Before Committee Stage begins, I want to inform the House that amendments Nos. 25 and 26 have been ruled out of order as they are not relevant to the Bill as read a Second Time.
Larceny Bill, 1989: Committee Stage.
Section 1 agreed to.
NEW SECTION.
I move amendment No. 1:
In page 2, before section 2, to insert a new section as follows:
".—The Principal Act is hereby amended by the substitution in section 21 of ‘Director of Public Prosecutions' for ‘Attorney General or in case that office be vacant, of the Solicitor-General'.".
This is a simple amendment dealing with pre-independence legislation, the 1916 Larceny Act. What it seeks to do is to update the legislation in referring to the person who is responsible for the prosecutions — namely, the Director of Public Prosecutions — and to substitute that for the old British designation of "Attorney General" or "Solicitor-General". It is really updating a piece of legislation in order to benefit the principal Act.
This amendment is not necessary. I direct the Senator's attention to section 3 (1) and 3 (2) of the Prosecution of Offenders Act, 1974, which lays down the function of the Director of Public Prosecutions in these matters. The relevant subsections of that Act read as follows:
3. (1) Subject to the provision of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this section, and reference to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly.
(2) The functions capable of being performed by the Attorney General immediately before the commencement of this section in or in relation to any criminal matters, or to election petitions or referendum petitions, to which the Attorney General is a party and which have not then been concluded shall, upon such commencement, be performed by the Director, and references to the Attorney General in those proceedings shall be construed as references to the Director, and any act or thing done in step taken by or on behalf of the Attorney General in or in relation to those proceedings shall be deemed to have been done or taken by or on behalf of the Director.
The amendment is not necessary, since what it purports to achieve is already the law of the land. On that basis I am sure the Senators will agree to withdraw the amendment.
I will accept the Minister's clarification.
Amendment, by leave, withdrawn.
SECTION 2.
I move amendment No. 2:
In page 3, between lines 24 and 25, to insert the following:
"(5) The term ‘appeal' in subsection (4) includes an appeal or application to the European Commission or Court of Human Rights."
What I am seeking to do is to update the old legislation and to refer to what the situation is at present in relation to our membership of the EC and our position in relation to the European Commission and the Court of Human Rights where there are further areas of appeal and that the Act would specifically incorporate that authority and that power of appeal in those specific areas.
I have to oppose this amendment. It is neither necessary nor appropriate to provide in the Act for the order of the domestic court disposing of the offending article or articles to be stayed until such time as an appeal to the Commission on Human Rights or the Court of Human Rights itself is determined.
We are giving the court a discretion whether or not to order the confiscation of the offending articles and I think that conforms to the principles of the First Protocol of the convention. In any event, before the provisions of the European Convention can be invoked, the applicant is required under its provisions to invoke all domestic remedies and it would not be appropriate to have such a provision included in the Bill. No similar provision was put forward in the context of the recently enacted Prohibition of Incitement to Hatred Act, 1989, and the Video Recording Act, 1989, where the court has a similar power to the one proposed in the Bill.
Again, in any event, the amendment would not work because a person complaining to the Commission or court does not appeal against the conviction, so there is no relevant "ordinary time" limit to which section 28 (4) could apply.
I am still not satisfied. I think it is very useful for a citizen to know and have it stated in the legislation the full entitlements that are there. While it may not have been put into either the Incitement to Hatred Act or the Video Recording Act that does not mean that it is still not a desirable amendment and that this legislation would benefit from having it specifically included. I would ask the Minister to reconsider it. Both this legislation and all future legislation should include references to the rights of appeal and not just within the domestic scene, because the domestic scene is now becoming very much part of the European scene and we are subject to European law as well as being subject to domestic law. This would be very much the case from 1992 onwards. I think it is appropriate that all relevant legislation, where a right of appeal is incorporated or is ensconsed, should have it included specifically so that both the person involved and the legal adviser are aware of it and it is easily available and accessible to them.
I accept that what the Senator has in mind is to inform the public in relation to their rights in the Court of Human Rights. Before the provisions of the convention can be invoked the applicant is required under the provisions of the convention to invoke all domestic remedies and it would not be appropriate to have such a provision included in this Bill or in other Bills. I would suggest to the Senator that, while I accept what he is trying to achieve is to inform in terms of the widest possible appeal, really what we are dealing with here is domestic legislation.
Amendment put and declared lost.
Section 2 agreed to.
NEW SECTION
I move amendment No. 3:
In page 3, line 24, before section 3, to insert a new section as follows:
.—Section 29 of the Principal Act is hereby amended by the deletion in subsection (3) of the words ‘or any solicitation, persuasion, promise or threat offered or made to any person whereby to move or induce such person to commit or permit the abominable crime of buggery, either with mankind or with any animal.
The intention here again is to bring the legislation up to date. Many provisions like this are outdated and have been superseded by decisions of the European Court of Human Rights, both in the Dudgeon case and in the Norris case. It would be appropriate here that, while we have not brought into operation legislation to implement the findings of those cases, particularly the Norris case, at the same time when the opportunity does arise we should take it to delete from the relevant legislation specific references which we should now regard as not being the law of the land. I would advise the Minister to take this opportunity to delete that section.
This amendment is opposed. The primary aim of the Bill is to replace the existing offence of receiving stolen property with a new offence of handling stolen property. As such, it follows the approach which the Law Reform Commission took in deliberately selecting this particular aspect of the law of dishonesty for special attention and modernisation in advance of its wider consideration of the changes that might be made in the law of dishonesty generally.
This Bill does not attempt to deal with other matters in the Larceny Act, 1916, except in that it changes some of the maximum penalties. The reason for this is simple. It is because the commission's report on the remaining aspects of the general law of dishonesty is awaited. When that report is received, matters such as the one under discussion and others which are the subject of amendments to the Bill, will be considered.
In the case of the present amendment there is another reason for not amending the section in question in the manner proposed at this time. That is because the effect of the Senator's amendment would be to decriminalise the blackmailing of homosexuals. Section 29 (1) (iii) makes it an offence to extort by threats to accuse the blackmail victim of "any crime for which this section applies". The crimes are listed in subsection (3). Amending the list of crimes in the way proposed in the amendment would have exactly the opposite effect to that intended by the Senator.
I am glad to hear the Minister say that the matter is being looked into and that hopefully legislation will be introduced. I do not quite accept his reference to blackmailing that could take place if the subsection was deleted; I think that is more of a theoretical point of view and that it would be desirable to decriminalise it. However I am satisfied with his statement that the matter is subject to investigation. Do I take it that there is an attempt to introduce legislation which would be enabling legislation in relation to the Norris judgment?.
The matter of the Norris judgment is being looked at in relation to the Law Reform Commission report which goes into a further Law Reform Commission report and I am waiting on some advice from them in relation to that.
Amendment, by leave, withdrawn.
SECTION 3.
Amendments Nos. 4, 6, 7, 8, 21, 22 and 23 may be discussed together. Amendments Nos. 4, 6, 8 and 21 are related. Amendments Nos. 7 and 23 are alternatives for No. 6 and No. 22 is alternative for No. 21.
I move amendment No. 4:
In page 3, line 27, after "property" to insert "of a value of over five hundred pounds".
