Amendments Nos. 2, 3, 4 and 5 are related to amendment No. 1.
Amendments Nos. 1 to 5, inclusive, may be debated together.
Vol. 151 No. 8
Amendments Nos. 2, 3, 4 and 5 are related to amendment No. 1.
Amendments Nos. 1 to 5, inclusive, may be debated together.
This is a technical amendment to insert a comma.
Fianna Fáil put down amendments to this section on Committee Stage in the Dáil. A threat to kill is a serious offence. If the threat goes wrong it will result in the death of the person and a charge of murder. Imprisonment for a term "not exceeding" 12 months is not a huge sentence. The same words regarding sentences appear in many sections of the Bill. It would have been better if the words "not exceeding" had been changed to "not less than". In the case of other offences, the term "not exceeding ten years" should be changed to "not less than ten years". I might be incorrect in my interpretation of this section, but it appears to be extremely light punishment for a crime that is very close to murder. The offence is a threat to kill. A person who sets out to cause the offence stated in the section is not beyond killing another person, especially where the abuse of drugs is involved.
I do not intend to hold up the passage of the Bill because it is good legislation. My colleague from Kerry, Deputy O'Donoghue, contributed a great deal to its introduction. As the Kerry football team is doing so well, it is no harm to mention our local Deputy.
That is hardly relevant to the Bill, Senator.
In all sections of the Bill which provide for penalties, the words "not exceeding" should be replaced with the words "not less than". I am trying to be helpful.
I steered this Bill through Committee Stage in the Dáil and I had an interesting exchange of views with the Senator's colleague from Kerry.
He is a nice guy, like the Minister of State.
He is a very nice guy and we got along well. He is a practising solicitor and I, unfortunately, am a humble layman.
The Minister of State is most fortunate.
However, I had to point out to the Deputy that it was not the practice for Ministers for Justice to legislate for mandatory sentences. Sentences are provided for in legislation, but the judge should have the latitude to impose a higher or lower sentence, given the existence of a maximum rather than a minimum in the legislation, because there could be mitigating circumstances. The Senator's learned colleague has experience in the courts and he might have to go to court to defend a client on a charge. Part of his defence might rely on mitigating circumstances in which intent and premeditation would be taken into account. It might not be good or safe law to provide, notwithstanding those circumstances, for a mandatory minimum sentence in every event. There could also be constitutional difficulties in that regard. I made these comments to the Senator's colleague and he did not disagree, so I presume they will be acceptable to the Senator.
I will not disagree. However, can the Minister of State outline a mitigating circumstance under this section that would warrant a sentence of less than 12 months?
The Kerry full-back saying to the Meath full-back: "I will kill you".
I cannot envisage a mitigating circumstance under this section. It clearly provides for threats to kill. Whether or not a person can be half or quarter killed, the intent is still there.
Did the Senator ever threaten someone?
I agree with whatever the Minister says because he is in charge. However, draconian laws are needed to curb occurrences of crime on the streets. I am not blaming the Government for the dilemma with which the Garda and Justice have been presented. This Bill covers a number of circumstances. The scourge of drugs and its effects is detested. Are there mitigating circumstances where a crime specified under this section could warrant less than a 12 months sentence?
It might be excusable in the case of certain individuals.
I cannot think of one under the section. I know the Senator is a solicitor, but does she know of a lesser crime? Threats to kill are exactly that. There is no in-between so there is no lesser case to plead. While I agree with the law and justice, a provision of not less than 12 months would be better.
I am not an expert in this area but I still contend there can be a difference in a threat to kill, whether it is written or otherwise. The manner and method in which the threat is made gives an indication of the intention of the person concerned. The circumstances in which the threat is made needs to be taken into account in determining whether there is a wilful intention to cause bodily harm which could result in serious injury or death. Circumstances can differ considerably depending on the environment at the time.
Section 5 (2) provides that the maximum penalty on conviction on indictment is ten years. The Law Reform Commission recommended a maximum of seven years because the offence of threatening to damage property in section 3 of the Criminal Damage Act, 1991, is punishable with a maximum sentence of ten years. This is being brought into line as it would be anomalous to have a lower penalty for threats to life.
