The Minister has already spoken to the amendment. I, therefore, call Deputy Jim O'Keeffe.
Criminal Justice Bill 2004: Committee Stage (Resumed).
NEW SECTIONS.
Debate resumed on amendment No. 118:
In page 25, before section 24, but in Part 4, to insert the following new section:
"41.—The following section is substituted for section 15 of the Principal Act:
"15.—(1) Any person who possesses or controls any firearm or ammunition—
(a) with intent to endanger life or cause serious injury to property, or
(b) with intent to enable any other person by means of the firearm or ammunition to endanger life or cause serious injury to property, shall, whether any injury to person or property has or has not been caused thereby, be guilty of an offence.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for life or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate,
and the firearm or ammunition concerned shall be forfeited.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under theFirearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice Terrorist Offences) Act 2005.
(4) Where a person (except a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make a sentence of imprisonment of not less than 10 years unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated,
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Section 27C of the Firearms Act 1964 applies in relation to proceedings for an offence under this section and to any minimum term of imprisonment imposed in those proceedings.".".
—(Minister for Justice, Equality and Law Reform).
I have circulated my speaking note. I hope everyone has received a copy.
It is being photocopied. We do not have it in front of us.
It will be available momentarily.
I move amendment No. 1 to amendment No. 118:
In the inserted section 15(1)(b), to delete “person” and substitute “person,”.
This section deals with the updating of penalties for possession of firearms with intent to endanger life. The issues we are discussing apply to a number of the earlier updated penalties in relation to other aspects to do with firearms. I am in favour of increasing penalties for possession of firearms with intent to endanger life and otherwise. However, I question whether the proposed penalties should be minimum or mandatory on the basis that, given the exceptional and specific circumstances specified in subsection (5), such penalties can and very often do end up neither minimum nor mandatory.
I have had an opportunity to study the note the Minister circulated since our last discussion. Amendment No. 11 to the amendment relates to what I will refer to as the get-out clause contained in subsection (5) and proposes that it should not apply where a person has been convicted of a second or subsequent offence under this section. I have listened to the Minister's comments on the need for such a clause. I can envisage a situation where, on conviction for a first offence, a person could make a reasonable case for not being subjected to the mandatory minimum penalty and where a judge would feel such was inappropriate. I wonder what is the record to date in that regard. Under the Drugs Act, it was considered appropriate to apply the clause in only 4% or 5% of cases. As the Minister mentioned, it is now used in approximately 20% of cases. Taking that record into account, we should provide that on conviction for a second offence the get-out clause should not apply.
In his circulated notes the Minister refers to the constitutional imperative that judges have discretion to consider not only the offence but also the individual's circumstances. He has stated that the effect of my amendment would be to remove such discretion from the courts in circumstances where a person is found guilty of a second or subsequent offence under the section. He has also said that, given the constitutional requirement that the Judiciary not be tied to carry out an action which is manifestly unjust, he does not consider the amendment appropriate. I would like to put forward the following point for serious consideration. Is there a constitutional imperative to provide for judicial discretion? I do not believe that is the case. We have in place provisions relating to a number of offences to which judicial discretion does not apply, including murder. In a case where a person is convicted of murder, the judge has no choice other than to impose a life sentence. One might say there are many options open to the parole board and Minister at a later stage but the sentence to be handed down in such cases is life imprisonment.
Under section 49 of the Road Traffic Act, a person convicted of drink driving is subject to a mandatory penalty of disqualification from driving, something which can have very serious consequences. There is no judicial discretion where a person is convicted for driving while over a certain limit. We are not required to legislate for judicial discretion. If there is not a constitutional imperative to legislate for judicial discretion, surely we are not being fair and just to anybody involved in one serious offence. The same applies in regard to a number of other sections. Surely we would be adopting a fair, reasonable and just approach which is constitutionally sound if in regard to the very serious charge of possession of firearms with intent to endanger life we were to provide that there be judicial discretion in the form of a get-out clause where a person is convicted of a first offence but that the Legislature may decide if the offence so warrants that the clause should not be applied in the case of a second offence. That is my case. I will not labour the point further.
I am not a constitutional expert, although I have studied the Constitution from many angles during the years as a politician, lawyer and the first Chairman of the All-Party Committee on the Constitution. Such a provision would be constitutionally sound and send a clear message from the Oireachtas. I, therefore, ask the Minister to give due consideration to amendment No. 11 to the amendment. All of the other amendments in my name to the amendment are of a technical nature and I put them forward for consideration by the Minister and Parliamentary Counsel.
I am sympathetic to the Deputy's point of view. If I were given the green light by the Attorney General, it would be my intention to accept such an amendment on Report Stage. In other words, I will consider whether what the Deputy is suggesting is constitutionally permissible, namely, that the get-out clause can be revoked in a case where a person is convicted of a second or subsequent offence on the basis that on being convicted of the first offence he or she received a clear warning of the consequences of reoffending. If all the constitutional angles can be accommodated in such an approach, I am sympathetic to it.
I would like to deal with a number of related issues. I am sympathetic to the intent encompassed by the amendment as proposed by Deputy O'Keeffe and I am pleased the Minister is addressing it. Subsections (3) and (6) of amendment No. 118 provide that the court, in imposing sentence on a person for an offence under this section, "may, in particular," have regard to certain circumstances. Would a possible way of addressing this matter be to substitute "shall" for "may"? Subsection (6)(a) deals with a person who has a previous conviction for an offence under the Firearms Act. It is important that we provide that it be mandatory for the courts to have regard to certain circumstances. This would go some way towards capturing the point made by Deputy O’Keeffe who put the case more succinctly and seeks to address the matter on two levels by also providing for a significant mandatory penalty clause. I support his amendment.
An issue we discussed on the last occasion and which I am putting back on the agenda is that rightly instanced by the Minister on that occasion, namely, the existence of a person with a reservoir of important information in uncovering more serious crimes and bringing to book more serious criminals. I would not like us to reach a situation where such an avenue would be entirely closed off and there would be no material benefit to an individual accused of having blown the whistle on another. Whether such a person sings like a canary or watches a spot on the wall, the consequences are the same. We must provide for flexibility to ensure there is leverage for the Garda in cross-examination and ultimately the courts in sentencing.
The Minister referred to a number of the amendments to the amendment.
As I must attend a Front Bench meeting, I request that I be allowed to make a brief comment. Having listened to the Minister's comments on amendment No. 11 to the amendment, I am heartened that he is minded to accept it on Report Stage, subject to further consultation with the Attorney General. For this reason, I propose not to move the amendment and instead resubmit it on Report Stage.
On the subject of amendment No. 11 to the amendment, we need to be careful in this regard because Deputy O'Keeffe's proposal to apply mandatory sentences to those who commit second or subsequent offences would apply to persons convicted of a second offence while serving a sentence. We should provide that the second strike rule would apply only if a person is convicted of a further offence following release from prison. For many years in the North those who reoffended after release served the outstanding part of their previous sentence before the sentence for the second offence commenced. While I have not done an analysis to determine the effectiveness of this approach or its implications for the State, other mechanisms are available to ensure the punishment for a second offence is greater than for a first offence.
On my amendments to the amendment, the Minister correctly summarised their effect. Amendment No. 6 to the amendment proposes the deletion of subsection (4) of the new section proposed by the Minister in amendment No. 118 and would, if accepted, remove the mandatory minimum sentence provisions. As the Minister indicated, the minimum sentence is not mandatory in all circumstances because a degree of judicial discretion is provided for when deciding whether to impose a minimum sentence.
I agree the courts and society must take a strong view on drugs and firearms offences, the two areas in which the Minister proposes to introduce mandatory minimum sentences. While I accept his proposal does not eliminate judicial discretion, it severely circumscribes the sentencing powers of the Judiciary. For this reason, I have no problem with increasing the maximum sentences available for these offences. We must, however, exercise care when legislating for changes in sentencing policy. This requires that we first examine whether the introduction of mandatory sentences in other jurisdictions had the desired effect. Members would favour the introduction of mandatory sentences if they were certain such measures would have the desired effect but the evidence from other jurisdictions suggests otherwise. In the United States, in particular, gun crime and the prison population have continuously increased since the introduction of mandatory sentences. This approach did not discourage the possession and use of illegal firearms or reduce the number of deaths caused by firearms.
How do we address this problem? My preference is that judges, in deciding on these cases, will continue to have discretion to take account of all the circumstances of the case, while also having discretion to impose a maximum sentence, which the Bill increases for some offences. Amendment No. 10 to the amendment would balance the increase in maximum sentences by providing that the judge must take various factors into account, namely, "the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm".
Deputies could cite cases in which the offender deserved a second chance. The proposal in subsection (4) of the Minister's amendment would condemn anybody involved in gun crime to a mandatory sentence, with all the implications such a decision would have for the sentenced offender. Having been placed in prison, those who are not members of a gang will join one and probably use drugs if they have not done so previously. Moreover, they will be educated further in the ways of the underworld, particularly if another of the Minister's proposals is accepted, namely, the provision to remove the possibility of pre-release or temporary release for persons serving sentences under this section.
Most decisions to give prisoners temporary release or commute parts of their sentence are taken following consideration of the prisoner's circumstances. For instance, an offender may have tried to make amends for his or her crimes while in jail or the authorities may wish to encourage him or her to avail of training to ensure a degree of stability in his or her family life on release to prevent families being punished. The prospect of early or temporary release is an incentive to prisoners to behave while in prison, learn from their experiences and benefit themselves and society. The purpose of prison, in addition to punishment, is to try to significantly diminish or eliminate the likelihood of reoffending. Training is offered to prisoners, both inside and outside the prison service to ensure a degree of stability when they emerge from jail. The introduction of mandatory sentences, by removing the possibility of prisoners being given temporary release to attend courses or funerals or become more involved in the life of their children as they grow up, also removes an important incentive.
Under the Constitution, judges are responsible for the administration of justice, including the determination of punishment. We should refrain from restricting a judge's ability to determine this based on circumstances. As legislators, we set the parameters within which the Judiciary should work. We should not be overly prescriptive. If we go down this road, we could have minimum sentences for every crime, of which I am not in favour. I favour a maximum sentence, allowing the Judiciary to take into account the circumstances of a case and suspend part or all of a sentence. If one is in breach of the terms of the suspension, one should serve the complete sentence, if needs be. This allows the judge discretion.
Mandatory sentences are popular. In the past, with regard to drugs offences, I called on the Judiciary to implement such sentences. One is seen to be hard on drug barons and mules but while they may be popular, these measures are not effective in most jurisdictions. Perhaps we should have examined their effect in more detail before we reached this stage. There are alternatives which we should consider.
I am grateful to the Deputies for their observations, running across the spectrum from Deputy Ó Snodaigh to Deputy O'Keeffe. I accept that each view is held in good faith and intellectually respectable.
It is not sensationalist to state firearms are more readily available than ever before. They are being used in a vicious manner on a scale the people have not seen before, although every firearms death is vicious and in the days of the Troubles firearms were used in an awful way. Most find it hard to grasp the existence of a new class in their twenties who watch violent videos all day, some of which I have seen. Knocking off an opponent is seen in a morally neutral way and there is a voyeuristic, pornographic interest in the casual nature in which characters who get in their way are killed. I do not know if the people concerned spend their days snorting cocaine while watching such videos. The viciousness with which they kill those who are seen as obstacles to their activities is difficult to comprehend. One wonders if the people concerned see themselves as rich magnates living off their ill-gotten gains in sunny climes in their 40s. Do they think beyond next week? Do they consider the moral implications of what they do or is there any moral dimension to their character? No one can sleep easy after engaging in such depraved behaviour.
The public wants us to take a strong stance against the use of firearms. It wants it to be made clear to everyone in the criminal justice process, including gardaí, the Judiciary, politicians, offenders and other members of the public, that if Ireland allows the taking of life to become commonplace, it will be very difficult to undo the damage caused to our social fabric. We live in a republican democracy and there is nothing wrong with Ministers or Members of the Oireachtas publicly stating the substance of public opinion. The Judiciary can disregard what politicians say if they do not agree with it but sentencing policy must take into account public opinion as well as other factors.
I must steer a line between micro-managing the outcome of criminal cases which is not a function of the Executive or the Legislature and setting a legal framework in which maximum sentences have not appeared to work in the past. When the mandatory minimum sentence for drug offences was introduced, it was imposed in 5% of cases. That this figure has increased to 20% is not a coincidence. The public dissatisfaction, as expressed by public representatives, has a part to play in this. I do not wish to have sentencing policy determined by public clamour, competitive anger or the media. Editors have claimed that they are more in touch with public opinion than public representatives, suggesting the purchase of newspapers gives a mandate to pursue a particular editorial line. I doubt that proposition but in a republican democracy one can state every Member of Dáil Éireann has been elected to exercise a particular function and has a mandate for a particular term of office.
Given the connection between drugs and firearms, it is reasonable to link the sentencing policy for each crime. It would be strange if mandatory minimum sentences applied to possession of substantial quantities of drugs but no such advice was given to the Judiciary through a sentencing policy laid down in statute in respect of the use of firearms which are so closely connected to the drugs phenomenon in modern society. There is a sort of a symmetry in that regard. Deputy Ó Snodaigh suggested that we examine American data to see whether such policies are effective. However, I do not believe that any state in America takes such a sensitive approach to the issue.
To bear arms is a constitutional right in that country.
That is the first matter.
Even regarding felonies, the "three strikes and you are out" system is crude. Three instances of shoplifting can constitute three felonies, meaning that the perpetrator is put away for life in some penitentiary. We are not engaging in that sort of thing. I say to Deputy Ó Snodaigh that considering American data may not be a very good way to examine the effectiveness of sentencing policies laid down in statute. We are not following the American line by telling a judge that there is no issue if it is a person's third felony offence and that he or she must simply go to jail for life.
