Amendments Nos. 1, 2 and 16 are related. Amendment No. 16 is consequential on amendment No. 2. The amendments may be discussed together.
Criminal Justice (Miscellaneous Provisions) Bill 2022: Committee Stage
SECTION 1
I move amendment No. 1:
In page 5, between lines 18 and 19, to insert the following:
“(2) Part 3 and the Firearms Acts 1925 to 2009 may be cited as the Firearms Acts 1925 to 2022 and shall be construed together as one.”.
I want to acknowledge that this session was not intended for today and I appreciate the accommodation of this Bill. More generally, as the Chairman said, there is a heavy legislative workload coming through and it is great to be able to get through it as quickly as we can. I thank the committee for that and acknowledge it.
The first set of amendments I have tabled are related to various aspects of explosives and firearms legislation. Amendment No. 1 is a standard provision on the legal citation of the Firearms Act 1925, which is referred to as the principal Act. Amendment No. 16 simply updates the Long Title of the Bill to ensure it references the appropriate sections of the principal Act.
The substantive amendments are contained in amendment No. 2, which replaces the existing Part 3 of the Bill as published. This contains the proposed new sections 7 to 18, inclusive, of the Bill. The proposed new section 7 is simply a naming provision for the principal Act.
The proposed new section 8 provides for an exemption for the keeping by retailers of a small quantity, that is, up to 5 kg, of certain low hazard explosives in certain circumstances. This relates to the retail sale of certain low hazard firework, pyrotechnic and blank cartridge products. These are the only such products that can be sold to the public and include Christmas crackers, party poppers, hand-held party sparklers and cartridges for power tools, such as nail guns. The current practice is for distributors to import large consignments of these products at one time and to store them in a premises rather than with a local authority. The proposed change has been recommended by the Government inspector of explosives. For context, under current law, persons are allowed to keep up to 13.5 kg of these products for their own personal use. The provision requires the secure storage of these products in a manner that complies with health and safety.
The proposed new section 9 ensures that staff members of Forensic Science Ireland and civilian staff of the Garda Síochána are not committing a firearm offence when handling firearms and ammunition in the course of their duties, such as the secure storage of items for crime scenes.
The proposed new section 10 provides for a cap on the licensing of semi-automatic centrefire rifles. Deputies may be aware that a semi-automatic centrefire rifle is a rifle that does not need to be manually reloaded between shots and can use centrefire ammunition. There are two main types of ammunition, centrefire and rimfire. Centrefire is a more powerful type of ammunition that can travel further. What I am proposing in this section, on public safety grounds, is in line with a previous announcement by the then Minister on 18 September 2015. I would share the concerns of the Garda Síochána in regard to public safety. I also acknowledge the dedication and responsibility of the owners of legally held firearms in the State. I refer to this measure as a cap as opposed to an absolute ban, given it will allow persons who previously held a firearm certificate for these types of rifles before 18 September 2015 to continue to renew their certificates. I think this is an appropriate and balanced measure, given it is forward looking and not retrospective to the period before the then Minister's announcement of 2015.
The proposed new sections 11 to 14, inclusive, follow legal advice on the issue of dynamic shooting, which refers to any form of activity in which firearms are used to simulate combat. There is currently a prohibition on dynamic shooting in the principal Act and I am advised that this extends to the Garda Síochána, which would not be appropriate. Section 14 clarifies that the prohibition on dynamic shooting does not apply to a garda in the course of his or her duties. Sections 12, 13 and 14 ensure that the safety rules for authorisation of shooting ranges used by civilians will be separate from the rules for shooting ranges that are owned or operated by the Garda Síochána, which again may include dynamic shooting.
The proposed sections 15, 16 and 18 relate to legal requirements arising from the UN firearms protocol, which requires criminal offences for persons falsifying or illicitly obliterating the marking on firearms.
Section 15 provides for a clear offence in that regard.
Section 18 has been developed to comply with the protocol requirement that states take steps to prevent illicit firearms from falling into the wrong hands.
Section 16 provides for a consequential amendment and requires that where a court makes an order in respect of a person who has committed a firearms offence, such an order may have regard to regulations made by the Minister under section 18.
Finally, section 17 deals with the search powers of An Garda Síochána. The amendments are proposed in order to bring the law into alignment with the 2011 Supreme Court judgment in Damache v. DPP in respect of search warrants. The proposed amendment requires that, in the first instance, a search order is to be sought from the District Court, which may be valid for one week. The Garda may alternatively apply on urgency grounds to a Garda superintendent for a search warrant. The superintendent in question, however, must be independent of the investigation concerned, and the warrant is valid for only 48 hours.
I think that those are the longest speaking notes I have on the amendments.
I hope we will get it all out there at the start and can refine as we go on.
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 6, inclusive, agreed to.
NEW SECTION
I move amendment No. 2:
In page 8, to delete lines 4 to 19, and substitute the following:
“PART 3
AMENDMENT OF EXPLOSIVES ACT 1875 AND FIREARMS ACT 1925
Definition ( Part 3 )
7. In this Part, “Act of 1925” means the Firearms Act 1925.
Amendment of section 5 of Explosives Act 1875
8. Section 5 of the Explosives Act 1875 is amended—
(a) in the second subsection (2.), by the substitution of “conveyance of gunpowder; or” for “conveyance of gunpowder.”, and
(b) by the insertion of the following subsection after the second subsection (2.) referred to in paragraph (a):
“(3.) To the keeping of gunpowder by a person for the purpose of lawfully selling it directly to the public—
(a) where the total amount of gunpowder on the premises does not exceed 5kg,
(b) where the gunpowder is, or is part of—
(i) a Category F1 firework, namely a firework that presents a very low hazard and negligible noise level and that is intended for use in confined areas and includes fireworks that are intended for use inside domestic buildings,
(ii) a Category P1 pyrotechnic article, namely a pyrotechnic article, other than fireworks and theatrical pyrotechnic articles, that presents a low hazard, or
(iii) an article classified as UN No. 0014, namely blank cartridges for weapons, blank cartridges for small arms or blank cartridges for tools, to which the United Nations Serial Number UN No. 0014 was assigned in the manual published by the United Nations and entitled ‘Twenty-second revised edition of the Recommendations by the United Nations Committee of Experts on the Transport of Dangerous Goods’ or in any later revised edition of those Recommendations for the time being in force,
and
(c) where the gunpowder referred to in paragraph (b) is kept—
(i) in an area designated by the person—
(I) to which unauthorised access is prevented, and
(II) that is located well away from sources of ignition, sparks and flammable materials,
and
(ii) in a manner that does not compromise emergency escape routes.”.
Amendment of section 2 of Act of 1925
9. Section 2(3) of the Act of 1925 is amended—
(a) in paragraph (b), by the substitution of “or by a member of the civilian staff of the Garda Síochána, in the performance of” for “in the performance of”, and
(b) by the insertion of the following paragraph after paragraph (b):
“(ba) the possession, use, or carriage of a firearm or ammunition by an officer of the Minister assigned to perform functions in Forensic Science Ireland, in the course of the performance by him or her of such functions;”.