I had not intended to dwell on any of these amendments as I was not going to delay the House. I see a connection between a number of them. The intent of amendment No. 4 was to provide for a specific value of property, that it would be a value of over £500 — in other words, that it would be something of a reasonably substantial nature. We are talking about a person... "knowing or believing it to be stolen property shall be guilty of a felony and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years. In other words, it is a colossal penalty and there is no specific value of property. I would much prefer to see legislation being more defined — we do not want it too rigid — but certainly it is very difficult to see a situation where you have property or a quantity of property to an unlimited value and you have a very specific defined period of imprisonment.
Legislation is being taken on board again and again that is imposing prison sentences without any consideration for their merit, in the first instance, for the length of time that is actually specified and that what we have been having are two alternatives — and they are not really alternatives — a sentence of imprisonment or the imposition of a fine. By and large it is people who are subject to imposition of a fine who are unable to pay that fine and end up going to prison. We are filling our prisons and our prisons are becoming very overcrowded. Last week we had that business about the appalling conditions under which many of our prisoners are being detained. We are at the same time, increasing the penalties. I am delighted to see that we have done away with some of the more horrendous penalties that existed, penalties like the death penalty — I do not think we will see it again — and penalties such as whipping.
This legislation does not purport to add to those specified in the old legislation. But what it should do is seek to add the variety of possible alternatives that are being explored and are experimented with here to a degree and certainly in other parts of Europe and throughout the world. For the benefit of the judge who sees before him the alternatives of either a prison sentence, a fine or both, it is our responsibility as legislators to present him or her with a further list of options so that he or she could say, if this were a question of handling stolen property where there is no specified amount or value, say: "Well this is a more appropriate one to be sanctioned by a community service order". He could say that it is a more appropriate one to be sanctioned by compensation and restitution or he could say that it would be probation. Probation is not written into the legislation. As legislators why can we not show the way to our judiciary? If the Judiciary do not know the range of alternatives that is available and we do not specify in the legislation, how can we expect the Judiciary to go out of their way to see what provision is there for community service orders, for example? They are not going to look into it in any great degree because they have not been pointed in the right direction by the legislators.
What I am seeking to do here in this legislation is, first of all, to point out the rather dangerous extent to which we are specifying increased prison penalties without specifying the exact crime — and I say this carefully — the extent of the crime. We specify the nature of the crime — it is larceny or handling stolen goods — but we do not say to what value, how serious the crime is, but we do say how serious the prison penalty is going to be.
Secondly, what I want to do is to try to direct our legislation into the business of giving advice and giving directions to our Judiciary. I believe we have a responsibility in this area. It is time we started initiating this procedure. It is time we started showing the way to the Judiciary. I would be very pleased if the Minister would at least accept the principle of what I am saying. If he accepted the amendments I would be even more pleased. But if the Minister is prepared to accept the principle underlying these amendments and if he is prepared then to choose different wording that would give effect to the principle of alternatives and, in particular, that they be specified in the legislation, I would be very happy. It is a matter that has to be addressed, that should be addressed and that the Bill would certainly benefit in terms of, its implementation in relation to the Judiciary if these amendments were included.
In regard to my amendment No. 7, it is very important that in the whole area of conviction for theft or for receiving or handling of stolen property the court should have the ability to order compensation where appropriate to the victims of the crime. Many people are left without their life savings while the people involved enjoy the proceeds of their crimes. This is unfair and should be corrected. We should use this opportunity to do so. Many old people have had their small few valuables stolen and they are often highly distressed and frightened for the rest of their lives as a result of the theft. These people should be compensated where appropriate by the people who perpetrate these crimes. In this way we can reduce the benefit of their evil deeds to the people who steal.
This is only natural justice. Compensation should be paid both for the loss of the property and for the distress caused to the victims. It is a very traumatic occurrence to have one's residence broken into and one's personal effects upset. This is distressing even without a violent act, but at a time when old people are assaulted, tied up and even clergymen killed, we must have a stronger approach to assisting the victims of crime. Many criminals, godfathers, handlers and receivers are well off from the proceeds of their crimes. Many of these go to jail for a period of time and then return to society and live off their evil deeds for many years — in other words, the loot is waiting for them when they return from prison. Such an approach would have a double effect. It would compensate the victim — a person should be compensated by the handler of the goods regardless of whether they are the original takers. I also believe that compensation will be a deterrent, that when people leave prison they will know that they will not live off the profits of their ill gotten gain.
On an unofficial basis, the courts are applying this in some cases. I think it should be put on a statutory basis and even extended from the present way it is being approached, that when the courts are dealing with handling and receiving they should have the power to consider compensation for the victims.
Amendment No. 22 proposes that there should be the same penalty for receiving and handling stolen goods as there is for larceny, that the same penalty should apply to both offences. The Minister is right to show how serious the offence of handling and receiving goods is in his approach to sentencing. We should not under-estimate the seriousness of the original crime of taking the property but should equate both offences, depending on how the courts see the seriousness of the individual offence. Similar sanctions should apply for both the original act of taking the goods and for handling and receiving. In fact, the Law Reform Commission in their wisdom stated that similar penalties should apply to handling and to the act of larceny. The seriousness of the offence of larceny should not be understated. It is often accompanied by violence and threats of violence, which create great distress. Our abhorrence of this crime should be reflected in adopting a sentence similar to that being applied to receiving and handling.
I want to support Senator Neville in relation to compensation for victims. It should become a principle and a practice and a provision in our legal system that where possible victims should be compensated. Restoration in kind would be a very effective deterrent to the criminal. From the point of view of the victim, it would be a correct process.
Senator Neville's proposed amendment would greatly enhance the Bill. It would be in all of our interest to establish the principle of compensation for victims as part of our legal system. It would reduce crime and reassure the people who over the years have been at the mercy of villains whom we are all anxious to bring to justice.
First of all, the amendments are opposed. Amendment No. 4, which is related to amendment No. 8, would, if accepted, make the task of the Garda in their operation of the new provision unbelieveably complicated and I have no hesitation in rejecting it for that reason alone. Suppose, for example, gardaí come across a handler of stolen property. Under the section as it is proposed to amend it, they would have to perform an exercise in valuation before they could decide which way to proceed. If they can be sure that the value of the property which they suspect is stolen property is less than £500 then they would proceed by way of summons. If the value of the property is over £500 then they can proceed to arrest the offender on the spot. The provision of the Bill is specifically designed to render all handling offences felonies so that common law powers of arrest without warrant shall apply to all cases of suspected handling. That is as it should be. Furthermore, the courts would be able to exercise their discretion within the limits of sentence set in the Bill in arriving at a suitable sentence in each case having regard to all the relevant factors, including the market value of the property in question.
Amendments Nos. 6 and 21 seek to provide a maximum term of imprisonment on a handling charge of seven years. Amendment No. 22 proposes to increase the maximum term of imprisonment for the other larceny-related offences to 14 years, the same as is proposed in the Bill for handling offences.
The Law Reform Commission recommended that the same sentence should be provided for larceny and handling offences. The present maximum sentence for receiving is 14 years imprisonment after conviction on indictment, whereas the maximum sentence for simple larceny is five years. The commission suggested that a ten-year period might be appropriate for these offences.
The Government decided to propose that there should be a standard maximum sentence of ten years imprisonment on conviction or indictment for larceny and larceny-related offences. In doing so they are giving partial effect to the commission's recommendations. However, the Government consider that the present maximum sentence of 14 years should continue to apply in the case of handling offences. This differential reflects the more serious view which society takes of the dealer in stolen goods who, by acting as a fence, is responsible for generating many of the primary offences of larceny, burglary and robbery which are committed in order to meet the demand.
