Amendments Nos. 2 and 3 are related to amendment No. 1 and they may be discussed together. Is that agreed? Agreed.
Criminal Law Bill, 1996: Committee Stage.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Government amendment No. 1:
In page 4, subsection (1), line 8, to delete "Any" and substitute "Subject to subsections (4) and (5), any".
Amendments Nos. 1 and 2 are consequential on amendment No. 3, which contains the substantive amendments I propose to section 4. The purpose of section 4 is to replace the present common law powers of arrest without warrant in respect of felonies. This section provides for powers of arrest in respect of arrestable offences. Under section 4(1) a person may arrest anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence. Under section 4 (2) where an arrestable offence has been committed a person may arrest anyone who is or whom he or she reasonably suspects to be guilty of the offence. These powers correspond to the existing common law rules that apply in the case of felonies.
I listened intently to concerns raised in the Dáil that under the current text of section 4 the powers of arrest for private citizens are too broad and could give rise to problems. While I was not in favour of overloading the section with the elaborate and impractical provisions suggested by some Deputies, I recognised that the increase in the range of offences, for which powers of arrest can be exercised by persons other than the gardaí, could lead to certain problems. In that context I propose these amendments.
Amendment No. 3 inserts a new subsection (4) which would limit the non-Garda power of arrest to cases where it is suspected, with reasonable cause, that the person to be arrested will attempt to avoid arrest by the Garda Síochána. I was not satisfied that it was necessary to introduce a significant modification of a private person's powers of arrest. Store detectives and other private persons should not be constrained by impractical provisions regarding arrest. The law guards against wrongful arrest by a private person and the power of arrest on suspicion is only exercisable by a private citizen if an arrestable offence has been committed. While there is authority in common law for the private person to hand over the arrested person to the Garda as soon as possible, it was prudent to make explicit provision for this. The new subsection (5) provides that persons who are arrested by a non-garda must be transferred into Garda custody as soon as practicable.
I am satisfied that the citizen's powers of arrest, set out in section 4, should not be significantly diluted. Existing sanctions regarding wrongful arrest on the part of a private person are adequate to ensure these powers will not be used irresponsibly. However, the amendments to modify these powers, having regard to concerns expressed by Deputies, improve the section.
I accept the logic of the Minister's amendments. On Second Stage I queried the concept of the arrestable offence. Under this Bill an arrestable offence is an offence which carries a term of imprisonment of five years or more. The section essentially provides, therefore, that a citizen's arrest cannot take place for an offence which carries a term of imprisonment that is less than five years. Is that correct?
Where the law provides for a sentence of five years or more, the offender might only be sentenced to two years by the court.
Where the law provides for a term of imprisonment of less than five years there is no arrestable offence provision for a citizen's arrest. Is that a good idea? There are several petty but serious crimes which carry a sentence of less that five years where it would be appropriate to provide for a citizen's arrest.
I am not aware of the Minister's attitude to zero tolerance. The British Labour Party, in its general election manifesto, has shown it is prepared to embrace the zero tolerance campaign. If that policy were adopted in this country it should not be impossible for a citizen to arrest another citizen for an offence which carries a term of imprisonment that is less than five years. Perhaps the Minister would clarify this point.
The objective of this legislation is to change the old concept of misdemeanours and felonies into arrestable and non-arrestable offences. Arrestable offences are those for which the law provides a sentence of five years imprisonment or more. This does not mean the judge always gives a five year sentence. The Senator has not given an example of the issue he has in mind. I assume he is not talking about someone being arrested for crossing the white line on the road. Countless arrests would be made if that were the case. I assume he is referring to drug related issues, car thefts, etc., which would be liable to sentences of five years or more. The power of arrest for felonies which existed in common law should not be extended for every petty action. If someone is speeding, it is up to the Garda to apprehend that person and convict them. Caution is necessary and I am surprised at what the Senator, who is a lawyer, said. Did he say it to show he is strong on the issue of crime and that he wants to ensure everyone guilty of a crime will be arrested?