Insertion of section 3DA into Act of 1925
10. The Act of 1925 is amended by the insertion of the following section after section 3D:
“Restrictions on firearm certificates for semi-automatic centre-fire rifles
3DA. (1) On and after the date of the coming into operation of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 2022 (in this section referred to as the ‘relevant date’), a firearm certificate shall not be granted under this Act, or under section 2 of the Act of 2000 in respect of an application under paragraph (a) or (aa) of subsection 2 of that section, for a semi-automatic centre-fire rifle.
(2) On the day that is 3 months after the relevant date, any firearm certificate for a semi-automatic centre-fire rifle that was first granted after 18 September 2015 and that was in force immediately before the relevant date shall stand revoked.
(3) This section shall not affect the possibility of renewal of a firearm certificate for a semi-automatic centre-fire rifle under section 3 of this Act, or under section 9 of the Act of 1964, where the firearm certificate was first granted on or before 18 September 2015 and was in force on the relevant date.
(4) On or after the relevant date, the Minister or the Commissioner shall not, under section 11(1) of the Act of 1964, substitute for the description of a firearm in a firearm certificate granted by him or her the description of a semi-automatic centre-fire rifle.
(5) Sections 5(3) and 6 shall, on and after the day referred to in subsection (2) of this section, apply in relation to a semi-automatic centre-fire rifle in relation to which the relevant firearm certificate has been revoked pursuant to this section.
(6) In this section—
‘Act of 1964’ means the Firearms Act 1964;
‘Act of 2000’ means the Firearms (Firearm Certificates For Non-Residents) Act 2000;
‘first granted’ means, in relation to a particular semi-automatic centre-fire rifle—
(a) the grant (not renewal) of a firearm certificate for the semiautomatic centre-fire rifle under section 3 of this Act, or under section 2 of the Act of 2000 in respect of an application under paragraph (a) or (aa) of subsection (2) of that section, or
(b) the substitution by the Minister or the Commissioner, under section 11(1) of the Act of 1964, for the description of a firearm in a firearm certificate granted by him or her the description of the semi-automatic centre-fire rifle,
whichever is the earlier;
‘semi-automatic centre-fire rifle’ means a rifled long firearm that—
(a) uses a cartridge with a centrally located primer in the base,
(b) can self-load a round after each time a round is discharged, and
(c) cannot fire more than one round with a single pull on the trigger.”.
Amendment of section 4A of Act of 1925
11. Section 4A of the Act of 1925 is amended by the insertion of the following subsection after subsection (20):
“(20A) This section shall not apply to a shooting range owned or operated by the Garda Síochána.”.
Insertion of new section 4AA into Act of 1925
12. The Act of 1925 is amended by the insertion of the following section after section 4A:
“Minimum standards for Garda shooting ranges
4AA. (1) The Minister, after consultation with the Commissioner, may prescribe minimum standards to be complied with by a shooting range owned or operated by the Garda Síochána.
(2) The minimum standards referred to in subsection (1) shall be determined by reference to any or all of the following matters:
(i) the security of the range;
(ii) the management of the range;
(iii) the design, construction and maintenance of the range;
(iv) the types of firearms and ammunition to be used at the range;
(v) the types of shooting practices to be conducted at the range;
(vi) the level of competence of persons using the range.”.
Amendment of section 4B of Act of 1925
13. Section 4B(2)(b) of the Act of 1925 is amended by the substitution of “section 4A(13) or section 4AA(1)” for “section 4A(13)”.
Amendment of section 4C of Act of 1925
14. Section 4C of the Act of 1925 is amended by the insertion of the following subsection after subsection (2):
“(2A) Subsection (1) shall not apply to the facilitation or engagement in the use of a firearm by a member of the Garda Síochána in the performance of his or her duties as such member.”.
Insertion of new section 14A into Act of 1925
15. The Act of 1925 is amended by the insertion of the following section after section 14:
“Offences regarding alteration of marking of firearms
14A. (1) A person who, unless—
(a) permitted by the Firearms Acts 1925 to 2022, or
(b) otherwise in accordance with law,
intentionally falsifies, removes, or otherwise obliterates or alters the marking of a firearm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) if the firearm referred to in subsection (1) is a restricted firearm—
(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or
(ii) on conviction on indictment, to a fine not exceeding €20,000 or to imprisonment for a term not exceeding 7 years or to both,
or
(b) in any other case—
(i) on summary conviction, to a class C fine or to imprisonment for a term not exceeding 12 months or to both, or
(ii) on conviction on indictment, to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 5 years or to both.
(3) In this section—
‘Act of 1968’ means the Firearms (Proofing) Act 1968;
‘marking of a firearm’ means—
(a) a mark to which section 4(1)(a) of the Act of 1968 refers,
(b) a mark to which section 4(1)(b) of the Act of 1968 refers,
(c) a mark to which section 3(12) refers,
(d) a mark provided for by regulations made in accordance with section 26A(c),
(e) a mark to which Article 5 of Commission Implementing Regulation (EU) 2015/2403 of 15 December 2015 establishing common guidelines on deactivation standards and techniques for ensuring that deactivated firearms are rendered irreversibly inoperable, as amended by Article 1(3) of Commission Implementing Regulation (EU) 2018/337 of 5 March 2018 amending Implementing Regulation (EU) 2015/2403 establishing common guidelines on deactivation standards and techniques for ensuring that deactivated firearms are rendered irreversibly inoperable, refers,
(f) a mark to which Regulation 5 of the Principal Regulations refers,
(g) a mark to which Regulation 6 of the Principal Regulations refers, or
(h) a mark to which Regulation 7 of the Principal Regulations refers;
‘Principal Regulations’ means the European Union (Acquisition and Possession of Weapons and Ammunition) Regulations 2022 (S.I. No. 209 of 2022).”.
Amendment of section 23 of Act of 1925
16. Section 23(1) of the Act of 1925 is amended by the substitution of “may, in accordance where applicable with regulations made under section 26A, make” for “may make”.
Amendment of section 24 of Act of 1925
17. Section 24 of the Act of 1925 is amended—
(a) by the substitution of the following subsections for subsection (1):
“(1) If a judge of the District Court is satisfied by information on oath of a member of the Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under this Act is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.
(1A) Subject to subsections (1B) and (1C), if a member of the Garda Síochána not below the rank of superintendent is satisfied that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under this Act is to be found in any place, the member may issue to a member of the Garda Síochána not below the rank of sergeant a warrant for the search of that place and any persons found at that place.
(1B) A member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under this section unless he or she is satisfied—
(a) that the search warrant is necessary for the proper investigation of an offence under this Act, and
(b) that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this section for the issue of the warrant.
