felonies and misdemeanours means that the powers of arrest formerly exercisable in respect of felonies will also be abolished. Instead the power of arrest without warrant, formerly exercisable in respect of felonies, henceforth will be exercisable in respect of "arrestable offences".

The explanatory memorandum states:

Since arrestable offences correspond approximately to felonies, the powers of arrest will be nearly similar in future.

That statement has to be treated with some caution. The definition of an arrestable offence will create problems and the worry is that this will simply exchange ancient for new anomalies. The powers of arrest in section 6 go beyond those exercisable in relation to felonies. Are arrestable offences the same as felonies? It seems that in the past 30 years only one of the many statutes to create offences described them as felonies or misdemeanours, — the Criminal Law (Jurisdiction) Act, 1976. If the Oireachtas felt powers of arrest without warrant were desirable, those powers were expressly conferred by the statute rather than by categorising the offence as a felony or misdemeanour. Usually the powers of arrest without warrant were restricted to the Garda or to officers or employees of a body responsible for enforcing the Act in question. If it was not felt necessary to create a power of arrest without warrant, the Act would be silent on the point, with the result that a warrant was required.

This Bill represents a significant change in direction. Under the new definition of "arrestable offence", all those statutory offences which carry a sentence of five years or more, but in respect of which the Oireachtas when passing the Act did not feel it necessary to create a power of arrest without warrant will now be arrestable offences and ordinary citizens as well as gardaí will be able to arrest without warrant. An example is giving false information about the family home contrary to section 15 of the Family Home Protection Act, 1976. It would seem that even though the relevant statute confined the power of arrest without warrant to the Garda, this Bill will confer it on the ordinary citizen as well if the offence carries a sentence of five years or more. For more than 30 years, the policy of the Oireachtas in creating statutory offences has been to confine the power of arrest to the gardaí or to officers of various bodies responsible for the enforcement of the relevant Act. The definition of arrestable offences will change all that and confer powers of arrest on citizens.

Is it really desirable to switch from a society where the Garda Síochána is responsible for law enforcement to the vigilante style model where citizens go about arresting each other? It is not sufficient to say that it probably will not happen very often. The beating to death of the suspected drug dealer this week is an example of how vigilantism can spin dangerously out of control.

The extension of powers of arrest without warrant whether by a Garda or a citizen is not confined to statutory offences created in the past 30 years. Examples of offences, previously misdemeanours for which there was no power of arrest without warrant which will now become arrestable offences by reason of being punishable under statute by five years imprisonment are, cheating at gaming, contrary to section 11 of the Gaming and Lotteries Act, 1956, and neglecting to provide food for a servant, contrary to section 26 of the Offences Against the Person Act, 1861. These offences will be the basis also for forcible entry of home without warrant. It should be noted that by confining the definition of arrestable offences to those for which the penalty is statutory, perpetrators of felonies for which there is no statutory penalty will no longer be subject to arrest without warrant but some offenders who previously were not subject to arrest without warrant will now be subject to this form of arrest. The power of arrest without warrant which up to now was associated with certain offences will not survive. These changes do not seem to be particularly desirable in themselves. It is suggested that they are unforeseen by-products of the definition of "arrestable offence". The explanation may be that the concept of arrestable offence first appeared in a 1967 Bill — ultimately withdrawn — based on an English statute of the same year. By resurrecting it in the same form in this Bill, the Minister is ignoring the approach to arrest adopted by the Oireachtas in virtually every Act passed in the intervening 30 years.

