Seanad Éireann debate -
Tuesday, 4 Nov 1997

Vol. 152 No. 9

Interpretation (Amendment) Bill, 1997: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank Senators for agreeing to sit at this late hour to consider the Bill.

Claims have been made in a number of recent cases that the abolition of common law offences by section 28 of the Non-Fatal Offences Against the Person Act, 1997, means that prosecutions cannot now be instituted in respect of such offences if they were committed before the enactment of that legislation.

On 2 September a submission was made by a defence lawyer in an assault case in Kilkenny to the effect that the court had no power to hear the case because the alleged offence took place on 24 May 1997, prior to the Act coming into effect. However, the hearing was to take place following the abolition of the offence. That case was adjourned to enable the Director of Public Prosecutions to make submissions. During the adjournment period the defendant, on 30 September, sought and obtained an injunction from Mr. Justice Moriarity in the High Court restraining the judge from hearing the case until the point had been decided by the High Court. That application is now before the High Court awaiting a hearing date.

On Wednesday last, 29 October, the Special Criminal Court decided that, as a result of the provisions of the Non-Fatal Offences Against the Person Act, 1997, it did not have jurisdiction to decide whether the accused in question was guilty or not guilty of the offence of false imprisonment. The accused was convicted of other offences for which he received a substantial prison term. The following day, Thursday, 30 October, Mr. Justice Morris, sitting in the High Court as a judge of the Central Criminal Court hearing a case of murder and false imprisonment, decided that the jury could consider the offence of false imprisonment. The accused was convicted. Mr. Justice Morris made it clear that he was not making a definitive judgment on the issue.

That afternoon, Thursday, 30 October, Mr. Justice Carney in the High Court gave leave to an accused remanded in custody awaiting trial before the Special Criminal Court on a charge of false imprisonment to apply for a habeas corpus order. That application was returnable for last Friday, 31 October, when it was adjourned on consent to enable the Attorney General and the Director of Public Prosecutions to be made parties.

On Friday, 31 October, Mrs. Justice Catherine McGuinness sitting as a judge of the Central Criminal Court hearing a case of attempted rape and false imprisonment, ruled that a charge of false imprisonment could not be considered by a jury. Like Mr. Justice Morris she made it clear that she was not giving a definitive judgment on the issue. Those decisions have introduced uncertainty into an important area of the law.

I do not believe that section 28 of the 1997 Act has the effect claimed in those cases. If the Legislature had intended that acts which were clearly criminal under the law as it then applied should not now be prosecuted if they were committed before section 28 came into effect, the Legislature would have said so plainly. It seems the clear intention was that criminal behaviour occurring before the 1997 Act would continue to be prosecuted under the old law and that similar behaviour occurring after the 1997 Act would be prosecuted under the replacement offences provided by the Act, which offences, as I indicated, are largely identical to the offences abolished. I should mention that for some years past it has been the practice to abolish common law offences in the terms of section 28 and no questions were asked.

Senators will know that the Non-Fatal Offences Against the Person Act, 1997, was passed by the Oireachtas on 19 May 1997 and became law as regards the section 28 provision three months later. Section 28 of the 1997 Act abolished the common law offences of assault, assault occasioning actual bodily harm, false imprisonment and kidnapping. In place of these common law offences the Act created new statutory offences which were largely identical to the offences repealed. Section 2 created an offence of assault in place of the common law offence of common assault, section 3 created an offence of causing harm to another to replace the old offence of assault occasioning actual bodily harm and section 15 created an offence of false imprisonment to replace the old offences of false imprisonment and kidnapping. For some years past, the practice has been to charge kidnapping as false imprisonment so kidnapping as a separate offence had become redundant.

One way of dealing with the problem would have been to await the resolution of the matter by the superior courts and bring forward legislation only if that became necessary as a result of the judgment of the court. However, in view of the challenges that have been and continue to be mounted to section 28, there is an urgent need to bring certainty into the matter. Also, the large number of common assault cases standing adjourned in the District Court and the likelihood of more cases seeking adjournments and judicial review are threatening severe administrative problems. In all the circumstances, the Government has decided to bring forward this Bill urgently to rectify the matter.

The Bill takes the form of an amendment to the Interpretation Act, 1937. It is, in fact, closely modelled on section 21 of that Act. It provides simply in section 1(2) that where a common law offence is abolished, abrogated or repealed by a statute, proceedings for the offence may be instituted, continued or maintained in respect of the offence as if the offence had not been abolished or repealed. The provision applies, that is subsection (3), whether the common law offence is abolished before or after the enactment of the Bill. The effect is that where these offences have been committed before the abolition of the common law offence proceedings can be instituted under the law as it applied at the relevant time and where similar offences are committed after the abolition of the common law offence, proceedings will be taken under the new law now applying, in this case the provisions of the 1997 Act, which I have mentioned.

Section 1(1) provides, in effect, that abolition of a common law offence will not affect anything done under the previous law and shall not affect pending proceedings. To avoid any implication that the legislation might be an unconstitutional interference in ongoing proceedings, subsection (4) provides that if the section would, but for subsection (4), conflict with the constitutional rights of any person, the section will be subject to such limitations as are necessary to secure that it does not so conflict but shall otherwise be of full force or effect.

