Vol. 2 No. 13
The meeting has been convened for the purpose of resuming consideration of Committee Stage of the Criminal Justice (Theft and Fraud Offences) Bill, 2000. I welcome the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, and his officials to the meeting. I hope we will be able to finish Committee Stage of the Bill this evening. We are resuming on amendment No. 14 to section 23 in the name of the Minister. Does the Minister wish to say something about the amendment?
SECTION 23.
I understand amendments Nos. 14, 15 and 16 are in my name and that they were moved by the Minister of State, Deputy Hanafin. Amendments Nos. 17 and 18 are Opposition amendments and both are opposed. I understand they were also discussed.
Amendments Nos. 15 and 16 are related and amendments Nos. 17 and 18 are alternatives to amendment No. 16. Amendments Nos. 14 to 18, inclusive, will be taken together if that is agreed? Agreed.
Are they to be discussed together, Chairman?
Yes.
We had started to discuss them already.
I understood they were discussed, Chairman.
They were discussed. Do you have anything to add, Deputy O'Sullivan?
The Minister of State moved the amendments and I spoke after her. I indicated I was not willing to accept the Minister of State's amendments because a number of instruments were being added to the list of instruments in the original Bill. One of those was the holding of a passport or document which can be used. The concern I expressed on the last occasion was that it was, in effect, making it a criminal offence to hold a false passport and that person could be accused of being criminally fraudulent by holding a false passport.
My concern related to asylum seekers, many of whom come to this country with false passports because it is the only way they can get out of their own country. If they were to try to leave their own country because they were in danger of persecution or death, in many cases they would not be able to leave with their own passport. If they used their own passport, they would be prevented from leaving their own country. My concern was that the amendment the Minister tabled, which was not part of the original Bill, would make it a criminal offence for an asylum seeker to hold a false passport. I was concerned that in such a case the asylum seeker might not have the opportunity to make a claim for asylum.
I indicated that I would oppose the amendments. I would like to know if the Minister has anything else to say because the Minister of State indicated the matter might be addressed again on Report Stage. However, I do not think that was in relation to the point I made because she said it before I made the point. Will the Minister clarify exactly what the Minister of State indicated she would address on Report Stage?
Does Deputy Shatter have anything to say on amendments Nos. 17 or 18?
Not at the moment.
One point which has been missed in the discussion to date is that forgery of passports is already an offence under the law. Under the Forgery Act, 1913, forgery of any public document, which is not otherwise specifically mentioned in the Act, is an offence. Under section 6 of the 1913 Act, it is an offence for a person to alter the forged document.
If the present Bill was not consolidating and repealing the Forgery Acts, the position would be that a forgery or altering of a forged passport would still be an offence. Furthermore, section 8 of the Official Secrets Act, 1963, provides that a person shall not forge, use or possess any forged official document. An official document in this context includes a passport, pass, permit or document of identity. What I am trying to say is that there is nothing new in this amendment. I should emphasise that in the amendments, the offences relating to forgery are quite specific. It will not be an offence to possess a false instrument such as a forged passport where there is lawful authority or excuse for possessing it. On any reasonable interpretation of that provision, a person who can establish a well-founded fear of persecution would have an excuse for possession of the false document. Also, a person who can show that he or she has fled another country for fear of persecution and who possesses a false passport will have an excuse for such possession.
Under the provisions of section 9(1) of the Refugee Act, 1996, a person who makes an application for asylum on the frontiers of the State must be given leave to land in the State by the immigration officer concerned. This requirement is absolute. It applies whether or not 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, no matter what the circumstances.
The Refugee Act, however, does provide for offences of forging identity documents where this is done for reward or for the purposes of sale or supply. This is clearly intended to cover persons who engage in forging these documents for profit. Accordingly, it is not correct to suggest that these amendments are in some way targeting asylum seekers. The list of documents set out in amendment No. 14 is intended to cover, to the fullest extent possible, all those documents in which there is some value and which, therefore, are worth forging. Clearly, a passport is a valuable document and the amendment covers the forgery of any passport. Is it suggested that a person who is caught with a number, sometimes a large number, of forged passports should not be guilty of an offence or that 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 UN Resolution 1371, which was passed in the wake of the terrorist atrocities in the United States of America on 11 September, obliges states to take measures to prevent counterfeiting, forgery or fraudulent use of identity papers and travel documents. This theme in relation to the possibility of terrorists getting into the jurisdiction of the country, or indeed any member state of the EU, was a recurring one during meetings of the Justice and Home Affairs Council post 11 September.
I agree with the Minister that the possession of a false passport is a serious issue, but he said the Refugee Act will allow a person coming to this country with a false passport to apply for asylum. Is he saying there is no question of that person being accused of a crime under the legislation we are dealing with today, that that would somehow supersede the right of the person to apply for asylum under the Refugee Act? I am concerned that asylum seekers who have had to flee their country with a false passport will be considered to be criminally fraudulent in a way that will not allow them to seek asylum and go through the normal procedures. If the Minister can give me an assurance in regard to that concern, I will not oppose his amendment, at least at this stage.
I am satisfied that where there is lawful authority or excuse for possessing the document, such a person is perfectly safe under this legislation. In those circumstances, Deputy O'Sullivan's lateral interpretation of the position is actually correct and, therefore, I can give the assurance she seeks.
I presume I can come back to this on Report Stage, and I reserve the right to do that.
Deputy Shatter, I realise you came in late, but have you any comment to make on amendments Nos. 17 and 18?
I have no comment, Chairman.
I move amendment No. 15:
In page 22, between lines 7 and 8, to insert the following definition:
" 'share certificate' means a document entitling or evidencing the title of a person to a share or interest-
(a) in any public stock, annuity, fund or debt of the Government or the State or of any government or state, including a state which forms part of another state, or
(b) in any stock, fund or debt of a body (whether corporate or unincorporated), wherever established.”.
I move amendment No. 16:
In page 22, lines 43 to 45, in page 23, lines 1 to 47 and in page 24, lines 1 to 17, to delete subsections (1) to (7) and substitute the following:
"(1) A person who has in his or her custody or under his or her control an instrument which is, and which he or she knows or believes to be, a false instrument with the intention that it shall be used to induce another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, or to provide some service, to the prejudice of that person or any other person is guilty of an offence.
(2) A person who, without lawful authority or excuse, has an instrument which is, and which he or she knows or believes to be, a false instrument in his or her custody or under his or her control is guilty of an offence.
(3) A person who makes or has in his or her custody or under his or her control a machine, stamp, implement, paper or any other material, which to his or her knowledge is or has been specially designed or adapted for the making of an instrument with the intention-
(a) that it would be used in the making of a false instrument, and
(b) that the instrument would be used to induce another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, or to provide some service, to the prejudice of that person or any other person,
is guilty of an offence.