When I originally introduced the Bill I referred to the nightly pillage which is taking place in our homes, factories and industrial estates and I have no doubt that these crimes are committed to order and that particular areas and goods are targeted. That is why the differential should be maintained as proposed in the Bill.
The object of Senator Neville's amendment No. 22 is to standardise at 14 years the maximum penalty for all larceny-related offences, including handling. If this is to be the case, how are we to reflect the more serious nature of handling offences? Are we to increase the term for those offences to 18 or 20 years? I do not think that would be right.
The Government's approach is correct, that is, to accept what the commission have recommended for all such offences except the handling offence. The purpose is to send a clear message to the generals of crime that society emphatically rejects their activities and is prepared to single out their nefarious activities as deserving of more severe punishment.
As regards the reference to community service orders in Senator Costello's amendment, this is not necessary as the legislation providing for such orders as an alternative to imprisonment in suitable cases stands on its own. There is no need to import a reference to this alternative form of punishment into this Bill.
Amendments Nos. 6, 7, 8, 21 and 23 deal with the question of compensation. The main purpose is to enable a court to order the payment of compensation by the offender, mainly in cases where he is the thief or handler of stolen property, to the victim. As such, they follow the recommendations made in the Law Reform Commission's report in paragraph 151, page 110. I have a certain sympathy with the thinking behind these amendments and, as I indicated in the other House when similar amendments were being discussed, the principle underlying them is certainly not opposed. Having had the opportunity of considering the matter again, I must say that I am more convinced than ever that this is something that has to be teased out in greater detail.
I would much prefer to deal with the whole question of compensation in criminal cases in one comprehensive Bill. In my view it is generally preferable to consider the matter as a general issue in the context of all crimes and that I intend to do. One of the reasons I favour this approach is that the Law Reform Commission have recently produced a discussion paper on the subject of confiscation of the proceeds of crime. This is a matter which is very closely related to the subject matter of these amendments and it illustrates that the question of compensation is just one element of the problem. The commission document discusses such matters as the relationship between confiscation, restitution and compensation.
All things considered, pending further examination of the matter, we should be content to allow the present informal system of compensation which operates in the District and Circuit Courts on a purely discretionary basis to continue for the present. I am referring to the practice where the justice or judge will defer a decision on sentence in suitable cases to give the offender an opportunity to make such recompense to the victim. I have noted the views expressed on the subject in the House today and, indeed, in the other House last December, and I reiterate my intention to have legislative proposals prepared which would deal with this question in a comprehensive way rather than on an ad hoc basis.
Specifically with regard to Senator Costello's point, I want to make it clear that judges and justices in our courts are well aware of the full range of options available to them in dealing with offenders including community service orders and probation. I am satisfied that the system of community service orders as a substitute for imprisonment is being used more and more by the courts and I am delighted at the continuing and growing success of the scheme. I repeat that there is no need to specify this alternative each time imprisonment is mentioned in a statute since that is taken care of in the legislation which set up the community service schemes.
I am not satisfied with the Minister's reply. It is certainly not satisfactory simply to say that judges and justices are well aware of the range of alternatives. What we have are two specific sanctions in legislation and all our legislation has only two types of sanctions — a fine or a term of imprisonment.
If we are directing the Judiciary and in particular the justices in the District Courts, which is where most of this legislation will be dealt with, we must, if we are serious as legislators, direct them where to go. The Minister says that they are aware of community service orders. I cannot accept that. We have a very ad hoc system of community service orders, which is operated and administered in a totally inadequate fashion. There is no good in our saying that it has been established. I believe — and I hope the Minister can correct me — that he is saying that it should not be put into the legislation simply because the structure is not adequate if judges on a regular basis were to use that alternative. There simply would not be the means to do it, because the structures have not been established and the back-up to that sanction has not been provided with the finance, the procedures and the personnel that are deserved.
We have a responsibility as legislators to provide the alternatives. They are not specified in the legislation. Why are some specified and others are not? Can the Minister answer that? Why is it good enough simply to say the judges can impose a fine or a prison sentence? What is wrong with mentioning the other range of alternatives if they are real alternatives? If the Minister would answer that perhaps I would be satisfied to a degree.
I am pleased with the Minister's statement that he is looking into the whole area of compensation. It was a retrograde step virtually to eliminate that system in recent years and not to cater for the victims of crime. The judicial system caters for them only in so far as it requires them as witnesses, very often in difficult circumstances, but it does not cater for them in terms of financial or any other form of support.
Senator Neville's amendment in relation to compensation is a very important one and should be accepted. There is no reason why in this updating of the Larceny Act — unfortunately the Bill is merely tinkering with the substance of the Act — we should not seek to improve the Act. This is one area in respect of which we can improve it. Another area is the one I have been concentrating on, namely, the specification of a range of alternative sanctions. I would like the Minister to address those matters to a greater degree.
I would like to welcome the Minister's commitment to look at the area of compensation. I trust that this will be done as quickly as possible because it is an area that is of growing concern and discussion.
On amendment No. 22, I would like to state that my approach was that the act of larceny should be treated on the same level as that for the the receiving or handling of stolen property. In many instances the person who commits the larceny may be the receiver also. Could he not claim in such circumstances to be treated as the person who committed the original act? I did not mean that there should be an increase in sentence from 14 to 18 years for the receiver or handler of stolen property. Both should be put on the same level because the act of larceny often has undertones of violence even though the victims may not be present in the house or wherever the act was committed.
I would ask that the amendments be withdrawn. Amendment No. 4, in the name of Senator Costello, proposes to insert "of a value of over five hundred pounds". We must not lose sight of the basic principle that whether it is £1 or £10 to bring value into it is dangerous. Many of the people who are committing such crimes start off with stealing £1 or even a bar of chocolate and often move into the bigger bracket. It is moving away from a basic concept of law to the concept that you might as well be killed for a sheep as for a lamb. It would be a very dangerous amendment to bring in. I would ask the Senator to reconsider.
The Senator also mentioned the filling of prisons. From my experience, having operated in courts for the last 12 years, the position appears to be that the prisons are not being filled with people who commit minor crimes. In fairness, the district justices do in their discretion and wisdom — and I have come across at least six of them in my experience — now regularly use the alternative methods of community service and other such orders. The district justices and Circuit Court judges have a wide range of discretions and the alternatives are being used. I would ask that the amendments proposed by my colleagues on the opposite bench be withdrawn.
I thank Senator O'Donovan very much for that support of the position which I have taken in relation to these amendments. I very much appreciate it. As far as Senator Costello's supplementary points are concerned, I had the same experience as Senator O'Donovan that the community service orders are being worked and worked very effectively. It is not my intention to write them into every piece of legislation that I bring before the House, as I mentioned earlier, and consequently I would oppose the amendments. As far as Senator Neville is concerned, I can assure him that I will bring forward that legislation as I promised.
On the question of handling and larceny, I refer the House to paragraph 135, page 103 of the Law Reform Commission report on the receiving of stolen property. As we have seen, the courts have frequently asserted that a person cannot at the same time be guilty of both receiving and larceny. That is covered specifically in the report.
I have nothing further to say, in relation to these amendments. If there are any further points made on them, I can assure the Senators that my position will not alter.
Senators may have misconstrued my intentions. The provision that a person who handles stolen property knowing or believing that it is stolen shall be guilty of a felony and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine or to both is tied up — and that is the only reason I could accept all those amendments being lumped together — with the fact that no specific value of property is stated. It is not good enough to say that somebody might start by stealing something small and then go on to something large. We can all speculate as to how and why people get involved in crime, what the social factors are and what the greed factors are and where, who and what type of person will get involved in larceny. What we have is a universal open-ended statement: "A person who handles stolen property knowing or believing it to be stolen property". It could be any value of property.
