Dáil Éireann debate -
Thursday, 30 Nov 2000

Vol. 527 No. 2

Criminal Justice (Theft and Fraud Offences) Bill, 2000: Second Stage

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

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, and vice 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.

Mr. Shatter

I welcome the fact that this Bill is before the House. The Minister is never slow to praise himself, but may find it unusual to be praised by someone on the Opposition benches.

This Bill has had an extraordinarily long gestation period. A report published in 1992 by the Law Reform Commission and another in 1993 by the Government Advisory Committee on Fraud recommended broad changes to the laws in this area. Going back to my student days as a young law student dealing with the fraud legislation then in force – the Larceny Act, 1916, and other legislation – it was clear there was a need for modernisation and consolidation of the legal provisions that apply in this area. In so far as we have this Bill in the House today, I welcome the fact that it is here. It has been long awaited. Various Governments of different political hues could have addressed this issue with greater urgency, but at least now we have it.

There are aspects of the Bill that could be better teased out on Committee Stage rather than in the context of a Second Stage debate. A number of technical issues arise under particular sections that we need to look at carefully to ensure the objectives the Minister wishes to achieve in the context of the provisions contained in the Bill are achieved and that technical difficulties do not arise in successfully processing prosecutions in the circumstances in which that should be done. I will, therefore, confine my remarks to some general observations on issues relating to the Bill and other issues of relevance to sentencing which apply both to this Bill and other matters.

However, I want to point out, by way of marker to the Minister and his advisers, that they might consider two or three issues about which I have some concerns in the context of the breadth of definition, in particular, in relation to criminal offences, and the possibility of their application in circumstances which are inappropriate. In that context, I want to refer to section 6 which is referred to as a section relating to the making of gains or causing of loss by perception. Under section 6, a person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, induces another to do or refrain from doing an act is guilty of an offence. I understand the reason this provision is in the Bill. There are certain circumstances in which such a section may seem appropriate. However, what I am concerned about is the possibility of a business venture, properly engaged in by an individual, simply going wrong because of bad business judgments, and a person who is resentful that profits he or she expected to make were not made and substantial losses and difficulties were created invoking the section.

Mr. Howlin

The Minister for Public Enterprise would be indicted on the Eircom shares fiasco.

Mr. Shatter

I have not yet come to the Bill's implications for Ministers. In the context of the ordinary conduct of business where things simply go wrong and people make incorrect judgments, I am concerned that this section could criminalise a broad section of the community and give rise to all manner of prosecutions, which, in real terms, would be spurious. I am concerned that a plethora of prosecution proposals could arise which would detract from the intention of this provision. The Minister may say that to some degree the inclusion of the word "dishonestly" which is defined as "without a claim of right made in good faith" solves the problem and will be of some assistance. I would not be convinced by that. I can think of all manner of business arrangements where problems could arise, for example, where people are encouraged to invest money in particular schemes. Everyone could be acting properly and in good faith but it could be argued, if things were to go wrong, that one person was acting dishonestly.

I presume the gain envisaged in the section is a monetary gain. I wonder whether politicians who, in fits of political and electoral enthusiasm, make all sorts of promises to the electorate to the effect that if they are voted in to Government, the public will benefit financially, could be accused of acting dishonestly because they intend making a gain for themselves, such as securing election and ministerial office, and may cause a loss to other people through the imposition, for example, of additional taxation. This could result in the entire membership of a future Government or even of the current Government being subjected to criminal prosecution. This is an extraordinarily broadly drafted section which could bring a series of ordinary human conduct, which I am sure the Minister does not intend to criminalise, into the net. The section should be carefully re-examined.

Section 7 gives rise to similar and related worries concerning someone obtaining services by deception. If I am served a good meal in a restaurant but fail to pay the bill and never intended to pay it, I should, of course, be open to prosecution. If I secure other services without intending to pay for them, my actions should be regarded as criminal. What happens if I ask a builder to build an extension to my house but am dissatisfied with the service provided and withhold payment? Could the builder threaten me with prosecution for dishonestly obtaining his services? If I have a row with a solicitor who is acting on my behalf in a particular legal case, question his competency in representing me and a row ensues in regard to the payment of fees, am I open to prosecution for dishonestly obtaining his services? I may choose to go abroad on holiday and may not pay the travel agency the full amount before I depart. I could withhold payment if, instead of finding myself in a five star hotel or comfortable modern apartment by the sea, I find myself in the back of beyond without running water, a prison style bed and without decent food. Could the travel agency prosecute me in that instance? I am aware that it is not the Minister's intention that such circumstances would result in prosecutions but we must consider the manner in which the section is drafted.

Sections 6 and 7 are so broadly drafted that they could create very real problems. People who act properly and honestly but who make mistaken judgments may find themselves the subject of Garda investigations. People who receive bad service, which would inevitably result in a civil court action in the event of a dispute over payment, could find themselves on the receiving end of a Garda investigation and could be threatened with prosecution. Vulnerable people may find that people with greater financial clout will threaten to take matters to the Garda if services which were not properly provided in the first instance are not paid for in full. I urge the Minister to re-examine these sections very carefully because they go far beyond the type of provisions which should comprise part of criminal law and will result in the criminalising of all manner of disputes which would normally be resolved through civil litigation.

We must also be careful about section 10. If people engage in false accounting, fiddle the books, fail to pay their taxes properly or deprive other people with whom they are in business of moneys to which they are entitled, their actions should give rise to criminal prosecutions. However, I raise a query in regard to the reference in the section to someone concealing or falsifying accounts or failing to make various disclosures. In the context of court proceedings where documentation is produced and financial disputes between parties give rise to civil actions in the area of company or family law, for example, will a sworn affidavit which does not totally and comprehensively represent the true financial position in regard to a certain issue, either deliberately or in error – a person may not have all of the information which should be included in an affidavit at his or her disposal – lead to people engaged in litigation, whose failures fall short of perjury, being prosecuted? This is an important question which I wish to bring to the Minister's attention.

In family litigation, which is heard in camera, judges may discover false accounting where, for example, a person may be defrauding the Revenue Commissioners. Will a member of the Judiciary hearing cases under the in camera rule be obliged to refer papers to the DPP under this section concerning a person who has dealt incorrectly with the Revenue or has falsified business or company accounts? I raise these issues because there is a series of different court judgments dealing with these areas to which I wish to refer.

I now turn to an issue to which the Minister referred in passing which arises under section 51 on trial procedure provisions.

Section 51(4) states:

if on the trial of a person for stealing any property it appears that the property alleged to have been stolen at one time was taken at different times, the separate takings may be tried together, to a number not exceeding 3, provided that not more than 6 months elapsed between the first and the last of the takings.

Why is the period limited to six months and why are the separate takings limited to three? Why should a person who has been engaged in a series of thefts of property from one victim over a period of two, three or four years not be tried for all those thefts on one count so the totality of the moneys or properties stolen and their value is placed clearly before the court in the context of determining conviction and sentence? I do not understand the need to so constrain the provision, which should be broader. The number of takings should not be limited to three and the period should not be limited to six months. I will return to these issues on Committee Stage.

Section 53 raises another issue. Our criminal law provisions should have greater provision for restitution to be paid to victims in circumstances where the perpetrator of a crime has assets or funds out of which restitution can be made. In the context of a wrong having been committed it is clear that where the person who perpetrated the wrong is a person of substantial or reasonable means, there is no reason a court which finds the person guilty should not be empowered to make a full restitution order to the victim where possible. In the Bill the restitution provision seems to be confined to funds found on the offender at the time of arrest, which seems far too limited. I fully support the idea of making restitution and believe we should have broader legislation in this area. If a person who embezzles £200,000 or £300,000 has a variety of different deposit accounts which cannot be directly related to the original sum embezzled, the court should be able to order that the £300,000 be repaid to the victim from whom it was taken. Why should a victim have to deal with this through a separate civil action subsequent to criminal proceedings? The success of the Criminal Assets Bureau legislation, which allows the State take large funds obtained as the result of crimes, should be broadened so that those convicted of crimes which result in a loss being sustained by an individual can be ordered to make restitution where the means exist to do so.

On occasion in the context of certain types of theft, larceny, fraud and embezzlement, people are willing to take the chance of being caught, particularly in the context of major crimes, on the basis that if they are caught and serve their sentences they will have a nest egg on their release if they manage to get the money out of the country or at least separate it so that it cannot be identified with the individual crime.

Section 54 provides for various additional information to juries. The thinking behind this is very good. I will return to certain aspects of this on Committee Stage. In the context of other types of offences, should there not be similar provision for other types of criminal trials in circumstances where it would be appropriate for the jury to be given information derived from the trial process? The provision is welcome, but it is important that we extend it to other circumstances.