Senators will see that section 1 — in paragraphs (a), (b) and (c) of subsection (1) and in subsection (2) — refers not alone to proceedings in respect of the abolished offences but to proceedings for any other offences as well. The reason for this is simple. It has been suggested that there are other offences in which an abolished common law offence is an ingredient and that the abolition of the common law offence might make difficulties for the prosecution of the other offence on the ground that one of the ingredients of that offence has been done away with. While I personally do not agree with that argument, I have felt it better to put the matter beyond doubt by ensuring that the abolition of the common law offences will have no effect on any other offences.

As I have mentioned, subsection (3) applies the section to common law offences abolished before the enactment of the Bill. Thus, it applies to the common law offences abolished by section 28 of the Non-Fatal Offences Against the Person Act, 1997. Senators may well ask whether this makes the Bill objectionable on the grounds of retrospectivity. The important point to remember here is that the Bill does not make acts criminal which were not criminal at the time they were actually committed — that would clearly be forbidden as retrospective legislation by Article 15.5 of the Constitution.

The actions to which the Bill refers were all clearly criminal under the law at the time they were, in fact, committed. The Bill enables prosecutions to be mounted in relation to clearly criminal actions, actions that if committed now are still criminal, having regard to the provisions of the 1997 Act. I am advised and I fully accept that this is acceptable.

The Bill is necessary to bring certainty into an important area of the criminal law and to avoid severe administrative problems developing in our courts. I hope Senators will agree that in the circumstances in which we find ourselves it is right and proper to proceed with expedition as the Government proposes. I thank Senators for their co-operation in dealing with this Bill today.

I commend the Bill to the House.

Mr. Connor

I repeat what I said on the Order of Business. This side of the House has no objection to dealing with this legislation; we do not object to the fact that we have been brought back at a few hours notice to do so. What we do object to, however, is the undue haste with which the whole process has been rushed through both Houses. I understand that the matter was only considered in any detail at Cabinet today. It was then brought to the Dáil and is now before the Seanad. Those are the ingredients for making bad law, although it is hard to blame the length of the debate on the Non-Fatal Offences Against the Person Bill which was introduced in the Dáil in April. The Bill went through lengthy Second and Committee Stages in both Houses so it cannot be said that this flaw surfaced as a result of the legislation being rushed through the Oireachtas. It is not even certain that this flaw would be upheld in further court action.

However, we do not intend to impede the progress of this legislation. The present Opposition will not behave in the negative way in which the Government parties behaved when, in Opposition, they tried to impede the introduction of emergency legislation by the previous Government to deal with matters such as that which arose in an incest case. We will co-operate and not seek to retard the progress of this legislation. Nevertheless, there should be a longer debate and greater examination of the Bill.

The Non-Fatal Offences Against the Person Act, introduced by the previous Minister, was good legislation. It reformed the law in a number of areas. It outlawed offences such as stalking and introduced measures to deal with situations where people were being unduly harassed or intimidated by persons to whom they might owe a debt. It introduced an offence of endangerment to deal with people who recklessly or intentionally engage in conduct that could endanger life, and it gave statutory expression to what was the common law offence of false imprisonment or kidnapping. It also created an offence to deal with child abduction by a parent or guardian, such as occurs in "tug-of-love" situations. It is fine legislation that codified the law in a number of areas which required updating.

It is interesting to read the comments of the Minister, in his capacity as Opposition spokesperson on Justice, when the Non-Fatal Offences Against the Person Bill was introduced on 15 April 1997. Instead of carrying out a critical analysis of the Bill he spoke in his usual flowery verbiage about what Fianna Faáil would do in Government about the crime problem. As always he said everything he could to rubbish the efforts of the then Minister, one of the best, bravest and most innovative Ministers for Justice this country has had. In two and a half years that Minister introduced 16 important Bills to reform criminal law. Many of the Bills were controversial but she guided each of them through both Houses. The record of most previous Ministers for Justice was to introduce about four Bills per year. However, the previous Minister introduced a corpus of law which declared war on the criminal. She put the criminal and the crime boss on the run for the first time.

Mr. Cassidy

Wrong.

Mr. Connor

Crime bosses and major criminals had become untouchable because of the inaction of preceding Ministers for Justice, most of whom were Fianna Fáil Ministers.

Mr. Cassidy

That is wrong.

Mr. Connor

Fianna Fáil has always had a certain ambivalence about the issue of law and order. It was not very long ago when a Leader of Fianna Fáil described the party as a "slightly constitutional" party. He boasted about it. In 1982, I remember a Minister for Justice featuring in a television advertisement which was run every night before the 9 o'clock news for the short period during which he held office.

Mr. Cassidy

Parochial jealousy.

Mr. Connor

The advertisement was about crime but it was difficult to find out exactly what it wished to say about crime. The dialogue was written by the Minister's officials and he ensured that where the phrase "if you know about crime taking place in your area please inform the Garda" occurred, the word "inform" was removed. It had to be removed because of the culture surrounding informing and informants. The Minister has come a long way and I congratulate him but he has gone over the top in some of his utterances on crime, such as zero tolerance and minimum sentences of 20 years for relatively innocuous crimes.

The previous Minister, Deputy Owen, made a huge contribution in her two and a half years in office towards declaring war on the criminals and putting them on the run, and I congratulate her on that. The Minister had much to say about what he would do when he became Minister but I am sorry to say that serious crime continues apace. In one ten day period last August there were five murders, two of which were in my constituency. I knew those two people who were murdered. The Minister had nothing to say about this. In January 1996 there was another horrendous series of murders.