I am obliged to obey and uphold the Constitution. If I thought that there was no constitutional dimension to this, I would further tighten the loophole and, possibly, judges' discretion. However, I must be conscious of the fact that an Article 26 reference on such a provision or a challenge at a later stage is not improbable. I do not wish the entire section, or the entire Bill, to be knocked on the head as a result of excessive zeal that crosses a line on my part. That is why I must carefully heed the Attorney General's advice on each step. Regarding Deputy Jim O'Keeffe's amendment, for example, while expressing personal appetite for its principles, I must urge caution and consult the Attorney General to benefit from his considered view of whether it is a permissible provision and whether its enactment would be safe. I cannot adopt a constitutionally unsafe proposition, even if it involved a 50-50 issue. If the Attorney General counsels not to proceed, I cannot do so. That is how the system works.
We are taking a step in the right direction. What causes me concern is whether the minimums for which we are providing are too low. It might be argued that they are not exactly dissuasive and cannot have much deterrent effect. In many cases, they may not be regarded as very stern. In these provisions, however, we are trying to bring about change. These are not merely political window-dressing and if those minimum sentences are in place and adhered to, subject to constitutional requirements, the general public, the Judiciary and the criminal justice system will benefit from their enunciation in law.
I sympathise with the position of judges. They are asked in our system to judge the fate of other citizens on an individual basis. They make life-changing decisions on behalf of others, listen to pleas in mitigation, examine the person whom they are about to jail and their job is clearly difficult. It is not gross interference with their function for the Legislature to clarify what was intended by a criminal justice statute and what it believes should be the norm regarding those convicted of specific offences. It must at least be some consolation to them to ask whether one is wrong and whether it should be two or 12 years. It is at least of some use to them to see that the Legislature has set seven years as the minimum before they examine aggravating circumstances and the question of exceptional circumstances that might justify departing from it in some cases. It is of assistance to a judge to see that in statute form. If I were a judge, I would not regard it as invading my judicial independence but as something that made my job easier by removing doubt as to whether one is conforming with the spirit of the law in imposing a given sentence.
I know that we are anxious to move on. I agree with the case articulated by the Minister. I am strongly of the view that we have reached the time when the Legislature must speak loudly in respect of anyone who goes out with a weapon to menace the public in any shape or form, particularly if such a weapon is used in the commission of a criminal act.
I wish to make two points, the first being that the Minister did not address my suggestion to the effect that if there are constitutional difficulties with the amendment tabled by Deputy Jim O'Keeffe, it might be of some help to change the word "may" to "shall" so that the section reads "shall have regard" for previous convictions in sentencing so that we move away from mandatory sentencing in those two subsections. That would go some way towards capturing the principle enunciated by Deputy Jim O'Keeffe.
My other point is that we must do more than signal in the abstract or, as the Minister said, comfort judges with a difficult job. Among the biggest issues facing us in the criminal justice system is the need to ensure public confidence in judicial action. There is often very good reason for the variation in sentencing that we have seen in some cases but because there is no explanation, public confidence is eroded. To lay down clear guidelines as ballpark figures will restore public confidence in the Judiciary by making clear that the tariff for similar offences should be commensurate. That tariff is laid down by the Oireachtas when it shapes the law and applied by the courts, with the constitutional right that the Judiciary has to make such determinations on a case-by-case basis. There is certainly an argument for consistency that is important in this context.
The easiest thing would be for me to agree with the Minister that this is the best route. The constituency that the Chairman and I represent has been the most affected by gun crime in recent years.
Is there a prize for that?
It is a horrible title. The killings that occurred last year in particular highlighted that the Drimnagh gang had been running around murdering people for several years. There were also unrelated deaths in Inchicore and several in Ballyfermot. The Minister is right that life is cheap to such people. For some, ten years will not serve as a deterrent; I do not know what would have that effect. For some, the threat of a sentence is similar to being in a film because it makes them big men. They will go to jail and pose there, pursuing their vendettas. The cycle is not broken and although, according to the Minister, Operation Anvil was a success regarding the quantity of weapons recovered, its failure in my area showed that the criminals could not care less. When it was in train, three execution-style killings were carried out by a particular gang and these were responded to by another gang.
The young people to whom I refer can be on cocaine, heroin or alcohol. Most of the gang members are between the ages of 18 and 30, though there are older people in the background who are stirring matters up. Some of these individuals are well known and have been exposed by the media. However, they are not being caught and they will not be apprehended merely because we are changing the law. A greater level of resources must be provided for the Garda drugs squad because all of this activity is linked to drug dealing. Weapons are being brought in as part of drug shipments. This is demonstrated by the fact that every single shipment the Garda has, thankfully, captured has had weapons associated with it. If we are to tackle the availability of guns, we must focus on drug shipments and determine what more we can do to destroy the drug empires which have been built up. That is also how to tackle minions who run around in bullet-proof vests and who are tooled up to the hilt.
The attitude of the Garda is sometimes regrettable. An incident occurred in my area involving a parent who had been bringing children to a football match and who complained to the Garda after a man stood in front of his car and waved a gun at it. In that instance, the Garda said the complainant should not worry because the man was coked up and would have forgotten about it in the morning. A month later, the man in question did the same thing. Not only do we need to tell the Judiciary that it must act on such incidents, we must ensure that the Garda has the resources to respond more quickly and effectively to gun crime and the possession of illegal firearms.
The reason I am speaking at length is that these are the same arguments I will make on mandatory sentencing for drugs related offences. I might as well put the arguments in the open at this point. I am concerned that we will end up throwing away the key for possession of firearms or significant quantities of drugs, though the threshold on the quantity of drugs set out in legislation is low. The prison population will grow and fill the prison the Minister has planned for Thornton Hall. While we should not refrain from convicting people simply because of the size of the prison population, we cannot implement these changes without providing more money for prisons and post-release systems to provide stability and support for ex-prisoners. Without further investment, the likelihood is that those with negative prison experiences will end up on drugs or in gangs, thereby confirming the positions in which they already find themselves. If we are to adopt mandatory sentencing, we must also ensure that training, rehabilitation and support of which prisoners can avail will be provided. If a person does not want to do so, we cannot force him or her to use the services to which I refer. However, a package must be provided.
The commutation of sentences and the system of temporary releases must also be examined. One might be able to provide that the option to commute a sentence or provide temporary release will be unavailable in respect of prisoners who have served less than half their sentences. If, however, they are ruled out completely, there is little incentive for inmates to be good prisoners and avoid membership of gangs or learning the tricks of the trade. The Minister is correct. While it is rare that I would look to the USA for justice policies, I did not have any other examples to hand.
The Deputy looks to the Americans only for money.
I do not think they like me very much.
Is it not unlawful under the Electoral Acts for parties to be given money from abroad?
Not in respect of Irish citizens.
Yes, Irish citizens
That is why friends of Sinn Féin in Canada should be careful about what they put on their website. They have included a statement that there are means whereby Canadian citizens can be asked to help the party in Ireland.
Surely the Minister has better things to do than peruse the Sinn Féin website.
I am sure that is the correct position. I thank the Minister for the heads up in respect of this matter.
I do not mean for the Deputy to change the website; I mean for him to change the modus operandi.
The US State Department regulates the financial donations we receive in the USA.
I am sure it does.
I presume the Canadians will do the same. I would never encourage another state to follow the prison policies of the USA, where the system has become crazy since the introduction of mandatory sentencing. The prison population in the USA has increased by 1,000% over ten years, which is not a route we should follow. That is not to say that if people wish to continue to carry out certain activities, we should not imprison them. Some states in the USA, of which Michigan is one, have, however, repealed mandatory sentencing because it has not been effective. While there have been financial reasons for repeal, it has also been motivated by the fact that mandatory sentencing had no effect on the problem it was intended to tackle.
I ask the Minister to reconsider the clause on temporary releases. I understand what the body is intended to achieve and if I am unsuccessful in my amendments, I wish him well with the policy and hope it has the desired effect. However, I do not think it will. I hope the Minister will adopt a different mechanism and will choose not to proceed with such a prescriptive measure.
Deputy Jim O'Keeffe's amendment to the amendment refers to a second or subsequent offence. The Minister's amendment includes an opt-out clause for the Judiciary to ensure that justice is done in individual cases. While it is important that justice is done on a case-by-case basis because no two cases are exactly the same, the point must be made that the Oireachtas, which represents the people, is entitled to send a very strong message to the Judiciary that it considers these offences to be of the most serious type and wishes corresponding punishments to be imposed on those who disobey the law.
On Deputy Howlin's point about the phrases "may have" and "shall have", I will reconsider the section between now and Report Stage. If I am told that it is permissible, I will consider including the words "shall have due regard to" to ensure that the legislation avoids micro-managing judges' activities to too great an extent. A judge will be able to state whether something is an overriding consideration.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 2 to 5, inclusive, to amendment No. 118 not moved.
I move amendment No. 6 to amendment No. 118:
In the inserted section 15, to delete subsection (4).
Amendment to amendment put and declared lost.
Amendments Nos. 7 to 9, inclusive, to amendment No. 118, not moved.
I move amendment No. 10 to amendment No. 118:
In the inserted section 15, subsection (6)(b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Deputy Jim O'Keeffe said he would withdraw amendment No. 11 to amendment No. 118 on the basis that the Minister would consider it on Report Stage.
Amendments Nos. 11 and 12 to amendment No. 118, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 119:
In page 25, before section 24, but in Part 4, to insert the following new section:
"42.—The following section is inserted after section 15 of the Principal Act:
"15A.—(1) An appeal may be made to the District Court by a person aggrieved by any of the following decisions made by an issuing person:
(a) to refuse to grant a firearms training certificate under section 2A of this Act;
(b) to refuse to grant or renew a firearm certificate under section 3 of this Act;
(c) to refuse to grant or renew an authorisation for a rifle or pistol club or shooting range under section 4A of this Act;
(d) to revoke a firearm certificate under section 5 of this Act;
(e) to refuse to register a person, or to renew a registration, in the register of firearms dealers under section 9 of this Act;
(f) to grant or renew an authorisation under section 10 of this Act;
(g) to remove the name of a person from the register of firearms dealers under section 11 of this Act;
(h) to refuse to grant a licence under section 10A of this Act;
(i) to refuse to grant an authorisation under section 16(1) of this Act;
(j) to refuse to grant a licence for the import of firearms or ammunition or a prohibited weapon under section 17 of this Act or to vary such a licence or conditions named in it;
(k) to refuse to renew a firearm certificate under section 9 of the Firearms Act 1964; or
(l) to refuse to grant a firearm certificate, or to revoke such a certificate, under section 2 of the Firearms (Firearm Certificate for Non-Residents) Act 2000.
(2) An appeal shall be made within 30 days of receipt of notice of the decision concerned.
(3) On the appeal the Court may—
(a) confirm the decision,
(b) adjourn the proceedings and direct the issuing person to reconsider the decision in the light of the appeal proceedings, or
(c) allow the appeal.
(4) Where the appeal is allowed, the issuing person shall give effect to the Court's decision.
(5) The jurisdiction conferred on the District Court by this section shall be exercised by the judge of that Court assigned to the district in which the appellant resides or carries on business.".".
This amendment proposes inserting a new section 15A into the Firearms Act 1925. It provides for the first time an appeals mechanism whereby decisions on the granting of licences and authorisations under the Firearms Acts 1925 to 2006 may be made to the District Court. Under existing law, any person aggrieved by a decision could proceed only by way of judicial review of the decision before the High Court, which has happened on several occasions. The procedure is costly and time-consuming for all parties concerned. It is also inappropriate in most cases for the High Court jurisdiction.
In consultation with the various shooting organisations, the lack of a proper appeals procedure was raised and I undertook to review the position. Consequently, I propose to provide a statutory right of appeal to the District Court against the decision of a person issuing firearms under firearms legislation. Decisions that can be appealed include, among other things, refusing to grant a renewal of a firearms certificate or revoking a firearms certificate and the appeal must be made within 30 days of the decision of the issuing person.
I strongly support the new appeals system. I posed a question on some of the matters covered by this amendment, namely, the issue of ranges and so on. I do not know whether the Minister has had time to consider these since I raised them.
I also mentioned to the Chairman that because I came late to this debate, I did not have the benefit of being addressed directly by the shooting lobby. That has been rectified in the interim. Several issues were raised by those to whom I spoke who requested me to put them to the Minister, particularly in the context of the regulation of shooting as a sport. This discussion of the appeals mechanism for the refusal of firearms training certificates in the Minister's amendment may be the only opportunity I will have to pose those questions.
Did the Minister consider the definition of ranges since I raised the matter at our previous meeting? People are concerned that it is necessary to have a licensed range and the penalty for shooting at an unauthorised range, namely a fine of up to €25,000 and jail for up to seven years, is severe. People legitimately involved in sport shooting want to ensure that they do not inadvertently run foul of this. The Minister said that he would revisit this matter.
Under the new section 4A to the principal Act, newcomers to shooting will be able to train only at shooting ranges. If one is not competent, however, one is not permitted to shoot at such a range. This seems to be a catch 22 situation. How does one become competent if one can shoot only at a range and only if one is competent to do so?
Provision is made under the new section 4B for the appointment of firearms range inspectors. Such an inspector will be permitted to enter any premises without warrant when he or she suspects that target shooting is taking place. This is regarded as an extraordinarily wide-ranging power to give to any individual who is not obliged to be a member of the Garda Síochána, although the section encompasses gardaí and customs officials. Some would argue that it is a search warrant on the cheap if one wants to enter a premises without a warrant.
