I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting, the purpose of which is to resume consideration of Committee Stage of the Criminal Justice Bill 2004. It is proposed that we suspend at 10.30 a.m. It was hoped that we would resume at 6 p.m. but as there is a difficulty, we will resume at 7 p.m. and continue until 8.30 p.m. We will return immediately after the vote and make good progress I hope thereafter.
Criminal Justice Bill 2004: Committee Stage (Resumed).
We will have tea at midnight.
NEW SECTIONS.
I move amendment No. 240:
In page 25, before section 24, but in Part 4, to insert the following new section:
"PART 14
CRIMINAL LAW CODIFICATION ADVISORY COMMITTEE
163.—There stands established a body, which shall be known as the Criminal Law Codification Advisory Committee and is in this Part referred to as the "Committee", to perform the functions assigned to it by this Act.".
By way of background, the programme for Government included a commitment to codify all substantive criminal laws in a single crimes Act. As a first step in fulfilling that commitment, I established an expert group on the codification of criminal law in January 2003 to consider possible approaches to codification and advise on the scope and extent of such approaches, in particular to identify areas where the group considered codification might give rise to policy difficulties. In the report entitled, Codifying the Criminal Law, published in November 2004, the expert group outlined the overall structure and style of a criminal code and recommended that codification be undertaken on a phased basis, using the tools of restatement, consolidation and law reform in developing and maintaining the code.
In emphasising the need for long-term commitment to the codification project the expert group recommended that a new committee to oversee the codification project be established on a statutory basis. The Government accepted that recommendation and I decided to make provision in this Bill for the establishment of a new committee which is to be called the criminal law codification advisory committee. The expert group distinguished the additional functions and responsibilities of the proposed committee as compared with, for example, the Company Law Review Group, a statutory body, in terms of the law reform involved and the potential complexity of the policy issues likely to arise. I understand the Company Law Review Group is now on the cusp of producing a single statute for all Irish company law, which will be a huge undertaking. Its chairman, Dr. Thomas Courtney, and his group have done fantastic work on what will be a huge achievement. The Bill should go through the drafting and legislative process this autumn.
Additional challenges will need to be considered by the codification advisory committee, not least because of a number of failed attempts at codification in other common law jurisdictions. For example, in the 1860s an attempt was made to codify English criminal law which resulted in a very good code being drawn up. However, it was set aside because Irish politics cut across English government in the 1870s. More recently the United Kingdom made another attempt but has run into obstacles. For this reason the committee will require the necessary administrative and research support to undertake and complete the project.
Two parallel support mechanisms will be made available to the codification advisory committee. There will be a permanent secretariat provided by my Department and a research support function, in the form of a codification research support unit, which will be sited in a third level institution. In the latter regard, the Department will shortly invite expressions of interest from third level institutions prepared to establish the unit. I expect the larger universities to be asked to express a view on the matter. The detailed research tasks to be undertaken by the unit will be a matter for decision by the codification advisory committee as the project evolves. In the main, it will involve making available the necessary research expertise to support the codification advisory committee in carrying out the functions assigned to it in the Bill. I would like to see the unit established by the autumn.
The amendment provides for the establishment of the codification advisory committee on a statutory basis as recommended by the expert group. In the meantime, however, I am giving consideration to the question of the membership of the advisory committee which, in keeping with the recommendations of the expert group, will be drawn from key centres of criminal law expertise within the legal community. I would also be interested in any suggestions members of this committee may have in that regard.
The idea is a good one and I support it because it will be helpful in the future, although I do not underestimate the size of the job involved. The historical perspective is helpful. I am not entirely clear, however, why it is necessary to establish the committee on a statutory basis. What are the advantages of doing so? Will the committee have a limited lifespan, at the end of which it will be functus officio? I do not necessarily object to it being established on a statutory basis.
The historical account of the Irish problem in the 1860s was interesting. What obstacles were met in the United Kingdom as it embarked on a similar project recently? Is there a danger we could run into the same obstacles and is there anything we can do to overcome them? To borrow racing parlance, is there anything we can do to vault the fences?
It is an interesting topic. On the reason the codification advisory committee should be placed on a statutory basis, the Company Law Review Group was established under Mr. James Gallagher under a previous Government but it ran into the sand because the Department of Enterprise, Trade and Employment had limited drafting resources. It was asked to review consumer credit Acts and European legislation, etc., but the project was put on the back burner. Since the procedure has been changed and we have moved to having a statutory committee, a group of people who are working on the project are publicly obliged to be supported. Effectively, it becomes too embarrassing for a Department not to do the work involved if a committee is placed on a statutory basis, as people may wonder what happened to a project. If an annual report is required——
It is one way of making sure a Minister does his or her job.
It is. As recent events show, if emergency legislation must be introduced and draftsmen are needed in a Department, it may take months to get around the problem they are dealing with when the draftsmen must drop their pens and tackle the emergency legislation.
I mentioned Dr. Thomas Courtney's group in comparison with Mr. James Gallagher's group. It has been placed on a statutory basis and must report every year. It must maintain its momentum. If, on the other hand, a consultative committee is established and left, so to speak, in the bottom drawer of a desk in the Department, meets once in a blue moon or when inspired to do so, it will rapidly go off the rails and the idea will sink.
The expert group considered the extent of codification in the United Kingdom. It came to the view that, as happened in Australia, New Zealand and Canada, the best action to take was to deal with substantive law and put aside for another day any effort to codify the law relating to criminal evidence, criminal procedure, sentencing, etc. If one was living in a perfect world, such law would be codified also, with the rules against hearsay evidence in criminal trials or exceptions being stated. They would all be laid out in a long treatise.
The net was laid too wide in the United Kingdom and I do not state this to be critical. It dealt with the procedure issue. It is a bog and one will sink if one tries to deal with it. A relevant crimes Act in Canada codifies the law on murder, assault, kidnapping, theft, etc. Once we go down the road of using the term "constitutionally obtained evidence", indicating who would speak first and last in a jury trial, how one should panel a jury, etc., it will become a bog. Perhaps another generation will try to codify it. If we can start with substantive law, we will do a good job.
In principle, I strongly support the objective, which is major. From my reading of the amendment the Minister has tabled and his contribution this morning, it does not appear to be a once-off, with the committee having a timeline. It is a permanent quango, although I do not use the term in a negative sense. It will be a permanent institution which will be given a work programme every two years.
On Deputy O'Keeffe's point of having a timeline, even if the committee gets this done chapter by chapter and builds a structured code, it will be like the Forth rail bridge. It will have to work on the first bit again while still looking to finish it.
Repainting before it is finished.
That is the truth. There will be developments in law. It is a permanent task to keep it up to date.
It will be a permanent structure.
That is what is envisaged in the amendments. If it pans out in the way the Minister envisages, we must have more detail on how it will be constructed. It will not be an ad hoc committee, with a timeline. The choices we make should be a little more inclusive than what the Minister proposes in amendment No. 165, where the membership and its number will be determined by the Minister, without having regard to the views of this committee, for example. The categories in the Minister’s mind might differ from those in the mind of any subsequent Minister. There should be a broader remit in terms of who will shape the work programme, other than the Minister himself.
My final point is that it does not sound as if it will be a cheap process. Will salaries be paid? Has a budget line been provided, or will there be one this year? What scale of annual expenditure is envisaged?
Some €100,000 has been provided in the Estimates for this year.
That will not go too far in lawyers' fees. They might open a file.
It is not envisaged that it will be a full-time body. I do not know if Dr. Courtney and his colleagues receive an honorarium, but it is envisaged that they will largely be engaged in pro bono work. With regard to company law, one would have to search to find patriotic people willing to do this work.
They would have to be patriotic and competent.
Undoubtedly, many will leave that impression.
If it turned into a cash cow, a chapter would be produced every ten years. It would turn into a cul-de-sac.
What will the Minister offer a third level institute? Will it just be the glory of doing this?
Finance will also be offered. Once there is an agreement — it will not happen in this financial year — significant funding will be given from the Department's research budget.
On Deputy Howlin's last point, is it envisaged that there will be a full-time director? There would surely have to be one bright person who could direct matters in the committee.
The model we propose to follow, with the exception of the third level institution, is that of the Company Law Review Group. It has a secretariat furnished from the parent Department.
It is not a permanent entity.
It is, for which I claim credit. The Deputy may recall that I produced a report on company law enforcement and compliance. Mr. James Gallagher's group failed because other people's priorities did not coincide. It was on foot of the report produced by me that the group was placed on a statutory basis. It is a permanent statutory group which reports every year. The justification was that Ireland needed a top corporate law structure. It needed company law which would attract American and other foreign investors. Lawyers could study the Act rather than rummage through a series of Acts and European regulations to try to work out the system.
What about the other question relating to membership and democratisation of the process?
I will come back to the committee on the matter of membership. One could say there should be three men and three women, for example, or specify that two should come from higher education or be practising lawyers, but there is a requirement for flexibility. It is a fair point. I will come back to the committee when there is more time, either later in the summer or early in the autumn, and lay out my precise plans.
It is probably the loosest formula I have seen to create a body.
It is pretty loose, I agree. On the other hand, if, for instance, UCD were the location of the unit there could be a very brilliant person in Trinity College who we would want to put on the committee. I need a degree of flexibility to get an effective group.
The flexibility the Minister possesses sees that he may appoint any number of people to do as he determines.
I am referring to the key centres of legal expertise. There could be a brilliant official in the Office of the Director of Public Prosecutions, or there might not, but I do not want to commit to someone from that office automatically taking a place on this body.
That is the example of the moment.
I do not want to criticise any office. I am merely saying there may be a person there ideal for this or there may not be. The ideal person may have other commitments. I do not want to put a highly structured committee in place and then find that it does not work.
The idea is to have a committee and I would like to see the best and brightest do their bit for the country from that point of view. There will also be a secretariat within the Department. Is that everything?
I envisage there will be a centre of excellence in a third level institution and we will pay a substantial portion of the salary of the director of the centre of excellence.
Three different units will be involved.
I do not want to cast something in stone permanently only to find that it does not work. I could establish a highly complex model on paper only to find it did not work, the Department did not service it properly and so on.
One concern is who will drive this committee. I hope a good chairperson will do this, but if that person is very talented he or she will probably be very busy. Will the chairman have time to drive it forward or will it be necessary to have a director in the middle to pull it all together.
