I move: "That the Bill be now read a Second Time."
I am particularly pleased to introduce this important legislation. It is important for a number of reasons. First, it follows on a number of examinations of the law relating to dishonesty, which recommended significant changes. Second, it sweeps away a large amount of common law and statutory offences which often, because of the peculiar definition applied to such offences, caused confusion or, at worst, did not adequately address the problem encountered and replaces them with a modern code designed to meet current needs in this area. Third, it provides measures designed to assist in the investigation of offences of dishonesty and for changes in trial procedure in such cases.
The Bill is based mainly on two reports – the Law Reform Commission report on the law relating to dishonesty and the report of the Government advisory committee on fraud. The Law Reform Commission recommended that the law relating to fraud and dishonesty should be consolidated in a single Act and that it should also include new offences to cover situations not covered at present. Its aim was to simplify and modernise the law in this area. This is easy to understand. The present law relating to theft and stealing is to be found mainly in the common law and the Larceny Acts of 1861, 1916 and 1990. Legislation relating to forgery and coinage offences date back to 1861. While these generally deal adequately with most serious offences of dishonesty, there are difficulties, such as the often artificial and confusing distinctions between, for example, larceny which includes such offences as obtaining possession by any trick and obtaining by false pretences. This latter offence also demonstrates the difficulty with some kinds of dishonesty, such as where one person obtains property or services from another based on a promise as to future intentions.
In addition, there is the multiplicity of offences dealing with essentially the same conduct. I am thinking of the offences of larceny, which include offences of larceny of cattle, dogs, wills, legal documents and ore, abstraction of electricity and embezzlement. Furthermore, there is the definition of larceny which requires that the thing stolen should be carried away and that at the time of stealing the person should have the intention to permanently deprive the owner of it. This is inconsistent with certain behaviour which should properly be classed as stealing. The Bill before the House will eliminate such inconsistencies.
I mentioned that the Bill is also based on the recommendations of the Advisory Committee on Fraud, whose chairman was Mr. Peter Maguire, senior counsel. These included reform of the substantive law on fraud as well as powers of investigation and related matters and are covered in the Bill before the House.
I have had the pleasure of introducing many Bills in this House since becoming Minister. One criticism which has been levelled at me about a number of those Bills dealing with criminal conduct is that they only catch the small time criminal or the unfortunate individual who engages in crime to feed a drug habit. It is alleged that the measures in the legislation will not catch the real culprits, the Mr. Big, and that so called white collar criminals will always escape. I have consistently rejected such notions. All the measures I have introduced are designed to ensure that anyone who engages in crime will have to face the consequences.
This Bill is no exception. For example, section 56 deals with a situation where an offence is committed by a company with the consent or connivance of a director or manager of the company. In those circumstances, the person as well as the company will be guilty of an offence. A conviction for such an offence will leave the person open to a sentence of imprisonment and the company liable to a hefty fine. Assistance in detecting and investigating such offences is provided for in section 57 which requires certain persons, such as auditors, to report to the Garda matters which indicate that the company or those responsible for its operation may have committed an offence under the Bill. To those who might say the Bill only targets the disadvantaged in society, they should look at these sections.
Further assistance in the investigation of offences of dishonesty and changes in trial procedure will tighten the net around those engaged in these forms of crime. Thus, the Bill contains in Part 7 provision for the granting of search warrants and orders for the production of evidential material as well as penalties for obstructing a garda executing such a warrant. It also provides that it will be an offence to falsify, conceal or destroy material relevant to an investigation.
Part 8, dealing with the trial of offences, has provisions allowing any number of persons to be charged in the same indictment with handling or possessing stolen property either at the same or at different times as well as allowing up to three separate takings to be tried together, provided they occurred within a six month period. In addition, stealing, handling or possession may be included in separate counts on the same indictment but may be tried together. There is also provision for a person charged with theft to be found guilty of handling or possession if the facts prove the latter and if charged with handling or possession to be found guilty of theft if the facts prove theft. An innovative measure included in this Part will allow the trial judge to order that the jury be provided with certain documents which the judge considers would be of assistance to them in their deliberations.