Mr. T. Fitzgerald

On a point of order, the Senator should address the Chair and not continuously turn his back to it. The decorum of the House does not allow it.

Mr. Connor

I am not turning my back on the Chair. All my comments and remarks are addressed to the Chair and he knows that. Three murders were committed in January 1996, one in Kerry, one in Oranmore and one in Kildare. I remember the furore created by the Opposition, especially the Progressive Democrats who were joined by the then Justice spokesperson for the main Opposition party, now the Minister for Justice, Equality and Law Reform. They talked of a serial killer being on the loose and made wild allegations to frighten people. We do not intend to do that when such serious problems or incidents occur.

An Cathaoirleach

I remind Senator Connor that we are not having a general debate on crime. We are dealing with a specific Bill and I ask the Senator to address its contents.

Mr. Connor

I appreciate that but I started this part of my contribution by addressing what the Minister, then the main Opposition party's spokesperson on Justice, had to say about the Non-Fatal Offences Against the Person Act, to which this Bill is related, when that Act was introduced in the Dáil.

An Cathaoirleach

The Minister's remarks were not addressed in the context of this Bill but in that of the Non-Fatal Offences Against the Person Act. We are dealing with the Interpretation (Amendment) Bill, 1997.

Mr. Connor

It was probably at the drafting stage, when using the old 1937 Interpretation Act, that the error, if it was such, occurred, so we should not split hairs. Any Member, especially a spokesperson, is entitled to raise these issues. It is rare enough that we can air the concerns of the public on crime and I am merely doing that as is my democratic right. This is not the Albanian Parliament; this is the democratically elected second House of the Oireachtas. I have the right to raise these issues and speak about them. I do not wish to appear to be advising the Cathaoirleach on his role in this matter, but he will agree with me that I have the right to raise these issues.

The Minister spoke about rural crime and promised much when he was in Opposition. There is not a town or village in my county in which half the businesses have not been recently burgled and the other half are waiting for a robbery to occur. Such crime is committed by criminals under pressure in Dublin and larger urban centres who move out to the small towns and villages where they find easy prey. These places are unprotected because of the centralisation of the Garda and because gardaí do not patrol the main roads due to cutbacks. The previous Minister responded to that problem by introducing Operation Shannon in which all the main bridges across the River Shannon were manned on a 24-hour basis. The result was that mobile criminals coming out of large centres such as Dublin and going to vulnerable towns and villages in the west and more remote parts, came across checkpoints. The checkpoints were also choke points because they were on bridges. That was done away with during the summer and the spate of crimes in places such as Castlerea, Boyle and Strokestown has increased. It is legitimate for us to raise this issue while debating this Bill. The war against the criminal has been relaxed under this Minister.

Mr. Cassidy

It is no wonder the Senator lost his seat.

Mr. Connor

That is a far cry from what the Minister promised when he was spokesperson on Justice. On 15 April he rightly stated:

We introduced the Punishment of Aggravated Robbery Bill, 1997, because citizens have the right to walk the streets, conduct business and live their lives without violence or the threat of violence. We have repeated our belief that in the hierarchy of constitutional rights the right to live without fear of attack is superior. It is the duty of the sovereign Government to protect the lives and property of its citizens.

The Minister was right but he is now Minister and I regret having to suggest that he is not honouring that promise. The property, lives and security of citizens is not being protected. There are towns and villages which have no Garda protection because the force has been so centralised. The Minister can go to most of the towns and villages in his county and he will see there will be no presence in most Garda stations. We are not blaming the gardaí; they do their roster of hours every day. The problem is one of manpower. The numbers are not there to ensure security. This is an important issue and we are right to raise it on the reading of legislation such as this. We are not getting at the Minister. Since coming to office he has behaved like a Trappist monk — we have heard nothing from him. However, just because he is silent he should not expect other public representatives to be likewise.

Today I telephoned the Garda crime statistics office to find out the number of offences, such as syringe attacks, committed since 1 January. I understand that these statistics are collated quarterly. I was refused this information; I wonder why? I sought similar information in the past and it was provided. Is the news bad? Are these crimes burgeoning again? Is that why I was not given the information? The Minister might answer these questions. It is disgraceful that a Member of the Oireachtas is denied this information when he seeks it in the public interest. I have a suspicion that I was denied this information because it would be embarrassing to the Minister and the Government.

Mr. Cassidy

Typical Fine Gael.

Mr. Connor

I hope that the Minister will give us these figures when he replies. We have no difficulty with this Bill and we are not tabling any amendments. I wish this was a longer debate so that more Members could contribute. My colleagues have been saying that they have contributions to make but the time constraint does not allow them to do so. That is a pity.

I travelled through Longford on my way to this House today. My passage through the town was delayed 15 minutes by the funeral of one of the latest victims of crime, a young man who was stabbed over the weekend. Such a scene brings home in a very graphic way the reality of the terrible phenomenon of crime and of its proximity to all of us. It was never more imperative to have a Minister for Justice who would be proactive on these issues. Statistics will show that more murders were committed in 1997 than in 1996 and 1995. The Minister should act upon the promises he made in Opposition now that he is in Government and has the power to do so.