The power of citizen's arrest is seldom used. No one I know has ever made a citizen's arrest. The most common use is by store detectives where someone is suspected of shoplifting. Usually, the store detective detains the person, gardaí are called and the person handed over to them. It is not a case of someone grabbing a person on the street, taking them back to their home and locking them up for a few days until they call the Garda. I am putting into this new legislation the common law right of citizen's arrest and installing safeguards to ensure it is not abused and that a citizen inclined to carry out an arrest will be protected. They can face penalties if they arrest someone who has not been involved in an arrestable offence or if it can be shown they arrested the person because they did not like them. We must be careful not to overplay the extent to which the power of citizen's arrest is used. It is not used in the way Senator Mulcahy might think. I am trying to get the tone right in this amendment. I listened to the debate in the Dáil and I believe the concerns expressed have now been addressed.
The Minister has struck a fair balance in trying to ensure this area is handled in a proper fashion. I appreciate Senator Mulcahy's position that it is important people who commit crime are brought to justice as quickly as possible. Citizens play a key role in ensuring the Garda has information and that evidence is available. The Bill also extends to the power of arrest to ensure criminals are brought to justice. However, a distinction must be made between an offence which warrants a citizen's arrest and one which does not. The Minister had to make a distinction somewhere. She decided on crimes which warranted a sentence of five years or more which is a reasonable balance. I fully appreciate what Senator Mulcahy said about ensuring citizens are fully involved at all stages in assisting the Garda and the State in bringing criminals to justice.
I have no difficulty with subsection (5). It is logical that a person arrested by a citizen pursuant to the subsection should be transferred to Garda custody as soon as practicable. That is common sense and should have been in the first draft of the Bill. Whenever anyone makes a citizen's arrest, for whatever reason, it is the Garda who should process the matter as quickly as possible.
I have not trawled through all the offences under subsection (4). I am not suggesting that there should be a right of citizen's arrest for every petty offence. Nothing would be more ludicrous than someone arresting an individual for throwing a cigarette packet on the ground or exceeding the speed limit by one mile per hour. We do not wish to live in a country where everyone behaves like members of the Stasi checking up on fellow citizens and holding themselves up as more righteous than the next person. However, I hope the Minister is satisfied that there are no moderately serious crimes which still have a term of imprisonment of less than five years which are not covered by this section. There may be old statutes which have not been updated dealing with matters serious enough to warrant a citizen's arrest. A through examination should be completed by Report Stage to ensure that there are no loopholes. I have no difficulty with five years being the cut-off point.
Section 4(4) of amendment No. 3 states that a citizen's arrest "may only be affected by a person under subsection (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána." I presume that the phrase "with reasonable cause" invokes an objective as opposed to a subjective test on the part of the individual effecting the arrest. If the arrest is subsequently examined by a court it will be a matter of an objective test as to whether the citizen had reasonable grounds to make the arrest. It must be an objective test as there are many cranks who could satisfy themselves that they had reasonable cause to effect a citizen's arrest.
I am worried by the wording of the second part of this subsection which allows an arrest to take place if an individual suspects that the person to be arrested "would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána." This places a heavy onus on the citizen effecting the arrest. It introduces a two stage test for the citizen. The first stage is that an individual must be satisfied that the person they are about to arrest has committed, or is attempting to commit, an arrestable offence. The second test is that, on an objective basis, that person is avoiding, or would try to avoid, arrest by a member of the Garda Síochána.
I accept the first test. Is the second test essential? Is it placing too high a burden on the average citizen to objectively contemplate whether the person who is allegedly committing an arrestable offence is trying to avoid detection by the Garda?
We are reiterating the same powers in relation to felonies which have existed since the foundation of this State. We are not breaking new ground. There has always been a power of citizen's arrest for felonies. This Bill turns some issues which were heretofore listed as misdemeanours into felonies, which carry a sentence of five years or more. We are upgrading a number of offences which were considered misdemeanours by the old Legislature. That is as it should be because some serious acts of crime were considered misdemeanours.
This Bill also corresponds with section 19(1) of the Criminal Law (Jurisdiction) Act, 1976, so we are not breaking new ground. The phrase "with reasonable cause" is a well-tested condition and has been subjected to thorough examination in the courts. I am not concerned about that.
It is important to note that the power of arrest on suspicion is only exercisable by a private citizen if an arrestable offence has been committed, whereby the citizen is immune from a civil action if he arrests the wrong person, provided the arrest is in good faith. It is important that someone does not go out and arrest people because he or she does not like them.
Whether or not a mistaken arrest was in good faith, the citizen is liable for damages if the alleged arrestable offence never happened. Whatever about arresting the right person, the citizen has to be absolutely sure there has been an offence. It is important in a democracy that a citizen's powers are well protected both from the point of view of the person who might be arrested and that of the citizen who can be liable for damages if they arrest the wrong person.