(1C) A member of the Garda Síochána not below the rank of superintendent may issue a search warrant under this section only if he or she is independent of the investigation of the offence in relation to which the search warrant is being sought.”,
(b) in subsection (2)—
(i) by the substitution of the words “search warrant” for “search order”, wherever they occur, and
(ii) by the substitution of “within, if the warrant is issued by a judge of the District Court, one week, and if the warrant is issued by a member of the Garda Síochána not below the rank of superintendent, 48 hours,” for “within 48 hours”,
(c) in subsection (3)—
(i) by the substitution of “search warrant” for “search order”, and
(ii) by the substitution of “search warrant” for “order”,
and
(d) by the insertion of the following subsections after subsection (3):
“(4) The power to issue a search warrant under this section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person.
(5) A member of the Garda Síochána not below the rank of superintendent who issues a search warrant under this section shall, either at the time the warrant is issued or as soon as reasonably practicable thereafter, record in writing the grounds on which the warrant was issued, including how he or she was satisfied as to the matters referred to in subsection (1B).
(6) In this section—
‘independent of’, in relation to the investigation of an offence, means not being in charge of, or involved in, that investigation;
‘place’ includes—
(a) a dwelling or a part thereof,
(b) a building or a part thereof,
(c) a vehicle, whether mechanically propelled or not,
(d) a vessel, whether sea-going or not,
(e) an aircraft, whether capable of operation or not, and
(f) a hovercraft.”.
Insertion of new section 26A into Act of 1925
18. The Act of 1925 is amended by the insertion of the following section after section 26:
“Regulations regarding disposal of certain firearms
26A. Without prejudice to the operation of any other section of this Act, the Minister may, following consultation with the Commissioner, make regulations—
(a) to provide for the methods of destruction of such illicitly manufactured or trafficked firearms, parts, components and ammunition as he or she may prescribe,
(b) to provide for the methods of assignment for forensic, scientific, historical, or cultural purposes, of such illicitly manufactured or trafficked firearms, parts, components and ammunition as he or she may prescribe, and
(c) to provide for the marking of the firearms to which paragraph (b) relates and the recording of the methods of assignment of the firearms, parts, components and ammunition prescribed under that paragraph.”.”.
Amendment agreed to.
Sections 7 to 9, inclusive, deleted.
SECTION 10
Amendments Nos. 3, 4, 6 and 17 are related and may be discussed together. Amendment No. 17 is consequential on amendment No. 3.
I move amendment No. 3:
In page 8, to delete line 21 and substitute “Amendment of Non-Fatal Offences against the Person Act 1997”.
The substantive amendments are amendments Nos. 4 and 6, so I will deal with the others briefly.
Amendment No. 3 renames Part 4 to reflect its wider scope, while amendment No. 17 relates to a consequential change to the Long Title.
Amendment No. 4 increases the maximum penalty for the offence of assault causing harm from five years' to ten years' imprisonment. I spoke about this issue in detail on Second Stage. I am introducing this measure to ensure we have an appropriate range of sentences available for this offence.
As it stands, an assault that causes harm usually carries a maximum sentence of only five years. While a life sentence can be imposed for an assault causing serious harm, that covers only a very limited subset of the worst assaults. Most assaults can be prosecuted only at the lower levels, especially where the victim has fully or mostly recovered. Those assaults may involve stabbing, broken bones, multiple perpetrators, deliberate infliction of severe pain, attacks against vulnerable persons or attacks causing long-term mental detriment. Even where a judge considers the offence as among the most serious, he or she is limited in his or her sentencing to five years and may have to reduce that further to reflect mitigating factors such as a guilty plea. The Office of the Director of Public Prosecutions and others have raised concerns that the five-year maximum penalty is too low, given the gravity of the harm caused, and it is apparent that the maximum sentence has been used repeatedly by the courts as a starting point for calculating a sentence before mitigating factors are taken into account. This is unusual compared with other offences, where the maximum sentence is usually reserved for the most exceptional cases. For more serious offences falling under section 3, the five-year maximum penalty is lower than would apply in other jurisdictions and lower than comparable Irish theft and criminal damages offences. Both these carry maximum penalties of ten years.
The purpose of this change is not to increase every single sentence. Under section 3, courts will continue to weigh the gravity of the offence and the appropriate aggravating and mitigating factors, but they will have a more appropriate range of sentences available. As I have said many times, the vast majority of domestic violence cases that are taken fall under this category of penalty, where we have seen a maximum of five years applied. Because of the mitigating factors, however, the sentences are significantly reduced, and I do not think they reflect the seriousness of the crime in many instances.
The penalty for the new offence of non-fatal strangulation is aligned with that for assault causing harm. Amendment No. 6 increases the maximum penalty for that offence in order that there is a ten-year maximum sentence.
Amendment agreed to.
Section 10, as amended, agreed to.
NEW SECTIONS
I move amendment No. 4:
In page 8, between lines 23 and 24, to insert the following:
“Amendment of section 3 of Act of 1997
11. Section 3(2)(b) of the Act of 1997 is amended by the substitution of “10 years” for “5 years”.”.
Amendment agreed to.
Amendments Nos. 5 and 18 are related and may be discussed together. Amendment No. 18 is consequential on amendment No. 5.
I move amendment No. 5:
In page 8, between lines 23 and 24, to insert the following:
“Administering a substance with intent (“spiking”)
11. The Act of 1997 is amended by the insertion of the following section after section 12:
“12A. (1) A person who administers to or causes to be taken by another person (‘C’) a drug or other substance—
(a) knowing that C does not consent to what is being done, and
(b) with intent thereby to stupefy or overpower C so as to enable himself or herself or any other person to engage in sexual activity with or involving C,
is guilty of an offence.
(2) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to a Class A fine or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or to both.
(3) In subsection (1), ‘sexual activity’ has the meaning assigned to it by section 2 of the Criminal Law (Sexual Offences) Act 2017.”.”.
I thank the Minister and her officials. This amendment aims to provide for a specific offence of "spiking", that is, "administering a substance with intent". The amendment states:
The Act of 1997 is amended by the insertion of the following section after section 12:
“12A. (1) A person who administers to or causes to be taken by another person ... a drug or other substance—
(a) knowing that ... [that person] does not consent to what is being done, and
(b) with intent thereby to stupefy or overpower ... [that person] so as to enable himself or herself or any other person to engage in sexual activity with or involving ... [that person],
is guilty of an offence.
The Minister will be aware of this activity. People on nights out are conscious of it, and many sexual assaults and rapes occur following the action of spiking. What we intend with this amendment is to provide for a specific offence of the spiking of a substance, that is, a drink, that a person may be consuming.
I thank the Deputy for this amendment. As he rightly said, this is an important area and one that has come to the fore even more in the past year or two. It is certainly something students, in particular, but younger people more generally have raised with me. That is why, last year, we had the awareness-raising campaign, working with the Garda and the Minister for Further and Higher Education, Research, Innovation and Science, trying to highlight what people need to look out for and how to tell if their drink is spiked but, more importantly, that they need to go the Garda if this happens. It appears that, for various reasons, many people do not necessarily do so.