Mr. O'Donovan

I welcome the Minister to the House. I cannot condone the sustained attack by my colleague, Senator Connor, on the relatively newly appointed Minister. It is unnecessary and unprovoked. Senator Connor praised the activities of the former Minister, Deputy Owen, who rode into office on a rising tide of criminal reform, initiated in the main by the previous Fianna Fáil led Government. The current Minister for Justice brought 13 pieces of legislation before the previous Government. Senator Connor is entitled to praise former Minister, Deputy Owen, although many of us would have some reservations about that. I do not want to turn this debate into a political tit for tat but I resent the unnecessary criticism of the Minister here tonight.

The Interpretation (Amendment) Bill, 1997, is very important legislation but neither the current nor the previous Minister is responsible for initiating it. The Bill basically arises from the interpretation, by certain lawyers, of certain provisions of the Non-Fatal Offences Against the Person Act, 1997. The Minister rightly said that the Bill before the House creates a degree of questioning and uncertainty abroad as to what is the situation in regard to the Non-Fatal Offences Against the Person Act, 1997.

I compliment the eminent lawyer in Kilkenny who queried the proper interpretation of the Non-Fatal Offences Against the Person Act, 1997. Section 28 of that Act abolished the common law offences of assault, assault occasioning actual bodily harm and kidnapping and in their place created new statutory offences which were largely identical to the offences repealed. As we know, the old common law crime of kidnapping had become virtually obsolete and it was necessary to update the law in that regard.

In September of this year, shortly after the Act came into effect, an eminent lawyer questioned whether the new legislation, in repealing the old common law Act, gave rise to a difficulty if a crime was committed on or before the 24 May 1997. Could the courts deal with that? A doubt has arisen. I should make it clear that no judge has ruled definitively on this interpretation.

As the Minister rightly says, this matter, which is currently before the High Court, could go to the Supreme Court. The matter could drag on for the next 12 or 15 months or more. Having regard to the serious nature of some of these crimes, the Minister decided to take urgent action and amend the law to create certainty where uncertainty existed.

This matter was queried recently by Mrs. Justice Catherine McGuinness in a serious case of attempted rape and false imprisonment. She ruled that a charge of false imprisonment could not be considered by a jury but she went on to say that this was not a definitive judgment. It has been also queried recently in the District Court and it has been referred to the Director of Public Prosecutions. In other decisions before the High Court, judges have taken different interpretations.

This Bill will clarify the matter. The Minister's interpretation is that section 28 of Non-Fatal Offences Against the Person Act, 1997 did not create a vacuum or a lacuna. The proper interpretation is, as has been hitherto the case down through the years, that when a common law offence is abolished the new statutory offence created by an Act of Parliament takes up where the common offence left off.

It is being argued before the courts at present in very serious criminal cases, in some instances, that somebody who committed an offence prior to the enactment of the Non-Fatal Offences Against the Person Act, 1997 under the old common law offence could not now be prosecuted successfully and convicted before the courts. This is a serious matter. My colleague, Senator Connor, stated that if the matter is tested in the High Court or the Supreme Court it may transpire that this Bill may not be necessary but that would involve taking a huge risk as it could take maybe a year or more for this interpretation to emanate from the courts. Consequently, the Minister, in moving quickly to bridge the gap and close off any loophole that may exist, must be complimented because some of the matters under section 28 of the Non-Fatal Offences Against the Person Act, 1997, deal with very serious crimes.

Recently this matter was brought to the attention of all Members of the Oireachtas by a High Court judge in a prominent case which was reported in the media involving a serious crime — the kidnap of a member of the business community. It could not be dealt with because of this interpretation. That is very serious and we have no choice but to deal with the matter head on.

I commend this short Bill to the House. I understand it was passed unamended by the other House. I hope Senators will realise that, while it may be technical in nature, its significance is paramount to the implementation of justice in cases of serious crimes.

Instead of being castigated, the Minister should be complimented on recognising the existing dangers and introducing a short Bill to ensure beyond yea or nay that no criminal will go unpunished and the system of justice will be interpreted as intended by the Oireachtas during the debate on the Non-Fatal Offences Against the Person Act, 1997. It was never intended that the Act would create this difficulty but the High Court has read it otherwise. We cannot take this risk and the Minister has rightly moved quickly to close any loophole that may arise.

Mr. O'Toole

I welcome my fellow countyman, the Minister, and wish him well with his onerous responsibilities. As an Independent, there are times when I become depressed with the operation of this House. Some of the remarks made by the previous speaker and Senator Connor are bad for politics. I do not take sides here and I want no one to take pleasure from this because we have been through weeks of complaints about politicians. Comparing rates of unemployment or the number of crimes committed under different Governments is the kind of nonsense which diminishes and reduces politics. We should get our act together. I assume Ministers do their best and we should criticise them on their actions and the legislation they introduce but the blanket idea that one Government is better or more committed than another on these broad general issues bothers me greatly. That is an issue for another time and I will not abuse this speaking period by dealing further with it now.

Not being a lawyer, I have never fully understood how common law could be repealed or changed. Common law arises through custom and practice in the courts over centuries whereas legislation has been written and a repeal of legislation means changing the words. The Minister touched on this in his contribution and said it may well be that this Bill will prove not to have been necessary if it is tested by the Supreme Court at some stage. I accept his reasons for saying we could not afford to take the risk but I am also prepared to gamble that the Supreme Court can be depended on in this issue. It will give the right result if the matter goes that far. While this Bill will prove not to have been necessary in the long term I accept that we must pass it tonight.