The consequences of an arrest by a citizen are quite serious. If there is to be arrest by a citizen it will have to be clearly defined and perhaps there should be a schedule of offences where it is relevant. One of the more glaring omissions of the Bill which goes to considerable lengths to revive the concept of the citizen's arrest, is the absence of any attempt to regulate what is to happen once a citizen has made an arrest. Now that the power to make a citizen's arrest is being put on a statutory basis it would surely be desirable to make statutory provision on the obligations of the citizen who has made such an arrest, for example to transfer the person into Garda custody as soon as practicable. This is not just a technical point. If a store detective makes a statutory arrest of a suspected shoplifter, it is desirable that he or she be under a statutory obligation to call the Garda Síochána immediately rather than to interrogate the person. The question then arises as to when and by whom the person is to be charged. Another problem which arises in respect of a citizen's arrest relates to section 4 of the Criminal Justice Act, 1984. Under that section a person arrested without warrant by a Garda can be detained for 12 hours without charge for questioning in respect of offences to which that section applies, but if the arrest is made by a citizen, as opposed to a member of the force it would seem that section 4 of the 1984 Act has no application, as the power to detain for questioning is specifically confined to arrest by a garda. While it may seem the solution is simply for the garda to arrest the person, this may not be an acceptable solution. How can a garda arrest someone who is already under arrest? I urge the Minister to introduce specific provisions to deal with this issue.

Section 5 provides that a garda may execute a warrant for the arrest of a person or an order of committal without having the warrant or order in his possession. This provision makes a great deal of sense as there is every chance the garda who spots a wanted person may not be the garda in physical possession of the warrant or order. However, one unsatisfactory aspect of the new power conferred by this section is that even when the garda ultimately receives the warrant, he is not obliged to show it to the arrested person unless that person so demands. The garda should be required to show the warrant as soon as possible and without the arrested person having to demand it.

Undoubtedly section 6 is the most controversial section of the Bill. Effectively it abolishes the requirement to have a warrant to enter and search premises, including a dwelling for the purpose of arresting a person for an arrestable offence. Despite what the explanatory memorandum says, it is hard to see how this power could be regarded as simply consequential upon the abolition of the distinction between felonies and misdemeanours. There was never any corresponding power in relation to felonies. Among the features of this new power are (1) that there is no need for special circumstances of urgency to justify not applying for a warrant; (2) unlike the exceptional powers conferred by the Offences Against the State Act, 1939, the decision to forcibly enter and search does not even require the involvement of a Garda superintendent and the power can be exercised by a person with the rank of garda; (3) it applies to all arrestable offences rather than being confined to specific crimes which has been the norm in all previous cases where statutes have conferred a power to enter and search without warrant; (4) the only restriction on the exercise of this power is that the garda is to have reasonable cause "to suspect" as opposed to reasonable cause "to believe" that the person whom he wishes to arrest is on the premises. This is clearly a very low threshold. The magnitude of the proposed change in the law becomes even greater when it is read in conjunction with section 9 of the Criminal Law Act, 1976 which provides that:

Where in the course of exercising any power under this Act or in the course of a search carried out under any other power, a member of the Garda Síochána... finds or comes into possession of anything which he believes to be evidence of an offence or a suspected offence it may be seized and retained for use as evidence in any criminal proceedings.

Thus the effect of section 6 of this Bill and section 9 of the 1976 Act read together is that a garda in any circumstances without involving a garda superintendent merely on suspicion as opposed to belief that a person who has committed an arrestable offence is to be found on certain premises, can forcibly enter the premises without a warrant and search it for evidence of an offence entirely unconnected with the offence for which the person suspected of being on the premises is wanted. The offence in relation to which evidence is gathered does not have to be an arrestable offence as defined in this Bill. The potential for the abuse of this power is enormous. It renders ineffective virtually all the checks and balances in our law. It is not far short of allowing a garda to enter and search premises at will. Questions arise as to the constitutionality of this power particularly as it applies to dwellings. Under Article 40.5 of the Constitution:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

The power to enter forcibly cannot be regarded as being in accordance with law simply because it is conferred by an Act of the Oireachtas. That is because the words "save in accordance with law" have been interpreted by the courts as meaning "without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution". Some indication of those norms in regard to the forcible entry of a dwelling can be gleaned from the case of Ryan v. O'Callaghan in which the High Court considered whether obtaining a search warrant from a peace commissioner rather than from a judge was unconstitutional. The court decided it was not because the investigating garda must satisfy a peace commissioner who is an independent person unconnected with the criminal investigation per se that it is right and proper to issue the warrant. However, under section 6 the dwelling can be forcibly entered without the involvement of the independent person unconnected with criminal investigation per se referred to by the High Court. The entering garda does not have to satisfy anyone about anything. He can simply enter forcibly off his own bat.