Notwithstanding the Senator's reservations, there can be a difference in threats made. We have all heard of circumstances where one person has threatened another. However, there is a vast difference between an off the cuff remark and a deliberate threat made verbally or in writing. This is envisaged in this section.
Section 10(1) states:
Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
Does this include members of the press? Journalists harass people at funerals and tragic incidents when people request privacy. Does the section cover television crews who harass and follow people on the streets?
It is an invasion of people's privacy.
It seems to be a broad area. While I was listening to the radio yesterday morning, I heard of a murder case in Bundoran where a mother had to appeal to the media to leave her family alone. It is shocking when photographers with telephoto lenses invade people's privacy. Is this type of activity included under this section and will it be stopped when this Bill is passed?
I agree with Senator Farrell and know of incidents where the section should be applicable. For example, a telephoto lens was used to photograph the singer of "Lady in Red" in his house. It is despicable. A former Minister was also subjected to disgusting harassment of this type in a national newspaper. We all know about the article, which involved his private life. The way the newspaper in question behaved was disgraceful. It does not matter what he did, his family did nothing and should not be subject to harassment. It is possible that if this Bill is passed, it will apply to these cases. It is time it did.
I draw a distinction between public and private lives, even though there is a line in public life which should not be overstepped. There was one case which related to a lady in Kildare who was murdered in tragic circumstances. At the funeral the photographers almost got into the hearse, which was objectionable and insensitive. I tackled — if I may use that word in the present context — one of these people afterwards who said the public had a right to know. I do not think they have this right and if they do, it is not with the use of those tactics. In circumstances such as that it would be desirable that the law be invoked to ensure the invasion of privacy would be minimised.
The journalistic practice for many years was that people in mourning were left alone and not subject to close-up shots by telephoto lenses. It is appropriate to take photographs of public persons at funerals; but chief mourners, irrespective of whether they are public persons, should be left alone. During the funeral of the late Brian Lenihan, a party colleague of the Minister's who was in the news was photographed at prayer in the church. That is not acceptable. I presume this Bill cannot be used in those circumstances, but it could be in the case of the murder I gave an example of where the family was almost jostled aside to obtain pictures.
The Bill was not introduced with that senario in mind. However, I note the points raised by Senators. I recall the cases to which Senator Dardis referred. We must recognise that it is traditional that at times of bereavement, space, time and privacy should be given to those in mourning. As our society develops, it appears to have become more important for a person to get a quick quote at the right time, for reasons best known to him or hereself. I am not sure the Bill covers this, but it could if it were determined by the court that there was severe and serious harassment thereby making the victim feel that he or she was in danger, threatened or intimidated. I presume it would be a defence in such circumstances that no harm or ill was intended and it was merely in the pursuit of information and so on. That point was raised by Senator Dardis. As a non-legal person I believe it would be a question of whether the pursuit of information for the benefit of the general public or the protection and privacy of the individual was the greater need.
It is sad to see someone who has been tragically bereaved being asked for a comment. I do not know what comment one could make in such circumstances. The bereaved person or the injured party should be given the time and space to grieve and should not be subjected to intimidation or harassment. I hope that message will get across. This section is intended to deal with another type of insidious problem, to which I referred earlier, which has become more prevalent in recent times and which is completely and totally unacceptable.
Are private detectives covered under the Bill or are they exempted from it? Private investigation is another form of harassment. Private detectives are hired to pursue people and take photographs of them and that can be nerve wracking whether done for genuine reasons or not. Has a person a right to personal freedom? I do not think civilians should be in that business which seems to be a growing one for insurance and other reasons. If there is a problem, the Garda should deal with it.
The Bill was not introduced to cover such matters. Cases may be brought by an individual against another person or against the State if they perceive that an offence has been committed against their personal liberty. It would be a matter for a judge to decide whether their activities were in conflict with the terms and the spirit of the section.