The Minister mentioned the constitutional provision on retrospection which prevents any Executive or Government criminalising an offence which took place before the passing of the Act. In other words, we cannot decide today that an action taken six months ago, when it was not a criminal act, should now be considered criminal and that someone should be prosecuted on that basis. However, in constitutional matters there is always an equal and opposite right so if an action was a crime when it was committed, it remains a crime and someone can be prosecuted for it.

An action took place at a certain time, new legislation was passed in May this year, and the action came before the courts after the passing of the Act. The person was prosecuted under the terms of the new legislation for an offence which took place before it was enacted. Why did the DPP choose to prosecute this person under the new Act? It seems more sensible to have prosecuted under the old common law. The Minister did not deal with this matter in his contribution and there may be a good reason for that. I do not claim to understand these matters but it seems logical that the person should have been prosecuted under contemporaneous legislation. It is clear from what the Minister said that the name of the crime used by him is taken from the new legislation rather than from the previous common law. Obviously, a decision was made to prosecute under the new law rather than under the previous arrangements. I would like the Minister to comment on this matter.

This legislation is important and it would be criminally negligent of us not to take action and thereby prevent somebody from being punished or being brought to justice. It is important that we pass the Bill tonight. However, I have a number of questions which I would like the Minister to address.

The phrase "repeals an offence" is used in section 1: "where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence". I understand how an Act could abolish or abrogate an offence but I have difficulty with the concept of repealing an offence. "Repealing" is a transitive verb and I do not understand how it could operate in this context. Perhaps it is a legal term which has a clear definition of which I am unaware. I ask the Minister to clarify this matter. I understand how an Act which is clear in its wording can be modified, qualified or taken from the Statute Book and thereby repealed. However, I do not understand how the same concept can be applied to something other than a form of words.

Section 1(1)(a) says that nothing in the Bill shall "affect the previous operation of the law". I do not understand this. The Bill does affect the law in that it halts the previous legislation and replaces it with something new. Surely the language used here is incorrect. It would make more sense if the phraseology referred to the legislation not affecting the common law operation in respect of acts committed prior to enactment of the Bill. A form of words similar to that used in section 1(2) would be appropriate. I want to ensure that the words mean what we intend them to mean.

Section 1(2) is clear and incorporates the body of the legislation. Similarly, subsection (3) also looks to the future. The Minister said it referred to anything that may have happened in the context of previous legislation. This makes sense. Reference is also made to circumstances before and after enactment of the Bill which I presume would make it relevant to similar legislation in the future thereby ensuring that similar difficulties are not encountered. I am very supportive of this.

Subsection (4) causes difficulty. It is the belt, braces and buttons job of legislating for the protection of a constitutional right. It bothers me when legislators seek to protect constitutional rights through including the type of wording used here. The subsection refers to "conflict with the constitutional rights of any person". I do not think that any Member or lawyer needs to be told what happens if legislation conflicts with the constitutional rights of a person. If that happens the legislation has no bearing in law, as a court challenge will immediately prove. The words used here mean nothing because if somebody so decides the legislation can be put to the test in the Supreme Court. Surely a judge of a lower court cannot decide it is in conflict with the constitutional rights of any person? I understand that if there is not acceptance of that fact the only place it can be tested is in the Supreme Court, which is where it would be tested if it were never written down. Therefore the section is superfluous, leads to confusion and is not necessary.

It is necessary to raise these points because words are important. At the end of the day the courts will decide the meaning of these words and they will interpret them. As a legislator I want the words to be clear to me and, at the moment, they are not. I am worried the legislation is being rushed through and we will do more damage. I ask, therefore, that the matter be clarified and, if necessary, we could come back tomorrow morning to discuss the matter further.

I recognise what the Minister is attempting to do but I agree with Senator Connor that none of us likes to have legislation rushed through the House. Nevertheless, we should be flexible enough to be able to deal with matters quickly. What happened in the courts last week is of concern to us all. People have asked me if I was present when the legislation was passed. We are all responsible for the legislation, regardless of whether we were physically present when it was passed. If false imprisonment was an offence under common law before 19 May 1997 and legislation was introduced which said it is no longer a common law offence but an offence under the Non-Fatal Offences Against the Person Act, I agree with the Minister that it was never intended to mean that offences which took place before that could not be prosecuted. I believe the Supreme Court will vindicate the Minister's argument and say it is appropriate to take action against somebody under the new legislation. Why did the DPP, or whoever made the decision, decide to prosecute under the terms or offences named and described in the new legislation rather than prosecute under the common law offence which was contemporaneous with the alleged offence?

I ask the Minister to reply to these matters. In the meantime I support the legislation.

Mr. Lanigan

I think the Minister has taken the appropriate action in this case. I must declare an interest in the case in the sense that the defence lawyer who made the submission on 2 September was a man by the name of Michael Lanigan. I have kept in touch with this case for some time.

