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 It means that a considerable number of older enactments can be repealed or, in some cases, simplified.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.