I hope the Minister will forgive me for using the umbrella of this amendment to raise these points.
The Deputy's motivation for doing so is understandable.
I am concerned about subsection (2) of this amendment, which gives the person who has been refused a grant or renewal 30 days to appeal the decision. It does not state within what timeframe the court must hear the appeal. Perhaps it will be heard at the earliest possible opportunity. If so, it may be necessary to insert a phrase to the effect that "on the appeal the court at the earliest possible opportunity may confirm the decision", or whatever.
In response to Deputy Howlin's points, the definition of a range does not apply to the use of shotguns on a farm but it does apply to the use of .22 rifles, etc. If one has a range on one's land to carry out target practice, one must obtain permission for it. For example, people cannot be allowed to carry out target practice next to a public road or a golf course where passers-by might be hit by ricochets, etc. I appreciate that a farmer who wants to keep his eye in with his shotgun can put up a tin can somewhere on his property and shoot at it. However, if someone establishes a place where he regularly fires lethal weapons——
All weapons are lethal.
Yes, but shotguns are exempt from this.
They are lethal.
They are lethal in certain circumstances. It should not be the case that a farmer could never practice shooting on his own land and not be covered by the law. In respect of other firearms——
The Minister could not tell us on the previous occasion how many ranges exist. I think there are many informal ranges.
There may be but they should be controlled. If someone moved onto a farm next to one's own farm, erected a bank of earth and began firing shots all day, one would say that he should at least have permission to do so.
If he has 200 acres and is half a mile from the nearest——
It is a matter of forcing him to practice shooting half a mile away from the perimeter of his land. That is why permission is required. Otherwise, he would put it wherever he wants on his land. We have been informed that there are approximately 30 ranges in the country.
Do they require planning permission?
I am not sure.
They probably would require it.
I am not an expert in planning law.
I thought the Minister was familiar with that area.
Shotguns were used on my property but I was not responsible for their discharge.
It was someone missing a tin can.
I was very grateful to a local government councillor from the Chairman's party who soothingly told me that it might have been a duck hunter on the local lake. When the spray of shot through the hole in the window was triangulated, it was discovered that the muzzle of the firearm was discharged eight feet from the house. There must have been a low flying duck.
In order to obtain a training licence, one needs to be competent and one cannot use a range unless one is competent.
There are two points here, namely, in order to get a training licence one must be competent.
One cannot shoot at a range unless one is competent.
Is the Deputy referring to a training certificate or a licence to train to shoot other people?
A training licence. A licence to shoot other people — I do not think one can get that.
A firearms training certificate authorises the person to posses a firearm and ammunition, except a restricted firearm and restricted ammunition, only while carrying and using the firearm for hunting or target shooting under the supervision of a person over the age of 18 years who holds a firearms certificate in respect of it or where the firearm is used for target shooting on the premises of an authorised rifle or pistol club or at an authorised shooting range and complying with such other conditions, if any, as the commissioner may impose in the interests of public safety and security. I do not see the problem.
If a person wants to take up target shooting, he or she can shoot only at a range.
The person must be over the age of 14 years.
One can shoot only at a range, however, one can shoot at a range only if one is competent.
One needs to be competent to hold a firearms certificate. One does not need to be competent to hold a firearms training certificate.
No, but one can fire at a range only when one holds a training certificate.
Is the Deputy stating that somewhere in the Bill, we provide that one can only fire——
——at a range if one is competent.
I will check that. If that is the case, we will deal with it.
I have a question on the inspectorate, the firearms range inspector's competence and powers. It was pointed out to me that——
That he or she does not have to go to court to get an order to search.
Is it a search warrant on the cheap?
I do not think so. It is a practical measure. If one hears noise coming from over the hill, the idea that one must go to the District Court to recount what one heard——
One could make the same argument for any search warrant on that basis. If a garda believes it would be useful in solving a crime to barge in, why would he or she not? We have a constitutional preservation of private property.
TV licence inspectors operate on the same basis. One is not talking about moving into people's homes. One is talking about going on to land. Unless people have turned the inside of their houses into a range, which I think is unlikely, one is talking about going on to another's land. Practicality suggests that if a member of the inspectorate suspects an unauthorised range, he or she should be able to check it out rather than having to go to the District Court and invoke the powers of a judge to do so. One is not talking about a dwelling of a citizen. It is a question of what is reasonable and practicable. If the local sergeant hears shooting in the local quarry in the early hours of the morning, the idea that he or she should raise the District Court judge from his or her slumbers before going down to see if it is being used as a range is tilting the scales too much against practicality.
This can be revisited. We went through this on amendment No. 104.
In terms of the appeal, does it require to be inserted or is it a given that the court deals with such appeals at the earliest opportunity?
We do not normally make such a provision, for instance, in driving tests there is an appeal from the instructor to the District Court against a refusal. It is not normal to state they should deal with things at the earliest time.
Amendment agreed to.
I move amendment No. 120:
In page 25, before section 24, but in Part 4, to insert the following new section:
"43.—Section 17 of the Principal Act is amended by the insertion of the following subsections after subsection (4):
"(4A) Notwithstanding subsections (1) to (4) of this section, a licence for importing a firearm, ammunition or prohibited weapon may not be granted unless—
(a) the applicant has a good reason for importing it,
(b) granting the licence would not prejudice public safety or security, and
(c) if the application relates to a restricted firearm or restricted ammunition, the applicant
(i) if a registered firearms dealer, possesses an authorisation under section 10 of this Act, or
(ii) in any other case, is the holder of a restricted firearm certificate in respect of the firearm or ammunition concerned, which is in force.
(4B) An applicant for a licence under this section shall supply in writing any further information that the Minister may require in the performance of his or her functions under this section.
(4C) The reason for refusing an application for a licence under this section or for its renewal shall be communicated in writing to the applicant.".".
Section 17 of the firearms Act provides for restrictions on the import of firearms and ammunition. It provides that no person can import a firearm or ammunition without a licence granted by the Minister. Under the law as it stands a licence to import firearms and ammunition can be granted by the Minister, if he or she thinks fit to do so, to any registered firearms dealer or to any person who holds or could hold a firearms certificate for the firearm and ammunition, if any, in respect of which the licence was sought. There is no specific requirement in law for the Minister when deciding on whether to grant such an importation licence to have regard to such matters as public safety and security or the purpose for which a firearm is to be imported. As a consequence a number of decisions to refuse importation licences have been challenged and are currently before the courts.
Amendment No. 120 inserts a number of new subsections into section 17 to address this issue. Specifically the amendment provides that the Minister shall not grant an importation licence unless the applicant has a good reason for importing it, granting the licence would not prejudice public safety or security or if the firearm is a restricted firearm, either the person is a firearms dealer or holds a firearm certificate for the firearm in question. This new provision will eliminate any uncertainty regarding the law governing importation of firearms. This comes down to the perpetual conundrums as to whether the Minister has too broad a discretion, with unstated constraints on the discretion but falls foul of the court based jurisprudence as regards what is or is not a permissible delegation of legislative functions. At present the Minister has virtually a free hand and, whereas I like having a free hand, the problem is that when I would be brought to court and asked how a particular provision is justifiable, or if the Minister has been given too free a hand by the Legislature, I do not want a challenge of that kind to succeed. There are cases pending before the courts and the remarks I have just made are not to be interpreted as conceding that I think there is anything wrong with what I am doing at the moment. I want to be sure there is no such challenge in the future.
Amendments Nos. 1 and 2 to amendment No. 120 not moved.
Amendment agreed to.
I move amendment No. 121:
In page 25, before section 24, but in Part 4, to insert the following new section:
"44.—The following section is substituted for section 25 of the Principal Act:
"25.—Any person who commits an offence under this Act in respect of which no other punishment is provided is liable in respect of each such offence—
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 5 years or both.”.”.
Amendment No. 121 provides general penalties under the firearms Acts and Deputy O'Keeffe's amendments are effectively stylistic. My amendment substitutes a new section for section 25 of the Firearms Act 1925. Section 25 is a catch-all provision that provides that where no specific fine or penalty is provided for an offence under the Act, then the penalties provided for under section 25 shall apply. The maximum fines under this section are now being increased from £50 to €5,000 on summary conviction and from £100 to €20,000 on conviction on indictment. The maximum prison sentences are being increased from six months to 12 months on summary conviction and from two years to five years on conviction on indictment. The Deputies will note that five years means the offences become arrestable offences and the provisions of the 1984 Criminal Justice Act in relation to detention applies to them.
What particular offences are captured by this provision?
I will come back to the Deputy on that.
Amendments Nos. 1 to 4, inclusive, to amendment No. 121 not moved.
Amendment agreed to.
I move amendment No. 122:
In page 25, before section 24, but in Part 4, to insert the following new section:
"45.—The following section is inserted after section 25 of the Principal Act:
"25A.—(1) The Minister may by order appoint a specified period during which a person may surrender at any Garda station any of the following weapons:
(a) a firearm;
(b) a flick-knife;
(c) a weapon of offence.
(2) When surrendering a weapon during the specified period, the person—
(a) shall give his or her name and address to a member of the Garda Síochána at the Garda Síochána station concerned, and
(b} shall be informed by the member that the weapon and any thing in which it was surrendered may be forensically examined or tested.
(3) Proceedings for an offence shall not be instituted against any person who surrenders a weapon under this section if—
(a) in the case of a firearm, the offence consists only in the possession, carrying and use (other than in the commission of another offence) of the firearm without being the holder of a firearm certificate, in contravention of section 2 of this Act, or
(b) in the case of a flick-knife or other weapon of offence, the offence is an offence under section 9(4) or 10(1)(b) of the Firearms and Offensive Weapons Act 1990.
(4) Any surrendered weapon or any substance or thing found on or in it or on or in any thing in which it was surrendered may be subjected to forensic examination or testing for the purpose of—
(a) determining whether any such weapon, substance or thing is in a safe and stable condition, or
(b) discovering information concerning an offence other than an offence referred to in subsection (3) of this section.
(5) In any proceedings, a surrendered weapon and any substance or thing referred to in subsection (4) of this section is admissible in evidence.
(6) A surrendered weapon may be disposed of in a manner deemed appropriate by the Commissioner.
(7) In this section—
"firearm" includes ammunition;
"flick-knife" has the meaning given to it in section 9(9) of the Firearms and Offensive Weapons Act 1990;
"weapon of offence" has the meaning given to it in section 10(2) of the said Act of 1990.".".
This amendment inserts a new section 25A to the principal Act, which provides a legal basis for the introduction of an amnesty during which persons holding illegal firearms may surrender them to the Garda Síochána before new fines and penalties and mandatory minimum sentences which I am also proposing are introduced. During the amnesty period, persons who surrender firearms will not be prosecuted for the simple illegal possession of the weapons. However, surrendered weapons will be, where appropriate, forensically tested and where they are found to have been used in a crime the weapon and forensic evidence will be admissible in any proceedings subsequently brought. It does not wipe the slate clean in respect of any offence that has been committed with the weapon.
Subsection (1) of the new section provides that the Minister can, by order, declare a period during which guns and other offensive weapons can be handed in at Garda stations. It provides that firearms and offensive weapons may be handed into any Garda station. Subsection (2) provides that any person surrendering a weapon during the amnesty period must give his or her name and address to the Garda Síochána and must be informed by the gardaí that the firearm in question may be forensically tested.
Subsection (3) provides that no proceedings can be brought against a person for having a firearm without a firearm certificate or being in possession of a flick-knife or other offensive weapon where the act constituting the offence is part of the process of surrender. Subsection (4) provides that the firearms and offensive weapons surrendered may be forensically tested. Subsection (5) provides that where firearms or offensive weapons have been used in the commission of an offence, the firearm or weapon and the forensic evidence gathered may be used in evidence in subsequent proceedings.
Deputy O'Keeffe is proposing 17 amendments to the amendment. Amendments Nos. 1, 2, 4 to 13, inclusive, and 15 to 17, inclusive, to the amendment are drafting amendments which are stylistic. Amendment No. 3 to the amendment proposes to insert the words "... where the Minister has laid the proposal for such a period before the Houses of the Oireachtas and gained approval thereof". In this regard, I direct the Deputy's attention to amendment No. 127 in my name which inserts a new section in the Firearms Act which provides for the laying of orders and regulations before the Houses of the Oireachtas. It provides for each order and regulation to 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 House within 21 days, the order or regulation shall be annulled. Consequently, the Deputy's amendment is not strictly necessary.
Amendment No. 14 to the amendment proposes an amendment to subsection (4), which subsection provides that any surrendered weapon may be subjected to forensic examination or testing for the purpose of determining whether it is in a safe condition and, more importantly, discovering information on whether it was used in connection with or in the commission of an offence. The Deputy is proposing in addition that it be forensically tested for any purpose deemed necessary or appropriate by a garda not below the rank of superintendent. I am unclear at this stage as to the purpose, other than those already provided for in my amendment, a surrendered weapon might be forensically tested by the Garda. As I have outlined, my amendment allows for the testing of surrendered weapons for the purpose of determining whether they have been used in connection with or in the commission of a crime. Where the weapon has been so used, both it and the forensic evidence gathered may be used in evidence in subsequent proceedings. I am satisfied that my amendment, as it stands, adequately addresses the issue and, subject to what I hear, I think the Deputy's amendment is unnecessary.
I move amendment No. 1 to amendment No. 122:
In the inserted section 25A(1), to delete "by order" and substitute ", by order,".