As I have indicated, the primary aim of the Bill is to consolidate the law relating to dishonesty and to make it reflect the realities in Ireland at the beginning of the 21st century. Such reform is necessary even at a time when crime rates are falling, as we saw in the publication of the annual report of An Garda Síochána for 1999. Significantly, robbery and aggravated burglary showed a reduction of 6% on the previous year. In particular, I was extremely pleased to note that burglary, which accounts for 28% of all indictable offences and which causes considerable distress to many people, particularly the elderly, was down by 10%. Larcenies from shops and unattended vehicles were down by 9% and 7%, respectively. This reduction is the result of the Government's commitment to investment in the criminal justice system.
That investment can be seen in other initiatives. The programme for Government includes a commitment to increase the strength of the Garda Síochána to 12,000 by the end of 2002. Increased intakes to meet this target commenced in 1998. In each of the years 1998 and 1999 there were 550 garda trainees recruited. A further 500 were recruited this year. The Government recently approved the holding of a competition this year and the recruitment of 500 garda trainees in 2001. The strength of the force at the end of October was 11,557.
There has been a significant expansion in the use of CCTV as an aid in crime prevention and detection. The plan is to spend £12 million over the next three years and £4 million has been provided in the 2001 Estimates. Last week the CCTV system in the O'Connell Street and adjoining areas of Dublin was increased from 38 to 42 cameras and further extensions in Dublin and other areas are planned. In addition, a grant scheme will be introduced in 2001 to cater for areas which are not Garda priorities, but where local interests wish to take the initiative.
The prisons building programme, which is proceeding on target, is an important element in my and the Government's strategy to combat crime. Phase 1, which provided for 1,207 of the 2,000 promised spaces, was completed on 9 November with the opening of the new 515 space Midlands Prison. Phase 2 includes the replacement of C block in Limerick Prison and C and D wings in Portlaoise Prison. Works in Portlaoise are at planning stage and are expected to commence in late 2001. Together, these works will provide 90 additional spaces. Work on the refurbishment of Mountjoy Prison is expected to commence in late 2001.
Phase 2 will also see the construction of approximately 590 new prison spaces, including 150 new spaces in Cork Prison, a new women's prison and a halfway house in Limerick which will create 40 spaces. Some 150 more spaces are to be created in Castlerea Prison and proposals are in place for 150 juvenile spaces in Dublin and Cork arising from the Children Bill. Proposals are also being examined for the provision of 100 pre-release spaces in Shelton Abbey and Loughan House. Phase 3 proposes 240 spaces in a new closed facility in Dublin.
Even with these developments, there can be no room for complacency and I and the Government will continue to invest in improving the situation to prevent a slide backwards. That investment includes investment in the legal infrastructure, such as the Bill before the House. There are other important Bills for which I am responsible which are helping to build that infrastructure. These include the Proceeds of Crime (Amendment) Bill, the Prevention of Corruption (Amendment) Bill and the Sex Offenders Bill. Other measures which will come before the House in the coming months include a Criminal Justice Bill and a Criminal Justice (Miscellaneous Provisions) Bill.
The Bill represents a fundamental reform of the law on dishonesty and covers a wide range of activities. Inevitably, it is rather complex in parts. However, it is not only a reform of the law on dishonesty. It also contains provisions which are designed to give practical assistance in the detection and prosecution of offences. I would like to outline for the House the central provisions of the Bill.
Part 1 contains standard provisions dealing with the title of the Bill, necessary definitions and repeals. Part 2 deals with theft and related offences. Section 4 creates a new offence of theft which will cover those situations currently covered by a wide range of offences, including larceny, embezzlement, obtaining by false pretences and fraudulent conversion. The new offence will consist of dishonestly appropriating property without the owner's consent and with the intention of depriving the owner of it, either temporarily or permanently. It also provides for situations where property is held in trust for or on behalf of more than one person by another person acting in the course of business and where some of the property is appropriated for the latter's benefit without the consent of the owner or owners. Where it is proved that there is a deficiency in the property without a proper explanation, there is a presumption that it was appropriated without the owner's consent. As I have already indicated, the broadness of the new offence of theft obviates the necessity for the multiplicity of specific offences, such as larceny and embezzlement, which co-exist at present. The maximum penalty to be imposed following a conviction on indictment is an unlimited fine or up to ten years in prison or both.
Section 5 provides for certain exceptions to the offence of theft, for example, where a person has obtained property for value and in good faith, even if the property in question subsequently transpires to be stolen property. The section also provides that land, or things forming part of it, cannot in general be stolen, except in specified circumstances.