Another issue arises where a forcible entry is made and evidence is found that is relied on to prosecute an offence totally unconnected with the offence in relation to which the entry was made. Under Article 38 (1) of the Constitution, "no person shall be tried on any criminal charge save in due course of law." In considering the constitutionality of the Criminal law (Jurisdiction) Bill, 1975, the Supreme Court explained that the phrase "due course of law" required a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society. The vast extension of the powers of entry, search and seizure conferred by section 6 of this Bill, in conjunction with section 9 of the 1976 Act, seem to have taken the exercise of individual freedoms out of the balancing exercise.

In raising these constitutional issues, I do not want it to appear that my party is being pernickety or unsupportive of reasonable measures required to bring the law up-to-date to make it relevant to deal with the critical state of criminality at present. When this House engages in criminal justice legislation it is imperative in a democracy that the Opposition raises issues which it considers have a crucial effect on the constitutionality of the legislation before it. If a criminal convicted under new legislation ultimately succeeds in having it quashed because the legislation is unconstitutional, it represents a failure on the part of this House and its legislators. Getting tough on crime is not about introducing oppressive legislation which could be challenged by those whom it affects and could defeat the intention of the Legislature and the Minister in this case.

Sections 7 and 8 deal with the consequences of the abolition of the distinction between felonies and misdemeanours, and that is welcome. Section 9, which enables the courts to find an accused guilty of a lesser offence where not all the elements of the offence with which he or she is charged have been proved, is also welcome. The reforms proposed in section 10 appear to make considerable sense.

Under section 11, the abolition of the archaic distinction between imprisonment and imprisonment with hard labour and penal servitude is long overdue as is the abolition of corporal punishment under section 12. It is strange that the current statutory instrument dealing with the management of prisons still makes formal provision for whipping, which perhaps indicates it is in need of attention.

I congratulate the Minister on introducing a Bill with some welcome modifications, but my congratulations must be mooted and severely qualified in light of my party's serious concerns about the sections I outlined.

Unconstitutional legislation is not an effective weapon in the war against crime. This legislation is probably unamendable as so many of its sections give cause for concern. There will be a filleting exercise on Committee Stage from which I hope we will send a Bill to the Seanad which will be substantially amended to meet the concerns expressed here. If section 6 is struck down, no powers of entry will remain and that would be a strange outcome. I look forward to Committee Stage by which time I hope the Minister will recognise the errors in the Bill and will accept substantial amendments to the offending sections 4 and 6 which represent oppressive legislation that could be struck down by the courts.

I welcome this legislation. It is further proof of the efforts of the Minister for Justice to get to grips with the problem of crime that has escalated because of a lack of effort by a party in the former Government to address it for many years. That Opposition party now appears to be very eager to ensure criminal legislation is introduced. Why could all the legislation that party put forward during Private Members' time not have been introduced during the eight and a half years it was in Government? The main Opposition spokesperson talked about ignorance, but he appears to be ignorant of the fact that for many years his party had an opportunity to introduce criminal legislation and it failed to do so. His decision not to oppose this Bill demonstrates that he wants to sit on the fence, which comes naturally to people from his part of the country. He probably wants to weigh up the pros and cons of the legislation to find fault with it. Although he condemned the Bill he said he would support it. During her tenure in office the Minister will prove not only that she will have talked about the problem of crime or put forward proposals to tackle it, but will have dealt with it.