I will return in detail to other aspects of the Bill on Committee Stage. However, I wish to raise a difficulty which has arisen and which applies to the Bill and criminal prosecutions in general. I am surprised the Minister did not refer to it in his speech as he dealt not only with the Bill but also referred to some other general issues which fall within his brief which are relevant to criminal law and ensuring offenders are brought to justice. A very important judgment was delivered by the Supreme Court on 24 November in the case of the Director of Public Prosecutions v. Padraig Finn. The case is of great importance. The practice of the courts, going back some 20 years, has been for judges when imposing sentence to take it upon themselves to determine that after a period of time has been served the matter comes back before the trial judge who heard the case for review. Except in one particular area, the provision has no statutory basis. Courts and judges adopted the provision for a variety of reasons, one being the revolving door syndrome and the concern that a sentence imposed would not be served as a result of a person being released early from prison, rendering the sentence imposed farcical and thereby undermining the administration of justice. Some judges provided for a sentence review mechanism on the basis they assumed that at the very least the initial portion of the sentence would be served and the person sentenced would remain in prison. On other occasions a review mechanism was put in place to encourage an offender sentenced to imprisonment to engage in certain treatment, for example, for alcoholism or drug addiction, and the carrot was held out that if after serving a sentence for one, two or three years the offender had come to terms with his or her addiction or difficulties, the court could review the sentence and determine if the offender could be safely released into the community. In effect the judiciary was operating its own early release system. The judgment by the Supreme Court has made it absolutely clear that in no future case can a judge when passing sentence provide for a review of the sentence. The court made reference to the Constitution, in particular Article 13.6 which states:

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.

By making reference to this article, and in the absence of legislation enacted by the Oireachtas conferring on the courts a power to review sentences imposed, the Supreme Court has made it clear that any future decision made by a court when imposing sentence cannot properly include a review mechanism.

Should it do so, that sentence can be struck down by an order of certiorari in proceedings subsequently brought and is clearly outside the power of the courts.

The issue I had expected the Minister to address in his speech is what the Government intends to do. There are circumstances in which it is in the interests of justice and in which it is in the interests of the general public that sentences be reviewed after a period. There is a need to put sentence review on a statutory basis. A decision must be made by the Government on whether to establish a parole board to provide for a transparent and organised statutory system to review sentences after persons convicted have served a portion of sentences or to enact legislation to confer on the courts a power to review sentences, in particular cases, where judges wish to exercise such power, and at the time of sentencing decide that it is desirable that a review be provided for. Section 5 of the Criminal Justice Act, 1999, provides for the imposition of a mandatory minimum term of imprisonment of ten years for certain drug offences. It also provides that, in imposing a sentence on a person convicted of an offence under section 15 A of the Misuse of Drugs Act, 1977, a court can make provision for review. That Act provides that the court, when sentencing, may inquire whether at the time of the commission of the offence the person was addicted to one or more controlled drugs and, if satisfied that the person was so addicted at the time, and if the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiration of not less than one half of the period specified by the court, under subsection (3)(b) of the particular section. It provides that on reviewing a sentence, the court may suspend the remainder of the sentence on any condition it sees fit and in deciding whether to exercise its power under the subsection may have regard to any matters it considers appropriate.

As the law stands, section 5 of the Criminal Justice Act, 1999, is the only statutory provision in place which confers on the courts the power to review sentences. There is a broad range of cases going through the courts in which it may be the view of the trial judge that it is in the interests of justice or in the public interest that a review of sentence occurs but there is no formal mechanism for that to happen. The courts can no longer do it. There is no transparent system within the Department of Justice, Equality and Law Reform under which this can be exercised. The revolving door syndrome, which the Minister likes to say ceased from the day he came into office – although that is not correct – which has continued to operate all the way through to this year is the only method for early release of a general nature. The power the Minister exercises and which has been conferred on the Minister under the 1951 Act has been described as haphazardly exercised with no transparency of any nature. This is an issue which impacts substantially on the administration of the criminal justice system. It is an issue also which impacts on the Exchequer. If judges can no longer determine that certain cases are appropriate for review, and prisoners should be released after particular periods, and if the Minister continues to operate a haphazard system that lacks transparency, it is inevitable that people will be kept in prison in circumstances when it may no longer be in the public interest or in the interests of justice and will be a substantial burden on the Exchequer. Recent estimates, depending on the institution, range from £70,000 to £100,000 per year to keep a person in prison.

There is an urgent need for the Government to say what steps it will take as a consequence of the Supreme Court decision. Is statutory provision to be made for a parole board and, if so, what type of board? What substantive provisions will apply to it? Given the length of time it takes for substantive legislation to be processed, it is highly unlikely that a parole board will be put in place, under statute, during the lifetime of this Government. If that is the case, what interim measure does the Minister intend to take pending legislation to establish such a parole board? I accept it will take some time to set up a parole board. Is the Minister considering emergency legislation to confer a statutory power on the Judiciary when passing sentence to provide for a review date pending the introduction of legislation to provide for a parole board? If so, it is also essential, in the event that sentence has been passed and statutory provision has been made for a review date and if a decision is made subsequently to release someone into the community following review, that an appeal mechanism be put in place.

It is astonishing that the Minister has remained silent. The Minister should not have been surprised at the judgment of the Supreme Court. A report on sentencing, published by the Law Reform Commission, which goes back to August 1996 sets out the need to provide proper statutory mechanisms to deal with sentencing, not only in the context of a review but it pointed out that there is no statutory mechanism in place with regard to the provision of suspended sentences. That issue must be addressed. The Minister must also take whatever steps are necessary to ensure that the constitutional provision which seeks to guarantee that justice is administered in public is maintained. We have had a series of eccentric decisions by members of the Judiciary who have sought either to prevent the media reporting criminal trials or have taken other steps or made comment, which is contrary to the spirit of openness which is supposed to apply to the administration of the criminal justice system. In that context there is a particular concern in regard to legislation in place concerning the prosecution of individuals who have committed sexual offences that provisions designed to protect the anonymity of victims are frequently being used to protect the anonymity of offenders. This has happened on some occasions where victims have said they wanted the offender to be named. Some judges have taken it on themselves to determine that an offender should not be named. The message should go out from this House that criminal justice must be administered in public and that where people are charged with or convicted of offences in circumstance in which there are statutory provisions in place, we should seek to protect the anonymity of victims. In circumstances where the victims state they are not relying on those provisions, it is in the public interest that the perpetrators of offences, or those accused of offences, are properly named and that the newspapers and the media are not curtailed in publication.

Mr. Howlin

I will say a few words about the genesis of this important Bill which I welcome on behalf of the Labour Party. The Criminal Justice (Theft and Fraud Offences) Bill, seeks to consolidate the law on dishonesty, more properly the law on larceny.

First I will to talk about the genesis of the Bill and then go into some detail. Like Deputy Shatter, I welcome the broad thrust of the Bill, including a range of the new measures contained in it. We will have a better opportunity on Committee Stage to tease out the Minister's intentions, the import of the sections and table amendments as are deemed appropriate on this side of the House.

The Bill updates the Larceny Acts, principally the 1916 Act. Equivalent updating was first attempted by the British House of Commons in its Theft Act, 1968. As the Minister stated in his speech, the Bill before us is largely based on two reports – the Law Reform Commission report on dishonesty dated 1992 and the report of the Government advisory committee on fraud published in 1993. The question that arises, therefore, is not just whether the Bill is welcome on its merits, but why Bills of this nature take so long to wind their way into legislative proposals to be considered by Members of this House. My suspicion is that if it were not for the Article K convention requirement under the European Union treaties on the protection of financial interests of the Community, we would be waiting yet for this measure to come before us. Although it goes well beyond the scope of the protection of the currencies of the European Union, it clearly was an imperative under our treaty obligations to enact a portion of this legislation. I believe that was the spur to activity that brought the Bill in its current shape before us. The question arises whether no work is being done in the Department of Justice, Equality and Law Reform's law division until the very last minute or the work was completed some time ago and was simply in the long queue for ministerial consideration and, ultimately, for parliamentary time to which the Minister referred.

I have argued for three and a half years that it was a mistake to amalgamate the Department of Justice with the Department of Equality and Law Reform because a variety of important measures are constantly jockeying for primacy within the Department. This means the most urgent measures do not always make it to the top of the list because there are other imperatives as we have witnessed in recent months and years. For example, there are our obligations under the Good Friday Agreement or, as in this case, our obligations under EU treaties. I would have pre ferred to have two separate Departments, one with responsibility for the criminal side of legal reform and the other dealing with many important equality measures. I acknowledge that the Minister has made a fair effort at balancing the two sections of his Department and has worked extremely hard. However, I am not sure his best effort in trying to balance competing demands is always good enough for the public interest.

It is difficult to decide, given that such reports are commissioned in the first instance, why the recommendations are implemented partially or in a piecemeal fashion. The explanatory memorandum does not explain the reasons for or even outline the extent to which this legislative proposal departs from the detailed recommendation in those reports. For example, recommendation 1 of the Law Reform Commission states that "dishonestly" should be defined in terms of absence of a claim of legal right. Section 2 states that "dishonestly" means without a claim of right made in good faith. The Law Reform Commission's second recommendation was that a key requirement at present imposed on the prosecution that it must prove an intent on the part of the accused to deprive the owner permanently of property should be dropped. Section 4 of the Bill specifically preserves this requirement. Much of this detail can be teased out on Committee Stage. However, it would be useful if in his Second Stage response the Minister would indicate in general terms the recommendations of the two reports, where he has departed from the recommendations and the reasons for doing so.