Legislators are now being put under the spotlight. It is being suggested that certain cases taken under the old Act may not now proceed. I agree with Senator O'Toole that before the legislation was introduced the DPP and his officials should have considered the implications of the changes in the Acts before the cases were taken. What has happened should not come as a surprise to the DPP. There were a series of articles in the newspapers, the Law Library and legal circles on the possible implications of the changes and it was deemed that mistakes had been made. Similar legislation may have to be passed to retrospectively deal with matters which may or may not be dealt with in the High Court or the Supreme Court in the future. The Minister is taking the appropriate action in time. In the application before the High Court for a hearing date, it was stated yesterday that the case could not proceed because the DPP had not prepared his case. The Minister has gone ahead of the courts and the DPP on this matter. The implications of this matter are so serious that the DPP should have dropped various other cases or appointed appropriate people to deal with this matter urgently.

Nobody wants to see kidnappers walking the streets as a result of a flaw in the legislation. A garda cannot go to a house and make an arrest when an assault is taking place. There are huge implications and I am glad the Minister has taken the appropriate action in this instance. Will the Minister and the DPP's office ensure that, in future, such issues are dealt with adequately before legislation is introduced in this House?

Mr. Quinn

I welcome the Minister. This is his first visit to the House and I am sorry this is the first Bill he has to introduce. I, as do other Senators, support the Bill.

We have only ourselves to blame for the shambles we are in tonight. Since becoming a Senator almost five years ago I have criticised rushed legislation. I am ashamed I could not recall the introduction of this legislation and admit all Stages were passed on 7 May. This is the "quickie" legislation about which I have been complaining. Tonight is further proof of the truth that rushed legislation is bad legislation. The irony is that tonight, understandably, we are being railroaded into passing further rushed legislation because of the legislation we were anxious to pass on 7 May, prior to the general election.

We can blame many people but we must accept responsibility. We can share the blame with others and say we would have expected the parliamentary draftspeople to have protected us from such an elementary blunder. We have a right to expect that a Bill such as this would have been examined by the Attorney General and his team before being debated. We also have a right to expect that the Department which sponsors justice legislation would have checked to see if a defence barrister, looking for protection for his accused client, could find a loophole. We should expect such examination to take place at that level also.

It is important that, no matter how indignant we feel, we should not be diverted from the fact that the beam is in our own eyes. We are to blame because, as legislators, we make the final decision but we cannot do that when we pass Bills in the way we did on 7 May. It is ironic that we are now doing the same thing. When will we learn that "quickie" legislation is bad legislation?

I understand the reasons for introducing the Bill. However, we must ensure that this situation will never again arise. We must allocate sufficient time to legislation in order that Members will be aware of what is happening between the various Stages. If we permit this House to become a rubber stamp we will betray the public's trust. Let us ensure that this situation does not recur by passing the legislation and, in the future, we must not accept suggestions that legislation be dealt with too quickly.

Dr. Hayes

I welcome the Minister and thank him for his explanation. Unfortunately, I did not receive a copy of his speech and I must speak from memory because I cannot refer to it.

I understand the social and legal need to introduce this Bill and the desire to clarify what has become an ambiguity. However, in my opinion, the idea that serious crimes committed under common law could be expunged by changing it and that people who committed such crimes could get off on that basis is bizarre. As the Minister stated, if the Legislature had intended that to be the case it would have stated as much.

I am not a constitutional lawyer and I hope the Minister will be able to kick the question I am about to ask over the stand. Is there a danger that the Bill will affect the constitutional separation of powers between the Legislature and the Judiciary? It seems the Bill, if passed, will affect cases before the courts. Would it not have been better to forward one case to the Supreme Court which could then have decided what is the law? Then if change was seen to be necessary, it would be proper and appropriate to deal with this matter in that way. I hope the Minister can provide reassurance that the Bill merely clarifies the law and does not change it. I was somewhat alarmed when I discovered the number of cases currently before the courts, the outcome of which will be determined by the provisions of this legislation and not by the judges.

Mr. Gallagher

I support the Bill, notwithstanding the concerns raised by certain Members, including Senator Hayes, about the separation of powers, etc. As the Minister stated, the bottom line is that, regardless of whether we believe the matter can be resolved by the courts and whether we have confidence in them to determine it to our satisfaction, we cannot take a chance because cases are due to go before the courts daily. Members would deserve to be criticised if, having had the matter brought to our attention last week, we did not take early action to try to ensure that people who should be tried and, in due course, may be found guilty by the courts, are not released.

I am concerned about one matter in respect of the Bill. I listened to the debate in the Lower House and that particular matter was not resolved to my satisfaction. If it had been, I would have withdrawn the amendment I intend to table on Committee Stage. Section 1(2) of the Bill seems to require proof of an offence being committed prior to the date of the abolition of the common law offences and this proof would be required before proceedings could be instituted. I accept that the Minister did not intend this and I listened carefully to his response to this question in the Dáil this afternoon. I would like further discussion of the matter on Committee Stage. There is a genuine fear that if this issue is not resolved we may find ourselves here in six months' time for a reinterpretation of the law to counter defects which may have been found in the courts.

This is an emergency response to a matter highlighted by the courts. However, it is not the only matter of concern for District Court proceedings. The current chaos in the District Courts, as a result of the High Court finding that clerks responsible for issuing summonses in District Court cases were not validly appointed by the Minister and, as a consequence, the summonses are invalid, has caused much confusion. It may have caused relief to some people who were the recipients of summonses but it does nothing for confidence in the administration of justice.