The section states that a person shall be guilty of an offence who intentionally engages in conduct which creates a substantial risk to another. Does that include sports such as kickboxing, fencing, duelling, motor racing, stock car racing, rugby or ice hockey where people set out to hurt and damage one another? Are these categories excluded under the Act?
It would appear that there is no intention in most sports to maim or cause serious bodily harm although suggestions have been made to the contrary. This section is intended to cover a situation where it is felt that the object of an exercise is to maim and where it is clearly determined that a person will be liable on summary conviction and so on. The objective in sport is to participate and win or lose as the case may be. The purpose of feneing or kickboxing is not to maim but to score on a points system and to ascertain which of the competitors is the better one. With regard to ice hockey, I assure Senators that the purpose of the exercise, despite illustrations to the contrary, is not to maim other competitors. If one pursues an activity the purpose of which is to maim or cause serious bodily harm, the section would apply in such circumstances.
I do not want to prolong the debate but I want to ensure that this is good legislation. I understand that the intention in professional boxing is to harm the other competitor and knock him out. When people are knocked out they suffer some degree of damage to their body.
I note the Senator's point but the purpose of the exercise in professional boxing is not to maim or injure, rather it is to score points against the other person. That is the way it is supposed to work. Occasions arise in games of football or hurling——
Especially when Meath is in the All-Ireland final.
——or any other game where unintended injuries occur and over which a legislator has no control. The purpose of this section is to deal with cases where there is a deliberate, premeditated attempt to intimidate, injure, maim or cause death or serious injury.
Amendment No. 5 has already been discussed with amendment No. 1.
This section is a good one. The Minister referred to tug of love situations of which there have been many in recent years. How far does this legislation go in the event of a person taking a child out of the State unlawfully? Can that person be brought back into the country? We have seen a number of cases where a child or children have been abducted late at night and taken to a foreign country. What effect will this legislation have in returning those children to their proper home or parent? If a court decides that a child, or children, should reside with their father or mother, has this legislation any jurisdiction outside of the State to ensure that is so? Is there any way we can bring such a person back from a foreign country? If this is not provided for it is pointless having this legislation. Anybody within the State will normally come under existing laws. However, the section refers to taking a child under the age of 16 years out of the State. I agree with the provision but it is not much good having it in the Bill. What good will it do if we cannot pursue a person who kidnaps or abducts a child under 16 years and takes them out of the State?
We have adequate laws to deal with the problem within the State. It is not a very big island. What will be the effect of this Bill outside the State?
The section is aimed at what have become known as tug-of-love cases where one parent takes his or her child out of the jurisdiction in defiance of a court order or without the consent of the other parent. The incidence of this type of abduction has become more prevalent as people from different countries and cultures come increasingly into contact, marry and have children.
There are two international conventions dealing with the matter, namely, the Hague Convention on the civil aspects of international child abduction and the Council of Europe convention on the recognition and enforcement of child custody orders, which is also important. Ireland ratified both conventions following enactment of the child abduction and enforcement of custody orders legislation of 1991.
Subsection (1) makes it an offence for a person to whom the section applies to take a child under the age of 16 years out of the State in defiance of a court order or without the consent of each person who is a parent, guardian or person to whom custody of the child was granted by a court unless consent of the court was obtained.
In the case of countries with whom we have an extradition agreement, matters could be resolved more easily where a child is taken out of the country. In other cases it is not so easily dealt with. We have all heard of cases in other jurisdictions with which we do not have extradition arrangements. The process in such circumstances may be difficult, tedious and long drawn out. In a number of cases these procedures were embarked upon to bring the person back to the jurisdiction again. However, this does not resolve the problem.
I know it is difficult to determine when a child is at risk. There may be no evidence of threats having been made. This Bill purports to deal with the situation in so far as one can with other jurisdictions which have a similar inclination.
Earlier I asked a question on subsection (3) (d) which refers to a person in a state of intoxication. Does this mean that if I protect my property from somebody who is attacking it and the person claims they were intoxicated at the time they can get off scot-free? What does the phrase "he or she was in a state of intoxication" mean?