Most of Deputy O'Keeffe's amendments to the amendment are technical in nature. Amendment No. 6 to the amendment seeks to provide that a member of the Garda Síochána may ask for proof of identity. That is in the context of a person not telling the truth. As I accept what the Minister says on amendment No. 3 to the amendment, I will withdraw it. In regard to forensic testing for any other purpose deemed necessary, Deputy O'Keeffe wanted as much power as possible to be given to the Garda and argues that there should be no restrictions on that power.
A member of the AGSI said recently that we should not expect all thehardchaws to hand in their weapons. I accept this. I have explained to the committee that this is not designed with the expectation that hardened criminals will have a rush of blood to the head and rush down to the local Garda station brandishing their weapons, although if they wanted to do this, I would be very happy. I have no doubt that there are people who have, or know the whereabouts of, weapons, for whom it would be counterproductive to introduce a mandatory minimum sentence in that they might be afraid to reveal information to the Garda for fear of attracting that sentence at a later stage. I want to allow such persons to clear the decks without prejudicing any criminal investigations into prior serious offences.
Between now and Report Stage I will consider the question of looking for proof of identity. I do not know exactly what it would amount to because if somebody gives his or her name and address to a member of the Garda——
It can be included in the register of electors.
If the firearm is later connected with a crime and it is discovered a false name and address have been given——
That is possible. It could be that a man of straw has been sent in. The question I must ask myself is whether, if a weapon is surrendered and it is tested and found to have been used in a crime, it is better that it is in the possession of the Garda Síochána than that a garda should say he or she cannot take the weapon because he or she is not satisfied as to the veracity of the name and address of the person surrendering it. That is a question I will have to examine between now and Report Stage.
I have a brief technical question. I accept this is a useful but not hugely significant measure which may result in a few knives being handed in. I do not expect the weaponry used in serious crimes around this city to be surrendered. On the definition of "weapon of offence" in section (10)(2) of the Firearms and Offensive Weapons Act 1990, is it broad enough to capture everything that might have become a weapon of offence since? I presume it is a catch-all phrase.
Like Deputy Howlin and others, I do not know what the major benefits of this will be or how much weaponry will be surrendered. Most of the weapons this will capture will be surrendered to the Garda in any case. It might manage to attract some dangerous weaponry which would be lethal if it fell into the wrong hands or could be used in the commission of a crime. Although this measure provides for a specific period of one month or six months which will be sold as a type of amnesty, we will need to encourage people thereafter, if they come across such weaponry, to continue to surrender it to the Garda. I know of cases where builders renovating houses have come across weapons and left them where they had found them because touching or moving them would have left them open to the possibility of being charged with the offence of being in possession of a weapon. People should telephone the Garda station in advance to inform the Garda that they intend going there to surrender a weapon. This will ensure they will not be charged with an offence under Operation Anvil and end up serving a sentence if, by chance, they are stopped by a garda while on the way to the station. Where the Garda is not satisfied as to the identity of the person surrendering a weapon, the greater good should be taken into account and the weapon taken out of circulation.
As a society, we need to examine how we can take out of circulation the weaponry in the hands of criminal gangs. I understand this is not an open amnesty, but we need to incentivise people to surrender weapons to ensure they are taken out of circulation without prejudicing investigations, society or those who have access to weapons. Criminal gangs have access to a huge amount of weaponry and are continuing to build up their arsenals. This can be attested to by the weaponry used by them in recent months, for example, small machine pistols, and the fact that they are being selective in the weapons they are bringing into the country. Such weapons have had a devastating effect — a number of people have been killed in Dublin in the past year. I agree the legislation should contain a clause that would allow for forensic examination of weapons, but people are aware they could be liable to prosecution if it is shown the weapon they are surrendering has been used before.
I am aware of cases involving young teenagers who found weaponry dumped by criminal gangs and who, rather than handing them over to the Garda Síochána, kept them believing they were involved in a big adventure or big men. While they would not have been responsible for the crimes in which those weapons had been previously used, if they had handed them up, they could have been held liable if they were not able to account for where, when and how they had come across them.
As a society, we will need at some stage to look at the broader issue of a gun amnesty in terms of whether the greater good would be served if all weaponry was handed up and clause 4 were suspended. I am not suggesting that is what I wish to happen. However, it is an issue we need to debate. During such a debate we could look at how effective gun amnesties have been in other countries. The gun amnesty in Dunblane in Scotland, while effective in terms of the number of knives and old shotguns handed up, did not manage to attract anything substantial in the way of other weaponry. While it had an effect in that weapons were no longer left lying around in small farmhouses or attics, it did not have the effect many believed it would have.
Are pellet guns considered a firearm and are they covered by this provision?
They are dealt with in a later amendment dealing with the definition of a firearm. Air guns are guns in which air is compressed by a spring behind the projectile. A definition is being inserted to provide that there must be at least one joule of pressure — I am not too sure what this means — behind the projectile at the muzzle. Theoretically, paintball guns are pellet guns, as are potato pellet guns. One has to distinguish between weapons which can cause significant damage and those which cannot. I do not know if Chairman played with potato pellet guns in his youth, I did.
That is what brings the issue to mind.
I sometimes cringe when I recall what I did with my potato pellet gun.
Subsection (4) covers it.
A weapon of offence is defined as any article made or adapted for use for causing injury or incapacitating a person or intended by the person having it with him or her for such use. A weapon of offence could be an umbrella into which a stun gun is built.
Will the Minister repeat the definition of a weapon?
A weapon of offence is any article made or adapted for use for causing injury or incapacitating a person or intended by the person having it with him or her for such use.
That includes everything from a can opener to a catapult.
The leg of a chair, when used for the purpose of causing harm, could in certain circumstances be deemed to be a weapon of offence. However, the Garda Síochána is not requesting that legs of chairs be handed in.
Will the Minister reply to my question on whether we should provide in the regulations that people should telephone the Garda in advance if they——
It struck me while listening to the Deputy — I have reminded my officials of this — that we should include the words "may surrender at any Garda Station or at any other place approved by a superintendent of the Garda Síochána for such purposes". A little old lady might not wish to go up to her attic to retrieve a weapon. Therefore, surrender could take place at places which the Garda considers reasonable. Providing that a person bring a weapon to a Garda station might prove counter-productive.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 2 to 17, inclusive, to amendment No. 122 not moved.
Amendment agreed to.
I move amendment No. 123:
In page 25, before section 24, but in Part 4, to insert the following new section:
"46.—The following section is inserted in the Principal Act after section 25A:
"25B.—(1) The Commissioner may by notice in writing require any person lawfully possessing a firearm to produce it at such time and place as may be specified in the notice for the purpose of having ballistic or other tests carried out on it and of establishing and recording its distinctive characteristics.
(2) A person who, without reasonable excuse, does not comply with such a notice is guilty of an offence under this Act.".".
This amendment allows a new section 25B to be inserted in the Firearms Act 1925. The new section will allow the Commissioner to require any person in possession of a legally held firearm to produce it for the purpose of ballistic testing. The intention is to aid the Garda in tracing firearms used in crime. For example, if a .38 revolver is used in committing a crime, it could be of assistance to the Garda to say that in a particular area all persons who own such a weapon are required to produce them in order that the Garda can eliminate them from its search. The new section provides that a person who fails, without a reasonable excuse, to comply will be guilty of an offence.
How many firearms are licensed? Could we provide that weapons be tested at the time a licence is issued in order that the Garda can build a database? I support the amendment but suggest such a database would be useful.
Would the Deputy include the 160,000 shotguns held?
The position on shotguns is slightly different.
What Deputy Ó Snodaigh is suggesting would be very convenient for the Garda if forensic tests were carried out on every rifle. There are 163,000 licensed shotguns. I do not think shotguns——
Unless they are sawn-off.
I am not sure but the strike pin on the cartridge of a shotgun might be unique on microscopic examination. There are 46,055 rifles. Undertaking forensic tests of that number of rifles would be a major task. The question also arises as to who would undertake it.
Does that figure relate to the number of .22 rifles?
It includes rifles of every calibre.
Are they mainly .22 rifles?
The vast majority would be. Until recently there was no permission to licence rifles of a higher calibre. Doing what Deputy Ó Snodaigh suggests would require us to look at the effect on a discharged bullet — the strike pattern of the firing pin on the cartridge.
The Minister has been technically briefed.
He also works for CSI.
CSI Miami.
Compiling reliable records for every rifle would be an enormous task. For the sake of completeness, there are 203 pistols and 109 revolvers. Revolvers are, therefore, a rarity.
Who holds them?
From my FCA days, I remember an officer who had a remarkable object, a .22 revolver with a barrel about 12 inches in length. He was an extraordinary shot who could shoot a thread holding a tobacco tin at a range of 20 yards. I remember looking at his gun which, with its long barrel, looked like something from a cowboy movie and deciding that someone so accurate was to be avoided in all circumstances.
We all have stories about weapons. Some time ago I found a revolver in the desk in my office. It transpired that it was the personal weapon of Jasper Travers Woods dating back to the time of the Troubles. It was a .38 Smith and Weston which I found while clearing out a large desk.
That is what they all say.
That, ladies and gentlemen, is the case for the defence.
I was reminded of the Minister's story of sending for the local sergeant. I sent for the local sergeant and asked what I should do with the weapon.
There was a time when one asked to go into the library and found a pistol on the desk, which had clear implications.
While I am aware that my proposal would create a major forensic task, it should be considered. If it is not possible to apply such a mechanism retrospectively, perhaps it should apply to new legal weapons entering the State. I presume the number of weapons involved would be no more than a few hundred each year. One would first establish a database and, in time, ensure it held a record of all weapons, namely, rifles, pistols and revolvers.
The Deputy is referring to legal weapons.
Obviously, it is not possible to keep a record of illegal weapons as one does not have access to them.
Illegal weapons are the problem.
Such a system would make the work of the Garda much easier in that it would allow gardaí to exclude legal weapons from an investigation. With the exception of shotguns, few legally held weapons have been used with criminal intent. The gun lobby and holders of weapons here have been much better at looking after weapons than their counterparts elsewhere.
Amendments Nos. 1 and 2 to amendment No. 123 not moved.
Amendment agreed to.
I move amendment No. 124:
In page 25, before section 24, but in Part 4, to insert the following new section:
"47.—The following section is inserted after section 25B of the Principal Act:
"25C.—The Commissioner may appoint in writing a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent to perform any of the Commissioner"s functions under this Act.".".
This amendment inserts a new section 25C in the Firearms Act 1925. The new section provides that the Commissioner may delegate any of his functions to a member of the Garda Síochána not below the rank of superintendent. This is a standard provision. The purpose of the new section is to ensure the Commissioner will not be required to spend his time working out where he stands on every restricted firearms issue. As he holds a busy position, he needs to be able to delegate this function to a relatively senior Garda officer.
Is it intended that this procedure will be regionalised in order that a different superintendent will apply the legislation in each district or division or will an individual at headquarters be assigned this task?
The latter scenario is the case. It is proposed that this will be a centralised function with a uniform policy across the State for the reasons I mentioned at an earlier stage of the debate.
While I am anxious that this will be the case, it is not clear from the wording of the amendment. As matters stand, it will be possible for a future Minister or Commissioner to determine that this function is a divisional operation.
I will examine the wording to see if it can be tightened. The policy behind the section is that a single rule will apply.
I agreed with that rationale when the Minister presented it but it does not appear to be reflected in the amendment.
I agree with the amendment and withdraw my amendments thereto.
Amendments Nos. 1 to 4, inclusive, to amendment No. 124 not moved.
Amendment agreed to.
I move amendment No. 125:
In page 25, before section 24, but in Part 4, to insert the following new section:
"48.—The following section is inserted in the Principal Act after section 25C:
"25D.—(1) Where—
(a) an offence under this Act is committed by a body corporate, and
(b) it is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who—
(i) was a director, manager, secretary or other officer of the body corporate, or
(ii) was a person purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and liable to be proceeded against and punished as if the person were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) of this section applies in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director or manager of the body corporate.
(3) The foregoing provisions apply, with the necessary modifications, where the offence was committed by an unincorporated body.".".
The amendment proposes to insert a new section 25D in the 1925 Act. It is a standard provision governing liability of officers of bodies corporate under the Act such as the owners of shooting ranges, officers of shooting clubs and registered firearms dealers which happen to be a limited liability company.
I move amendment No. 1 to amendment No. 125:
In the inserted section 25D(1), to delete "is guilty" and substitute "shall be guilty".
I accept the Minister's assurance that the amendment introduces a standard provision. Having recently received the Law Reform Commission's report on corporate killing, I understood we were opening up a completely new area as regards corporate responsibility. I was about to suggest, therefore, that if this were the case, we would have to widen the whole debate into the area of corporate responsibility for various offences. What offences are covered?
A company will not be given a firearms certificate but may own a firing range. If a company which owns a range commits an offence, for example, in allowing under age children to use it without training certificates, the new section provides that if it is proven that this offence was done with the consent, connivance or approval of an individual person who has a management role in the company, or through his or her neglect, this person, as well as the company, will be liable to be convicted. It cannot, therefore, be argued that one can only prosecute a company.
Is this a restatement of an existing position?
It is a standard form provision for offences committed by bodies corporate. In other words, it is not a defence for an individual who was personally responsible for the commission of an offence to argue that his or her company was responsible.
Have charges been brought under this type of provision?
I am sure charges have been brought. This is now a fairly standard provision. A company, for instance, cannot drive a motor car or engage in drink driving but it could permit a car to be used by an insured person.
Enron comes to mind. On first reading, I foresee difficulty arising in terms of proof. The section appears to be loosely framed in that it could refer to a director, manager or secretary.
It is a fairly standard form.
Even on the minor point of the reference to "secretary", does this refer to a company secretary or typist?
