Amendment No. 1 is consequential on amendment No. 2 and they may be discussed together by agreement.
Criminal Justice (Theft and Fraud Offences) Bill, 2000: Committee and Remaining Stages.
These amendments are intended to provide for the coming into operation of a number of sections of the Bill upon enactment. At present, section 1(2) provides that all these provisions will be brought into operation by orders to be made by me, as Minister. Certain provisions in the Bill implement commitments at EU level in relation to the euro and measures to combat money laundering more effectively. In these cases, there is a deadline to be met on 1 January next. Accordingly, in view of the tight timeframe in which we are operating, I have concluded that it is appropriate to provide that the relevant sections should come into operation immediately upon enactment. In brief, the provisions in question are those concerned with reporting certain financial transactions for the purpose of preventing money laundering, currency counterfeiting, the investigation of offences, certain aspects of trial procedure, liability of bodies corporate and documentary evidence in certain circumstances.
I welcome the amendment. In his Second Stage speech, the Minister announced his intention to bring forward this amendment and it is very appropriate to ensure that no space is left, as the euro is introduced, for fraud to take place, for counterfeit to get into circulation or for any other opportunistic abuses to occur. I hope the Minister will provide the necessary protection for corporate bodies and firms in this regard so that no undue stress or demands are imposed on them. In light of the provisions of these amendments, I hope the Minister will look favourably at further amendments which we have tabled to address those issues. Now, more than ever, it is important that other aspects of the Bill are looked at more closely.
I compliment the Minister on the flexible approach which he has demonstrated in agreeing to these amendments. It is important that the appreciation of the House in that regard is on record.
I welcome the amendments and I hope the Minister will look favourably on other Opposition amendments, since the Bill will have to return to the Dáil in any case.
I move amendment No. 3:
In page 7, subsection (1), line 29, after "claim of right" to insert "or other lawful authority or reasonable excuse".
This is one of a number of amendments I have put down to section 2. It relates to the definition of "dishonestly". I am not a lawyer but the definition has never troubled me until now and I do not propose to let it. The definition is: "means without a claim of right made in good faith". My amendment would insert after "claim of right" the phrase "or other lawful authority or reasonable excuse".
I am told by lawyers that the phraseology in the Bill is extremely restrictive and the Law Reform Commission has said that the concept of a claim of right is somewhat limited. That is the reason we suggest the inclusion of "or other lawful authority or reasonable excuse". The desire to make it easy to convict must always be balanced with the fact that people are entitled to the benefit of some doubt. The insertion of the phrase "other lawful authority or reasonable excuse" might be short of a claim of right but appears to be a reasonable compromise which will not affect the integrity of what the Minister is attempting to do. It will insert proper phraseology into what is an otherwise demanding definition from the point of view of the defendant.
This amendment seeks to provide that "dishonestly" should mean not only an absence of a claim of right, as provided in the Bill, but also an absence of lawful authority or reasonable excuse. I appreciate the intention of the amendment but I do not see how it helps to clarify what is meant by "dishonestly" in the context of the Bill. Such a change would only add confusion in an area where clarity is required.
The Law Reform Commission examined this matter in detail and it was the subject of considerable consultation. In the end it recommended the meaning contained in the Bill. This meaning also has the advantage that it is already used in the larceny Acts and the courts will be familiar with its meaning. These Acts are being repealed but that does not mean we cannot retain what is useful. The Law Reform Commission acknowledged that defining dishonesty in terms of an absence of a clear and legal right was not without its problems. It was suggested, for example, that the parameters of dishonesty are not identical to those of a claim of right, that is, not every act done without such a claim is necessarily dishonest. In the end, however, its recommendation was broadly along the lines set out in the Bill.
Taken together with the offences in the Bill involving dishonesty, it should be clear that any claim of right is one which must be made in good faith, that is, an accused must genuinely have believed that his or her action was justified and that he or she was entitled to take the goods. There have been a number of cases where it was held that a claim of right provided a successful defence to a charge of taking property.
If the intention of the legislation is to be clear about the elements which constitute an offence, the reference to other lawful authority might serve only to confuse. It is clear that lawful authority is a defence to any charge of dishonesty. Thus section 4, dealing with theft, provides that it will not be theft where a person believes that he or she has the owner's consent. This would surely amount to lawful authority.
The amendment could also present further difficulties. The reference to reasonable excuse, for example, has the potential to permit many types of dishonesty to go unpunished. It is possible to postulate a situation where an individual who may be in financial difficulty steals something and pleads that there was a reasonable excuse for his or her action. I am not necessarily thinking of somebody stealing food to feed a hungry child. It could be a business person whose business has hit a particularly hard patch. Who is to say that one or the other is not entitled to plead reasonable excuse and escape liability? Where is the line to be drawn? When is theft reasonably excusable? I do not wish to give the impression that the law should not show compassion to those who are particularly needy but it is a leap from that to rendering it inoperable. Accordingly, I cannot support the amendment.
I move amendment No. 4:
In page 8, subsection (2)(b), line 28, before “prevents” to insert “unjustifiably”.
This amendment relates to the definition of deception for the purposes of the Bill. Subsection (2)(b) currently states: “prevents another person from acquiring information. . . ” The Law Reform Commission suggested something like this but, as the Minister said, it is not necessarily the absolute guide. It is possible to argue in some situations that it might be justifiable to withhold information. To suggest that there could be no claim that under certain circumstances a person was justifiably withholding information seems to be pushing it.
Nobody wants to damage the integrity of the Act, including the Minister, but it would be better to include "unjustifiably prevents another person from acquiring information which would affect that person's judgment of a transaction". It is an interesting phrase although I appreciate that it is only for the purpose of this Act. Nevertheless, it has considerable breadth and could do with being tightened up. We suggest that "justifiably" be inserted after "prevents".
This is an amendment to section 2(2) of the Bill. This amendment would add a subjective element to the requirement that deception consists in part of preventing a person from acquiring certain information. As section 2(2) stands, deception may involve creating or reinforcing a false impression, preventing the acquisition of certain information or failing to correct a false impression. The amendment seeks to add that there must be some unjustifiable element attached to the prevention of the person acquiring certain information which would affect that person's judgment of a transaction before it could constitute deception.
Having examined the possible effects of the inclusion of "unjustifiably", it would be possible for a defendant to claim that his or her preventing the other person acquiring the information was justified and it could be extremely difficult for the prosecution to prove otherwise. Deception is an ingredient of the offence of theft in section 4. It is also an element of the offences set out in sections 6 and 7. Is it seriously suggested that a person should not be guilty of theft where the consent of the owner has been obtained through some deception, such as preventing that person from obtaining certain information, merely because the deceiver claimed that he was justified in withholding the information?
Without inferring a base motive, his or her alleged justification might be that someone else might benefit more than the person properly entitled. It would amount to allowing one person to determine whether another should be denied what is rightfully his or hers by reference only to that person's view of the matter. It would be a recipe for all sorts of people to avoid liability. In the case of sections 6 and 7, the effect of the amendment would be to enable a person to dishonestly make a gain, or cause a loss, or to dishonestly obtain services by a deception which he or she claimed was justifiable. I cannot accept an amendment that would have that effect.
I move amendment No. 5:
In page 8, subsection (2)(c), line 33, to delete “or confidential”.
Subsection (2)(c) deals with situations where a person deceives if he or she fails to correct a false impression which the deceiver had previously created or reinforced, or which the deceiver knows to be influencing another with whom he or she stands in a fiduciary or confidential relationship. Nobody has any problem with the situation of a fiduciary relationship because one can understand legal obligations in that case. However, a confidential relationship exists at many levels, including in business dealings. Many of those would be better dealt with in the civil courts rather than as criminal activities. There is a danger of extending the criminal law into areas relating to trust in business. That is a large area to extend into, if that is what the Bill is suggesting. If there is a confidentiality agreement, one could be involved in criminal activities by not correcting impressions that people had previously obtained from another. I do not argue with the idea, but I dispute whether it should be a criminal offence.
I support Senator Ryan. This is a valid amendment to prevent the introduction of the term "confidential" into statute law. The term can be widely defined and can be involved in a variety of situations. Nobody should be excused and there should be no exceptions made where there is a confidential relationship. That would be dangerous and the Bill would be all the worse for including this term. I urge the Minister to accept the amendment and to withdraw the words "or confidential".
I fully accept that persons in a fiduciary relationship should be targeted by this Bill. That is specific and clear. There is an accepted definition of a fiduciary relationship. However, confidentiality is extremely wide and varied. People speak in confidence all the time. It would be possible to discuss a matter of a criminal nature and to subsequently realise that such a discussion could then be a matter for criminal examination. There is an obligation that a person in such a situation should not be exempt. It is vital that this amendment is supported and that the phrase "or confidential" is withdrawn from the section.
This is also an amendment to section 2(2) of the Bill. It seeks to restrict the application of section 2(2)(c) to cases where there is a fiduciary relationship between an accused and the person he or she deceives. Paragraph (c) follows a recommendation of the Law Reform Commission. Its intention was to include relationships which fell short of a fiduciary relationship but in which there was a requirement for the utmost good faith on the part of the accused.
A fiduciary relationship is one which implies trust and honesty. However, there are other relationships which fall short of a fiduciary one in which a special responsibility is owed by one person to another. Such a relationship may be characterised by a requirement of confidentiality between the persons and it would be implicit that the person owing the duty should act at all times in the interests of the other person and should not be permitted to benefit from an error which he or she failed to correct. Such dishonesty should be penalised.
It was to recognise this that paragraph (c) included references to confidential relationships. Paragraph (c) may involve some action by the person who engages in the deception such as that the false impression is one which the deceiver may have either previously created or reinforced. There is an obligation on the person to correct this and the failure to do so should attract criminal liability. The essence of the deception in paragraph (c) is that there are special circumstances arising from the relationship between the parties which it is reasonable to expect should impose a duty to correct the mistake. The person who relies on another is entitled to count on him or her to inform them fully and honestly about rel evant matters. The effect of deleting the reference to “confidential” would be to limit the application of this paragraph to fiduciary relationships alone. It would restrict its application and possibly permit certain actions which would be penalised to go unpunished. I do not believe this should be the case and, accordingly, I cannot accept the amendment.
I am hesitant to argue with a lawyer on a matter as technical as this, but I am not totally hesitant. I accept there is an argument on this matter and I will not pretend that there is a single view. The Minister's point was that by leaving out "confidential", some offences might go unpunished. That is an argument for precise drafting but not an argument for including in the Bill a catch-all phrase such as "or confidential" which not only includes some situations where the Minister's point is valid, but stretches well beyond them. Nobody disputes that specific circumstances can arise where the criminal law seems appropriate to deal with certain confidential non-fiduciary relationships. However, that certain things are not covered by one word does not justify putting in an entirely different word which has an enormous breadth.
I ask the Minister to reflect on this before Report Stage. The section could be reworded to deal with the issues that he has apparently identified but which would not be covered by a fiduciary obligation. It could be dealt with in a way that does not involve a word as broad as "confidential". "Confidential" applies in all sorts of places. Virtually everybody who works in the pharmaceutical industry in Cork harbour signs a confidentiality agreement. If they leave their jobs, workers are supposed to be bound by that agreement. Most who leave ignore it and in most cases that does not matter because patent and other laws come into effect. However, I know people who have ended up in civil disputes because they moved jobs and the other party, the previous employer, believed that they were going to work for a potential competitor. Therefore, some issues arise.
In terms of dishonesty and theft, will it be the case that people who break that sort of confidentiality agreement are potentially open to criminal prosecution as well as civil action? The word has bigger implications than the Minister intended and that is the problem with it. The fact that it will cover a couple of things we all agree should be covered does not mean it is the correct description because it may well cover many other matters which should not be under criminal law at all.
There is a need for the Minister to look at this section again and to introduce a further amendment on Report Stage to define in greater detail his interpretation of "con fidential". I appreciate from where the Minister is coming, but, as it stands, it is clear that it can be defined in a wide variety of ways. I ask the Minister to remember we are talking about the Criminal Justice (Theft and Fraud Offences) Bill, 2001. We are talking about a certain type of individual with a certain frame of mind and if he or she sees anything in the Bill which would open up opportunities for him or her, he or she will be the first to define it and to recognise the potential of working around something as open and loose as this. It is dangerous to leave it this way. There is a need for balance and, as it stands, there is no balance; it is much too wide and it must be more clearly defined. I ask the Minister to come back on Report Stage with a clearer definition.
The section is very clear.
That is the problem.
It states categorically that it relates to a person who deceives another. In that context, deception includes failing to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another with whom he or she stands in a fiduciary or confidential relationship. The amendment seeks to restrict it to a fiduciary relationship and if I was to accede to that request, there would be a range of possibilities where people would seek to create or reinforce a false impression in another where there was a confidential relationship and there would be no sanction for it. That would be an unacceptable position.
For example, if a person was to give power of attorney over his or her affairs to another, surely he or she would be entitled to have any false impression which he or she had in relation to his or her property corrected by the person to whom he or she gave the power of attorney. That might not be construed as a fiduciary relationship. There are many other examples which can be given. One thing which is certain is that if the question of a confidential relationship is excluded from the section, it would undoubtedly open the way for deception in a series of relationships to go unpunished. That is not acceptable. I cannot accept the amendment because to do so would be to confine the criminal law to a fiduciary relationship where deception occurs. That is not acceptable.
I am concerned about what the Minister said and the example he used. Power of attorney is a specific legal enabling power bestowed by one individual on another. There is a very clear definition and clear case law surrounds it. I do not see how that is remotely related to this subsection or wording. Sufficient law gives it a very clear definition and clear obligations. It is an erroneous example to use.
It is a pity because the Minister could have discussed this with some precision. He has resources at his disposal. A fiduciary relationship, as I understand it, is fairly well understood in law and there is a good deal of back up in terms of defining precisely what it means. A confidential relationship, however, could be something on which two people agree. It could be at a series of levels. It could be a verbal agreement about which people may say they will not talk to anybody and that they will do it themselves. It could be a relationship, for instance, between a client purchasing property and an auctioneer. It could be many things like that. There is a huge number of areas.
My understanding, which is based on good advice on this matter, is that the word "confidential" is pushing it out. The Law Reform Commission thought about it and accepted, I understand, the US model. One would wish us to learn from the experiences of other countries but one has to judge them in the context of how our law operates. To introduce an extra level broadened out like this is a mistake. It is an example of imprecise drafting and trawling to make sure that what we are concerned about is included. In the process, it is trawling way beyond what is explained to us as being necessary. There are so many levels. This is new territory and merits, at the very least, an insertion into the definitions of what is meant by a confidential relationship.
There is not much more to be said. The reality is that there are relationships which do not imply trust and honesty but in which, nonetheless, a special responsibility is owed by one person to another. There is certainly a responsibility to correct a false impression created or reinforced. I gave one example. It may not be the best example but it is one of many one could give. I cannot have a situation where relationships would exist, where people would be operating with the utmost good faith and where one person does not deliver and allows another to have a false impression. That is deception and I cannot allow a situation to exist where such deception would go unpunished. It would probably encourage people to deceive others in the certain knowledge that there would be no criminal sanction. As I said, it is not a runner.