I wish to make a number of other points in relation to this particular measure. I welcome the focus of the legislation and the Minister's declared commitment to deal with white collar crime. Members on this side of the House, together with Government backbenchers, have in the past focused on the difficulty in taking prosecutions against individuals responsible for serious criminal acts which fall into the category of white collar crime. We have all witnessed the difficulties posed in the investigation, much less the prosecution, of such criminal acts. The tribunals of inquiry regularly feed out the difficulty to us in following the money trail and in getting at beneficial ownership to see where fraud has taken place. These can be very long and complicated trails, criss-crossing various jurisdictions. I am aware of an investigation which is currently under way by a committee of this House where it is very difficult to determine a matter of fact on the beneficial ownership of particular company assets, or even whether an individual is a director of a registered company in jurisdictions other than our own. I cite the example of Jersey where there is no domestic legal imperative on the registration of directors of companies.

What is clearly required to augment the very good proposals in the legislation before us, but which refer only to this jurisdiction, is much better co-ordination at international level in relation to the investigation and openness of authorities to assist in the investigation of large scale fraud. Many jurisdictions are obstructive to that type of investigation. While there has been improvement at European Union level, there is a requirement for the EU to engage much more vigorously with those states that, at least by reputation, harbour laundered money, or harbour by repute the ill-gotten gains of criminal activity. That level of pressure must be brought by the international family of nations on states that derive part of their income from giving at least the perception of a welcome for "hot" money. I would welcome the Minister's response to what international treaties, discussions or initiatives are to be taken by the European Union to ensure the legislative framework to combat international fraud and theft is at least comparable to the global facility that now exists to transfer resources around the world with great alacrity.

The Minister indicated that the various measures he had put in place had somehow had a dramatic impact on crime prevention. He referred to the deployment of additional gardaí, the provision of extra prison spaces and the putting in place of initiatives such as closed circuit television, etc. If we accept the Minister's point of view, these developments have had a remarkable impact in terms of reducing serious crime in the State. However, a great deal of this is illusory.

There is an unprecedented level of concern about crime, particularly serious crime, abroad at present. Statistics can prove anything, but the reality is that the most serious types of crime, including murder and rape, have entered the consciousness of the people in a way which is unprecedented.

The most recent figures on crime available to me were provided by the Minister in reply to Dáil questions tabled on 15 November when he informed the House that 38 murders were recorded by the gardaí last year. Up to 15 November last, 31 of these had been detected. The Minister also informed the House that 34 murders had been recorded up to 15 November. That is an horrendous statistic by any stretch of the imagination because each crime encapsulates an enormous tragedy for the people directly affected. We cannot be complacent in the fact of that serious epidemic of murder. We cannot pretend that crime is under control. I ask the Minister to specifically refer to that matter in his reply.

In The Irish Times of 18 October, the legal affairs correspondent stated:

There were more rape and murder cases waiting to be dealt with in the Central Criminal Court when it resumed after the summer than had been concluded in the whole of the previous year.

According to figures compiled by the court registrar, 170 rape cases and 53 murder cases were outstanding on August 14th. Of these, 47 were awaiting sentencing. In the legal year ending July 31st the court dealt with 103 cases involving rape and 30 murder cases.

It is clear that there two extraordinary things are happening. There has been a serious escalation in crime, particularly serious crimes such as murder and rape, and the courts are not dealing expeditiously with the prosecution of those cases that have been detected.

To compound the situation, there is a widespread view that the statistics provided by the Minister and the Garda Síochána only reflect a tiny proportion of actual crime levels because so many petty crimes go unreported. Evidence of this was provided in last year's household surveys which showed that a remarkable variety of crimes were not reported and, therefore, are not accounted for in the statistics. In addition, a view was outlined in many of the newspapers that the introduction of the new Garda computer system, PULSE, actually resulted in the non-reporting of a range of different crimes and distorted the statistics.

I want the Minister to comment on these matters. I do not want to make overmuch of them in this debate, but I want to shatter the Minister's complacent attitude that because the statistics are good all is well. There is a palpable feeling on the streets, not only in our main cities but in towns throughout the country, that serious crime is on the increase and that people are more vulnerable now than ever before. We must respond collectively to this problem, but the main burden in this regard falls, in large measure, on the Minister for Justice, Equality and Law Reform.

I wish to deal briefly with one or two issues that arise directly out of the provision before us. I welcome the expansion of the law in relation to the possession of stolen property. The Minister's proposals strengthen the law in that area and it is important that people in possession of stolen property would be required to provide an explanation of how it came into their possession. There is a growing feeling among some people that as long as they do not commit the crime, there is somehow an acceptability about receiving the proceeds of crime. That must be firmly and absolutely stamped out and the Minister's proposals will address that matter.

I am strongly of the opinion that the "turning a blind eye" approach people take to goods they receive – they do not want to know their origin or provenance, they are merely happy to get a bargain – should also be addressed. If people who feel themselves innocent because they merely paid below the odds for an item they received are called to account, it will exert major pressure on the market for stolen goods and, hopefully, put pressure ultimately on those who thieve and rob with alacrity.

I wish to comment now on section 28 which deals with the possession of false documentation and makes specific inclusion of the possession of passports or tickets in the offence to be created. The Minister indicated that this might be expanded further in relation to certificates from his Department. It is clear that he has been considering this provision since it was published because he is already talking about making changes in the area about which I am concerned.

It is our obligation to ensure that genuine refugees arriving in the State are not criminalised. We have international treaty obligations to welcome and provide shelter and succour for those who are defined under the UN convention as genuine refugees. We have had similar debates in the past but it strikes me that there may be genuine refugees whose only means of escape from persecution might be by means of possessing and using false documentation, either passports or travel documents. Surely we are not going to criminalise those people when they arrive in this country.

I am concerned that the Minister will respond by saying, "Certainly not. Refugees will not be affected." However, until somebody is declared to be a refugee they are not a refugee; they are, in the words of the Minister, an "illegal immigrant". I am concerned that, before they are designated as or found to be refugees and while their cases are still being processed and they are still categorised as illegal immigrants, people could, if they possess false documentation which might have been necessary for their very survival, be guilty of a criminal offence. I do not doubt that we will deal with this issue on Committee Stage but I would like the Minister to comment on it in general terms.

Deputy Shatter referred to section 6 which strikes me as being extremely broad in its scope. I underlined the word "dishonest", which is included in the section and which, perhaps, saves it somewhat. Not being a legal person, even the Bill's definition of "dishonestly" as "without a claim of right made in good faith", does not clarify the matter to my satisfaction. If a Minister for Public Enterprise, for example, was given a variety of valuations for a share deal and rejected a low valuation in favour of a higher one, if people were at a significant financial loss as a result of the Minister's choice and if the charge could be made that the selection of the higher valuation was arrived at to promote the popularity of the Minister or the Government, would the Minister's action be dishonest and would the Minister who caused a material loss to a citizen by that mistake be guilty of an offence under section 6? I will be interested to hear the Minister's response to this suggestion.

Section 48 creates the offence of concealing or disposing of facts, for example documents, which would be important in the investigation of a crime. In the case of a Garda investigation of fraud, I welcome the fact that there would be a legal obligation on any person to preserve documentation which would be critical to the proper and conclusive investigation and that it would be an offence to dispose of such documentation.

I also welcome section 53 which proposes the orders for restitution. This area has caused me concern for some time. We all believe that where an individual citizen has been harmed or deprived of the use and value of his goods or money, the perpetrator of the theft should, where possible, be required to make restitution. That is an important principle.

A parallel principle appears to have grown up in the courts without any statutory basis. There is a growing practice of district justices requiring a contribution of an arbitrary amount decided by the judge to the court's poor box – some judges do this with great frequency. A suspended sentence is then applied to the perpetrator. This could broadly be described as a form of restitution as the poorest members of society benefit from these contributions. However, this is not a good practice and is not statutorily regulated. The Minister should have a position on this practice and if it does not have a legal basis it should not be tolerated. If we wish to have restorative justice the Minister should bring forward proposals to that effect and we should debate them here.

A matter which is of great concern to me was touched upon by Deputy Shatter. Article 34 of the Constitution requires that justice shall be administered in courts "established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public". Just as this House is required to sit in public so, in all but exceptional cases, are the courts. A case was reported in many newspapers today on which the judge imposed a gagging order. He banned the mention of anyone connected with the case or even their occupations or the nature of the offence.

It is worrying when things like this happen. There must be an extremely good reason why matters cannot be debated, judgments made and arguments heard in public. This is one of the fundamental strengths of the administration of fair procedures in our courts. We have heard of decisions being made in judges' chambers. We must make it clear – and I hope this can be done in the House today – that the provisions of the Constitution regarding the open administration of justice must be done and seen to be done. I join Deputy Shatter in asking the Minister to be clear and unambiguous on this matter.