We will see further on in the Bill how difficult it is to specify that a person knows or believes it to be stolen property. We are talking about mind reading if you specify a massive sentence of 14 years and do not specify the value of the property. The larceny of property of insignificant value could result in a charge on indictment and there is only the one penalty. It is unlikely that the accused will be able to pay the fine. The Minister refuse to specify alternatives to fines. The corollary to the Minister's position is that if he is not prepared to specify the value of the goods stolen or handled he should be prepared to specify a greater range of alternatives. He should do one or the other. That point I am making has been misconstrued.
I disagree with the Minister when he says that community service orders are operating well. They are not. There is no proper system of community service orders operating in this State. That is a fact. The Department of Justice should get their act together and provide a decent structure of community service orders. It would be preferable if, rather than paying lip service to this alternative system of sanctioning, the Department of Justice got down to the work of providing the alternative. It would be a useful alternative. It is extremely useful in the case of some minor crimes. People normally go to prison for serious offences. Many people go to prison for less serious offences. The majority who go to prison go there from the District Courts where the maximum prison sentence is two years. In that case there is an automatic one-quarter or one-third remission, one-quarter in the case of males and one-third in the case of females. I do not know how regulations were evolved that discriminate in reverse to the norm. It would be preferable rather than imposing a financial burden of £100 per day in a prison setting to have a community service order where the person would be doing something useful.
Seventy per cent or 80 per cent of people in prison have been sentenced in the District Courts and, therefore, on a maximum sentence of two years. I am not prepared to accept that point either, but I acknowledge that there is very heavy sentencing on indictment. While in many ways our country is not as bad as other countries in the world in terms of the number of people who go to prison, we have a greatly increasing number of people going to prison for longer periods of time. That area should be looked into.
I am seeking here to expand the ranges of alternatives to ensure that we adopt enlightened developments that have taken place and have been experimented with in other countries. There is no reason why we should not experiment with them. We have experimented far too long with prisons and with fines.
Amendment put.
The Committee divided: Tá, 14; Níl, 25.
Tá
- Costello, Joe.
- Doyle, Avril.
- Harte, John.
- Hourigan, Richard V.
- McMahon, Larry.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Ross, Shane P.N.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Conroy, Richard.
- Cullen, Martin.
- Fallon, Sean.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Honan, Tras.
- Keogh, Helen.
- Kiely, Rory.
- Lydon, Don.
- McCarthy, Seán.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Costello and Neville; Níl, Senators McGowan and Wright.
Amendment declared lost.
Amendments Nos. 5, 9 and 11 are similar and No. 10 is an alternative to No. 11. They may all be discussed together.
I move amendment No. 5:
In page 3, line 28, after "property" to insert "or being reckless as to whether such property has been stolen".
It is important that this legislation is effective, bearing in mind that it is 75 years since the last relevant legislation was passed and in 1988 £34 million worth of property was stolen and only £3 million was recovered. An important part of this amendment is to include the concept of recklessness as to whether the property received has been stolen. This deals with the area of mens rea, the intent of the person who is charged with receiving.
The Bill states that a person who handles stolen property knowing or believing it to be stolen shall be found guilty of the felony. The element of recklessness as to whether the person knew that the property was stolen, I believe, is an essential part in the definition of handling stolen goods. This concept will effectively deal with the present situation where it is almost impossible to convict a person of receiving. If goods are brought off the back of a truck at less than half their value the person purchasing these can well claim that he has checked with the person selling and was informed that the goods were not stolen. He could claim he did, therefore, not know or believe that the property was stolen but if the concept of recklessness is included in this Bill the receiver, because of the circumstances surrounding the purchase, would be found guilty of recklessness as to whether the property was stolen.
The Minister's approach that the person charged with knowing or believing the goods to be stolen is not much different from that of the 1916 Act which has failed. In fact, the Law Reform Commission recommended the inclusion of the concept of recklessness and I would ask the Minister to consider this amendment carefully. In their deliberations they said that the concept of recklessness would ensure that the circumstances around the purchase of the goods would be taken into account. A person will be reckless if he disregards a substantial and unjustifiable risk considering the nature of his conduct and circumstances. In other words, if he disregards the substantial risk that the property he handles is likely to be stolen bearing in mind the handler's conduct and circumstances known to him. His disregard of this involves a high degree of culpability. Such an approach will put people on their guard and they will be very careful about such purchases. This approach would lead to a dramatic reduction in the trade of stolen goods, reduce the figure substantially from the £34 million level at present and dramatically increase the conviction level and recovery level of stolen goods.
As I pointed out on Second Stage, the approach taken by the Minister follows that of the 1968 English Theft Act. Difficulties have arisen with the interpretation of this. The same difficulties are likely to arise in our case. We will have bad and unsatisfactory legislation. The Law Reform Commission, after a lot of deliberations, favoured whether the defendant knew or was reckless as to the source of the property offered for sale. I would like to ask the Minister to carefully consider this.
Among these amendments there is one of mine, amendment No. 10. I also agree with the sentiments expressed by Senator Neville that this legislation centres on whether one is able to prove that somebody was aware and believed or thought that an object was stolen property. Therefore, this legislation is not tight enough to get a conviction. If you look at the particular area of the section I am referring to, which is very loosely construed, it refers to stolen property and somebody who "undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person or arranges to do any of the things specified in subparagraph (i) or (ii) of this paragraph ... "This is crucial. It goes on to say:
in such circumstances that it is reasonable to conclude that he knew or believed the property to be stolen property, he shall be taken to have so known or believed unless the court or the jury, as the case may be, is satisfied ...
The final section (c) reads:
believing property to be stolen property includes thinking that such property was probably stolen property.
Did you ever hear such airy-fairy legislation? Believing property to be stolen property includes thinking that such property was probably stolen property. A prosecuting garda would have to be something of a mind reader if he were to put a case before the courts on that particular evidence.
The section is badly worded. We know the intent of the legislation, to catch those people who are fences, who are handling property and who are responsible in many ways for thefts taking place. But there is no sense in making provision to deal with something unless it can stand up in law. The wording of this legislation will not work. That is why we are looking for the deletion of these words. It simply is not going to function. It will be impossible to prove. It will lead to a situation where it is the garda's word against the citizen's. We do not want to go very far down that road. The judge will have no choice on the basis of the evidence that is before him or her but to say the garda believes that he found somebody in such circumstances and that the person probably believed that the property was stolen or that he probably thought that the property was stolen, but that is not grounds for a sound conviction.
Certainly Senator Neville's amendments have a certain merit in them. I think that the section is too flawed to be valuable and it is a pretence of introducing legislation that will deal with a serious problem but in effect it is merely a veneer with no substance to it. I do not believe this Bill and this critical section of the Bill will assist one iota in bringing to justice even one offender who was in receipt of property. The wording is just not tight enough for it. There is not much sense in putting legislation on the Statute Book unless that legislation is capable of implementation. I do not believe this legislation is capable of implementation as it stands.
