The main purpose of this Bill is to provide for the abolition of the distinction between felonies and misdemeanours in our criminal law. That distinction marked the original approach to the classification of offences; felonies being the graver class and misdemeanours the less grave class of offences. The distinction has been eroded over many years and in today's conditions has no real relevance. Today, for example, serious offences such as fraudulent conversion and obtaining property by false pretences are classified as misdemeanours whereas a relatively trivial offence such as stealing a bar of chocolate is a felony.
The distinction between felonies and misdemeanours also gives rise to a number of unnecessary complications and anomalies in the law. Certain statutory provisions and common law rules depend on the continuing distinction between those two classes of offences. The Bill for the most part comprises provisions that are consequential on the abolition of the distinction between felonies and misdemeanours and related matters. It provides that, in general, the law and practice for misdemeanours before the commencement of this legislation will apply to all offences. The abolition of the distinction is also a progressive step as it provides the opportunity to amend and restate the law in a modern form and, in so doing, a considerable number of older enactments can be repealed, or in some cases, simplified.
The criminal law needs to be relevant and responsive to modern day conditions. This Bill, by modernising and clarifying the law in key respects, such as in regard to powers of arrest, is a very significant advance in that regard. I remind Senators that earlier this month the House passed the Criminal Justice (Miscellaneous Provisions) Bill, 1996, which contains provisions for a more effective and efficient use of Garda time and resources and other proposals for reform of procedure in criminal cases. The Minister has introduced the Children Bill, 1996, which is before the Dáil and provides the basis for a new juvenile justice system. In addition, the Minister today published the Non-Fatal Offences against the Person Bill, 1997, which is designed to restate in modern statutory form the law relating to the main non-fatal offences against the person most of which are currently provided for in 1861 legislation. These Bills are key elements in the comprehensive programme of legislative reform the Minister has undertaken to modernise and improve important areas of criminal law.
Other legislative measures in the criminal law area which are at an advanced stage of preparation include a bail Bill which will provide for changes in our bail laws as a consequence of the recent amendment to the Constitution; a Licensing (Drugs) Bill which will deal with the problems of drugs sold in dance halls, public houses and at unlicensed dances and a fraud offences Bill which will simplify and update our complex dishonesty laws. These steps to reform criminal law are a significant part of the Government's law and order response to today's crime situation and are a clear indication of the seriousness with which this Government is responding to the developments and trends in modern day crime.
Section 3 is the pivotal provision of the Bill. It abolishes all distinctions between felonies and misdemeanours. It provides that the law and practice in regard to offences will be that applicable to misdemeanours. In my opening remarks I explained how the distinction between felonies and misdemeanours, which was originally a distinction between serious and minor offences, has become blurred over the years. As a consequence of abolishing the distinction, the law needs to be updated and, in some cases, restated.
At present there is a power of arrest without warrant at common law in respect of felonies; no such power exists in respect of misdemeanours. As a result, it is necessary to obtain an arrest warrant in respect of a number of serious offences which are classified at present as misdemeanours, such as fraudulent conversion and obtaining property by false pretences. As it is proposed to abolish all distinctions between felonies and misdemeanours, section 2 of the Bill will put in place a new category of "arrestable offence" which will comprehend most felonies and the more serious misdemeanours. An offence that is punishable by imprisonment for a term of five years or by a more severe penalty, including an attempt to commit such an offence, will be an arrestable offence for the purposes of the Bill.
The Bill restates and clarifies the existing law relating to arrest. The fact is that practically all the present felonies come within the new arrestable offence category as nearly all of them are punishable with maximum sentences of at least five years imprisonment. The only substantive change is that the new category of "arrestable offence" extends the power of arrest without warrant to include some of the more serious misdemeanours. These are misdemeanours which at present carry a penalty of at least five years imprisonment. This change will undoubtedly make the law relating to arrest much more relevant and effective as the new powers will be related to the seriousness of the offence in question as determined by the penalty that may be imposed for the commission of that offence.
There is a clear need for an effective power of arrest without warrant where serious crimes are involved. Today it is hard to justify the retention, as part of our criminal law, of a requirement that arrest for the commission of some serious offences can be effected only on foot of a warrant while other equally serious offences do not necessitate a warrant. The Minister is satisfied that the criterion of a penalty of at least five years imprisonment is an appropriate and proportionate indication of what constitutes a serious offence.
The definition of arrestable offence is the same category of offence referred to in section 4 of the Criminal Justice Act, 1984, in respect of which the provisions of that Act, relating to periods of detention in Garda custody, apply. The arrest provisions before the House and the provisions of the 1984 Act have a common reference point in terms of the seriousness of the offences to which both provisions relate. This represents an important step in the development of our criminal law. It is desirable that the law in relation to arrest and the law relating to Garda procedure after arrest are underpinned by a common reference point in respect of offences committed.