(4) A person who, without lawful authority or excuse, has in his or her custody or under his or her control any machine, stamp, implement, paper or material which to his or her knowledge is or has been specially designed or adapted for the making of an instrument with the intention that it would be used for the making of a false instrument is guilty of an offence.
(5) In subsections (3) and (4) references to a machine include references to any disk, tape, drive or other device on or in which a program is recorded or stored by mechanical, electronic or other means, being a program designed or adapted to enable an instrument to be made or to assist in its making, and those subsections shall apply and have effect accordingly.”.
Amendments Nos. 17 and 18 cannot be moved because of the acceptance of amendment No. 16.
Amendment No. 19 is in the name of the Minister. Amendments Nos. 20 and 21 are related so the proposal is to discuss amendments Nos. 19 to 21, inclusive, together, by agreement.
I move amendment No. 19:
In page 26, subsection (1), line 7, to delete "the euro unit" and substitute "euro".
Part V of the Bill deals with currency counterfeiting. At present, counterfeiting of currency is only an offence if the currency is legal tender. Since euros will not be legal tender until they are issued next January, a new offence of counterfeiting euros must be created. Section 31 is intended to provide accordingly and states, in part, that a currency note and coin includes euro notes and coins, so that counterfeiting of them would be an offence even before they are issued.
This requirement to provide for protection of the euro against counterfeiting arises from the EU Council framework decision of 29 May 2000 on protection of the euro. Following consultation with the European Central Bank, as required under the treaty on European Union, section 31 was re-examined and it was decided to amend it to ensure the full protection of the euro in accordance with the framework decision. Amendment No. 20 is designed to achieve this. The amendment deletes the words "whether issued or not" in section 31(1) and replaces them with words, the effect of which is to state that currency notes and coins will include euro notes and coins and any other currency which, though not yet lawfully issued, would be considered currency notes and coins when eventually issued. This, therefore, would include issued notes and coins as well as notes and coins which it is planned to issue at a later date.
The important question is what is meant by "lawfully issued". Amendment No. 21 deals with this question by setting out the meaning of "lawfully issued". In this regard it means currency issued by or under the authority of the European Central Bank, the Central Bank of Ireland, the Minister for Finance or any similar body in another state or territorial unit. Taken together, amendments Nos. 20 and 21 thus ensure that euro notes and coins will have full protection against counterfeiting both before and after their introduction next January. In doing this we will have fulfilled our commitments under the May 2000 framework decision. Amendment No. 19 is a technical amendment which will make the language of the Bill consistent with the language of the May 2000 framework decision by referring to the new currency simply as the euro.
I move amendment No. 20:
In page 26, subsection (1), line 8, to delete ", whether issued or not" and substitute "and also any note or coin which has not been lawfully issued but which would, on being so issued, be a currency note or coin within the above meaning".
I move amendment No. 21:
In page 26, subsection (1), between lines 8 and 9, to insert the following definition:
" 'lawfully issued' means issued-
(a) by or under the authority of the European Central Bank,
(b) by the Central Bank of Ireland or the Minister for Finance, or
(c) by a body in a state (other than the State) or a territorial unit within it which is authorised under the law of that state or territorial unit to issue currency notes or coins.”.
Amendment No. 22 is in the name of the Minister. Amendment No. 23 is related and amendments Nos. 22 and 23 may be taken together by agreement.
I move amendment No. 22:
In page 26, lines 31 to 34, to delete subsection (2).
I mentioned in respect of amendments Nos. 19, 20 and 21 our obligations in relation to the protection of the euro. Amendments Nos. 22 and 23 are related to that obligation. To ensure full and proper protection of the euro, it is necessary to provide that counterfeiting and related offences are punishable under Irish law, even when they are committed abroad. This is the purpose of amendment No. 23.
Certain actions such as making counterfeit currency notes or coins intending to pass them as legal tender, custody or control of counterfeit currency notes or coins or making and possessing materials for use in counterfeiting, offences committed in the State under sections 32 to 36, would also be offences if committed abroad because of the nature of the offences and the fact that evidence of their commission is to be found in another state. The amendment also provides that proceedings for such an offence would only be taken by or with the consent of the Director of Public Prosecutions. With a view to centralising the prosecution of such offences, the Office of the DPP will co-operate with the appropriate authorities in the other country which he considers also a jurisdiction to try the person.
I have outlined the purpose and effect of amendment No. 23 before addressing amendment No. 22 because amendment No. 23 deals with extra-territorial jurisdiction for the whole range of offences contained in Part V.
Amendment No. 22a is a drafting amendment.
I move amendment No. 22a:
In page 27, subsection (3), line 27, to delete "or" where it firstly occurs and substitute "on".
I move amendment No. 23:
In page 28, before section 37, but in Part 5, to insert the following new section:
37.-(1) A person who outside the State does any act referred to in section 32, 33, 34, 35 or 36 is guilty of an offence and liable on conviction on indictment to the penalty specified for such an act in the section concerned.
(2) Section 43 shall apply in relation to an offence under subsection (1) as it applies in relation to an offence under section 42.”.
May I ask a question, Chairman?
You may.
Thank you. This amendment states that "a person who outside the State does any act referred to . . . is guilty of an offence and liable on conviction on indictment to the penalty specified for such an act in the section concerned".
From where is the Deputy reading?
Perhaps I am looking at the wrong amendment. It is amendment No. 23 relating to section 37 on page 5.
We have already discussed the amendment.
I will not insist on speaking on it if that is the case.
I move amendment No. 23a:
In page 28, between lines 9 and 10, but before Part 6, to insert the following new section:
37.-(1) In this section-
'designated body' means:
(a) a body licensed to carry on banking business under the Central Bank Act, 1971, or authorised to carry on such business under the ACC Bank Acts, 1978 to 2001, or regulations under the European Communities Acts, 1972 to 1998,
(b) a building society within the meaning of the Building Societies Act, 1989,
(c) a trustee savings bank within the meaning of the Trustee Savings Banks Acts, 1989 and 2001,
(d) An Post,
(e) a credit union within the meaning of the Credit Union Act, 1996,
(f) a person or body authorised under the Central Bank Act, 1997, to provide bureau de change business,
(g) a person who in the course of business provides a service of sorting and redistributing currency notes or coins,
(h) any other person or body-
(i) whose business consists of or includes the provision of services involving the acceptance, exchange, transfer or holding of money for or on behalf of other persons or bodies, and
(ii) who is designated for the purposes of this section by regulations made by the Minister after consultation with the Minister for Finance,
'recognised code of practice' means a code of practice drawn up for the purposes of this section-
(a) by a designated body or class of designated bodies and approved by the Central Bank of Ireland, or
(b) by the Central Bank of Ireland for a designated body or class of such bodies.
