I remind Senators they may speak only once on Report Stage except the proposer of an amendment, who may reply to discussion on amendment. Each amendment must be seconded. I wish to correct a typographical error in amendment No. 1. There should be no full stop after the word "arises".
Criminal Law Bill, 1996: Report and Final Stages.
I move amendment No. 1:
To amend line 25 of the text inserted by Government Amendment No. 4 in Committee by the insertion of "and either paragraph (b) or (c) arises" after "dwelling".
The rationale behind the amendment is clear. Unless the type of situation envisaged under section 6 (2) (b) or (c) arises, there should be an onus on a garda to get a warrant for the arrest of the person concerned. The amendment does not seek to stop a garda from entering a dwelling without an arrest warrant but that he or she should only do so without a warrant if section 6 (2) (b) or (c) arises. Section 6 (2) (b) and (c) are well drafted and set out situations where it would be expeditious for a garda to arrest without warrant. We are as anxious as the Minister to assist in the fight against crime and that is the reason we consented to rolling back the constitutional protection. By giving a garda a choice of paragraphs (a), (b), (c) or (d), we are going too far. I implore the Minister to accept the amendment.
I second the amendment.
The Senator's amendment seeks to refine the paragraphs set out in the section 6 to circumstances of urgency only, that is, circumstances dealt with in paragraphs (a), (b) and (c) of the new section. He has done so by making paragraph (d) conditional on paragraphs (b) or (c). While existing common law on entry into dwellings to effect an arrest is somewhat complicated and uncertain, the amendment, including paragraph (d), is designed to ensure the powers the Garda currently enjoy in the case of felonies will be available in the case of arrestable offences. I am putting into law what the Garda already has by way of powers. The principle underlying section 6, that is, ensuring the Garda has an effective and proportionate power of arrest in these circumstances, remains intact.
I am putting into law what has heretofore been in common law and which has been backed by the courts. The courts made it clear that it is necessary for the Garda to enter a person's dwelling without a warrant to carry out an arrest. I am not putting anything new into law but something which has been common law.
I consulted with the Attorney General, the Garda and others on this section. I am satisfied this provision is proportionate, necessary and balanced. It would be a serious retrograde step to roll back existing powers of the Garda. It is incomprehensible for a Fianna Fáil Senator to suggest removing a power from the Garda to arrest somebody suspected of being involved in a crime serious enough to warrant a five to 15 year sentence. It is difficult to understand the reason Senator Mulcahy tabled such an amendment.
Senator Mulcahy said I did not explain my proposal, but he has not explained to me or Senators on this side of the House what he is doing in trying to diminish the powers of the Garda. Unfortunately, we reached a stage where we had to change our drug trafficking laws to give the Garda extra powers because people coming from other jurisdictions needed to be questioned for more than 24 or 48 hours and to increase the powers of the Garda, the Revenue Commissioners and the Department of Social Welfare under the Criminal Assets Bureau Act to deal with serious offenders.
It would be wrong for Senators and me, as Minister, to accept a diminution in the powers of the Garda. I urge Senator Mulcahy to think carefully before calling a vote on this amendment and leaving himself open to criticism that one half of Fianna Fáil do not understand what the other half said. I urge the Senator not to press his amendment. I hope he is satisfied that I am putting into law a power available to the Garda and which the courts have backed. I hope the advice of the Attorney General, the courts and that which I have given as Minister will bring greater pressure to bear on Senator Mulcahy than his own thoughts.
I object to any diminution in the powers of the Garda at a time when citizens are concerned about the level of crime and when the Minister is increasing the powers of the Garda to try to tackle crime. We should not roll back the powers of the Garda in fighting crime and arresting people who have committed crimes. It would be a retrograde step to decrease the power of the Garda to fight crime and to arrest people who have committed crime. The Seanad should not accept a measure which would decrease that power. Indeed, it should seriously examine the possibility of giving the Garda more powers to fight crime and to ensure our citizens are protected.
Acting Chairman
As it is 1 o'clock I ask the Leader of the House to move that the Order of Business be amended to allow the House to sit later than 1 p.m.
I move.
Question put and agreed to.
There is obviously a misunderstanding or plain disagreement between the Minister and myself. The amendment does not propose the deletion of the power of the Garda under subsection (d).
In effect it does.
It does not. It does not remove the power of the Garda to enter somebody's premises or dwelling house and arrest the person without warrant. We are saying that the power should only be used in situations which are urgent or where the administration of justice will be obstructed.
The Senator is trying to have it both ways. He is pretending he is not seeking to delete subsection (d) but, in effect, he is.
This is the second time, since the Road Traffic Act, 1996, that the Oireachtas has given the Garda Síochána statutory power to arrest somebody in their dwelling without a warrant. We accept that power.
That is not correct.
We are saying the powers should only be used in circumstances that are urgent and involve the obstruction of justice. They should not be used on a day to day basis because there is constitutional protection of a person's dwelling. We are not opposing the power but we are seeking to provide that it be used sparingly and only in limited cases. If the Minister cannot understand that point there is a problem in how she and I use language. The Garda should have the power where the person ordinarily resides in that dwelling but only where either paragraph (b) or (c) arises. We will press the amendment.
The subsection is similar to section 19(5) of the Criminal Law (Jurisdiction) Act, 1976, and section 12(6) of the Criminal Damage Act, 1991. The latter was passed when the Senator's party was in Government in a happy union that did not last with the Progressive Democrats. The Senator is wrong to say I am doing something revolutionary. I am not. I am giving a statutory basis to the powers the Garda currently have.
Amendment put.
The Seanad divided: Tá, 11; Níl, 20.
Tá
- Byrne, Seán.
- Daly, Brendan.
- Dardis, John.
- Honan, Cathy.
- Lanigan, Mick.
- McGennis, Marian.
- Mulcahy, Michael.
- Mullooly, Brian.
- O'Brien, Francis.
- Ormonde, Ann.
- Wright, G.V.
Níl
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cotter, Bill.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Hayes, Brian.
- Kelly, Mary.
- McDonagh, Jarlath.
- Magner, Pat.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
Tellers: Tá, Senators Ormonde and Mulcahy; Níl, Senators Burke and Magner.
Amendment declared lost.
Bill received for final consideration and passed.
Sitting suspended at 1.15 p.m. and resumed at 2 p.m.