I move: "That the Bill be now read a Second Time."
I am pleased to say that the Non-Fatal Offences against the Person Bill, 1997, is the 15th of 16 Bills which I have published since I took up office as Minister for Justice. Most of these Bills are already enacted and many of them have been aimed directly at achieving my objective of strengthening the law on crime and ensuring that it gives the fullest and most effective protection to society. The Non-Fatal Offences against the Person Bill, 1997, is a further and particularly important step in this process because it will replace offences which lie at the core of the criminal law with provisions more responsive to modern needs, including provision for new offences aimed at new forms of criminal misconduct which have become manifest in recent years.
The present law on non-fatal offences against the person is contained in the Offences against the Person Act, 1861. The 1861 Act has been the subject of much criticism over the years. It has been described as a "rag-bag of offences". In February 1994 the Law Reform Commission submitted a report containing recommendations for the repeal and replacement of those provisions which deal with non-fatal offences against the person. That report was taken into account in the preparation of this Bill which will repeal the greater part of the 1861 Act and codify in statutory form and in modern language the law dealing with non-fatal offences against the person. The Law Reform Commission is at present reviewing the law on homicide. When its report on that subject is received it will be acted upon.
This Bill restates the law relating to various forms of assault, threats to kill or cause serious harm, poisoning, false imprisonment and abduction of children as well as providing for certain new offences. As I already indicated and in line with a commitment I gave earlier, the Bill includes provision to deal with syringe offences. It is appropriate that a Bill which seeks to modernise the law relating to the variety of assaults which can be committed against the person should also address the modern phenomenon of the use of syringes as weapons to attack, intimidate or cause serious injury to a person. I have provided in this Bill for a range of offences to combat such conduct, including offences of possession of a syringe or container of blood with intent to threaten or injure; placing or abandoning a syringe in any place in a manner which is likely to injure any person; injuring a person with a syringe or threatening to do so; and throwing or putting blood on another person or threatening to do so. The penalties provided will range from five years to life imprisonment.
Syringe attacks are not the only examples of modern criminal behaviour tackled in this Bill. It also creates a new offence of harassment which is aimed at behaviour commonly known as "stalking". A five year penalty is possible for this offence and the courts will, in addition, be given power to order a "stalker" not to communicate with the victim or approach near the residence or place of employment of the victim. Among the other new offences provided for in the Bill, reference must also be made to the offence of abduction out of the state of a child by a parent in "tug of love" situation and the new offence of endangerment where a person intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
The Bill is an important addition to the legislative reforms to the criminal law which I have already secured and which will be further built on by the remaining proposals in my comprehensive legislative programme, which are either already before this House or are in the course of preparation. I do not propose to mention all of my legislative reforms — the list is too long — but I will cite a number of examples. The Criminal Justice (Drug Trafficking) Act, 1996, was a significant reform because, among other things, it allows for the detention and questioning of drug traffickers for up to seven days and restricts the right to silence in drug trafficking cases Similarly, the recently enacted Criminal Justice (Miscellaneous) Provisions Bill, 1997, will achieve savings in costs and in Garda time through changes in procedure in criminal cases, in addition to introducing other much needed reforms. I expect that the Criminal Law Bill will also be enacted soon. Earlier today, amendments to the Bill which were recently passed by the Seanad, were moved in this House. This Bill will make redundant the outdated concepts of misdemeanours and felonies and set out Garda powers of arrest without a warrant. The Children Bill, 1996, which provides the basis for a new juvenile justice system is currently before the House. In recent weeks, I published a Bail Bill which will provide for changes in our bail laws as a consequence of the recent amendment to our Constitution and will otherwise tighten up the bail laws. Legislation which I expect to be in a position to bring before the House shortly includes a Licensing (Combating Drug Abuse) Bill to deal with drug abuse in dance halls and pubs and at unlicensed outdoor premises, a Bill to enable Ireland to ratify the Europol Convention and a Criminal Law (Insanity) Bill.