Amendment No. 3 proposes the inclusion of the phrase "...otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána." For example, if a serious incident occur, the gardaí are in the vicinity trying to arrest someone who has just broken into a shop or held someone up at gunpoint and that person tries to escape, it is possible for a citizen to gráb hold of that person and wait for the gardaí to catch them. Without this clause in amendment No. 3, it is possible that someone could say in their defence that they were first arrested by the person who grabbed them as they were trying to escape, not by the gardaí. Perhaps a good lawyer would contend that was not a valid arrest. This amendment protects someone who may assist the gardaá at the committal of a crime. If someone tries to escape and the gardaí chase them, it is valid for a good citizen to assist the gardaí, which happens occasionally.
Senators may think this power is suddenly being introduced for the first time and we will see a plethora of such incidences. This power has existed as long as felonies have been a crime. It is a little used power. We are trying to ensure, both for the person who may be arrested unlawfully and for someone who may think they are carrying out a lawful arrest, that safeguards are included in this legislation. Statute provides for a general power of arrest. There may be widespread abuse of this provision in the future or some non-arrestable offences carrying sentences of under five years may result in a huge demand for citizen's arrests but it is open to the Legislature to bring in new legislation for that. However, I do not think that will happen.
Amendment agreed to.
Government amendment No. 2:
In page 4, subsection (2), line 11, to delete "Where" and substitute "Subject to subsections (4) and (5), where".
Amendment agreed to.
Government amendment No. 3:
In page 4, between lines 17 and 18, to insert the following new subsections:
"(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsection (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.
(5) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable."
Amendment agreed to.
Section 4, as amended, agreed to.
Section 5 agreed to.
NEW SECTION.
Government amendment No. 4:
In page 4, before section 6, to insert the following new section:
6.—(1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.
(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter than dwelling unless—
(a) he or she or another such member has observed the person within or entering the dwelling, or
(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or
(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or
(d) the person ordinarily resides at that dwelling.
(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation of any enactment or rule of law relating to powers of search or powers of arrest.".
The acceptance of this amendment will involve the deletion of section 6. Section 6 deals with the Garda's powers of entry and search for the purpose of arresting persons suspected of arrestable offences. Senators will be aware this provision was the subject of a thorough and constructive debate in the Dáil.
The main concern which has been expressed about section 6 relates to the question of entry into dwellings without a warrant. The point has been made that the general nature of the provision in the Bill could be open to challenge on constitutional grounds. There was quite a serious debate on this in the Dáil——
And here.
Of course. I listened carefully to the concerns expressed. It was suggested that dwellings should be completely excluded, but I felt that was unnecessary. However, since the passage of the Bill through the Dáil and the Second Stage debate in the Seanad — my colleague, the Minister of State, Deputy Currie, was present for some of that debate in my place — I have consulted further with the Attorney General.
I have concluded it would be better to specify the circumstances under which the Garda could enter a dwelling to effect an arrest, having regard to the constitutional guarantee of the inviolability of the dwelling and the provisions of the European Convention on Human Rights. While the existing common law as to entry on dwellings to effect an arrest is somewhat complicated and uncertain, the amendment is designed, nevertheless, to ensure the powers the Garda currently enjoys in the case of felonies will be available in respect of arrestable offences and that the principle underlying section 6 — that of ensuring the Garda has an effective and proportionate power of arrest in these circumstances — remains intact.
The amendment provides that for the purpose of arresting a person without a warrant for an arrestable offence, a garda can enter a dwelling to effect an arrest, if need be by use of reasonable force, only in the circumstances specified in the amendment. An important difference between the amendment and the current text of section 6 is that, other than in the circumstances mentioned in paragraphs (a), (b) and (c) of subsection (2), the power of entry will apply only in the suspect's home, that is, where the person ordinarily resides.
The conditions set out in paragraphs (a), (b) and (c) reflect circumstances of urgency. The powers of entry in these circumstances would not have to be confined to a dwelling where a suspect ordinarily resides. These are, first, where a member of the Garda has observed the person within or entering the dwelling; second, where a member, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice; and third, where a member, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence.