There are fears that in some cases, particularly those involving sexual abuse when we are all anxious to preserve the anonymity of the victim, that this practice will be used to protect the anonymity of the perpetrator. We have seen courageous victims waive their rights to anonymity so that perpetrators can be named. Not all such cases relate to sex offences. Last year a case involving a tax matter was held in camera. There must be a clear standard and policy and the Minister for Justice, Equality and Law Reform has a responsibility to make that clarification. I hope he will do so at the conclusion of this debate. If clarification of the procedures for holding courts in camera requires legislation then let us enact it.

I welcome the broad provisions of the Bill. I look forward to engaging with the Minister in constructive dialogue on Committee Stage and I hope the general points I have made today will be responded to when the Minister concludes this debate.

Mr. Collins

I too welcome the key provisions of the Bill, whose main purpose is to enact a modern statutory court to cover all offences of theft. With this objective, the Bill consolidates the law in this area by repealing earlier legislation, particularly the Larceny Acts of 1861, 1916 and 1990. It updates and re-enacts some of the provisions of these statutes, as well as providing for matters not adequately covered by legislation.

In a broader context, this Bill is one key element of the Government's programme to put in place a better criminal justice system. The Minister for Justice, Equality and Law Reform is to be congratulated on his vigour and determination in bringing forward much innovative legislation. This year we debated the Sex Offenders Bill, the Human Rights Commission Bill, the Intoxicating Liquor Bill, the Equal Status Bill and the Illegal Immigrants (Trafficking) Bill. This is only part of the work emanating from the Department this year. Extensive new initiatives have also been brought forward in the child care area. I am confident the Government will build on these new measures in the policies it implements in the months ahead.

I welcome the announcement made by the Minister that he has obtained Government approval for the construction of a further 700 closed prison spaces with support facilities. The provision of a number of specialised facilities and services for offenders has also been approved by the Government. I welcome the fact that it is committed to completing the prison building programme. For decades, the Irish prison system has been starved of investment with the result that the culture of the revolving door was endemic to alleviating over-crowding.

The Government programme includes a commitment to provide 2,000 extra spaces over its five year life span – an objective it will achieve. The Government recognises that prison alone is not always the best punishment for criminal activity. That is why I welcome the budgetary provision of £4 million for the year 2000 towards Garda youth diversion projects. This programme is set for further major expansion as an additional £16 million will be made available under the national plan. There is general agreement that there can be considerable benefits for individuals who participate in such projects. The report of the national crime forum highlighted the need to invest in the prevention of crime, particularly juvenile crime.

In accordance with the provisions of the national development plan, £302 million will be spent on funding for national youth work organisations in relation to projects designed to develop young people as effective members of their communities; provision of youth information centres to provide easy access to information on youth services and welfare; provision of funding to the young persons' facilities and services fund to support the development of youth facilities and services in disadvantaged areas experiencing, or at risk of experiencing, significant drug problems; funding for special projects for disadvantaged youth aimed at facilitating the development of the social education of youth at risk of drug abuse, juvenile crime, homelessness, early school leaving and marginalisation and the establishment of young early intervention programmes and substance abuse awareness programmes for young people at risk of early school leaving or who have low educational achievements. Garda youth diversion projects target young people under 18 years who are seriously at risk of becoming involved in the drugs and crime cycle or are already involved in crime or who are likely to drop out of the educational system prematurely or who are unable to participate in other youth activities due to behavioural difficulties. These projects will ensure that action is taken to offer training, education and negotiation skills. They will also help divert young people away from becoming involved in criminal and anti-social behaviour.

This Government has also done much to promote equality in society as well as implement many measures to help those who suffer from drug addiction. Within the international arena, it is working closely with its European counterparts to combat international drug trafficking as well as halting trafficking in human beings.

This comprehensive legislation represents a fundamental and total reform of the criminal law legal system relating to fraud. It also demonstrates the seriousness with which the Government views the damage fraud does to society. The Bill remedies deficiencies in our legal framework, most notably the Larceny Acts, 1861-1990, and updates and modernises our statutory code covering the area of fraud. It is designed to deal with present day realities and will tackle white collar and computer related crime.

Changes are also being made in the law relating to the investigation of offences under the Bill and for the carrying out of trial procedures. It includes measures designed for the protection of the European Communities' financial interests from fraud and corruption as well as putting in place broader protection for the euro. It creates a new offence of theft which will consist of dishonestly appropriating property without the owner's consent and with the intention of depriving the owner of it. The benefit of this new definition is that it will encapsulate in a single offence acts that currently make up separate offences such as larceny and embezzlement. The penalty provided for conviction on indictment is an unlimited fine and imprisonment for up to ten years.

There will be an updating of the existing offences of burglary, aggravated burglary and the possession of certain articles for use in the course of, or in connection with, certain offences. The maximum penalties for conviction on indictment will be an unlimited fine and penal sanction of up to 14 years. There will also be an offence of handling stolen property consisting of receiving or undertaking to assist in the retention, removal, disposal or realisation of stolen property, knowing or being reckless as to whether the property is stolen. The penalty for conviction on indictment will be an unlimited fine or up to ten years' imprisonment or both. New offences of forgery and counterfeiting to replace existing law in these areas will be created. The offence of counterfeiting will extend to counterfeiting euro notes and coins even before these are in circulation.

There will be new offences of fraud and corruption relating to the financial interests of the European Community. The purpose of this will be to ensure the combating of fraud affecting Community revenue and expenditure including the misappropriation or wrongful retention of Community funds. Other matters covered in the Bill concern the investigation of offences of fraud and dishonesty, including a provision for the granting of search warrants and for orders requiring persons to produce documents and other materials. This can be enforced where there are reasonable grounds for suspecting that such materials may constitute evidence for the commission of an offence. The search warrant and production order provisions will apply to any offence under the Bill that carries a penalty on conviction of at least five years. The benefit of a production order over a search warrant is that it avoids the necessity for the use of the more intrusive search warrant provision and the consequent disruption it may cause to business.

There will also be changes to trial procedures. Included in the Bill are provisions for jurors to be provided with transcripts and other documents to assist them in their deliberations. I support this important legislation that updates the law on fraud and ensures greater efforts will be made to defeat white collar crime in the future. I commend the Bill to the House.

Mr. Coveney

I am pleased to have this opportunity to contribute to the debate and I welcome the legislation. There is a need to bring the law up to date in the area of fraud, theft and dishonesty and the Bill attempts to itemise the various offences which amount to fraud or dishonesty. Existing law does not deal adequately or in sufficient detail with all the possible offences in this area and the penalties that apply do not reflect the modern society in which we live.

Part 2 outlines a wide range of theft-related offences that are being redefined or defined accurately for the first time in law. These include theft, making a gain or causing loss by deception, obtaining services by deception, making off without payment, unlawful use of a computer, false accounting, suppression of documents, burglary, robbery and possession of articles with intent to commit burglary. This list of offences reflects the modern society in which we live and they are matters that were not accurately dealt with in previous legislation. Almost 85% of all indictable crimes committed involve burglary, fraud or larceny. Outdated legislation in this area is unacceptable. By dealing with the reality of the offences that exist, the legislation in this area will be significantly improved.

I wish to refer in detail to some of the offences I outlined. For example, making off without payment was not clearly defined in past legislation. The Bill permits any person to arrest without warrant any individual in the act of committing the offence of making off without payment, for example, in a restaurant or a shop. A garda will be permitted to arrest with reasonable cause and the penalty will be up to £3,000 or two years in prison. I welcome this provision. It will give the Garda more definite powers in this area. In the past the Garda had to give warnings in relation to much of what would be considered petty crime. However, gardaí will now have more definite powers and direction to act in this area.

The unlawful use of a computer was not covered in detail by previous speakers. I am extremely concerned about this matter and I ask the Minister to clarify a number of aspects. An increasing number of homes in Ireland use computers on a regular basis. This is aside from the increased use of computers in the business world and with regard to e-commerce. It will be an offence now to dishonestly, within the State or outside it, operate a computer with the intention of making a gain for oneself or a loss for another person. How will this work in terms of making it an offence to operate a computer outside the State for the purpose of dishonestly making a gain for oneself? I am interested in the Minister's response in that regard.

If somebody in Italy sets up a website to sell leprechauns in Ireland, can that person be arrested or penalised if he or she commits a crime under this legislation? I welcome the proposed unlimited fine that can be imposed if the person can be located and there is also a potential prison sentence of up to ten years. However, I am confused about this area, particularly in relation to offences inside and outside the State. There is so much computer use where tracing the user is complicated. There is no point including an offence in legislation if the penalties cannot be enforced. I may misunderstand the provision and I would appreciate it if the Minister would clarify it.

The Taoiseach has experienced much difficulty in relation to website domain names where a person used his name on a website and then dishonestly sought payment for the domain name. Will the legislation cover that type of dishonesty? If one accesses a search engine and types in simoncoveney.com, one will get a message that is abusive in relation to the party I represent. However, if one types in simoncoveney.ie, one will get my website. There is an obvious dishonest intention in terms of asking me to purchase simoncoveney.com to prevent somebody dishonestly abusing privilege in this area. Will such a case be covered by the legislation or does the Bill need to be amended to ensure it is addressed? I realise that, to some extent, this matter is covered in the e-commerce legislation, but it is also relevant to the dishonesty and fraud aspects of the Bill and it should be considered.