These amendments are also opposed. Amendments Nos. 5, 9 and 11 are an attempt to import the mens rea for the new offence of handling the notion of recklessness. Not, let it be noted, in substitution for the mens rea provided in the Bill, but as an addition to those provisions. Thus, if Senator Neville's amendment were to succeed, the jury in a handling case would be faced with a bewildering set of decisions to take in determining whether the accused had the necessary guilty intention which would constitute an offence. They would have to ask themselves, firstly: “Did the accused know that the property in question was stolen property?” If the answer is “yes”, then they can convict without further ado but of course, it rarely will be “yes” because of the difficulty of satisfying oneself beyond a reasonable doubt that a person had absolute knowledge, the very problem which the Bill is designed to tackle.
If the answer to the first question is "no", the jury must then ask: "Are we satisfied beyond a reasonable doubt that the accused believed that the property in question was stolen?" In considering this question, they will be aided by the fact that "believing" in this context includes "thinking that the property was probably stolen property". If the answer is "yes", then once again the jury can convict without further consideration.
If the answer to the second question is "no" however, what then? Senator Neville would have it that the jury would then consider a further question: "Are we satisfied beyond a reasonable doubt that the accused was reckless as to whether the property has been stolen?" There are a number of views as to what exactly "recklessness" is. On one view, most commercial transactions at wholesale or retail level are made "recklessly", in that when they take place, the notion that the goods might have been stolen never enters the buyer's head; there is a tacit assumption that goods offered for sale in the normal course have an unimpeachable provenance. Clearly this view of recklessness is far too wide and recklessness in the context of Senator Neville's amendments must have a further particular meaning, akin, no doubt, to the definition suggested by the Law Reform Commission in their report.
The effect of Senator Neville's amendments is, in fact, to add not one but a whole complex of extra questions which the jury must consider, over and above those which the Bill, as it stands, would require of them. They must satisfy themselves beyond a reasonable doubt that the accused consciously disregarded a substantial and unjustifiable risk that the property in question was stolen property; and in deciding whether the risk taken was substantial and unjustifiable they must be satisfied that the risk was of such a nature and degree that, considering the nature and purpose of the conduct of the accused and the circumstances known to him, disregard of the risk involved culpability of a high degree.
Assuming that juries will always be able to think their way carefully through this extra layer or complexity, what is the likely marginal improvement in the effectiveness of the provision? By this I mean how many more convictions for handling stolen property would be likely to be secured as compensation for the extra confusion induced in juries' minds by the addition of Senator Neville's amendment? It is, of course, a matter of opinion, but my considered opinion is that no useful increase in convictions would be secured. The Government and I are satisfied that the provision as it stands in the Bill is a suitable one which would prove effective in the prosecution of handling offences.
I have spoken so far of the thought processes which juries would have to go through; what I have said is equally applicable where guilt is determined judically, as for instance, in the District Court, and applies also to the lawyers whose task it is to present the case for prosecution and defence and to elucidate the law for the benefit of judge and jury. In summary, I oppose these amendments as they would place an extra burden on judges, juries, prosecution and defence, which would not result in any measurable increased effectiveness in convicting the guilty.
Amendment No. 10 would have the effect of deleting a crucial subsection in the section dealing with the proposed new handling offence. That subsection sets out in clear terms that where a person does anything with stolen property which, if done dishonestly, would constitute handling, in circumstances where it is reasonable to conclude that he knew or believed that the property in question was stolen, then he shall be taken to have so known or believed. The exception to this is where the court or the jury is satisfied, on the basis of all the evidence, that there is a reasonable doubt as to whether the accused did know or believe that the property was stolen. The purpose of this provision is to provide that knowledge or belief, which is a necessary ingredient of the offence of handling, can in appropriate cases be inferred from the accused's actions in receiving stolen goods or in doing any of the other things that would constitute a handling offence. Let me put it another way. This subsection is designed to meet the situation where the accused is proved to have acquired the stolen property but denies that he knew or believed that it was stolen, and perhaps says he thought it ws smuggled. It is proposed to place an evidential rather than a persuasive burdern on the accused in such an instance to show that he did not know or believe that the property was stolen.
In placing the evidential burden on the accused in such cases the section is following the precedent of section 8 of the Criminal Law (Jurisdiction) Act, 1976, which inserted a new section 27 (a) in the Firearms Act, 1964, which provides that a person who "has a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that he has not got it in his possession or under his control for a lawful purpose shall, unless he has it in his possession or under his control for a lawful purpose be guilty of an offence". If the prosecution in a handling case proves the possession or control of the stolen property in suspicious circumstances and the accused puts forward an innocent explanation, it will be for him to adduce evidence sufficient to raise an issue fit for consideration as to the innocence of his receipt of the property in question. If he fails to do so he will be taken to have known or believed that the property was stolen. "Believing" will have the extended meaning here of thinking that property was probably stolen.
As such, the subsection gives effect to the recommendation made by the Law Reform Commission in their report on receiving at paragraph 130, page 100, about restating the law in this matter as laid down by the Court of Criminal Appeal in the Oglesby and Melody cases.
Is amendment No. 5 withdrawn?
It is not within my power to withdraw it or otherwise. That is Senator Neville's amendment. I was speaking largely on amendment No. 10.
Acting Chairman
We are on amendment No. 5. Nos. 9 and 11 are similar and No. 10 is an alternative to No. 11 and also may be discussed.
I am rather worried about what the Minister said in relation to section 3, in reference to 33 (2) (b) that what you really have here is a provision that the defendant is now guilty until he proves his innocence. To back that up he quoted a section from the Criminal Law Jurisdiction Act, 1976 which I could only describe as a piece of emergency legislation that was introduced to deal with the situation that predated extradition whereby people who might be charged with firearms offences, as the Minister mentioned, and other offences could be brought before the courts. I do not think that that is what we are dealing with in the context of updating a Larceny Bill. We do have the common law of the land which gives the benefit of the doubt to a person until he or she is proven guilty. In other words, they are innocent until proven guilty. Do we want to go down the road of presuming their guilt until they prove their innocence? That is all right if you are talking in terms of emergency situations, in terms of emergency legislation. I do not think it is proper for us to talk about it in terms of the standard law of the land with the body of common law, statutory legislation and constitutional law that has been brought together on the basis of innocence until proven guilty. If that is the way we are about to implement this legislation then it is an even worse and less desirable piece of legislation that I had hitherto thought. The manner in which the Minister described how this legislation will operate has caused me grave concern. I would like the Minister to elucidate further his remarks in relation to that matter.
I would agree with a lot of Senator Costello's remarks, especially in the area of guilty until proven innocent. As I said earlier, we have recovered £3 million of a £34 million industry in stolen property and the movement of stolen property. We must bear in mind that most of the property stolen is moved from the original taker. We must ensure that the legislation after 75 years is capable of dealing with the circumstances now prevailing. I believe the concept of recklessness will correct this. It will put people on their guard as to the circumstances in which they are purchasing the property, it will make them inquire in great detail as to the source of the property and even check on the credentials of the people who are selling the property. If we do not include this concept of recklessness the Bill will barely improve, if it will improve at all, the situation under the 1916 Act which prevails at present. Would the Minister consider having a look at this with a view to introducing it at a later stage?
I would ask my colleagues, Senator Neville and Senator Costello, to withdraw these amendments. The Minister has quite clearly in his reply outlined and justified this legislation. My learned friend, Senator Costello, made a point in relation to being guilty until you prove your innocence. We have several examples in the Road Traffic Act, for example, where this has worked quite well. I see no reason why it cannot work in this situation where strict liability is inserted into the legislation.
In relation to some of the comments made by Senator Neville one of the criticisms levelled at the courts system and the legislation is that it is too complex. The introduction of the word "recklessness" as to whether goods were stolen or not would create further complications and make the legislation more complex and more difficult to be dealt with by a judge or jury as the case may be. The legislation proposed is adequate, proper and good and I would ask Senators Neville and Costello to withdraw the amendments and allow the legislation proposed to stand.