The first substantive section of the Bill before the House is section 2. This section replaces the common law offences of assault and battery usually referred to as "common assault" with the new offence of assault which combines, in one offence, the element of inflicting personal violence as in "battery" and the element of causing another to apprehend the immediate infliction of personal violence in "assault". This offence will cover most minor assaults and I am providing that the penalty on summary conviction will be a fine not exceeding £1,500 or imprisonment for up to six months or both.
Section 3 deals with the more serious offence of assault causing harm. This new offence replaces the offence of assault causing actual bodily harm contained in section 47 of the 1861 Act. I am providing a maximum penalty of five years for this offence, which is the same as the existing penalty. Under the present law, consent cannot be a defence to a charge of causing actual bodily harm. The Law Reform Commission recommended that such a rule is no longer appropriate and I have accepted that view. Since section 3 is framed by reference to an assault and consent is a defence to simple assault, it will also be a defence where actual bodily harm is caused. We are not talking here of cases of serious harm which are covered by the next section.
Section 4 creates the offence of causing serious harm, which will replace the offences of wounding or causing or inflicting grievous bodily harm in sections 18 and 20 of the 1861 Act. Consent will not be a defence to a charge of causing serious harm but section 22 provides that existing common law defences will continue to apply. Accordingly, the common law rules under which bodily harm arising in the course of sports, dangerous exhibitions or medical treatments will apply, where appropriate, to exempt the action from criminal liability. I have provided that a person convicted of this offence on indictment will be liable to life imprisonment.
In section 5, I am updating section 16 of the 1861 Act which makes it an offence to threaten in writing to kill or murder another. Instead I am providing in this section for a broader offence which covers threats by any means and extends to threats to cause serious injury as well as to threats to kill. I am providing for a maximum punishment of ten years imprisonment for this offence.
Sections 6, 7 and 8 create a range of new offences relating to criminal conduct involving syringes. Section 6 deals with syringe attacks, section 7 deals with possession offences and section 8 deals with abandoning of syringes. In section 6, I am providing for the following offences: injuring another by piercing the skin of that other with a syringe or threatening to do so with the intention of causing the other person to believe that he or she may become infected with disease; and spraying, pouring or putting onto another blood, or any fluid or substance resembling blood, or threatening to do so with the intention of causing the other person to believe that he or she may become infected with disease. I am providing for a maximum penalty of ten years imprisonment for these offences. In doing so, I am conscious that the offence may result in great suffering for victims who have, for example, been wounded with a syringe and must face a long and agonising wait until he or she knows if he or she has contracted a life threatening disease.
In the same section I am also providing for what I believe to be the core offence of all those involving syringe attacks, namely, the offence of intentionally injuring another by piercing his or her skin with a syringe which contains, or has on it, contaminated blood or contaminated fluid. Similarly, I am making it an offence to intentionally spray, pour or put onto another contaminated blood. As both of these offences are on a par with attempted murder, I am providing that this crime will be punishable by life imprisonment.
Since publishing the Bill, I have been further considering my proposals to ensure that all possible aspects of criminal conduct involving syringes and the consequences of such conduct are fully provided for. In that context, I am considering whether injury to third parties in the course of syringe attacks should also be covered by section 6. If I consider it necessary, I will bring forward an amendment on Committee Stage to widen the provisions accordingly.
Section 7 deals with possession offences. I am providing that a person who has, in any place, a syringe or any blood in a container intended to cause or threaten injury to or intimidate another will commit an offence. Some concern has been expressed that this provision could make innocent possession of a syringe a criminal offence. I assure people who carry syringes for legitimate purposes, for example, those who are diabetic, that the provision does not criminalise mere possession — it criminalises possession with the intention of causing or threatening injury or intimidating another. The maximum punishment for these offences will be seven years imprisonment. To ensure that the courts will be able to apply a common sense approach to this offence, I am providing that the court or the jury may regard possession of the syringe or container as sufficient evidence of intent in the absence of any adequate explanation by the accused if they think it reasonable to do so in all the circumstances.
To ensure that the gardaí have the necessary powers to enforce this provision, I am providing in the section that they will have powers of stopping, questioning and searching any person suspected of this offence. They are also being given the power to seize any syringe or container with blood in it. I am providing that the gardaí may arrest without warrant the suspect who does not co-operate with them and it is being made an offence for a person to fail to so co-operate.