Regarding credit card purchasing via e-commerce and over the Internet, many people in Ireland are afraid to shop over the web unlike in the United States where between 30% and 40% of all shopping is now done over the Internet. People in Ireland do not have the confidence in the system that one's credit card number will not be used dishonestly after it is given and payment is made over the Internet. I ask the Minister to clarify this aspect because the explanatory memorandum contains only a short section on the use of a computer.

This problem affects charities who try to fund raise over the Internet. This is a much more efficient way of fund raising than knocking on doors. However, charities and voluntary organisations are suffering because people are slow to make contributions via a credit card over the Internet due to the lack of legislation in this area.

Regarding false accounting, the Bill makes it an offence to destroy, falsify, fail to complete documents properly or to furnish misleading accounts for the purpose of making a gain for oneself or a loss for another person. This provision is most welcome because many family businesses, such as farms, rely blindly and entirely on their accountants to pay their taxes and for advice on tax efficient investments, etc. This welcome section will tighten up the law in relation to the advice and guidance people receive from accountants and the work they carry out to maximise take home pay or income, particularly for small firms which do not have their own accountants. This is particularly relevant to farmers and I welcome the changes in this area which I hope will tighten it up considerably.

The Bill also sets out to deal with the offences of forgery and counterfeiting under Parts 4 and 5. Regarding forgery, clear definitions and details are set out regarding the copying or falsifying of documents or instruments for the purpose of dishonest self-gain. This area also needed to be updated. The type of offences envisaged by the section are, for example, the copying of material from tapes or disks or from the web. An example in this regard is the music industry, but I am unclear about how the legislation is relevant to it.

There has been a lot of debate on whether it is legal to download music from the Internet. I am unclear whether websites such as Napster – which has now moved to join another website and another company and so does not really exist any longer – are legal. Is one allowed download directly from the Internet? Is one allowed do that from a company within or outside the State? If there is a difference in that regard, it would involve issues of anti-competition. I would like the Minister to comment on that area.

I welcome the general thrust of the Bill. There is massive forgery of CDs and cassettes. One only has to walk to certain parts of the capital or the southern capital, from where I am come, to see forgeries on sale. This undermines the lawful demand and supply market and must be stamped out.

There are also forgery problems in regard to purchases made over the Internet by credit card. People are not confident about giving their credit card details over the Internet. This must be examined in detail on Committee Stage.

Part 5 of the Bill defines and covers the offence of counterfeiting money in quite substantial detail. This is particularly relevant at the moment as we move towards a common currency in Europe. The introduction of the euro will expose Irish people to the threat of criminals who counterfeit money from all over Europe. We will no longer just have to worry about Irish people counterfeiting the punt, but will also have to deal with organised crime gangs engaged in substantial counterfeiting operations outside Ireland. The exposure to that crime will increase significantly as a result of this. I am very pleased to see this area dealt with comprehensively and to see the penalties of ten years in prison or an unlimited fine. That is very welcome. This must be stamped out from the beginning of the introduction of the euro; otherwise, we will be heading down a very dangerous path.

However, due to the severity of the penalties, we must be careful not to convict people who mistakenly have counterfeit money. I am not sure that people will know how to recognise the euro at first. People who mistakenly find themselves in possession of counterfeit money need to be dealt with sympathetically, particularly during the introduction phase of the currency.

The Minister seemed to enjoy complimenting himself on the reduction in the overall crime figures in the Garda Síochána annual report of 1999. I agree with him that the incidence of burglary and larceny seems to have reduced, which I welcome. I compliment the Garda on achieving improved results.

I also compliment the Minister on his recent announcements in relation to CCTV. That will significantly aid the Garda in its fight against petty crime, street violence and, in particular, burglary and larceny. That is a very welcome development. The sum of £12 million is a significant amount of money to commit to this. I would like to see it extended further, as the project proves to be a success over time, as I am sure it will.

However, I remind the Minister that there is no real accuracy in commenting on crime figures unless one looks at the circumstances in the country at the time. As prosperity continues, unemployment falls and incomes rise, it is not unexpected for larceny and burglary rates to drop. We should ask ourselves if they are dropping sufficiently rather than whether they are dropping at all. It would be very strange and worrying if, as Ireland became wealthier, the number of people stealing to keep themselves financed increased. We need to put this into context.

In regard to the Minister's reference to the Prison Service, I welcome the increased number of prison spaces planned, particularly the 150 new spaces in Cork prison. It is the most claustrophobic prison I have visited for both prison officers and prisoners. The people working in Cork prison, who recently invited the Minister to a function, greatly appreciate the announcement of 150 new spaces. One or two of the prison officers referred to the Minister as the supreme leader. While that might have been tongue in cheek, it indicates their desperate need for extra space and their relief at finally getting it.

However, I was very disappointed the Minister did not refer to the need to prioritise rehabilitation within the prison system. We must not be satisfied to continue to provide more and more prison cells in which to lock up more and more prisoners. Instead, our priority should be to reduce the number of criminals who need to be taken out of their community and put behind bars. This is particularly the case for young offenders and many of the offenders involved in petty crime associated with drug use.

The percentage of people released from prison who end up back in the prison system a short time after being released is unacceptable. They are being failed by our prison system and our court system. Between 60% and 70% of people who leave prison end up back there. That is an outrageous statistic when we continue to build more and more prison spaces. It costs over £50,000 per year to keep a person in prison. Even from an economic point of view, if one wants to be cold about it, it makes sense to invest massively in rehabilitation to try to reduce the number of people who reoffend after they leave prison. We must target, in particular, young first time offenders because they are the easiest people to rehabilitate. Unfortunately, that is not happening to a sufficient extent.

This begs the question of how much of a priority the drug court process is for the Government. That process will start on a pilot basis in January, which I welcome. I have already asked the Minister if he will consider extending that across the country. I would appreciate correspondence on that. The drug problem in Dublin is different to that in other urban centres around the country.

In regard to the overall crime figures mentioned by the Minister, I want to refer to Deputy Howlin's statement that 38 murders were committed last year. Unfortunately, that figure is likely to increase for this year. While the overall crime figures may be down, serious crime, such as murder and rape, seems to be increasing.

Mr. C. Lenihan

This Bill is a major assault on white collar crime. It is timely and welcome legis lation. My constituency has been blighted by high unemployment and disadvantage, which have had consequences for crime levels. A perception has grown that the poor and disadvantaged are punished severely while white collar criminals get away free. This legislation will do a great deal to address this serious problem, which is one more of perception than substance.

I appreciate Deputy Coveney's comments. Uniquely, he is fresh blood in his party and he does not adopt the usual Opposition clichés adopted by his colleagues when they attack the Minister and his fine record of achievement in terms of reducing crime, increasing prison spaces and improving Garda numbers. These were the basic demands people made of us prior to the general election of 1997. Our promises to deal with their concerns were largely responsible for our election to Government. Those who canvassed at that election will recall the significance of the crime issue. I will not criticise the previous Government other than to note that the public was calling for action.

The Minister has delivered, both legislatively and in terms of resources and logistical improvements. The figures speak for themselves. The Minister has implemented a programme that was set before the people. He has been criticised for not introducing zero tolerance. Perhaps it was a useful slogan at the last general election, but if consideration is given to the legislation and the ever tougher regime the Minister is putting in place it will be clear that there is in practice a policy of zero tolerance.

This important legislation adds to the growing reputation of the Minister and his Department in terms of legislative output. It is an unsurpassed record and is one for which the Minister and his officials rightly deserve credit and acclaim. It is not often we get to praise public officials, but in terms of productivity, the officials in the Department of Justice, Equality and Law Reform deserve a pay increase because they have introduced an enormous quantity of legislation. While I am not indolent I would not like to work there because the officials are working at break-neck speed on complex legislation and are producing the goods.

The main purpose of the Bill is to produce a modern statutory code in the area of fraud and theft offences. To this end it consolidates and simplifies existing statutory provisions in these areas, some of which are over a century old and have in some cases become convoluted and overlapping in their treatment of similar or identical offences. While I welcome the Bill, it has been a considerable time since the publication of the Law Reform Commission report and other reports on which it is based. The report on the law relating to dishonesty was published in 1992 and that of the Government's advisory committee on fraud in 1993. It is inadvisable that the updating of the legal code in such important areas should be subjected to such protracted delay, for whatever reason.

The need for regular and speedy law reform is driven in many areas by the demands of a rapidly changing and ever more sophisticated economy that is growing with globalisation. It is eroding the old fashioned notion of sovereignty, with which the British are obsessed. In this connection the Bill's provisions regarding computer and other white collar crime are most welcome. It is a legislative first in this country.

The importance of the Bill is in its underpinning of support for a digital, knowledge-based and growing e-commerce economy. This digital revolution will provide the prosperity and jobs for succeeding generations. I advise Esat Digifone and other companies in a private capacity and I have discovered that the development of the digital platform is perhaps one of the most important areas in our business life. Few companies can ignore it.