I am getting irritated now. On what planet is the Minister? Deception goes on all the time. It goes on in half the lettings of private rented accommodation in which less than complete pictures of the property are given to tenants. It goes on in house purchase, in land purchase and many other areas. People do not tell each other the whole story. That happens all the time and if every deception is a criminal offence, then a huge part of the bourgeois section of our society should be in jail. Incomplete information is how people gain advantage in a market economy. Very few people in a buyer-seller relationship have complete information.
Apparently it will be a criminal offence if there is a confidential element and I know something about a property about which the other person has not found out and he or she buys the property and finds I did not tell him or her about something about which he or she forgot to ask. Maybe it is a good idea but it will keep a large number of the Garda Síochána in business for a long time. If every deception where there is a confidential element in a relationship is to be criminalised, we will have other legislation which is seriously flawed. This should be looked at again.
Is the amendment being pressed?
No. I want to come back to it on Report Stage and I give notice that I will endeavour to do so. In the meantime, I will look for a definition myself if the Department of Justice, Equality and Law Reform cannot provide one.
Section 3 refers to repeals, etc. and states:
(1) Subject to section 65, the Acts specified in Schedule I are repealed to the extent specified in the third column of that Schedule.
(2) Any offence at common law of larceny, burglary, robbery, cheating (except in relation to the public revenue), extortion under colour of office and forgery is abolished.
Why is the exception made for the public revenue?
It is made an exception for the simple reason that they are offences under the Finance Acts. That is the only reason it is specified here as an exception.
These are offences in common law, which do not seem to this lay lawyer to include the Finance Acts. I repeat my question – why are offences in relation to the public revenue excluded from the abolition of offences under common law? Maybe the Minister will enlighten me but as far as I understand it, the Finance Act is not part of common law.
I welcome that section. It is important that all the offences listed are lifted from the realm of common law and placed into that of criminal law. It gives them the type of recognition they truly deserve. It is important that they be included here. The offence would appear to be a lesser offence if it was part of the common law court. That it is included as part of this Criminal Justice (Theft and Fraud Offences) Bill is welcome because it is specifically a criminal offence.
I thought I made myself perfectly clear. I said that these are offences under the Revenue Acts or Finance Acts, and they are. There were offences under common law that were not offences under the Revenue or Finance Acts. They are now and that obviates the necessity to have them as offences of common law.
I move amendment No. 6:
In page 10, subsection (3), lines 28 to 38, to delete paragraph (c).
One of a number of peculiar things in this Bill concerns the definition of theft under section 4. Subsection 3(c) states:
If in any proceedings against a person to whom this subsection applies for theft of some or all of the property so held by him or her it is proved that–
(i) there is a deficiency in the property or a sum representing it, and
(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency,
it shall be presumed, until the contrary is proved, for the purposes ofsubsection (1) but subject to subsection (2), that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.
If there is something missing, the presumption is that the person in question is guilty of misappropriation unless her or she can prove the contrary. I grew up in a society where the presumption was that a person was innocent until proven guilty. This turns that presumption around by saying "it shall be presumed, until the contrary is proved . . . that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency". That is not what I understood to be the basis of our criminal law. I object to it.
The effect of this amendment would be to remove from the Bill the presumption that a person who held property in trust for one or more persons had appropriated it for his or her own benefit for use in certain specific circumstances. Section 4(3) is based on a recommendation by the Government Advisory Committee on Fraud. It recommended the creation of what is described as a general deficiency offence. This offence occurs when a person who holds money in trust as agent for others does not maintain in the account sufficient funds at all times to pay in full what is due to each person. For example, at present, where an auctioneer or solicitor holds money on behalf of several clients in a mixed account and then takes some of it for personal use, it may be difficult to prove an offence. It may not be clear whose money was taken. This is because there may be enough remaining to repay some clients, but the general deficiency becomes apparent only if all clients seek repayment at the same time.
Section 4(3)(c) provides that, where there is a deficiency and the person fails to provide a satisfactory explanation, it will be presumed that he or she appropriated without the consent of the owner or owners all or part of the deficiency. Paragraph (c) provides that this presumption may be rebutted.
The offence to which the presumption in paragraph (c) refers requires an appropriation of property, a dishonest intent, and that the appropriation was without the owner's consent. The purpose of paragraph (c) is to provide that the person is presumed, until the contrary is proved, to have appropriated the deficiency without consent in the circumstances provided for in the paragraph. It does not presume any intention to deprive or any dishonest intent and would not obtain if there were a satisfactory explanation. Therefore, it is not presuming guilt.
When a person holds property in trust for one or more persons, it is not inconsistent with the presumption of innocence that the trustee, who has a duty to account for the property and who alone is in a position to know how the deficiency arose, be called upon to provide a satisfactory explanation of that deficiency. Therefore, to delete paragraph (c) would be to leave the subsection without the necessary means to ensure that trustees can be held responsible for the disappearance of property. In the circumstances, I cannot accept the amendment.
The Minister for Justice, Equality and Law Reform and his predecessors intrigue me because they seem to look at the world from a particular perspective. For fear that somebody might ever get away with something, they feel we should turn the whole code inside out. We all agree with everything the Minister says about people misappropriating other people's funds. However, the lazy one person option in this respect is to turn the system over and say that because there is a deficiency, a gap and a prob lem, we will therefore presume that the person did something wrong. Let them prove that they did not do anything wrong or commit any criminal offence.
The phrase "reasonable explanation" is not used. Instead it is stated that, until the contrary is proved, the person is "presumed to have appropriated, without the consent of its owner or owners, the whole or that part of the deficiency".
The fact that some advisory body advised that this should be the case is unimportant. It is always easy to check the reasons because we all know the hard cases of crooked solicitors and auctioneers who misappropriated clients' funds. We also all know because we set up many of these professions as self-governing. Therefore, it is very difficult for the public to obtain any serious redress from any of them. We also all know that that is not a reason to turn the normal criminal law inside out to a considerable degree. If the Minister wants to include "unless the person provides a reasonable explanation", we might be able to work with him. The current phrase is "until the contrary is proved". I presume that involves proof in a court of law. Therefore, what it actually says is that a person must go to court and be charged on the basis of the deficit of information and must prove that he or she did not do anything wrong. That is not giving a reasonable excuse; that is proving. That is what is wrong with this section.
There is nothing wrong with the section. In reality, the section seeks to get an individual, who is uniquely placed, to provide information regarding an actual deficiency in an account. A person in charge of an account is in a unique position to explain the reason for a deficiency. I cannot see why Senator Ryan feels it is unreasonable to ask such a person to provide an explanation.
The Minister should not be tilting at windmills. Nobody said that.
It must be abundantly clear, particularly where people hold money for a number of others, that situations arise in which the general account can become deficient and where it is not possible to establish, to the satisfaction of any jury or court, that a given individual's money has been taken. Consider a case where there are 100 clients, each holding £1,000 in an account. Assume there is a deficiency of £1,000. It is not possible in that kind of situation to say whose money is gone. One thing is certain – there is a deficiency in the account. It seems perfectly reasonable that if one person is uniquely placed to explain that, it having been established beyond reasonable doubt that there was a deficiency in the account, that person should be asked to explain it. Let me put it another way: who should be asked to explain it?
If everything that is imperfect has to be explained, we could all end up explaining to the Revenue Commissioners why something is not true. For instance, when the Revenue Commissioners were oblivious to Mr. Haughey's high living, they were asking people like me to explain the various properties they thought I owned, which were various cheap apartments I lived in when single. They wrote to me on each occasion asking how I got the money to pay for them and I wrote back to say I rented the apartments. I could not prove it. How could I? I had been five years out of some of the places. If the Revenue Commissioners had the power to say to me that unless I could prove I had rented the accommodation, they would be in a position to say they presumed I owned them and that I had funds which I had not disclosed. That is what this means. If there is a deficit of information we are saying that unless one can prove one has a reasonable explanation one is guilty of an offence.
I know what the Minister wants to do and nobody has a dispute with that. However, using a metaphorical sledgehammer to crack a nut is an old response of departments of justice all over the world. It is to be deplored because it does not usually achieve much apart from making life difficult for people.
The reality is that the provision has nothing to do with the Revenue Commissioners, Senator Ryan's apartments or anyone else's apartments, irrespective of how cheap they are.
I was giving an example.
This has to do with a person's holding multiple accounts on behalf of people. It has nothing to do with taxes or anything else. It relates to where there is a deficiency in an account and it cannot be established whom the deficiency relates to. All the individual is being asked is to explain why there is a deficiency. If there is a deficiency because a client has paid back money that is fair enough, but if it is because the person concerned has used clients' money for his or her own benefit it is a different matter. In those circumstances the client is entitled to be protected.
In the ideal scenario painted by Senator Ryan there would be no possibility of protecting the client because if there were a deficiency of £1,000 in an account holding £100,000 it would not be possible to identify whose money was gone. In those circumstances it must become immediately apparent that a difficulty would arise in relation to proving the charge. If the presumption does not exist and the person is not obliged to explain why there is a deficiency in the account, it appears that he would escape scot free. That is not what Senator Ryan wants to see happen and it is certainly not what I want. I wish the world were a far simpler place but I did not make the rules.
In this case the Minister is making the rules.
The Minister makes a plausible case for abolishing the whole idea of innocent until proven guilty. It is more difficult to prove people are guilty than to say to them, "We think you're guilty, prove to us that you're innocent." One could apply that across the whole area of criminal activity. The presumption is: "You were in a place at a certain time and you are not very nice, therefore we believe you did X. Prove to us we are wrong. Something happened, you were there, prove to us that you did not do it." That would be very easy and convenient and a great way to ensure people did not get off, but it is not the way we do it.
The Minister is right. This sort of thing should not happen and it makes a case, particularly with self-regulated professions such as law, for taking that power away and giving society the power to regulate those professions, which have such a considerable capacity to waste people's money.
Section 4(4) states that if, at the trial of a person for theft, the court or jury, as the case may be, has to consider whether the person believed that the owner could not be discovered by taking reasonable steps, etc., the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed. What does that mean? I did not understand it.
Section 4(4) is linked to section 4(2), on which it builds by setting out the grounds which must be considered by a court or jury, as the case may be, in deciding whether the accused person had this belief. It addresses the point acknowledged by the Law Reform Commission that, given its approach of defining dishonesty as without a claim of legal right, which has been adopted by this Bill, there would be a need for a court or jury to consider the relevance of dishonesty to the guilt of the accused. Under present law it must convict the accused if he has not a claim of legal right, regardless of the question of his honesty or dishonesty. This is the effect of the judicial interpretation of the term "fraudu lently" in section 1 of the Larceny Act, 1916. Under our proposal the legislative provision will confront the question in direct language and make it clear to the court and jury that it is not permissible to acquit the accused where it is satisfied beyond a reasonable doubt that he appropriated the property without a claim of legal right.
Section 4(4) sets out three grounds for a court or jury to consider: that the person had not acted dishonestly, that the property's owners had consented or would have consented to its appropriation; and that the owner could not be discovered by taking reasonable steps for his or her discovery. This provides an objective test for the jury to consider, along with other relevant issues, in arriving at a view as to whether the person formed such a belief.
I thank the Minister.
I am sure the Minister is getting annoyed but I have a question about the necessity of section 5(4). In the middle of a Bill dealing with the most profound criminal offences, this subsection states that a person who picks mushrooms or any other fungus growing wild in the land or who picks flowers, fruit or foliage from a plant, including any shrub or tree growing wild on any land, does not, although not in possession of the lands, steal what is picked unless he or she does it for reward or for sale or other commercial purposes. The subsection goes on to deal with wild creatures and so on.
Obviously this is to cover a situation where Senator Ryan goes walking in the countryside and picks a flower.
Am I presumed guilty or innocent?
We do not want to see him convicted of picking a flower, so in those circumstances we decided to insert section 5(4). The wording of subsection (4) distinguishes between mushrooms or any other fungus growing wild on any land and flowers, fruit or foliage of a plant, including any shrub or tree, because unlike other plants, the Senator will be surprised to hear that to pick a mushroom is to pick it in its entirety.
Is that clear to the Senator?
I must say it was interesting.
Coming from a rural background, I am a little concerned about this section as it can almost be said to encourage trespass or to condone picking items from the land or lifting whatever moves on the land as long as it is not done for commercial purposes. The Minister knows the legal difficulties that arise when people damage themselves on the property of others. What is the wisdom of section 5(4), which may be considered to slightly condone trespass? Although there are laws in relation to trespass and insurance claims, this section encourages people to enter the land of others. Should the Bill not include a reference that such behaviour should only be conducted with the permission of the property owner to ensure this section will not be seen as condoning trespass? I know people who lamp foxes in County Clare and sell the skins for commercial purposes. Will they be deemed to have committed an offence under this Bill?
Section 5(4) provides regulations if, for example, someone picks a bluebell or a daffodil while walking in the countryside. One cannot expect such a person to be brought before the courts and fined. We should not, however, tolerate someone entering the property of another person to exploit the land for commercial purposes. An example of this may be if the person grows "a host of golden daffodils", in the immortal words of the poem, although such commercial use may not have been envisaged by William Wordsworth. Senators know that the Bill represents common sense.
What about someone lamping foxes?
Section 5(5) provides that "a person cannot steal a wild creature not tamed or ordinarily kept in captivity" and, therefore, covers a fox "unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned". This could easily happen with a fox or a rabbit, but I am not sure if Senator Taylor-Quinn, if she was the land owner, would be sufficiently concerned to chase the animal.
As the capture of a fox will not constitute theft of property under this Bill, I take it that section 5(5) will not prohibit the hunt, although it is my heartfelt wish that it would. Will illegal fishing of salmon be considered theft under this section and, if so, why?
Fishing is dealt with under the Fisheries Acts, which have nothing to do with this Bill.
It is unusual that we are dealing with foxes and hares as I understand Senator Dan Kiely used to lamp foxes in County Clare long ago. I do not know if he still does it.
On an entirely separate issue, I am concerned about the penalty of ten years for indictment under sections 4 and 5. Many of the penalties in the Bill are draconian and can be contrasted with penalties for offences against the person in other legislation. Imprisonment not exceeding ten years is the maximum penalty for threatening to kill someone, five years can be given for assault causing harm and there is a maximum penalty of seven years for possession with intent of a syringe, one of the most terrifying modern offences.
The Bill suggests that the protection of property is a more important priority than the protection of people. Many offences under this Bill carry more severe sentences than offences which many people would regard as more serious, such as threats or injuries against the person. It is astonishing that there is a maximum penalty of seven years for child abduction, whereas the theft of any kind of property carries a maximum penalty of ten years. This suggests somehow, in the back of one's mind, that the protection of property is a more important fundamental duty of the State than the security of citizens.
Many of the matters mentioned by the Senator are not included in this section and we will wander all over the place if we begin to discuss penalties.
I raised the matter as there is a penalty of ten years in this section.
A general review of penalties is ongoing, but appropriate penalties are imposed in this Bill in so far as they are commensurate with proportionality.
My earlier remarks about Senator Dan Kiely lamping foxes in County Clare were made in jest in case he comes into the House to ask me to withdraw the comments. I know that he used to sell the hides of silver foxes.