There will be a high-power committee of experts and it will have a secretariat of public servants that will work for it. The committee will be twinned with a centre of excellence in a university where some of the staff will act as the intellectual powerhouse of research for it, on the basis of a contract with the Department. I do not want this to be an exercise for academics. I want it to be a supervisory committee whose members will bring their collective wisdom to an agenda that will be constantly fed by the centre of excellence.
Deputy Ó Snodaigh, we are discussing amendments Nos. 240 to 246, inclusive, regarding the criminal law codification advisory committee.
I have a single amendment. As this work is done older areas of law may be identified that are contrary to human rights and I ask that someone with expertise on human rights law be part of this committee.
Another concern is that there is no maximum or minimum number mentioned for the committee other than the chairman as a minimum. It does not mention whether remuneration will be involved. The secretariat will be provided by the Department, but holding meetings and so on involves a cost. Is this cost to be borne by the Department of Justice, Equality and Law reform?
We have already discussed that matter.
I move amendment No. 1 to amendment No. 240:
After "known as" to insert "Coiste un Códú an Dlí Choiriúil or in the English language as".
I have a small amendment to the Labour Party's amendment No. 1 to 240. Insert "an Coiste Comhairleach um Chódú" in place of "Coiste un Códú". I will give the text to the committee clerk.
I have no problem with Deputy Ó Snodaigh's amendment relating to human rights.
Amendment to amendment, as amended, agreed to.
Amendment, as amended, agreed to.
I move amendment No. 241:
In page 25, before section 24, but in Part 4, to insert the following new section:
"164.—(1) The function of the Committee shall be to oversee the development of a programme for the codification of the criminal law.
(2) Without prejudice to the generality of subsection (1), the Committee shall—
(a) monitor and review the implementation of a programme for the development of a criminal code (“the code”),
(b) advise and assist the Minister on consolidation of areas of criminal law for inclusion in the code,
(c) advise and assist the Minister in relation to the amendment and future maintenance of the code,
(d) undertake or commission, or collaborate or assist in, research projects relating to the codification of criminal law,
(e) consult, on any particular matter which the Committee considers relevant, persons qualified to give opinions thereon,
(f) monitor, review and advise and assist the Minister on international developments in the codification of criminal law in so far as they may be relevant to the development of the code,
(g) advise and assist the Minister on any other related issues, including issues submitted by the Minister to the Committee for consideration.”.
One question on amendment No. 241. The primary function of the committee is to monitor and review. Is that not a somewhat weak opening shot? Should we not prescribe a more proactive primary function than this? We will be asking the committee to examine, draw up, prevent and produce. The way it is drafted is a little——
It is written in very polite language, I suppose on the basis that it is for the Oireachtas to do this work and it is a policy matter. It is written in language deferential to the Legislature. I could change it to "to plan, monitor and review the implementation". The word "plan" is more active, the others may imply passivity. Can we take that as a speaking amendment, to add the word "plan"?
Amendment, as amended, agreed to.
I move amendment No. 242:
In page 25, before section 24, but in Part 4, to insert the following new section:
"165.—(1) The Committee shall consist of the following members, that is to say, a chairperson and such and so many ordinary members as may be appointed from time to time as occasion requires by the Minister.
(2) The members of the Committee shall be appointed by the Minister from among persons who in the opinion of the Minister have experience of, and expertise in relation to, matters connected with the functions of the Committee.".
I move amendment No. 1 to amendment No. 242:
In subsection (2), after "expertise" to insert "including Human Rights expertise".
Amendment to amendment agreed to.
The Minister is coming back on his ideas on membership and has accepted some degree of consultation.
Deputy Ó Snodaigh mentioned remuneration. Is there a need to provide for this in the Act?
Is there a legal basis on which to make payments?
I will consider this between now and Report Stage. I am reluctant to involve the Department of Finance in schemes. There is a degree of latitude, for instance, in the case of a person who does some work for a Department an ex gratia payment may be made.
That is a contract payment.
Sometimes it is not even that. Sometimes people do work and a Department will not pay them for that work but in order to honour them they will give them, say, €5,000 or some such figure. An honorarium is sometimes paid to people for work done. I do not want to set out a statutory scheme of payment for these people.
It is purely——
I understand. The Deputy is talking about an enabling measure.
——to provide a legal basis to give them something if it is considered appropriate.
I will examine it between now and Report Stage. I imagine the formula will be——
Keep away from Merrion Street.
If I do put down a formula, it will have to mention the consent of the Minister for Finance.
Amendment, as amended, agreed to.
I move amendment No. 243:
In page 25, before section 24, but in Part 4, to insert the following new section:
"166.—(1) The Minister may at any time, for stated reasons, terminate a person's membership of the Committee.
(2) A member of the Committee may resign his or her membership of the Committee by notice in writing given to the Minister, and the resignation shall take effect on the day on which the Minister receives the notice.
(3) A member of the Committee shall, subject to the provisions of this Part, hold office upon such terms and conditions including terms and conditions relating to remuneration and allowances for expenses) as the Minister, with the consent of the Minister for Finance, may from time to time determine.".
Amendment agreed to.
I move amendment No. 244:
In page 25, before section 24, but in Part 4, to insert the following new section:
"167.—If a member of the Committee dies, resigns, or ceases to be a member of the Committee, the Minister may appoint a person to be a member of the Committee to fill the vacancy so occasioned in the same manner as the member of the Committee who occasioned the vacancy was appointed.".
Amendment agreed to.
I move amendment No. 245:
In page 25, before section 24, but in Part 4, to insert the following new section:
"168.—(1) The Committee shall hold such and so many meetings as may be necessary for the performance of its functions and the achievement of its programme of work and may make such arrangements for the conduct of its meetings and business (including the establishment of subcommittees and the fixing of a quorum for a meeting) as it considers appropriate.
(2) The Committee may act notwithstanding one or more vacancies among its members.
(3) Subject to the provisions of this Part, the Committee shall regulate its own procedure by rules or otherwise.
(4) At a meeting of the Committee—
(a) the chairperson of the Committee shall, if present, be the chairperson of the meeting, or
(b) if and so long as the chairperson of the Committee is not present, or if that office is vacant, the members of the Committee who are present shall choose one of their number to be chairperson of the meeting.
(5) A member of the Committee, other than the chairperson, who is unable to attend a meeting of the Committee, may nominate a deputy to attend in his or her place.".
Amendment agreed to.
I move amendment No. 246:
In page 25, before section 24, but in Part 4, to insert the following new section:
"169.—(1) The Minister shall, as soon as may be after the commencement of this Part and thereafter, at least once in every 2 years, after consultation with the Committee, determine a programme of work to be undertaken by the Committee over the ensuing specified period.
(2) Notwithstanding subsection (1), the Minister may, from time to time, amend the programme of work, including the period to which the programme relates.".
The amendment refers to every two years. Why not annually? What is the reason for including two years?
Two years is probably a more reasonable period. To make it "annually" would add hassle to the process from the Department's point of view. Some official in the Department will have to bring the file to the Minister every year and plan an extra year's work. That will take a month or two.
There is a yearly report of some description.
Taking into account the kind of work involved, the two year period is probably the wiser.
Amendment agreed to.
I move amendment No. 247:
In page 25, before section 24, but in Part 4, to insert the following new section:
"170.—(1) The Committee shall, not later than 3 months after the end of each calendar year, prepare and submit to the Minister a report on the performance of its functions and activities during the preceding year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas within a period of 2 months from the receipt of the report.
(2) A report under subsection (1) shall be in such form as the Minister may approve and shall include information in such form and regarding such matters as the Minister may from time to time direct.
(3) The Committee shall supply to the Minister such information regarding the performance of its functions as the Minister may from time to time require.".
It would be helpful to the committee if there was some discussion on the report. I am concerned that the report will be produced to the Minister, the Minister will cause a copy to be placed in the Oireachtas Library, there will be a short reference on the back of the Green Paper and that will be it. Regardless of whether it is practical, some form of debate or brief discussion, not necessarily in the Dáil but perhaps by the justice committee——
It is a matter for the committees to set their own agendas. Time is precious enough.
We could put in a clause stating that in addition to a report being laid before each House of the Oireachtas within a period of two months from the receipt of the report, the Minister shall cause the report to be forwarded to the clerk to the justice committee of the Houses of the Oireachtas.
The statute is the problem. Once we start defining the statute the committees of the Houses have——
We could say the appropriate committee of the Houses. That term is used in the statute already. It means that the committee will be alerted to the report being produced and it goes on the——
I will look at it.
Will the Minister look at it to determine if there is some way, without being too prescriptive, we can at least plant the idea that whatever report is produced will not be left gathering dust?
Amendment agreed to.
The next group of amendments tabled by Deputy O'Keeffe are out of order because corporate killing is outside the scope of the Bill.
All of them.
Corporate killing is outside the scope of a criminal justice Bill.
It is outside the scope of this Bill.
May I make an observation on that? I produced an amendment on the offence of corporate killing in two different enactments, one of which was a companies Bill, and I was told it was inappropriate. The other was in a health and safety at work Bill, which I though was an appropriate vehicle but I was told it too was inappropriate. We are now told it is inappropriate for a criminal justice Bill. May I ask the distinguished Minister and lawyer what sort of legislative vehicle would be appropriate?
Standing Order 125 provides that an instruction be given to all committees to which Bills may be committed that they have the power to make such amendments therein as they shall think fit, provided that such amendments be relevant to the provisions of the Bill. On that basis this group of amendments has been deemed out of order.
I understand the Deputy is obliged to go back to the Dáil for approval to table amendments to widen the ambit of the Bill. The Ceann Comhairle's office took the view that, effectively, we had to have another Second Stage debate before we widened the ambit of the Bill to cover some of the amendments I tendered. If I had to do that, the same applies to Deputy Howlin. He would have to get the whole House to consider a motion to allow him to be——
Is there any point——
The issue of corporate killing is being examined in the Department.
I cannot conceive of any issue more appropriate to a criminal justice Bill, particularly one that deals with the range of issues we have already discussed and in the 247 amendments tabled so far.
We have addressed the law on homicide and related matters. Why would this particular form of homicide be different?