Section 8 deals with the serious problem caused by people who, perhaps intentionally, recklessly or otherwise, leave or abandon syringes in places so that they injure or are likely to injure, cause a threat to or frighten others. It is important to remember that this type of behaviour can be engaged in as a type of sport to wound an unsuspecting Garda or prison officer or, indeed, to wound an unsuspecting member of the public who, for example, sits down in a café or cinema or on a bus or train and finds too late that a syringe has been left on the seat. It is important, therefore, to ensure that the prescribed punishment fits the seriousness of the conduct involved. In this respect I am prepared to further strengthen this section. For example, it might be appropriate to provide for a higher penalty where a syringe placed or abandoned is contaminated. Furthermore, I am satisfied that the highest penalty would be appropriate where a person intentionally places a contaminated syringe in such a way that it injuries another. I will bring forward proposals on Committee Stage to make such changes as I consider necessary to further strengthen this section.
Section 9 updates the law on coercion by replacing section 7 of the Conspiracy and Protection of Property Act, 1875, and increasing the penalty on conviction on indictment to a maximum of five years.
Section 10 provides for the important new offence of harassment which is aimed at what is commonly called "stalking". We are all aware of high profile cases of stalking but such behaviour is not necessarily peculiar to people in the spotlight. Unfortunately, it can occure in everyday life when a person, usually a woman, becomes the object of the stalker's affection — perhaps obsession is a better word — and that person is subjected to sustained harassment and intimidation in a perverted attempt by the stalker to gain the attention or affection of the unfortunate person concerned. This harassment can have a profoundly detrimental effect on the life of the victim.
I am providing that a person will be guilty of this offence if he or she, by any means, harasses another by persistently following, watching, pestering, besetting or communicating with him or her. I am providing a definition of what constitutes harassment, the basic element of which is that the offender intentionally or recklessly interferes with the peace and privacy of another person or causes them alarm, distress or harm and his or her acts are such that a reasonable person would realise that they would have such an effect. I am providing that the offence can merit a maximum penalty of five years and because this behaviour can be such a serious and distressing interference with the person's privacy, I am also empowering the court, in addition to imposing a penalty and even where it decides not to convict, to order the stalker not to communicate in any way with the victim for such period as may be specified by the court or to approach within a specified distance of the victim's residence or place of employment.
Section 11 provides for a particular type of harassment associated with demands for payment of a debt. I am making it an offence, punishable by a fine of £1,500, for a person to subject a debtor to demands which, by reason of their frequency, cause the person or his or her family alarm, distress or humiliation. Other behaviour which would constitute an offence includes falsely representing that criminal proceedings lie or that the creditor has the official capacity to enforce payment.
Section 12 replaces the offence of administering poison with intent to injure, aggrieve or annoy contained in the 1861 Act with a new offence of poisoning. The offence can incur a three year sentence. If the poisoning results in serious harm or death more serious charges would, of course, lie.
Sections 13 and 14 deal with endangerment offences. Section 13 provides for a general endangerment offence where a person, either intentionally or recklessly, engages in conduct which creates a substantial risk of death or serious harm. This offence is punishable by a maximum sentence of seven years imprisonment. While we have many endangerment offences in our law dealing with specific behaviour, such as dangerous driving and dangerous parking, a general endangerment offence of this nature is new. The essence of the offence is the creation of a dangerous situation which may result in death or serious injury. The actual causing of death or injury is not necessary. Where death or serious harm results other more serious charges would arise.
Section 14 deals with the specific offence of endangering traffic. The offence relates to traffic on land and water and is intended to replace sections 32 and 33 of the 1861 Act which are endangerment offences related to railways. This section creates an offence where any person intentionally puts a dangerous obstruction in a railway, street, road etc. or interferes with any device for control or direction of traffic or throws anything at any conveyance being aware that injury to the person or damage to property may be caused, or is reckless in that regard. I propose to make this offence punishable by up to seven years imprisonment. This conduct can have very serious results. We have all heard of instances where objects are thrown from motorway bridges at moving traffic with disastrous consequences. One could also envisage the danger that might be caused if somebody knowingly moves a diversion sign on a road and causes traffic to drive into a dangerous area.