We must jealously safeguard our success in this area and protect the basis of it. The number of computer-based crimes reported to the Garda is increasing at a rate of 100% each year. That is a startling figure. It is necessary to act and strengthen the law to prevent this. Hackers and code crackers have the potential to wreak havoc unless caught and punished severely.

Confidence is the essential ingredient in e-commerce. Without confidence in the systems, and their security, it collapses. Acting as I do for Esat Digifone, I do not wish to be unfair to Eircom, which has gone through a difficult period. The impact of the crashing of its system and the interception of the e-mail system it promotes and sells to the public was hugely damaging to the company in terms of customer confidence. Activities of this kind must be stopped. Unfortunately it is not easy, but we must work on it.

The Bill addresses many of the concerns of the Garda Bureau of Fraud Investigation, especially with regard to computer crimes. Irish companies such as Baltimore Technology have become world leaders in developing and selling the business applications of the new technologies. Systems security is a vital selling component in new technology and software products. In this regard, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Tom Kitt, should be congratulated on introducing the Copyright and Related Rights Bill. As a convenor on the Select Committee on Enterprise and Small Business, I played a part in pushing the Bill through the House. Many of Deputy McManus's colleagues were very concerned about some of its provisions. We are entering new territory in this digital area and some people have misgivings about the powers being enacted to address the problems involved, including the shifting of the burden of proof. We know that the Internet and the web allow for fast copying and the easy transgression of copyright and rights people hold because they have innovated and created a product.

Part 2 of the Bill contains new provisions relating to theft and dishonesty. I am happy that deceptions and unlawful use of computers is to be properly and specifically criminalised. A new sense of theft consisting of interfering with the property rights of an owner is now created, which supplements the existing provisions relating to the physical taking away of property.

Part 3 broadens the circumstances in which offences relating to stolen property are deemed to occur. The handling, possession and withholding of information relating to stolen property are now comprehensively treated. Part 4 updates the law on forgery, which at present goes back to the Forgery Act, 1861. The definition of what constitutes an instrument is substantially broadened and updated to take account of modern business practices. Is the Minister satisfied that the definitions are sufficiently comprehensive to include instruments under e-commerce systems, such as those containing encrypted signatures, or has this been adequately provided for in e-commerce legislation produced by the Government?

Part 5 provides against the counterfeiting of notes and coins, including those of the euro, even before they come into effect. That is a proper and prudential provision by the Minister. Deputy Coveney referred to fraud. The counterfeiting of notes will be a very serious problem with the euro. There has been a startling increase in the number of fake dollar notes in circulation around the world. The need to protect the euro from counterfeiters, who are always busy, will be a problem for the European institutions. Confidence in the euro will increase once the notes and coins are in circulation. People will then realise it is a real currency.

It is important to deal with fraud. Deputy Coveney mentioned organised crime syndicates which operate on the Continent of Europe. It is not a surprise that since the Berlin Wall came down a panoply of organised crime syndicates have appeared in the former Soviet Union and eastern bloc states. I worked in the Czech Republic, Poland and Hungary and I am aware of the insidious and dangerous criminal networks which operate out of those territories. It is important to safeguard against them. Some of our domestic fraudsters would find their ingenuity, diligence and ability to organise themselves, produce counterfeit notes and become involved in serious commercial fraud surprising. It is startling, for example, that two thirds of the IMF loans advanced to Russia when it needed money for investment purposes disappeared into thin air.

Part 6 of the Bill includes measures which are necessary to discharge our European Union treaty obligations and provides for the protection of communities' financial interests. Corruption by public officials is also covered. This, together with the Prevention of Corruption (Amendment) Bill which was recently before the House, will considerably strengthen the law in respect of this type of white collar crime. It will also act as a deterrent for those who wish to subvert our valued tradition of public service probity.

I am sure Deputy Boylan would agree that over the past three years the House has come through a difficult and traumatic period as a result of the establishment of the public tribunals at Dublin Castle. Members often do themselves a disservice by not pointing out the probity and honesty that has pervaded this House and our national institutions over the years. Although recent events are disillusioning to those involved in politics, it must be pointed out that only a small minority of people have brought the name of politics to a low ebb. It must be reiterated by all parties in Government and in Opposition that the majority of people who serve and have served in this House have done so on the basis of probity and public service. The public can be cynical. We see this in the low turnout at election time. We must, as practising professionals, point out the probity and honesty —

An Leas-Cheann Comhairle

The Deputy is moving away from the substance of the Bill. I do not mind a passing reference.

Mr. C. Lenihan

The reference is appropriate because we are talking about a Bill which deals with corruption by public officials. That is germane to our work. We are public officials, albeit elected ones.

Part 7 of the Bill deals with the investigation of offences and contains a new provision whereby persons may be compelled to produce documentary and other evidence which the relevant authorities may reasonably believe contains evidence of wrongdoing or the concealment of wrongdoing. This is a sharper and more subtle instrument than the blunt one of a search warrant on which the authorities have had to rely to date. This is important because it allows gardaí and others to deal with commercial larceny and white collar crime.

While I welcome this new provision, I have one quibble with the severity of the penalties proposed. I ask the Minister to take this on board when he refines the legislation as it moves through the House and the Seanad. A fine of up to £1,500 or 12 months in prison or both for failure to comply with a production order seems lenient in view of the financial magnitude of many white collar crimes. I ask the Minister to reconsider this. Such a fine is a drop in the ocean when one considers the type of financial fraud which can be perpetrated against financial institutions or the State, such as false claims for European subsidies. If we want to take on the corporate sector or senior executives of companies, we must ensure the sanctions sting them.

There is a strong perception, although it is wrong, that criminals from disadvantaged communities are punished and sent to jail while white collar criminals get off lightly or scot-free. A strong penalty must be imposed. Every day random judgments are made in the District Court by district justices and stiff sentences are imposed on people from disadvantaged backgrounds. Yet people look at the tribunals, for example, and believe that no one will go to jail. It is important to deal with that perception. A fine of £1,500 or 12 months in prison is not enough. We need to apply stronger measures in this area.

It is interesting and noteworthy that the Government is producing legislation on corporate enforcement. There are three agencies involved in corporate enforcement, the office of corporate enforcement, the Revenue Commissioners and the Companies Office. We also have a new enforcement officer. These agencies must ensure that companies comply with company law. We are also introducing criminal offences and proper criminal sanctions. However, we would not need an office of corporate enforcement if serious sanctions were imposed on white collar criminals. If the legislation the Minister is contemplating included severe prison sentences, it would not be long before the corporate sector got its act together.

As regards the money laundering Bill, a burden a proof is now required before a person can open a bank account. It is vexatious for law abiding citizens. I opened a bank account recently in my constituency. People are now required to produce a driving licence or passport before opening a bank account. Many people are annoyed at this, particularly if they know the bank manager. However, it is important to comply with such regulations. The bank must be confident the person lodging the money is who he or she claims to be.

Part 8 of the Bill deals with the trials of offences. Section 54 deals with the provision of information to juries. In many cases white collar crime is extremely complex, intricate and sophisticated and the provision of detailed information to juries, such as charts, diagrams and transcripts, will help in dispensing justice in long complicated trials. When I was a reporter I attended the Circuit Court in Naas in County Kildare where complicated and difficult fraud cases came before perplexed juries. Prosecuting gardaí would allege that an individual had defrauded a company of £12,000, £20,000 or £60,000. It would be impossible for the prosecuting counsel to convey to the jury the intricate detail of how the fraud had been perpetrated. This was commonly seen when one reported these cases. Quite often, I felt quite guilty reporting a case where somebody had been released because the jury simply could not get their heads around the prosecution case. It was tragic that people who were clearly fraudsters, who perpetrated a fraud against somebody or a company, walked free simply because the jury could not absorb the complicated financial information.

I am glad the Minister is forging ahead. He has an enviable reputation with regard to the legislation he produced. History will judge him and his Department to have supervised a great period in terms of the legal reform that occurred. No matter who comes after him, he or she will find it very difficult to surpass him.

Mr. Boylan

I wish to share my time with Deputy Perry. I welcome this opportunity to contribute to the debate on this Bill. It has been a worthwhile discussion. I agree with the last speaker, Deputy Conor Lenihan, in his reference to the Members of this House. Having been a Member for more than 13 years, I have the highest regard for the Members who are hardworking, dedicated people of integrity holding the highest principles. Unfortunately, we were let down by some very senior people who brought disgrace to the good name of this House. It is only right and proper that these people should be exposed, that the tribunals currently in operation in this city should continue and that every last penny of the fraud in which these people were involved is detected. They should be brought to a final and full conclusion and appropriate and proper penalties applied so that nobody will ever again be tempted to carry on in the manner in which these people did. I will leave it at that.