I accept the Minister has declared his confidence in winning the case before the High Court but I am surprised he has not examined the necessity to introduce legislation to deal with the serious problems in the District Court rather than appealing to the Supreme Court. I am not legally trained and would welcome any comment the Minister can make on this point. The issue which I referred to dates back to emergency legislation that was enacted some years ago when a District Court Justice found procedures for issuing summonses then were not in accordance with the law.

The whole area of criminal procedure needs to be overhauled and reassembled in a modern and comprehensive fashion. I appeal to the Minister to ask the criminal law reform section in his Department or the Law Reform Commission to turn its attention to this subject and to update and streamline the measures concerning this matter. It is time we stopped amending the Petty Sessions (Ireland) Act, 1851. Amending outdated legislation is not the way we should run our criminal procedures. Given the Minister has produced the Courts Service Bill dealing with the structure of the operation of the courts, I ask his Department to turn its attention to updating procedure so we will not be recalled in emergency session to rectify a defect which has been brought to our attention by the courts.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank all the Senators who made contributions to this debate and supported this legislation. I am glad the same support as was forthcoming in the other House is forthcoming here as well.

The Bill became necessary as a result of an interpretation given to section 28 of the Non-Fatal Offences Against the Person Act, 1997. I believe that interpretation is erroneous. However, the issue involved is awaiting determination in a number of cases in the High Court. This has led to a large number of assault cases being adjourned at District Court level. We could have waited until the issue had been settled definitively by the courts but, as has been pointed out by Senator O'Donovan, if the issue had to go before the Supreme Court it could take some time. Meanwhile, more cases could be adjourned and more applications for judicial review could be made. Having fully considered the matter the Government, on balance, decided that it could not afford to wait and that the legislation should be introduced and processed quickly.

The Bill has been modelled carefully on the provisions of the Interpretation Act, 1937. I am confident and I have no doubt that it will bring certainty once and for all to this area of the law where problems have unquestionably arisen.

Senator Connor was quite strident in his criticism of me. Being a politician I accept that, but I confess to some surprise at the stridency of his remarks when one considers that I am amending legislation which was brought forward by the previous Minister, Deputy Owen. I am amending the legislation to ensure that there is certainty in this area of criminal law.

I am particularly taken aback by Senator Connor's criticism of the fact that this is rushed legislation because the facts are, as Senator Quinn pointed out, that the legislation I am amending was rushed through the Houses of the Oireachtas by Deputy Owen.

Mr. Connor

Not so.

Mr. O'Donoghue

I fully subscribe to the view that legislation should not be rushed through the Houses of the Oireachtas and that the Houses should be more careful in this respect. However, this legislation is unlike that which gave rise to the problem in that it is being brought forward to amend what may well be a serious lacuna in criminal law. In those circumstances the Government is obliged to bring legislation before the Houses of the Oireachtas in this manner. It is not something I would desire, but it is something I cannot avoid.

I am not sure to what Senator Connor is referring when he says I was negative in relation to the incest Bill. Far from it. The then Minister for Justice introduced a Bill dealing with a judgment by Mr. Justice Carney which would have meant, effectively, that the details of evidence in incest cases could no longer be reported and that people such as the staff of health boards could no longer attend court in such cases. It is true that at that time the former Minister introduced a Bill which would have enabled the staff of health boards to attend such cases but, because of the complexity of the subject, the former Minister was unable or failed to bring forward legislation which would have ensured that journalists could report the details of evidence in incest cases.

In this House the former Minister for Justice copied the provisions of the Sexual Offences (No. 2) Bill of that year, which I introduced on behalf of my party. As a result she was in a position to ensure that journalists could again report the details of evidence in incest cases. If Senator Connor describes that as negative I would be interested to know what he regards as positive.

In the course of his diatribe, Senator Connor rubbished the efforts of the then Opposition in the criminal justice area. During that period I was privileged to be my party's spokesperson on Justice and I introduced 13 Bills. It is true the then Minister introduced a considerable number of Bills, but the salient points of virtually all of them were copied from the legislation I introduced or published on behalf of my party.

Mr. Connor

Rubbish.

Mr. O'Donoghue

That is the truth. If people who were involved in organised crime are on the run today it is because of a Bill which I introduced to provide for the freezing and disposal of criminal assets. The Government subsequently introduced a Bill to provide for the establishment of the Criminal Assets Bureau.

At no stage in my political career did I say there was a serial killer on the loose and it is wrong of Senator Connor to allege as much.

Mr. Connor

The Minister agreed with Deputy O'Donnell that there was.

Mr. O'Donoghue

I am acutely aware there is a crime problem which must be addressed. I am also acutely aware that certain mechanisms and provisions, both legislative and practical, must be put in place to do so. That is why my party undertook to increase the number of gardaí to 12,000 and I have taken measures to fulfil that commitment. I also said this Administration would create an additional 1,000 prison places within two years of taking office and I am on course to achieve that objective. With regard to the question of who is or is not proactive, Senator Connor, while he is proactive in terms of criticism, appears to be, to say the least, reticent in terms of constructive contributions to this House.

The Minister for Justice, Equality and Law Reform and the Government have a serious and onerous duty to protect the lives and property of citizens. In the hierarchy of obligations that duty is superior. In the coming months and years Senator Connor will see that this obligation is recognised by this Government. At the end of their term of office, let the Government and the Minister be judged on whether the streets and homes of this country are safer.