I am satisfied that specifying the grounds for entry on dwellings in this way rather than providing for it in a general way, while not in anyway diminishing the principal underlying the section, is a preferable and more certain approach to this difficult area of law. I know gardaí themselves want to have absolute certainty about their powers in regard to entering a suspect's dwelling house, or that of a suspect's relative, because the Constitution protects one's right to privacy in one's home.
I thank the Members of this and the other House for the discussion on this section. We have tightened up the Bill and made it much more effective than the general clause which it previously contained. The principle has not changed. There will be powers of arrest without warrant for an arrestable offence. It would be unforgivable if we failed to give the gardaí powers of arrest of people who commit appalling crimes, leave victims behind and believe they can escape from justice behind their own doors.
This is a difficult and sensitive area because a citizen's dwellinghouse is protected and respected both by the Constitution and tradition. We must proceed cautiously when allowing the gardaí to enter the dwelling of any citizen without warrant.
I thank the Minister for introducing this amendment. Perhaps the Attorney General advised her that section 6 as drafted may have been successfully challenged with regard to its constitutionality. Has she received advice from him that the section as drafted will now survive such a challenge?
The amendment does not appear to provide sanction for a garda who acts wrongly. Unlawful entry into a household is a common law trespass for which the remedy of damages is ordinarily available. What will be the position if a garda misreads or misunderstands the section and enters a citizen's dwellinghouse in violation of his or her constitutional rights? The Bill does not provide any penalty in this regard. Will it again be a matter of common law damages?
Is the Minister sure the section is constitutional? The power it grants to an official to enter a dwellinghouse should be used sparingly. However, times have changed and criminals, especially hardened, professional criminals, should not be able to use the Constitution to cloak their murderous and dangerous activities. The Constitution is primarily meant to protect good people; it is not meant to protect bad people. However, the criminal justice system deals with the balance of proof. The general principle is that it is better that a few criminals should escape justice than that a few innocent people should be wrongly convicted. That is why there is such a high burden of proof in criminal cases. The Minister should be as certain as possible that the drafting of this section will not lead to abuse of this power. It would be undesirable if the section was used in situations that did not merit its application or if it was abused by a small minority of those involved in law enforcement.
We have a long tradition of the inviolability of the dwellinghouse. Where we move to reduce it we must do so sparingly. It has been done under the Road Traffic Act, 1996, which provides that where a suspected intoxicated driver flees to his or her house to seek protection, the gardaí have lawful authority to enter within the curtilage of the dwellinghouse to effect an arrest. However, this section does not equate with that provision, which is very specific. While I have no difficulty supporting the section, in principle, to ensure that hardened and professional criminals cannot escape justice, I hope the Minister is satisfied from the legal advice she has received that the section will not lend itself to possible abuse.
I support the amendment; it links to our previous discussion on the powers of arrest. It is important that the gardaí have all means available to them to ensure that criminals are brought to justice. However, it is important that the rights of innocent people are protected, including the right to live peacefully in their homes.
We must have confidence that the gardaí will use their powers not only to the letter but to the spirit of the law. We must also ensure that hardened, professional criminals do not misuse the situation to escape justice. Under no circumstances should a dwelling be used as a shield to abscond for the purpose of avoiding justice or to obstruct the course of justice. The Minister has endeavoured, within the Constitution, to ensure that the necessary powers are given to the gardaí while protecting the right to privacy in one's home.
The Constitution provides that the dwelling place is inviolable, save in accordance with the law and we are providing the circumstances in which the constitutional right to inviolability is changed in accordance with the law. The existing common law regarding entry to effect an arrest is complicated and uncertain. Senator Mulcahy is right to be concerned about this matter. The law was so uncertain that this area always came into question in the terms of whether the Garda can enter a person's home or somebody else's home to arrest that person with a warrant. The Bill provides an opportunity to tighten this area and ensure that protection exists for people's homes and the Garda. At present it depends on whether the offence is a felony and on certain surrounding circumstances. The power of entry is much in need of clarification because this area is unclear.
I assure the Senator, in so far as it is humanly possible for me and the Attorney General as mere fallible, mortal beings — although I do not diminish his great powers—to provide, that the legislation was drafted to the best of our ability to ensure it met the constitutional requirements. It would be unheard of for an Attorney General and his office to sign off legislation knowing that it was unconstitutional. I assure the Senator that, in so far as it was humanly possible for myself and the Attorney General, the legislation meets the constitutional requirements. However, this does not mean somebody will not challenge it in the future or that a court will not find something wrong with it. I cannot guarantee that will not be the case but I am as certain as I can be at present that it will not happen. The Senator as a lawyer is aware that many things are challenged because somebody decides that is what they want to do as a delaying tactic or for valid reasons. In so far as we can provide that the Bill is constitutional, we have done so.