It refers to the secretary of a company.
Subsection (2) states that where the affairs of a body corporate are managed by its members, as would be the norm in the case of shooting ranges, subsection (1) of the section will apply "in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director or manager of the body corporate". Does this mean that in the event of a breach of paperwork in the registration of a range where the members make up the management committee, every member of the range is guilty of an offence?
Where the affairs of a company are not delegated to a director or manager and are de facto carried out by a management committee of members——
All members. In those circumstances they cannot avoid criminal responsibility by saying the matter was not decided by a certain individual. If they do, section 48(1)(b) comes into operation.
Is the Deputy suggesting people will no longer wish to be company directors?
I dealt with the legislation on companies when I was spokesman. Getting experienced individuals to become directors of charities is onerous because they are legally liable.
I accept that proposition. We should be careful before we impose additional liabilities. This provides for a situation where there are no directors or managers; where de facto the company is run by a committee of members who cannot deny responsibility by stating each was not a secretary, director or manager.
We are talking about major breaches in respect of firearms offences. I refer to a local firing range, perhaps in the Bog of Allen. Some 15 locals may form a group but not have the resources to appoint a manager. They may find the paperwork onerous and would be in breach of the Bill's provisions on registration. The penalties are very severe.
I accept that but these are serious matters.
We can lose the run of ourselves by stating decent citizens at shooting ranges, engaging in a hobby that dates from time immemorial, must be circumscribed beyond reason. I seek to bring balance to the debate.
I fully accept that but this is a standard provision. Whoever makes the decisions, amounting to consent, connivance or approval of criminal behaviour, that lead to a crime being committed is guilty of these offences and cannot hide behind the company.
The Minister is missing the point as he speaks in the general whereas I am making a specific point. I refer to a low level club of 15 members who do not have the resources to pay a full-time manager. They may commit a technical breach of the law by allowing someone to shoot who should not be allowed or doing the paperwork inadequately and failing to register. Even though all the members of the club were not present when the person concerned was allowed to shoot, they are all guilty of a criminal offence and subject to seven years in jail.
The Deputy is not reading paragraphs (a) and (b) of section 48(1). There must be an offence committed by the body corporate.
That is the shooting range to which I referred.
Yes, it might be called Kildare Ranges Limited. If, in addition, an individual can be identified as having consented, connived or approved the action, he or she cannot avoid responsibility by blaming the company. This does not refer to any members of the club.
I am talking about section 48(2) where the affairs of the corporate body are managed by the members. In this case section 48(1) applies.
Yes, it states that "this section applies in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director or manager of the body corporate". If a director or manager of a club is not present but a member of the management committee is and allows under age persons to shoot without supervision, the company is committing an offence and this member of the management committee is personally liable by his or her neglect and can be prosecuted.
Insurance liability is an important matter these days.
I will examine this section again to see if it is cast too wide because I do not wish to be unfair. I cannot allow people to hide behind the corporate veil and deny responsibility, even though the person concerned may have been watching the under age person shooting.
We do not want to criminalise every misdemeanour either.
Shooting clubs favour a strict regime in order that they can enforce their rules. They can state they cannot consent to particular behaviour.
They can do that anyway as they have rules. They do not need the presence of the Garda Síochána to enforce them.
It will improve safety standards because of the demands of the club members.
One could have absolute safety by closing down all clubs.
That would be going too far.
I am afraid we are moving in that direction.
The Bill is trying to find middle ground.
The Chairman is unbiased.
Amendment to amendment, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 126:
In page 25, before section 24, but in Part 4, to insert the following new section:
"49.—The following section is substituted for section 27 of the Principal Act:
"27.—(1) The Minister may make regulations prescribing any matter referred to in this Act as prescribed or to be prescribed or to be the subject of regulations or for the purpose of enabling any of its provisions to have full effect.
(2) The regulations may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations.
(3) Regulations prescribing fees shall be made with the consent of the Minister for Finance.".".
This amendment substitutes a new section for section 27 of the Firearms Act 1925. It is a standard provision in modern form giving a general regulatory power. The old statutes tended to be somewhat broad in the discretion provided for Ministers. This section provides a modern regulation-making power for the Minister. It also provides that where fees are involved, the approval of the Minister for Finance must be sought.
Is there any provision for laying the regulations before the Oireachtas or getting its approval?
That matter is dealt with in the next amendment.
In my all too short period in the Executive, I noted that civil servants favoured inserting a clause to the effect that the Minister could do anything else he or she had not yet thought of doing by statute law. The section states, "The Minister may make regulations prescribing any matter referred to in this Act as prescribed or to be prescribed or to be the subject of regulations or for the purpose of enabling any of its provisions to have full effect." This allows the Minister to do anything and everything. Am I interpreting this incorrectly?
It is not as broad as the Deputy might think. It relates to what is prescribed, to be prescribed or the subject of regulations. The section does not permit me to decide a particular provision shall not have effect in certain circumstances. The power is narrow. The section seeks to give effect to the Legislature's intention. It will be narrowly construed as giving the Minister power to make a regulation for the purpose of enabling any of its provisions to have full effect, in addition to the other cases for the making of regulations prescribed or to be prescribed or to be the subject of regulations. It does not apply to anything the Minister thinks up. It allows actions the Minister may wish to take for the purpose of ensuring the Legislature's intentions are met. It is an enabling provision, rather than allowing the Minister to disapply the Bill in any way.
It is part of a general tendency to leave matters to regulations which are generally never seen, even though they are supposed to be laid before the Dáil. They may appear on the back page of the Order Page among 100 other matters. In some ways it is a back door to legislation.
I sympathise with the Deputy's point. In theory, one could set up a committee of the House to meet once per week and examine every regulation made. There would be no volunteers rushing in to sit on the committee and the press would not cover a single sitting.
When I first came here as a Member of the Seanad, there was a committee on secondary legislation.
Yes, but it selected its work rather than going through every regulation.
We do the same now regarding the large volume of legislation coming to us in the form of regulations from the European Union, although the Minister may not be aware of it. There is a sub-committee that sifts it and decides what is standard, what is important and what should be scrutinised, afterwards parcelling it out to the working committees of the Houses in order that they can examine it in detail.
It is always easier to be totally opposed to secondary legislation when sitting on this side of the House and to be persuaded of its effectiveness and efficiency when on the other. We have not yet reached the next amendment, but there are two ways secondary legislation can be brought into effect by regulation, the first being to require positive affirmation and the other to allow something to enter into force unless one annuls it. The lesser category is the one applied. Civil servants love it since it needs someone to spot the issue. On the other hand, if one requires positive affirmation, one must explain the issue. I make these general points.
The Deputy's summation of attitudes on the two sides of the House is probably correct. However, I make this additional point. I have been surprised since becoming Minister for Justice, Equality and Law Reform at how few regulations I make. Among those I have made, I have spent more time on rules of court than anything else. I am struck by the fact that in a Department with 23,000 people under its broad umbrella, one spends half one's life making regulations.
It is simply the environment; there are much more active jobs.
Has the constitutionality of enacting legislation through regulations ever been examined by the Supreme Court?
Yes. There is an extensive body of jurisprudence. This is not an exact statement, but the general drift of what the courts upheld was that the power to delegate legislation must be within explicit or implicit parameters set by the legislation. Regarding non-Executive powers, one cannot generally delegate very broad discretion that turns the Minister into a mini-Legislature. Otherwise, someone looking at the Act under which he or she functions would not have any idea what would be decided or any clue as to the general policy being followed.
The interesting aspect is that, as I understand it, the rubric of laying a regulation either before the Houses for their approval in advance or for their negative clearance is not constitutionally necessary. In other words, it is perfectly permissible for this House to enable Ministers to make regulations that need not be tabled for the Houses' approval, either by negative clearance or positive approval. That is a strange aspect. However, as I recollect from my time as Attorney General, the jurisprudence seemed to state that in certain cases, once the delegated power to make regulations is granted, bringing back the proposed legislation to the House is not a necessary constitutional arrangement.
The general issue is that I have seen it creeping into legislation ever more. Should the issue be examined by the Law Reform Commission?
If one hunts through all court decided case law, one can make a case — frequently conservative advisers do so — that virtually anything requires positive primary legislation. Therefore, one must be very careful when it comes to secondary legislation. However, the truth is that most European societies could not function if the Legislature did not delegate functions.
I see the practical difficulties, but the issue should be examined in a general sense by the Law Reform Commission at some stage. I will not propose any provision regarding regulations.
On subsection (3), the regulation prescribing fees, might those fees be limited to prevent the Opposition parties perceiving any profit as a stealth tax?
A rose by any other name——
——would smell as foul, in this case.
Amendment agreed to.
Amendment No. 127 has already been discussed.
I move amendment No. 127:
In page 25, before section 24, but in Part 4, to insert the following new section:
"50.—The following section is inserted after section 27 of the Principal Act:
"27A.—An order or regulation under this Act 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 it has been laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.".".
We have had the discussion, but perhaps I might ask why the predisposition is always to take the easier route when one is making regulations, particularly now that we have a committee shadowing each Department. There should be a bias towards requiring positive affirmation of regulations in order that someone would have to come in and explain them rather than throw them into the Oireachtas Library in the hope no one will notice and that they will become law by default.
I agree that the tendency is such. However, let us also consider the other side. Oireachtas time is so precious that if I had to get positive clearance for a large number of regulations——
I hope I can say this without offending the Minister, since I genuinely mean it. From my several years' experience as spokesman on justice matters in the last Dáil, it seems there is a tendency, particularly in the Department of Justice, Equality and Law Reform, to view this place as a rubber stamp, circulating amendments late. As it does not apply only to the current incumbent, I can only assume it is a departmental rather than a ministerial issue.
Through the Houses of the Oireachtas Commission, we are in the process of recruiting additional research staff to the Houses and support staff to the committees. It will take time and will probably be the next Dáil before it is done. On the Select Committee on Enterprise and Small Business, all secondary legislation is sent to a consultant who is employed by the committee. That person does the sifting and produces a very short report for committee members stating what is worth considering. One could do a good job of work that would ensure robust secondary legislation rather than, as often happens now, very narrow primary legislation. I am not making that case in this instance.
Certainly not.
Incredible volumes of regulations often ensue from very short Acts. They are of much more substance and would have generated much more debate than the primary legislation. I make that as a general point.
On that general point, I have been involved in foreign affairs on both sides of the fence. One of the biggest complaints in the referendum was that there was a lack of scrutiny of what was coming from the European Union. As a consequence, changes were made. There is now the Sub-committee on European Scrutiny of the Joint Committee on European Affairs, on which I served for a time. Notice is given, the issues are sifted and those issues that merit further consideration are isolated. I hope that in time something similar might apply generally, or that at least notice of regulations might be given to the relevant committee in order that they might be sifted. I agree with the Minister that there is real pressure on everyone's time and hope important issues will be identified for consideration by committees. I would certainly like to see that change made.
Under the Constitution, law is made by the Oireachtas, not by the Executive, although many in the Executive think it is the other way around.
I note that a certain person in a neighbouring jurisdiction referred to his Department as seriously dysfunctional. I must stand up for the Department of Justice, Equality and Law Reform in this respect. I do not believe staff regard this House as a rubber stamp. They are immensely cautious. I do not detect that vice in the Department at all.
The Minister should keep on the right side of them.
There is an edge to my remarks. I spend half my life looking at files to send scrutiny notes to the Oireachtas in respect of European developments. In fact, I spend a great deal more time on that work than making regulations under any Act. I am happy to do so because I believe strongly that member state parliaments should not act as mere rubber stamps in respect of European activities. There is a strong dynamic behind European legislation compared to domestic secondary legislation. I make relatively few statutory instruments compared to other Ministers. The Minister for Social and Family Affairs, for example, must necessarily spend half his time tweaking regulations.
The amount of time involved is not a significant argument against the measure.
Amendment agreed to.
I move amendment No. 128:
In page 25, before section 24, but in Part 4, to insert the following new section:
"51.—Section 1 of the Firearms Act 1964 is amended—
(a) by the substitution of the following definition for the definitions of “the Commissioner” and “the Minister”:
""the Commissioner" means the Commissioner of the Garda Síochána or a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent appointed in writing by the Commissioner for the purpose of performing any of the Commissioner's functions under this Act;
"the Minister" means the Minister for Justice, Equality and Law Reform;",
(b) by inserting the following definition after that of “the Commissioner”:
""firearm" includes a restricted firearm, unless otherwise provided or the context otherwise requires;".".
The amendment seeks to provide for new definitions which extend the meaning of the term "Commissioner" to a person exercising the functions of Commissioners and the term "firearm" to include "restricted firearm", unless the context otherwise requires. The amendment also changes the name of the "Minister" to the "Minister for Justice, Equality and Law Reform".
My amendments are technical. I have no problem with amendment No. 128.
If the title of the office holder is changed from the Minister for Justice, Equality and Law Reform to the Minister for Justice, Equality and the Gaeltacht, for example, will the Bill have to be changed too?
There is a provision under the Ministers and Secretaries Act to change the title of a Minister and reconstitute his or her responsibilities. While I agree the approach is slightly clumsy, there is no way around it.
Amendments Nos. 1 to 3, inclusive, to amendment No. 128 not moved.
Amendment agreed to.
I move amendment No. 129:
In page 25, before section 24, but in Part 4, to insert the following new section:
"52.—The following section is substituted for section 9 of the Firearms Act of 1964:
"9.—(1) The Commissioner may from time to time renew a firearm certificate granted by him or her.
(2) The superintendent of the district where the holder of such a certificate resides may from time to time renew such a certificate.
(3) The superintendent of a district where the holder of a firearm certificate resides may from time to time renew a firearm certificate which has been granted by a superintendent.