Is the Minister trying to stop Senator Dan Kiely being elected?
I am a little concerned about the penalty of ten years for "a person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or another, or of causing loss to another". It is a large penalty for such an offence.
The Bill contains the word "dishonestly".
I know the word is included and I am familiar with its definition, but it is still a large penalty for someone found guilty. Students in the college in which I work are required to meet certain conditions before they can use a computer. They may break the rules about how the computer should be used with the intention of making a personal gain. It could be argued that although the use of someone else's computer may be dishonest, the gain made may be legitimate. The computer could be dishonestly used to enter a quiz or to participate in on-line gambling, but the gain could be legitimate. A penalty of imprisonment of ten years in such circumstances, even though the gain was legitimate, is disproportionate.
The Bill merely provides for a maximum penalty of ten years. From my experience over the past 20 years or more, maximum penalties are rarely imposed. It is a wise and prudent move by the Minister and his officials to include a maximum penalty as a deterrent. The maximum penalty is unlikely to be used unless the dishonest use of the computer was so extreme as to lead to a significant financial loss. The maximum penalty is a deterrent which will ensure that few, if any, people will use a computer for dishonest purposes.
There are two ingredients to the offence, an element of dishonesty and the intention of making a gain or causing a loss. Senator O'Donovan correctly dealt with the issue of the penalty and the Bill provides for a maximum penalty in terms of imprisonment, but it is open to the court to impose a lower sentence.
Any perusal of prison sentences imposed by courts would show that the principle of proportionality between the offence and the term of imprisonment or punishment is jealousy guarded. That is the correct way in which to do business. There is no possibility of an injustice being done by a court in imposing the penalty available under this section.
Senator Ryan is correct to point out that there are varying degrees of seriousness. However, one must expect that the court will decide on the seriousness of an offence. One cannot expect that a Bill can set out a given sentence for every possible offence as that would be impossible. To that extent I hope the Senator will accept my assurance that courts will carefully apply the principle of proportionality.
No one disputes the idea that people should be penalised for using a computer to do something dishonest. However, that is what the section should state. It should state: "A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of dishonestly making a gain for himself of another, or of dishonestly causing loss to another, is guilty of an offence." The word "dishonestly" should refer to someone who dishonestly makes a gain or dishonestly causes a loss, but not to someone who dishonestly uses a computer. The latter criminalises everyone who uses a computer to which they do not have a claim of right made in good faith. That is not what the Minister said he wishes to achieve. He wishes to achieve what I am suggesting which is that people who use or abuse computers to do dishonest things should be criminalised. I agree with that objective. However, people who use other people's computers in instances where they do not have a claim of right made in good faith should not be criminalisedper se. If they should be criminalised, we should include it as a separate offence.
There are 1,000 computers in CIT for which there are regulations which state that, for example, people are not supposed to use them for gambling. That is a matter for the college and we can deal with it, but such behaviour should not constitute a criminal offence. However, someone who uses a computer, whether it is their own, to do something dishonest should be penalised. There is an important distinction between the two scenarios which could be dealt with by placing the word "dishonestly" where I have suggested.
This offence contemplates dishonesty. The Bill deals with a situation in which a person lawfully has a computer, but uses it for a dishonest purpose.
That is not what the section states. The Minister has the time and the opportunity to legitimately look at this section again and rephrase it to achieve his objectives, rather than creating a criminal offence where someone uses a computer dishonestly to do something legitimate. That is the effect of the manner in which the word "dishonestly" is defined in the Bill.
I do not wish to delay the House, but the Minister is being unreasonable as the section could be rephrased to create the offence he is trying to create. We do not wish everyone who uses a computer without a claim of right made in good faith to be criminalised. The country is awash with computers and people use them all the time without consent or approval to do things they should not be doing. The simple solution is to move the word "dishonestly" to where I suggest. If the Minister does not agree to even consider this proposal, he is being unreasonable.
There are two ingredients in this section, an act must be carried out dishonestly and it must be done with the intention of making a gain or causing a loss. The act has to be dishonest and the intention must be to make a gain or cause a loss.
Let us suppose that a stockbroker has a computer. His or her daily function is to buy and sell shares and his or her intention is to make a gain. The stockbroker is not doing so dishonestly and that is the crucial difference. All the ingredients of the section have to be in place before there is an offence. I cannot envisage a situation in which an innocent person could be convicted under this section.
I promise not to push your patience too far, a Leas-Chathaoirligh. It is arguable that this section will not penalise those who should be penalised as a reasonable reading of it would suggest that the offence is the dishonest operation of the computer. The section refers to someone who dishonestly operates a computer, but that could be interpreted as meaning that he or she should not have been using the computer.
However, if someone honestly uses a computer, in other words he or she does so with a claim of right made in good faith, there is no offence no matter what he or she does with the computer. If I use my computer there is no offence. The section is sloppily drafted and could benefit from a review and a revision. That is all I am asking, yet the Minister says he will not do so.
The section is clear. It states that someone who dishonestly uses a computer, "with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence." This makes it clear that the user must intend to make a gain for himself, herself or another. That is clear.
There is nothing wrong with making a gain for oneself using a computer.
There is if one does so dishonestly.
That is what I am trying to make clear. The point is that one dishonestly makes a gain.
Lawyers can differ about these issues and there are a variety of possible interpretations of this section. However, it is fairly clear to me.
Would the offence to which the section refers apply to documents produced in evidence in a court of law where, for example, prosecution witnesses are found to have altered statements?
My question is somewhat similar. The general tenor of the section is fine but I wonder if, for example, certain information was not available to a solicitor when presenting documentation for a family law case, could he be prosecuted under this section?
The answer to Senator Ryan's question is yes and the answer to Senator Taylor-Quinn's question is no.
I thank the Minister.
Would this section apply to Ministers shredding documents?
Will the Senator give an example? Documents are shredded every day. I would need to have a specific example of precisely what Senator Ryan means.
I am beginning to wonder on what planet is the Minister living. A former colleague of the Minister admitted shredding vast quantities of documents just before a tribunal came looking for them.
Those were specific documents. I thought we were talking about the section but the Senator is talking about an individual.
I am talking about the shredding of documents which should have been retained.
What documents is the Senator talking about?
The Minister does not want to answer the question.
I draw the attention of the House to the need to use ordinary English when we are writing legislation. Other countries do it. It is often a pleasure to read US legislation because it reads like ordinary English. I have drawn attention on many previous occasions to the peculiar usage in this section which defines a crossbow as a firearm. This is a long-standing issue of mine. We ought to use English in the way it is used, simply to make for legal simplicity and not turn it inside out and redefine it. A crossbow is not a firearm in any reasonable person's definition. It does not use any form of explosive to send a projectile. It is not a firearm. It has been so defined since the Firearms Act was passed in the 1980s when I was a recent arrival in this House. We should use sensible English in our legislation.
The definition is extensive but it does not include a drug-filled syringe, which could be used to disable or injure a victim.
The argument could be made that there would be no need to define firearm if everyone knew what a firearm was. The Firearms Acts refer to a crossbow as a firearm.
That is right.
I am not here to redefine what a firearm is. The section explains what a firearm is for the purposes of the legislation. It goes on to describe what an imitation firearm and a weapon of offence are. Very ordinary English is used. For example, a weapon of offence is defined as including "any article which has a blade or a sharp point". That is straightforward English. We try to keep language as straightforward as we can.
I accept Senator Ryan's point that sometimes language in legislation can be very arcane and appear to the public to be designed to confuse. We are trying to simplify it as best we can and to use ordinary everyday parlance. Sometimes it is not possible to do that. In this legislation, for example, we are not changing firearms legislation, we are merely following what is in the Firearms Acts.
I am sorry to be awkward, but we have plenty of time.
We have all day.
Yes. I do not know if the Minister is in the humour for this discussion. I can understand the question of an imitation firearm but the section defines an imitation firearm as "anything which is not a firearm but which has the appearance of being one". This could include a water pistol. Someone who burgles a house with a water pistol in his possession is liable to a penalty of life imprisonment.
Someone who accosts me in Grafton Street with a syringe full of blood is liable to seven years in prison. I wonder where we are going with our draconian penalties.
As the Senator is aware, an imitation firearm can frighten a person as much as a real one. It is possible to be found guilty of common assault, for example, without ever touching anybody. It is sufficient to put a person in fear of his or her safety. In the same way, a person can be just as fearful of an imitation firearm as of a real one. A water pistol would have to be a very good imitation to be deemed an imitation firearm.
It might have "the appearance of being one".
Nevertheless, if it has the effect of creating fear in the person against whom it is used, it qualifies as an imitation firearm within the meaning of the legislation and qualifies for the penalty contained in the section, and appropriately so.
I have read and re-read section 16(2) which states: "For the purposes of this Part, a person is reckless if he or she disregards a substantial risk that the property handled is stolen, and for those purposes ‘substantial risk' means a risk of such a nature and degree that, having regard to the circumstances in which the person acquired the property and the extent of the information then available to him or her, its disregard involves culpability of a high degree." What does that mean?
It means culpability of a high degree—
I know what that means.
—not culpability of a low degree. If, for example, a person drives a motorcar along a country road at ten miles per hour in the knowledge that there may be sheep around any bend of the road and if the person concerned hits the sheep and one of them is killed, it is difficult to believe there would be a high degree of culpability or that in those circumstances the person concerned would be guilty of dangerous driving. On the other hand, if a person were to drive up a one-way street in Dublin at 60 or 70 miles per hour in the knowledge that the street was full of pedestrians crossing the road and someone was killed, one might come to the conclusion that a high degree of culpability was involved and that the person was reckless as to his or her behaviour. In those circumstances the person might be found guilty of dangerous driving causing death.
I move amendment No. 7:
In page 16, lines 38 to 46 and in page 17, lines 1 to 3, to delete subsection (2).
Again, I am sure the Minister and I will disagree. Section 17(1) states:
A person is guilty of handling stolen property if (otherwise than in the course of the stealing) he or she, knowing that the property was stolen or being reckless as to whether it was stolen, dishonestly–
(a) receives or arranges to receive it, or
(b) undertakes, or assists in, its retention, removal, disposal or realisation by or for the benefit of another person, or arranges to do so.
Section 17(2) states that such a person "shall be taken, for the purpose of this section, to have so known or to have been so reckless, unless the Court or the jury is satisfied that there is a reasonable doubt". Again, it is assumed the person is guilty and he or she must satisfy the court to the contrary. The Minister is aware that the considerable controversy on this issue in the other House was never aired because the Bill was guillotined. It deserves an airing here.
The question of handling stolen property can be one of the most difficult offences to prove in a court of law. The section seeks to set out an objective test that there would be an assessment of whether the person charged with the offence knew or suspected that the property in question was stolen, providing the court can satisfy itself that this inference can be made on the basis of the criminal test, that is, that the matter is beyond a reasonable doubt. The court would have to be satisfied beyond a reasonable doubt, which is the standard of proof in all criminal cases.
Occasions arise where stolen property is obtained by a person in circumstances where it may be reasonably concluded that it was stolen. To ignore that would leave a significant gap in the legislation. The amendment proposed by Senator Ryan would remove from the Bill a provision which would allow a court or jury to conclude from the circumstances in which a person came into possession of property that he or she either knew or was reckless as to whether it was stolen. If the person can tender evidence which raises a reasonable doubt about this, he or she will not be liable.
We are concerned here with stolen property and under the Bill that also includes unlawfully obtained property. I doubt if anybody seriously suggests that a person should not face any sanction where he or she obtains stolen property in circumstances where any sensible or reasonable person would conclude there is something suspicious about it. That suspicion may arise from the fact that, to use a cliché, it is being sold at a ridiculous under price from the back of a lorry. There may be other factors which would lead a person to question the origins of the property. The section seeks to provide that a person handling stolen property, no matter how far removed from the stealing, cannot claim not to have known or suspected it was stolen. Section 17(2) provides that a court or jury may decide that a person knew or was reckless that property was stolen in circumstances where it is reasonable to come to such a conclusion. However, such conclusion will not arise where the court or jury is satisfied, on the basis of all the evidence in the case, that there is a reasonable doubt about this.
I have already mentioned one type of circumstance where a person should properly be suspicious about the origins of the property and I am sure Senators can envisage many others. The point is that stolen property belongs only to the rightful owner and nobody should be allowed to obtain the benefit of any loophole in the law. This section prevents people pleading ignorance about the possibility that property might be stolen where the circumstances in which they acquired it should have alerted them to this possibility. For example, if a Michelangelo painting was for sale in Moore Street at £50 it might be concluded that there was something suspicious about it. However, no suspicions might arise if the same painting was on sale in Moore Street for £2 million.
There is a well-known artist called John O'Dongohue.
That is correct but I do not know the value of his paintings.
Somewhere in between.
I know the value of mine and I know one would be suspicious of being over-charged if asked to pay £50 for one of them.
The Minister is being a little disingenuous. Section 17(1) states:
A person is guilty of handling stolen property (otherwise than in the course of the stealing) if he or she, knowing that the property was stolen or being reckless as to whether it was stolen, dishonestly–
(a) receives or arranges to receive it, or
(b) undertakes, or assists in, its retention, removal, disposal or realisation by or for the benefit of another person, or arranges to do so.
Nobody is endeavouring to eliminate the offence of receiving or handling stolen property. The amendment suggests that this extra element of loading in one direction pushes the burden or proof away from the normal procedure where there must be proof of guilt to proof of innocence. The court or jury must be satisfied having regard to all the evidence that there is a reasonable doubt as to whether the person knew or was reckless. That is an additional step and it has nothing to do with the principle of it being an offence knowingly to have stolen property in one's possession. The amendment seeks to remove that, not the offence itself.
I have already said that the offence of handling stolen property can be very difficult to prove. Section 17(2), which Senator Ryan seeks to remove, seeks to ensure that a person will not be permitted to claim that he or she did not know certain facts if the circumstances are such that it is clear that they should have been known. I have explained the position by way of the example of the sale of a painting by Michelangelo in Moore Street. Most people would consider that to be reasonable. There is no attempt to criminalise the innocent or to put people on the back foot in respect of a criminal charge.
There is also no question of reversing the burden of proof in the legislation. The prosecution will have to prove its case beyond a reasonable doubt in every case. There may be times when certain assumptions will arise following evidence given in the case but, even then, the presumptions may be rebutted and may not be presumed until evidence is forthcoming. This is a reasonable provision for an offence that can be very difficult to prove.
This legislation, dealing with larceny and all the other offences of dishonesty, has been required for a long time. Much of our legislation dealing with dishonesty has been inadequate. Sometimes it has been extremely difficult for juries to understand cases and sometimes, when others may have considered them to be guilty, people have had cases dismissed against them because the jury found it difficult to follow the case in terms of the archaic definitions to which Senator Ryan referred. We are trying to modernise the law and bring it up to date. This includes recognising there are computer offences and that, essentially, any person who dishonestly makes a gain or causes a loss should pay the price.
We are also trying to sweep away definitions, procedures and meanings which have little relevance to the ordinary person. It does nothing but a disservice to the criminal justice system if ordinary people, looking at the criminal justice system, see people walk free from court without apparent reason having been charged with certain offences of dishonesty. This provision is an example of what we are trying to achieve. We are seeking to ensure that a person buying very valuable property for a very small price will not fool anybody. That is what the public expects.