In the broad thrust of this Bill, we are talking about white collar crime. We should be very thankful it is not rampant. Occasionally people in positions of trust have been caught in crime, people involved with credit unions and perhaps the banking institutions, where customers would deal with them on a one to one basis in a very confidential manner and place their trust in them and discuss their very private matters with them. I agree with many of the speakers who said that the deterrent is not sufficient. There is a type of person, obviously with a split personality, whom one meets in everyday life. They are the nicest people to meet. They are highly placed in the various organisations in which they work but behind that same public image, there is a person who is probably under pressure, living beyond his or her means who has succumbed to the temptation to commit fraud. When it starts, it gets out of control and we are talking in terms of hundreds of thousands of pounds.

However, there is only one way to prevent such crime and that is by implementing some form of deterrent. A period of 12 months imprisonment is not a sufficient penalty in a case like that. Fines of £1,500, as the last speaker said, are not deterrents. People will weigh up the options and decide it will be worth it if they can get away with a couple of hundred thousand pounds for the sake of 12 months imprisonment or a fine of £1,500.

In relation to what Deputy Howlin raised earlier, the Minister should note that there is an outrageous attitude now in many of our courts where the media are being instructed not to report the name of the accused person. An accused cannot have these matters dealt with in private. Will there be public ridicule? Yes, and perhaps there will be a downside for the families, which is regrettable. There is nothing we can do about that. I regret that but if a person is caught, prosecuted and sentenced then the public are entitled to know the identity of that person. I cannot understand the circumstances of the most recent case, but it caused outrage yesterday when strict conditions were applied by the presiding judge. Not only was the person's name not to be mentioned but neither was his profession to be mentioned. Who is he hiding? We discussed this matter in the House before. It is time the Judiciary did its job and left the media to do its job which is to report. The public must know. Then crime will be stamped out. However, if there is to be a hidden face in our approach to crime, we could be on the slippery slope and that is not the road we want to go down. I know the Minister does not either.

In relation to the ordinary, every day crime about which people are concerned and the role of the Garda, I have the highest regard for the Garda. We have a marvellous police force doing exemplary work but often its work is thwarted, good investigative work, tracking down crimes that may not seem very serious to other members of the public but which are a serious matter to the victims of it. The Garda brings the culprit to court where the criminal receives a minimal fine or three months imprisonment and will be out in a month. That is not a deterrent. A fine of £50 is not a deterrent. The sentence must be appropriate to the crime. More recently, sentences for very serious crimes, which were handed down in my county to people who were not native to my area caused outrage – it just happened that the Circuit Court sat there. A sentence of three years imprisonment was imposed for a crime where a daughter, a marvellous young person, had the courage to say what had happened in her own home and what she had suffered.

An Leas-Cheann Comhairle

Deputy, there is a precedent that we do not comment on decisions by members of the Judiciary.

Mr. Boylan

I accept your ruling a Leas-Cheann Comhairle but such sentencing has become very prevalent.

An Leas-Cheann Comhairle

We do not criticise those sentences here because the courts are independent of the Executive.

Mr. Boylan

While I accept your ruling, somebody has to draw attention to what is happening. There is outrage. You are aware of that too. However, I hope the Minister will take note of my comments and I hope these decisions will be appealed.

In relation to the Garda, I have a figure of 756 indictable offences for the Cavan and Monaghan constituency. That is quite a low figure in comparison to the rest of the country. The detection rate is 55%. That bears out what I said about the role of the gardaí and the marvellous work they do. On the matter of gardaí on the beat, if there is a Garda presence in the community it will stop other crimes. There is respect for a Garda on the beat and his presence is a deterrent. However, and I have raised this matter at another forum, gardaí are being tied to their barracks doing office work. That is not what they are qualified for and not what they entered the Garda force for – to sit behind a desk stating whether a person is qualified for a licence, or filling in applications forms for gun licences. That can be done by people who do not necessarily have the qualification of a garda. A clerical officer would be quite suitable and the gardaí that are so needed and are so short in numbers would be freed up. People say that when the gardaí were on the beat walking the streets, there was respect for law and order. We must get back to that old-fashioned manner of maintaining law and order.

In relation to everyday housebreaking, it is traumatic for any family to wake up in the morning and find that their house has been burgled. It happened in my neighbourhood recently in a business premises where the person hid and was inside when everything was locked up. I have no doubt that the gardaí will find the person responsible. However, as the gardaí have said to me umpteen times, when they go to court with all the work done, a judge will decide on the basis of a crime being a first offence and will apply the Probation Act. That is nonsense. People know when they are doing wrong. If criminals are duly sentenced and fear and respect the law, then the job of the gardaí will be made all that much easier.

With regard to people making their escape across the Border, we must have full co-operation with the RUC with regard to detection and vice versa when we are dealing, for instance, with people coming south from Northern Ireland for three or six months until things cool down. The Border cannot be a means of escape for people who have committed serious crime. If we approach it in that manner, I have no doubt we can succeed. I fully support the measures the Minister has put before us and I reiterate what the general public is saying – that they are not satisfied, when people are apprehended, that sufficient deterrents are applied.

If there is a scarcity of places in our institutions in which to hold young people, it is for the Minister to ensure that there are sufficient places. Good work is being done in Loughan House and skills are taught to young people. That is vitally important and may help to get them back on the right track. I am aware of two cases where an excellent woodwork teacher encouraged people to develop a skill they did not realise they had, and I believe they will be very successful. Such training while in detention is very important for young people. At the same time, we cannot turn places like Loughan House into hotels. While those in detention can benefit from training programmes, the regime must be such that they will not want to go back.

Mr. Perry

I am delighted to speak on this Bill, the purpose of which is to consolidate the law relating to dishonesty and fraud, including white collar and business fraud. At the bottom end of business, in small companies, the amount of fraud detected was about 2% – unfortunately in this area fraud is not detected and prosecutions are rare. That is important for certain areas of business. Instilling an ethos of honesty and accountability in business is also very important. The fact that the Minister is updating the Larceny Acts of 1960, 1990 and the 140 years old 1861 Act is very important.

The victims of crime must also be considered. In Sligo-Leitrim the 30% detection rate for indictable offences is the lowest in the State. The Border region has the highest national occurrence of repeat household burglaries at 21%. Over 70% of assaults committed in this region involved personal injury, the highest percentage in the country. In Sligo-Leitrim in 1999 there were 659 indictable offences with a detection rate of 30%. I have the highest regard for the Garda Síochána who do extraordinary work, but much depends on the co-operation of the public in identifying problems.

Parents are concerned about how safe it is for young people to go out and enjoy themselves at the weekend without fear of being harassed or attacked. At the same time many elderly people living alone are living in fear. That is very sad because the young and the old are the most vulnerable in society, and in rural Ireland there are large numbers of elderly people who have a great sense of independence and love to live on their own. It is a difficult problem. I know much has been done in terms of providing personal alarms and so on, which is very important, and that the Minister has encouraged investment in the security of elderly people in their own homes. It is important that he should promote that. Community Watch is an invaluable service which involves neighbours in an early detection system. Elderly people can be charged for that. The Minister should consider the possibility of providing that service free of charge. Private companies can be funded by health boards, but services like these should be far more accessible. The fact that the Minister is providing funding for locks and other security devices is also important.

Parents need to be assured that when their young people go out at the weekend they will not be mugged for no apparent reason. Flash points for violence include fast food outlets where people converge late at night after pub closing time. The question we should be asking is whether pubs and night clubs serve alcohol to people who are already intoxicated. Being a vintner, I realise the importance of a sense of responsibility in the trade. It is important that the laws relating to licensed premises be observed. I saw the advertisement on television yesterday for the Christmas anti-drink driving campaign which is being carried on in co-operation with Northern Ireland and that is very welcome.

Parental support and co-operation with the Garda Síochána is necessary when it is discovered that children have been intoxicated or have been involved in street violence. It is important that somebody should talk to parents in such cases because they can go on the defensive. To solve problems at an early stage and help to put children on the right road, it is very important to have parental involvement in the corrective measures because, although we have the Garda Síochána, Castlereagh Prison and the setting up of the Prison Service, in which the Minister was involved, putting someone in prison is not always the answer. It is also important to have gardaí available in sufficient numbers at critical times, for example, at weekends and after night club closing times. That is also important in the context of court appearances.

Consultation with local authorities is vital. I was disappointed that CCTV cameras were not being considered for Sligo because I heard the Minister say in a radio interview how successful they are. The Minister, with local chambers of commerce, should promote these cameras where he feels they are necessary and give adequate funding to install them in large urban areas because, as he correctly stated, they have been very effective.

An Leas-Cheann Comhairle

The Deputy is moving away from the substance of the Bill. A passing reference is acceptable.

Mr. Perry

The Bill relates also to public order. It deals with theft, obtaining services or making a gain by deception, unlawful use of a computer, false accounting and so on. I am glad this Bill embraces the latest technologies. Small crimes are generally detected, but white collar crime within business is problematic. The Minister should make available tax concessions to people in business who invest in security systems because the cost of security systems is substantial and security pays, whether it is in a night club or anywhere else. If there is a hold-up, video evidence means there will be traceability and it can be very beneficial in a court prosecution.