While taken into consideration, it is not a complete defence to claim that the person was in a state of intoxication. In certain circumstances an act will be regarded as a crime or criminal even though the person doing the act is not held to be criminally responsible. When the children's legislation is enacted, the reference to seven years in paragraph (a) will require to be changed. Intoxication is not as such a defence in a criminal charge. However, it is mentioned in paragraph (d) to cater for the special case identified in a particular instance, namely, the Kingston case in 1993, where the defendant has the intent to commit the forbidden act but his or her conduct is not criminal because his or her ability to resist the desire to do the act was reduced or excluded by involuntary intoxication. I presume "involuntary intoxication" means the person themselves did not become intoxicated, but that it was introduced to them by other means.
The section does not mean that intoxication is a defence in itself. My understanding is that it refers to where the court, in particular circumstances, will examine a case to determine whether intoxication is germane to it.
I am not familiar with the Kingston case. However, I understand that the reference is to somebody intoxicated without their consent, be it from drugs, alcohol, etc. It seems extraordinary to take that into account. I have rarely seen anybody involuntarily intoxicated. Responsibility generally lies with the person. If it is necessary to provide for this then so be it but it is extraordinary that anybody could be said to be of diminished responsibility because they were drunk.
I do not have a note on the Kingston case referred to but if I had a note on the circumstances pertaining to it I could probably resolve the queries raised by the Senators. Otherwise it would not have been listed as such.
If I am reading this section, which is a good one, correctly, this is the first time in legislation that a person can protect themselves where a crime is being committed. There was a recent case in the west where an elderly man resorted to using a gun to protect himself and rightly so. I supported him at the time and still do. This section is far-reaching because I have been told, although I am a layman like the Minister, that in the case of a criminal who has an accident while breaking into another person's property, that person could be held liable. In other words, if somebody is breaking into a store through a skylight and falls and hurts themselves, the criminal could bring an action against the owner of the property and win the case. Under this section, particularly the first part, does that mean we will see no further such cases and that if a criminal gets hurt on a premises the owner of the premises will not be responsible? Even though it is something we should not welcome that much, a person should at least have a right to protect themselves. There have been a couple of such cases in recent years where violence was used and I am not sure whether criminal charges arose. Does this Bill indemnify the owner of the property which a criminal is breaking into?
My understanding is that the circumstances to which the Senator referred, whereby a criminal could claim negligence on behalf of the householder in the event of the criminal entering the house with felonious intent, have been changed. It does not occur now. From memory, the case used to be that a householder was negligent.
Notwithstanding that, I remember a case which took up quite an amount of space in newspapers several years ago when somebody was protecting their property in a way which was also dangerous to unsuspecting visitors, even though the person attempting to visit the property might have no intention of committing an offence as such. In those circumstances there is provision in the Bill if it was felt that something extraordinary was done which could present a threat to a casual passer-by. There would still be a problem there. In so far as I am aware, the situation whereby a person could claim damages against the property owner while they were in pursuit of felonious activity has rightfully gone by the wayside.
Subsection (1) sets out various situations in which reasonable force may be used. It provides a defence against both criminal and tortious acts, but where force is used to protect against trespass to another person or another person's property the force must be used with the authority of that other person. So if you are moving into a second or third party situation the same obviously does not apply to the same extent.
That is to prevent meddling, or intermeddling, as the Bill refers to it. Generally speaking the Bill is pitched in such a way, following recommendations made by the Law Reform Commission, as to meet the requirements which have been referred to both here and in the Lower House over many years. I feel it will be effective in doing that.
One must wait until the law is tested in the courts to see how it works. We may be compelled in future to react more quickly and bring about changes in legislation. For example, we have changed the Offences against the Person Act, 1861, in many ways. There is a need to update our legislation and bring it on stream in a way that is meaningful to today's situation. This Bill simply does that.
The purpose of this amendment is to abolish the common law offence of assault occasioning actual bodily harm, which is being replaced by the new offence under section 3 of "assaulting another causing harm to him or her".
The purpose of this amendment is to amend the Schedule to the Bail Act, 1997. It is no harm to recall references I made a few moments ago to the need to modernise legislation and to interlink it with legislation which may have an interdependency with it, thereby strengthening either the current legislation or the previously enacted legislation.