As for this amendment, I stress that section 12 of the 1997 Act provides for a general poisoning offence. That would apply where anybody intentionally or recklessly administers a substance which is capable of interfering substantially with the other person's bodily functions. What it does not require is proof that the person intended to do anything afterwards or that anything happened afterwards. The offence does carry a penalty of up to three years' imprisonment and can certainly be used. It is what is used against those who spike a drink. Where a rape or a sexual assault has been enabled by the administering of the drug, that can, of course, be charged independently and separate penalties can apply. Obviously, that is a much more severe penalty.
This amendment seems very much aligned with how this offence was introduced in the UK. My understanding is that the UK does not have an equivalent of the poisoning offence we have here. The offence the UK has requires the person to prove that he or she intended to do more after the other person was spiked and that there was intended to be an assault or a rape or some form of sexual assault. What we have does not require that. I would also suggest that, because we are increasing the penalty for assault causing harm, there are a number of ways in which a number of different charges can be brought to cover not only the spiking itself but also the act afterwards, whether there has or has not been harm. Where I acknowledge there is a differentiation is potentially the sentence.
What we have now, three years, is substantially less than where we are going with the offence of assault causing harm, which is up to ten years. As I believe this is covered in the law we have, unlike the case in the UK, I suggest looking at the penalty we have and how we can ensure there are absolutely no gaps. It is the case in many instances that we could apply the offence of assault causing harm in cases where there is a rape or sexual assault afterwards. This would be applied separately to the spiking offence itself. We must, of course, ensure that there is no possibility of a lesser sentence where some particular type of case falls through the gaps. I refer to looking at the sentence itself and exploring where it could be extended. Looking at this, however, and because we have the offence here, to me it is not as difficult to prove as what is being proposed by the Deputy. What we have is good, but I acknowledge that the sentences may be lower in that regard and this may be something we could explore further.
I thank the Minister for her engagement. I am happy to withdraw my amendment to allow the Minister to reassess the situation and come back, certainly on the sentencing guidelines. We suggested ten years, but I suppose there is a difference between poisoning with the intent of making someone unwell and spiking with the intent of committing a sexual assault or rape, based on the fact that the person would be unconscious. I suggest there is a nuance in this regard which is separate. If an individual is trying to poison someone, trying to do them harm, that would be like a common assault in respect of trying to debilitate a person by poisoning them. Spiking a drink is an attempt to temporarily make that person lose their functions so an individual could commit a sexual assault or rape. It is a separate offence. I refer to trying to charge someone who had committed a spiking offence under poisoning legislation, which has a three-year potential penalty. I think it is a separate offence we are talking about in this case.
I am happy to withdraw the amendment and to resubmit it on Report Stage, based on the Minister working with her officials and reflecting on the sentencing guidelines in this context. I again submit for her consideration, however, that there is a difference between poisoning and spiking. I know it may be subtle and the Minister may feel it is already covered, but I still contend there is a difference. As a committee and an Oireachtas, we must be quite sure that in our legislation anybody intending to spike a drink is looking at a sentence of ten years. I say this because it is more than poisoning. It is debilitating somebody's bodily functions for the intent of sexual assault or rape.
We will engage further.
Amendment, by leave, withdrawn.
SECTION 11
I move amendment No. 6:
In page 9, line 8, to delete “5 years” and substitute “10 years”.
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13
Question proposed: "That section 13 stand part of the Bill".
I wish to raise an issue regarding this section with the Minister. I apologise that my Committee Stage amendments were late. It was meant to be next week and then it was brought forward to this week and I missed the deadline for submission. I will, however, be submitting amendments to sections 7 and 10 on Report Stage of this Bill.
As the Minister knows, during the discussion we had on the Sex Offenders (Amendment) Bill 2021, I tabled amendment No. 27 to that legislation concerning the harassment of victims for which a perpetrator was already charged, convicted and had served their sentence. We are both aware of a particular case regarding persistent harassment. The difficulty is that under the proposed Sex Offenders (Amendment) Bill 2021, post-release orders will not be able to address the issue of persistent harassment. I know it is the Minister's intention, through section 13 of this Bill, to try to address this issue. At present, there is no way the victims can be protected from secondary or repeated victimisation, intimidation or retaliation by a convicted offender.
While I welcome section 13 of this legislation, there are weaknesses in it. I ask that the Minister consider my proposed amendments in advance of Report Stage in this regard. My first suggested change is that if the proceedings associated with the original conviction were held in camera, then any prosecution or proceedings in the context of harassment, regarding someone who has been already convicted, must also be held in camera. As the Minister is aware, proceedings regarding sexual offences are held in camera to protect the identity of the victim. The offender's name and details are not released for this reason. If under the harassment legislation, however, these proceedings are not held in camera, then we are effectively closing off the opportunity for any victim of a sexual offence to go before the courts and get protection in this area. The point I am making to the Minister, therefore, is that if the original proceedings and conviction were held in camera, then proceedings in the context of harassment legislation must also be held in camera.
My second suggested amendment to the legislation that I ask the Minister to consider concerns the maximum sentence provided for in respect of an order under section 13. This sentence should be able to comply with any order that has already been placed under the Sex Offenders (Amendment) Bill 2021 in respect of a term that an individual has an order for under that legislation or must comply with the sex offenders register. It would be important, therefore, that any order in respect of harassment would run in tandem with previous orders already made concerning the length of time an individual must remain on the sexual offenders register or regarding other orders made at the time an individual was convicted or subsequent orders made under the new sex offenders legislation, when it is enacted.
I understand that changes were made to the timelines, so I am happy to look at some of these suggested amendments further. Turning to the in camera aspect, there will always be situations where particular cases should be held in camera. We keep moving from different Bills. We have had the Sex Offenders (Amendment) Bill 2021 and this legislation, and we discussed some of these elements in the context of Coco's law as well. In the Sex Offences (Amendment) Bill 2021, we are expanding the provision to ensure that all sexual offences, and not just rape, would be held out of the view of the public, obviously allowing for media access in the appropriate way.
Regarding civil orders, which I think will deal with many cases where a subsequent offence has happened in respect of where somebody has served a term and then something else has happened afterwards, such proceedings will always be held in camera, in the same way as any family court or any other type of similar setting. I wish to be clear that the civil orders, which I think some people will opt for instead of having to go through the criminal trial, will always be held in camera.
Taking stalking and harassment specifically, this is something I am happy to consider further. These two aspects are not explicitly referred to within the Sex Offences (Amendment) Bill 2021 that we are progressing now, but this is an area we could explore. I am not sure this would cover all types of harassment, because not all types of harassment would have a sexual nature to them. We must look at whether one or both aspects could potentially fit into this context. Again, however, as I said, this is something I am happy to explore. I reiterate, to be clear, that the proceedings concerning the civil orders we are introducing in this legislation will all be held in camera, the same as any other family court. This will, hopefully, give some peace of mind to people.