The issue of corporate killing must be dealt with. The Law Reform Commission made serious recommendations on establishing the offence of corporate manslaughter. It arises when talking about causing the death of anybody through gross negligence. The ideas behind these amendments are not off the top of the head. They are largely drawn from the very detailed Law Reform Commission well.
It is obvious from the amendments and the way they are laid out that much work, effort, time and thought went into them.
Huge effort, and major effort on the part of the Law Reform Commission. This is the appropriate vehicle through which the work of the Law Reform Commission, taking into account the other issues we have incorporated in the Bill, can be brought into statutory law.
On the argument as to the ambit of the Bill, we had the original Long Title, which covered a range of issues in the criminal law area. That was subsequently expanded considerably. I would have prepared more arguments for the Minister but I had not been aware that these amendments were to be disallowed.
I want to make it clear that this is not my ruling. I did not procure it.
The reason the Minister's amendments were allowed was because the House ordered at that time that they be allowed and they were discussed on that basis but the House has not ordered that Deputy Jim O'Keeffe's amendments be allowed because it was not asked about it nor was it discussed.
Having regard to the quality of these amendments I believe a great deal of work has gone into them. I compliment the Deputy on the work he and his draftsman put into them but——
Will the Minister include in his compliments the Law Reform Commission?
And the Law Reform Commission. I assure the Deputy we are working on this issue in the Department because arising out of social partnership discussions, we are obliged to do so. There is a momentum which is happening anyway.
I note in the Long Title to the Bill a series of issues is set out and the phrase "to provide for related matters" is included.
That provides for the Revenue Commissioners.
As Deputy Howlin said, we have been discussing murder, manslaughter and criminal law of all kinds, therefore corporate killing is potentially equivalent to manslaughter. They are related.
I accept that. However, in regard to related matters, the Dáil takes a fairly narrow view, and one must get permission from it if a related matter is broader than what a narrow definition would infer. This group of amendments has been ruled out of order.
I am reluctant to move on from this issue. I was not aware that there——
I apologise for that.
——was an objection to these amendments.
I had to go in sackcloth and ashes, so to speak, to get a motion passed in the Dáil to allow my amendments to be taken. If members search the record carefully, they will note that the Chair said on that occasion that even though I had done that it was not to be taken as a precedent for the future. I had a finger wagged at me for doing that.
I am aware that members receive a great deal of correspondence, but I am informed by the secretariat that a letter was sent to Deputy Jim O'Keeffe at the beginning of Committee Stage informing him that these amendments were outside the scope of this legislation.
If the secretariat indicates that, I accept it.
One could use the words that "I was not personally aware of that".
I accept that months ago when we began this torturous process that could have happened. I might not have focused on the full import of a list of amendments having been ruled out of order. The only other course of action would be for us to return to the House in this regard.
Let us not do that.
A criminal law (miscellaneous provisions) Bill is due to come before us.
Will it come before us when we finish consideration of this Bill?
Yes, it is coming down the tracks. It will go to Government in the next few weeks. Therefore, there is another vehicle coming down the tracks.
It would be helpful if the Minister indicated that he would insert such a provision in legislation at an early stage, otherwise we would also be prevented from tabling such amendments to that Bill.
I will consider that in the very near future.
I have brought this matter as far as I can at this stage. I appreciate the technicalities involved, but I record this is an area that needs to be tackled. There is growing concern about cowboy operators who do not give tuppence about the safety, security and health of workers in many instances. They need to be brought to book. We need to put into statute law the offence of gross negligence by management in causing the death of people, in particular workers. I cannot bring the matter any further at this stage other than to indicate my desire to have these recommendations from the Law Reform Commission debated and passed into law at the earliest possible time.
Amendments Nos.a247a to a247l, inclusive, not moved.
I move amendment No. 247a:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—(1) In this section—
"abuser" means an individual believed by a person who has authority or control over that individual to have seriously harmed or sexually abused a child or more than one child;
"child" means a person under 18 years of age, except where the context otherwise requires;
"serious harm" means injury which creates a substantial risk of death or which causes permanent disfigurement or loss or impairment of the mobility of the body as a whole or of the function of any particular member or organ;
"sexual abuse" means an offence under paragraphs 1 to 13 and 16(a) and (b) of the Schedule to the Sex Offenders Act 2001.
(2) A person, having authority or control over a child or abuser, who intentionally or recklessly endangers a child by—
(a) causing or permitting any child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse, or
(b) failing to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation,
is guilty of an offence.
(3) Where a person is charged with an offence under subsection (2), no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.
(4) A person guilty of an offence under this section is liable on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or both.".
This amendment relates to the crime of reckless endangerment of children and was tabled by my party's previous spokesperson on justice. It creates an offence for failing to take reasonable steps to protect a child from risk, while knowing of a child being in such a situation, and set out severe penalties for that crime. I would be interested to hear the Minister's view on this amendment.
I am very much of the view that this is an appropriate amendment to make. I said in the House that I was minded, in the context of this legislation, to address the question of reckless endangerment, as recommended by Mr. Justice Frank Murphy, in the Ferns report. It is important to have a legal provision of this kind. I am satisfied that the wording advanced by the Deputy is apt for this purpose and I am disposed to accepting the amendment.
Amendment agreed to.
I move amendment No. 247b:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—(1) Where a person is the subject of an unexecuted bench warrant, it shall be lawful notwithstanding anything in the Data Protection Acts 1988 to 2003 for a member of the Garda Síochána to require any data processor (whether in the public or private sector) to communicate with the member any information relevant to the person for the purposes of apprehending the person, or to notify the member or another member when the person interacts with the data processor, or both.
(2) In this section "bench warrant" includes any instrument, warrant or order requiring a person to surrender to a court, prison or member of the Garda Síochána.".
This amendment addresses an anomaly where, for example, a bench warrant is issued for an individual who is signing on for social welfare benefit and a check of the social welfare record would show that the warrant has not been served. Notwithstanding the current provisions of the Data Protection Act, the amendment would allow for a member of the Garda Síochána to require any data processor in the public or private sector to communicate with that member any information relevant for the purposes of apprehending that person for whom a bench warrant has been issued. It strikes many people as strange that legitimate bench warrants for the arrest of individuals for, on occasion, serious enough offences cannot be executed because the individual cannot be found. That individual does not simply disappear and he or she may be in receipt of State benefit. It is a cause of concern and bemusement to people that the State authorities cannot help one another to find an individual for whom a bench warrant has been issued and who has a case to meet.
I recognise the point the Deputy is making but a few problems occur to me in regard to accepting his proposal. If the Deputy is proposing any bank could be approached to inquire if there is a Michael McDowell on its books or that the ESB could be approached——-
I believe the Revenue could do that.
Yes, well they are the Revenue. This amendment suggests that one could approach the ESB and inquire if it has Aengus Ó Snodaigh on a list and that one could hunt for anybody with that name. What this amendment is driving at, in a slightly circular way, is the notion that we should have ID cards and that when one is being prosecuted and there is a warrant for one's arrest, the identify of the person on the warrant could be flashed up across the system and a co-ordinated drive be undertaken to search for that person wherever they turn up.
I am saying no such thing but it is interesting that the Minister has said this.
That is the logic of this amendment. If a garda stops one on the side of the road and establishes a direct connection with PULSE, which is the next phase of the development of Garda ID technology, he or she could either read out to an operator behind the scenes or type in the ID number on one's ID card or driver's licence——
That is a step beyond what I am suggesting with due respect.
Is the Deputy not also saying that all TDs are data processors and if a person approaches the Deputy, then he would be bound under this provision to immediately notify the Garda that Joe Bloggs has approached him?
No, the reverse is the position. A member of the Garda Síochána——-
As a matter of interest I am advised that the Data Protection Acts make specific provisions on the sharing of information for the purpose of criminal investigations which do not restrict the disclosure of data for the purpose of apprehending a person who is the subject of an unexecuted bench warrant. That is the advice I have.
Is the Minister saying that it is possible to effect what I suggest should be effected under the current law?
The Data Protection Acts are not an obstacle to it — it is much more a practicality issue. Is a garda to ring up the Bank of Ireland or a building society and inquire if it has a Michael McDowell on its books?
I have listened to the debate with interest. The Minister's first response of bundling the discussion into the issue of ID cards was a little off key. The amendment does not have much relevance to ID cards. It could be the case that if we had ID cards in the future, it would facilitate data sharing with regard to bench warrants. However, Deputy Howlin's amendment does not appear to require the introduction of ID cards. That is a separate area in which I have an interest, not from the point of view of pressing for their introduction but because I have compiled a report on the issue. Incidentally, that report concludes that we should not rush into introducing them.
What is before us is a proposal that if a member of the force is pursuing somebody to execute a warrant, the member can access the data in, for example, the Department of Social and Family Affairs, to get addresses and so forth.
There would not be a problem with that. I doubt that the Garda would be refused that information by the Department of Social and Family Affairs if gardaí were hunting for somebody.
If they went to the AIB in Balbriggan they would not be given it.
Every building society, bank and telephone company which falls into this category would also be involved. Deputy Howlin makes the point that somebody could be signing on for the dole. That is true. One can go to a bank, building society or telecommunications company and ask them about a Michael McDowell who lives in Ranelagh but the Garda should be able to get to Michael McDowell in Ranelagh. This is the point I was making with regard to ID cards. If they have a name and address, they should go to that address because the bank is unlikely to have more information about where one lives than one's name and address.
I was outlining a slightly different scenario, for example, where one has date of birth material. This would be relevant because there are often cases where fathers and sons are mixed up because they have the same address. The Garda must be very careful executing a warrant to ensure they do not take away the father or the son when the other person is the subject of the warrant. From that point of view a PPS number would be more clear——
I would be willing to hear an argument on that. There is disquiet about the number of unexecuted warrants. People move from place to place with much greater freedom now. Rented accommodation is more a feature of life than it was 30 years ago and there is certainly a case for a debate on ID cards. The PPS number is held from cradle to grave. We must have a mechanism because people can be visible in the community but not be amenable because they have moved address or to a different town.
Does the Deputy accept one would have a responsibility, if one encountered the person, to notify the Garda?
No.
That is what the amendment states.
It does not. It states a member of the Garda Síochána will require any data processor to do that. I have some experience of how these matters can be resisted.