I understand from where the Minister is coming and also from where Senator Ryan is emerging.
I did not merge, I joined.
I understand the point of view from which he is debating this point. He has not yet fully emerged.
The Senator should leave Senator Ryan's condition to one side.
I am slightly concerned about subsection (2)(b) which deals with cases where a person undertakes or assists in the retention of stolen property. Let us consider a case where a person owns a property that he or she does not regularly frequent. This property could be situated in a less frequented part of a town or in an isolated rural area and it might emerge that stolen goods were retained on that property. The Minister may state that a judge and jury will have to decide whether it is reasonable to suspect that the individual in question knowingly allowed the goods to be retained on his or her property. What will happen if two similar cases arise where stolen property was knowingly retained? How will it be decided that one individual is guilty of retention while the second is not?
I highlight this matter because I am aware of situations where stolen property has been stored at isolated farmhouses or in sheds. In one instance, it would be local knowledge that the person who owned the disused property would have co-operated in receiving and retaining the stolen goods. In the other instance, however, it would be known that the person on whose property the stolen goods were being retained would not have been involved. On foot of local knowledge, I would be in a position to state that subject A is highly suspect while subject B is definitely innocent but it would be difficult to provide conclusive proof. How can it be conclusively proven that there is a reasonable doubt that stolen property either has or has not been received and retained?
The position is questionable and I would like the Minister to elaborate further on it. I would not like an innocent person at whose property stolen goods had been retained to be deemed guilty on the conclusion of a judge who would not be privy to local knowledge. Further elaboration is required.
The ingredient of the offence is such that in my view it is not possible for an innocent person to be convicted. I accept that there are occasions when innocent people are convicted but these are rare. In my opinion, that eventuality is minimised to the greatest extent possible in the legislation. The person handling the stolen property must know that it was stolen or be reckless as to whether it was stolen and I have provided examples in that regard. In addition, there must also be activity, namely, he has to receive or arrange to receive the stolen property or he has to undertake or assist in its retention, removal, disposal or realisation by or for the benefit of another person or arrange to do so. I do not believe that the example to which Senator Taylor-Quinn referred would lead to a person being convicted in the courts.
I might find myself before the courts as an innocent party trying to prove that I did not assist in the retention of property in an isolated shed I own. The legislation will place innocent people in an extremely invidious position. I am unhappy about this provision, which needs to be examined in greater detail.
I know of people who have found themselves in the type of situation to which I referred earlier. If the legislation is enacted as it stands, innocent people who have never had any dealings with the courts will find themselves before them trying to prove their innocence and their fate will be decided on the whim of various judges. We have seen how inconsistent are judges in terms of their judgments and sentencing policies. One judge might state that a person is innocent while another will state that he is guilty. The provision is quite dangerous.
All I can do is outline the ingredients of the offence. The fact that someone placed stolen property in a shed in a far off part of a farmer's land, without his knowledge, would not mean that he was handling stolen property.
I am concerned with the retention element.
He could not retain it if he did not know it was there. The Senator may be able to provide an example where this might not be the case, but I have never heard of a person retaining something that he did not know was there. If an item is retained, one must know it is there in the first instance. There would have to be knowledge on the person's part. Even if that unlikely eventuality were to occur and a person retained something without knowing it, he would have to know it was stolen or be reckless as to whether it was stolen. If he retained it and did not know it was there, which I do not believe he could do, there is no way he could know it was stolen or be reckless as to whether it was stolen if he had not retained it in the first instance.
I actually agree with the Minister on this matter.
I move amendment No. 8:
In page 17, lines 16 to 24, to delete subsection (2).
This amendment returns to the argument about whether the provisions in subsection (2) represent a reversal of the burden of proof. Subsection (2) states:
Where a person has in his or her possession stolen property in such circumstances (including purchase of the property at a price below its market value) that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied . . .
This is a repetition of what is contained in section 17, but in this instance it refers to the possession of stolen property. I reiterate that this is an unnecessary and excessive response to what are obviously occasional problems in respect of prosecutions. In my view the subsection should be removed.
This amendment covers similar ground to that covered in amendment No. 7 which Senators have just been discussing. The reasons for opposing it are also similar to those the Minister outlined in relation to amendment No. 7. As he stated, we are concerned here with stolen or unlawfully obtained property. A person should not be in a position to avoid liability for possessing stolen property by simply claiming that he or she could not have known that it was stolen. The circumstances in which it came into the person's possession should have alerted them to the possibility that there was something suspicious about it.
For too long we have been prepared to turn a blind eye to the obvious but that will no longer be the case. Under section 18 a person will be guilty of possessing stolen property where he or she knew it was stolen or was reckless as to its origins. The Minister made this point in respect of the previous amendment. The person will also be guilty where the property came into his or her possession in circumstances where it is reasonable to conclude that he or she knew it was stolen or was reckless in this regard. Any comprehensive Bill dealing with theft and related offences would be seriously lacking if it did not cater for the type of situation at which section 18(2) is aimed. We cannot, therefore, accept the amendment.
One of the fundamental rights which I thought everyone took for granted and which has only been marginally changed over the years is the right to silence or the right not to be required to say anything. In other words, whatever one might have done or what one might know, one could not be coerced by law into disclosing it. That was a fundamental freedom.
Section 19 states:
(1) Where a member of the Garda Síochána–
(a) has reasonable grounds for believing that an offence consisting of stealing property or of handling stolen property has been committed,
(b) finds any person in possession of any property,
(c) has reasonable grounds for believing that the property referred to in paragraph (b) includes, or may include, property referred to in paragraph (a) or part of it, or the whole or any part of the proceeds of that property or part, and
(d) informs the person of his or her belief, the member may require the person to give an account of how he or she came by the property.
Under subsection (4), any information supplied shall not be admissible in evidence against that person or his or her spouse in any criminal proceedings. I note, however, that information could be admissible against another member of a person's family. This is an extraordinary change in the law. I understand it was not extensively debated in the other House or perhaps it was.
If a garda thinks something which I have in my possession was stolen or that I have the proceeds from the sale of something that was stolen, I am now legally obliged to explain to him or her where I got it. This will sound good to people who think civil liberties are egalitarian nonsense best disposed of but to those of us who know the balance of a democratic society is precisely that, it is a balance between conflicting rights and powers to protect the freedom of individuals.
The term "reasonable grounds", frequently used in legislation, has never been defined. No one is prepared to define it because to do so would be to constrain it. Therefore, it means, if a garda "thinks" I have in my possession something that was stolen, then I am legally obliged to provide him or her with an explanation of where I got it. That has echoes of totalitarianism. It is saying that in the interests of dealing with the offence of possession of stolen property I can be required to tell the Garda Síochána everything about property which I have in my possession. Let us figure this through in, say, the area of antiques.
The Traveller community who are involved in the business of antiques are often accused of untruths and stigmatised – they often deserve the blame for many things of which they are accused. Anybody who buys anything will now have to explain, by law, to any member of the Garda Síochána where they got it. There will be a criminal penalty for not doing so. A garda could trawl through anybody's home saying "I think that is stolen, tell me where you got it?" That is regarded as reasonable in a society where the right to say nothing was the most fundamental right of all. We adjusted the law to enable an inference to be drawn from a person's refusal to give an explanation. On each occasion we did so, we were criticised for breaching a person's traditional right to silence. The right to silence meant nothing could be drawn from a person's refusal to communicate.
In this case, not only can an inference be drawn but if one persists in refusing to communicate, one could be convicted under sections 17 and 18 whereby one has to rebut any inference drawn – the Minister said that under section 17 a conclusion can be drawn which the person has to rebut – and one could also be convicted of a separate offence for refusing to explain where you got the property. Any member of the Garda Síochána can request a citizen to explain where he or she got a particular piece of property. Under this legislation the citizen will have to give an explanation and if he/she does not, he/she can be subject to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months, or both. One could be sent to jail for 12 months for refusing to tell a garda where one obtained a particular piece of property.
If one does not want to worry about the balance of power in a free society, this is an easy way to do things. It makes for a hugely broadened capacity to trawl and gather information. It makes for a hugely broadened ability to pinpoint the network of things. It is a grand idea if one only looks at it from the point of view of finding ways to secure convictions efficiently. If one looks at it from the balance of a free society, it is inherently wrong. It turns our traditional position on its head and does so for no reason of which I am aware. I am not aware there is such a huge business in stolen property going on unprosecuted. I am aware, however, of a section in this Bill which effectively says that if a garda thinks something I possess is stolen or even thinks I have the proceeds of something that was stolen, he/she is entitled to demand from me an explanation as to where I got it. I find this a quite repugnant section and I am opposed to it.
Section 19 reproduces section 16 of the Criminal Justice Act, 1984—
Which I opposed.
—which is being deleted. The section has been adjusted to meet the specific requirements of the Bill. Section 16 of the 1984 Act dealt with larceny and the proceeds from stolen goods; this section deals with theft, handling and obtaining by deception. We have taken what was contained in section 16, made some minor changes and inserted it into this Bill. It is important to point out that no change is being made to the law.
Section 19 is intended to provide assistance in the investigation of offences of stealing or handling stolen property. Senators are seeking to delete the section from the Bill. The purpose of the section is to give the Garda power to require a person to give certain information in specifically defined circumstances. These circumstances are the Garda has reasonable grounds for suspecting an offence of stealing or handling, finds a person in possession of the property, has reasonable grounds for believing the property includes stolen property or the proceeds of it or-and has informed the person of his or her belief. It is not unreasonable, we would suggest, in those circumstances that the Garda be entitled to ask how the person acquired the property. If one finds someone in possession of one's stolen television it is not unreasonable to ask him how he acquired it.
This section does not give the Garda the right to stop people at random and demand information. There must be reasonable grounds for the action and they must relate to a suspected offence of theft or handling. The gardaí will not arrive in someone's sitting room and ask a person where he or she got the chair he or she is sitting on unless they suspect an offence of theft or handling or that they have reasonable grounds for the action—
Ask the McBreartys.
There are many people whose property has been stolen. I wish to ensure, if they report it and if the property is suspected or found to be at a certain place, that the Garda has the resources to investigate and the appropriate powers to enforce that law. We have provisions in other legislation for search warrants, for seizing goods, for requiring persons to account for certain objects and for drawing appropriate inferences. Those provisions are necessary in the fight against crime but each of them is ringed with safeguards for the person.
In the context of section 19, we have already set out what these safeguards are. Subsection (2) provides that any information given under the section will not be admitted in criminal proceedings against a person, other than, as Senator Ryan has pointed out, for an offence of failing to give a proper account when requested. As there is nothing new in the section – and I stress that – and since it forms a necessary aid to the Garda in investigating offences under the Bill, I cannot support the Senator's argument.
I move amendment No. 9:
In page 18, subsection (1), lines 15 to 17 to delete paragraph(b).
Section 20(1) states:
The provisions of this Part relating to property which has been stolen apply–
(a) whether the stealing occurred before or after the commencement of this Act, and
(b) to stealing outside the State if the stealing constituted an offence where and at the time when the property was stolen.
I know what is intended here – and I do not wish to repeat the unhappy metaphor of the sledgehammer and the nut – but this is a very sweeping measure. Let me take a particular example. There are societies in which a man's spouse is regarded as his property. If a man arrives in this country with a spouse whom he has allegedly stolen from somebody in a primitive society, is he guilty of an offence? The definition of property in this Bill does not exclude that possibility. What constitutes the property of an individual varies from society to society. The definition in the Bill does not deal with the matter satisfactorily – I would not have raised this without checking it. It states that "property" means money and all other property, real or personal, including things in action and other intangible property. It is deliberately drafted in the widest possible sense. What happens if the offence is committed abroad? How do we ensure that we do not penalise people for things that are far outside our criminal code? That is what we have to do if this subsection is to remain.
If a man comes into this country thinking that his spouse is his property, that will not apply here. What we mean by that is—
I was in this House, defending those issues, before the Minister of State ever arrived here.
People should not go off on silly tangents. I was referring to other societies—
The Senator will have the opportunity to reply when the Minister of State has finished speaking.
She should not go off at silly tangents.
I do not consider it at all silly, in terms of man's ownership of woman, whether in this or any other country.
Is the Minister of State capable of understanding that I was referring to other societies, not to Irish society?
If the Senator would allow me to finish my sentence. If one cannot steal it, or her, in this country, then it does not apply. It works both ways in terms of the dual issue. We are discussing the laws of this country.
With regard to section 20, I do not wish to fight with the Senator but we must be realistic, in the Irish context, in terms of the issue of men owning women. It is not a valid example of the application of Irish law.
Can a person break Irish law abroad?
The Senator can have a conversation after we have dealt with this Bill.
I also apologise for my reaction. The Senator pushed the wrong button on that issue. In terms of section 20, the Bill defines the circumstances in which property will be regarded as having been stolen and thus being subject to the provisions of the Bill. Section 7 of the Larceny Act, 1990, contained a similar provision in relation to the handling of stolen property. Under section 20(1)(b), property which is stolen outside the State and brought into the country will be subject to the provisions of the Bill provided – and this is the important point – that an offence has also been committed where the property was stolen. By virtue of subsection (2), stolen property includes any property, including money, which represents the proceeds of stolen property. The effect of the amendment would be prevent a person who either stole such property abroad and brought it into the country or who acquired such property in this country, from being prosecuted under the Bill. Accordingly, a person might avoid liability for the offence. This seems a strange proposition. It means that a person who succeeds in removing property from another country in which it was stolen and bringing it to this country would frustrate the efforts of both countries to prosecute him or her because the person and the property were no longer present in the state in which the offence took place and our law would not recognise the property as stolen. This would afford the perpetrator a form of immunity. A similar provision is already contained in the Larceny Act, 1990, and I am not aware that it has proved in any way problematic in terms of unfairly penalising anyone. Therefore, its inclusion in the Bill is merely retaining an existing legislative provision or the 1990 Act.
I have no idea why the Minister of State felt she had to become agitated on the equality issue. She is well aware that, on all equality legislation in this House, I was arguing against her conservative view on most issues. She is profoundly conservative on most of these issues – remarkably so for a Minister of State with responsibility for equality. Disappointingly, she has produced no constitutional amendments to assert the equality rights that were just struck down by a reactionary Supreme Court. She would be better employed in doing that than in lecturing me about equality and women's rights.
Section 20(1) states:
The provisions of this Part relating to property which has been stolen apply–
(b) to stealing outside the State [that is the first point, “outside the State”] if the stealing constituted an offence where . . . . . the property was stolen.
It does not say "if the stealing constituted an offence in this State". It says ". . . if the stealing constituted an offence where the property was stolen". Nobody has a problem in relation to theft carried out outside this State where the stealing would have constituted an offence under the law of this State. The phraseology here is "if the stealing constituted an offence where the property was stolen".
