Amendments Nos. 39 and 40 are related and may be discussed together by agreement.
SECTION 10.
I move amendment No. 39:
In page 12, subsection (2), to delete lines 8 to 11 and substitute the following:
"and upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £2,500, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and imprisonment.".
On Second Stage, my colleague, Deputy Clohessy, drew attention to the fines and imprisonment terms. The court should be empowered to impose the maximum fine in these circumstances. It would not be unreasonable to have a fine not exceeding £2,500 rather than, as suggested, £1,500. At that stage of the proceedings we should opt for the maximum penalty. This is a serious matter and a message should go out as to how seriously it is viewed. I accept this is a relatively minor amendment but it gives a strong message and I do not see why it should not be considered favourably by the Minister.
I support Deputy Keogh. This matter was raised by almost every speaker on Second Stage. If we are treating these offences as seriously as we say we are, the proposal would not be out of line.
I accept that many Deputies who contributed on Second Stage referred to the fines and penalties to be imposed for breaches of this legislation. There may have been a misunderstanding as to what this Bill will do. We must draw a distinction between summary cases, to which the maximum fine of £1,500 applies, and cases on indictment where the fine to be imposed is unlimited and the period of imprisonment is up to five years. The reality is that the vast majority of cases which will be taken under this legislation will be taken on indictment. Section 9 (3) states:
Where it appears to a court imposing a fine that any person has incurred or will incur expense in removing any vessel, aircraft, off-shore installation, substance or material which has been dumped or unlawfully disposed of or in making good any damage attributable to the offence, the court may order the whole or part of the fine to be paid to that person for or towards defraying the expense.
In the legislation we are providing that the fine which will be imposed on indictment will relate to the cost of removing the material that has been dumped and of undoing the damage that has been done as a result of the dumping. In other words, the fines on indictment will make the polluter pay the cost of undoing the damage that has been done as a result of the dumping.
A fine on indictment under this legislation could run to millions of pounds. We considered including a limit on the fine which could be imposed on indictment. We could have included £1 million, £5 million, whatever, and it would have looked very impressive in the text of the Bill. However, you could have a very serious case of pollution caused by dumping where the appropriate fine might have to be considerably in excess of that. One can think of the appalling cases that have occurred in various parts of the world, and indeed some which have occurred off our own shore. There has been considerable pollution caused by dumping materials from vessels. It is important that the legislation would leave open to the courts the right to impose a fine on whoever caused that pollution which reflects the cost of undoing the damage, and that is what is provided for in the indictable offences. I expect that most of the cases will be taken on indictment.
I cannot accept the amendment to increase the amount of £1,500 for summary cases, the Attorney General's Office advises that that is the maximum which is allowable for summary cases. As Members know, the distinction between summary and indictable cases arises from the Constitution. Cases of a minor nature can be taken in the District Court. There was a case in 1937 which established the upper limit to a fine that could be imposed by the District Court; it was £100 at the time and this has been updated over the years. It now stands at £1,500 and we do not have discretion to extend that. A number of Deputies referred to this on Second Stage and were concerned that there was an appearance that the fines to be imposed were very slight. The fines imposed by this Bill are substantial, unlimited, and will relate to the cost of undoing the damage caused by the pollution as a result of any case of dumping.
That is a fair explanation. Do you accept that?
I do. We are all on the same side in this. We were trying to establish the maximum fine that the court was empowered to exact and I accept what the Minister has said in relation to summary conviction.
Amendment, by leave, withdrawn.
Amendment No. 40 not moved.
I move amendment No. 41:
In page 12, between lines 22 and 23, to insert the following subsections:
"(5) Where a judge of the District Court proposes to make an order for the release on bail of a defendant before him charged with an offence under this Act who is ordinarily resident outside the State, he shall (unless he is satisfied that all documents including an indictment required by law to be served on the defendant in connection with or for the purpose of the charge or of any proceedings arising out of or connected with the charge can be duly served on the defendant in the State) direct that those documents may, in lieu of being served on the defendant, be served on a person who is ordinarily resident in the State.
(6) Where a judge of the District Court who has given a direction under this section or another judge of the District Court acting in his place is satisfied that, owing to the death or absence from the State of a person specified in the direction or for any other reason, a document referred to in subsection (5) cannot be served on that person, the judge shall direct that the document may be served on another person who is ordinarily resident in the State.
(7) Service of a document referred to in this section on a person specified in a direction under this section shall be deemed for all purposes to be served on the defendant concerned.".
This amendment provides a safeguard against the disappearance of a defendant who has been released on bail and who normally resides outside the State. The provisions in this amendment are normally included in legislation which involve foreign parties, for example, the Sea Pollution Act, 1971. The Attorney General's Office has advised that this amendment be incorporated in the Bill.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 and 12 agreed to.