Moving to consecutive sentences, as the Deputy mentioned there is nothing to prevent this from happening. Equally, however, if we look at the new section 10(7), this provides for an aggravating factor. A judge, therefore, must take into account where there is a previous offence and a higher sentence must be applied based on this fact. It is not that judges would be disregarding previous offences, but there is also nothing to prevent what the Deputy is suggesting from happening in this legislation. I am not sure, then, that there is anything that we need to do in this regard. I acknowledge that a higher sentence must be imposed where there has been a previous offence. The judge must take this into account.
I thank the Minister for her response. The issue I have with the second aspect of the sentence concerning, for example, a safety order under domestic violence legislation, is that it is extremely unusual for a safety order to be put in place for the maximum of five years, where there is agreement.
It is usually an average of three years. It is only put in place for five years if there are aggravating factors. The difficulty is that the individuals we are talking about here represent a small number of the offenders who have gone through the process but they are individuals who will exploit every loophole in the legislation. They are manipulative and would not have been convicted in the first place if they were not manipulative in respect of the victim. I do not want them to be able to use some wriggle room in it where they may have an order placing them for five years, ten years or permanently on the sex offenders register but they have a minimal provision regarding the issue of harassment.
It puts it back on the victim again that once that period of time has elapsed - the three, four, five years or whatever the case may be - they need to be vigilant again. They need to collate evidence and go back to the court again. Based on previous discussion we have had on the sex offenders legislation, I believe that is a further exploitation and abuse of the victim. We need to minimise that. It should not be tolerated that there is harassment after an offender's release from prison. If an individual is forced to go before the courts to get protection and to get a specific order put in place, then it must be for the maximum period possible. There should not be wriggle room regarding that if they are exploiting an individual they have previously exploited.
We always need to be mindful of two different sentences potentially being applied or two different scenarios. I appreciate that we are talking about follow-on harm subsequent to significant harm that has already been caused. The applying of a civil order or a conviction for harassment or stalking is to protect somebody immediately. We want that to apply immediately and not at the end of a timeframe that has been given to be on a sex offenders register or otherwise.
If after the maximum period of time that behaviour is still continuing, there is nothing to stop that being extended either by the Garda or the individual themselves applying. If it is a civil order that is applied, then obviously there is nothing to stop them applying for a criminal order where potentially a higher sentence would be involved. It falls into the challenge between having to separate where somebody has been convicted of a specific charge, applying a separate charge and not conflating the two. A judge, in particular, must take into account any previous case and apply the maximum sentence, taking into account what has happened previously. It is not right to say it needs to be for the same period of time as the initial one when they are two different situations. They are different and they need to be applied in a different way. The sentences are different because of the severity.
There is nothing to stop a judge from applying sentences in the way the Deputy has set out, but we need to ensure that it is put in place immediately so that the victim is supported immediately. If it needs to be extended beyond that, there is nothing to stop a member of An Garda Síochána from looking for an extension without the victim themselves having to go through that process again. We have made it very clear that a garda may apply on behalf of the person so that they do not need to go through any court process or anything like that.
I will not dwell on the point now. I accept the point the Minister has made. It is progress that a member of An Garda Síochána may seek that extension. However, the reality is that the individual is effectively on tenterhooks from the minute the order is put in place because they are required to continually collate evidence if harassment it is going on. It is bad enough that the harassment is going on, but further trauma is involved for any individual who is exposed to harassment and then is required to go through the process of collating that and relaying it to a member of An Garda Síochána, their legal representative or whoever is collecting it for them. I am trying to circumvent that. I do not have a simple answer to it but if they get an order, they should not need to be continually wary and vigilant, and need to collate information and evidence to be presented to the Garda to get a further extension of this once the order lapses. In practical terms, even if the individual continues the harassment within probably six months of the lapse of that order, they will steer clear and the Garda will point out that he has behaved himself - it is usually a man - for the previous six months and wait to see what happens in the next six months. All of a sudden that victim is being revictimised which is what I want to try to avoid.
I will table the amendment on Report Stage. I do not have a simple answer for this, but I ask the Minister to give it serious consideration between now and Report Stage.
I think we can leave it there because I do not think the Minister particularly needs to come back. I note the Deputy's intention to table an amendment on Report Stage and I am sure the parties can engage between now and then to see if anything can be worked out. It will be revisited at that point.
Question put and agreed to.
Section 14 agreed to.
NEW SECTION
I move amendment No. 7:
In page 12, between lines 11 and 12, to insert the following:
“Amendment of section 25 of Act of 1997
15. (1) The Act of 1997 is amended by the substitution of the following section for section 25:
“25. (1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to—
(a) an examination of that person by the registered medical practitioner,
(b) an examination of that person by another person who was acting under the supervision, or was otherwise subject to the authority, of the registered medical practitioner, or
(c) the medical assessment by the registered medical practitioner of the medical records relating to an examination of that person,
shall, unless the contrary is proved, be evidence of any fact or opinion (including an opinion in relation to the source or effect of, or a prognosis in respect of, harm or serious harm to the person) thereby certified without proof of any signature thereon or that any such signature is that of such registered medical practitioner.
(2) A certificate to which subsection (1) applies shall include a statement as to which paragraph of that subsection applies to the registered medical practitioner who signs the certificate.
(3) In this section ‘registered medical practitioner’ means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007.”.”.
Section 25 of the Non-Fatal Offences against the Person Act 1997 provides that the evidence of certain matters may be given by certificate by a doctor in a trial for assault causing harm or causing serious harm. An element of these offences is clearly whether harm or serious harm has actually been caused. In many cases this is not a live issue at a trial and the provision allows for evidence of that harm to be provided without the doctor attending court. This statutory provision removes unnecessary barriers and delays to the conduct of criminal trials and ensures that doctors are not diverted from their work to attend in person at criminal trials. As we know, there is enormous pressure on GPs.
In 2021 the Supreme Court found that the section as currently drafted should be interpreted to be limited to certificates provided by a medical practitioner who actually carried out the examination. It also called into question the use of the section in respect of opinion evidence. The amendment will allow for certificates to be provided under a wider range of scenarios, in particular where the evidence is being provided by a supervising doctor or where it is being provided based on a medical assessment of the relevant medical records. To take an example, it would allow a specialist to provide an expert assessment of whether an injury is permanent and for this to be admissible as evidence.
It goes without saying that the ability to provide this evidence by certificate does not make the evidence conclusive. The other side may, of course, also give evidence and it will be up to a judge or jury to assess the weight of that evidence.
Is this just extending section 25 on foot of the Supreme Court ruling?
It is extending it essentially.
It may be certified without proof of the signature. Is it just dealing with the signature and with the actual evidence of what marks were there and what harm was caused?
In the written piece, yes.
The Minister probably accepts that the GP or registered medical practitioner is not required to attend court in 90% of cases. Would the Minister accept that it is unusual for doctors to need to attend court?