The Minister of State with responsibility for equality is saying it is all right to have in our legislation a provision which could well imply that, in societies where a wife is regarded as the property of her husband, the offence of stealing that wife is recognised as an offence in this country because the Department of Justice, Equality and Law Reform drafts sloppy legislation. That is easily dealt with by a Report Stage amendment but I know the Minister of State and her senior Minister will not accept it. The provision should read "where the theft was an offence in this State". I am quite happy to accept that any definition of theft should apply extra-territorially, provided it is a definition of theft as defined in Irish law and not in the law of the Taliban in Afghanistan, or Libya or other countries where women have no rights. The Minister of State can go away and think about it if she wishes but, as it stands, the provision covers that.
I have said on previous occasions – the Minister for Justice, Equality and Law Reform said this also – that there is little point in creating offences if we are not prepared to provide the resources to enforce them. Let us be realistic. Nobody in this country will prosecute somebody for stealing their wife in Africa. Second, even if a woman is the property of her husband in that country – something neither I nor the Senator would agree with in terms of its application here – and if that is considered to be an ownership of property issue in that country, the ownership of the property and the stealing of that property are two different issues. If a man owns his wife in Africa and his wife travels with him to Ireland, does that mean he stole her?
I do not know.
Realistically, we are not going to start dragging African men through the Irish courts for their belief that they own the property of their wives—
Or Irish men for stealing African wives.
That is not the point.
—and because we consider it stealing. If the Senator can propose a valid amendment which could be inserted on Report Stage, it is unfair to suggest that both I and the Minister would automatically reject it simply because he suggests it. We would be happy to look at it.
It is simple. One need only look at the interpretation section with regard to the meaning of "property". It means "money and all other property, real or personal, including things in action and other intangible property" as defined by the law in this land. We know what personal property means as interpreted by Irish law and it does not cover the issue mentioned by the Senator. Human trafficking is a separate issue which is dealt with in a different manner.
Senator Taylor-Quinn might be right about the meaning of the definition. I believe it could include many things. There is a simple solution to this which is to specify that the stealing outside the State is stealing which would have constituted an offence within the State. It should not state "if the stealing constituted an offence where and at the time when the property was stolen". There is the issue, for example, of joint ownership of property by married couples. It is difficult to talk about a spouse stealing something from a spouse. However, it is conceivable that there are other societies where such joint ownership does not exist and where a separated spouse could be guilty of the offence of theft in that society while they would not be guilty of it here.
It is not my job to do the Department's work. There is a clear anomaly in this provision. The Department has sloppily included the words, "if the stealing constituted an offence where and at the time when the property was stolen". That means anywhere on the planet. It is not my job to do the work of the Attorney General in rewriting the provision in a sensible way which deals with the issue. That is the Department's job. It has enough resources to do it. The Minister should offer to look at the issue again so we can move on. However, I will not move on from this issue until I get some sense from the Department.
I am taken aback by Senator Ryan's definition of property—
It was not my definition.
From my knowledge of property, whether it is real or personal or a chattel of any description, I have never seen either in common or statute law in this jurisdiction a woman described—
It is not in this jurisdiction.
—as an asset, chattel or liability in the context of property. We cannot legislate for what happens in Iran, Iraq or—
That is exactly what we are doing.
—Afghanistan. The Senator referred to the use of the word "stealing". Under common and statute law, stealing means to take something and permanently deprive the owner thereof. We must legislate for what we can do within this jurisdiction. I am not taking the Minister's side but I am certain that if any person in some bizarre way stole a man's wife in Afghanistan or in an Asian country, if such can happen, we would not recognise that here. We do not recognise that in any form or fashion but we cannot seek to legislate for countries outside the EU, whatever chance we might have of doing so in the EU.
In this regard, it is not so much that the Minister and her officials are dealing with an anomaly but that the anomaly is in my colleague's mind. I might be wrong but that is my opinion.
I am sorry I brought up the issue of a wife as property. However, it is a reality in many countries. There are societies where polygamy is still permitted. In this case we are relying on the good sense of the DPP, which is usually in plentiful supply. The reason we are relying on it is that somebody drafted a section of the legislation which is extremely sloppy, regardless of whether it was drafted in 1990 or now. It uses the phrase "if the stealing constituted an offence where and at the time when the property was stolen".
Let us leave wives out of it—
As a dangerous example.
—as a dangerous example. In other societies women have no rights to own property. If they take any goods belonging to their spouse and abscond, they are guilty of theft. They might come here and be followed by their husband who might make a formal complaint to the Garda Síochána. The letter of the law, as it is written here, states that the woman stole property which was an offence where and at the time when the property was stolen. Under Irish law, if somebody makes such a complaint to the Garda, the Garda can either ignore the law, which we all wish they would do, or they can enforce the law, which is probably what they should do under the legal system. Another alternative, before this goes any further, is that we can change the provision to one which is based on our definition of theft. It should be an offence under Irish law or the provision should not be there.
Let us say the theft takes place in Northern Ireland or somewhere else. If it would be an offence under our law, by all means let us prosecute it here. I have no problem with that but I have a serious problem with theft being defined by cockamamie anti-women societies, of which there are many, who would define it differently.
We cannot change the social mores of other countries. It would be ridiculous to think that we are legislating in this Bill for what is happening in other countries. We might believe that what is happening in other countries is wrong, including the right of women to own property and other such issues, but we cannot legislate to change that. All we can do is change our laws. We are not prosecuting in this case under foreign law but under Irish law. If it is not stealing under Irish law, we will not prosecute.
That is not true.
That is the factual position.
That is not what is in the Bill.
That is what is in the Bill.
Senator Ryan will have an opportunity to respond when the Minister has completed her reply.
We might not agree with the law of another country which prevents a woman from owning property but if, under the law of that country, she steals that property and brings it here, she might be prosecuted for it because it is stolen property. We might believe that if she were living in this country she would have equal ownership rights to the property in the first place but we cannot change another country's laws. All we can deal with is our law and what we consider to be stolen property.
The Minister of State with responsibility for women's rights is telling me that we would enforce anti-women legislation from another country under our law.
That is not true.
That is what the Minister said. If what the woman did in another country constituted theft – in other words, if she walked away with the clothes she stood in because in many countries women do not own their clothes because they have no property rights – and came to Ireland, her husband could require the Garda Síochána to prosecute her for theft under his country's law. That is what the Minister with responsibility for women's rights is telling me simply because she will not be allowed by her senior Minister to change the law. The Bill could be amended to deal with our law in a correct and sensible way. It should be an offence under Irish legislation. If it is not an offence under Irish legislation, people should not be prosecuted for it, least of all women.
It annoys me intensely that women from Afghanistan and elsewhere are being used in this debate as an example concerning this section of the Bill. This section deals specifically with criminals who are robbing property in another jurisdiction and then coming here to sell it. Women from deprived countries are lucky if they come to Ireland with the clothes they have on their backs. To suggest that they are to be prosecuted and that this section of the Bill would enable the Garda to prosecute them because they have arrived with clothes that belong to their husbands and not to them is ridiculous. This section could not be used in that way and these women should not be used as an excuse to delete this section of the Bill. This section deals with hardened criminals who travel to other countries to commit crimes and then return to Ireland with stolen goods to sell. I find the examples used offensive.
Senator Ryan is out-numbered, but whether he can be out-manoeuvred is another matter. Senator Ryan takes the view that we in Ireland accept without question what is seen as right or wrong in another jurisdiction. However, for several decades this jurisdiction did not agree with the position of other countries with regard to divorce. In the 1970s, a Brazilian person domiciled here but previously divorced in Brazil took a Supreme Court case so that the divorce which had taken place in another jurisdiction could be recognised.
Senator Taylor-Quinn has put the matter well. Extreme examples may be used but the thrust of this Bill is about fraud and criminal justice. It is not about stealing women or women's property. To quote extreme examples regarding the ownership or stealing of women, which is considered bizarre in this country, is wrong.
It is nonsense to raise such issues.
Senator Ryan chastised the Minister of State for her right wing views. With regard to women's rights and the rights of those with disability, the Minister of State has done more in the past 20 years than any other senior Minister of any Government in that period. We have come a long way and the Minister's approach towards such matters should be recognised.
I thank Senator O'Donovan for his remarks. Senator Taylor-Quinn and I come to this from different perspectives but we both find it offensive that these issues are discussed in such fashion. Senator Ryan should leave these issues aside and accept that some of what takes place in other countries is totally unacceptable to us in Ireland. To drop this part of the Bill would mean that criminals could go to Northern Ireland, rob what they like, take it back to Sunday markets in the Republic and sell the goods. We would not be able to tackle such crime because the goods were stolen in another jurisdiction. That example might get the point home to Senator Ryan. It would not make sense to go down that road. We cannot have a situation where a crime is committed in another jurisdiction and—
I accept that.
We want to prosecute the hardened criminals that Senator Taylor-Quinn spoke of, whatever the crime. That is what this part of the Bill is about. There is no point in debating the issues Senator Ryan raises because those matters, such as men owning women and their property, would not lead to prosecutions in this country. We are talking about hardened criminals and about ensuring that we protect people from the theft of their property in other jurisdictions. We need to be able to bring those criminals to heel.
Is the amendment being pressed?
We have discussed the amendment in great detail and at great length, Senator.
We have and that is because the issue I raised has been diverted into various tangential areas, including those raised by Senator Taylor-Quinn.
That was in response to Senator Ryan's diversions.
The amendment states that any offence of theft, in any state anywhere in the world, however defined, is an offence of theft in this State. I cannot get the Minister of State to explain why that is necessary. I have produced extreme examples because they explain the point very well. We are saying that any offence of theft, in any state anywhere in the world, is an offence here. That is repugnant to our values and our views. It should be that any theft, in any country, which would be an offence under the law of this land, should be prosecutable here. With that, I assent fully.
I will not be pushing the amendment because I propose, because the Department of Justice, Equality and Law Reform is incapable of doing so, to draft an amendment on Report Stage to deal with an issue which the Minister of State accepts but is prepared to put up with. I will introduce an amendment on Report Stage to deal with this anomaly. It involves about three words, but given that the Department of Justice, Equality and Law Reform seems unable to deal with them, I will do it for it.
We do not want people coming here with stolen property.
Amendments Nos. 10 and 11 are related and may be discussed together, by agreement.
I move amendment No. 10:
In page 18, line 44, after "if," to insert "in relation to property which is or represents the proceeds of criminal conduct,".
Who could object to the principle behind this amendment, anymore than the last amendment which we spent too much time discussing? We are dealing with money laundering. Who could object to dealing with that? However, as the Bill is currently drafted, a person is guilty of an offence if he or she thinks that he or she is money laundering, even if it turns out that is not the case. It is peculiar. If a person thinks the money is covered by the money laundering provisions and does not do anything about it, they are guilty of an offence because they thought it was money laundering even if it turns out it was not. Our first amendment tightens that up by saying "if in relation to property which is or represents the proceeds of criminal conduct,".
The second amendment refers to the line "without lawful authority or excuse (the proof of which shall lie on him or her)-." In other words, there is an offence because a person might think he or she is doing something wrong even if it turns out they are not. Proof of the fact they had lawful authority or excuse rests on the person against whom the accusation is made. This changes the burden of proof. The legislation states the proof of lawful authority or excuse shall lie on the individual. In other words, the individual has to prove that what he or she was doing was lawful and that reverses the burden of proof. Unless there is an overwhelming argument, we should not change it.
These amendments are to section 31(1) of the Criminal Justice Act, 1994, which is being amended by section 21 of this Bill. As I understand it, the first of Senator Ryan's amendments proposes the addition of the words suggested and is intended to make it clear that the property in question is property which is or represents the proceeds of criminal conduct. I do not think it is necessary to do this. It is already clear from the wording of that section what type of property is being referred to. Subsection (1) states that a person shall be guilty of money laundering if he or she knows or believes that or is reckless about whether the property is or represents the proceeds of criminal conduct. Where the property is not or does not represent such proceeds, there can be no question of money laundering under the subsection. Clearly, the only property which will give rise to liability under the subsection is property which is or represents criminal proceeds. It does not seem necessary to add any further clarification to that.
In regard to the second amendment which would delete the words contained in brackets, these state that when a person claims that he or she had lawful authority or excuse for doing certain things in relation to criminal proceeds, which are otherwise criminalised under the section, he or she should be required to prove that there was lawful authority or excuse. This does not seem an unnatural requirement in the circumstances. It should not pose an insurmountable obstacle to a person claiming lawful authority or excuse. After all, it is well within the capacity of such a person to produce the necessary proof.
If this amendment was accepted, it would mean that a person could claim lawful authority or excuse for laundering criminal proceeds and the Garda would then have to set about proving that he or she did not have lawful authority or excuse. Having proved that the person had laundered criminal proceeds, the Garda is then faced with a defence of lawful authority and excuse. Will we now expect it to disprove this when the obvious and logical solution is to expect the person to be able to prove that he or she had lawful authority or excuse? What are we trying to do here? Are we trying to hinder the effective implementation of anti-money laundering measures and allow the culprits to walk free or are we seeking to stop this criminal activity and give the Garda appropriate and effective weapons to combat it? I cannot accept that a claim of lawful authority or excuse, the proof of which is almost uniquely within the knowledge of the person claiming it, should not place an onus on that person to tell of that proof. Is that unreasonable? Accordingly, I cannot accept the amendments.
The Houses of the Oireachtas got a lesson in the courts recently about the need to be attentive to due process, particularly to be attentive to what is written in anything that passes through the Houses. We all learned something from that. It is extremely important that we are aware of what we are doing. When that is not the case, we are liable to end up somewhat embarrassed. If the Minister of State wants to make a Second Stage speech about who is better at beating up criminals, fair enough, let her do that. Nobody is objecting to dealing with the issue of money laundering but we do so in a free society which is constructed according to certain norms and principles, one of which is that the burden is on society to prove that offenders are guilty and not on suspected offenders to prove to society that they are innocent. That is the reason for the two amendments.
Since it is manifestly clear that we will not make any progress in this discussion, I do not propose to pursue the matter further. I hoped there would be specific reasons that these matters should be dealt with in a specific way. It is the eternal desire of the Department of Justice, Equality and Law Reform to abolish as many of our civil liberties as possible.
I move amendment No. 12:
In page 19, to delete lines 23 to 45 and in page 20 to delete lines 1 to 4.
This amendment proposes the deletion of an important element of the new section 31 of the Criminal Justice Act, 1994, dealing with cases where a court or jury may conclude that a person should have known that he or she was laundering criminal proceeds. In this regard, it is similar to amendments Nos. 7 and 8 with which we have already dealt and for the same reasons, we cannot accept it.
Again, I bring to the attention of Senators the basic fact that the Bill's intention is to eliminate the possibilities that may exist for persons, through wilful blindness, to avoid liability for their actions. In this case, we are concerned with money laundering. The terrible events of 11 September in the USA have given added urgency to the fight against terrorism and all its manifestations. Money laundering associated with terrorist organisations has become a particular focus.
The new section 31 will update the offence of money laundering. Part of that process is the closing off of opportunities for persons to maintain they did not know they were involved. I have already stated in relation to earlier amendments that the circumstances surrounding the acquisition of property should alert persons to the possibility that it was stolen. Similar considerations arise here. Where the circumstances are such that it is reasonable to conclude that the person knew or believed that or was reckless about whether the property was or represented criminal proceeds, he or she will be taken to have known, believed or have been reckless on that account.