Section 4 is concerned with the powers of arrest which are exercisable by private citizens and gardaí. At present the powers of arrest without warrant are either contained in specific statutes, of which there are many, or conferred by the common law in respect of felonies. Statutory powers of arrest will be unaffected by the provisions of this Bill. The section contains powers that correspond to the present common law rules in respect of felonies. They are exactly the same as the powers of arrest conferred by section 19 of the Criminal Law (Jurisdiction) Act, 1976, in relation to offences in Northern Ireland and associated offences in the State and by section 12 of the Criminal Damage Act, 1991, in relation to offences of causing criminal damage.
There is a very important distinction in law between the relative positions of private citizens and gardaí in the matter of arrest. When a private citizen exercise a power of arrest it is essential that a felony can actually be proved to have occured. If no felony has in fact occurred, the private person who made the arrest will be liable to a civil action. Therefore, a private person must exercise caution when he or she decides to exercise a power of arrest. However, a garda may arrest any person whom he or she reasonably suspects of committing a felony whether or not any offence has actually taken place. The garda is immune under the law from a civil action for damages should the offence not actually have been committed.
The Government believes that it is appropriate to maintain the distinction in law between the powers of arrest of gardaí and the powers of arrest of private persons. Therefore, under the Bill, a private person who gets it wrong will quickly find himself or herself facing an action in the civil courts for defamation, wrongful imprisonment or trespass to the person. While it is appropriate that private persons should have a power of arrest, and indeed the courts have commended such persons for exercising that power in particular cases, there is a question of balance here which must be settled in the context of the constitutional right to personal liberty. It is worth emphasising that the only substantive change proposed in the Bill is that such powers of arrest without warrant will now extend to a number of serious offences previously classified as misdemeanours. The powers of arrest of private persons are, in practice, of most relevance to store detectives or security personnel who do not, and will not have under this Bill, any additional powers at their disposal in the matter of arrest than any other private person.
Section 5 provides that a member of the Garda Síochána may execute a warrant for the arrest of a person or an order of committal without the need to have the actual warrant or order in his or her physical possession which is what the common law appears to require. There are precedents for this approach in the Criminal Justice Act, 1984, as regards arrest on a warrant for failure to surrender to bail, and in the Extradition (Amendment) Act, 1994, as regards arrest on extradition warrants, and it is now being extended to cover all arrests with warrants. It is unsatisfactory that a garda is not generally empowered to arrest a person when he or she knows that a warrant for the arrest of that person has been issued. An important safeguard is being provided in that the warrant or committal order must be shown to the arrested person as soon as practicable.
Section 6 is concerned with Garda powers to enter and search premises to effect an arrest for an arrestable offence or on foot of an order for committal. Senators will be aware that this provision received a lot of attention during the passage of the Bill through the Dáil. In particular, a number of Deputies expressed concern that a general power to enter a dwelling, such as that provided for in the section, for the purpose of effecting an arrest for an arrestable offence without a warrant would be found to be inconsistent with Article 40.5 of the Constitution which provides special protection against the forcible entry of dwellings. The Minister has considered section 6 further, in consultation with the Attorney General, and she has decided that it should be amended so that the conditions under which the gardaí can enter a dwelling to make an arrest for an arrestable offence without a warrant should be spelled out. I understand that an amendment to that effect will be tabled on Committee Stage in this House.
The current law varies as to how persons involved in a crime who do not actually carry out the deed are treated depending on whether the offence in question is a felony or a misdemeanour. As regards felonies, distinctions are made between a principal in the first degree, that is the person who does the act in question, a principal in the second degree, that is a person who aids or abets the commission of the offence by the principal in the first degree and an accessory before the fact, that is a person who counsels or procures the principal in the first degree to commit the offence. For misdemeanours there are no such distinctions and all persons involved are treated alike as the principal offender. There are no good reasons for maintaining the distinctions in regard to felonies and, accordingly, section 7 provides that the misdemeanour rule will now apply to all indictable offences so that all those who aid or abet, counsel or procure the commission of such an offence will be treated as principal offenders.
The section also creates a new offence of impeding the apprehension or prosecution of a person who has committed an arrestable offence. This replaces the common law offence of being an accessory after the fact to a felony. A scale of penalties for this new offence, which is graduated according to the seriousness of the principal offence, is set out in the section. For example, where person A has committed the arrestable offence of murder, person B who commits the offence of impeding the apprehension or prosecution of person A, will be liable on conviction on indictment to imprisonment for a term not exceeding ten years.
Section 8 creates a new offence of concealing an arrestable offence. This also arises from the abolition of the distinction between felonies and misdemeanours. As a result of abolishing felonies, the old offence of misprision of felony will disappear. The new offence will, in effect, be one of accepting a bribe not to disclose relevant information to assist the prosecution or conviction of an offender. The new offence of concealing is similar to the existing offence of compounding a felony with one important difference. The old offence of compounding a felony also covered any consideration accepted for not disclosing information, including consideration consisting of the restitution of or compensation for stolen goods. Under the section, it will no longer be an offence not to disclose information about an arrestable offence where the loss is made good or compensation is made for it.