In relation to the point made by Senator Costello, what I am doing is acting on the basis of the Law Reform Commission's report where it says:
We also consider that, without in any sense altering the present state of the law in relation to the burden of proof, it would be useful to re-state the law as laid down by the Court of Criminal Appeal in Oglesby and Melody in statutory form so as to make it clear that where the accused is charged with handling unlawfully obtained property the jury should be told that they may, in the absence of any reasonable explanation, find the accused guilty.
As far as the question of the Firearms Act, is concerned, section 27 (a) of that Act, as introduced in the Criminal Law Jurisdiction Act, 1976, is part of the ordinary internal law of the State and it does not apply merely to offences in Northern Ireland. On the general question of recklessness, recklessness is not a concept that is operated in any jurisdiction where similar type legislation is operating. While it would be simple for me to say to Senator Neville, "Yes, I will think about it between this and Report Stage", it would be misleading the House and the Senator and I do not want to say that. It is not a concept that I can accept. We debated this at great length in the Dáil, I regret that I have to say that to the Senator.
Amendment put.
The Committee divided: Tá, 11; Níl, 23.
Tá
- Costello, Joe.
- Hourigan, Richard V.
- Jackman, Mary.
- McDonald, Charlie.
- McMahon, Larry.
- Murphy, John A.
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Ross, Shane P.N.
- Staunton, Myles.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Seán.
- Conroy, Richard.
- Fallon, Seán.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Honan, Tras.
- Kiely, Rory.
- Lydon, Don.
- McCarthy, Seán.
- McGowan, Paddy.
- McKenna, Tony.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Neville and Hourigan; Níl, Senators McGowan and Wright.
Amendment declared lost.
Amendments Nos. 6 to 11, inclusive, not moved.
Question proposed: "That section 3 stand part of the Bill."
Amendment No. 10 sought to delete that section. I am not satisfied with the Minister's statement in relation to the intention of this section. I am worried that it is introducing the concept of guilt first and then innocence to be proven later. If that is the intention the reference to the Criminal Law Jurisdiction Act, while it is not Northern Irish legislation, is dealing with a specific problem in relation to Northern Ireland. I would consider that to be emergency legislation. I will not press it any further. I want to record very strong my objection to any attempt to shift the enforcement of criminal law from the basic common law and statutory constitutional principles that we have, that a person is innocent until proven guilty. I am still worried, after what the Minister has said. I hope that is not what is intended and that is not what will happen by this new section.
Question put and agreed to.
SECTION 4.
Acting Chairman
Amendment Nos. 12 and 13 are related and may be discussed together.
I move amendment No. 12:
In page 4, line 28, before "Any" to insert "Provided that they consent,".
The section will then read: "Provided that they consent any number of persons may be charged in one indictment, with reference to the same theft, with having at different times or at the same time handled the stolen property or any part of it, and the persons so charged may be tried together." We want to add to that in amendment No. 13 "provided that only one charge may be brought against a person in respect of a single act or omission."
I am seeking to ensure that it should not be compulsory that a person be charged on incictment with reference to the same theft. Any number of people could be involved to varying degrees or aspects of the case. As it is, somebody could be involved to a lesser degree, or allegedly involved, and somebody involved to a greater degree. I would like to have included the concept that the option rests with the defendant and that it should not be compulsory, as it is stated.
Amendments Nos. 12 and 13 are opposed. The difference between the subsection and the existing law in the proposed new section is fairly minute and technical. There is no reason for introducing a new requirement that the accused person should have consented to the joinder of charges as proposed by the amendment. The proposal would be a remarkable innovation in criminal procedure. For the Director of Public Prosecutions to have to ask people in advance of charges whether they consent to being charged together would be extraordinary. In any event, it is always open to any accused persons proposed to be tried together to apply to the trial judge for separate trials and the judge will decide whether the interests of justice require this.
In regard to amendment No. 13, there would be no purpose in introducing a restriction such as that proposed. There is nothing special about the new offence of handling stolen property that would require the making of any such provision.
Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 not moved.
Section 4 agreed to.
NEW SECTIONS.
Amendment No. 15 not moved.
Acting Chairman
Amendments Nos. 16 and 17 are related and may be discussed together.
I move amendment No. 16:
In page 4, before section 5, to insert a new section as follows:
.—Section 42 of the Principal Act is hereby amended by—
(a) the substitution of "Judge of the High Court" for "justice of the peace" and "of such Judge" for "the justice"; and
(b) the deletion of subsection (2).
Both these sections seek to update the legislation, that the Minister should substitute, for example, "Judge of the High Court" for "justice of the peace" and, in amendment No. 17, "the chief officer of police" and references to "His Majesty's Dominions" be substituted for "the State". The 1916 Larceny Act dealt with a pre-independence State, before the State was established, not to talk about the Republic. We should at this time use every opportunity to update as much as we can the appropriateness of the legislation. That is the intent here.
Section 42 of the 1916 Act contains important and useful provisions dealing with the issue of search warrants. The references in the section to justice of the peace are now read as references to District Justice as a result of the Adaptation of Enactments Act, 1822, and to peace commissioners. Amendment No. 16 would confine this to High Court judges alone. As the Senator will be well aware, this would be inoperable because most of the High Court judges are in the Dublin area. It would be totally inoperable and would tie the hands of the Garda outside of the Dublin area. A similar situation is proposed in amendment No. 17.
Amendment, by leave, withdrawn.
Sections 5 and 6 agreed to.
NEW SECTION.
Acting Chairman
Amendment No. 17 has already been discussed with amendment No. 16.
I move amendment No. 17:
In page 5, before section 7, to insert a new section as follows:
.—Section 46 of the Principal Act is hereby amended by—
(a) the deletion of the definition of "chief officer of police" in subsection (1); and
(b) the substitution of "the State" for "His Majesty's Dominions" in both places where it occurs in subsection (1).
Amendment No. 17 is somewhat different from amendment No. 16 in that here we are referring to "chief officer of police" and referring again to "His Majesty's Dominions". There is no doubt about amendment No. 17. There is no good reason why it should not be accepted.
Acting Chairman
Amendment No. 17 has already been discussed.
May I just give some clarification on the point? If it would help the Senator, amendment No. 17 is unnecessary. The changes that it purports to make are already the law of the land. The reference sought to be changed was already, in effect, altered by the adaption provisions in existing legislation. What is attempted to be achieved is already the law of the land.
This may have been the situation in relation to other legislation. It is important in relation to the section that we update all of this and that we eliminate, when we are updating the 1916 legislation, all references to pre-1916 or to pre-1922 times.
Amendment, by leave, withdrawn.
SECTION 7.
I move amendment No. 18:
In page 5, lines 10 and 11, to delete "whether the stealing occurred before or after" and substitute "provided that the stealing occurred after".
This is an important amendment because section 7 (1) states:
The provisions of the Principal Act [that is the Larceny Act] and of this Act relating to handling property which has been stolen shall apply whether the property was stolen in the State or elsewhere, and whether the stealing occurred before or after the commencement of this Act,...
That is what amendments Nos. 18 and 19 are dealing with. It is not good legislation to apply something retrospectively, which is what is being proposed here. It should refer to matters that have occurred subsequent to the passage of the legislation. We are already seeing problems in the Supreme Court in relation to the extradition legislation that was passed in 1987, in relation to warrants that were introduced retrospectively. Now we will have a situation where this legislation will seek to apply the provision, retrospectively, to something that occurred prior to the legislation being passed.