The Senator asked what will happen if a member of the Garda Síochána gets it wrong. The section covers cases where a person is arrested on foot of a warrant and also cases where a garda does not have a warrant. However, the power does not extend to private citizens arresting somebody. They are not allowed enter a dwelling house unless they are accompanied by a garda. A private citizen must obtain the assistance of a garda if he is not in a position to carry out an arrest within his powers under this section without entering the place in question. If a person must get a garda, he or she rather than the private citizen can arrest the individual involved.
If a garda in good faith gets it wrong, no fault exists. If in the course of a trial proof emerges that the garda did it for malicious reasons, he or she may, like anybody else, have to pay damages and the case may be thrown out because of his or her mistake. I do not envisage that a garda would knowingly and wrongly enter a dwelling to make an arrest. It is probably fine if he or she has a warrant, but if they enter a dwelling for an arrestable offence without a warrant they must be certain they are acting properly. If it was found that they did not act properly, the garda would be subject to the usual disciplinary procedures and common law damages. In addition, they would have to explain their actions to the court. There are plenty of opportunities for redress if a garda does something wrong. The Garda Síochána disciplinary code also exists in that regard. I am as confident as I can be that the provision is correctly worded and constitutional.
I do not understand part of the Minister's reply. She said that if a garda in good faith gets it wrong, there will be no remedy against him or her. However, if a garda makes a bona fide mistake and enters a premises without meeting the section's requirements, there should be a remedy because the section transgresses an established constitutional principle and right. Accordingly, a garda who gets it wrong, innocently or otherwise, should be sanctioned because it is a serious matter.
I do not understand the structure of paragraphs (a) to (d) in the amendment because the word "or" is used between each paragraph. Paragraph (a) states that a member of the Garda Síochána shall not, unless acting with consent, enter a dwelling unless "he or she or another such member has observed the person within or entering the dwelling, or".
Any one of them.
Paragraph (b) concerns me because it states:
he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or
I support that principle but the first onus on gardaí in all cases should be, if possible and practical, to obtain a warrant for arrest. By including the word "or" before paragraph (b), it appears it is not essential. The Minister will agree that, as a general principle, it is much more satisfactory if a warrant can be obtained in the first place in all cases without affecting the administration of justice or enabling a person to abscond. That would be a much more healthy and constitutional position. I would prefer if compliance with paragraph (b) was essential before somebody could enter a person's dwelling.
I am confused by Senator Mulcahy's point. The Bill enshrines in law something which already exists but is unclear. I would not have introduced the Bill unless it was evident that some people escape conviction of serious crimes by hiding behind the inviolability of their residences. Sadly, we have reached the stage where we must make our laws appropriate to what is happening today.
Perhaps my confusion arises from some of Senator Mulcahy's earlier comments about zero tolerance. Everybody favours zero crime, drug abuse, speeding on the roads and over drinking. However, the Senator cannot have it both ways. Does he want the law to give the Garda the power to stop the small number of criminals who know the law probably better than most and use it to escape justice? The Bill covers certain circumstances and we must be practical. The Senator said he would prefer that compliance with paragraph (b) was necessary before the use of paragraphs (a), (c) and (d) was considered. However, a garda who is chasing somebody who has just held up a bank or committed murder and fled into their house, or somebody else's residence, may not have time to stop and seek a warrant. I agree with the Senator that it would be better if there was time for a warrant, but that is not always the case. If a garda is chasing someone with a gun into a house, he may feel that if he stops at the door of a house and goes back to the station for a warrant, the person might abscond from the house or hold someone hostage with the gun. The Garda should have the power to follow the person into that house and prevent him or her from obstructing the course of justice.
I agree.
If a person is observed entering the dwelling, having been followed from the scene of a crime, it is also right that Garda should have the power to go in. They should have that power if they suspect that before the arrest warrant could be obtained, a person could commit an arrestable offence, perhaps a second one after committing an offence already.