(4) An inspector or sergeant of the Garda Síochána in the district where the holder of a firearm certificate issued by a superintendent resides may from time to time renew the certificate.
(5) A superintendent, or other member of the Garda Síochána, who is authorised under this section to renew a firearm certificate ("an authorised member") may refuse to renew it, or vary any conditions to which it is subject under section 4(2)(g) of the Principal Act, only if prior sanction to do so in the particular case has been given by the Commissioner or superintendent, as the case may be.
(6) An application for renewal of a firearm certificate——
(a) shall be in the prescribed form,
(b) shall be accompanied by the prescribed fee (if any), and
(c) may be made within one month before the expiration of the certificate.
(7) A renewal of a firearm certificate shall be in the prescribed form.
(8) Before renewing a firearm certificate, an authorised member shall be of opinion that the conditions to which it is subject have been complied with and will continue to be complied with during the period for which the certificate is renewed.
(9) On the renewal of a firearm certificate, an authorised member may, subject to subsection (6) of this section, vary any conditions to which the certificate is subject under section 4(2)(g)of the Principal Act, if of opinion that such a variation is necessary in the interests of public safety or security.”.”.
This amendment seeks to substitute a new section for section 9 of the Firearms Act 1964 which provides for the renewal of firearm certificates. Under the law as it stands, superintendents are the only persons who may grant such certificates. As earlier amendments provided for the granting of firearm certificates by the Commissioner or, for restricted firearms, a designated person, it has been necessary to make substantial amendments to the provisions relating to the renewal of firearm certificates. Rather than stick in a series of referential amendments, it is suggested the entire section should be restated in an amended form.
If the superintendent or inspector decides to refuse renewal, what will an applicant be told?
A reason must be provided.
Have we provided a list of the reasons which may be given?
I do not think we have.
We had this debate at the last session when I pursued with the Minister the argument that a reason for a refusal should be given. The Minister said a superintendent could not write to an applicant and state "Because you are bonkers".
That is right.
If that was the real reason, appreciating the sensitivities, what would a superintendent say?
He or she might say he or she was not satisfied. I do not know how he or she would put it. I have never noted any incapacity on the part of the Garda to think up circumlocutory language which would convey a message to the average person. It should be noted that there will be an appeals procedure and that it will not be necessary for applicants to go to the High Court where they feel reasons for refusal are unclear. An applicant will be able to attend the District Court where it will be open to the judge to say if the person concerned is bonkers.
It is possible there could be a local vendetta between an applicant and a superintendent.
That is possible. While I hope it will never happen, the District Court will be able to function as an appellate court if it does. At some stage there must be certainty in the matter. Mr. Justice Barr is still working on the Abbeylara question, for example.
As a committee, we set out to do that job in 12 weeks.
When we receive his report, it is inconceivable that he will not have something to say about the suitability of certain persons to possess firearms. I hope we have anticipated his findings in the methods we are setting out in this legislation. However, I do not wish to pre-empt his findings in any way.
I am concerned that there are 210,000 licensed firearms in the jurisdiction. While I intended initially to ask for the power to renew to be restricted to superintendents, the number of firearms involved indicates that it may be more practical to empower officers at inspector grade. Renewal of a certificate should not be granted by an officer below that rank.
My other amendment is more technical and addresses section 8 which refers, in the context of renewal of a firearm certificate, to "the authorised member" rather than "an authorised member", which I recommend. It is specific to the person renewing the licence.
It cuts both ways. Do we want to require an experienced sergeant or long-standing garda in his 40s or 50s who is dealing with a firearm certificate renewal application to have to send a file to a superintendent or inspector? Where an ordinary farmer who is 100% decent is making an application to renew a firearm certificate, should we create a mound of paperwork and require two separate decisions, with consequent delays? One of my ambitions is to create circumstances in which the renewals system could be outsourced, subject to very tight Garda supervision. In rural areas a substantial amount of paperwork would be generated if we were to provide for a two-layer decision process. A file would be required for each firearm and each renewal application and it would have to be passed from a local Garda sergeant to the district inspector and back again. I would like to avoid all that paperwork if I can as it would consume a great deal of time. If one divides the 210,000 applications by——
Three years.
It will be three years once the legislation is enacted. If five or ten minutes is spent on each of the 210,000 transactions, it amounts to 2 million minutes of Garda time spent on rote matters. If a file must be transmitted from one garda to another, a further 2 million minutes of Garda time will be taken up.
Will Deputy O'Keeffe agree not to proceed with his amendments?
I am advised by my drafting adviser that amendment No. 1 to the amendment is worthy of serious consideration. I, therefore, ask that the draftsman consider it. Subject to that consideration and the running of his or her eye over my other amendments, I will not press them.
Amendments Nos. 1 to 11, inclusive, to amendment No. 129 not moved.
Amendment agreed to.
I move amendment No. 130:
In page 25, before section 24, but in Part 4, to insert the following new section:
"53.—Section 11 of the Firearms Act 1964 is amended—
(a) in subsection (1), by the deletion of “Minister may substitute for the description of a firearm in a firearm certificate granted by him” and the insertion of “Minister or the Commissioner may substitute for the description of a firearm in a firearm certificate granted by him or her”, and
(b) in subsection (2), by the insertion of—
(i) "(other than a restricted firearm)" after "firearm", where it first occurs,and
(ii) "such" after "another".".
This is a technical amendment consequent on giving the power to the Commissioner to issue firearm certificates in respect of restricted firearms.
Amendment agreed to.
I move amendment No. 131:
In page 25, before section 24, but in Part 4, to insert the following new section:
"54.—Section 13 of the Firearms Act 1964 is amended by the insertion of the following subsections after subsection (6):
"(7) In this section, references to a firearm and ammunition do not include references to a restricted firearm or restricted ammunition.
(8) This section is without prejudice to subsections (4A) to (4G) of section 10 of the Principal Act.".".
This amendment inserts two new subsections in section 13 of the Firearms Act 1964. Section 13, as it stands, provides for the sale of firearms by auctioneers. However, in so far as restricted firearms are concerned, provision is being made that auctioneers can only deal in such firearms if they have obtained specific authorisation under section 10 of the 1925 Act. The amendment is consequential on amendment No. 115.
Amendment agreed to.
I move amendment No. 132:
In page 25, before section 24, but in Part 4, to insert the following new section:
"55.—Section 21 of the Firearms Act 1964 is amended—
(a) in subsection (1), by the insertion of “or ammunition” after “firearms” and “firearm”, and
(b) by the insertion of the following subsection after subsection (2):
"(3) In this section, "ammunition" does not include—
(a) component parts of ammunition, or
(b) grenades, bombs and other similar missiles or their component parts.”.”.
Section 21(1) of the Firearms Act 1964 provides that the restriction imposed by section 17 of the 1925 Act on the importation of firearms shall not apply in relation to the importation of a firearm by the holder of a valid firearm certificate. Section 21(1) is being amended to provide that the restriction under section 17 of the 1925 Act as it applies to ammunition is similarly lifted where the person who seeks to import the ammunition is the holder of a valid firearm licence.
Under this section one can have a licence to bring in ammunition but "ammunition" does not include its component parts.
Yes. To go back to what we were discussing when the committee last met, one would have to have reloading certificates. We do not want people bringing in gunpowder and the like.
Those involved in the reloading operation have to bring in material.
They have to obtain a permit to bring in material.
Amendment agreed to.
I move amendment No. 133:
In page 25, before section 24, but in Part 4, to insert the following new section:
"56.—The following section is substituted for section 26 of the Firearms Act 1964:
"26.—(1) A person who contravenes subsection (1) of section 112 of the Road Traffic Act 1961 and who at the time of the contravention has with him or her a firearm or imitation firearm is guilty of an offence.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) In proceedings for an offence under this section it is a good defence for the defendant to show that he or she had the firearm or imitation firearm for a lawful purpose when doing the act alleged to constitute the offence under subsection (1) of the said section 112.
(8) Section 27C of this Act applies in relation to proceedings or an offence under this section and any minimum term of imprisonment imposed in those proceedings.".".
Amendments Nos. 1 to 3, inclusive, to amendment No. 133 not moved.
I move amendment No. 4 to amendment No. 133:
In the inserted section 26, to delete subsection (4).
Amendment to amendment put and declared lost.
I move amendment No. 5 to amendment No. 133:
In the inserted section 26(5)(b), to delete “offence.” and substitute the following:
"offence,
but, this subsection shall not apply where a person has been convicted of a second or subsequent offence under this section.".
This amendment has already been discussed.
It is related to another term of mandatory minimum sentencing. The get-out clause should not apply where there is a second or subsequent offence.
That matter is being examined before Report Stage.
I will press it on Report Stage.
Amendment to amendment, by leave, withdrawn.
I move amendment No. 6 to amendment No. 133:
In the inserted section 26(6)(b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Amendments Nos. 7 and 8 to amendment No. 133 not moved.
Amendment agreed to.
I move amendment No. 134:
In page 25, before section 24, but in Part 4, to insert the following new section:
"57.—The following section is substituted for section 27 of the Firearms Act 1964:
"27.—(1) A person shall not use or produce a firearm or imitation firearm—
(a) for the purpose of or while resisting the arrest of the person or of another person by a member of the Garda Síochána, or
(b) for the purpose of aiding, or in the course of, the escape or rescue of the person or of another person from lawful custody.
(2) A person who contravenes subsection (1) of this section is guilty of an offence and liable on conviction on indictment—
(a) to imprisonment for life or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.
(5) subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term unjust in all the circumstances,and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard,in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed in those proceedings.".".
Amendments Nos. 1 and 2 to amendment No. 134 not moved.
I move amendment No. 3 to amendment No. 134:
In the inserted section 27, to delete subsection (4).
Amendment to amendment put and declared lost
Amendment No. 4 to amendment No. 134 not moved.
I move amendment No. 5 to amendment No. 134:
In the inserted section 27(6)(b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character,age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 135:
In page 25, before section 24, but in Part 4, to insert the following new section:
"58.—The following section is substituted for section 27A of the Firearms Act 1964:
"27A.—(1) It is an offence for a person to possess or control a firearm in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose,unless the person possesses or controls it for such a purpose.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given,and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5)of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard,in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed in those proceedings.
(8) In the application of section 2 of the Criminal Law (Jurisdiction) Act 1976 to this section, it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.".".
Amendment No. 1 to amendment No. 135 not moved.
I move amendment No. 2 to amendment No. 135:
In the inserted section 27A to delete subsection (4).
Amendment to amendment put and declared lost.
Amendment No. 3 to amendment No. 135 not moved.
I move amendment No. 4 to amendment No. 135:
In the inserted section 27A, subsection(6) (b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 136:
In page 25, before section 24, but in Part 4, to insert the following new section:
"59.—The following section is substituted for section 27B of the Firearms Act 1964:
"27B.—(1) It is an offence for a person to have with him or her a firearm or an imitation firearm with intent—
(a) to commit an indictable offence, or
(b) to resist or prevent the arrest of the person or another person, in either case while the person has the firearm or imitation firearm with him or her.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may also have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him or her and intended to commit an indictable offence or to resist or prevent arrest is evidence that the accused intended to have it with him or her while doing so.
(8) Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed in those proceedings.".".
Amendments Nos. 1 and 2 to amendment No. 136 not moved.
I move amendment No. 3 to amendment No. 136:
In the inserted section 27B, to delete subsection (4).
Amendment to amendment put and declared lost.
Amendment No. 4 to amendment No. 136 not moved.
I move amendment No. 5 to amendment No. 136:
In the inserted section 27B(6)(b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character,age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 137:
In page 25, before section 24, but in Part 4, to insert the following new section:
"60.—The following section is inserted in the Firearms Act 1964 after section 27B:
"27C.—(1) In this section, "minimum term of imprisonment" means a term specified by a court under—
(a) section 15(4) of the Principal Act,
(b) section 26(4), 27(4), 27A(4) or 27B(4) of this Act, and
(c) section 12A(9) of the Firearms and Offensive Weapons Act 1990,less any reduction in the period of imprisonment under subsection (3) of this section.
(2) The power to commute or remit punishment conferred by section 23 of the Criminal Justice Act 1951 does not apply in relation to a minimum term of imprisonment.
(3) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct apply in relation to a person serving such a minimum term.
(4) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960, as applied by section 4 of the Prisons Act 1970, to release temporarily a person serving a sentence of imprisonment shall not be exercised during a minimum term of imprisonment, unless for grave reason of a humanitarian nature,and any release so granted shall be only of such limited duration as is justified by that reason.".".
I move amendment No. 1 to amendment No. 137:
In the inserted section 27C, to delete subsection (2).
Amendment to amendment put and declared lost.
Amendments Nos. 2 and 3 to amendment No. 137 not moved.
I move amendment No. 4 to amendment No. 137:
In the inserted section 27C, to delete subsection (4).
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 138:
In page 25, before section 24, but in Part 4, to insert the following new section:
"61.—Section 15 of the Criminal Justice Act 1984 is amended by the substitution of "€2,500" for "£1,000".".
This amends section 15(2) of the Criminal Justice Act 1984 which provides for penalties for the offence of withholding information on firearms or ammunition from a member of the Garda Síochána. The maximum fine is being increased from £1,000 to €2,400 on summary conviction.
Is it a little low, given the value of £1,000 in 1984?
The Deputy can table an amendment on Report Stage.
Even taking inflation into account, it might be on the low side.
Amendment agreed to.