Acting Chairman
If the Senator wishes, he can discuss amendment No. 19 with amendment No. 18.
I thought I was discussing it, I will take the two together. It is essentially the same point.
The first of the two amendments seems quite unjustifiable. For example, if we assume that the Act commences on 1 July, the result of section 7, as drafted, will be that if property is stolen in June and disonestly handled in July, the handler will be guilty of the offence of handling stolen property under the new section 33 of the Larceny Act, 1916, as substituted by section 3 of this Bill. If the amendment were made, the handler would not be guilty of any offence. I know that is not what the Senator has in mind.
The second amendment would not change the sense of the Bill as drafted. The effect of subsection (1) of section 7, read with subsection (4), is that the original offence must be one that falls within the definition of stealing, embezzlement, etc., under the Larceny Act, 1916. These definitions are not being changed by the Bill but it is necessary to provide for a situation where the original act took place outside the State because the laws of other countries may differ as to what constitutes theft or embezzlement. For example, would it not be right to penalise a person who received, say in the State property got in a foreign country in circumstances that did not amount to any offence under the law of that country at the time when the property was got. It is to avoid this situation that the words "provided that the stealing amounted to an offence where and at time when the property was stolen" have been included in the section.
I am not sure that I would accept what the Minister has said. He referred to an offence committed in June and then the other offence of handling occurred in July. We are really dealing in semantics here. I am talking about the substance of the law. We are talking about a Bill that was introduced in 1989 and will be law in 1990. It would be much better if we started from scratch in 1990 rather than talk about aspects of time where there might be a month or two, or a short period of time, between the events that have taken place. I am talking about the substance of the law and that it is not good, legislatively, to talk in terms of retrospective legislation even though the offence we are talking about is a separate offence.
Question: "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 19 not moved.
Section 7 agreed to.
Section 8 agreed to.
SECTION 9.
Acting Chairman
Amendments Nos. 20 and 28 are related and may be discussed together.
Amendments Nos. 20 to 23, inclusive, not moved.
I move amendment No. 24:
In page 6, between lines 17 and 18, to insert a new subsection as follows:
"(–) The Principal Act is hereby amended as follows:
(a) In section 2, the words ‘with penal servitude for any term not exceeding five years'; and the words ‘and the offender, if a male under the age of sixteen years, shall be liable to be once privately whipped in addition to any other punishment to which he may by law be liable' are hereby repealed;
(b) in section 29, the words ‘and on conviction thereof liable to penal servitude for life, and, if a male under the age of sixteen years, to be once privately whipped in addition to any other punishment to which he may by law be liable' in subsection (1) are hereby repealed;
(c) in section 29, the word ‘imprisonment' is hereby substituted for the words ‘death, or penal servitude' in subsection (3);
(d) in section 31, the words ‘without hard labour' are hereby substituted for the words ‘with or without hard labour';
(e) in section 34, the words ‘and on conviction thereof be liable to penal servitude for any term not exceeding seven years, and, if a male under the age of sixteen years, to be once privately whipped in addition to any other punishment to which he may by law be liable' are hereby repealed;
(f) in section 47, the word ‘imprisonment' is hereby substituted for the words ‘penal servitude'."
As with so many sections of this legislation, I am seeking here to update the new Bill and to try to bring it into line with modern thinking and modern developments. The first section of it:
In section 2, the words ‘with penal servitude for any term not exceeding five years'; and the words ‘and the offender, if a male under the age of sixteen years, shall be liable to be once privately whipped in addition to any other punishment to which he may by law be liable' are hereby repealed.
Similarly, in relation to paragraph (b) "privately whipped", and paragraph (c), the word "imprisonment", to substitute for "death or penal servitude" and in paragraph (d) "without hard labour" to substitute for "with or without hard labour". In paragraph (e) and likewise in paragraph (f) "imprisonment" for "penal servitude.
I was trying to do two things which are two sides of the same coin, namely, to eliminate the outdated sanctions that were in the original Act and seek to introduce alternatives, new sanctions that have been experimented with and that are coming into reasonably common place usage in this and other countries. I have been very disappointed that the Minister has not been prepared to take on board the range of new sanctions I wish to specify. I should certainly hope that he is prepared to take on board the elimination of the old style sanctions and specific elimination of them as well from the legislation. It is a pity we could not do the two together — eliminate one set of outdated sanctions and introduce, for the judges attention, a new set of alternative options in relation to sanctions other than the two hardy annuals of all legislation: prison sentences or fines.
Section 9 as it stands already achieves the same effect as this amendment in relation to those sections of the 1916 Act covered by the amendment except as regards sections 34 and 47. The effect of section 9 is to substitute the penalty provided at column (2) of the table thereto for the penalty provided in all the sections listed at column (1) of the table.
As regards the reference in sections 34 and 47 to "penal servitude", there is no longer any practical distinction between penal servitude and imprisonment. In any event, such matters can be left to be dealt with when the 1916 Act is being looked at comprehensively after the Law Reform Commission have made their general recommendations on the matter. I have already confirmed that I am prepared to do that after the Law Reform Commission have looked at it.
Amendment put and declared lost.
Section 9 agreed to.
SECTION 10
Amendment No. 25 not moved.
Section 10 agreed to.
SECTION 11
Amendment No. 26 not moved.
Section 11 agreed to.
SECTION 12.
Acting Chairman
Amendment No. 30 is consequential on No. 27 and both may be discussed together. I call on Senator Costello to move amendment No. 27.
I move amendment No. 27:
In page 7, lines 12 to 18, to delete subsection (1) and substitute the following:
"(1) Section 4 of the Vagrancy Act, 1824 is hereby repealed.".
This amendment is in the same vein as so many of the other amendments. It would be a shame if we did not take the opportunity to repeal section 4 of the Vagrancy Act, 1824. I do not think anybody would defend any section of the Vagrancy Act at this point in time and we should have the final repeal of it. It can be done. This Bill is limited in what it does, but it would be useful if we took the opportunity to get rid of some of the most undesirable aspects of the old legislation and that is one of them.
I oppose amendments Nos. 27 and 30. A considerable number of offences were provided for in section 4 of the Vagrancy Act, 1824, and a detailed discussion on these can be found in the Law Reform Commissions report on Vagrancy and Related Offences. In this report the commission considered the offences in section 4 of 1824 and related Acts and made detailed recommendations in relation to them. I agree with the Senator that section 4 of that Act should be repealed in its entirety, but I hope that he will appreciate that this will have to wait until other more urgent legislative priorities have been disposed of. However it is my intention to do so. I have made that commitment to the Dáil and I will make it here again today. But I do not think to eliminate it in this manner is the appropriate way to do it.
I accept the Minister's commitment.
Amendment, by leave, withdrawn.
Amendment No. 28 has already been discussed with amendment No. 20.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 7, between lines 30 and 31, to insert a new subsection as follows:
"(6) (a) the common law power of the courts to issue a search warrant for stolen goods is hereby abolished.
(b) The common law offence of larceny is hereby abolished.
(c) Larceny shall be deemed to be a statutory offence in accordance with the provisions of the Principal Act and this Act.".