When I campaigned during a famous by-election in Mayo there was a serious crime problem and Deputy Geoghegan-Quinn was then Minister for Justice. I do not remember the then Opposition Justice spokesperson claiming that anybody was totally opposed to the policy of the then Minister. In Opposition we asked her to take measures to address the problem to the best of her ability, but laying the blame for every crime or criminal problem on the Minister, as Deputy O'Donoghue continues to do, is neither logical nor rational. To use his word, it demonstrates ignorance.

I welcome the more positive attitude of the Progressive Democrats' spokesperson, Deputy O'Donnell. She said her party will table amendments to improve the Bill and, at least, she was realistic in her comments. We have got used to Deputy O'Donoghue's style. He talked about the Minister of State, Deputy Rabbitte, being aggressive in Opposition. Deputy O'Donoghue is an active spokesperson for Justice but active in the sense of being totally negative. The problem of crime is too serious to adopt that attitude towards it. I remember canvassing in the Headford area of Galway at 7 o'clock one evening and nobody wanted to open their doors because of their great fear after four people were murdered. That fear and crime did not arise the day the Minister took office. It was a reality before then and a problem we must address together. Using this issue as a political hatchet will not make the elderly or those in remote rural areas, like Deputy O'Donoghue's, feel safe and secure in their houses, it will cause only more unnecessary distress.

The Minister has clearly outlined the purpose of the Bill. The legislation introduced by Fianna Fáil in Government classified fraudulent conversion, obtaining property by false pretences and some sexual offences as misdemeanours. While farmers were being sent letters telling them they had committed a crime as a result of a technical mistake they made in filling in a form, other people were making millions from tax and other fraud, which taxpayers have had to pay for in recent years.

They can now be arrested. Citizens will be arresting each other.

Citizens now have power.

Not in the case of tax fraud.

Deputies will be arresting each other.

They will be looking over their shoulders.

It is important that people who commit such offences are arrested.

Dealing in illegal drugs, murder, breaking and entering etc. are regarded as serious crimes, yet the offences referred to by the Minister were deemed to be misdemeanours under previous legislation. This shows the necessity for amending the law. The criminal law must be more relevant and responsive in terms of dealing with modern day crime. When people arrested for committing these so-called misdemeanours are not convicted it is difficult to understand why people can be arrested for not having television licence or not having paid their car tax.

As there are many eminent barristers and lawyers in the House I do not intend to deal with the technicalities of the Bill. Rather I will deal with it only as it affects ordinary citizens. The issue of crime must be dealt with in a much more serious way than has been the case up to now. Last Monday a young man, whose mother lives in my local village and whose father lives in Clones, was murdered. Regardless of the problems this young man faced — and we know he had some problems — he did not deserve this kind of death. Nobody can treat such crime lightly and those who were involved in it should not go unpunished. As has been stated, lashing is no longer used, but these people cannot continue to be handled with kid gloves and allowed to go free for two or three days for whatever reason. The Garda must be given the necessary powers not only to arrest those people but to deal with them in whatever way is necessary.

Reference has been made to the rights of the criminal.

There was no reference to the rights of criminals, only to those of householders.

Criminals have some rights but victims also have rights, and the sooner we realise that the better.

We agree, we just do not want more victims.

Deputy Crawford should be allowed to continue without interruption.

It seems from comments made in the House and during Committee Stage debates that some Members believe criminals should have more rights than victims. I will give the Minister for Justice, the Garda Síochána and others every support in tackling crime. It is not correct that a criminal can be released after a few hours in prison because his solicitor or barrister found a loophole in the law.

The bail laws may have something to do with that.

I hope that issue will be dealt with.

It will not be dealt with before the general election.

Deputy McDowell seems to have made some money from finding loopholes.


The Deputy in possession should be allowed continue without interruption.

This issue was not dealt with by the parties opposite when they were in Government.