Both sections 6 and 7 deal with aspects of deception. Section 6 provides for an offence of making a gain or causing a loss by dishonestly inducing a person to do, or refrain from doing, something. Section 7 makes it an offence to obtain services by deception. This includes, for example, obtaining a loan, where the person has been led to believe that the loan has been, or will be, repaid. Under both sections, a penalty of an unlimited fine or imprisonment for up to five years or both may be imposed following conviction on indictment.
Section 8 provides for a new offence of dishonestly making off without payment for goods or services, where the person knows that payment on the spot is required or expected and where he or she intends to avoid making payment. The section permits anyone to arrest, without warrant, a person on reasonable suspicion of being in the act of committing an offence under the section. However, there are certain constraints on this arrest provision. It is only permissible for non-gardaí to exercise it to prevent a person avoiding arrest by a garda and requires the arrested person to be transferred into Garda custody as soon as practicable. The penalty for an offence under this section is a fine of up to £3,000 or imprisonment for up to two years or both, following conviction on indictment.
Section 9 relates to the unlawful use of a computer in the State with the intention of making a gain or causing a loss. The person committing the offence may be either in or outside the State at the time of the offence.
Section 10 deals with false accounting. It encompasses such actions as destroying, concealing or otherwise falsifying an account or document, failing to complete it, making a misleading, false or deceptive entry or using any account or document knowing it to be false, for the purpose of furnishing false information.
Section 11 provides that a person who dishonestly alters or suppresses certain types of document, to make a gain or cause a loss, is guilty of an offence. Actions covered by the section include destroying, defacing or concealing certain documents, or procuring the execution of a valuable security. The penalty for offences under sections 9, 10 and 11 is an unlimited fine or imprisonment for up to ten years or both following conviction on indictment.
Section 12 deals with burglary. It provides that a person is guilty of burglary if he or she enters a building as a trespasser, intending to commit an arrestable offence or, while there, commits or attempts to commit such an offence. The penalty is an unlimited fine or imprisonment for up to 14 years or both following conviction on indictment. An arrestable offence is an offence carrying a penalty of at least five years imprisonment.
Section 13 deals with aggravated burglary, in other words, the commission of a burglary by a person who has a firearm, imitation firearm, weapon or explosive with him or her. Section 14 deals with robbery and provides that a person who steals and, either at the time of or immediately before the stealing and in order to do the stealing, uses or threatens to use force against any person is guilty of the offence of robbery. The penalty for conviction on indictment for aggravated burglary and robbery will be imprisonment for up to life.
Section 15 relates to the possession of certain articles by a person for use in relation to certain offences, such as theft or burglary. An offence under this section carries a maximum penalty of an unlimited fine or imprisonment for up to five years or both following conviction on indictment.
Part 3 of the Bill deals with the handling etc. of stolen property and other proceeds of crime. Section 16 sets out key definitions for use within this Part of the Bill. Section 17 creates an offence of handling stolen property, that is where a person, knowing or being reckless as to whether property was stolen, dishonestly receives it or makes arrangements to do so, or retains, removes or disposes of it. A penalty of an unlimited fine or imprisonment for up to ten years or both may be imposed following conviction on indictment.
Section 18 creates a new offence of possession of stolen property to address difficulties under existing legislation which arise when a person is found in possession of stolen property but the question of whether that person has stolen such property or is handling it remains unclear. The offence created is to the effect that the person, without lawful authority or excuse, possesses stolen property knowing or being reckless as to whether it was stolen. Where circumstances would reasonably lead to the conclusion that the person knew or was reckless as to whether it was stolen, a court or jury may take the view that the person did know the property was stolen or was reckless on this point, unless satisfied there is a reasonable doubt about this. The penalty for conviction on indictment is imprisonment for up to five years or an unlimited fine or both.
Section 19 sets out certain circumstances under which a garda may require a person to give him or her an explanation of how stolen property, or the proceeds from it, came into that person's possession. Failure to give a truthful account of how this property or proceeds came into the person's possession carries a maximum penalty of a fine of up to £1,500 or imprisonment for up to 12 months or both on summary conviction.