It is just a question of covering all instances of where attendance may be required.
I have slight concerns about these provisions. They relate not so much to the later ones, which relate to analysing drugs, for example, but to where a medical practitioner is giving evidence of what he or she saw. In such cases, will there still be an opportunity for the evidence to be tested in the courts and cross-examined? Often, it is only when evidence arises to the effect that there is an additional medical difficulty that one notes there may be a crossover between the two. Will that still be-----
It will. The defence can bring its own or else call for an individual to be brought in to be cross-examined. The measure does not prevent this from happening; it just means a person does not always have to be brought in.
If there is concern over what was said and what occurred at the time of the examination-----
That the person can be brought in.
-----may the relevant registered medical practitioner be called?
Yes.
The one who signed off on the certificate.
Absolutely.
I reserve the right to return to this on Report Stage.
Amendment agreed to.
Sections 15 to 34, inclusive, agreed to.
NEW SECTIONS
Amendments Nos. 8 and 19 are related and are to be taken together.
I move amendment No. 8:
In page 19, after line 32, to insert the following:
"PART 6
ANONYMITY OF WITNESSES IN CRIMINAL PROCEEDINGS
Anonymity of witnesses in criminal proceedings
35. (1) Without prejudice to any enactment or rule of law, a court may order such measures (referred to in this section as "anonymity measures") to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.
(2) Without prejudice to the generality of subsection (1), the anonymity measures referred to in that subsection may include—
(a) that the witness's name and other identifying details may be—
(i) withheld,
(ii) removed from materials disclosed to any party to the proceedings, or
(iii) both,
(b) that the witness may use a pseudonym,
(c) that the witness shall not be asked questions of a description specified by the court that might lead to the identification of the witness,
(d) that the witness shall be screened to an extent specified by the court, and
(e) that the witness's voice shall be altered by appropriate means specified by the court.
(3) Anonymity measures shall not include measures to prevent—
(a) the witness from being visible to the judge or judges, or to the jury (if any), or
(b) the witness’s unaltered voice being heard by the judge or judges, or by the jury.
(4) The court shall not order anonymity measures unless it is satisfied that—
(a) the measures are necessary to—
(i) protect the safety of the witness concerned or of another person connected to the witness or to prevent serious damage to property,
(ii) protect the anonymity of a law enforcement official, where that anonymity is necessary for the proper performance of that official’s duties, or
(iii) avoid harm to the public interest,
and
(b) the measures would be consistent with the defendant receiving a fair trial.
(5) In determining whether measures should be ordered, the court shall have regard to—
(a) the general principle that a defendant should know the identity of witnesses,
(b) the extent to which the credibility of the witness is at issue,
(c) whether the evidence of the witness may be the sole or decisive evidence,
(d) whether the evidence of the witness is corroborated,
(e) whether the evidence of the witness may be properly tested without his or her identity being disclosed,
(f) whether there is any reason to believe the witness is or may be dishonest, or has any motive to be dishonest in the particular case, and
(g) such other factors as the court considers relevant.
(6) A determination by the court that the evidence of the witness may be the sole or decisive evidence shall not, in and of itself, preclude the court from ordering anonymity measures, provided that the court is satisfied that the conditions in subsection (4) apply.
(7) An application for anonymity measures may be made by the prosecutor or the defendant and—
(a) where it is made by the prosecutor, he or she—
(i) shall, (unless the court directs otherwise) inform the court of the identity of the witness, and
(ii) is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other party to the proceedings or to the defendant’s legal representatives,
or
(b) where it is made by the defendant, he or she—
(i) shall inform the court and the prosecutor of the identity of the witness, and
(ii) is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other defendant or to that other defendant’s legal representatives.
(8) The court shall give every party to the proceedings the opportunity to be heard with regard to an application to which subsection (7) refers.
(9) Where the court considers it necessary for the purpose of properly considering an application to which subsection (7)(a) refers, it may—
(a) hear one or more parties, or
(b) examine the proposed witness in relation to whom the application is made, or other witnesses, in the absence of the defendant and his or her legal representatives.
(10) Where a person proposes to make an application to which subsection (7) refers, he or she may, subject to paragraphs (a)(i) and (b)(i) of that subsection, disclose documents or other material that fall to be disclosed, or are sought to be relied on, by him or her, subject to such redactions as are necessary to avoid identifying the witness in respect of whom the application was made or enabling that witness to be identified.
(11) Where a witness in relation to whom anonymity measures apply has given evidence in a trial before a jury, the judge shall caution the jury in such terms as he or she considers necessary for the purpose of avoiding prejudice to the defendant.
(12) A court may, on notice, vary or discharge an order to which subsection (1) refers where the court is satisfied that it is in the interest of justice to do so.".
The ability of certain witnesses to give evidence without disclosing their identity is vital to protecting the safety of witnesses and ensuring the ongoing effectiveness of law enforcement operations. However, there is no current statutory basis for the granting of anonymity and courts have limited guidance in determining whether and how it should be granted. The Court of Appeal, in its judgment in DPP v. Bates, highlighted the need for a statutory basis, and this amendment will provide this. It seeks to ensure that a court has a very clear legal basis for determining whether and under what conditions such evidence should be allowed. The default position is, of course, that a person should know the identity of the witness giving the evidence against him or her. Anonymous evidence cannot be allowed if it would undermine the ability of a person to receive a fair trial. However, in certain cases, giving evidence anonymously may be safely allowed without affecting the fairness of a trial, provided that appropriate safeguards are in place.
The two most common situations where a need for anonymity may arise are in respect of law-enforcement officials - for example, National Surveillance Unit gardaí or gardaí carrying out undercover operations - and where witnesses fear for their safety if giving evidence. The sad reality of organised crime is that many potential witnesses may not give evidence due to intimidation and fear. Accordingly, the amendment provides that anonymous evidence may be allowed to protect the safety of the witness are another person connected to that witness and protect the anonymity of a law-enforcement official where that anonymity is needed for the proper performance of that official's duties or to avoid harm to the public interest. It may be allowed only where it would not prevent the defendant from receiving a fair trial.
Anonymity measures may not prevent the judge and jury from seeing the witness. This will continue to be essential to ensure that the credibility of evidence given can be assessed. In determining whether to allow anonymous evidence, the court must have regard to several things: the general principle that the defendant should know the identity of the witness; the extent to which the credibility of the witness is at issue; whether the evidence of the witness may be the sole or decisive evidence; whether the evidence of the witness is corroborated; whether the evidence of the witness may be tested properly without the witness's identity being disclosed; and whether there is any reason to believe the witness is, or may be, dishonest or has any motive to be dishonest in the particular case. This provision has been drafted in very careful consultation with the Office of the Attorney General and with a view to ensuring an appropriate balance is struck between the need to protect witnesses and the need to protect the public interest while ensuring a fair trial for all involved.