When dealing with people's dwellings one can get very virtuous and say the dwelling is absolutely sacrosanct. That does not hold water. If a man is beating his wife in his house, there has to be a way in which some sanction can be brought against him so that crime can be stopped. Beating a woman, inside or outside a house, is a crime. Some of the virtuousness we have when the word "constitutional" is used will have to be cast aside, as life is tough. I am satisfied that the "or" is correct and that these are four reasons why the Garda might have the right to go into a dwelling.
The Garda may do something wrong under section 6, although I hope not. They may come upon three or four people fleeing a crime scene and might follow one person to a house who might have run because he or she did not want to get caught for something else. The Garda might arrest that person when others committed the crime. It could happen, but should be seen as happening in good faith. If the matter did not arise in good faith, the normal recourse to legal action for damages would apply. A case of mistaken identity seems to have occurred in the last 24 hours, for example, but I do not have all the details so I will not comment on it. There is no reason to make a specific provision in the Bill for covering a mistake as that will automatically happen if it is proven that someone has made a mistake. The person affected would have the right to claim damages.
I am not trying to dwell unnecessarily on this but either something wrong is happening or I am misunderstanding this. I do not exclude the latter possibility.
Let us return to the Minister's example of someone committing a robbery and returning to their house. I have no problem with (b) as it applies to that situation and the case of a garda who has not time to get a warrant or who is fearful the person may abscond or obstruct justice. I support that. Paragraph (d) states: "the person ordinarily resides at that dwelling." Is that a ground that stands alone?
It is read with the whole section.
That is my point. The word "or"——
It stands alone as one of the "or"s.
A garda may suspect that Mr. X has committed an arrestable offence. He goes to that person's house and says: "I invoke section 6(2)(d). I know it to be a fact that this person ordinarily resides in this dwelling and I am going to arrest him without a warrant."
They can do that.
That is my point. In that case there is no urgency or danger of the person absconding or obstructing the course of justice. I suspect that most people would agree that in such a case a garda would still have to go through the process of getting a warrant when there is no urgency.
Several Revenue offences are arrestable offences. Can the Garda now enter a dwelling without a search warrant, where there is no urgency or fear of absconding or the obstruction of justice, when a search warrant could be obtained? I do not support that. I support (b), where there is urgency, but do we want gardaí arriving at doors without warrants in circumstances where a warrant could be obtained? That is why it would be more appropriate if there was an onus in non-urgent situations to obtain a warrant. Gardaí could get lazy. It is easier to arrest someone without a warrant than to get a warrant for that arrest.
I support the rolling back of constitutional protection of the dwelling for the reasons given by the Minister. However, I have a difficulty with trampling on the Constitution when it is not necessary and (d) is not necessary. It should be fully explained why we are to allow arrest without warrant in non-urgent situations.
The amended provision is much narrower than was the case with the original Bill because some of Senator Mulcahy's concerns were raised. Paragraph (d) is based on common law powers that exist for felonies. We have not broken any new ground here to allow for entry into a dwelling where a person ordinarily resides. The circumstances in paragraphs (a), (b) and (c) cover the matter of urgency. Obviously, where possible, the Garda will get an arrest warrant as they do now. However, there will be times when a warrant is inappropriate, such as those covered by paragraphs (a), (b) and (c).
Paragraph (d) is qualified by subsection (2), which states:
For the purpose of arresting a person ... a member of the Garda Síochána may enter ... and search any premises ... where that person is or where the member, with reasonable cause, suspects that person to be ...
The garda must suspect that the person has taken part in an arrestable offence. It is not the case that a garda can decide to enter a house and arrest someone. He or she must know or have reasonable suspicion that the person has committed an offence. The power is reasonably wide but the section is much tighter than it was in the original Bill. This is already allowed under common law and we are now putting it into legislative form. The Senator is right to be concerned that we do not go too far but this is an appropriate measure in today's Ireland. I do not believe it will be abused and I doubt the gardaí will often use paragraph (d). The main reason they would arrest someone without a warrant would be a suspicion that the person would try to obstruct the course of justice. If they observe in a house a person wanted for an arrestable offence they can use this power, which protects the gardaí as well as people in their dwelling. I will not amend the provision, if that is what the Senator wants, because I am satisfied this is allowable under common law. I am now providing more protection by including it in the Bill.