Section 20 provides clarifications to the preceding sections in this Part of the Bill, by providing that references to stolen property include prop erty whether it had been stolen before or after the Act commenced, or had been stolen outside the State, within certain limitations. It also extends the scope of this Part to include proceeds arising from the disposal of the stolen property, whether in whole or in part. Finally, it states that property which has been returned to its rightful owner will not be regarded as having continued to be stolen property.
Regarding sections 21 and 22, it is intended that they will be deleted from the Bill and will be included, instead, in the Criminal Justice (Illicit Traffic by Sea) Bill, 2000. I will deal further with this later in my speech.
Part 4 deals with forgery. It enacts offences in a modern form which are currently covered by the Forgery Acts, 1861 and 1913, which are being repealed in full.
Section 23 contains some necessary definitions. Sections 24 to 27 deal with the making and use of false instruments or copies of false instruments intending their use in order that another person will accept them as genuine. Offences under these sections carry a maximum penalty of an unlimited fine or imprisonment for up to ten years or both following conviction on indictment.
Section 28 deals with the custody or control of certain false instruments. These include money orders, stamps, cheques, credit cards, share certificates, passports and tickets. It provides for an offence of having control or custody of any of the specified false instruments with a view to inducing another person to accept it as genuine and of having them in one's custody or control without lawful excuse. It will also be an offence to have custody or control of a machine or of material suitable for use in the making of a false instrument, or with the intention of passing them off as genuine. The maximum penalty of an unlimited fine or imprisonment for up to five years or both will apply to offences related to possession, while the maximum penalty applicable to offences relating to the intention to use such instruments will be an unlimited fine or up to ten years imprisonment or both.
Sections 29 and 30 provide further definitions of key terms. Part 5 deals with counterfeiting. Its focus is on combating the counterfeiting of currency notes and coins. In particular, it will provide protection to the euro currency, even before the date of issue.
Following the definitions in section 31, section 32 provides for an offence of counterfeiting where a person makes a counterfeit note or coin with a view to passing it as genuine, and where a person does this outside the State in order to pass it as genuine within an EU member state. This offence carries a maximum penalty of an unlimited fine or imprisonment for a term of up to ten years, or both, following conviction on indictment. Section 33 makes it an offence to pass or tender a counterfeit as genuine, whether directly or via a third party, and makes it an offence even to knowingly deliver a counterfeit to another person, without lawful authority.
Section 34 provides that a person who has a counterfeit note or coin in his or her custody or control with the intention of passing or tendering it as genuine, or of giving it to another person as genuine, is committing an offence. It also makes it an offence even to have such a counterfeit in one's custody or control, without lawful authority.
Section 35 deals with materials and implements for counterfeiting and makes it an offence to make or have custody or control of anything to be used for the purpose of counterfeiting, or to have anything, without lawful authority, which is designed or adapted for counterfeiting.
Offences under sections 33, 34 and 35 carry maximum penalties of an unlimited fine or either five years imprisonment or five years imprisonment or both a fine and imprisonment, depending on the circumstances of the offence. Under section 36, a person who, without lawful authority, imports a counterfeit note or coin into a member state of the European Union, or exports such a note or coin from a member state, is guilty of an offence, the penalty for which is an unlimited fine or imprisonment for a term of up to ten years or both.
Part 6 provides that the provisions of the EU Convention on the Protection of the European Communities' Financial Interests, and the three protocols to that convention, will have the force of the law in the State. The convention requires each member state to provide for criminal penalties against the use or presentation of false, incorrect or incomplete statements or documentation, resulting in the misappropriation, or misapplication, of Community funds, and the illegal reduction of the communities' general budget. The protocols deal with such matters as corruption by or against national and Community officials, which damages or is likely to damage the communities' financial interests, jurisdiction of the Court of Justice of the European Communities and co-operation between member states and the Commission.
Part 7 deals with the investigation of offences. It provides for the issue of search warrants and makes it an offence to obstruct a garda acting under warrant. It also aims to protect documents which may be relevant to an investigation and provides that evidential material, where ordered by a district judge, must be either produced to a garda or the garda allowed access to it.
Part 8 deals with the trial of offences. It provides for the summary trial of indictable offences under the Act where all parties agreed to this. It also deals with a number of aspects of trial procedures, in particular giving assistance to juries in complex cases. It also allows for flexibility in relation to charges of theft, handling or possession, in that a person charged with theft may, if the facts so prove, be found guilty of handling or possession, andvice versa.