The Minister is entitled to reasonable criticism — she is well capable of taking it — but it is important to point out that she is more than capable of doing her job. Thankfully the reorganisation of the Garda was carried before the Border in my region had to be closed as a result of the BSE scare. Under the new structures the Garda are able to take decisions within the region and do not have to seek approval elsewhere. Having seen how the Border was closed quickly and successfully following the BSE scare, I am sure the Minister will be well able to deal with any other issues which arise.

It is ironic that the Border has had to be shut at this time. Successive Governments have rightly been criticised for their failure to close the Border when murderers were on the loose. It is important that contacts are kept open between North and South so that people can be arrested. Even when Border roads were shut criminals were still able to get from one side to the other across fields. Many years ago there was a case in Clones involving a man convicted of smuggling. His brothers promised to pay his bail but during the lunch break they left the court and the brother, who had been convicted of smuggling, jumped into the canal and swam across to the other side. We do not want the same thing to happen today; rather we want to ensure that criminals are arrested and convicted. The Bill is a move in this direction and the Minister is making a genuine effort to deal with the matter.

I am glad Fianna Fáil is not opposing the Bill but Deputy O'Donoghue could have been more positive in his comments. He should remember that his party was in Government for more than eight years and that it did not make much progress on this issue during that time.

I call Deputy Lenihan. This is my first opportunity for formally welcome the Deputy to the House and I wish him a happy and fruitful stay here.

Thank you, a Leas-Cheann Comhairle. All sides of the House support any effort by the Minister for Justice to suppress crime and criminal activity; we would support efforts by her to let loose the hounds of Banba. However, it is important that we also put forward our ideas. Since we have found ourselves on this side of the House eight Bills have been introduced by our spokesperson on Justice with a view to the suppression of crime. That is not bad record in Opposition. If that is our record in Opposition——

Why not in Government?

They strive mightily in Opposition, but do little in Government.

As I have made my maiden speech, interruptions are most welcome.

The Deputy is well used to them having come from the courts.

We have a very good record in Government going back to the time Mr. Haughey was Minister for Justice.

Deputy Crawford referred to the victims of crime about whom we can all speak, but one of the most unfortunate decisions ever arrived at was the decision to abolish the payment of compensation for pain and suffering. I realise that this issue does not strictly arise in this measure, but I appeal to the Minister to look into it again. It is most unfortunate that the victims of crime cannot receive compensation for pain and suffering, unlike those who fall into corporation drains and are involved in road and industrial accidents. Even though they can suffer the most grievious disablement as a result of the activities of criminals they find themselves without a penny in compensation other than the payment the Minister can manage to make after a number of years delay for any out-of-pocket expenses incurred.

When the Deputy's party was in Government he was on the board. Why did he not ask them to do it?

As the Minister well knows, it is not appropriate for a person appointed by a Minister for any statutory or extra-statutory body to make representations to a Minister about policy. That is and always has been a matter for the Minister.

Does the Deputy not meet them socially?

There is no political hatchet on this side of the House on this subject.

It is a Kerry crozier.

The hatchet Deputy O'Donoghue wields is the hatchet he sharpened during the recent Dublin West by-election when he encountered the appalling levels of crime and criminal activity in this city. There is a huge public concern about the elimination of technicalities in the criminal justice system. To the limited extent this Bill will help and assist in their elimination I welcome it.


I am surprised that the Minister has not considered the extent to which it will derogate from our own privileges in this House. Article 15.13 of the Constitution provides that the Members of each House of the Oireachtas shall, except in the case of treason as defined in the Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from and while within the precincts of either House. It goes on to deal with the question of utterances.

Since the expression "felony" is referred to in the Constitution it is very much an open question whether the Minister can introduce a Bill which purports to abolish the entire concept. There is no reference to this subject in the Bill. Has the Minister sought the advice of the Attorney General? If not, the President may have to refer the Bill to the Supreme Court and the Minister's preliminary instalment of her grand design of criminal law reform may not be placed on the Statute Book.