I understand and appreciate it is in the interest of the defendant receiving a fair trial. The Minister said witnesses may not want to give evidence due to fear or intimidation. Is she speaking about members of the Garda?
Generally not. It is not that it does not apply but it generally would not be the case that a member of the Garda would not want to give evidence. The provision is important to make sure that if there is any concern on the part of the Garda, it will be removed or alleviated. I am referring in particular to the types of work the gardaí are doing. Law enforcement officials may be carrying out surveillance or undercover duties. If their names or identities were provided, it would obviously have an impact on their ability to continue with their work.
Is this provision only for Special Criminal Court or gangland cases? Could it be in any case?
Any case.
Could it apply to a District Court case?
It can apply in any court, but regard must be had in each case to all the principles I have outlined.
Does it apply to every witness, including Garda, retired Garda and civilian witnesses?
Yes. However, it is generally understood that this will probably not apply in the vast majority of cases, in the District Court or otherwise. I suppose we have to take into consideration that there are very serious cases in which people do not want to come forward, simply because of the fear they have.
Witnesses may be reluctant to give evidence for a number of reasons. The Minister would accept that.
Absolutely. That is why one has to consider even the credibility of a witness, as he or she may have a reason to be dishonest. That is why we try to cover as many bases as possible when determining how this can apply. It is not simply a matter of looking at it through one lens.
I am just thinking of a sexual assault or rape case years ago in which there was a conviction. An office I was involved with was contacted the following day by a solicitor from another part of the country who said the witness was totally unreliable. In fact, another judge had said the witness was totally unreliable and a fantasist. As a consequence, the conviction was overturned and a miscarriage of justice was avoided. If, however, the witness had been allowed anonymity, nobody would have known. Therefore, I have concerns about some aspects of this legislation. I reserve the right to return to it on Report Stage.
If the Deputy has a suggestion to strengthen the provision on the grounds mentioned, I will be happy to engage with him and explore it further.
Amendment agreed to.
Amendment No. 9, in the name of the Minister, is related to amendments Nos. 10, 11 and 20. The three are to be discussed together.
I move amendment No. 9:
In page 19, after line 32, to insert the following:
"PART 7
FORENSIC SCIENCE IRELAND CERTIFICATE EVIDENCE
Certificates relating to receipt, handling, transmission or storage
36. (1) In any criminal proceedings, the production of a certificate purporting to be signed by an officer of Forensic Science Ireland of the Department of Justice and relating to the receipt, handling, transmission or storage, as the case may be, specified in the certificate of any item so specified shall, until the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such officer.
(2) Subsection (1) shall apply regardless of whether the receipt, handling, transmission or storage of an item specified in a certificate under that subsection occurred prior to or after the coming into operation of this section.".
This amendment widens the circumstances in which certificate evidence may be provided in respect of the handing, receipt, transmission or storage of items by Forensic Science Ireland. As it stands, section 10 of the Misuse of Drugs Act 1984 allows certificate evidence to be given on these matters for drug offences. This system works well.
It allows evidence to be provided, for example, as to when a sample was received, how it was sorted, when it was opened, what controls were put in place and so on. This evidence, while important in establishing the integrity of the test results, is usually not contentious. Allowing evidence to be given in this way avoids delays in trials and the need for forensic officers to be diverted from their work to attend. This is similar to the situation with doctors, which we discussed previously. The amendment would extend this provision to non-drug offences. It is of note that the provision allowing evidence of the results of substantive analysis to be given by certificate will continue to apply only to drugs cases, as is the case with the medical certificate evidence. While a certificate provides evidence, it does not provide conclusive evidence. It remains open to the defence to challenge the evidence provided. Similarly, it remains open to anybody to call someone to challenge specific evidence where it is not contentious. Again, this amendment allows for this to be provided in all instances.
I reserve the right to return to the subject of amendments Nos. 9, 10 and particularly 11 on Report Stage.
Amendment agreed to.
I move amendment No. 10:
In page 19, after line 32, to insert the following:
“Amendment of section 10 of Misuse of Drugs Act 1984
37. (1) The Misuse of Drugs Act 1984 is amended by the substitution of the following section for section 10:
“10. (1) In any proceedings for an offence under the Principal Act or section 5 of this Act, the production of a certificate purporting to be signed by an officer of Forensic Science Ireland of the Department of Justice and relating to an examination, inspection, test or analysis, as the case may be, specified in the certificate of a controlled drug or other substance, product or preparation so specified shall, until the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such officer.”.
(2) The validity of any certificate under section 10 of the Misuse of Drugs Act 1984 that was signed by an officer of Forensic Science Ireland of the Department of Justice before the coming into operation of subsection (1) shall not be affected by such coming into operation.”.
Amendment agreed to.
I move amendment No. 11:
In page 19, after line 32, to insert the following:
“Amendment of Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
38. Section 169 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 is repealed.”.
Amendment agreed to.
Section 35 agreed to.
NEW SECTION
Amendments Nos. 12 and 21 are related and may be discussed together by agreement.
I move amendment No. 12:
In page 20, to delete lines 16 to 18, and substitute the following:
“Amendment of Criminal Justice (Public Order) Act 1994
36. The Criminal Justice (Public Order) Act 1994 is amended—
(a) by the insertion of the following section after section 9:
“Failure to comply with direction of member of Garda Síochána with regard to court proceedings
9A. (1) Where a member of the Garda Síochána finds a person in a place where any court proceedings take, or are taking, place before a judge or a court officer and he or she suspects, with reasonable cause, that the person, whether alone or in the company of other persons, is—
(a) without lawful authority or reasonable excuse wilfully interfering with or obstructing—
(i) the conduct of the proceedings, or
(ii) witnesses or other persons connected with the proceedings,
or
(b) acting in a manner which gives rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace, the member may direct the person so suspected to do either or both of the following:
(i) desist from acting in such a manner;
(ii) leave immediately the vicinity of the place concerned in a peaceable and orderly manner.
(2) It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under this section.
(3) A person who is guilty of an offence under this section shall be liable on summary conviction to a class D fine or to imprisonment for a term not exceeding 6 months or to both.
(4) This section is without prejudice to the power of the court in respect of the matters to which this section relates.
(5) In this section ‘court officer’ means a Master of the High Court, Taxing Master or County Registrar.”,
(b) in section 23A(1), by the substitution of “section 5, 21 or 22” for “section 5”, and
(c) in section 24(5), by the substitution of “8, 9A,” for “8,”.”.
This amendment makes provision for members of An Garda Síochána to direct a person to desist from interfering with or obstructing court proceedings. A person failing to comply with such a direction commits an offence. This offence complements existing public order offences and the powers of the court to make a finding of contempt.
Would the Minister consider altering the wording to a member "must" direct the person to desist or leave immediately? The current wording gives such people a warning similar to that required by the High Court under section 8 of the Criminal Justice (Public Order) Act 1994 which states "the member may direct the person so suspected to do" to desist or leave immediately. I propose that members should have to do that rather than having an option. I can return to the matter on Report Stage if the Minister would like to consider it in the intervening period. It is just in case a person did not realise they were doing something.