(2) A designated body shall-
(a) withdraw from circulation any notes or coins received by it or tendered to it which it knows or suspects to be counterfeit, and
(b) transmit them as soon as possible to the Central Bank of Ireland with such information as to the time, location and circumstances of their receipt as may be available.
(3) Counterfeit or suspect currency notes or coins may be transmitted to the Garda Síochána under subsection (2) in accordance with a recognised code of practice.
(4) A recognised code of practice may include provision for:
(a) procedures to be followed by directors or other officers and employees of a designated body in the conduct of its business,
(b) instructions to them on the application of this section,
(c) standards of training in the identification of counterfeit notes and coins,
(d) procedures to be followed by them on perceiving or suspecting that currency notes or coins are counterfeit,
(e) different such procedures to be followed in respect of different currencies,
(f) the retention of documents required for the purposes of criminal proceedings.
(5) Without prejudice to section 56, a designated body which contravenes a provision of subsection (2) of this section or who provides false or misleading information on matters referred to in those subsections is guilty of an offence under this section and liable-
(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(6) It shall be a defence in proceedings for an offence under this section-
(a) for a designated body to show-
(i) that it had established procedures to enable this section to be complied with or
(ii) that it had complied with the relevant provisions of a recognised code of practice,
and
(b) for a person employed by a designated body to show that he or she transmitted the currency notes or coins concerned, or gave the relevant information, to another person in accordance with an internal reporting procedure or a recognised code of practice.
(7) Where a designated body, a director, other officer or employee of the body-
(a) discloses in good faith to a member of the Garda Síochána or any person concerned in the investigation or prosecution of an offence under this Part a suspicion that a currency note or coin is counterfeit or any matter on which such a suspicion is based, or
(b) otherwise complies in good faith with subsection (2) or with a recognised code of practice,
such disclosure or compliance shall not be treated as a breach of any restriction imposed by statute or otherwise on the disclosure of information or involve the person or body making the disclosure in liability in any proceedings.
(8) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling it is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.
I move amendment No. 24:
In page 28, subsection (1), to delete lines 28 and 29 and substitute the following:
" 'money laundering' means an offence under section 31 of the Criminal Justice Act, 1994;".
I move amendment No. 25:
In page 31, subsection (4), line 35, to delete "of" where it firstly occurs.
I move amendment No. 26:
In page 37, between lines 11 and 12, to insert the following subsection:
"(2) On conviction by the District Court for an indictable offence tried summarily under subsection (1) the accused shall be liable to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both such fine and imprisonment.”.
What is the maximum penalty on summary conviction?
The court may impose a fine of up to £1,500 or imprisonment for up to 12 months, or both, on a person convicted following a summary trial.
Amendments Nos. 27 and 28 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 27:
In page 37, lines 30 to 34, to delete subsection (4).
I will not comment on the amendment until I have heard the Minister's response.
Section 51(4) provides that, where property has been stolen and the taking took place at different times, the separate takings can be tried together. However, the number of such takings that can be tried together is limited to three and the time between the first taking and the last taking must not exceed six months. The intention of the subsection is to allow for a number of counts, up to three, against the same person to be taken together where there is some proximity in time between the offences. This aspect can be understood in the context of habitual offences of theft, where there is often a pattern of offending.
These measures will have the effect of streamlining prosecutions and will cut down on unnecessary Garda work and court time. Very often, in investigating offences of theft, the Garda discovers that an accused has been responsible for other similar offences. It is not unknown for many offences to be taken into account by a court following conviction for one offence. Subsection (4) will allow three such offences to be included together. Amendment No. 27 would prevent this procedure and amendment No. 28 would remove the restriction on the number of takings which may be tried together. The provision also states that the takings must have occurred within a six month period. I explained that the reason for including the six month provision was to maintain some degree of proximity in time between the commission of the offences charged. Accordingly, I cannot accept the amendments.
On what basis has the Minister determined the six month period? It is a very arbitrary period, for example, it could be three, nine or 12 months. Has he received any advice from the Attorney General about this in the context of the constitutionality of this section, which appears to envisage that a series of offences can all be determined in one trial and may even require that they be so determined although they may relate to entirely different incidents? Has the Minister considered the prejudice that may arise in the context of an alleged offender having to confront a series of different offences committed during unrelated incidents in one trial?
My concern is that rather than this section facilitating the Garda in processing criminal court prosecutions more speedily, it will inevitably result in challenges by way of judicial review and constitutional challenge. The Minister may find it creates more difficulties than it resolves. What consideration has been given to this?
Obviously, the period had to be decided upon in an arbitrary fashion, but clearly regard had to be given to the proximity of the offences so the six month period was chosen. The considered view was that it would pass muster. The Attorney General's opinion on the legislation was taken. He did not express an adverse view of section 51. I am confident, therefore, that section 51 will stand up to a subsequent challenge in the courts. As Deputy Shatter will know, there are no guarantees, particularly on constitutional matters. However, in so far as I can gauge, we can be confident the provision will hold.
I am concerned about the provisions in this section, in particular the reference to the separate takings being tried together. This is not obligatory and I presume in circumstances where the judge held the view that it could prejudice a fair trial, it may not be allowed. It also lacks logic, for example, if there were four takings in one month, three could be tried together and one would have to be forgotten. It is an arbitrary provision designed, I understand, to streamline the administration of criminal justice. I am concerned that in our determination to streamline, we do not prejudice and convict innocent people. I suggest the feasibility of the workings of this provision be looked at between now and Report Stage.
I have no difficulty examining the feasibility of the proposal. Obviously, it would be open to a trial judge to state, in relation to one of the offences charged, that the individual concerned would be prejudiced by taking the cases together. In those circumstances, it would be open to the court to direct that they be taken separately. There is no absolute requirement or statutory imperative on the court to insist on offences being taken together if it appears to the trial judge that it would be improper to do so. I will look at the feasibility of the matter and we can discuss Deputy Shatter's concerns on Report Stage.
I move amendment No. 29:
In page 38, subsection (1)(b), lines 32 to 37, to delete subparagraph (iii) and substitute the following:
"(iii) order an enquiry 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 will wait for the Minister's response.
Section 53 replaces section 45 of the Larceny Act, 1916, concerned with the restitution of property following a prosecution. However, the 1916 provision has been adjusted to permit a sum of money taken out of the possession of the accused when arrested and representing the value of the stolen property to be paid by the convicted person to the owner of the property which was stolen.
Under amendment No. 29 the court would be required to embark on an inquiry into the resources of the convicted person to ascertain the financial resources available to him or her. If these exceed the value of the stolen property, restitution would be ordered of an amount equal to that value. I have sympathy with the intention of the Deputy in tabling this amendment. However, it goes beyond the intention of section 53 which is designed primarily to deal with restoration of property.
It appears the amendment is unnecessary in any event since provision for the payment of compensation by the convicted person to the victim is already contained in section 6 of the Criminal Justice Act, 1993. This 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 loss or injury. This obviously includes the victim of theft.