However, this is a criminal justice Bill and justice would not be served by disregarding the possibility that the person did not know, etc. Therefore, this is not an absolute and it is open to a person to offer evidence to the effect that there is reasonable doubt on this score. As Senators know, the standard of proof in a crimi nal trial is beyond a reasonable doubt. If the person can produce evidence which casts a doubt on the reasonableness of the conclusion that he or she should, in the circumstances, have known that the property was or represented criminal proceeds, no liability will be attached to the person under the section. This is clearly spelled out in the section and represents an important safeguard against injustice arising in its implementation.
As I already said, money laundering associated with terrorist organisations must be effectively tackled. I emphasise that legislation against money laundering is as much concerned with the laundering of ordinary criminal proceeds, for want of a better term. These organisations need money to carry out their activities and they need ways to disguise that money. Various methods of laundering have been developed. The terrorist or criminal organisation and the law enforcement agencies know the importance of disguising the origins or true ownership of that money. Our aim must be to divest them of it. To do that, we must have effective laws and there is no point leaving gaps for people to exploit. Such a gap would be to allow persons to feign ignorance and the provisions in question in this amendment would stop that.
The provisions in question deal with situations where the circumstances are such that it is reasonable to conclude that a person should have known, etc, that he or she was laundering criminal proceeds. Therefore, we cannot accept this amendment.
At the risk of repeating myself, the fact that an offence is heinous, such as that of 11 September, and that terrorists use money laundering unscrupulously is also acknowledged and accepted. These things do not, in themselves, justify a fundamental change in law, if that is what is involved. It is just too trite to expect that this will make it easier to secure convictions. There are many things we could do to make it easier to secure convictions. We could abolish jury trials. That has been proven to work in this regard. The Special Criminal Court does it with great efficiency. We could do a whole lot of things like that, but we must ask how we should balance these rights in a free society. If we do not balance them in a free society, the objective of all the terrorists, which is to destroy the free societies we have, will be well on the way to being achieved.
The internment of 600 or 700 people in the United States without trial and incommunicado does not do much for the concept of freedom in the United States. It makes it easier for lazy prosecutors if they do not have to prove offences and the other person has to do the proving. What this is about is making prosecutions easier to sustain with less difficulty for the prosecutor.
The Minister stated that a person is guilty of money laundering if he or she knows or believes that, or is reckless about whether, the property is or represents the proceeds of criminal conduct. Imagine the result if we changed the licensing laws pertaining to drunken driving and said that the proprietor of a licensed premises is an accessory to drunken driving unless he can show he had no reason to believe that a person on his premises was unfit to drive a car. Drunken driving kills 300 or 400 people per year. Suppose we said that anybody who served drink to a person who was liable to drive a car and kill somebody was an accessory after the fact and would have to go to court to prove that they did not know what the driver was doing, imagine the outcry there would be if publicans had to do that. It would possibly save 200 or 300 lives every year. The reason I would not support it is that I do not believe that people should have to prove their innocence, but that society should have to prove people are guilty. That is what the current disagreement is about. I do not propose to push the amendment to a vote because it would deprive me of the opportunity to raise the matter again on Report Stage.
Does the Minister wish to add anything?
We need to stress that the circumstances in which the acquisition takes place provide the key to the matter. The circumstances surrounding the acquisition of the property should have alerted the person to the possibility that it was stolen. We are dealing with money laundering and such issues. We do not want people who obviously knew what they were involved in saying they did not know or could not have known. As the Minister outlined clearly, people are guilty if they knew, believed or were reckless as to whether the property was or represented the proceeds of criminal conduct. That trust pervades the entire matter.
Senator Ryan is concerned about making it easier to secure convictions. We need to secure convictions. The circumstances surrounding the acquisition of property must be taken into account. I do not know if the Senator is aware of all the victims of stolen property etc. One cannot always say, "Let us make it difficult to secure convictions." We want to secure convictions. That is the whole point in changing the law.
Is the amendment being pressed?
If the Minister of State is so determined to secure convictions and to stop drunken driving, for instance, will she argue that those who sell drink recklessly to people who will drive cars are party to the offence and should be prosecuted too? The same principle applies to money laundering. It is a way of dealing with the proceeds of crime. Why not do it? I would not do it because it is wrong, but it would deter an enormous number of people from selling drink to people who would leave the premises and drive away under the influence of alcohol.
This amendment corrects a printing error which resulted in a number of words being omitted from subsection 7(a)(iv) of the new section 31 of the Criminal Justice Act, 1994. It is just a printing error.
It now reads "was probably, or probably represented, such proceeds". It does not read like English any more.
The Minister is satisfied.
I move amendment No. 14:
In page 20, to delete line 47 and in page 21, to delete lines 1 to 13.
This part of the section to which the amendment refers is peculiar. It concerns the identification that an offence where a person handles property is an offence in another country. For the purposes of this, a document purporting to be signed by a lawyer practising in the state or territory in which the criminal conduct concerned is alleged to have occurred and stating that such conduct is an offence under the law of that state or territorial unit and a document purporting to be a translation of a document mentioned to be certified as correct by a person appearing to be competent shall be admissible in any proceedings without further proof as evidence of the matters mentioned in these documents.
Yet again, in proving that something is an offence in another country, we will not make the effort of examining the law of that country. We will say that any lawyer from that country can write a letter making a certain allegation in his own language, after which we will get somebody to translate it into English. Then we will ask the defendant to prove the allegation is not true. That is not the way I understood we did our business concerning criminal law. I am disappointed because, obviously, we have identified with a scattergun every single thing that might constitute an offence.
Sometimes guilty people get off. It is the price we pay for living in a free society. If one has a society in which one can be absolutely certain that everybody who is guilty is convicted, one will lock up many innocent people as well. In the light of the events of 11 September, we are in danger of erring on the side of prosecution. I do not propose to push my amendment further.
Section 31(7)(c) of the Criminal Justice Act, 1994, substituted by section 21 of this Bill, will permit documentary evidence to be admissible concerning foreign law in cases of money laundering. Such evidence will be accepted without further proof unless the contrary is shown. The phrase “unless the contrary is shown” is important. Section 60 is similar in terms of how it relates to offences under the Bill and evidence that a person was an Irish citizen at the specified time of the crime.
These amendments seek to delete these provisions. The concern appears to be that these provisions preclude cross-examination either by the content of the document or the person who prepared it while the provisions of both sections provide that such a document shall be admissible in any proceedings without proof of evidence of the matters mentioned in them. They specify that this will not be the case where the contrary is shown, thus it is clearly open to the defendant to rebut such evidence.
Our intention here is to include provisions such as these to attempt to streamline criminal procedures and speed up the work of the courts. These are clearly circumstances where it should be possible to tender evidence set out or documents where the matter purported to be proven is straightforward. In those circumstances it should not always be necessary to call the person as a witness.
It is strange that on the one hand the Minister for Justice, Equality and Law Reform is often criticised for delays in the processing of court cases when on the other hand he is criticised when he tries to do something practical to alleviate the problem. We see this as being practical. As outlined, if the contrary is shown it is up to the defendant to rebut that evidence and the matter is covered. The provision of the Bill which it is sought to delete is an important element of the fight against money laundering and offences of dishonesty. Accordingly we cannot agree to its deletion.
The sanctimonious claim that there are good guys over there and bad guys like me who want different things is a load of nonsense. I want to defend the integrity of a criminal justice system which has served freedom well. This is about defending the freedoms of ordinary people, one of which is the right to be free from terrorism and crime. The basic belief that underlies our society is that we want to live in a free society, not one which is not free yet free from crime – we want a society which is free for each citizen and free from crime. What we are saying here is that it would be up to any defendant in a money laundering case to prove that these documents were not valid.
With all due respect to the legal profession, to suggest that a document signed by any lawyer practising in the State or territorial unit would be acceptable as proof in a criminal case unless the contrary is proven is being very generous to the prosecution. He or she does not have to be a lawyer of any particular experience, even five years' experience, but someone who is simply qualified to be a lawyer in the country. I do not have an argument with the translation.
The Minister made great play of the fact that the person is entitled to rebut this but we live in a free society. It would be quite extraordinary if they could not rebut it. That is not a virtue but a necessity of any level of free society. Like much of this Bill, the provision is not written as it should be. There should be some level of experience or competence required of a lawyer.
The other difficulty is that refutation of this will probably necessitate the defence bringing somebody from that country. The State is saved the expense of prosecution while the defence is burdened with the expense of bringing someone from another country to show that what is claimed to be the case is not the case. That is the way we do things now, apparently.
I wish to announce a correction to amendment No. 15. A single quote should appear after the last word, property, in this amendment.
We seem to be spending a lot of time discussing issues related to the new section 31 of the Criminal Justice Act, 1994, and perhaps this is a reflection of the importance of ensuring we get these provisions right. The new section 31 criminalises various actions which amount to money laundering. These actions include laundering by a person of his or her own criminal proceeds as well as laundering by a third party of others' criminal proceeds. The section also penalises persons who have known or suspected that property was or represented criminal proceeds. Obviously banks and so on are prime targets for those trying to launder dirty money and the 1994 Act places certain obligations on these institutions to have in place measures to detect and report suspicions of money laundering. There are, in addition, provisions which penalise anyone who prejudices any investigation into suspected money laundering by, for example, revealing that an investigation is under way or by tipping off the account holder. In view of the fact that money laundering may consist of acquiring, possessing or using criminal proceeds, there may be a danger that an institution will feel that it must, in addition to reporting any suspicion of laundering, divest itself of any account which it suspects of being used for money laundering or risk prosecution under the Act. In doing this it may feel it is contravening the provision against revealing that the account is being investigated by the Garda.
Amendment No. 15 is intended to get over this dilemma. It provides that where the institution has reported to the Garda its suspicions or where the Garda has informed the institution that it is suspected of being used for money laundering, the institution will not be guilty of laundering or tipping off a person so long as it is complying with Garda directions in the matter. I hope the House accepts this represents a sensible approach to the matter.
I move amendment No. 16:
In page 23, lines 18 to 25, to delete paragraphs (m), (n) and (o).
Section 24 of Part 4 deals with forgery. I do not take issue with much of it as, contrary to what the Minister likes to suggest, I am as much in favour of dealing with criminals as she is. I just have a different approach to dealing with them.
The amendment arises out of three documents mentioned as instruments under this. One is a passport or document which can be used instead of a passport, the second is a document issued by or on behalf of the Minister to enter or remain in the State and the third is a registration under Article 11.
I would not want to encourage those practices but to put these into criminal law under forgery is pushing a little hard. Subparagraph (m) refers to a passport or document which can be used instead of a passport. Making the use of such a document a criminal offence would mean that a huge number of genuine asylum seekers would be penalised. Almost by definition a genuine asylum seeker had something to worry about in the country he or she was in and probably was not allowed to have a passport. They would therefore need forged travel documents in the first place to escape the persecution they were afraid of. If they arrived here with forged travel documents it appears that the combination of this and a subsequent section would mean they would automatically commit an offence. These subsections need to be reconsidered.
Part 4 of the Bill deals with forgery for the purposes of establishing what actions constitute forgery. It is necessary to state what items or instruments are capable of being forged and Part 4 therefore defines what is meant by an instrument. Under Part 4 a person will be guilty of an offence if he or she makes or uses such a false instrument or possesses or controls a false instrument or a machine or implement for making a false instrument.
The amendment would delete references to passports and other documents which permit entry to the State or which permit a person to remain in the State. We cannot agree to the amendment as in the first place it would mean there would be no offence of forging a passport or abusing or possessing a forged passport, which is not acceptable. In any event, there is nothing new in what is contained in section 24. Forgery of passports and public documents is already an offence under the Forgery Act, 1913 and the Official Secrets Act, 1963. If the present Bill was not consolidating the Forgery Act and the relevant provisions of the Official Secrets Act, the forgery or uttering a forged passport would still be an offence. There is nothing new in including passports and other such documents in the list of documents set out in section 24.
I emphasise that offences related to forgery are specific in this section. It will not be an offence to possess a false instrument, such as a forged passport, where there is lawful authority or excuse for its possession. Any reasonable interpretation of the provision means that a person with a well founded fear of persecution would have an excuse for possessing the false document. Accordingly, a person in possession of a false passport who can show that he or she fled another country in fear of persecution would have an acceptable excuse.
The amendment is motivated by concerns about persons arriving in the State in possession of false travel documents. Under section 9(1) of the Refugee Act, 1996, a person who makes an application for asylum at the frontiers of the State must be given leave to land in the State by immigration officers. This requirement is absolute and applies regardless of whether the person in question has valid documentation, no documentation or forged or fraudulently obtained documentation. It is simply not possible for an immigration officer to refuse an asylum applicant leave to land, regardless of the circumstances. It is incorrect, therefore, to suggest that the inclusion of the documents in the list in section 24 somehow targets asylum seekers. The list set out in the section is intended to cover the fullest possible extent of documents of value worth forging.
A passport is a valuable document, but the amendment seeks to exclude passports from the section of the Bill dealing with forgery. Is it suggested that a person caught with a number, sometimes a large number, of forged passports should not be guilty of an offence or that a person in possession of only a forged Irish passport should be penalised? Either of these propositions would render a nonsense of the law. It should also be borne in mind that the recent United Nations Resolution 1371, passed in the wake of terrorist atrocities in the United States on 11 September, obliges states to take measures to prevent counterfeiting, forgery or fraudulent use of identity papers and travel documents. I cannot, therefore, support this amendment.
The Minister of State has made a very convincing case and I am happy to withdraw the amendment.
We should examine all the things that happen in our society, including forgery. I accept the Minister of State's case, but to protect An Post's postage stamps from forgery, as proposed in section 24, is to give the company an unfair advantage over its competitors, which do not have such protection. To classify postage stamps with genuinely important documents harks back to a world in which the post office, whether the Royal Mail or An Post, provided a unique service. The idea that such institutions are worthy of special protection is an anomaly. A different world is suggested by the notion that one could be given ten years in jail for forging a postage stamp. Many of the items listed in this section belong to another era and are no longer the stuff of serious forgery. They could be removed from legislation at a future stage.
When talking about postage stamps, we are also including postage marks and franking machines so a broader area is covered.
I do not have an objection to this section generally and I do not want to take up the time of the House, but I am a little concerned about one small issue. The quality of reprographic equipment now available is so good that, with a little work on a home scanner, I could produce a £20 note that would be accepted in any public house late at night. Legislation needs to keep pace with the quality of scanners, although I do not know how it can be done. Oireachtas paper is precious and Members should be careful of it, as it can be abused. It could be scanned to produce paper of such high quality that it would be impossible to tell it was not the real thing. On forgery I wish to advise the Minister of State to be a little more vigilant instead of worrying about civil liberties, as reprographic equipment will lead to serious problems in the future.
I wish to make a small point which may be relevant to many cases. I do not deny the need for search warrants, but I query the entitlement of the Garda, under section 48(3)(b), to search a place and “any persons found there”. The Bill does not contain specifications in relation to the gender or age of those being searched. I would not like this section to be passed without reference to the need to observe proper proprieties and to deal with children in a proper fashion. I am not arguing about this matter, but I would like the Minister of State to comment on it.