Section 2 of the Bail Act, 1997, provides that bail can be refused by a court where the person is charged with a serious offence and where such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.
"Serious offence" is an offence specified in this Schedule to the Act, and an offence meriting at least five years imprisonment. Five offences mentioned in the Bail Act Schedule are being repealed by the Non-Fatal Offences Against the Person Bill, and four have been replaced by modern equivalents. Accordingly, a technical amendment to the Bail Act Schedule is now necessary.
The offences in question are: false imprisonment; kidnapping; assault causing actual bodily harm, section 18; wounding with intent to do grievous bodily harm; and section 20 of the Offences Against the Person Act, 1861, causing grievous bodily harm.
There are also a number of new offences in the Non-Fatal Offences Against the Person Bill, carrying penalties from five years to life, which the Minister considers should be included in the Schedule to the Bail Act. These new offences, which are now proposed by way of amendment to include the Bail Act Schedule, are as follows: section 5, threats to kill or cause serious harm, for which the maximum penalty is ten years imprisonment; section 6, syringe attacks, for which the maximum penalties, depending on the nature of the attack, are ten years or life imprisonment; section 7, possession of syringe, for which the maximum penalty is seven years imprisonment; section 8, placing or abandoning syringes, for which the maximum penalties, depending on the circumstances and seriousness of the offence, are seven years or life imprisonment; section 9, coercion, for which the maximum penalty is five years imprisonment; section 10, harassment, or stalking as it is more commonly known, for which the maximum penalty is seven years imprisonment; section 13, endangerment, for which the maximum penalty is seven years imprisonment; section 4, endangering traffic, for which the maximum penalty is seven years imprisonment; section 16, abduction of child by parent, for which the maximum penalty is seven years imprisonment; and section 17, abduction of child by others, for which the maximum penalty is seven years imprisonment.
The House will appreciate that these are all serious offences. In particular, I draw the attention of the House to the offences concerning syringes and the offence of harassment, or stalking as it is known, from which there is a real need to protect the individual and the community. It is of course only right when creating new offences of this nature to ensure that all the protection of the law available for comparable offences is also available for the new offences. Accordingly, this amendment will ensure that the provisions of the Bail Act, 1997, will apply to the offences I have mentioned.
I thank all Members of the House for their participation in the debate on this Bill. It is an important step in the process of legislative reform which the Minister for Justice has been putting in place since she took up office. Most of the 17 Bills she has published this year, and hopefully all of which will be enacted shortly, represent a very significant strengthening and modernisation of the law to provide the fullest and most effective protection for society against criminal attack.
This Bill is an important part of that legislative reform because it replaces offences which lie at the core of criminal law with provisions more responsive to modern needs, including provisions for new forms of criminal misconduct, such as syringe attacks and stalking, which, unfortunately, have become a problem in recent years. This Bill, when enacted, will be a valuable legislative instrument in the fight against many forms of criminality. It will be a modern statute to meet modern needs.
I thank Members for their contributions and for raising matters about which the public is concerned. This Bill, when enacted, will be valuable in the fight against the criminals and will help to level the playing pitch for the citizens who need protection.
I thank the Minister for the way he dealt with this Bill. It is part of Fianna Fáil's policy to bring criminals to justice because they have had it soft for too long.
It was only in the past few years that criminals were treated as people who should be honoured. I hope the Minister provides additional prison spaces for criminals so that people can feel safe walking on the streets or country roads.
I also thank the Minister for bringing this Bill through the House. It is an important part of the armoury of the Minister for Justice in her fight against the criminals in our society. I thank the Law Reform Commission for its work in this area and for publishing an excellent report. Although the Opposition claims it initiated the Bill, I am sure it referred to the report of the Law Reform Commission. The Government considered its report when publishing this Bill. I thank the Minister's officials for their work on this important tool for tackling criminal activity.
Although I have some reservations about the Bill, I thank the Minister for the good humoured and courteous way he dealt with our queries.