We would have to look at the use of the word and how it is applied.
There would have to be an actual direction before you could-----
There would have to be a direction. We can come back to the Deputy on that.
Amendment agreed to.
Section 36 deleted.
Sections 37 to 39, inclusive, agreed to.
NEW SECTION
Amendments Nos. 13 and 22 are related and may be discussed together by agreement.
I move amendment No. 13:
In page 21, between lines 29 and 30, to insert the following:
“Amendment of Schedule 1 to Criminal Law (Insanity) Act 2006
40. Schedule 1 to the Criminal Law (Insanity) Act 2006 is amended by the insertion of the following paragraph after paragraph 8:
“8A. Where the chairperson is temporarily unable to perform his or her duties as chairperson due to absence or incapacity, the Minister may appoint—
(a) a member of the Review Board, or
(b) any other person,
possessing the qualifications referred to in paragraph 2 of this Schedule, to act as chairperson for the duration of the period of absence or incapacity.”.
This amendment makes provision for the appointment by the Minister of a suitably qualified substitute to act as the chair of the Mental Health (Criminal Law) Review Board should the current chair be absent or incapacitated. As members will be aware, there is a strict statutory time limit which applies to the board. This provision will ensure that those time limits may be met should an issue arise. We are just covering all possible scenarios that might arise.
Amendment agreed to.
Sections 40 and 41 agreed to.
NEW SECTION
Amendments Nos. 14 and 15 are related and may be discussed together by agreement.
I move amendment No. 14:
In page 22, between lines 2 and 3, to insert the following:
“Amendment of section 53 of Criminal Justice (Mutual Assistance) Act 2008
42. Section 53 of the Criminal Justice (Mutual Assistance) Act 2008 is amended—
(a) in subsection (7)(a) by the substitution of “subsections (8) and (9)” for “subsection (8)”, and
(b) by the insertion of the following subsection after subsection (8):
“(9) Where property recovered by the execution of a confiscation co-operation order transmitted by or on behalf of a court in a designated state, other than a member state or the United Kingdom, is a sum of money or the proceeds of a sale under subsection (7) (b), the Court, on application by the Central Authority and in accordance with the relevant international instrument, may—
(a) order the money or the proceeds of sale to be transferred to the designated state, or
(b) order part of the money or the proceeds of sale to be transferred to the designated state and the remaining balance shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.”.”.
Amendment No. 14 amends the Criminal Justice (Mutual Assistance) Act 2008. As it stands, section 53(8) provides that, for EU member states, sums received on foot of a confiscation are paid into the Exchequer where the amount is less than €10,000. Amounts greater than €10,000 are equally divided with the issuing state. This arrangement arises from the relevant framework decision and is confined to EU member states' requests. As a signatory to the UN Convention Against Corruption, Ireland is subject to a UN process with regard to its implementation. One of the recommendations that emerged from the review process called for it be ensured that Ireland's mutual legal assistance legislation clearly provides for the return of confiscated money to any state party in accordance with Article 57(2) of the convention. Similar concerns may arise in respect of other mutual legal assistance instruments. The proposed approach allows the court to order the return of sums of money to the designated states concerned in accordance with the relevant instrument.
Amendment No. 15 relates to the dual criminality requirement associated with corruption offences. This requirement applies to corruption occurring outside the State where extraterritorial jurisdiction is applied in respect of, for example, Irish citizens and residents committing acts of corruption abroad. At present, to be prosecuted, conduct must constitute an offence both in Ireland and in the state concerned. This issue has been raised by international organisations, notably the European Commission which has noted that it may limit the scope for prosecuting foreign bribery. This amendment will address this issue. We are simply aligning ourselves to respond to issues the Commission has raised with us previously.
Amendment agreed to.
Sections 42 and 43 agreed to.
NEW SECTION
I move amendment No. 15:
In page 22, between lines 19 and 20, to insert the following:
“Amendment of section 12 of Criminal Justice (Corruption Offences) Act 2018
44. Section 12(2)(c) of the Criminal Justice (Corruption Offences) Act 2018 is amended by the deletion of the words “the act constitutes an offence under the law of the place where it was done and”.”.
Amendment agreed to.
Section 44 agreed to.
TITLE
I move amendment No. 16:
In page 5, line 8, to delete “Firearms Act 1925 and the Firearms (Proofing) Act 1968;” and substitute “Explosives Act 1875 and the Firearms Act 1925;”.
Amendment agreed to.
I move amendment No. 17:
In page 5, lines 8 to 10, to delete all words from and including “to” in line 8 down to and including “stalking;” in line 10 and substitute the following:
“to provide for offences relating to non-fatal strangulation, non-fatal suffocation, harassment and stalking and for those purposes and other purposes to amend the Non-Fatal Offences against the Person Act 1997;”.
Amendment agreed to.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 5, line 11, after “conduct;” to insert the following:
“to provide for circumstances in which a court may order the anonymity of a witness in criminal proceedings;”.
Amendment agreed to.
I move amendment No. 20:
In page 5, line 11, after “conduct;” to insert the following:
“to provide for certificates of evidence relating to the receipt, handling, transmission or storage of certain items, and for that purpose to provide for amendments to the Misuse of Drugs Act 1984 and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;”.
Amendment agreed to.
I move amendment No. 21:
In page 5, line 12, after “1992,” to insert “the Criminal Justice (Public Order) Act 1994,”.
Amendment agreed to.
I move amendment No. 22:
In page 5, line 12, after “1997,” to insert “the Criminal Law (Insanity) Act 2006,”.
Amendment agreed to.
Title, as amended, agreed to.
Pursuant to Standing Order 187(3), the clerk will now report specifically to Dáil Éireann that the committee has amended the Title to the Bill to read as follows:
A Bill entitled an Act to amend the Offences Against the Person Act 1861 and the Criminal Justice Act 2006 in relation to the offences of conspiracy to murder under those Acts; and for that purpose to provide for consequential amendments of other enactments; to amend the Explosives Act 1875 and the Firearms Act 1925; to provide for offences relating to non-fatal strangulation, non-fatal suffocation, harassment and stalking and for those purposes and other purposes to amend the Non-Fatal Offences against the Persons Act 1997; to provide for the making of court orders to protect persons against certain conduct; to provide for circumstances in which a court may order the anonymity of a witness in criminal proceedings; to provide for certificates of evidence relating to the receipt, handling, transmission or storage of certain items, and for that purpose to provide for amendments to the Misuse of Drugs Act 1984 and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014; and for those and other purposes to amend the Criminal Evidence Act 1992, the Criminal Justice (Public Order) Act 1994, the Bail Act 1997, the Criminal Law (Insanity) Act 2006, the Domestic Violence Act 2018 and certain other enactments; and to provide for related matters.
Bill reported with amendments.