The effect of section 53, therefore, taken together 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 under the 1993 for the difference. I hope the Deputy will accept the amendment is unnecessary and withdraw it.
I am very curious that apparently the Minister has absolutely no knowledge of how the section of the Criminal Justice Act, 1993, to which he refers works. I am not convinced it is working which is the reason the amendment is relevant. A week ago I received from the Minister a reply to a parliamentary question in which I sought to ascertain how many compensation orders had been made to date under the 1993 Act, how much had been paid in compensation under the Act and how many applications to the courts had been made under the 1993 Act. I received the enlightening reply from his Department that this was not known. No records are kept or maintained. The Courts Service Board did not know the answer either. Considering the board has only been in operation for some 18 months to two years - though this Act has been in force for years when we did not have such a board - I would have anticipated that in undertaking work in relation to this Bill and in dealing with the amendments in the names of Deputies Timmins and Enright, the Minister would have sought some information as to how well the compensation provision in the legislation is working. Most victims of criminal offences do not know it exists. They are not encouraged to utilise it and orders are very rarely made by the courts.
There is little point to enacting legislation to provide compensation for victims of crimes if the principal Government Department concerned has absolutely no idea how that legislation is working some nine years after it was enacted.
I am pleased that Deputy Shatter is enlightened by my Department's lack of knowledge. The Criminal Justice Act, 1993, does not just provide for an individual to make an application to the court for compensation. The court, of its own volition, may decide to make an order for compensation irrespective of the fact that there is no application before it from the victim. This provision requires the court to embark on an inquiry into the resources of the convicted person. There is a provision in an Act I brought before the Oireachtas that requires a court to embark upon an audit of the assets of a person convicted of drug trafficking offences where it deems that to be appropriate.
There is some merit in a court embarking on an inquiry into the convicted person's assets in order to see whether or not compensation should be paid or whether an order to that effect should be made. There is already provision for the order to be made unilaterally or following an application by the victim. The Criminal Justice Act, 1993, does not provide for an inquiry to be conducted into the individual concerned to see if the assets are sufficient, which is interesting. I will have a look at it and perhaps we will discuss it again on Report Stage.
Is the Minister in a position to tell the committee how many compensation orders have been made under the 1993 Act or how many victims have benefited?
Deputy Shatter will be well aware that the Courts Service Board has only been in operation for a very short time. While we have made resources available to the board in order to bring it into the 21st century in terms of IT, we have not got there yet. No doubt, before this century is out, before this decade is out or maybe before the next two years are over, that will be done.
We are dealing with a plethora of criminal legislation. This is an important section. I welcome the fact that section 53 is before us. Can the Minister explain why neither he nor his Department has any knowledge as to what orders, if any, and in what amounts annually have been made under the 1993 Act? It has nothing to do with the Courts Service Board which was not in existence two years ago. I would have thought this was of relevance in ascertaining whether the Act was working or not, whether or not offenders are having to make payments under it and whether or not victims of crime are benefiting.
The difficulty is that we did not have IT in the courts and we only provided the necessary resources to the Courts Service Board in recent times to enable the introduction of IT. There are hundreds of cases at District Court level every day which involve criminal offences and it has just not been possible to date for this information to be collated and forwarded to the Department. The Deputy will be better aware than I that the District Court is not a court of record and therefore we do not have records of what compensation orders were made by it. All I can say to the Deputy is that IT is being installed to enable the Courts Service provide the information he seeks. Information like this is not recorded in such a way as to be returned to the Department. It is as simple as that and it has been that way for many years.
This will be revisited on Report Stage.
Until the early 1980s when I began to ask parliamentary questions about outcomes and numbers of different types of family disputes dealt with in the courts no statistics were collated. I would expect a Government that knows what it is doing and a Minister who achieved office because of the phrase "zero tolerance" to show some interest during four and a half years in office in ascertaining what, if any, compensation the courts order in favour of victims of crime. I am absolutely astonished.
This has nothing to do with IT, it has to do with ensuring the courts make a manageable record of court orders made in criminal proceedings that is available for research. I would have thought in drafting this Bill, which has had a long gestation period, that if the information was not available, given the multiple committees and consultants he has examining a broad range of things he would have appointed a researcher to find it out. Perhaps that should happen now.
For the very first time during the life of this Government the resources have been provided to a newly constituted Courts Service Board to enable it install the information technology which will allow the information to be gathered. I still could not guarantee that all information from every District Court in the land would be gathered on a daily, weekly, monthly or yearly basis. It is just not possible in a court of so many jurisdictions which is not a court of record.
How stands the amendment Deputy Shatter?
I understand the Minister is willing to look at the issue of courts having regard to the resources of an offender and on that basis we will return to it on Report Stage.
I move amendment No. 30:
In page 39, to delete lines 37 to 46 and in page 40, to delete lines 1 to 8.
There appears to be a departure from the normal rules of evidence where a criminal trial, according to the Constitution, normally proceeds under oral evidence where a witness can be cross-examined. What evidential value does the use of an affidavit by an accountant in a form which is likely to be comprehended by the jury - referred to in subsection (f) of this section - have? Will the Minister comment on the fact that it appears to be a departure from the normal rules of a criminal trial?
Section 54 of the Bill is an innovative provision and is designed to afford the greatest amount of assistance to juries in considering evidence which may be complex or technical. One thinks immediately of fraud cases which are normally complex and may involve hearing a lot of evidence. The section provides that the judge has discretion to order that the jury be provided with certain material to assist with its deliberations. It also provides that the judge may order that they be given any document which he or she considers may be of assistance to them, including in appropriate cases an affidavit by an accountant setting out in a comprehensible form any transactions by the accused, or others, which are relevant to the offence. The accountant may also be required to explain relevant accounting procedures in an affidavit. When the prosecutor proposes to apply for an order in relation to such a document the defendant will have an opportunity to examine it and to make representations in relation to it.
Amendment No. 30 seeks to remove these particular provisions. As the aim of section 54 is to assist juries, it seems appropriate that in relevant cases accounting procedures, particularly transactions by an accused which a jury might not otherwise understand, should be explained to them. How else could a jury render a proper verdict in complex cases unless it understood the evidence presented in court? I emphasise that it is always for the judge in the case to decide if the jury requires assistance and what that assistance should be.
Furthermore, the defendant will have an opportunity to see the documents in question and to make representations to the judge on them before the jury gets them. On the whole, I am in favour of retaining the provision and I cannot support the Deputy's amendment.
It appears to be a departure from normal procedure. Can the Minister cite other cases in which that type of documentation would be used in a criminal trial?