Garda guidelines are applied in the circumstances to which the Senator refers. His concerns may be allayed by the Garda rule that minors should not be searched except in the presence of parents and by the procedures that apply to the searching of females.
I move amendment No. 17:
In page 42, subsection (1), between lines 9 and 10, to insert the following new subparagraph:
"(iv) order an inquiry into the resources of the convicted person (and in particular into any financial accounts, held by such convicted person, or held by another on his or her behalf) and upon being satisfied that such resources are sufficient to discharge a sum not exceeding the value of the first mentioned property, order that a sum not exceeding the value of such property be paid from such resources of the convicted person as the Court shall direct, to the person entitled to the first mentioned property.".
I am concerned that the provisions of section 56 relate specifically to the taking of property from the possession of a person when arrested. We need to go a step further so the convicted person's general assets can be examined. If they have the resources, there should be a provision to restore the property to the person entitled to it. Refining and restricting the provision discriminates against the victim. That is not wise and I would ask the Minister of State to accept the amendment.
Section 56 replaces a similar provision in the Larceny Act, 1916, concerning the restitution of property following prosecution. The section also permits that a sum of money taken out of the possession of the accused when arrested, and representing the value of the stolen property, be paid by the convicted person to the owner of the stolen property.
This amendment proposes that the court will embark on an inquiry into the resources of the convicted person to ascertain the financial resources available to him or her. If these resources exceed the value of the stolen property then restitution will be ordered to an amount equal to that value.
I have some sympathy with the intention of the amendment. No one wishes victims to suffer further by being unable to recover property or the proceeds of the sale of that property, nor to see anyone benefiting from crime. However, the amendment is unnecessary since the provision for the payment of compensation by a convicted person to the victim is already contained in section 6 of the Criminal Justice Act, 1993. That section permits the court, following conviction, to make an order requiring the person to pay compensation in respect of any personal injury or loss resulting from the offence to anyone who has suffered such injury or loss. This provision includes the victim of the theft.
The effect of section 56, taken with the provisions of the 1993 Act, is that a victim who has not recovered an amount at least equal to the value of the property can still seek compensation for the difference under the 1993 Act. I hope the Senator will accept that the amendment is unnecessary because of the provisions of section 6 of the Criminal Justice Act, 1993.
I appreciate the Minister of State's comments. However, would she consider introducing an amendment on Report Stage to include reference to the 1993 Act for the purposes of restitution? That would sit easily within this section. The Bill incorporates a wide variety of criminal acts and the inclusion of a reference to the 1993 Act in this section would be appropriate. The Minister of State should consider such a reference as this Bill will be seen as the relevant statute regarding all of these issues. Since this section deals with restitution the Minister of State should include in it all relevant statutory references. Will she consider such an amendment?
This Bill covers restitution and the amount of compensation. However, the 1993 Act deals not just with compensation for loss of property, but wider issues such as compensation in the case of injury incurred during that loss. It is preferable not to cross-reference or change the 1993 Act, but to add this Bill to its provisions so a victim can access either legislation, or both. That is a preferable approach.
I move amendment No. 18:
In page 43, subsection (3), between lines 29 and 30, to insert the following new paragraph:
"(b) shall be tendered as a witness by the prosecution if so required by or on behalf of the defendant and”.
This amendment concerns the new formulation which is probably designed to facilitate the operation of jury trials, but which includes an unfortunate anomaly. Section 57(1) states, "In a trial on indictment of an offence under this Act, the trial judge may order that copies of any or all of the following documents shall be given to the jury."
Section 57(3) refers to a situation in which a trial judge has made an order regarding an affidavit mentioned in section 57(1)(g), namely, an affidavit by an accountant summarising in a form which is likely to be comprehended by the jury, any transactions by the accused. This would involve the giving of an affidavit by an accountant to the jury to help it understand what is going on.
No one disputes this provision, but the affidavit does not appear to be open to challenge by the defence. In other words, the affidavit becomes the document. My amendment proposes that any person who is summoned as an expert witness under this section should be tendered as a witness by the prosecution if so required by, or on behalf of, a defendant. The objective of this provision is to allow for the provider of such an affidavit to be cross-examined by the defence.
If this provision is not accepted there is no guarantee that the affidavit will be correct, even though it may be an honest endeavour on the part of the individual. The process of cross-examination is not only used to find dishonesty, but also to find errors. Cross-examination is the process by which the meanings of words, contradictory phrases, etc., in otherwise honest statements, are highlighted. My amendment would require that the provider of an affidavit would be open to cross-examination by the defence where it so wishes.
This amendment refers to the section of the Bill which deals with the provision of information to juries to assist them in their deliberations. Section 57 seeks to address the growing complexity of fraud trials by making evidence available to juries in as clear a manner as possible. It implements a recommendation of the Government's advisory committee on fraud and the Law Reform Commission. The committee on court practice and procedure also considered that the trial judge should be empowered to order the provision of documents to the jury.
Section 57(3) provides that where the judge has ordered that an affidavit by an accountant be given to a jury, the accountant will be summoned as an expert witness by the prosecution and may be required by the trial judge, in an appropriate case, to give evidence regarding any relevant accountancy procedures and principles. The effect of this provision is that the accountant who has sworn the affidavit will be summoned as a witness by the prosecution. The provision in section 57(3)(a) is mandatory and this will give the defendant an opportunity to cross-examine the accountant about relevant matters.
The amendment would not add to this provision as it stipulates that the accountant will be tendered as prosecution witness if the defendant so requires. Does this mean that, contrary to section 57(3)(a), the accountant would only be required to attend as a witness where the defendant so wishes? Unless I misread the amendment, this would mean that the accountant would not otherwise be required to attend. If I accepted the amendment I would conclude that section 57(3)(a) is unnecessary and that the issue of the accountant's attendance should be a matter solely for the defendant. In practical terms it appears that a defendant would be likely to insist on such an attendance in almost all cases.
The amendment would give rise to confusion. Section 57(3)(a) provides that, where an accountant has sworn an affidavit in accordance with section 57(1)(g), and the judge decides that it should be given to the jury to assist it in its deliberations, the accountant shall be summoned by the prosecution to attend the trial as a witness. In that context it would be open to the defendant to cross-examine the witness.
I move amendment No. 19:
In page 44, lines 28 to 40 to delete subsection (2) and substitute the following new subsection:
"(2) (a) It shall be an offence to commit fraud in relation to a firm.
(b) In this section ‘fraud' in relation to a firm means:
(i) Dishonestly, with the intention of making a gain for any person, or of causing loss to the firm, inducing the firm to act or refrain from acting.
(ii) Intentional misrepresentation materially affecting financial statements of a firm.
(iii) Dishonestly, with the intention of making a gain for any person, or of causing loss to the firm.
(I) Destroying defacing, concealing, falsifying or altering any financial statements, account or any document made or required for any accounting purpose; or
(II) failing to make or complete any financial statements, account or any such document; or
(III) in furnishing information for any purpose producing or making use of any account, or any such document, which to the knowledge of the person furnishing such information is or may be misleading, false or deceptive in a material particular; or
(IV) the suppressing or omitting the effective material transactions from the firm's books of account; or
(V) recording in the firm's books of account material transactions without substance.
(iv) Dishonestly appropriating property of the firm with the consent of the firm.
(v) Intention misapplication of an accounting policy or policies so that the financial statements do not comply in all material respects with the requirements of company law and accounting standards.
(vi) The use of the firm for any of the fraudulent purposes referred to in ‘(i)' to ‘(v)' above.
(c) For the purpose of the section a person shall be treated as falsifying financial statements, and or other documents if he or she makes or incurs in making therein an entry which is or may be misleading, false or deceptive in a material particular or,
(i) omits or concurs in omitting a material particular therefrom.
(d) If, having regard solely to information obtained in the course of an audit of the financial statements an auditor has reasonable grounds to believe that a fraud in relation to the firm may have been commtted, the auditor shall:
(i) Except in the circumstances outlined in (3) below, communicate in writing particulars of the possible fraud to the firm without undue delay and request the firm to:
(I) take such action as is necessary for the purpose of rectifying the matter; and
(II) notify the director and a member of An Garda Síochána of the information upon which the auditor has based the notification.
(A) If the auditor has reasonable grounds to believe that the firm has failed to notify the director and a member of An Garda Síochána within seven days of the auditor communicating in writing particulars of the possible fraud to the firm, the auditor shall forward a copy of that communication to the director and a member of An Garda Síochána.
(e) If, having regard solely to information obtained in the course of the audit of the financial statements, an auditor has reasonable grounds to believe that a firm is being used or may have been used for a fraudulent purpose or that a director or directors of the firm in that capacity may have defrauded the firm, its creditors or other persons, the auditor shall communicate particulars of the possible fraud to the director and a member of An Garda Síochána without undue delay.
(f) The application to notify the director and a member of An Garda Síochána in paragraphs (d) and (e) shall not apply if the effect of the possible fraud is minor or otherwise immaterial.
(g) In this subsection, subparagraphs (i) to (v) ‘Auditor' means an auditor to the firm appointed in accordance with section 160 of the Companies Act, 1963, and ‘the Director' means the Director of Corporate Enforcement.”
I propose the deletion of subsection 59(2). This subsection places a huge onus on accountants. The subsection refers to offences which may have been committed by the firm concerned or in relation to the affairs of a firm by a partner. It requests practitioners to make an assessment as to whether something is happening and to make a judgment on that. This is a huge task over and above the normal professional demands on accountants. Nowhere in the subsection or elsewhere in the Bill is there a clear definition of fraud. My proposed new subsection would give such a definition.
I urge the Minister to examine this amendment with a view to accepting it in total. It is important that the amendment be discussed in detail. Because of the guillotine motion, there was not sufficient time to discuss it adequately in the Dáil and it is important that it receives a proper airing here.
The present subsection is extremely vague and impractical. It places an onus on accountants to have a knowledge of criminal law which is not within their normal competence. It requests accountants to do something which they do not have the competence to do. This is unfair and it is wrong to place such a statutory requirement on them. It is neither practical nor realistic. The accountancy profession could not operate in an open and business like fashion if a demand such as this was hanging around its neck.
The amendment proposes a framework which is similar to that recommended in the 1993 report of the Government's advisory committee on fraud and follows the approach taken in that report. It is also similar to what is currently in place in many EU member states and is similar to the framework in the 1997 Taxation (Consolidation) Act. What is proposed in the amendment is already familiar in taxation law, is similar to practice in other member states and was recommended in 1993. It has all the ingredients for success. I encourage the Minister to accept it and to include it in the Bill.
I realise that officials of the Department of Justice, Equality and Law Reform have had discussions with representatives of the accountancy profession and that there is an understanding of the difficulties faced by accountants. I ask the Minister to acknowledge these practical difficulties. It is important that a reasonable approach be adopted. The current requirements are not reasonable. It is unreasonable to expect an accountant to have detailed knowledge of criminal law or to be aware of circumstances which would indicate that the criminal law has been breached. That would be like asking Senator O'Donovan, or indeed the Minister for Justice, Equality and Law Reform, in the course of their legal practices to be aware of practical details of accountancy matters. The subsection leaves much to be desired.
I ask the Minister of State to recognise the intent of the amendment. It is intended to be helpful and to strengthen the Bill. The amendment is operable whereas section 59(2) is not. There is a case for accepting the amendment.
Acceptance of the amendment would entail a substantial change to the intention behind section 59. The section places an obligation on certain persons to report to the Garda where the accounts of a firm indicate that an offence under the legislation may have been committed by the firm or by a director, manager, etc. Where the person makes such a report in good faith it will not be treated as a breach of any statutory or other duty of confidentiality which the person owed to the firm.
We are concerned here with the reporting of a criminal offence, such as offences under the Bill involving dishonesty. The amendment seeks to deal with fraud in relation to a firm and it defines fraud for that purpose. A significant part of the definition repeats the provisions set out in section 10, which is concerned with false accounting. There is a concern that such an approach is more likely to lead to confusion rather than clarify this issue.
The amendment also deals with matters such as the preparation of financial statements, which are more appropriately dealt with by the Companies Acts. In the amendment the obligation on certain persons to report instances of fraud in relation to a firm involves a number of stages beginning with a report to the firm and a request that it take certain action to rectify the matter, followed by a report to the appropriate authority, including the Garda. Only if the firm fails to take this action will the person inform the appropriate authorities. The amendment also provide that a person may report to the appropriate authorities where he or she has reasonable grounds to believe that a firm has been used for a fraudulent purpose.
While it is clear the amendment recognises that certain persons, such as auditors, should have certain responsibilities where they come across indications that the business of the firm is being conducted in a manner which is fraudulent or otherwise inappropriate, it appears to go beyond what is required in the Bill, which is mainly concerned with offences of dishonesty. Section 59 requires that auditors should report indications of dishonesty by a firm or certain persons within it. Where an offence may have been committed, it is a matter for the Garda to investigate. Therefore, it is logical that any indication that an offence may be committed by the firm or by certain persons within it should be reported to the Garda. We consider that a direct report should be made to the Garda, who should undertake any investigation.
I accept that any breach of a statutory duty by firms should be reported to the appropriate authorities and I am sure appropriate mechanisms provide for this. However, section 59 is concerned with the offence of dishonesty by a firm and the way to deal with it is to require the auditor to report directly to the Garda. Accordingly, I am unable to accept the amendment. There are two approaches to this issue and we consider that a direct report to the Garda is the most appropriate one.
I am dissatisfied with the Minister's response. I hoped she would have been more constructive and taken on board what was recommended. Section 59(2) places an onus on a person almost to make a value judgment on the company. It expects the person to define themens rea, the state of mind or intent of the firm or practitioners within the firm. How will it be clearly defined when a practitioner will conclude that an offence may have been committed by the firm, or by a partner in the case of a corporate or incorporated body? There is no definition to address this aspect.
The section is weak because of the lack of clear and specific guidelines. It fails to provide a clear direction to practitioners and places a huge onus on their shoulders while not stipulating what they must do. It is unfair and out of order to request a practitioner to make that kind of judgment. People may consider that their company, firm or partnership is engaged in suspect activities but it places too much of an onus on them to approach the Garda. They should be first expected to confront their partners or colleagues. It would then be for the firm, company or partnership to fulfil its responsibilities. Failing that the individual could act.
The amendment is in line with the recommendations of the advisory committee on fraud published in 1993 and is similar to what prevails in other EU member states. I urge the Minister to accept it because it would strengthen rather than weaken the Bill. I am sure he and his officials, who will have discussed this aspect with the accountancy bodies, see merit in it.
I see Senator Taylor-Quinn's point of view. We are concerned here with external auditors, not staff within the firm. The provisions affect those involved in external audits who encounter acts which they believe may constitute an offence. Senator Taylor-Quinn suggests that auditors should in the first instance report directly to the firm but that would mean their involvement in investigations into matters which, given that they are potentially criminal offences, should more appropriately be undertaken by the Garda. The auditors, who are not employees, do not need to be convinced that a crime has been committed. Rather than becoming the investigators and reporting their concerns to the firm, which may or may not report the matter to the Garda, they should in the first instance report to the Garda. In any event, the matter would have to be reported to the Garda by the auditors. It is clearly a different way of proceeding, one which stipulates that a number of stages must be gone through. For example, an external auditor would have to approach the firm and indicate that they were unhappy because they believe a criminal offence has occurred.