There is some logic to what Deputy Howlin is seeking in the amendment in terms of the public sector. However, when one goes beyond the public sector, for example, if a garda approached a Deputy, there is confidentiality between the Deputy and a client. There is also confidentiality if, for example, somebody was attending Alcoholics Anonymous. It would obviously have a list of its members. If somebody was in psychiatric treatment and a garda came seeking the information——
I can say from experience, and I am familiar with the views of the Supreme Court on this matter, if it involved a serious criminal, be it a sex abuser or murderer, I doubt that the courts would be disposed to protecting the person's confidentiality because he is attending an AA meeting.
What about collecting a fine for €150?
There is a difference between a murderer and somebody who is fined €150.
That is a horse of a different colour.
That is what I am saying. There is a logic to it and we need a debate on it. There is logic with regard to the different computer banks the State has and how they communicate with each other. It is not just the legal system.
There is another example apart from warrants. If I sign a deportation order for somebody, that person can continue to do business with the State agencies in terms of housing, welfare benefits and so forth. If he is not supposed to be in the country the fact that a community welfare officer is giving him money every week for his rent is a little odd.
We do not want to create a black economy.
We will not use that phrase.
We probably need to differentiate between the type of warrant being executed. Second, if we were to proceed with this, District Court orders might be required. The trouble is that one could be giving carte blanche to the Garda Síochána to go on trawling missions.
I will withdraw the amendment. The idea was to stimulate debate on the issue. It is a little raw in its current form to be enacted into law.
Amendment, by leave, withdrawn.
Is amendment No. 247c related to 247b?
I move amendment No. 247c:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—Notwithstanding any enactment or rule of court, a bench warrant issued by a judge of any Court shall continue in force until executed or cancelled by the judge or another judge.".
This is a separate issue. The current lifespan of warrants is six months. We should have a separate debate on it.
Sitting suspended at 11 a.m. and resumed at 7 p.m.
We had been dealing with amendment No. 247c.
We had just begun to debate this amendment when we suspended. The issue is the duration of warrants in order to reduce the problem of unexecuted bench warrants, which we discussed on the last amendment. We are suggesting that the six-month expiry currently in place is an obstacle to the enforcement of warrants. I would be interested to hear the Minister's view on my suggestion that warrants should remain extant until executed, or discharged or cancelled by a judge in that court or another court.
The intention behind the amendment is not very clear. It seems to provide that a time limit may not be imposed on the execution of bench warrants, and that a bench warrant which is normally understood to mean a warrant to arrest somebody who failed to appear in court, either on bail or in response to a summons, does not have to be executed within any set time limit. There is no time limit on the execution of a bench warrant for good reason. Where a court issues a bench warrant, it wants that person brought before it without delay. I acknowledge that this is not possible in all cases due to the difficulty in locating individuals. Deputy Howlin, however, having regard to the definition of bench warrants under the previous amendment, which seems to include committal warrants and fine warrants, appears to want to abolish the six month time limit which applies to the execution of those warrants under the rules of the District Court. After that time, they can, if the court is satisfied, be reissued. The reason for that is that it would be bad practice to have a situation where such warrants remain unexecuted for long periods without a court being satisfied as to the reason for the delay. It could potentially lead to an abuse of the system in that warrants, which could have been executed promptly, would remain unexecuted until it suits the person executing the warrant. It occurs to me that it might be better to provide in the rules of court that unexecuted warrants are automatically relisted before the court for an explanation. It does not need a statute.
Okay.
This can be done by rules of court. I take the point that it is amazing how many of them are shelved and one never hears what happens to them. Maybe there should be finality one way or another. If a person who applied for a warrant and got it, had to come back to the court at some stage and say, either in writing or otherwise, "I haven't been able to execute the warrant for the following reason...", that may be a stimulus either to do something with it, do nothing with it or not apply for it in the first place.
Is there a distinction here between bench warrants and committal warrants?
If someone is sentenced to six months in jail, a committal warrant is issued to put them away.
Therefore, one warrant is issued before a conviction and the other afterwards. Is that correct?
A person could be convicted in absentia and the sentence upheld. In other words, if someone is done for having no insurance and appeals the case but never turns up, a committal warrant could be issued instead of simply a bench warrant to bring a person before the court.
Yes, but it said the committal warrant arose from a conviction.
I do not see any reason that should matter because a committal warrant is not time limited. It says it is to be done without delay.
Is the bench warrant time limited?
No. It is the other way around. A bench warrant is not time limited.
The committal warrant is time limited, while the bench warrant is not.
If one gets three months and the person is not apprehended within six months, is that it?
One must go back to court if one wants an order to put that person in jail. Otherwise, there would be people saying "That is very interesting. I will just put that away for later use, see how that young gentlemen behaves and we can pull it out".
What if the bird has flown, the fellow just goes off to England for six months?
That is the reason I mentioned to Deputy Howlin my view that the thrust of his argument might be better addressed by providing a reporting mechanism as to what happened.
It is not a bad idea, but how will we do that? One of the frustrations is that so many warrants are issued, not only is that the end of them but nobody knows that is the end of them because they just lapse and there is no more to be said of it unless somebody starts the process again. Should there be a reporting mechanism?
If somebody driving a car stopped on the side of a road, a warrant is issued if he or she does not turn up on a charge of driving without insurance or whatever. The person may have gone to England. The person may have given a false name and address in the first instance. There could be many explanations or the person could simply have moved to Kerry and left no forwarding address.
There should be some finality about knowing that.
I agree with that. The fact that those warrants do not always move to finality is not an indictment of the Garda or a statement of laziness. If, for example, a garda stops somebody for driving without insurance in Ballsbridge and the person gives an address in rented accommodation in Rathmines, subsequently the garda goes to court where the person does not turn up and where the garda gets a warrant, and Rathmines gardaí go looking for the person and there is no person of that name at that address any more, then it is not laziness on the part of the gardaí if they do not work out that the person is now in Tralee or Wolverhampton. It is easy for us to sit here stating that something should happen with that warrant, but from the Garda point of view I ask members to be understanding. Sending gardaí off trying to work out the person's forwarding address may be a considerable consumption of Garda time and a pointless exercise.
I suppose the basic question that emerges here is whether we can put in place a better system. There is no point in blaming a garda, who, in the case of such a relatively minor offence, has other tasks. For example, there might even by a multiplicity of warrants of different kinds involved. Is there a system using modern technology where such warrants would be registered centrally, either through the Courts Service or through PULSE?
That is an idea, that they are registered on PULSE, or wherever, and are accessible on a centralised database.
Is that working? Is that the case?
That is not the case. Those are ideas worth exploring. All I am saying is that I see a slight problem with Deputy Howlin's particular amendment. I am not stating that there is not a problem here but I also want to make clear it is not a simple issue to solve. It is not as if one afternoon a Minister can wave a magic wand and thereafter all warrants will be executed and the problem will go away. It will not be that easy.
I take the Minister's point. He made much sense, in terms of the rules of court or a procedural way of dealing with it. I never suggested there is any lethargy in the execution of warrants on behalf of the Garda. That is not what I am saying.
There may be in some cases. It is hard to distinguish between the genuine cases and others.
The only one who applied malfeasance to the gardaí was the Minister, in terms of saying that one might——
I am not imputing that to anybody.
——put it in his or her pocket and do nothing with it.
While I am not suggesting Deputy Howlin is teeing this up, from looking at press and other coverage there is a tendency to think that a warrant not followed up to a satisfactory conclusion shows that somebody somewhere is not doing his or her job, and it is not a necessary conclusion. At some stage a superintendent in a Garda station must work out whether he or she will spend many man hours pursuing somebody on a charge of driving without insurance.
Should it state it must be a serious charge?
In the case of serious indictable offences, no doubt the Garda would hunt down the person.
Should there be a reporting mechanism to the court which issued the warrant in the first instance? It seems bizarre that a warrant issued from the bench goes into the ether thereafter and is not necessarily reported back to it.
I agree it is unsatisfactory but I would just say this. Even to establish a reporting mechanism——
It is not easy.
Who will process the report coming back and what will they do with it?
The Minister has all these lovely people now going to work in Mayo.
The people in Mayo are doing a good job.
I am sure they are.
Receiving, processing and recording returned warrants, which show a person is not available at the address and inquiries failed to locate the person, would take up a great deal of bureaucratic time.
Where it is not a terribly serious warrant, would it be better than a garda calling twice to the house to find nobody there and being distracted to do other tasks, and nobody doing anything about it? If that is what happens to warrants, perhaps judges must be more careful in issuing them.
The court rule idea is one we will look at. It is not an easy issue and much time could be consumed on it.
On that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 247d:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—In lieu of the periods of detention authorised by the Criminal Justice Act 1984, section 4(3)(a) and (b) of the Act shall be construed as if “24” was substituted for “6” in each case.”.
I have given some consideration to this matter, the time an individual can be held in custody for questioning, with my legal advisers. The point was made to me that there are now a variety of different time periods, depending on the particular Act under which an individual is detained even for committing a serious offence. The time and detention periods are different, whether under the Criminal Justice Act, the Offences against the State Act or the Criminal Justice (Drugs Trafficking) Act 1996. It was put to me strongly by people in the area that there should be some standardisation. It is not always easy and I did not want to standardise the detention periods in line with the maximum periods allowed for drug trafficking offences.
I suggest in my amendment that the Criminal Justice Act be brought in line with the Offences against the State Act. It can be a technical matter whether somebody is charged for a serious offence under the Criminal Justice Act or the Offences against the State Act. If the Oireachtas deemed it appropriate to question people for significant periods of time — I listened to the Minister speak on the restatement motion on the Offences against the State (Amendment) Act 1998 and he certainly made the point that in comparison to other European jurisdictions, much less internationally, our detention regime is not draconian — I wonder whether, in the light of the growing seriousness of the coaching of crime gangs on how they deal with periods in custody, we should move towards bringing the periods allowed for questioning for serious matters under the Criminal Justice Act parallel to those under the Offences against the State Act.
Chairman, I must be radically critical of you for allowing this. Earlier we amended section 4 and Deputy Howlin is reopening a matter that we have already agreed.
Before I came aboard.