The current rules about alternative verdicts, that is where a person may be found guilty of a less serious offence than that on which he or she has been arraigned, differ as between felonies and misdemeanours. At present, on a charge of felony the accused may be convicted of a less serious felony of which the ingredients are included in the felony charged. While the same rule applies to misdemeanours, a person charged with a felony cannot be convicted of a misdemeanour except under statute. As a consequence, therefore, of the abolition of the distinction between felonies and misdemeanours, section 9 provides for a general rule on alternative verdicts in relation to all indictable offences. In addition, the Minister decided that it was prudent to provide for the alternative verdicts which should be open to a jury on a charge of murder lest there be any doubt arising from the abolition of the distinction between felonies and misdemeanours.
The section provides for a limitation on the extent to which a person found not guilty of murder, which is of course currently a felony, may be found guilty of a lesser charge. There is a clear need for certainty as to the verdicts open to the jury in murder cases. The section also makes similar special provision for alternative pleas in respect of an indictment for murder to which section 3 of the Criminal Justice Act, 1990, relates, which was formerly referred to as capital murder or an attempt to commit such murder. In addition, the section provides a general rule for alternative verdicts in relation to all other indictable offences.
Section 9 restates the law that a person charged with an indictable offence may be convicted of attempting to commit that offence. In addition, it provides that a person charged with an attempt may be convicted of the attempt even where the person is proven to be guilty of the completed indictable offence. Although this is a restatement of the law where the completed offence is a felony, the section clears up uncertainty on the same legal point in respect of misdemeanours by applying the rule to any offence which is indictable.
Section 10 limits to two years the maximum term of imprisonment to apply in respect of indictable offences where no maximum penalty is provided. A number of obscure and minor statutory misdemeanours prescribe no maximum penalty and, in theory, there is no limit to the term of imprisonment that may be imposed. These offences mostly relate to the making of false statements for the purpose of the particular statute. The section gives statutory effect to the existing rule of practice whereby the maximum fine or term of imprisonment for an attempt to commit an indictable offence should not exceed the corresponding punishment for the completed offence.
Under common law there is no general power to fine in the case of felonies; that power exists only in relation to misdemeanours. Section 10 of the Bill confers a general power on a court to fine an offender convicted on indictment, except in the case of treason and murder where the sentence is fixed by law as defined in section 2. The power to fine a person convicted on indictment will be unlimited, except where there is a statutory limit on the amount of a fine. That power is also subject to any statutory requirement that the offender be dealt with in a particular way, for example, by disqualification.
Sections 11 and 12 of the Bill do not relate to the abolition of the distinction between felonies and misdemeanours but to an area of the law which needs to be updated. Penal servitude, which was a sentence of imprisonment with compulsory labour, was substituted for transportation in the middle of the last century. For many years there has been no distinction in the treatment of prisoners sentenced to penal servitude or imprisonment. Imprisonment with hard labour as a form of punishment has also fallen into disuse. Prison divisions — the placing of prisoners into divisions of varying severity — no longer apply either. It is time the law was cleared of these outmoded categories of imprisonment and that is the main purpose of section 11.
The sentence of whipping is available to the courts under certain statutes in respect of males but is never used. Whipping of females is prohibited by statute. The European Court of Human Rights has adjudged the practice of birching to be degrading and contrary to the European Convention on Human Rights. Accordingly, section 12 abolishes whipping.
Section 15 enables prosecutions commenced before the coming into effect of the Bill to be dealt with on the basis of the existing law. However, the procedural provisions of the Bill will apply where a person is arraigned after the Bill comes into effect. This will mean, for example, that where an accused is arraigned after the Bill is in force in respect of a felony committed before the Bill commences, all the procedural provisions of the Bill relating to trials for a misdemeanour will apply. Where an indictment has been framed and signed in accordance with the law before the coming into force of the Bill, the accused can only be found guilty of an offence under the previous law. The particular purpose of this provision is to clarify the position in relation to alternative verdicts. Section 15 (4) takes into account the reference in Article 15.13 of the Constitution to the term "felony" in respect of the provision for immunity from arrest of Members of the Oireachtas. In effect, this is a saving provision which saves felonies for the purposes of Article 15.13 of the Constitution, and for that purpose only. Originally, this provision was not in the Bill and it has been included by way of an amendment made in the Dáil.
Section 13, 14 and 16 introduce the Schedules to the Bill which provide for necessary amendments, modifications and repeals which are, in the main, consequential on the abolition of the distinction between felonies and misdemeanours.
Central to the Bill are the powers of arrest which it provides. These provisions restate and clarify the existing law in those areas. The main change is that these powers will relate to a wider range of offences than heretofore by virtue of the abolition of the distinction between felonies and misdemeanours and by the creation of a new category of arrestable offences. We are satisfied that where the Legislature has decided that an offence can be punished by five years imprisonment or by a more serious penalty, then that is an appropriate test to put in place now as the basis for a modern and effective power of arrest. It is essential that we put in place a clear and comprehensive legislative framework to provide the Garda Síochána with the necessary powers of arrest. In relation to these and other matters, I have no doubt that the Bill, when enacted, will provide the Garda with effective and up to date tools in the fight against serious crime while, at the same time, striking a proper balance between the individual citizen's rights and the protection of society from crime.
I commend the Bill to the House.