As I said already, the procedure itself is innovative. There have been many cases over the years in several jurisdictions that, in the end, proved so complex for juries that they just threw their hands in the air when asked to make a judgment beyond a reasonable doubt. They could not do so because the cases were so complex. The objective of the provision is to try to give juries assistance in coming to conclusions on what can be very complex matters. For example, in cases involving embezzlement and other such offences during which the jury becomes utterly confused, the judge would be in a position to make a synopsis for the jury to enable its members to interpret matters, for example, the accounting procedures. It is not as if the defence would be denied that documentation. It would be furnished with the documentation as well. Therefore, the objective of the exercise is to simplify the matter for the jury.
This provision implements a recommendation of the Government's advisory committee on fraud. It also meets some of the proposals put forward by the Law Reform Commission. In framing their recommendations, those two bodies had in mind serious fraud trials in which jurors faced an immense task in trying to follow most complex evidence. The views of the Committee on Court Practice and Procedures was sought concerning the recommendations of the advisory committee and the overall view of the committee was that the trial judge should be empowered to order all the documents to be supplied to the jury. The committee also considered that it might be useful for the jury to have the transcript of the opening speeches, the transcripts of parts of the evidence and a copy of the judge's summary or parts thereof.
It should be noted that the proposal in this section extends beyond the specifics of fraud trials to include the trial of any offence on indictment under the Bill. There is great merit in this provision. It is to simplify the matter and make the case intelligible to the lay person on the jury.
I will not press the amendment, Chairman.
I am very disturbed by section 54 in its entirety. We are willing to come back to deal with this section, presumably when the amendment is dealt with, but what is being proposed is extraordinary and the Labour Party amendment is very wise. This provision is a classic example of what happens on occasions with justice measures. When there is a need for a change in the law in a narrow area, an attempt is made to introduce something with broad brushstrokes to a range of areas where it is not necessary. There is no doubt, in the context of serious fraud trials, that there is a need for measures to ensure that juries understand the issues involved.
I seriously question the wisdom of what is being proposed and I will outline certain difficulties to the Minister. Subsection (3) is much more alarming than subsection (2). It is not clear from the legislation how subsection (3) will work. It provides that:
Where the trial judge has made an order that an affidavit mentioned in subsection (1)(f) shall be given to the jury, he or she may in an appropriate case, with a view to further assisting the jury in its deliberations, require the accountant who prepared such an affidavit to explain to the jury any relevant accounting procedures or principles.
The subsection does not say if the explanation is to be given in the privacy of the jury room or in open court. That is not clear. The sanctity of the jury room has been protected for centuries. Will an accountant wander into a jury room while juries engage in deliberations about the outcomes of serious trials and lecture them on what principles are applicable to relevant accounting procedures? Who is to monitor what the jury asks the accountant and the responses received? Who is to say, if that procedure is adopted, that the entire jury process will not be undermined? I am assuming it is not intended that the accountant will do this behind closed doors with the jury, but that is not indicated in the legislation.
On the basis of the section, the judge can authorise the accountant to go in and address the jury. That is an extraordinarily dangerous proposal. I am sorry that I always raise constitutional issues but, first, I suspect that the provision is unconstitutional on the basis that a criminal trial must be held in open court. This would be seen to be a contribution to a criminal trial. Second, the accountant who behaves properly would be open to an allegation that, by addressing a jury behind closed doors, he suborned the jury.
If adopted, it is likely that if there was a major fraud trial - never mind any other type - this procedure would guarantee grounds of appeal that the Supreme Court would uphold in favour of those charged with the offence. I do not believe subsection (3) has been thought out properly. If it is suggested that the judge will direct the accountant to address the jury in open court, how will that work? Will he do it from the witness box? Will he be asked questions or make a speech to the jury? If the lawyers for the prosecution or defence disagree with what the accountant says, can they stand up in court and contradict it? Can the accountant be put in the witness box and cross-examined?
I am sure the Minister will not be slow to correct me if I am wrong. Unless I am missing something and there are some other connecting sections that clarify the matters I have raised, it is an extraordinarily ill-advised and ill-considered provision. Instead of facilitating the prosecution of criminal offences, it will undermine prosecutions and provide, because of inherent problems, grounds for appeal. I did not understand that we were to change our system of jury trial so radically as to allow people walk into the jury room and tell the jury what certain bits of evidence mean. I assume the Minister did not understand that was what he was doing, but that is what the wording of the section appears to indicate.
Subsection (2) deals with the trial judge determining that a document should be prepared by an accountant. Hearing applications can "take into account any representations made by or on behalf of the accused". Can the trial judge take into account any representations made by or on behalf of the State Prosecution Service? Is the accountant to be part of the State Prosecution Service or independent of the service or the State prosecutors and the defendant's lawyers? If the accused's lawyers object to a particular matter going into the affidavit, can the trial judge simply overrule those objections or will there be a trial within a trial? Would that prolong criminal proceedings rather than facilitate them being dealt with in an efficient manner?
I have major concerns with section 54(1), which I will deal with later. The Labour Party was right to table an amendment to have these provisions removed. They have not been well thought out or considered. Whatever about amending or considering a more comprehensive provision to deal with the matters in section 54(2), what is proposed in section 54(3) is extraordinarily ill-advised.
I recommend the Minister accept the Labour Party amendment and return on Report Stage with whatever new proposal he may have to try to tidy up the Bill and address the issue about which he has a genuine concern, which I share, of trying to ensure juries in major fraud trials are acquainted with the complexities of the financial evidence which confronts them. The type of proposal the Minister has put forward should not apply to any criminal trial dealing with the broad brush of issues which the Bill seeks to address.
Everyone acknowledges that some very complex matters arise in criminal trials involving fraud. As I indicated earlier, there have been cases which have collapsed because juries became bewildered by the complexity of the documentation, the mass of documents dealing with accountancy procedures and so on. We are trying to prevent that, which is why we are introducing a simplified provision which will enable these matters to be explained to the jury in a straightforward and simple manner. It is one of the linchpins of the legislation. It is important that this specific provision gets through because, if it does not, juries will continue to be completely bewildered by masses and mountains of paper.
Deputy Shatter appears to be under the impression for some reason that it would be possible for an accountant to explain accountancy procedures to the jury in the jury room in the absence of counsel for the defence. That will not be possible. The key to this is section 54(1), the first words of which say: "In a trial on indictment of an offence". In other words, these are matters which will occur during the trial. There will be no question of people going to the jury room in the absence of counsel for the defence or for the prosecution. This would be entirely wrong and would never stand up. The intention is clear, namely, that evidence would be given in open court in a trial on indictment, just as the legislation states.
Obviously an accountant in such a case would be open to cross-examination by the——
The words, "In a trial on indictment" do not apply to subsection (3).
I did not interrupt Deputy Shatter. It is clear to me that it refers to a trial on indictment, to what happens during the course of the trial. It may not be clear to Deputy Shatter but it is clear from any objective reading of the section that it refers to a trial on indictment and cannot happen in the absence of counsel for the prosecution and the defence. In other words, it must happen in open court.