Maybe that is what happened. The matter is not as easy as Deputy Howlin's amendment would make it appear. By substituting "24" for "6" wherever it appears in the 1984 Act, Deputy Howlin is providing for the following, that a period from a maximum of 24 hours including any rest periods would increase to 60 hours excluding rest periods. That is the first problem.
Section 8 of the Bill which has been agreed amends section 4 of the 1984 Act to provide for increased powers of detention for arrestable offences. Section 8 provides for a further period of detention of up to 12 hours if authorised by a garda not below the rank of chief superintendent. In providing for a maximum period of 60 hours, including rest periods, the Deputy's amendment seeks to go further than what was recommended in the Leahy report. It recommended a period of 48 hours, including rest periods. I consider that the amendment agreed in this section is reasonable, particularly when considered in conjunction with the regulations relating to custody and video recording already in force in the new regime introduced by the Garda Síochána Act 2005. We should, therefore, stick to section 8. What the Deputy is seeking to do is to increase the period to 60 hours. He will recall from the discussion this morning that the period provided for in the Offences against the State Act ranges from 48 to 72 hours. Therefore, I cannot accept the amendment and I am surprised the Deputy succeeded in having it tabled.
I am surprised to find myself facing a Minister who is more wimpish about the matter.
It is getting very competitive. It is no wonder our Sinn Féin friend has left.
Amendment, by leave, withdrawn.
I move amendment No. 247e:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.".
This is a rebalancing proposal based on a UK proposal where, for example, new DNA or other evidence emerges subsequent to a case. In such cases there should be a mechanism for correcting miscarriages of justice. The provision of new compelling evidence allows for the revisiting of a case where there has been a miscarriage of justice involving a wrongful conviction. However, I suggest that where there is new compelling evidence, there should be some avenue open to the Director of Public Prosecutions to revisit an acquittal. The form of words I suggest are:
In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment [this confines us to the most serious crimes of murder, serious sexual assault and similar crimes], who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.
I am interested in hearing the Minister's views on the amendment and how it would fit into international obligations and the Constitution. In common justice terms, there is a compelling case for it.
As he acknowledges, the Deputy's amendment is based on the UK provision in the Criminal Justice Act 2003 which came into force in April last year and provides for an exception to the double jeopardy rule in the case of very serious offences. The Director of Public Prosecutions in England and Wales is empowered to authorise a police investigation and give written consent to enable a case to be referred to the Court of Appeal for retrial if certain conditions are met, including that there is new compelling evidence and that it is in the public interest.
I have an open mind on this issue. It is a cornerstone of common law that the prosecution has only one bite at the cherry and if it fails, that is the end of the matter. I recognise that the Deputy is concerned with the most grave offences, although some offences incurring a life sentence would not be that grave. For example, the offence of robbery and false imprisonment can carry a life sentence, yet some such offences might not be all that serious. For instance, the average mugging is a robbery. Accepting that in principle we could tie down the issue to murder, rape and other serious offences, the proposal is worth considering.
I know of one case in which an individual was convicted of a very serious offence — the capital murder of a garda — and sentenced to prison. He appealed the decision at a late stage to the Court of Criminal Appeal and, on the basis of the non-disclosure of records, was acquitted. He then commenced proceedings for a wrongful miscarriage of justice. In the course of the State's defence, as I understand it, DNA evidence was obtained which was not available at the time of the original conviction which proved his blood had been found at the scene of the crime. I do not know whether there has yet been an outcome to the case but it is a strange one.
All I can say is that it would be a far reaching change if the position on murder cases was to be changed in this way to accommodate the amendment. I accept the Deputy's suggestion that it would only occur where there was compelling new evidence. However, would that compelling new evidence amount to the statement of the accused or an accomplice who suddenly came forward ten years after the event and said he or she had lied to the police at the time but now wanted to say he or she had seen——
That should be determined by the Director of Public Prosecutions and subsequently in court.
It would be a radical change and I would prefer to have more time to think about it. It is something on which we would definitely require a Government discussion or Second Stage debate. It is such a radical change that I could not make it alone.
When I saw the amendment, I was taken by it and my immediate reaction was to think of the concept of double jeopardy. I went to the trouble of contacting a criminal lawyer and said to him that I thought it would make sense. I asked him, as someone schooled in the principle of double jeopardy, whether there would be a problem in that regard. His answer was that the principle was not set in stone. I then asked whether it would have constitutional implications, but he said it would not infringe on the Constitution. We should, therefore, give the proposal serious consideration. With modern technology, it is possible that new and, in some instances, compelling evidence will become available.
If we look at the development of our criminal law system, there is probably a case for rebalancing it, taking into account a range of societal and other factors. If we go back as far as the 18th century, an unfortunate accused person was not even able to speak in his or her own defence. At the time most accused persons were probably illiterate and not defended in court. Rules ultimately emerged to provide for a sense of fair play as far as an accused person was concerned. If we look at developments in our society and legal system since, the balance has tilted the other way. Often the accused is well educated and invariably well defended, either at the expense of the taxpayer or because he or she has access to large sums of money, the provenance of which might be doubtful. I think I read in an article lately that, from the point of view of the prosecution, every stage of the process was an opportunity for the accused to be acquitted for some technical or other reason. One slip on the part of the prosecution means the accused can bound away. If the accused is convicted, he or she can appeal. We need to take into account the change in the situation and our duty as legislators to try to ensure, without going overboard, that we put in place legal mechanisms to protect the public as far as possible in cases involving very serious crimes. The amendment would provide such a legal mechanism. The proposal is confined to an offence that carries a maximum or mandatory sentence of life imprisonment to ensure we would not go overboard.
The Office of the Director of Public Prosecutions which would have a role in this regard is sometimes the subject of criticism in newspapers. Since it was established in 1975, the office has developed a major role as an independent prosecutor on behalf of the State. Significant new evidence would be needed in cases of this nature. It would then be a question of submitting an application to the Court of Criminal Appeal for an order setting aside an acquittal and directing that a retrial take place. Many hurdles have to be crossed if we are to ensure we do not throw out the baby with the bathwater in this instance.
I was one of the first Members to speak about the leniency of sentences. Some time has passed since.
It was not popular.
The suggestion that the Director of Public Prosecutions should have the right in certain instances to appeal against the leniency of sentences which is now accepted was initially considered by some to be an appalling new departure. When I tabled a Private Members' motion on the issue, the reaction was that the idea was incredibly wrong because it was contrary to principles of civil liberties, human rights and God knows what else. However, the proposal was ultimately accepted and is now established as part of our criminal justice system. A change such as that proposed by Deputy Howlin in this instance would be a reasonable rebalancing of the law at this stage. I support the amendment for that reason.
The amendments I tabled earlier on Committee Stage to allow "without prejudice" appeals were based on a consultation paper on this matter issued by the Law Reform Commission. Perhaps I will draw Deputy Howlin's amendment and the committee's discussion on it to the attention of the commission before it completes its final report.
The Minister and I would have——
I heard a report on Radio 4 this morning on people who are given life sentences in the United Kingdom. It seems that in the past five years more than 50 life sentences have meant less than five years. My ears pricked up immediately when I heard this because I thought that if it was to happen here, I would be a target for incoming fire.
The Minister would be in the dock.
Again.
When I listened more carefully to the report, I learned that the life sentences in question were generally applied under a recent UK initiative, whereby violent offenders on a second or third offence sentenced to life imprisonment have to serve a minimum term. The provision whereby people can be freed after a minimum term has been served is leading to people who have been sentenced to life imprisonment being freed after five years. The life sentence is, in effect, being used in terrorem in such cases. People who are freed in such circumstances are on licence for the rest of their lives because they are repeat violent offenders. I am sure the Home Secretary who came up with the idea and piloted through the Bill in question thought it was a vote-winner. I presume my good friend, Dr. John Reid, blanched when he heard that it had been reported this morning that 52 people sentenced to life imprisonment had served five years or less.
The Minister has suggested that he will refer my amendment and the debate on it to the Law Reform Commission. I suppose that is the new way of putting something off sine die. I was impressed by the case made to me by those who wanted me to table the amendment. It is possible, as technology continues to improve, that people might be identified who have gone through the legal system having committed heinous crimes, in some instances, and have the potential to reoffend. It would be wrong if there were no mechanism to deal with this. The State should have such a mechanism. The Minister has spoken about the need to have a Second Stage debate on all of this. He made the point, not long after I became a member of this committee, that it was dealing with a great deal of material.
This is such a radical step — I am not saying it is a wrong step — that it would be unthinkable for me to accept such an amendment this evening without permission from the Cabinet. I know the Deputy agrees with me in that regard
The Minister will not be able to do that.
Like Deputy O'Keeffe, my first reaction when I saw Deputy Howlin's proposal was that it flew in the face of everything I had learned at college, etc. When I reflected on it, however, I thought it was not necessarily wrong. I can see the attractions of the proposal. The United Kingdom has introduced another interesting measure that we might consider. If it emerges after a jury trial that there was a miscarriage of justice owing to the intimidation of a juror, the person on trial can be put on trial again.
Where is that stated?
Sections 54 to 56 of the UK Criminal Procedure and Investigations Act 1996 provide for retrials in cases of acquittals tainted by intimidation. We have not introduced such a measure here. There are rich pickings to be had. I ask members of the committee to reflect on this morning's reports in the United Kingdom to which I referred before they get too enthusiastic about this proposal.
Retrials would be more acceptable in cases of juror intimidation than in cases such as those envisaged in Deputy Howlin's amendment.
What is the Chairman's view, as an observer of these matters?
My view is that we would be considering a totally different amendment if Deputy Costello was sitting in Deputy Howlin's chair.
Times change.
Does the Deputy propose to pursue the amendment?
I am pleased that the Minister has taken the suggestion seriously. It will have to travel some distance before it finds itself in statute law. I am not naive enough to believe everyone will nod assent to it now. For that reason I will withdraw it. I hope this proposal will help to stimulate some process to ensure somebody who is clearly guilty of a heinous offence cannot walk free, never to be touched again, when it is possible that at some future date evidence will be found to show that he or she was the guilty person.
If everyone knows that someone is guilty, it is possible that evidence will emerge to demonstrate that he or she is right.
Amendment, by leave, withdrawn.
I move amendment No. 247f:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—(1) There shall be a register of violent offenders, and any enactment relating to the register of sex offenders shall apply with any necessary modifications to persons who are convicted of an offence to which this section applies.