I respect the Minister's remarks but she has not convinced me. I have no problem with paragraphs (a) to (c) because they pertain to urgent cases. It is implicit in the Minister's last intervention that she accepts and wishes to underpin the principle that, in non-urgent cases, a member of the Garda Síochána will be allowed by statute, not common law, to enter the dwelling of a citizen and arrest him without warrant. I find that abhorrent and strongly oppose it.
They can do it now, and have been able to do so since before the Senator was born.
They may by common law but we are trying to devise good law. We should make the distinction between urgent and non-urgent cases and, in the latter case, it is nonsensical that a garda should not have to obtain an arrest warrant before entering a dwelling. If a person robs a bank or commits a mugging and enters a house the gardaí should have the power to arrest without warrant, but if a person commits, for example, a Revenue offence or breaches company law——
Those are offences also. Is the Senator saying there is a difference?
——and a garda knows where he normally resides, is it right that the garda need not get a search warrant but may short circuit the system and arrest him even though he is in his dwelling? The Minister can give no logically compelling reason for allowing a garda, in non-urgent cases, to enter a person's dwelling and arrest him. I cannot support a rolling-back of the constitutional protection of the dwelling in those circumstances.
I hope the Minister accepts my position. I support paragraphs (a) to (c) and accept that the constitutional provision of inviolability of one's dwelling should be amended to deal with urgent circumstances, for example where a person may abscond or obstruct the course of justice. I predict that this section will be challenged in the courts because it is wrong.
As the Minister says, this is in the common law but we do not have to follow blindly where that leads. Common law is made by judges and courts. Our job is to make the statute law good as we see it. I uphold the general principle that, where there is no significant difference or risk to the administration of justice, the onus should be on the gardaí in the first instance to obtain a search warrant to enter a citizen's dwelling; and if one is to allow that, there should be compelling and urgent reasons. The Minister has failed intellectually to convince that a garda should not ordinarily obtain a search warrant to enter a citizen's dwelling. For that reason I must consider opposing the section and perhaps putting down an amendment on Report Stage. I ask her to consider the matter before we proceed further.
I do not know what Senator Mulcahy is trying to do. His party colleagues in the other House were not as concerned as he seems to be to diminish existing powers. Where stands the zero tolerance policy? This is quite extraordinary — the Senator wants the power to exist but he also wants to portray himself as a mighty intellectual giant by opposing this provision. Gardaí are currently allowed to enter a place where a person ordinarily resides and I do not believe it would be a good day's work to diminish that power. I have included in this Bill areas where it may be urgent, practical and desirable that the gardaí obtain a warrant for an arrest and that is what happens. Nonetheless there are occasions they need legal protection to arrest someone without a warrant. If Senator Mulcahy is saying it is Fianna Fáil policy to erode the powers already available to rid this society of criminals who hide behind certain provisions of the Constitution and who think they can hire a clever lawyer to argue their rights are being infringed, I for one am on the side of their victims. I urge him to think again about opposing something which has existed for years — all we are doing is putting it into legislative form.
I like to think my intellectual capacity is not far below his but I am humble enough to accept that it might be. I do not follow his logic. This provision exists in common law and we are including it in the Bill. I do not know what his party colleagues will think about him trying to diminish the powers of the Garda, which exist to protect law abiding citizens. His remarks conflict with statements made by Fianna Fáil in recent weeks. However, I will not question the intellectual capacity of the Senator, which is obviously superior to my own. I do not understand the logic of what the Senator is saying. This amendment deals with arresting a person whom the Garda suspect, within reason, of having committed an arrestable offence. This concerns major offences such as major robberies, burglaries, rape, murder, mayhem and sexual assault. Is the Senator asking me to turn back the clock by diminishing the power of the Garda to follow people suspected of committing such crimes? It would be a bad day's work to do this and I hope the Seanad would not support such a move.
The Minister is deliberately trying to obfuscate the point I am making. It is not necessary to refer to my intellectual powers — we all come before this Chamber as equals. I am not trying to turn back the clock. I am not saying I disagree with section 6(2) (d) as proposed in the amendment. I ask the Minister to listen carefully——
I am listening.
I am not saying that a garda should be unable to enter the dwelling of somebody and arrest them without warrant. To help the Minister understand what I am saying I refer her to her own statement that "it would be more desirable that the gardaí get a warrant for arrest". Those are the Minister's words.
We are still giving them powers to arrest without a warrant. It does not always happen that they can get a warrant.