Obviously the accountant concerned would be subjected to cross-examination if that was the wish of the defence counsel, and that would be perfectly fair. Obviously the judge would make a decision in the appropriate case whether it is necessary for an accountant to give the type of information which I have specified and which is specified in the legislation. We can make if more explicit if Deputy Shatter believes the legislation is not sufficiently explicit in terms of the evidence given by the accountant in open court.
Subsection (1) sets out clearly a series of things which may occur in the context of a trial on indictment and orders the judge may make. All the orders relate to the provision of transcripts and documents and not to anything else. It also makes clear that subsection (3) covers trials on indictment, in other words, trials for serious offences. It states that where such an affidavit exists "in an appropriate case, with a view to further assisting the jury in its deliberations, [the trial judge may] require the accountant who prepared such an affidavit to explain to the jury any relevant accounting procedures or principles". That does not say anything about being in open court or in the witness box. It does not state that the accountant is available for cross-examination. It states simply that the judge can authorise the accountant to have a chat with the jury.
No.
If the Minister intended something different, that is not contained in the Bill.
I disagree completely because subsection (3) refers specifically to subsection (1)(f) which refers specifically to a trial on indictment. There is no question about it.
A trial on indictment——
I take that to have its ordinary English meaning, which is during the course of the trial, not after it or after the jury has retired to the jury room. It is during the course of a trial. It states "in a trial on indictment". There is no point arguing about semantics. We can make it more explicit if Deputy Shatter wishes, but that is my honest interpretation of it.
The Minister confirms by his response that this is a defective section. Normally when he becomes a little agitated, it means he acknowledges there is something wrong with the legislation. This is Committee Stage of a Bill. It is not a major crime to produce a proposal. I do not understand why the Minister always feels the need to defend. This is a lengthy Bill and there is something wrong with this section. It will not work the way the Minister wants it to. There are many good things in the Bill. It is not a matter of scoring political points. I have a concern about this section, especially subsections (2) and (3), more so about the latter than the former. Whatever the Minister intends it to say, it does not say it.
My suggestion, which is reasonable and which will not result in the Minister losing face, is that he accepts the Labour Party amendment. This section, especially subsection (3), should not remain in the Bill and, if the Minister wishes to table something of greater detail on Report Stage, so be it. It may be that Deputy O'Sullivan will take the view that, having heard the discussion, she does not want to press the amendment and that the matter will be left for the Minister to deliberate on until we reach Report Stage. If that is the case, so be it. I wish to be absolutely clear. Section 54(3) is not only defective but dangerous in the context of the type of prosecutions the Minister wishes to be successful. I do not suggest he has deliberately produced something flawed. There is a problem with it and it needs to be addressed. It should be possible on occasion in these committees for a Minister to say that perhaps there is a problem, that he will examine it and obtain further advice on it to see if it should be changed or retained.
That is something I always do but I do not agree with Deputy Shatter on this occasion. In any event, we will examine it before Report Stage to see if changes are required and we can discuss it again.
As the person who moved the amendment which simply sought to delete from section 54(1)(f) to the end of the section, I believe the Minister needs to re-examine it because, clearly, there are questions which I and Deputy Shatter have raised which have not been answered satisfactorily. Among these are the question of cross-examination and the clarity DeputyShatter seeks regarding where evidence is given, as well as the question of exactly how the accountant will operate in court and whether he or she will be subject to cross-examination and the normal procedures in a criminal trial.
Will the Minister re-examine this because both Opposition parties have serious concerns about it, especially given that it appears to be a departure from procedure in the normal course of criminal trials under the Constitution? It is something to which we need to give serious attention before it is included in any legislation, despite the fact that probably we all understand the intention as being to make matters as clear as possible for the jury. We also understand these can be difficult matters. We need absolute clarity on how this affidavit is to operate and the precise procedures which will operate within the trial.
I disagree with Deputy O'Sullivan's interpretation as well, but nonetheless, we will examine it to see——
That is the problem. We all can have our own interpretation of this wording.
I believe there is only one interpretation but I will not be picky about it. We will examine this to see if it can be made clearer.
I wish to make some brief comments about the section as it stands, especially section 54(1). Will the Minister explain the benefits of furnishing to a jury a transcript of the opening speeches of counsel? In such speeches they tell the court that certain facts will be proved or established. It may be by the time evidence is concluded that some of what counsel said in their opening speech, particularly prosecuting counsel, may not be established. The closing speech of counsel on the conclusion of a trial, prior to the jury being charged by the judge, may more accurately reflect the actual evidence heard in court rather than the work counsel hoped would be presented in court as outlined in their opening speech. I am curious to know why a transcript of the opening speech of counsel is to be provided. What purpose does the Minister think that would serve other than to confuse? Will the Minister confirm that while there is a reference to the transcript of the whole or any part of the evidence given at the trial, there is no reference to the transcript of the closing speech of counsel being given to the jury? Was that deliberately excluded and, if so, why?
I accept that in major fraud trials the provision of documentation to juries may be of help. Having heard evidence, the jury sits down, deliberates and discusses with each other. It is not that they get lost in a morass of paper work and mountains of documentation. Has the Minister concerns about that? If one particular juror happens to be more qualified than others in a particular area, has the Minister considered the risks of a jury being given documentation of a nature that they do not currently receive?
Section 24(1)(c) refers to summaries of evidence produced at the trial. I presume that is summaries of the evidence agreed between the prosecuting counsel or, perhaps, the defence. Will the Minister clarify what is meant by "summaries of evidence produced at the trial" in the context of what is furnished to a jury and ensure that when juries deliberate, they do so on the basis of evidence heard by them and not on some potted version of the evidence?
Any summary of the evidence which is produced to the members of the jury would have to be agreed between the defence and the prosecution. With regard to the question of the closing speeches being made available to the jury, it can be assumed that the jury would have a relatively good memory of what the closing speeches were since they would come at the end of a trial. However, if there is a 104 day trial dealing with fraud, it is possible that the jury would not remember precisely what was said by way of opening speeches. However, it should be noted that there is provision, which is not explicit, in section 54(1)(f) for the closing speeches to be given to the jury because the provision refers to "any other document that in the opinion of the trial judge would be of assistance to the jury in its deliberations". That would include the closing speeches if the judge deems it proper. This is subject to the trial judge deeming the information helpful to the jury and, obviously, the judge must have regard to the whole question of fairness and natural justice.
I disagree with the Minister. The reference in section 54(1)(f) to "any other document" is open to the interpretation of a document already in being, which is of relevance by way of evidence in the proceedings. In regard to closing speeches of counsel, there may not necessarily be any document; a speech will be delivered by counsel. The only way the closing speech of counsel may be available in a document is if there is a transcript of it. Transcripts are dealt with in paragraph (d) which refers only to a transcript or whole or any part of the evidence. It seems there is no provision for the closing speech of counsel to be furnished to the jury.