(2) This section applies to an offence under the Non-Fatal Offences against the Person Act 1997 save where the court is of opinion that the offence did not involve violence or the threat of violence and was otherwise not a sufficiently serious offence to warrant registration.".
This straightforward amendment simply seeks to create a register of violent offenders and allow post-release supervision by the normal civil mechanisms. Many of us were a little surprised to discover in recent times that what we had thought was a register of sex offenders did not in fact operate as an actual register. I hope it will be brought into operation at some future date. Similarly, a violent offenders' register should be introduced because the perpetration of acts of violence against individuals is a significant problem. A case was reported on the news at 6 p.m. in which a publican going about his normal business in County Roscommon had suffered a terrible assault by three youths who had terrified their victim and necessitated his having 30 stitches to his face. Those who commit such offences need to be monitored on release. The perpetrators received a two year prison sentence and will be released long before the period of the sentence elapses but the disamenity and suffering they caused will last forever. A monitoring mechanism should be in place, particularly for repeat offenders.
The Deputy seems to be reading foreign newspapers because the United Kingdom is proposing to publish before the summer proposals for such a register. We could achieve much of the aim of this procedure in Irish law by suspending a portion of a sentence for a period and providing, as a condition of the sentence being suspended, that a person notify the Garda of his or her whereabouts. A creative Judiciary, once it has grasped the concept of a partly suspended sentence, could achieve much of the effect of the proposal. For example, a judge could sentence a person to six years' imprisonment, direct that he or she serve three years and suspend the balance for six years on condition that he or she be of good behaviour and notify the Garda of his or her whereabouts during the six year period. It may not be necessary to have a separate register to achieve the purpose of the amendment.
I will observe with interest what the Home Secretary comes up with, whereupon I will have to ask the Garda whether it adds value and would, in the circumstances, be superior to the model I have just mentioned of making it a condition of a suspended sentence. All these matters need to be examined.
Some time ago following a question on what I wanted to do with criminals, I was quoted as saying I wanted to put the fear of God into them. Having criminals in terrorem would not worry me and a strong case can be made for having such a register. I am not sure, however, that the approach outlined by the Minister is on a par with that proposed in the amendment. The former is another instrument available to the courts which they might use in a limited number of cases. The latter, on the other hand, is a register of offenders which could be used for a range of purposes, including checks to protect innocent members of the public from further activities by registered violent offenders. If I were to be critical of Deputy Howlin’s proposal which I do not intend to be, I would ask whether any such register should be confined to offences under the Non-fatal Offences against the Person Act 1997.
It should be borne in mind that we have already inserted in the legislation a provision to establish a drug offenders register. A sexual offenders register is already in place. Who will not be registered when this process is complete?
A person charged with the common law offence of manslaughter would not be captured by the proposal.
I agree that any such register should, in principle, apply to homicide offences.
It should cover offences such as common law manslaughter, in addition to the offences comprehended by the amendment. I am sure Deputy Howlin would accept an amendment to tighten up his amendment. A schedule of offences to which the register would apply could include common law manslaughter and other offences of that nature. The basic question, however, is whether it would be beneficial to have a register of violent offenders. If the UK authorities appear to be moving in that direction, I see considerable potential for following suit here.
Some years ago the prevailing view was that a sex offenders' register was required. The Minister obviously shared this view because he has in his proposals created a new drug offenders' register. I presume, therefore, that such a mechanism has a deterrent or, at least, monitoring effect. The analysis done by the Labour Party found that people are most concerned about violence, specifically the casual violence perpetrated by small groups of thugs in communities who wantonly lash out and cause terrible harm. Often the tariff meted out by the courts does not correspond to the life-changing effect of the trauma visited on the victim, particularly in the case of elderly people but also some very young persons. We need to come to terms with the growing problem of violence.
How would a register work? Does the Minister share my view that a PULSE-type system should, for example, contain a register of all sex offenders which would be readily accessible to those authorised to access it and enable them to find out where an individual sex offender resides?
While the Act permits such an arrangement, the current paper driven method is not satisfactory. I have spoken about the matter to the Secretary General of my Department and it is our intention to address the actual implementing practices under these registration offences to ensure they are workable in each case. It does not require a statutory change.
Procedural change is needed.
Better procedures must be in place.
I presume this would entail establishing a single electronic system accessible to those duly and properly authorised to monitor such persons.
That would be my preference. I was a little surprised to discover that the register, as it is commonly described, was a series of documents spread all over the country.
That surprised all of us.
I did not know that was the case, having assumed a register meant a register. If one reads the offences, one sees that they do not refer to a single register.
Is the Minister causing a single register to be introduced?
The issue is monitored centrally. The current procedure is not ideal. Clearly, an electronic version would be far better.
The Minister has discussed the matter with the Garda authorities.
No, I have discussed it with the Secretary General of my Department and we both agree we must bring to the Garda authorities' attention that a searchable electronic register would be preferable to a manual document or series of documents in different places.
As we have agreed, there is no point in establishing, by statute, a second register if it will have the same form as the current register.
Will authority and responsibility for such a register lie with the Garda, courts or Department?
De facto the Garda has responsibility in this matter.
I understand the sex offenders' register which I, in my naivety, thought was a single entity from which duly authorised persons could extract details on where a sex offender resided simply involves a requirement for a sex offender to mosey down to his or her local Garda station and make his or her presence felt. This information is then recorded on a piece of paper in the station. Is that correct?
Apparently it was not what the average Joe and Josephine Soap in the street thought it was.
Or the average Minister for Justice by the sound of it.
It is a good deal more primitive than I thought.
In terms of the issue of a violence register, the Minister stated his preferred way of dealing with it——
No, I did not say that. I said that was a way of dealing with it. I said I am interested in seeing how it would work. I accept Deputy Jim O'Keeffe's non-criticism that at the very least it should apply to manslaughter.
That is fair enough.
I would like to think this through and to get it to work properly. The other thing about which I want to be sure is that there is value added in it.
I fully accept that it will not work if there is no discernible end.
There will be separate lists for sexual offenders, drug offenders and violent offenders. It is important to get one of them working properly before work commences on the other two. If one starts on the three at the same time, invariably the whole three of them will fall.
We have had one for several years.
We have one that is supposed to work.
From a debugging point of view, it is important to get one working.
I appreciate that this amendment is for the purpose of discussion only. I do not criticise it on that account. It is an interesting issue. I agree with the Chairman's view that we had better make sure the registers are value-added and are working effectively before we start multiplying them and creating more paperwork for the Garda.
The Minister could use that argument when he puts forward his amendment on the drug offenders' register.
When I proposed the drug offenders' register I made other arguments, especially about mobility in and out of the country and so on, important issues in which I can see valued added. Knowing that a fellow who clocked somebody over the head with an iron bar has moved from one county to another may be of significance to the Garda. It is not self-evident to me that in every violent case this would be a big help to the Garda.
Perhaps for psychopathic violent offenders.
We have aired the issue. I withdraw the amendment.
I thank Deputy Howlin.
Amendment, by leave, withdrawn.
I move amendment No. 247g:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—Notwithstanding any other enactment, where a court proposes to impose a monetary fine as a penalty on conviction for any offence, whether or not the court proposes to impose any other penalty in addition, the court shall have regard to the annual income of the offender, and on summary conviction may impose a fine not exceeding 10 per cent of the annual income of the offender for any one offence, in lieu of any maximum fine that may be set by any enactment"."
The amendment relates to dealing with fines by the District Court. The wording is very straightforward.
With some offences one could pay no money at all.
A poor person might be fined €100 ten times and have no money at all. I discussed the matter with our own legal people because I had strong views about it. One of the things I did to try to get gardaí out of the courts and onto traffic detail was to introduce on-the-spot fines when I was in the Department of the Environment. I thought it was a good idea, but to borrow a phrase, on mature reflection I am not sure it was as good as I thought it to be because for many people a fine of £50, as was, did not bother them in the slightest. People did not mind being caught twice and paying fines. This was before penalty points were introduced. It had no impact on them. The same fine imposed on somebody where it constituted up to one quarter of his or her weekly wage had a different order of impact.
Some jurisdictions have regard to the person's ability to pay. If justice is to be applied even-handedly in setting a monetary value on a fine, it must have some relationship to what that pain would mean for the individual required to pay the fine. We have overcome the difficulty with fines alone, especially in the case of motoring offences and others in the District Court, largely by the introduction of the penalty points system. As soon as that system gets properly up and running there will be a much deeper sting. However, for other issues, a monetary penalty alone that is not related to the ability to pay is a most unequal instrument to use as a penalty for citizens because in that case they are not equal before the law.
I am not a lawyer and I do not know what would be a better mechanism to equalise the system. Again, I put this amendment forward, as the Minister said, as a debating point. The core idea underlying it is an important one, namely, that the brunt of pain felt by offenders should be equal, regardless of the social standing or income of those who commit the same offence.
I have some sympathy for the Deputy's point, which is one that occurred to me when I was Attorney General. The question arose of what the upper limit should be for fines. A perennial issue in the Attorney General's office is what should be regarded by the High Court as a minor penalty offence. Discussion has taken place as to whether a wealthy person should have a different threshold from a person of lesser means when it comes to what they are liable for in fines in the District Court. It is an issue which I will put to the Attorney General again to see if there is any mechanism by which he could do this.
A fines Bill is being drafted and its publication is expected very shortly in the Attorney General's office. It will increase the fine in the District Court generally to €5,000 and will provide for an assessment of means and instalment orders which go some but not all the way towards Deputy Howlin's intention. It is a good idea to have substantial fines payable by instalment because otherwise people will be sent to jail for relatively small sums of money.
It is not so much that point, which is a fair and different one — the question is one of equality before the law. I have known individuals who could pay €50 fines without missing it but for other poor unfortunates it made a crippling hole in their income for the week. Is there a way of addressing that type of inequality before the law? I refer, by and large, to the District Court.
I will raise the matter with the Attorney General of whether it considers it safe to do that. However, I must caution the Deputy in a number of respects. When ones sees how higher education grants were issued in the past——
I am very aware of that but, clearly, declared income is a different kettle of fish.