This is a serious question. I am not particularly anxious to enjoy or exercise the privileges, but since the expression "felony" is referred to in the Constitution the least this Bill should do is provide for a new definition. I do not think we are competent to devalue or eliminate that concept from the Constitution entirely, although I accept that when a phrase such as "felony" is written in its meaning cannot be written in stone and must be open to some interpretation and development as the decades pass. There is, however, no evidence on the face of the Bill of any interpretation, clarification or development of the idea of a felony as defined in the Constitution. That is a matter at which the Minister will have to look and I propose to return to it on Committee Stage.

This is a non-contentious measure with which nobody would disagree. Having researched the matter in the Library, I notice that it was prepared by a very fine Fianna Fáil Minister for Justice in 1967. Its non-contentious aspects have, therefore, remained on a dusty file somewhere in the Department of Justice for 29 years. The mystery is why it is being introduced after such a long period during which law students and gardaí in the training college have had to learn about the distinction between a felony and misdemeanour——

Think of how easy it will be for them now.

——and the Minister has suddenly discovered an interest and fascination in the abolition of the Sunday Observance Act and the sentence of penal servitude.

And the slave trade.

There are greater contemporary priorities in the administration of the criminal justice system and the elimination of technicalities. These include the question of the right to silence which has been raised by our sister party in Opposition. The public generally does not understand how the sophisticated criminal is able to avoid answering questions put by the Garda Síochána, even when he is brought before a judicial officer. That question has to be examined very seriously. There are major questions, including the question of self-incrimination, but the public believes we have got the balance wrong and have to look at the subject again.

We have raised the question of bail time and again. It appears that there is an element of political paralysis in this administration and that we will not make any progress on this question, despite the publication of the Law Reform Commission's report, this side of the general election.

A number of other issues arise. On the question of capacity, "arrestable offence" is defined in section 2 as an offence for which a person of full capacity and not previously convicted may be punished. I do not understand why it is necessary to refer to that phrase when it is contained in the Criminal Justice Act, 1984, in a somewhat different context where a distinction is drawn between the detention of minors and adults.

Section 4 (2) goes beyond what is provided for in the law as it stands. It states:

Where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.

What is being proposed is that the common law should be restated in statutory form. Once one restates a common law principle in statutory form it is the statute which prevails and the court may not have regard to the common law in construing it. The common law goes a little further. It states that one has to prove that an offence has been committed before an arrest is valid. A private individual cannot, therefore, arrest another unless they are in a position to prove that an offence has been committed. That is not what the subsection states and it will have huge implications.

The position will remain the same.

I do not see where it states that one will have to show that an offence has been committed. All it states is that any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence. If I believe, with reasonable cause, that the Taoiseach has committed an offence, presumably I will now be able to arrest him as he departs from Leinster House. The Minister having already eroded in an unconstitutional manner the privileges of the Oireachtas, that Article of the Constitution is inoperative. Under this subsection, I can purport to arrest the Taoiseach on the basis that I have reasonable cause to suspect him to be guilty of an offence. The provision goes rather far.

As the Minister is aware, there is a great deal of litigation in the State surrounding the operations of security staff. The subsection as drafted would give such personnel a far wider defence than they have at present; currently they must show an offence has been committed, whereas under the subsection that is no longer required. That is a considerable development in the law and I am prepared to examine whether it is desirable. However, it goes beyond the present law even though the subsection was introduced, and is justified in the Explanatory Memorandum, on the basis that it simply restates the current common law position. I would be obliged if the Minister dealt with that point.

Under the present law I can arrest a businessman on the street, with the aid of Securicor, if I think he has defrauded his shareholders — that is the law on fraudulent conversion.

Deputy McDowell has expressed himself in a colourful way and on Committee Stage we will have an opportunity to return to this subject. I maintain that this subsection goes well beyond the existing common law position and will have to be re-examined.