I suggest that if we are going down this questionable route, the closing speeches of counsel and the charge of the judge should be made available by way of transcript but not the opening speeches, which seek to anticipate evidence that may be presented in court. During the course of the court hearing, that evidence may not be presented or what a prosecuting counsel envisaged would be proved may not be proved. Some aspects of the case may, under cross-examination, be undermined. I am concerned that furnishing the opening speeches of counsel to juries could distort the outcome of criminal trials and it is a dangerous precedent. I suggest the Minister reconsiders this issue.
In the context of agreed summaries, I suggest that on Report Stage the word "agreed" be inserted in the section before the word "summary". I appreciate that may be the Minister's intention but we are dealing with criminal legislation and it is important that we are exact in the manner in which we deal with it. I have great concerns with the entire section 54. We will not resolve that issue today but I urge the Minister to look again at subsections (2) and (3) on the grounds we discussed. I also urge him to reconsider subsection (1) and its difficulties and flaws in terms of the problems it may create in ensuring fair hearings in criminal trials and the constitutional difficulties that could arise if it is implemented in the manner prescribed in the section.
I have never come across a legislative provision which is entirely exhaustive. I have given the Deputy my interpretation of the provision, which I believe is correct. My view is that there is provision for the transcript of the closing speeches to be made available. In any event, I said we will look at section 54 prior to Report Stage and discuss these matters further with a view to improving the legislation if that is deemed necessary. However, I stand by what I said.
Section 55 is an interesting section but I wish to raise a problem with it. Section 55(1) states:
A person who uses an assumed name with the intention that it be used in the course of or in connection with the commission of an offence under this Act is guilty of an offence.
If I decide to call myself "Joe Bloggs" and I leave this room, bump into Deputies Barnes and O'Sullivan and ask them to call me "Joe Bloggs" for the next couple of weeks because I am fed up being called "Alan Shatter", am I open to prosecution? How can anyone prove that somebody who adopts an assumed name has the intention of using it in the course of or in connection with the commission of an offence?
I am sure it will have to proved.
How will it be proved? This, of itself, is an offence. It is not that I have written a cheque in an assumed name. I have adopted a different name and I have an intention, although I have not done anything. It is an esoteric offence. Will the Minister clarify how the Garda Síochána will identify people who have committed this offence? Do we trawl through everyone who has changed their names? If I decide that instead of being called "Alan Shatter" I want to be called "Aloysius Shatter", does it mean I have an assumed name and there is a possibility that I might have a certain intention and, therefore, I should be prosecuted?
Thousands of men and women are living in stable relationships where the women frequently are separated spouses. A woman may change her name by deed poll from Mary Smith to Mary O'Neill because she is living with a John O'Neill. She may have bank accounts in the name of Mary O'Neill and may be known to many people as Mary O'Neill, but she could have a birth certificate which shows that is not her name and a marriage certificate which shows that if her name is not the one on her birth certificate that perhaps it should be the name of the husband from whom she is living apart. In this section, is the Minister criminalising everyone who adopts a new name because it suits his or her social position or family relationships or someone who goes to the trouble of completing a deed poll? Are we going to trawl the central office of the High Court to ascertain how many people have changed their name by deed poll in case they did it with the intention of using it in the course of or in connection with the commission of an offence? This section is daft and should be removed from the Bill.
The purpose of this section is to create a new offence of dishonestly using an assumed name. In this section, I am not criminalising any person for changing his or her name by repute or otherwise. If a person changes his or her name with a view to committing an offence under this legislation, there is an intention there to commit a serious offence and it should be criminalised. If a person uses a false name in order to obtain money from a bank and that is discovered prior to the individual signing a document, surely the individual should be charged with an offence. One of the offences with which the individual should be charged is using an assumed name with the intention of committing an offence. Is Deputy Shatter saying such an individual should be let out the door and not charged with any offence?
Someone could be charged with attempted fraud in those circumstances. In this section, the Minister is creating a new offence based on nothing other than someone having changed his or her name. This House is an interesting example of this. Many Members of this House who may have been known as Dick or Paddy over the years, might, when suddenly appointed Minister, want to be known as Richard or Patrick. In such a case, what is the assumed name, the real name and the intention?
There are occasions when Ministers for Justice, coming towards the latter days of their Ministry, succumb to creating criminal offences which perhaps on occasion those too close to the difficulties in the justice area think are necessary, but which have the potential to criminalise half the population. This is a daft and dangerous provision. Assume a completely mad Government was in office in 20 years' time, it could trawl around to find criminal prosecutions to bring against people. In civil rights terms, this is a daft provision. I do not know whether it has been proofed against the European Convention on Human Rights, and I would be interested to know whether it has or not. If not, I suggest someone should do that. This provision should not be in the Bill.
I have no doubt the Minister's intentions are good. I am not suggesting he is trying to criminalise people he does not wish to criminalise. I am saying that the section does not work. If the Minister wants to make a criminal offence of someone dishonestly using a name or taking some action, this is not the correct provision. In this provision anyone who changes his or her name could be put under suspicion and be at risk of being prosecuted.
That is not correct. The provision is quite clear. A person who uses an assumed name with the intention that it be used in the course of or in connection with the commission of an offence under this Act is guilty of an offence. In other words, the change of name must be linked to the intention to commit an offence under this Bill. There is no question of criminalising a person just because the person changes his or her name. That is not the position.
I accept that two difficult offences to prove in criminal law are the crimes of attempt and intention. I am not denying these are difficult concepts to prove, but that does not mean there are not several offences in our existing criminal law which have those ingredients, that is, that it can be a criminal offence to intend to do something and it can be a criminal offence to attempt to do something. It is necessary that these matters be criminalised for the simple reason that if they are not, it would not be an offence to assume another person's name to intend to commit a criminal offence or it would not be an offence to attempt to do something with a view to committing a criminal offence. That does not stand up to logical reason.
The Deputy can argue the toss for hours on end that this is a difficult provision to prove. I am not denying that attempt and intention are difficult to prove, but the reality is that in the final analysis intent is an essential ingredient of the commission of an offence. In those circumstances, it would be unwise to remove this provision from the legislation because the offences contained in this legislation are extremely serious. A person who changes his or her name with a view to committing an offence under this legislation should pay the penalty.
The position is that intent is terribly important in the criminal area, but normally an intent must be accompanied by a criminal act. An intent accompanied by a change of name has never in the history of criminal law of itself warranted anyone being prosecuted. This is a dangerous and extraordinary provision. I note the Minister has not answered whether this has been proofed against the Convention on Human Rights. I suggest it should be. The Minister should reconsider this provision before Report Stage.
