I welcome the Minister of State and wish her well in her office. Amendment No. 2 is related to amendment No. 1. Is it agreed that they should be discussed together? Agreed.
Biological Weapons Bill 2010: Committee and Remaining Stages
SECTION 1
Government amendment No. 1:
In page 3, line 23, to delete "Foreign Affairs" and substitute "Foreign Affairs and Trade".
This is a technical amendment. The titles and functions of several Ministers and their Departments have been changed recently by statutory instrument. These amendments are designed to adjust the provisions of the Bill to reflect the new official titles of the two Ministers concerned, the Minister for Foreign Affairs and Trade and the Minister for Justice and Equality. I hope Senators will agree to the amendments.
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 and 3 agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."
I wish to deal with a point raised on Second Stage regarding the class A fine of €5,000 and the maximum term of imprisonment of 12 months. I listened carefully to the Minister's remarks about somebody being peripherally involved in this context. However, I am concerned about the consequences. The Bill has been introduced to prevent the use of chemicals of mass destruction and biological contaminants. Obviously, if they are used and somebody is charged under the legislation, it is intended that he or she has used them for hostile purposes. My understanding of the Bill is that it is only in such circumstances that a case can be mounted. Given the seriousness of the matter, where innocent people's lives would be put at risk, anybody even peripherally involved would be held culpable for a very serious offence. A fine of that small size or a term of imprisonment of up to 12 months does not appear to be commensurate with the offence or any contemplation I can devise of involvement that could be deemed to be peripheral. I cannot recall whether it was Senator Ivana Bacik or the Minister who offered the example of somebody who might be living with a person who was manufacturing or transporting or in some way culpable under this legislation and he or she might not know about it. Where a person did not know about it, he or she should not be successfully prosecuted. However, if he or she did know and did not do his or her duty by informing the authorities, it should not be treated as a minor offence. I cannot envisage what might constitute an offence under this legislation that would be minor.
We must be unequivocal in our statements on how we will police the intention of the State to protect its citizens. Only recently a number of Members met Justice for the Forgotten which represents the victims of the Dublin and Monaghan bombings. It was the finding of an all-party Oireachtas group in the last Oireachtas that the State had failed the people concerned over the course of many Administrations. There are many such instances, not just here but also in other jurisdictions. I am strongly of the opinion that if somebody is culpable and can be successfully prosecuted under this legislation, I cannot envisage any circumstances in which the offence could be minor. It would be a most serious offence and should, therefore, be subject to the most serious penalties as a consequence.
I understand the Senator's concern. Under this section, it is only on summary conviction that the class A fine or imprisonment for a term not exceeding 12 months would be imposed, whereas there is a more serious penalty for conviction on indictment. Almost certainly, if somebody was directly and knowingly involved in these crimes, it would be an indictable offence. The intention of paragraph (a) relates to where somebody might unwittingly have been brought into this somehow or other by somebody with whom they were associated, to ensure there is a possibility of leniency where there was a genuine lack of knowledge of what was happening on that person’s part. There is also the more serious penalty. Senator Ivana Bacik who is a legal expert in many ways——
I would not go that far.
——pointed out yesterday that it was most likely to be an indictable offence if somebody was convicted under this legislation.
As with much other legislation, there is provision for a lesser, non-indictable offence. That is the thinking behind the two levels of conviction. Certainly, it is not the intention to be in any way lenient with a person who is found to be knowingly culpable under the legislation.
I appreciate the point made by the Minister of State that this provision would be normal for ordinary, run-of-the-mill offences. As I have no legal qualifications, I am approaching this provision as a layman and concerned citizen. First, I cannot understand why somebody would not be convicted on indictment if he or she had any involvement in this activity. If somebody is convicted, even summarily, it means he or she presumably had some knowledge or participated in some way. The legislation should be sufficiently strong in order that it will send a clear signal to the effect that if one is remotely knowledgeable of something like this happening, one does have responsibilities and that there can be no peripheral connection with it which simply leads to a small fine or a short term of imprisonment. Perhaps there are such circumstances, but I cannot visualise how somebody would be convicted while at the same time not having had an involvement, given that if he or she had faced up to his or her citizenship responsibility, it would have avoided what might have been a very serious loss of life. I will not press it any further but I am trying to extract from the Minister of State and the Department the circumstances in which summary convictions may be applicable. The Leas-Chathaoirleach is a legal expert and may be able to enlighten me on it. Perhaps it is my ignorance of the law but I am concerned and that is why I am pressing the point.