I move amendment No. 139:
In page 25, before section 24, but in Part 4, to insert the following new section:
"62.—Section 4 of the Firearms and Offensive Weapons Act 1990 is amended in subsection (1)—
(a) by the substitution of the following paragraph for paragraph (b):
"(b) an air gun (including an air rifle and air pistol) with a muzzle energy greater than one joule and any other weapon incorporating a barrel from which any projectile can be discharged with such a muzzle energy;”,
(b) in paragraph (g)—
(i) by the deletion of "for the purposes of this definition" and the insertion of "without prejudice to the generality of the foregoing",
(ii) by the deletion of "(e).” in subparagraph (ii) and the insertion of “(e),and”, and
(iii) the insertion of the following subparagraph:
"(iii) any object—
(I) manufactured for use as a component in connection with the operation of a firearm, and
(II) without which it could not function as originally designed;"
and
(c) by the insertion after paragraph (g) of the following paragraph:
"(h) a device which enables a firearm to be used as a starting gun or blank firing gun.”.”.
We have already discussed this amendment somewhat. It is a technical amendment to provide for the extension of the definition of a component part of a firearm contained in section 4 (1)(g) to include any part manufactured for use as a component in any of the loading, cocking, discharging, ejection or emission mechanisms of a firearm. It also provides that only air guns with a muzzle velocity of one joule are to be treated as firearms for the purposes of the Firearms Acts 1925 to 2006 — potato guns, paintball guns and the like are not in the frame. It also extends the definition of a firearm to include starting guns and blank firing guns, the latter being relevant in that there is an argument as to whether they are imitation firearms. It covers the issue of whether a starting piston is an imitation firearm. It is probably not in one view.
Would this not affect anybody who brings children to a fairground where there might be a shooting range that uses what are really pellet guns? I take it they are not covered by this. Can the Minister, having displayed vast technical knowledge so far, tell us what muzzle energy by way of percentage of one joule would apply to that type of fairground pellet gun? Is that a relevant question?
Interestingly, pellet guns used at a shooting range at a fair are exempted under the firearms legislation. A superintendent is allowed to grant a permit for a shooting range to be established at a fair for entertainment purposes.
The difficulty is that fairground people move around a great deal.
They do. They must obtain permission in principle in each district to operate a shooting range.
Is a permit granted for a shooting range at a fair in a particular district valid in all areas covered by that Garda district?
Once they move from one Garda district to another they must obtain permission from the local superintendent to operate a shooting range.
For how long is the permit valid?
I do not know. I presume it is for the duration of the fair.
Is the Minister saying that they are required to apply for a permit from the superintendent of each district they visit?
I understand that is the case.
How many million hours of Garda time is spent on such work?
Have any problems arisen in that regard?
I am not aware of any.
Am I correct that the current legislation or amendments proposed thereto do not affect the existing situation one way or another?
This is a case of the sleeping dog.
Would it not make more sense to grant a national permit which would be subject to periodic inspection rather than wasting many Garda hours on such an activity? I presume the same applies for each fair day.
I am convinced the guns used at shooting ranges at which one can win prizes have bent barrels.
It is a good thing the Minister has immunity.
That does not say much for the training the Minister received while a member of the FCA.
What is a joule of energy?
It is a pressure——
I know that. What type of weapon would generate one joule?
Exemptions would be pellet guns, paint guns and relatively harmless guns, although nothing is absolutely harmless.
What is a joule?
I suppose the Chairman will now ask what is the——
Is a pellet gun one joule or is a water pistol——
I suggest the Labour Party makes its own inquiries as to what is a joule.
As regards paint guns, I know of people who, having used them at stag parties returned home with welts and so on regardless of their having worn protective clothing.
The Minister is telling us that is not a joule.
I hope it is not a joule.
If it is, we need to be careful.
We will take the Minister's word on these matters.
Apart from anything else, they are a danger to one's eyes.
One is required to wear goggles when using them.
I am struck by how dramatically toys have changed. I must confess I have a personal interest in toy artillery weapons. Toys sold in the 1920s, 1930s and 1940s would be considered lethal now. Some of them had little shells into which one put caps and they fired a projectile 50 feet. I am sure such a gun fired at a child's eye would have resulted in the loss of that eye. Such weapons are considered lethal nowadays. I do not know whether children are safer these days than they were then.
Amendment agreed to.
Amendment No. 288 is related to amendment No. 140. They will be discussed together.
I move amendment No. 140:
In page 25, before section 24, but in Part 4, to insert the following new section:
"63.—The following section is inserted after section 8 of the Firearms and Offensive Weapons Act 1990:
"8A.—Each provision of the Firearms Acts 1925 to 2006 specified in Schedule 1 to the Criminal Justice Act 2006 is amended in the manner specified in the third and fourth columns opposite the mention of that provision in the first column of that Schedule.”.”.
This is a provision to amend the Firearms Acts 1925 to 2006 in the manner specified in the Schedule to this Bill. For completeness I will go through the penalties. Penalties for breaches of the register for firearms are being increased from £50 to €3,000 and from £25 to €1,500. The following penalties are also being increased: failure to comply with one's obligations in terms of the inspection of a stock of firearms, from £10 to €1,000 or six months; imprisonment, or both; impeding the search for a seizure of firearms, from £20 to €1,000 or six months' imprisonment, or both; impeding the powers of members of the Garda Síochána, from £10 to €1,000; possession or sale of silencers, from €1,000 and five years' imprisonment to €5,000 and seven years' imprisonment; reckless discharge of firearms, from €1,000 and five years' imprisonment to €5,000 and seven years' imprisonment on indictment; possession of knives, from £1,000 to €5,000 in both cases; trespass with a knife, from £1,000 to €5,000; production of an article capable of inflicting serious injury, from £1,000 to €5,000; prohibition of the manufacture of offensive weapons, from €1,000 and five years' imprisonment to €5,000 and seven years' imprisonment. The penalty under the Firearms (Firearm Certificates for Non-Residents) Act 2000 in terms of prohibition of false information and alteration of firearms certificates is being increased from £1,000 to €2,500 on indictment and from £10,000 to €20,000. These are in line with the general increases in penalties provided for in other statutes.
What Deputy O'Keeffe had to say on amendment No. 138 applies.
They are out of kilter with others.
Some of the penalties are increased by 1000%.
I do not know of any reason a person would possess a silencer. The penalty in that regard appears low when compared with that for providing false information on a certificate in relation to firearms.
The Deputy may think there is no innocent reason for which a person would possess a silencer but some huntsmen like to use them. I do not wish to disturb their quarry.
They are obviously bad shooters wishing to take a second shot.
No, they are trying to get two animals rather than one.
I presume one can be licensed to possess a silencer.
Yes.
People wishing to look at "Oireachtas Report” might wish to get in some practice before doing so.
A silencer is a firearm within the meaning of the Act. A person in possession of a silencer in suspicious circumstances would be guilty of an offence.
Amendment agreed to.
I move amendment No. 141:
In page 25, before section 24, but in Part 4, to insert the following new section:
"64.—The following section is inserted after section 12 of the Firearms and Offensive Weapons Act 1990:
"12A.—(1) Subject to subsection (2), a person who shortens the barrel of—
(a) a shot-gun to a length of less than 61 centimetres, or
(b) a rifle to a length of less than 50 centimetres, is guilty of an offence.
(2) It is not an offence under subsection (1) for a registered firearms dealer to shorten the barrel of a shot-gun or rifle to a length of less than 61 or 50 centimetres respectively if the sole purpose of doing so is to replace a defective part of the barrel with a barrel of not less than 61 or 50 centimetres, as the case may be.
(3) It is an offence for a person to convert into a firearm anything which resembles a firearm but is not capable of discharging a projectile.
(4) Subject to subsection (5), it is an offence to modify a firearm so as to render its reloading mechanism fully automatic or to increase its calibre, irrespective of whether the firearm, as so modified, is a restricted firearm.
(5) Subsection (4) does not apply to a firearm designed and manufactured so as to enable barrels of different calibres to be attached to it.
(6) It is an offence for a person (except a registered firearms dealer) to possess without lawful authority or reasonable excuse—
(a) a shot-gun the barrel of which is less than 61 centimetres in length,
(b) a rifle the barrel of which is less than 50 centimetres in length,
(c) a converted firearm mentioned in subsection (3), or
(d) a firearm which has been modified as described in subsection (4).
(7) A person who is guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 10 years or such shorter term as the court may, subject to subsections (9) to (11), determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(8) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(9) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years (in this section referred to as the "minimum term of imprisonment") as the minimum term of imprisonment to be served by the person.
(10) Subsection (9) does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term of imprisonment unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(11) The court, in considering for the purposes of subsection (10) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(12) Section 27C of the Firearms Act 1964 applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed in those proceedings.".".
Amendments Nos. 1 to 3, inclusive, to amendment No. 141 not moved.
I move amendment No. 4 to amendment No. 141:
In the inserted section 12A, to delete subsection (9).
Amendment to amendment put and declared lost.
Amendment No. 5 to amendment No. 141 not moved.
I move amendment No. 6 to amendment No. 141:
In the inserted section 12A(11)(b), after “sentence” to insert the following:
"and
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 142:
In page 25, before section 24, but in Part 4, to insert the following new section:
"65.—Section 1 of the Firearms (Firearm Certificates for Non-Residents) Act 2000 is amended—
(a) by the insertion of the following definition after the definition of “the Act”—
""Commissioner" means the Commissioner of the Garda Síochána or a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent appointed in writing by the Commissioner for the purpose of performing any of the Commissioner's functions under this Act;",
and
(b) by the insertion of the following definition after the definition of “the Principal Act”:
""restricted firearm" means a firearm which is declared under section 2B(a) of the Principal Act to be a restricted firearm;”.”.
This amendment relates to the Firearms (Firearm Certificates for Non-Residents) Act 2000 which permits foreign huntsmen to come to Ireland. It is a technical amendment to introduce a distinction between restricted and non-restricted firearms for that legislation.
Amendments Nos. 1 to 3, inclusive, to amendment No. 142 not moved.
Amendment agreed to.
I move amendment No. 143:
In page 25, before section 24, but in Part 4, to insert the following new section:
"66.—Section 2 of the Firearms (Firearm Certificates for Non-Residents) Act 2000 is amended—
(a) in subsection (1), by the insertion of “, Commissioner” after “Minister” on both occasions where it occurs,
(b) in subsection (2), by the insertion of the following paragraph after paragraph (a):
"(aa) in case the firearm is a restricted firearm and is intended only for the purposes mentioned in paragraph (a), to the Minister or Commissioner,”,
(c) in subsection (4), by the insertion of ”or (aa)“ after ”paragraph (a)“, and (d) in subsection (5), by the insertion of “, Commissioner” after “Minister”.”.
This amendment has the same purpose as the previous one, which is to make provision for a distinction between restricted and non-restricted firearms.
Amendment agreed to.
I move amendment No. 144:
In page 25, before section 24, but in Part 4, to insert the following new section:
"PART 6
AMENDMENT OF EXPLOSIVES ACT 1875
67.—The following section is substituted for section 80 of the Explosives Act 1875:
"80.—(1) Any person who in any place—
(a) ignites a firework or causes it to be ignited, or
(b) throws, directs or propels an ignited firework at or towards a person or property,
is guilty of an offence.
(2) Any person—
(a) who possesses a firework with intent to sell or otherwise to supply it to another, and
(b) who does not hold a licence under this Act to import it,
is guilty of an offence.
(3) In any proceedings for an offence under subsection (2) it is not necessary for the prosecution to negative by evidence the existence of a licence to import the firework concerned, and accordingly the onus of proving the existence of any such licence is on the defendant.
(4) A member of the Garda Síochána who, with reasonable cause, suspects that a person possesses a firework in contravention of subsection (2) may—
(a) request that the person give his or her name and address and that the information given by the person in response to the request be verified,
(b) if not satisfied that the information so given is correct, request that the person accompany the member to a Garda Síochána station for the purpose of verifying the information,
(c) without warrant—
(i) search the person and, if the member considers it necessary for that purpose, detain the person for such time as is reasonably necessary to make the search,
(ii) enter and search any vehicle, vessel or aircraft in which the member suspects that a firework may be found, and
(iii) seize and detain anything found in the course of the search which the member reasonably believes to be evidence of, or relating to, an offence under this section.
(5) This section is without prejudice to any power to detain or search a person or to seize or detain property which may be exercised by a member of the Garda Síochána under any other enactment.
(6) A member of the Garda Síochána who suspects, with reasonable cause, that a person has committed an offence under this section may arrest the person without warrant.
(7) 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 section 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.
(8) The search warrant shall be expressed, and shall operate, to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other persons as the member thinks necessary—
(a) to enter the place named in the warrant at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant and if necessary by the use of reasonable force,
(b) to search it and any persons found at the place, and
(c) to seize anything found at the place, or anything found in the possession of any person present there at the time of the search that that member reasonably believes to be evidence of, or relating to, the commission of an offence under this section.
(9) A member of the Garda Síochána acting under the authority of a search warrant under this section may—
(a) require any person present at the place where the search is being carried out to give to the member his or her name and address, and
(b) arrest without warrant any person who—
(i) obstructs or attempts to obstruct the member in the carrying out of his or her duties,
(ii) fails to comply with a requirement under paragraph (a), or
(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.
(10) A person who—
(a) does not give his or her name and address when requested to do so under subsection (4)(a) of this section or gives a name and address that is false or misleading, or
(b) does not comply with a request under subsection (4)(b) of this section,
is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
(11) A person who—
(a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of a search warrant under this section,
(b) does not comply with a requirement under subsection (9)(a) of this section, or
(c) gives a false or misleading name or address to such a member
is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
(12) A person guilty of an offence under this section (except subsection (10) or (11)) is liable—
(a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
(13) A court by which a person is convicted of an offence under subsection (1) or (2) may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit.