It is, therefore, a case of either adding those stages to the process or, in the event of a serious criminal offence being committed, obliging the external auditor to approach the Garda directly in order to allow members of the force to investigate the matter. I hope that makes the position clear. I accept the Senator's concern about whether an accountant or employee of the firm would be obliged to take action, but that will not be the case. The external auditor will be obliged to approach the Garda.
I accept that the Minister of State is referring to cases where external auditors are brought in to audit the books of a firm. However, the section says that an offence "may have been committed", which is not a definitive statement. In my opinion there is a need to define the position more clearly. The section also includes the phrase "such an offence may have been committed in relation to its affairs by a partner of the firm", which means that the position is quite nebulous; it is not clear or specific. I accept that external auditors are brought in to audit the accounts of firms. However, there is a need to be more specific and definite if we are going to include this provision in statute law. What is being introduced in subsection (2) is quite draconian and because there is no definition it can be interpreted in a variety of ways. That is dangerous. I request the Minister of State to be more open to my proposal.
The section states that a relevant person is "a person who audits the accounts of a firm or . . . who otherwise with a view to reward assists or advises a firm in the preparation or delivery of any information, or of any declaration, return, account or other document, which the person knows will be, or is likely to be, used for the purpose of keeping or auditing the accounts of the firm". In one sense, the language is quite specific in terms of the persons to whom the section will apply. I ask the Minister of State to take the amendment on board.
It is good that we are having this debate because it might clarify matters for people who have expressed their concerns about this issue with Senator Taylor-Quinn and officials of my Department. I draw the Senator's attention to paragraph (d) of her amendment which states:
If, having regard solely to information obtained in the course of an audit of the financial statements an auditor has reasonable grounds to believe that a fraud in relation to the firm may have been committed . . .
The word "may" is used here and in the section as it stands because no one expects the auditor to do the work of the Garda Síochána or to be in a position to be sure that a crime has been committed. Use of the word "may" is important because it would be unfair of us to expect an auditor to carry out the entire investigation and to be certain that a crime has been committed. The word "may" allows protection for the auditor in this regard. It is merely a question of whether, if a crime may have been committed, one goes directly to the Garda or goes through the various stages outlined by the Senator. We submit that it would be better, from the point of view of everyone involved, if the auditor approached the Garda directly if he or she suspects that a criminal offence has been committed in order that the matter can be investigated by members of the force. Gardaí are experts in investigating crime and it would not be fair to ask an auditor to investigate a crime. The word "may" is used because auditors may not be certain that a crime has been committed and it is important that it be retained.
The Minister of State is making a valiant attempt to sway me but I am not convinced by her argument. In my opinion, section 59(2), which states that "a relevant person shall, notwithstanding any professional obligation of privilege or confidentiality, report that fact to a member of the Garda Síochána", is not acceptable.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cregan, John.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glynn, Camillus.
Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
Burke, Paddy.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Keogh, Helen.
McDonagh, Jarlath.O'Dowd, Fergus.O'Meara, Kathleen.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.
On those Schedules, is iontach an rud é go bhfuil siad ann agus cuirim fáilte rompu ach caithfidh mé ceist a chur ar an Aire Stáit. This involves a change, which is very welcome and which I support. This is the first time I have seen the texts of conventions sa dá theanga. They are usually produced in English only. I am very glad to see the Irish version included and I could not resist asking the reason for this very welcome change, however belated it may be.
The Senator wishes to question the change for the better.
It is now the practice to provide them in both languages.
We now come to Report Stage.
I object to our proceeding immediately to Report Stage but I understand we have taken a decision to that effect.
I agree with Senator Ryan. Proceeding to Report Stage now, given that the Bill is so extensive and that issues of serious concern have been raised, does not afford the Minister of State and her Department an appropriate opportunity to give due consideration to the significant amendments that were put forward for consideration on Report Stage.
Although it may not be clear from the Order Paper, I understand it was agreed by the Whips that Report Stage would be taken immediately following Committee Stage and that has been agreed by the House.
As spokesperson for my party, I was only aware of Committee Stage being taken today. I was not aware that Report and Final Stages were to be taken today.
The comments of Senator Ryan and Senator Taylor-Quinn are noted. I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.
Amendments Nos. 1, 2, and 3 are cognate and may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 13, line 8, to delete "dishonestly".
We had a long discussion on section 9 on Committee Stage, in which I attempted to persuade the Minister, Deputy O'Donoghue, who was here at that stage that the section was poorly worded. I have no objection to what is in the section but, as it reads now, a person who dishonestly operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence. My argument was that, at the very least, it made it an offence to dishonestly use a computer, or to dishonestly use a computer to make a gain for oneself or to cause loss to somebody else.
The simplest way to achieve the objective that the Bill sets out to achieve is to remove the word "dishonestly" from the first line and to rewrite the section to read as follows: "A person who, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of dishonestly making a gain for himself or herself or another, or of dishonestly causing loss to another, is guilty of an offence." That would get rid of the anomaly of turning something trivial, that is, dishonestly using somebody's computer, into a criminal offence but would leave the intent of ensuring that nobody uses a computer for dishonest purposes, which is an entirely different matter. As I said on Committee Stage, there are thousands of computers at my place of work which, I suspect, are technically used dishonestly, given the very clear definition of "dishonestly" in this Bill. It refers to a claim of right made in good faith. On many occasions, students may not have a claim of right to use a computer and, accordingly, they would use it dishonestly. However, that is not what the section is about and that is why I suggest the amendments.
I second Senator Ryan's amendment. I agree that, with his suggested change, section 9(1) makes a lot more common sense and it actually strengthens the intent of the section. It provides much greater clarity, is much more specific and fits in much easier with the interpretation of "dishonestly" in section 2 of the Bill. This should be taken on board.
I did not contribute to the earlier debate on this but the provision proposed by Senator Ryan would read:
A person who, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of dishonestly making a gain for himself or herself or another, or of dishonestly causing loss to another, is guilty of an offence.
It is specific and clear and should be accepted by the Minister.
We had an opportunity to discuss this issue when the Members were voting. It is not a trivial offence to dishonestly use somebody's computer if the use of that computer is to make a gain for oneself or cause a loss to another. If somebody goes into another person's office and uses their computer to make a gain or cause a loss, and millions of pounds can be moved very quickly, the offence is the dishonest use of the computer to make that gain.
We all have computers in our offices. The issue is not the use of the machine but to dishonestly use the machine for dishonest purposes. With regard to the point about making a gain honestly, if one honestly uses the machine to make a gain, that is fine but there is dishonest use of the machine to make a gain and it is the connection of the two that is relevant. One is not authorised to use the machine in one's office or anybody else's office dishonestly. The dishonest use of the machine to make a gain is an offence.
I take it the Minister is not accepting the amendment?
We are back where we started. The Minister is wrong. The issue is not making a gain or a loss, it is making a dishonest gain or a dishonest loss. One can play casinos on computers now. One can gamble via computers. Let us say I use a computer which I do not have the authority to use, spend £100 on my credit card with Paddy Power Bookmakers and I gain because I win and he loses. Under the section I have committed a criminal offence of considerable proportions because I have dishonestly used somebody's computer. However, the intent of the section is to deal with people who use computers to do dishonest things.
The issue is clear to me and Senator Taylor-Quinn. They are different concepts. A student in any of our third level institutions, where there are thousands of computers, can do something legitimate on a computer but of which the college disapproves. It might be buying pornography, of which I disapprove. That is not what the section is about but those students will be classified as committing the same type of offence as somebody who is involved in computer fraud.
We do not disagree with the principle of the section but it is poorly drafted. After the embarrassment the Houses of the Oireachtas suffered in the High Court, we ought to be extremely careful about the language we use and its structure because it matters later. I am disappointed that what I believe to be a constructive suggestion is not being accepted.
We are not lightly refusing to accept the amendment. We checked it with the Parliamentary Counsel. The Senators should also note that, on the previous page, sections 6 and 7 both begin with the phrase, "A person who dishonestly. . . ". The same phrase is used in section 9. Section 6 refers to making a gain or causing a loss while section 9 deals with the use of a computer to do that. Making a gain or causing a loss is actually covered in section 6.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cregan, John.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.
Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.
Burke, Paddy.Coghlan, Paul.Connor, John.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Keogh, Helen.
McDonagh, Jarlath.Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.
I move amendment No. 2:
In page 13, line 10, after "of" to insert "dishonestly".
I second the amendment.
I move amendment No. 3:
In page 13, line 11, after "of" where it firstly occurs, to insert "dishonestly".
I second the amendment.
Amendments Nos. 4 and 5 are related and may be taken together with the agreement of the House. Is that agreed? Agreed.
I move amendment No. 4:
In page 18, line 15, after "stealing" where it secondly occurs, to insert "would have".
I do not wish to rehearse too much of what we discussed on section 20, least of all to provoke the wrath of my seconder, but we came upon an issue which deserves to be addressed. Section 20 states: "The provisions of this Part relating to property which has been stolen apply . . . (b) to stealing outside the State if the stealing constituted an offence where and at the time when the property was stolen,”. My concern was, and still is, that definitions of ownership of property are far from universal or consistent. The issue I raised, which provoked considerable agitation, was that in some societies, not just in societies in the middle of civil war, women are regarded as the property of their husbands and, therefore, it would be conceivable that somebody who perhaps married or developed a relationship with somebody who was married in one of these societies and came home here could be, and would have to be, prosecuted under Irish law for theft. That was the more extreme example and I do not want to go back to that issue.
The Senator should not or he might lose his seconder.
He has reinforcement in Senator Quinn.
In terms of debate, it is always useful to use good examples to illustrate the point and that is what I am doing.
The second example is much more serious. In many societies women in general, least of all married women, have no rights to own property. Anything in their possession is the property of the husband. Therefore, if they arrived here with only their own clothes and whatever money they had, they would, technically, be guilty of the offence of theft under this section as it stands because what they did would be an offence where and at the time when the property was stolen. In the country from which they came, it would have been an offence and in this country, therefore, it would be an offence according to this Bill. That is wrong. We should apply our standards to what constitutes illegal and legal behaviour.
Amendments Nos. 4 and 5 suggest that the section should be rewritten slightly to achieve exactly what the Minister of State said we wanted to achieve, that is, to change the position where somebody could commit an offence in one jurisdiction, come here and not be prosecuted for that offence. That would be wrong. People could steal property in one jurisdiction, sell it, bring the proceeds here and not be prosecuted for theft.
My suggested amendment No. 4 is that section 20(1)(b) would read as follows: “to stealing outside the State if the stealing would have constituted an offence in the State at the time when the property was stolen”. In other words, anybody who committed an offence of stealing in any other jurisdiction which would have been an offence in this State would be guilty of an offence and would be capable of being pursued by the law as distinct from the present situation where anybody who commits an offence of theft as defined in Zimbabwe, Libya and Saudi Arabia, for instance, could be prosecuted here. These are countries and this applies to all of them. My amended version would mean that they would only be capable of being prosecuted if what they did was an offence in this State.
Senator Taylor-Quinn, are you seconding the amendment?
Just about to, or just about.
There is nothing in Standing Orders about that.
Does that mean Senator Taylor-Quinn is seconding it?
I second the amendment. If the amendment was accepted, section 20(1)(b) would read: “to stealing outside the State if the stealing would have constituted an offence in the State at the time the property was stolen.” To me, that would make eminent common sense. In relation to the other details in promoting the case, I do not think the Senator gave me any convincing arguments in that respect. The amendment is, however, prudent.
If it is not an offence under our law, we will not prosecute and I will endeavour to explain that. I draw Senators' attention to the fact that under the Married Women's Status Act, a woman in our country is entitled to own her own property so that makes the position clearly different from that of a woman in another country who is not entitled to own her own property. The other point I want to make in regard to the woman owning her own property is that where she steals property that is deemed to be her own – in other words, her own clothes – in this country, she will be deemed to have owned that property. If she steals property deemed to be that of her husband – for example, money from his bank account or whatever – we may prosecute her but we would not prosecute if she stole and brought property to this country which was deemed to be her own. It must be an offence in this country as in the other country.
We are both trying to achieve the same thing here in terms of the wording. We are both saying "in the State" and it has been asked where does it say that is clearly an offence in that state and in this State. That is the issue here.
I will go through the wording Senator Taylor-Quinn read out and will take first the words proposed to be removed. There is a difficulty with removing the words "where and". The subsection reads "to stealing outside the State if the stealing constitutes an offence where". The word "where" refers to the other state. If one removes the word "where", one is taking out the offence in the other state. That is one concern we have. The second concern is that there is no requirement to add the words "in the State" because this Bill is the cross-reference to it happening in this State. The Bill deals with the fact that it is an offence in this State. This section proposes to bring in the offence in this State at the same time. If we were to accept the amendment, it would do the opposite by taking out the word "where" pertaining to the other state and duplicate "in this state". The English sounds great, but the legal English covers what we are trying to cover, which is that it has to be an offence in this State and the other state.
Several Senators are indicating they would like to speak, but unfortunately, on Report Stage, only the proposer of the amendment can reply after the Minister has spoken. Does Senator Ryan want to say anything?
I do indeed. I am intrigued by the idea that the Minister of State, Deputy Mary Wallace, could say to me that a section says "the provisions of this Part relating to property which has been stolen apply . . . to stealing outside the State", that that will continue, and then tell me that it does not apply to stealing outside the State if we take out the word "where".
It has to constitute an offence in the other state. It is not just the stealing that is relevant.
This is precisely the point we are making. Stealing is defined in this legislation. To leave the definition of what constitutes stealing to the other jurisdiction is to leave us open to peculiar anomalies. I say this at the risk of provoking Senator Taylor-Quinn's wrath.
It has to be the same offence here.
Where does it say that?
The overall Bill covers the offences. The offences in the general Bill are cross-referenced with the offences where they occurred.
This is not Committee Stage.
I have considerable experience in dealing with legislation and that is the most peculiar interpretation I have seen in legislation in my time in this House. What we are discussing deals specifically with extra-territorial offences, not offences within the State. This Bill applies to the State, in which case it should not deal with extra-territorial offences. One cannot have it both ways. If it deals with extra-territorial offences, it is based on what is an offence either here or in the other jurisdiction. Section 20(1)(b) states: “if the stealing constituted an offence where and at the time when the property was stolen”. That means that it does not constitute an offence here but where the property was stolen.
It has to be an offence here as well.
That could include precisely the anomalies of which I am talking, which would involve definitions of theft that differ fundamentally from ours. That is what my amendment is about. I do not accept that my amendment would render it ineffective.
Burke, Paddy.Coghlan, Paul.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Keogh, Helen.
McDonagh, Jarlath.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.
Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.
Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
I propose an amendment to the Order of Business, that the House continue sitting until 4.15 p.m.
Is that agreed? Agreed. Amendment No. 5 was discussed with amendment No. 4.
I move amendment No. 5:
In page 18, line 16, to delete "where and" and substitute "in the State".