The reason for the first alternative is to give discretion. For example, if someone worked in a laboratory and had some connection with some material that was subsequently transported or used under the Act, the judge would be able to impose a lesser sentence or fine even if the person was in some way connected. This provision gives the judge discretion. Section 8 contains a presumption relating to conduct referred to in section 2(2):
In proceedings for an offence under this Act, where a person has stockpiled, acquired, possessed or retained or transferred to another person, or attempted to stockpile, acquire, possess or retain or transfer to another person, a microbial or other biological agent, or toxin (whatever its origin or method of production), of such a type and in such a quantity that it is reasonable to conclude that it has been developed or produced or is intended to be used for a hostile purpose—
(a) the agent or toxin is presumed to have been so developed or produced or to have been so intended, and
(b) the person is presumed to have known or been reckless as to whether or not it has been so developed or produced or was so intended
There is a doubt as to whether the person would have known and this gives the judge the discretion to be more lenient where there is a doubt whether the person knew.
There is a lower threshold.
Perhaps that explains it better. When it is related to section 8, one gets a better understanding of the intention.
Question put and agreed to.
SECTION 5
Government amendment No. 2:
In page 5, subsection (1)(b), line 11, to delete “and Law Reform” and substitute “and Equality”.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6
Question proposed: "That section 6 stand part of the Bill."
If my reading of the section is correct, if a person has previously been acquitted of the offence, the person cannot be charged again.
In another jurisdiction.
That applies the double jeopardy principle. More recent criminal justice legislation has removed the double jeopardy principle. People can be charged a second time when previously acquitted of an offence. Why do we embrace the principle of double jeopardy in this legislation? This is a very serious offence and it does not seem to be consistent if we are prepared to set aside the principle for other criminal acts.
There are principles that apply with regard to double jeopardy. I am not sure of the legislation to which Senator Walsh refers but it may apply to specific circumstances. My understanding is that double jeopardy applies generally in international law. Does the Senator have information on the specific legislation to which he refers?
The legislation concerned gangland crime.
It was debated within this House in the past two years or 18 months. It received a good airing in the House because the principle existed as long as the State. It was introduced to ensure that people who were acquitted could be charged again when new information or data came to light through investigation. There appears to be a contradiction. I do not want to diminish the seriousness of criminal activity but very few crimes are more serious than offences under this Bill. If someone has been acquitted elsewhere and the State has information sufficient to mount a prosecution case, the double jeopardy principle should not prevent it from happening unless there is a very good argument for it. It appears to be inconsistent and I hope that is not the case of one side of the Department failing to be consistent with other areas of the Department.
My officials advise me that the Attorney General's advice was sought and the advice was that this clause should be included in the legislation. We can provide Senator Walsh with some engagement on the specific reasons.
Eminent as the Attorney General is, this is not something to which I subscribe. It seems the double jeopardy rule should not apply in this case. If provisions have been made for less serious offences, there should be no prohibition on prosecution for serious crimes such as this. We should get the persuasive advice of the Attorney General. It shows a lack of consistency and dilutes the seriousness of an offence under the Biological Weapons Bill.
The double jeopardy rule generally applies and the gangland crime legislation was an exception. There are specific reasons gangland crime is an exception. I understand the concern of Senator Walsh. The advice of the Attorney General is generally not published but there may be a way of conveying to the Senator the reasons behind the advice. I do not have the advice in the Chamber.
I respect that. I do not want to prolong this debate. Offences under this legislation could be carried out by an independent group without connections but are more likely to be carried out by those acting in concert with other terrorist gangs. There is quite a parallel between gangland legislation and the reasons for setting aside the double jeopardy rule. I cannot get my head around how we can find ourselves allowing double jeopardy to play a part where we are pursuing a case that would not be pursued unless there was sufficient evidence to mount a prosecution. I ask the Minister of State to test the advice of the Attorney General in case it is a standard lawyer embrace of principles that may need to be tested by the legislator.
Senator Walsh makes his case very well. As we do not have a drafted amendment to the Bill, there is nothing we can do specifically on this point but I will find out the reasons and communicate directly with the Senator.
Question put and agreed to.
Sections 7 to 15, inclusive, agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Minister of State for taking the Bill and for the manner in which she dealt with it. It is short but important legislation. I also thank the Minister of State for the way in which she dealt with some of the observations we had. It is an agreed Bill as it was originally introduced by Deputy Micheál Martin when he was the Minister for Foreign Affairs. There is no contention surrounding the Bill but I wish the Minister of State well and look forward to seeing her many times in the House to deal with foreign affairs legislation.
I join Senator Walsh in thanking the Minister of State and her officials for dealing with this important Bill. There is a proud tradition in this country of passing legislation like this.
I thank the Senators for their contributions. As always, this House has a very good reputation for engaging very productively in legislation. This is an example of Ireland subscribing to international obligations and showing leadership in the area.
Question put and agreed to.
When is it proposed to sit again?
At 2.30 p.m. next Tuesday.