(14) In this section—
"banger" means a non-metallic case containing black powder, the principal purpose of which is to make a noise when ignited or initiated;
"black powder" means a powder consisting of a mixture of charcoal and sodium nitrate or potassium nitrate, with or without sulphur;
"firework"—
(a) means a device containing pyrotechnic material which, when functioning, burns or explodes to produce a visual or aural effect or movement or a gas, either separately or in any combination, as a direct form of entertainment, but
(b) does not include—
(i) a low hazard firework (except a banger), or
(ii) a firework imported under licence in accordance with section 40(9) of this Act;
"low hazard firework" means a firework which presents a low hazard and is designed for indoor use;
"place" includes a dwelling and a vehicle, ship or aircraft;
"pyrotechnic material" means a substance or mixture of substances designed, when ignited, to produce an aural or visual effect or a gas either separately or in any combination.".".
This amendment substitutes a new section for section 80 of the Explosives Act 1875 and deals with fireworks. The area of fireworks is slightly fraught because everyone has his or her own theory in this regard. It is similar to the price of drink; people have strong views, one way or another, on the subject. The Department of Justice, Equality and Law Reform took the courageous and manly step of finding out what the public thought by way of an opinion survey. In general terms, the result should come as no surprise. Other than party poppers and very light fireworks, people are not in favour of them being used other than as part of a fireworks display. They do not like bangers being thrown around at Hallowe'en. A sizeable majority was opposed to the legalisation of bangers. A range of issues is involved, including: people afraid of their dogs being affected; a general quality of life issue; elderly people being scared by them; and children being injured by them.
Although strong views were expressed in correspondence to me to the effect that the State has no business taking this kind of action, that in the UK fireworks are a major aspect of their celebration of Guy Fawkes night and that, in Ireland, the position is much the same as regards Hallowe'en, curiously the great majority of people are conservative and want the law to remain roughly as it stands. They also want it to be accommodated in the European Union's regulations and directives in respect of the classification of fireworks and they want decent penalties imposed in respect of those who are caught. While, theoretically, gardaí are meant to stop bangers and rockets being sold on the streets, the penalties are so desultory that it would cost more to issue the District Court summons than could be recovered by way of fines. To some extent, the law has become marooned by the passage of 120 years since this matter was last considered.
The new section makes it an offence to ignite a firework, to cause it to be ignited in any place, or to throw, direct or propel an ignited firework at or towards a person or property. For the first time it makes it an offence to possess a firework with the intent to sell or supply it to another without being licensed to do so under the 1875 Act. The experience most of us had — those of us who were schoolboys in Dublin at any rate — of going to the fruit sellers and of materials being produced from the pockets of aprons, etc., will be a thing of the past. Such activities will be illegal from now on.
The new section 80(7) and (8) will give the Garda the right to search premises and seek illegally held fireworks, which are those held other than under a licence. Penalties will be increased, with a fine of €2,500 or six months' imprisonment, or both, or on conviction of indictment a fine of €10,000 or five years' imprisonment, or both. At present, container loads of fireworks can be moved with only desultory penalties applying.
Deputy Jim O'Keeffe tabled 26 amendments to my amendment. Amendments Nos. 1 to 10, inclusive, and 12 to 25, inclusive, to my amendment are drafting in nature. His amendment No. 11 to my amendment proposes an amendment to the new section 80(8), which governs search warrants by the District Court. The new section 80(7) provides that a judge of the District Court may provide a search warrant on the oath of a member of the Garda Síochána not below the rank of sergeant. The new section 80(8) provides that a warrant granted under section 80(7) shall authorise a member of the Garda Síochána:
(a) to enter the place named in the warrant at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant and if necessary by the use of reasonable force,
(b) to search it and any persons found at the place, and
(c) to seize anything found at the place, or anything found in the possession of any person present there at the time of the search that that member reasonably believes to be evidence of, or relating to, the commission of an offence under this section.
Deputy Jim O'Keeffe's amendment to my amendment would provide that warrants issued under this new section should be provided in accordance with section 5 of the Bill, which provides for search warrants in cases of arrestable offences. Where offences are created by statute, it has become the practice to provide for a power of search in respect of the offence in the relevant statute. In addition, section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which is amended by section 5 of the Bill, provides for the issuing by a judge of the District Court of a warrant authorising a garda to search a place for evidence of the commission of certain serious offences that are indictable offences involving death or serious bodily injury to a person, false imprisonment, rape and certain other sexual offences. Provisions allowing for search warrants to be issued by members of the Garda Síochána are also contained in the Criminal Justice (Drug Trafficking) Act and the Criminal Assets Bureau Act 1996.
Section 5 extends the offences covered by section 10 to include all arrestable offences under section 2 of the Criminal Law Act 1997. When dealing with that provision we engaged in a lengthy discussion about superintendents issuing warrants. I have undertaken to reconsider elements of that provision. I will also reconsider this section to ensure that it is compatible with the provision.
We are inserting a new section into the 1875 Act. Whereas Deputy Jim O'Keeffe's amendment to my amendment would apply a different provision, I wanted to ensure that someone consulting the new section would find the warrant provision rather then being obliged to engage in the complex process of rooting around in a different Act in order to find it. I accept the Deputy's general proposition that what is sauce for the goose is sauce for the gander and that a similar warrant-giving power should be provided.
Amendment No. 26 to my amendment provides for a new definition of "place". We have agreed that we will reconsider that issue in a broader context and that will also apply to this section.
Many of my amendments to the Minister's amendment are of a technical nature and I will leave them to the Parliamentary Counsel. I ask the Minister to consider the two amendments he highlighted to determine whether they would improve the Bill. As we can return to them on Report Stage, I will not press them now.
It is time some sense was brought to bear in respect of the overall issue of fireworks. The law, which dates from 1875, is in total disrepute. It has been more honoured in the breach than in the observance and contains totally derisory penalties. It is appropriate that we should come to a decision on what to do regarding fireworks generally. I take the point that most of the complaints I receive at Hallowe'en come from those who are badly disrupted in their everyday lives by the activities of those dealing with fireworks. Some of the fireworks available seem to be of a poor standard, which is inevitable when they are either sold under the table in Moore Street or brought across the Border.
I understand that European regulations make provision in respect of three categories. Generally, my feeling is that we have to have a law that is workable and acceptable, and it is mostly acceptable to people that in general fireworks should not be generally available and, when they are, they should be under control. The one area in which I feel that there is a case for relaxation on fireworks is when a community group is genuinely trying to put on a display for a local community, which is carefully organised and in which all due precautions have been taken. I would like to be assured that such groups can get the necessary approvals.
That is exactly what I have in mind. Instead of saying that a rocket or banger should never be let off in Ireland again, I am saying that all these things should be capable of being done as part of an authorised firework display. They do not have to be things such as we have on the Liffey, with enormous——
It might be more focused.
People from the local GAA club on Hallowe'en should be capable of going to the local superintendent and saying that they want to bring in fireworks for a display and that it will be under supervision. I am not trying to be some kind of puritan; I have no problem with that happening.
My understanding is that, as with something like the opening of the Olympics, which was a magnificent display of pyrotechnics——
May I give the Deputy some interesting information? Some 400 weddings were the subject of firearms authorisation——
Fireworks.
Shotgun weddings.
The father of a young family is entitled to have fireworks, but he is not entitled to ignite them. Is that it?
He is entitled to apply for a licence, if he wants to, to have a little party for his children in the back garden, as long as he does it and takes the responsibility and the superintendent thinks that he is the fit and proper person to do it.
Is he likely to get that?
You could have a children's party at which there would be fireworks in the back garden — at Hallowe'en, for example.
When one gets a permit from the local superintendent.
Yes, from the Garda, but a person cannot just go down to Moore Street and let off bangers and rockets any more.
Where does he buy them?
I am anxious, as this is an area about which the law has not been clear. We were conditioned by events in the North of the island in the 1970s to see an explosive as a dangerous thing to have around the place, with very good reason. That conditioned us to be very restrictive in how fireworks were used. I come from a county where, at the traditional opening of our annual opera festival, there is a significant fireworks display, conducted by one of the most respected firework operators in the country, Mr. Casey Whelan. He will not mind me mentioning his name; he operates a company across the land. For the 50th anniversary, he worked in conjunction with Group F, the firework company that conducted the fireworks display at the millennium in Paris, around the Eiffel Tower.
There are a number of events that people like to celebrate with fireworks, and when I look out from my window on New Year's Eve and on a variety of other occasions, I can see fireworks being launched from people's back yards. There should be an ability for communities to organise such events. In Britain, Guy Fawkes night is characterised by numerous injuries, especially to children, because there is an irresponsible abundance of fireworks and people mix alcohol and let off fireworks at street parties, which can be very dangerous.
I would like the Minister to go through the section. As I see it, it is an offence for someone to let off a firework that is encompassed by this section unless it is licensed. The exclusion is of "a firework imported under licence in accordance with section 40(9) of this Act". I presume that is a reference to section 40(9) of the 1875 Act, which I presume did not deal with importation into Ireland, as we were part of the United Kingdom.
Section 40(9).
Yes. It is the exclusion clause, which says that one is not guilty of an offence if, under subsection 14(b)(i) it is a “low hazard firework” or, under subsection 14(b)(ii), it is “a firework imported under licence in accordance with section 40(9) of this Act”. What conditions are laid down in the 1875 Act under section 40? The Minister said that he was anxious that a responsible community person would be facilitated by the Garda to do that.
On storage, there used to be a requirement that fireworks were stored either in a military barracks or in a Garda barracks. Is that still the situation with storage? What is the situation with the transport of fireworks? How is the community person to get hold of them?
On where one gets the licence, where does one buy it? I am in favour of the section, but if no shops sell fireworks, someone will have to buy them illegally and then go to the Garda station to get a licence to ignite illegal fireworks.
One could buy them in Belfast and bring them down here.
That is illegal, because one would be transporting them unless one had a licence to import them.
Where does it say that a person cannot import fireworks?
Subsection (2) refers to a person "who does not hold a licence".
No, that is for a person who is in possession with intent to sell.
As I understand the situation, subsection (1) of the new section makes it an offence to ignite a firework or to cause it to be ignited or to throw or direct it towards any person or property. Subsection (14)(a) defines “firework”, but it excludes low hazard fireworks, except for bangers, or “a firework imported under licence in accordance with section 40(9) of this Act”. Therefore, it is not an offence to ignite a firework that is imported under licence.
What are the conditions?
The conditions are that the Department of Justice, Equality and Law Reform will grant a licence and lay down the conditions under which it can be used.
Is it the local community or the father of the bride who obtains the fireworks? How will they obtain fireworks for the special display that they are putting on?
A person applies to the Department for a licence if he wants to have a display at a wedding or down on the quays, or whatever.
Where does one buy them?
One imports them. We will not have the situation in which there are firework shops in Ireland ready to sell to consumers.
I presume one can access them on the Internet from the companies or suppliers in Britain.
Yes, one can, but one must have a licence to import them.
Once one has obtained a licence——
It is illegal to import them without a licence.
What are the conditions under the parent Act to get the licence in accordance with section 40(9)?
I do not have the text with me but, to the best of my recollection, section 14(9) provides that I can grant a licence to a person to import explosives.
Does a condition not apply? I asked the question because it relates to section 40 of an 1875 Act. Therefore, it cannot have dealt with the issue of importing explosives.
As I did not think I would get this far, I do not have the text with me.
This matter should be examined further because the list of those involved in the importation of explosives and granted licences by the Department is probably confined to pyrotechnic experts. As I am concerned about a fireworks display organised by a local community group, I wish to make a suggestion.
I will ensure between now and Report Stage that there will be an adequate mechanism to allow a local community group to organise a fireworks display.
Let me make a suggestion. If a superintendent issues a licence to a local community group, could he or she not also issue a licence——
I do that.
If a superintendent were to issue a permit for a one-off community fireworks display, would it not make sense for him or her to also issue a permit to allow those concerned to import, purchase or otherwise acquire the necessary fireworks for the display? Is it not ridiculous that a local community leader in, say, Ballydehob must contact the Department as well as the local superintendent?
The essential question is what balance do we want to strike and whether we want a local superintendent to be run off his or her feet at Hallowe'en, with every local club descending on him or her——
He or she would know if someone was a genuine and reliable person.
I will consider the matter between now and Report Stage.
Rather than defer consideration of this matter because we do not have the necessary information to hand, I suggest we postpone consideration of the section. It will not take us long to finish it.
We will return to it. The problem with this legislation is that every section contains a reference to another Bill. We are not dealing with only one parentAct. I do not have a copy of the 1875 Act with me.
I am in the same position as the Deputy.
Perhaps it is time we adjourned.
May I ask a question before we do so?
Yes.
WhileI understand what the Minister is doing, I do not understand from where a superintendent derives the legal authority to——
Currently, he or she does not.
I apologise.
He or she would need to.
We will return to that question; it is one for us to address.
I ask the Minister to consider the other issues of acquisition and storage between now and the next day we consider the Bill.
When will we next do so, Chairman?
Next Wednesday.
We will adjourn until 5 p.m. on Wednesday next, 10 May. I thank the Minister and his officials for attending.
We will meet at 2 p.m.
Will we meet at 2 p.m., not 5 p.m.?
We will meet at 5 p.m.
Yes, and continue until 8.30 p.m.
I thank the Chairman. I may produce a memo on how the process will operate. I may also produce an amendment to go with the memo.
Progress reported; Committee to sit again.
The select committee adjourned at 5.15 p.m. until 5 p.m. on Wednesday, 10 May 2006.