Section 6, on entry and search of premises, has already been dealt with by Deputy O'Donoghue. He has outlined the constitutional questions with far greater elaboration than I would be capable of. The fundamental reason our spokesman expressed reservations about this Bill is that it is not at the top of our priorities. It appears this administration is not seriously concerned to advance legislative reform which will eliminate the use of technicalities in the courts, so we will have to continue to introduce Private Members' Bills from week to week to deal with this.

I never cease to be amazed at the attitude of the Opposition, particularly Fianna Fáil, to law and order. One would get the impression from Deputy O'Donoghue that there never was a crime until this Government took office.

That was a crime in itself.

Do not forget that the Progressive Democrats were in Government.

I will come to them in a minute. Deputy O'Donoghue has a serious problem accepting that there will be a certain level of criminal activity irrespective of who is in Government and that there was no greater or lesser criminal activity when his party was in office not so long ago. I welcome Deputy Lenihan to the House and wish him a fruitful time here but he is mistaken if he thinks the list of Private Members' Bills his party is introducing indicates a new found interest in law and order. The party was deficient in putting items on the Statute Book to deal with the level of criminal activity which existed for a long time and caused great difficulties for our citizens, not just last year but for many years before. We should give some thought to an examination of the facts when we resume our debate on this legislation next week.

The Minister for Justice, Deputy Owen, is grappling with a difficult problem and is seeking to ensure not only that there is a short-term response with the necessary resources to deal with law and order problems in our community, but also that the Department of Justice undertakes long standing and necessary reorganisations of the Garda Síochána, the courts, the judicial system and the justice system generally, so that we can deal effectively with criminals. Some time ago she had difficulty getting across her message that more prison spaces and more gardaí on the beat were needed but she is now succeeding in that. I was amazed to read in today's newspaper that there are 1,000 fewer gardaí than ten years ago. Although there were 11,000 gardaí in 1988-89 which fell to 10,700, some 700 to 800 people have been employed in the civilian grades to do clerical and office work in Garda stations which was previously done by officers.

I welcome the Minister's recent Garda reorganisation initiative to devolve power from the centre to the regions and am particularly pleased to report that it is meeting with success in the Garda organisational structures in the south-east. The regional command structure for the south-east region, which is based in Kilkenny, has been welcomed by the local people. They have seen "Operation South-East" in action and have observed a more vigilant force. There are more gardaí on our roads and streets, operating near areas of undesirable activity as a preventative measure against mobile criminals.

The Minister has often been unjustifiably criticised by the Opposition for the difficulties the courts have in dealing effectively with criminals. She has published a number of reforming measures for family and criminal courts, appointed new judges, provided more and better court facilities, and made the necessary increase in prison places to put those people away. She is also considering an imaginative proposal in respect of petty crime so that those criminals whom we want to see behind bars serve their sentences in full while petty crime can be dealt with under community service orders or similar measures.

I am also surprised that Deputy Lenihan says this Criminal Law Bill is low on Fianna Fáil's list of priorities. It introduces far-reaching measures which will allow members of the Garda to take certain steps to arrest people — heretofore they have been hampered in their opportunities to do so. I take on board his comments on section 2 concerning capacity and citizen's arrest. Those matters should be re-examined because the Minister would not want a citizen's arrest provision to be abused. The Deputy's point was constructively made and deserves clarification in due course.

The gardaí have been hampered in their ability to get information from people. I agree that we should closely examine the right to silence and the Law Reform Commission report on bail. The Minister is actively seeking proposals to deal with offences committed on bail and I have no doubt that before the year is out we will not only have talked about the matter but will have done something about it.

Deputy O'Donoghue had a good measure in that regard.

Deputy O'Donoghue will have an opportunity at some point in the far distant future to deal with criminal law matters.

Deputy O'Rourke will make him Minister for Justice when she is leader.

Deputy Ahern and I believe in a shared kingdom.

In the meantime, I have every confidence the Minister for Justice is dealing with the issues of law and order in a comprehensive way. She is reorganising all aspects of the Garda, courts and our criminal justice system to deal effectively with criminals and to ensure they are kept where we want them.

Debate adjourned.