I am very careful with provisions like this. As the Deputy rightly pointed out, we are talking about legislation in the criminal law area. All of these provisions have been looked at by the Attorney General on request and he has given his advice which I have taken. I am satisfied this is a serious offence which merits being left in the legislation.
I move amendment No. 31:
In page 41, subsection (2), line 13, to delete ", document" and substitute "or document".
This is a technical amendment to correct a fine error.
I move amendment No. 32:
In page 41, subsection (1)(a), line 32, to delete "territorial unit" and substitute "a territorial unit within it".
Is it a technical amendment?
The purpose of this amendment is to ensure consistency in the Bill.
In the context of what we have been discussing, I ask the Minister to also reconsider this section. It appears to allow into evidence in proceedings a document from outside the State signed by a lawyer practising in the relevant state, or a translation certifying it is correct by a person appearing to be competent to so certify. This falls into the category of the concerns expressed by myself and Deputy Shatter. It allows documents to be used in evidence, in this case documents certified by somebody appearing to be competent. I am concerned that this, to use the Minister's words, is innovative, and departs from the normal procedures in a criminal trial. I ask the Minister to reconsider this section for Report Stage.
Will the Minister do so?
We are trying to streamline procedures. The documents referred to would have to have the approval of the court, otherwise they could not be admitted. If we proceed down the road Deputy O'Sullivan suggests, it would be necessary to prove the documents in all cases. She seems to have a concern about this. I will look at this to see if it can be strengthened.
Will the Minister explain the reason for this section? My understanding of the reason for it is that it provides for an amendment of the Status of Women Act, 1957 which states:
No criminal proceedings referred to in subsection (i) or (ii) shall be taken by a spouse against the other spouse except by or with the consent of the Director of Public Prosecutions.
I would like the Minister to explain what is contained in subsections (i) and (ii). My suspicion - I am open to correction - is that this arises from the fact a number of wives have over the past number of years sought to initiate criminal prosecutions in circumstances where the DPP has been unwilling to do so against husbands who were committing bigamy. This section is designed to address that issue and prevent them from doing so. I may be wrong but perhaps the Minister will clarify the matter for me.
I also want to ensure there is nothing in this provision which would prevent a victim of assault, in a domestic or other context, from issuing a private prosecution - in this context, presumably, it would be a wife - for assault against a violent husband in circumstances where the Garda have not been willing to issue an assault summons.
This section has nothing to do with assault, it relates to the taking of property. The purpose of the section is to extend the existing provisions regarding the taking of property from one spouse by another. Section 60 extends section 9 of the Status of Women Act, 1957 to the effect that the offence of theft will apply to all cases of theft by one spouse from another. It currently only applies where the spouses are actually living apart or where property was wrongfully taken when one spouse was leaving or deserting. The section provides that proceedings are not to be instituted except by or with the consent of the Director of Public Prosecutions for obvious reasons. It implements a recommendation of the Law Reform Commission.
On that issue, it obviously does not relate to the matter about which I was concerned. Does that mean if a wife is not being properly supported by her husband and she decides to sell a piece of antique furniture to generate funding for herself and her children the DPP might be able to institute a prosecution against her? I am referring to the situation in circumstances where the two people are still living under the same roof.
I am conscious of the fact that criminal law could be utilised in a family dispute which is something we do not want to happen. Therefore, we have provided in this legislation that for any case of one spouse stealing from another to result in a criminal prosecution would require the consent of the Director of Public Prosecutions. Deputy Shatter will agree that there should be provision in our criminal law to provide that it is a criminal offence for one spouse to steal from another.
Presumably the Director of Public Prosecutions in deciding whether a prosecution should be brought will only be concerned with the proofs available and not with the domestic background.
True.
There is no provision here which prevents the Director of Public Prosecutions from prosecuting in circumstances where there is a marital dispute between the parties. I did not realise this is what the Minister was addressing initially but I have a growing concern as I hear him speaking. Situations arise in marital disputes whereby husbands deliberately try to leave wives impecunious and often wives try to resolve problems and avoid going to court. Interim situations arise regarding particular paintings, antique furniture or silverware which are often sold by the wife to generate funds for herself and the children pending court proceedings. A similar situation may arise regarding a particular piece of jewellery. Are we now bringing criminal law into an area which up to now was exempt and should we be doing so?
The Director of Public Prosecutions would have to bring the proceedings himself or would have to consent to the proceedings being brought by another. He is not solely motivated by the letter of the law. Deputy Shatter will be aware that the Director of Public Prosecutions is also concerned with the spirit of the law and in this context the whole question of public policy would come into play. I would not anticipate a prosecution in a situation where it would be detrimental to public policy. This provision is to provide that if a person wilfully steals from his or her spouse then the criminal law should take effect. It is not intended, obviously, to interfere with the familial arrangements or to become an alternative to judicial proceedings of a family law nature. It is merely to criminalise theft. I can see why Deputy Shatter is concerned that this might mitigate against, for example, a wife who is seeking to support the family by selling some of the family silverware because the husband is not supporting them. That is not the intention of the section. I do not believe that would be its effect. We may be able to be more specific in that respect and perhaps we should qualify it further. We will take another look at it.
The Minister should do that. In the context of the DPP dealing with this issue, presumably he is not going to receive representations from the wife or her lawyer in these circumstances to consider whether criminal prosecutions should be brought. It is going to be a very bland issue of proofs. In certain circumstances, the DPP may feel under pressure to bring proceedings. I know of family situations, in the context of husbands and wives, where the wife has been forced to sell some property in the family home. I am referring here to a woman married to a member of the Garda Síochána. That member of the Garda has tried to utilise legal provisions to put his wife under unfair pressures. This type of section creates difficulty. I am not sure there is any great public demand for it. I welcome the undertaking by the Minister to reconsider it but I would ask that he not simply consider qualifying it but that he consider whether we need this section at this time. I am not aware of any great public demand for law reform in this area. It may be that some bodies have suggested it is necessary from an academic perspective. I am not aware of any public demand to do this. Perhaps the Minister will consider it further.
I move amendment No. 33:
In page 42, line 24, after "imprisonment" to insert "for a term not greater than that prescribed for the corresponding offence under the Criminal Justice (Theft and Fraud Offences) Act, 2001”.
We are seeking to place a limit on the term of imprisonment under the Defence Acts as provided for in general legislation.
We will look at that.
I move amendment No. 34:
In page 42, before section 62, to insert the following new section:
62.-The Schedule to the Bail Act, 1997, is hereby amended by the substitution, for the matter contained in paragraph 17, of 'Any offence under the Criminal Justice (Theft and Fraud Offences) Act, 2001.’ and by the deletion of the section headed ’Forgery etc. offences.’.”.
I move amendment No. 34a:
In page 44, between lines 23 and 24, to insert:
No. 1 of 1963Official Secrets Act, 1963Sections
This is a technical amendment.