I just want to bring the legislation into line with the developments that have taken place where the common law power is being substituted by statutory powers. This would occur in the area of search warrants for stolen goods. The common law offence of larceny should be abolished. There is no need for it. Under paragraph (c) of the amendment: "Larceny shall be deemed to be a statutory offence in accordance with the provision of the Principal Act and this Act." You have it a statutory offence, so why have it an offence under common law which we have imported from Britain? Why not simply have it as we are stating it in any case and specify it as a statutory offence?
It would be wholly inappropriate to incorporate the three provisions proposed by the amendment. This is for the simple reason that the Bill is concerned principally with the present offence of receiving stolen property and certain related matters and not with the general law as to the offences of larceny, etc. The general law as to larceny, etc, is, as I have already stated, being considered by the Law Reform Commission and, depending on their reports and recommendations, I will act then.
Amendment put and declared lost.
Section 12 agreed to.
SECTION 13.
Acting Chairman
Amendment No. 30 has already been discussed with amendment No. 27.
Amendment No. 30 not moved.
Are we taking the two together?
Acting Chairman
Amendment No. 30 has been disposed of. We are on amendment No. 31.
I move amendment No. 31:
In page 8, lines 15 to 34, to delete subsection (6).
What is stated in the subsection is a retrospective element that somebody "may be convicted of the appropriate offence aforesaid under the enactment as in force immediately before the commencement of this Act...". It is in reference to what I have already said. I am simply anxious to eliminate that element of retrospective legislation which I think is important in any new legislation.
The same argument arises here as arose in relation to section 8. This is the question of a crime being committed around the time of the commencement of the legislation. This arose in a case that took place at a time of similar legislation in Britain, in 1968, and it is to cover for that this particular section is there. I am opposing the amendment.
Acting Chairman
Is amendment No. 31 withdrawn?
No, it is not withdrawn.
Amendment put and declared lost.
Question proposed: "That section 13 stand part of the Bill."
I just want briefly to state that it is a shame that we are not using the opportunity to get rid of some of the undesirable aspects of the old Larceny Act. The Vagrancy Act is also referred to in section 30. All of the types of implements that are in possession of the accused or allegedly in the possession — pick lock key, crow, jack, bit or other implements with intent to feloniously break into a dwelling house, warehouse, coach house, stable or other building — all of that could be got rid of. There is no good reason why we just cannot simply get rid of it. I know the Minister has said that we will have to wait until the Law Reform Commission have had a full look at it but this could be forever. It is a shame to lose the opportunity to improve a piece of legislation when all you have to do is delete a few unnecessary and irrelevant sections.
Question put and agreed to.
NEW SECTIONS.
I move amendment No. 32:
In page 8, before section 14, to insert a new section as follows:
.—Within one year from the passing of this Act, the Stationery Office shall publish and make available for sale to the public, a copy of this Act and of the Principal Act (as amended by this Act) together with a translation of such Acts in the national language.
Again, this is a very modest proposal. It is very reasonable and it is very necessary. I do not know if many Members of the House are aware that you cannot get a copy of the Larceny Act from our own Stationery Office; you have to apply to Northern Ireland or to Britain because these were pre-1922 pieces of legislation. The least we can do is ensure that all our citizens have access to legislation under which they are going to be accused, or they may be accused, or at least legislation that governs them. It really is a scandalous affair that our own Stationery Office have not provided us with pre-1922 legislation. What we are asking is that both this Act and the principal Act to which it refers be provided and, secondly, that they be provided in the national language.
As far as this Bill is concerned, the new section proposed is unnecessary because it is part of the normal procedure of promulgation of Acts of the Oireachtas that they are made available together with an Irish translation in the normal course as translation resources permit.
As far as the Larceny Act, 1916, is concerned, it was a product of the Parliament of the United Kingdom at Westminster, which continued in force here under the 1922 and 1937 Constitutions. Like all other Acts, it has not been translated into Irish, and an Irish version of such an Act would have no standing in our authority whatsoever. I see no purpose or benefit in engaging in such an exercise, particularly in circumstances where the Larceny Act is likely to be the subject of a Law Reform Commission report recommending its complete replacement. However, a publication has been brought to my attention here by the Roundhall Press in Dublin, J. Paul McCutcheon, The Larceny Act, 1916, which is apparently a very worthwhile publication which no doubt would be of interest to Senator Costello and others. I am not in any way promoting it; it just happens to be available.
Would the Minister not agree that if we were to start providing translations of all pre-1922 Acts it would be at enormous expense and very hard to justify? Instead, it is far better to have the new Acts coming out and then provide them in both official languages.
Yes, I fully agree with Senator Conroy's point.
I neither agree with Senator Conroy's point nor with the Minister's point. It is not exactly good enough that we have a private publication that is presented to us as the answer to the lack of Stationery Office publication of legislation that governs us. That is the simple matter. To whom are we answerable? Whom do we legislate for? We legislate for the citizens of this country and every citizen who is governed by any piece of our legislation should have access to that legislation and that access should be provided by State publications. The State makes the laws, the State should provide access. We do not know when the Law Reform Commission's report is going to come out. Furthermore, we do not know when their findings or proposals are actualy going to be implemented. If there was a necessity to provide each and every piece of legislation that has been promulgated prior to 1922 in both official languages, perhaps that would put the skids under both the Law Reform Commission and under various Ministers for Justice and we might have legislation coming through a bit faster. Certainly, I think it is unacceptable that you cannot get in this State legislation that is published by the British Stationery Office or the Northern Ireland Stationery Office but is not published by our own Stationery Office. We are the people who are governed by it. That is totally unacceptable.
Amendment put and declared lost.
I move amendment No. 33:
In page 8, before section 14, to insert a new section as follows:
.—As soon as may be after the end of each year beginning with the year in which this Act comes into force the Minister for Justice shall make a report which shall be laid before both Houses of the Oireachtas on the opertion of the Principal Act and this Act.
The reason I have sought to have this amendment inserted is because of what I regard as the inadequacies of this legislation. I do not think it is operable. I certainly think it is going to be a grave infringement of the citizens' rights if it does direct towards having people guilty until they prove themselves to be innocent. It is very vague in terms of providing evidence and the manner is which it is specified departs very considerably from the normal set of procedures and rules of evidence for criminal prosecution. I feel it is appropriate that a report should be made by the Minister for Justice on the operation of both the original Larceny Act and of this, shall we say, child of the old 1916 Larceny Act? It would certainly be very useful and very appropriate if that were done.
I would like to support Senator Costello on this amendment. I feel that the Bill should be reviewed because of the defects in it, not least the one which I raised earlier in regard to the effectiveness of getting a conviction as to whether a person knew or believed that he was handling stolen property. The Act is going to be ineffective in producing convictions in this area and the area of recklessness should be introduced. After 12 months, if we review it, we will see that my prediction, unfortunately, will be correct. I thank the Minister for his commitment to introducing compensation to victims as a principle and I look forward to early news on that issue from the Department and the Minister concerned.
I would like to oppose this amendment. It would not be practical. You are going to set a precedent which I think is totally unnecessary.
I agree with Senator O'Donovan that the amendment should be opposed. The situation is that the Garda Commissioner already produces an annual report on all aspects of crime, its detection and prosecution. I see no useful purpose in wasteful duplication of the work that goes into that comprehensive annual publication in order to produce a report on one aspect alone of it.
Amendment put and declared lost.
Section 14 agreed to.
Title agreed to.
Bill reported without amendment.
We have got through Committe Stage in record time. I would like to make some comments on Report Stage.
We agreed to take Report Stage on Wednesday, 28 March.
Acting Chairman
Is that agreed? Agreed.
Report Stage ordered for Wednesday, 28 March 1990.