The primary purpose of the Bill is to update and consolidate the law relating to dishonesty and fraud. Unfortunately there is a considerable amount of dishonesty. In the past people had a sense of honesty, wherever it came from, whether from religion, their general upbringing or what they learned within the school system. Dishonesty is learned at a very young age. If people feel their dishonesty is condoned, the seriousness of their dishonest acts will gradually increase. Living in an era of massive economic wealth, we must realise that honesty and propriety are the backbone of the State's success and we must instil proper values and standards at an early age.

Some 658 indictable offences were detected in Sligo-Leitrim where the detection rate is 30%. Detection is very important but prevention is equally so. We must not ever forget the victims of crime. It can be very difficult for victims to go into court to make statements and be cross- examined. The victims can often feel that it is they who are on trial. We must reassure them that the law exists to support them.

We must ensure that old age pensioners who wish to remain living in their local areas are guaranteed State protection and we must provide every possible resource to them to facilitate that. The Minister should consider providing increased funding for the purpose of investment in locks, doors, alarm systems etc. I appeal to him to pay particular attention to the very young, the very old and victims.

Mr. O'Donoghue

I thank Deputies who contributed to what has been a very interesting debate on this important Bill. I said at the outset that the Bill sets out clearly, for the first time, the law on dishonesty to replace the often confusing distinctions that exist in the current law relating to larceny which derives from the common law and from the Larceny Acts of 1861, 1916 and 1990. This new clarity will benefit everyone involved in the criminal justice system. I venture to suggest that it will be seen by those engaged in crimes of dishonesty as removing the opportunities which may currently exist for sowing confusion about such matters as whether a larceny has really been committed or whether any particular person may be guilty of larceny or handling. Bringing clarity to the law will also help to ensure continued confidence in its operation.

The Bill includes new offences to replace existing offences, including larceny and embezzlement as well as matters not properly covered at present. There are also measures to assist in the investigation and prosecution of such offences. The Bill contains an entirely new offence of theft to replace the current range of offences in this area. Under the Bill, theft will consist of dishonestly appropriating property without the owner's consent, which means adversely interfering with the proprietary rights of the owner, and with the intention of depriving the owner of the property, whether temporarily or permanently. This differs significantly from the current law relating to larceny which requires physically taking away property with the intention of permanently depriving the owner of it. This has presented evidential difficulties for the prosecution in proving the various elements of the offence. In addition, it gave rise to the requirement to specify separate offences for different types of stealing. Thus, we have such offences as embezzlement, obtaining by false pretences and fraudulent conversion, to mention a few, to cater for other types of stealing.

The Bill contains other offences to deal with dishonest behaviour not covered adequately by existing law, including making a gain or causing a loss by deception, obtaining services by deception, making off without payment, unlawful use of a computer with the intention of making a gain or causing a loss and false accounting. These are aimed at types of behaviour which may have become more common in modern society.

The Bill re-enacts, in an updated form, the existing offences of burglary, aggravated burglary and robbery with maximum penalties of an unlimited fine and/or up to 14 years imprisonment for burglary and up to life imprisonment for aggravated burglary and robbery. The offence of handling stolen property is also largely a re-enactment of the current position and is committed by a person who receives stolen property or undertakes to assist in its retention, removal, disposal or realisation knowing it to be stolen or being reckless as to whether it is stolen. A departure from the current position is that stolen property includes property which has been unlawfully obtained otherwise than by stealing.

An improvement on the current law on stealing and handling is the inclusion of a new offence of possession of stolen property. This is to cater for difficulties which can arise at present where a person is found in possession of stolen property but it is not clear whether that person has stolen it or whether he or she is a handler. This is an important distinction because of the fact that both offences are mutually exclusive. The real difficulty in such situations is that the Garda know the property is stolen and know that it was in the possession of the individual concerned but have difficulty determining whether he or she stole or received it. The creation of a new offence of possessing stolen property will remedy the situation by providing that a person will be guilty of possession where he or she, without lawful authority or excuse, possesses stolen property knowing it to be stolen or being reckless as to whether it was stolen. If the Garda can prove either of the other offences, which carry heavier penalties, they are free to charge them. At any rate, the later provision in the Bill for alternative verdicts will ensure that the Garda are not hamstrung in their choice of charge.

Those parts of the Bill dealing with forgery and counterfeiting re-enact in modern form the current offences contained in the earlier Acts which are being repealed. The counterfeiting provisions also provide for protection against counterfeiting of euro notes and coins even before these are issued. Other new provisions are contained in the part of the Bill relating to the protection of the European Communities' financial interests, which are mainly designed to tackle fraud and corruption.

In addition to provision for the granting of search warrants the Bill contains a number of innovative measures to assist in the detection of offences of dishonesty. One of these is the section allowing the court to make orders for the production of evidential material, which is a less intrusive way of obtaining evidence than the use of search warrants. In terms of the trial of offences, a new provision will allow a judge to provide information to juries in the form of documents, charts and transcripts to assist them in their deliberations. This will be especially helpful to a jury in complex cases, particularly those involving fraud.

Deputies Shatter and Howlin expressed concern about section 6. Deputy Shatter referred, in particular, to the broadness of its provisions and cited the example of business ventures which simply go wrong and which may result in aggrieved parties seeking to rely on this section. Taking on board his concern, I assure the Deputy that in spite of his misgivings, the inclusion of the word "dishonestly" is intended to address this matter. I will listen to any suggestions the Deputy may have in regard to how the section might be improved.

Deputy Shatter also raised concerns about the application of section 7 in certain circumstances. Obtaining services by deception is, to some extent, a feature of modern life. Service providers have found themselves left without any apparent remedy in some situations in which people have failed or refused to pay for services obtained. The section clearly requires a person to dishonestly obtain services, with the intention of obtaining a gain or causing a loss to another, before a remedy can be obtained under the section.

Deputy Shatter referred to section 51(4) and asked why separate takings are limited to three and why the period covered is limited to six months. The rationale behind this is to ensure some proximity in terms of goods which are stolen and in terms of time between the separate takings. It will also ensure that proceedings for stealing offences will commence within a reasonable time which will clearly be advantageous for both the witnesses and the court.

Deputy Shatter referred to a recent Supreme Court case regarding the practice of judges to place review dates on their sentences. While this issue is not directly relevant to the Bill before the House, I assure the Deputy that it will be carefully examined. The prison service Bill, currently being prepared in my Department, will contain provisions relating to a parole board. The Deputy will see the detail of that after the Government approves the Bill.

Deputy Howlin asked me to outline where the Bill's provisions depart from the recommendations of the Law Reform Commission. I am sure he recognises that the recommendations of the commission followed from the consultation paper on the project and the report recognises the difficulties in trying to frame legislation to respond to the problems it identified. When the recommendations are examined in the context of preparing the Bill to give effect to them, there must be some modification to ensure the terms of the Bill are workable and practical and pass the test of proportionality. I assure the Deputy that the Bill gives effect to the report of the Law Reform Commission in substance, even if it departs from the letter of some of its recommendations.

Deputy Howlin also raised the provisions of section 28 which deals with custody and control of certain false documents. I am considering further the list of documents which should be included. I categorically state there is no intention to penalise refugees – the section is clearly aimed at persons who have a dishonest motive over and above any genuine fear of persecution if returned to the country from which they have fled.

The issue of justice being administered in public was raised, though it is not directly relevant to the Bill. There are constitutional provisions in this regard, as well as legislation to restrict reporting in certain circumstances. There may be occasions when the courts feel there should be restraints in other cases in the interests of the administration of justice. Such occasions do not arise very often and where they do there are procedures for challenging such orders. Members of the House will know of occasions in the past where this type of order has been successfully challenged.

Deputies have correctly pointed out that detailed examination of the Bill can take place on Committee Stage. I look forward to debate on amendments which may be put forward. Deputy Coveney asked about pilot drug courts, which will be implemented in the north inner city of Dublin in January, and asked if they can be extended to Cork. I will certainly give favourable consideration to doing that at the earliest possible opportunity. It is important that the courts should be available in affected parts of Cork.

Such a major reform of the law will obviously give rise to calls for additional measures to be included or for clarification on certain matters. I have endeavoured to give Deputies a reasonable guide to the Bill, providing more detailed explanations where it appeared necessary and attempting to reply to issues raised by them. I have no doubt that there are many other issues which I have not touched upon or addressed as fully as Deputies would have wished. This is unavoidable given the nature of the Bill, which is quite complex in parts.

I assure the House that the fact that I did not have the opportunity of going into the provisions in greater detail should not be taken as an unwillingness on my part to meet the concerns of Deputies. I will certainly examine amendments tabled by Deputies and assure them that if I am convinced the Bill can be improved by their inclusion I will be only too pleased to accept them.

Regrettably, there is never sufficient time at this stage in the consideration of legislation to answer all concerns regarding the Bill, which is comprehensive and complex. There will be time on Committee Stage to go into detail in explaining the intention and effect of each section, each of which is important in its own right, and I very much look forward to doing so.

I again thank Deputies for their contributions which were quite valuable and incisive.

Question put and agreed to.