I agree with section 6(2) (a), (b) and (c) of the amendment. However, this section does not embody the philosophy outlined by the Minister that "it would be more desirable that the gardaí get a warrant for arrest". The Minister also used the word "preferable". However, under this section the garda has a choice. There is nothing which says it would be preferable for a garda to get a warrant in non-urgent situations where there was no obstruction and no fear of the person absconding. When there is no obstruction of the course of justice and no danger of a person absconding, the Garda should seek a warrant. The new section gives carte blanche to the Garda to choose between (a), (b), (c) and (d) at their own discretion. This conflicts with the Minister's philosophy as stated in her last intervention that “it would be more desirable that the gardaí get a warrant for arrest”.
The Minister cannot give an assurance, and will not try to give an assurance, that (d) will not be abused or that certain members of the Garda will not try to short circuit the system by using (d) rather than (a), (b) or (c). I am not trying to turn back the clock.
I cannot give the Senator an assurance that he will be elected next week or next year.
I am glad to hear the timing of the election. This section would be better phrased if it clearly stated that when all other things are equal, with no danger of obstruction or absconding, the Garda should get a warrant before entering a dwelling. The section could then say that if there was a danger of obstruction or of the person absconding, the Garda could enter the dwelling without a warrant. What is the difficulty in stating this? There is no difficulty.
I have already said that the amendment does not diminish the powers the Garda already have. If the Senator is asking for the powers to be diminished, I ask him to reconsider what he is saying.
I am not asking for that. I accept (d) as a principle but it should not be used in non-urgent situations. The Minister's attempt to defend the unconstitutional and illogical nature of this section by criticising me and saying I am not serious about the crime situation is laughable. I am trying to ensure that gardaí in non-urgent situations get a warrant to enter a dwelling.
We are aware of each other's positions. I forecast that the Minister will have difficulties with this section and that if it passes certain members of the Garda will use (d) in non-urgent situations resulting in many unhappy people whose dwellings are violated. The Minister is going too far. She did not properly think out section 6 before introducing it to the House. She obviously received advice from the Attorney General that the drafting was unconstitutional and returned to the House with an amendment.
We did not receive that advice. I listened to the debate and decided to firm up the section. We did not get advice that it was unconstitutional. I remind the Senator that the last time a Member of the Oireachtas — namely, the eminent senior counsel, Deputy McDowell — said they were correct in saying that the legislation was unconstitutional, he had to eat humble pie when the courts found he was wrong. The Senator should be cautious in being so adamant that this legislation is unconstitutional.
The Minister obtained the benefit of Deputy John O'Donoghue's wisdom. The Minister changed the section after introducing it. Deputy O'Donoghue said his advice was that section 6 as introduced was unconstitutional. The Minister obviously had second thoughts about the section resulting in a redrafting of it after the real Minister for Justice, Deputy O'Donoghue, pointed out——
He has made too many false promises.
The Minister has adopted many pieces of his legislation. This section was changed because of his intervention in the Dáil.
The Senator has spent the last hour objecting to it.
Intellectual gymnastics.
If Senator Neville has a point to make then perhaps he will make it properly rather than guffawing. The original section 6 has been changed by the Minister on further advice and reflection. I see a problem with the section as now drafted because it puts no onus on the Garda to obtain a search warrant in non-urgent situations. In urgent situations I fully support and accept that a garda should be able to enter a citizen's dwelling without obtaining a search warrant. However, there is no justification in non-urgent situations for a garda to enter a citizen's dwelling without a search warrant. The Minister has failed to provide a good reason that in non-urgent situations a garda should not obtain a search warrant.
Amendment put and declared carried.
An Leas-Chathaoirleach
Acceptance of this amendment involves the deletion of section 6.
Section 6 deleted.
Sections 7 to 17, inclusive, agreed to.
First to Third Schedules, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
When is it proposed to take Report Stage?
I wish to put down an amendment on Report Stage.
An Leas-Chathaoirleach
Does the House wish to recess for some time to enable Senator Mulcahy to draft an amendment?
We could recess for ten to 15 minutes. I would like to facilitate Senator Mulcahy.
I do not want to hold up the Bill but I need time to draft an amendment.
An Leas-Chathaoirleach
The order of the House is that there will be a sos from 1 to 2 p.m.
Sitting suspended at 12.25 p.m. and resumed at 12.50 p.m.