Part 9 deals with a range of miscellaneous issues such as making it an offence to use and assumed name to commit an offence under the Bill, the liability of companies or their directors for offences and obligations on certain persons, such as auditors, to report suspected offences. There are also provisions dealing with the admissibility of certain types of evidence in proceedings, for example, documentation, including translations, provided by an overseas lawyer about comparable offences under that state's legal system and documentation provided by an officer of the Department of Foreign Affairs to the effect that a person is an Irish citizen. Other sections deal with jurisdiction where an offence was committed aboard a vessel in Ireland's territorial seas as well as miscellaneous amendments or repeals of other Acts and standard provisions dealing with transitional arrangements.
I have, of necessity, given only an outline of the provisions of the Bill at this stage. To go into any greater detail than I have done would require considerably more time than is available to me. However, if there are particular matters which Deputies would like to have clarified, I will endeavour to do this in my reply to the debate. In addition, there will be the opportunity during the Committee Stage, should Deputies require it, to go into detail on the sections and to see how they compare with the present law in this area.
I would like now to outline for the benefit of the House some amendments which I will propose to the Bill on Committee Stage. It is well recognised that the output of legislative proposals from my Department has been and remains prodigious. To date, 34 Bills have been enacted since I became Minister for Justice, Equality and Law Reform. There are nine Bills currently before the Oireachtas and a considerable number at various stages of preparation. Inevitably in such circumstances it transpires that a provision which is being included in one measure may turn out to be more appropriate to another. Section 21 of the Bill is a case in point. It substitutes a new section for section 31 of the Criminal Justice Act, 1994, dealing with money laundering. However, another Bill before the House, the Criminal Justice (Illicit Traffic by Sea) Bill, 2000, which will require that a number of changes be made to the 1994 Act, including section 31, would be a more appropriate Bill in which to make the necessary changes. It is proposed, therefore, to provide for the appropriate amendment to be made through the Criminal Justice (Illicit Traffic by Sea) Bill, 2000 and, accordingly, I will move an amendment on Committee Stage to delete section 21 of the current Bill. A consequential amendment will also delete section 22, which is related.
In dealing with such a comprehensive reform of the law as this Bill does, it is inevitable that issues arise even after publication which need to be addressed. In that Part of the Bill dealing with forgery, it is intended that custody or control of certain forged instruments should be penalised. Section 28 sets out a range of such instruments. Since publication of the Bill, it has been pointed out to me that it would be appropriate to include other instruments such as registration certificates under the Aliens Act. I will bring forward the appropriate amendment on Committee Stage to deal with this.
Part of the Bill deals with counterfeiting and extends to counterfeiting of the euro even before euro notes and coins are issued. Article 105.4 of the Treaty on European Union requires member states to consult the European Central Bank regarding certain draft legislation. The present Bill, dealing with protection of the euro, falls within the relevant category. Following publication of the Bill, therefore, the relevant sections were referred to the European Central Bank for their opinion. There will be some minor amendments required to Part 5 following the opinion of the ECB, which I will propose on Committee Stage.
On the matter of amendments, I will bring forward an amendment on Committee Stage to section 50 to provide that the penalty to be imposed following summary conviction will be imprisonment for up to 12 months or a fine of up to £1,500 or both.
It would be naive of me to think that a Bill such as this is perfect in every way and to have a closed mind on matters relevant to it. Therefore, I give the House an assurance that I will listen earnestly to the debate and take on board any suggestions from Deputies which I think will improve it. I will not be slow to consider amendments if they seem to advance the objectives for which the Bill stands.
Since I became Minister for Justice, Equality and Law Reform I have consistently stated that anyone who engages in crime will face the full rigours of the law. Where necessary I have brought forward legislation to provide for appropriate penalties for those guilty of serious offences. There are also measures in preparation to further assist in the investigation of offences. The law must be kept under constant review and where shortcomings are identified these should be remedied. Sometimes, such a review points to the need for fundamental change requiring a root and branch reform of the law in a particular area. That is the position with the law on fraud and dishonesty, and that is the reason the present Bill is necessary and that I am happy to move it in the House.
I should explain that I must leave for a little while due to a prior engagement. I mean no discourtesy to the main spokespersons for the Opposition parties. Careful note will be taken of what they have to say, and I will try to be here for as much of the debate as I possibly can.