Senator O'Toole asked how common law could be replaced by statute. That can be done by introducing a statute which would take precedence over the common law. The Senator is concerned about the constitutional reference to retrospection but, because these offences already existed, the Bill cannot be faulted in terms of that provision. We are not creating offences which did not exist prior to the passing of the 1997 Act; the offences already existed.

The Senator also asked why the Director of Public Prosecutions prosecuted under the new legislation the cases which gave rise to this legislation. This did not happen. The prosecutions were taken under the old law. The assault charge in Kilkenny was prosecuted as contrary to common law, not statute law. The assault charge in the 1997 Act was not used and could not be used. The false imprisonment charges were charged as contrary to the common law and section 11 of the Criminal Law Act, 1976.

Senator O'Toole also referred to section 1(4) concerning constitutional rights. This is included because there are cases in the High Court and questions might be raised as to whether the legislation interferes with them unconstitutionally. The provision is a standard one and is similar to that included in the State Authorities (Development and Management) Act, 1993, which was enacted in the context of cases pending arising out of the Mullaghmore interpretative centre. Senator O'Toole and others referred to the fact that it would amount to negligence for this House to take the gamble and I agree with him. I subscribe to the view that it would be more prudent, if I had the luxury of doing so, to await the decision of the courts in this matter. The reality is that luxury is not afforded to me. On balance, the Government felt it would be better to close off the potential loophole now rather than see a situation develop where our worst fears would be confirmed.

As regards the question of the Constitution in subsection (4), there is a case awaiting judicial review in the High Court and there is also a case of habeas corpus. The extent to which the legislation has any bearing on these cases is a matter for the court and I do not wish to offer any opinion on that. If the courts decide that, on a proper interpretation, section 28 of the Non-Fatal Offences Against the Person Act, 1997 does not prevent prosecutions continuing in relation to the abolished common law offences, that will end the matter. Section 1(4) demonstrates that the legislation does not seek to interfere with the constitutional rights of any person. We are trying to avoid the implication that the legislation might be an unconstitutional interference in ongoing cases before the courts. Subsection (4) provides that if the section would, but for that subsection, conflict with the constitutional rights of any person, the section would then be subject to such limitations as are necessary to secure that it does not so conflict, but would otherwise be of full force and effect. The objective is not to interfere with anyone's constitutional rights but to state explicitly that the legislation will not do so in so far as it is interpreted as doing such.

Senator Lanigan pointed out that there were implications in newspapers that this was likely to happen. That may be so but the difficulty with that is there were other instances where the same thing happened with common law offences and the question was never raised. It was generally accepted in the Department of Justice, Equality and Law Reform and the Attorney General's Office that a provision such as this was perfectly legitimate and that, since the Oireachtas did not specifically state that the common law offences committed prior to the Act becoming law could no longer be prosecuted, they should still be prosecuted. That is the correct interpretation and some Senators have graphically pointed that out. This may also turn out to be the situation when the court cases are disposed of. However, the luxury of waiting is one which, on balance, I could not risk. In this context I also refer to Senator Quinn's remarks. The fact that this had been done and not questioned before led those involved in drafting legislation to believe that the status quo would hold. There is legal disagreement as to what the position will be when the matter is finally determined by the courts.

Senator Hayes asked whether there was a danger of any interference with cases before the courts. The provisions of subsection (4) are very clear and specifically set out to avoid any implication that the legislation might involve unconstitutional interference.

Senator Gallagher supported this legislation and referred to District Court clerks; this is a different matter. Their situation arose out of a decision made by Mr. Justice McCracken. There is provision in an Act passed in the 1920s — I think it was the Court Officers Act, 1926 — for the Minister to sign the warrant of appointment in respect of each District Court clerk. However, those were different times. It became the norm for this power to be delegated to officers and the court has held that the Minister should sign these warrants. In so far as I could correct the situation I have done so. I validated the appointment of District Court clerks by signing the warrants last Friday. This will correct the problem in so far as summonses are in time and can be reissued. There is no guarantee that a higher court may not take a different view. Should that occur the judgment of the High Court would fall.

I have dealt with matters raised by Senators in a comprehensive manner. Senator Gallagher referred to his amendment which he wished to deal with on Committee Stage. However, he indicated that he might consider withdrawing it if the matter was further clarified. The phrase "offences committed before" is commonly used in legislation when a legislative provision concerns offences generally. It is not the practice and it would be wrong to use the phrase "alleged to have been committed" in a context dealing with such offences. Such a provision is concerned with offences which have been committed, not those alleged to have been committed. For example, section 15 of the Defence (Amendment) Act, 1987, refers to offences committed after the commencement of the Act. Section 22 of the Criminal Law (Rape) (Amendment) Act, 1990, provides that a number of changes to rape and other sexual offences made by that Act shall not have effect in relation to an offence committed before the commencement of the Act.

It may be appropriate when dealing with specific offences to speak about an "offence alleged to have been committed" but I can assure the Senator that, having consulted with the draftsman on the matter, it would be contrary to correct drafting principles and practice to accept this amendment. I accept that Senator Gallagher has tabled the amendment with bona fides and in an attempt to improve the legislation but my view is that it would not do so.

Question put and agreed to.

Agreed to take Committee Stage now.