Section 15 gives statutory expression to the common law offence of false imprisonment but also extends the offence to cover cases where the false imprisonment is brought about by deception causing the victim to believe that he or she is under legal compulsion to consent. As this is obviously a very serious offence it will be punishable, as at present, by up to life imprisonment.
Section 16 creates a new offence of abduction of a child by his or her parent or guardian. Ireland has already ratified and put into law the provisions of the Hague Convention on International Child Abduction and the Council of Europe convention dealing with the recognition and enforcement of child custody decisions. However, I propose to go a step further and make it an offence for a parent to abduct a child out of the jurisdiction in defiance of a court order or without the other parent's consent, or to arrange to have a child so abducted. If the child is not taken out of the country I felt it better not to involve the criminal law, but to leave the matter to be dealt with in the usual custody proceedings. I propose that this offence should be punishable by up to seven years imprisonment.
In section 17, I provide for the separate offence of abduction of a child by other persons. This section replaces sections 55 and 56 of the 1861 Act which deal respectively with abduction of a girl under 16 years and the stealing of a child. The new abduction offence will be punishable by up to seven years imprisonment.
Sections 18, 19 and 20 provide statutory provisions governing the use of force in public or private defence. The existing law in this respect is governed by the common law and the Criminal Damage Act, 1991. Section 18 sets out various purposes for which reasonable force may be lawfully used. The force used must be reasonable by reference to the circumstances believed by the person to exist. The purposes include the protection of the person or his or her family or another person from injury, assault or detention caused by a criminal act and to prevent crime or a breach of the peace. Where force is used to protect against trespass on another person or another person's property the force must be with the authority of that other person.
Section 19 provides that a person may, in effecting or assisting in a lawful arrest, use such force as is necessary in the circumstances as he or she believes them to be. Section 20 defines the meaning of the use of force for the purposes of sections 18 and 19.
Section 21 amends section 6(2) of the Criminal Damage Act, 1991 so that the test in relation to damaging property is the same as the test set out in section 18, that is, that the conduct of the defendant must be reasonable given the circumstances he or she believed to exist. Section 22 preserves defences available under the common law or statute law in relation to acts which might otherwise attract criminal sanctions under this Bill.
Section 23 provides that a minor who has attained the age of 16 can give effective consent to surgical, medical or dental treatment which, without consent, would be a trespass. At present whether a consent by a minor to medical treatment is effective is a question of whether the minor understands the purpose and implications of the treatment. The purpose of this provision is to bring an element of greater clarity in the case of older minors.
Section 24 abolishes the common law rule in respect of immunity of teachers from criminal liability in respect of physical chastisement of pupils. The provision will serve to reinforce the Department of Education's policy on the prohibition of corporal punishment in schools. Section 25 provides that a doctor's certificate can be accepted in proceedings relating to offences alleging the causing of harm or serious harm as proof of such harm.
The House will appreciate that this Bill is a comprehensive proposal and, as I have already said, it deals with a wide range of criminal offences which lie at the core of our criminal law. I present this Bill in keeping with my strong commitment to updating our criminal law.
Deputy O'Donoghue said earlier that all the Bills I bring to the House are produced compliments of a photocopier. I assure the Deputy that there was no photocopying done in my Department in order to write this legislation. It has been under careful preparation for some considerable time. As I said upon becoming a Minister, I am willing to listen to any reasonable proposals form the Opposition and to incorporate them into legislation if they will make that legislation better. I have never been afraid or ashamed to do that, in spite of what Deputy O'Donoghue thinks. It shows maturity in a democracy if a Government can accept amendments from the Opposition. If Deputy O'Donoghue ever becomes a Minister, I hope he will show more maturity than his party has shown previously in accepting Opposition amendments. This Government has a record that shows we will take any effective proposals on board, or amend them if they are badly drafted and then accept them. I commend the Bill to the House.