Declared income is one thing and then there are people who could sustain a loss in a particular year and be sitting on a pile of capital. Means are not totally income related. If one has €5 million in the bank but sustained a loss in one's business in a particular year, one's annual income would not be a fair basis on which to make the decision. The principle would have to be looked at also with reference to means of a capital kind to make it fair.
Is the intention behind Deputy Howlin's amendment not to get District Justices to take into account one's ability to pay a fine so that it will be sore on the pocket, not only of those who are poor, but also those who are well able to afford to pay a small fine?
That is an admirable aim. The rich can be capital-rich and income-rich.
The income could just constitute capital gains, which is not income at all. It might only be once every five years.
Some people trade up in houses and live on the capital gains.
It is useful to explore these issues. As somebody who practised in the District Court, I believe the problem has more dimensions than have been touched upon so far. I generally found that District Court judges were interested to know the general position of the defendant and did not want to penalise unduly those who were not terribly well off.
As the Deputy well knows, there are well known cases in which the courts have abandoned fines completely in respect of wealthy people and proposed substantial donations to a charity or the court poor box. This achieved the same result but I am not keen on it because it is very arbitrary.
That is one of the aspects that should be considered. There are many positive aspects to the court poor box but also some down sides. I saw proposals on this that suggested building a totally bureaucratic structure into the system. I was not totally enamoured with this and did not believe it was the answer.
I have sympathy with Deputy Howlin's point that the system can sometimes over-penalise the poor and under-penalise the wealthy. This can arise in other ways. The Deputy mentioned the fixed-penalty procedure. Over-penalisation can occur where the defendant does not turn up in court and may not have the means to pay the penalty. I recall the case of the lady who did not turn up in court on being discovered not to possess a television licence. She received a fine of €150, did not pay, and was then arrested by the Garda and brought to prison for defaulting on payment. We cannot operate on the basis that the court is, at all times, in a position to know the means of the defendant, who may not be able to turn up. If the courts work according to fixed-fine procedures, there is no opportunity to assess defendants' means. There are issues in this regard to be examined, including that of the court poor box, and there is no simple answer.
I am happy enough with the debate we have had. The amendment is too crude to be immediately acceptable for adoption into the statute but I hope the principle will somehow be captured. Perhaps the new fines Bill, when we see it, will establish a basis on which we can develop a fairer system in the courts. I am happy with the debate and will withdraw my amendment on that basis.
Amendment, by leave, withdrawn.
I move amendment No. 247h:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—(1) Where a defendant appears or is represented at the hearing of a complaint charging a summary offence, the court shall first state the substance of the complaint and ask whether the defendant pleads guilty or not guilty.
(2) If the defendant or the defendant's representative on his or her behalf informs the court that he or she pleads guilty, the court may, if it sees no sufficient reason to the contrary, convict or make an order against the defendant accordingly, without hearing the evidence.
(3) If the defendant does not plead guilty, or does not subsequently change his or her plea to guilty, the court shall proceed to hear and determine the complaint and may, after hearing the evidence and such representations, if any, as may be made to it by or on behalf of the parties, convict the defendant or dismiss the complaint.
(4) In imposing sentence following conviction for a summary offence, a court shall have regard to whether the defendant pleaded guilty or not guilty to that offence and, in the event of a plea of guilt, at what stage he or she pleaded guilty to that offence.".
This is a technical amendment suggested by one of my legal advisers and it makes the simple point that the accused should plead guilty or not guilty at the outset in the District Court. It surprised me that there is no such requirement. One can sit dumb and see the lie of the case against one. If one spots a flaw in the notes, or other material, on which one can hop, one can defend one's case. One should be up-front and state at the outset whether one is guilty or not, after which appropriate action may be taken, and thus there would be no further delay in the case. The notion that the defendant has an each-way bet in that he can determine the strength of the case against him before deciding whether to contest it strikes me as wasteful. It takes unduly from the court's time and is not just.
This is interesting because Order 23 of the District Court rules provides as follows:
Where the accused, personally or by solicitor or counsel appears and admits the truth of the complaint made against him or her, the Court may if it sees no sufficient reason to the contrary, convict or make an order against him or her accordingly, but if the accused does not admit the truth of the complaint, the Court shall, subject to the provisions of rule 2 hereof [which deals with non-appearance], proceed to hear and determine such complaint.
The working group on the jurisdiction of the courts considered this in its report at paragraphs 707 to 710 and, in 2004, the District Court rules committee examined the working group's recommendation. It decided, in its wisdom, not to change the current wording and leave it as it is. A view was expressed that the proposal that pleas be recorded individually would not be practicable in view of the volume of summonses and other matters required to be dealt with in District Court lists, which can be long.
The Deputy suggests in his amendment that the court may, on foot of a plea of guilt, convict or make an order against the defendant accordingly, without hearing the evidence. There are due process issues to be considered in this regard.
Judges normally ask the defendant whether he or she admits to the offence but I remember one judge who just used to say "Guilty" in a questioning tone. It always struck me that the presumption of innocence was slightly absent. The Deputy makes an interesting point but it was considered as late as 2004 and the District Court rules committee, comprising District Court judges, said it was not keen on it.
I would love to hear the reasoning.
They liked the existing system.
The basic point is that a benefit should accrue to a defendant who pleads guilty. The practical reality is that this is not always the case. The State would be saved much trouble and expense if witnesses did not always have to be brought to court. It is not very meritorious or beneficial to the taxpayer or the system of administration of justice if somebody enters a plea after his case is called such that a sergeant and two other gardaí who are witnesses to the offence, in addition to a couple of civilian witnesses, for example, would have to be brought to the court together by the Superintendent. It would be fully meritorious if a plea of guilt were made in advance such that they would not have to attend the court.
In principle, our system should favour a defendant who pleads guilty rather than one who fights his or her case and is subsequently found guilty, particularly if he or she commits perjury in doing so. I would also like to see some kind of an add-on system whereby if such pleas were indicated to the State in advance, thus saving the taxpayer a great deal of expense, saving court time and allowing gardaí to be freed for other duties, there should be a greater benefit. The idea generally is good but to get the full benefit, it would need to be fleshed out.
I have not been practising as a barrister since 1999, when I became Attorney General, and my officials have just handed me an amendment in the law in 1999, which I was unaware of, which states:
In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—
(a) the state in the proceedings for the offence at which a person indicates an intention to plead guilty, and
(b) the circumstance in which this indication was given.
That is a general principle of our law of which I was unaware until now. It is interesting.
On Deputy Jim O'Keeffe's point, it would be very useful if the local prosecutor knew in advance whether someone was going to admit to an offence or not. The problem is that accused persons are not usually that organised with their solicitors so that they can all get together and work out that there is a definite advantage to pleading guilty. Many of these people, if they are as guilty as sin, might feel that the garda involved might fall and break his or her leg on the day of the court case, and the person might get off. They would feel it terrible to write to the court saying they would be pleading in three months' time, because then they would be caught.
They might take their chances.
There is the principle of law which we are all discussing and which I have read out. In principle, what Deputy Jim O'Keeffe proposes is a good idea but, in practice, one will not get accused people to face up to what they are doing. If I were a District Court judge, I would let it be known to the practitioners in my area that, for example, with regard to drink driving offences, if the Garda were to be notified in advance that the accused would be taking a certain course at an early stage, I would always visit that with added leniency. If the Garda knew it would not have to bring witnesses and so on, I would always do that. However, no more than anyone in this room, I cannot dictate to judges that they must do that or in what circumstances they must do that.
I agree with Deputy Jim O'Keeffe. It is a good thing if potential witnesses are not brought to court unnecessarily and if the Judiciary gives a significant discount to somebody who makes the process work well.
On a practical level, if someone were charged with dangerous driving under section 53 of the Road Traffic Act, and were as guilty as sin, in the Minister's phrase, one would enter into a plea bargaining arrangement which would save the State expense and have the matter disposed of. This would be by arrangement with the superintendent whereby a plea would be entered under section 52 involving a lesser charge of careless driving. On that basis, no witnesses would be necessary.
I am looking at that. However, I have a fairly substantial mailbag in the Department and in my constituency office with people writing to me from time to time saying they do not like the sentences handed down for dangerous driving or drink driving where fatalities or injuries are involved. They have the feeling that the Garda is not vigorous in exacting retributive justice. It may be that the factors to which Deputy Jim O'Keeffe refers are real factors in those cases, but in many of these cases the victim must also be remembered.
Absolutely. I am merely pointing out on a practical level the sort of arrangements which used to be made in the days when I practised at the District Court, which is quite a while ago.
Victims now expect their day in court and want to see justice done. We must be careful despite wanting to be efficient.
People write to me on occasion about children who seriously assault other children and who break their teeth, for example, and who are dealt with under the youth diversion schemes. Those people say that is wholly inappropriate. A person's child could now be missing three teeth, and the offender is not even brought to the District Court and perhaps just cautioned under a youth diversion programme.
I agree with the Minister on this. We have rightly gone from a situation where the victim was not considered at all in the context of court proceedings in the old days and was merely a witness, or not, as suited the court proceedings. The victim must have a more central role.
Victims like to see justice administered.
I accept that.
I am pleased to hear there is a 1999 enactment, of which I was unaware. Under the principle I set out, whatever the views of the good and learned judges of the District Court, one would imagine more efficiency would result. I can understand the charge sometimes levelled at District Court level, such as the disorganisation of some of the people who appear might not lend itself to the clarity which this proposal would bring about. Someone charged with an offence will either confess or will not. If the person confesses, there is a positive impact on the penalty, and if not, the person cannot change horses.
One can obviously change from pleading not guilty to guilty in the course of a trial, but the notion that one would just see the lie of the land and, perhaps, discover that the garda broke a leg just before deciding one's course of action strikes me as a wasteful one for the District Court. I am minded to listen to what the Minister and my Fine Gael colleague, Deputy Jim O'Keeffe, say because they have much greater experience of these matters than I. Perhaps this discussion could be revisited with judges when they are again discussing rules, and they could be alerted that the Oireachtas believes this might be useful.
Amendment, by leave, withdrawn.
I move amendment No. 247i:
In page 25, before section 24, but in Part 5, to insert the following new section:
"24.—(1) Where an enactment creates an offence and provides any qualification, exception, exemption, proviso or excuse, whether accompanying the description of the offence or otherwise—
(a) the qualification, exception, exemption, proviso or excuse need not be specified or negatived in a complaint charging that offence;
(b) at the hearing of a complaint charging that offence, no proof in relation to the qualification, exception, exemption, proviso or excuse is required on the part of the prosecution;
(c) if the defendant at the hearing of a complaint charging that offence wishes to rely on the qualification, exception, exemption, proviso or excuse—
(i) the burden of proving such qualification, exception, exemption, proviso or excuse rests on the defendant;
(ii) the court shall, unless the interests of justice otherwise require, allow the prosecution to re-open the case in order to adduce evidence in rebuttal of evidence adduced by the defendant under subparagraph (i).
(2) In determining whether subsection (1) applies to an enactment creating an offence, regard shall be had to—
(a) whether the provision concerned—
(i) reduces the scope or extent of the factual outline that delineates the ambit of the offence,
(ii) excludes specified persons or cases from the class of those who would otherwise fall within that factual outline, or
(iii) otherwise narrows the effect of the enactment;
(b) whether, notwithstanding that a particular fact is provided for as an ingredient of an offence rather than the non-existence of that fact being provided for as giving rise to a qualification, exception, exemption, proviso or excuse, the fact in question is of such a nature that its non-existence in any particular case would be exceptional and its existence in such cases generally can therefore reasonably be presumed;
(c) whether there is a reasonable possibility that a state of affairs adverted to by or on behalf of the defendant may exist or may have existed;
(d) the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question;
(e) the public interest in ensuring that the prosecution should not be required to prove facts peculiarly within the knowledge of the defendant or to disprove facts that are improbable;
(f) the presumption of innocence and the constitutional rights of accused persons.
(3) Without prejudice to the generality of subsection (1) and without exhausting or limiting its meaning, the following is an example of its operation, namely in relation to a prohibition on doing an act save with the licence or permission of specified authorities, proof that the licence or permission was not given by those authorities.
(4) This section applies to summary proceedings for any offence, whether the offence is a summary offence, an indictable offence that is triable summarily or an offence that is triable either summarily or on indictment"."
This is a very technical amendment.
Where was this picked up?
Not only was it picked up, I have a three-page speaking note on it, which I propose to read if the Minister gives me lip.
It looks like a lift from some foreign criminal code. Is that so?
It is a very erudite enunciation of law going back to an 1877 rule, plus a quotation of case law — DPP v. Woolmington, Viscount Sankey and various other authorities — which I will happily share with the Minister.
Is that part of the 19th century attempted codification?
The idea in essence, as explained to me, which convinced me to table the amendment, was a more straightforward one. As I understand the case to be in any court, the burden of proof normally falls on the person who makes the assertion. That is normally the prosecution. The idea of the amendment is to update, restate and clarify the application of a rule not to introduce any new principles except one where a defendant introduces evidence to show he or she comes within an exceptional proviso that makes unlawful behaviour lawful. For example, the person might not be subject to the licensing law because of being a family member, but the prosecution would not have advance notice of that and ought to be entitled to reopen the case and rebut that evidence, if possible, where the evidence is patently not true.
I am advised the amendment first sets out a rule about drafting complaints. The complaint charging the offence need not be drafted to negative every qualification, exemption, proviso and excuse and so on. The prosecution need not disprove every proviso in its evidence. If the defendant wishes to rely on a proviso, he must produce or point to the evidence, and the prosecution should be entitled to reopen the case to rebut it. Essentially, where an assertion is made by the prosecution and the defendant, relying on an exemption, is required to produce evidence, the prosecution should also have the chance to rebut it. That is my summation. I will happily give the Minister the speaking note or, at worst, read it to him.
I am curious to know whether it comes from a code somewhere. It is a very interesting provision.
I am not advised in that regard.
Most of it I recognise as established common law, but the rebuttal proposal is new. I believe that it has considerable merit. However, I unfortunately have not had an opportunity to consider it and cannot accept it on the hoof. The first portion of the Deputy's amendment is what I was talking about today. This is procedural codification. Those are common law principles, and that is the sort of issue that dragged down codification activity in England.
That is the mire the Minister was pointing out.
Given that this work has been done, I assume it is an effort at codification that could well have been drawn from another legal code. It certainly has its attractions, but I would have to consider it for another occasion. I could not accept it today.
I understand that. We will break at 8.30 p.m., at which time I will give the Minister my speaking notes for consideration. He will be aware of this amendment's author, one of my legal advisers whose erudition on such matters cannot be doubted.
Is it the Ranelagh dweller or the other one?
The former.
I have no doubt it is a very interesting proposition. I suspect it has been taken from somewhere, and it is certainly attractive. Not tonight, thanks.
The Minister's final denial should have been rather more gentle.
I am grateful to the Deputy and his legal adviser.
The Minister was clearly not great on courting skills. I will withdraw the amendment. A compelling case was made to me to table it, and it would improve the law. I hope there will be a suitable vehicle in which the principle might be captured at some stage.
Amendment, by leave, withdrawn.
Amendment No. 247j is not in order.
On a point of order, without labouring the point, I know the Standing Order and I was not simply chancing my arm. I submitted this because the Minister had stated that he had considered the introduction of similar legislation, although not similar amendments.
I remember Deputy Howlin's reaction when I said that.
I was in some ways chancing my arm but, in other ways, I was making a point. We have dealt with sexual abuse and sex offenders in previous amendments, one of which we took earlier this evening. It is not that far out of order.
Just a bit.
On this occasion, I will accept the ruling.
Amendment No. 247j not moved.
SECTION 24.
Amendments Nos. 248 and 249 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 248:
In page 25, subsection (1), to delete lines 34 to 37 and substitute the following:
"(b) an offence that is triable—
(i) at the election of the prosecution, either on indictment or summarily, or
(ii) either on indictment or, subject to certain conditions including the consent of the prosecution, summarily.".
This is a drafting amendment to ensure that the policy intention behind section 24 of the Bill as published is clearly reflected in that provision. That policy intention is that the six-month time limit for the making of complaints in cases of summary jurisdiction as set out in section 10(4) of the Petty Sessions (Ireland) Act 1851 shall, in addition to continuing not to apply to offences set out in the Schedule to the 1951 Act, also not apply to hybrid offences, that is, offences in respect of which the prosecuting authority makes the decision whether the offences should be tried summarily or on indictment, and "either way" offences, that is, indictable offences that the court may try summarily, subject to certain conditions. The proposed amendment reflects that intention in a more transparent way and will aid interpretation by the courts.
Deputy Howlin's amendment, No. 249, would impose a 12-month time limit on taking summary proceedings regarding an offence appearing in the Schedule to the 1951 Act and also regarding all hybrid and "either way" offences. That would mean that summary proceedings would have to be taken within 12 months of the commission of an offence. With regard to the schedule of offences, that would be somewhat negative since no time limit has applied to taking summary proceedings regarding these offences since 1951 and, until the Supreme Court decision in the Logan case, was not considered to apply to indictable offences either.
The types of offences included in the First Schedule are a mix of common law offences such as perjury, obstruction in the administration of justice and some statutory offences such as under the Offences against the Person Act 1861. I am aware that the value of the First Schedule has lessened in recent years with the abolition of some larceny offences through enactment of the Criminal Justice (Theft and Fraud Offences) Act 2001. However, the case has been made for imposing a time limit where none has existed for more than 50 years for the prosecution of the schedule of offences.
Regarding hybrid and "either way" offences generally, imposing a 12-month time limit would be unnecessarily restrictive and impractical and could lead to some injustice for victims. There are instances where offences do not come to light until some time after their commission, for example, the simple larceny of an employee or the opening of a bank account under a false name not involving serious criminality. By the time the owner of the business has identified a shortfall in his accounts or the bank has discovered the account holder does not exist, the time may have expired, with the consequence that the offence cannot be prosecuted, even if it is minor.
Another example might be regarding a sexual assault, a complaint about which might not be made for several years. Obviously, if the offence is not minor in nature, no time limit would apply. However, some offences that might be seen as minor might be excluded from prosecution if not discovered or a charge not brought within the period. Another danger from the imposition of a time limit is that, where some time has elapsed between commission of the offence and identification of the perpetrator by the Garda, the 12-month limit may have expired, ruling out prosecution on a summary basis.
A further reason for not imposing a time limit is that the appropriateness of trying a case summarily might not emerge until all the evidence had been gathered, which can take some time. It is worth noting in this context that excessive delay in bringing a prosecution in any case, perhaps owing to a delay in making a complaint sufficient to trigger prosecution, can amount to a breach of constitutional rights to fair procedure, about which we have heard in recent days. There is ample case law on that proposal. That gives an adequate safeguard to the accused. I ask that the Deputy accept that my formulation is as far as we should go.
I am minded to accept the Minister's view. However, I am not clear what offences should stand alone as open-ended. Offences covered by the Petty Sessions (Ireland) Act 1851 have the time limit, and time limits are provided by law for some. Others have no time limit provided by law, and that is a determination of the Oireachtas. If the 12-month limit I suggest is not acceptable, is any time limit acceptable for those categories of offences? Perhaps the Minister might inform the committee what the offences are and why there should be no time limit for them.
I am not in a position to give the Deputy a catalogue of all the offences in the Schedule to the 1951 Act. I may have them with me, and I will return to the Deputy presently.
What was that?
They are offences in the nature of public mischief, an indictable offence——
The Minister himself is guilty of that.
——obstruction of the administration of justice or the enforcement of the law, perjury, unlawful assembly, an offence under the Plate Assay (Ireland) Act 1807, which deals with stamping incorrect hallmarks, an offence under section 38 of the Offences against the Person Act 1861, or an offence under the Criminal Law (Amendment) Act 1885. I believe this has been gone since the other day. Also included are an offence under the Enforcement of Court Orders Act, which I believe is about not paying fines, an offence under section 11 of the Wireless Telegraphy Act — I do not know what that is — an offence under section 65 of the Road Traffic Act 1933 — that could not be right — attempted carnal knowledge in constituting an offence under section 1(2) of the Criminal Law Amendment Act 1935, which is now gone, and an attempt to commit an offence which the District Court has, by jurisdiction of any enactment, jurisdiction to try summarily. This list of offences is a dying breed. It includes all other indictable offences that may be tried summarily. That was very clear. The Deputy asked for it and that was what he got.
On balance, I am inclined to accept the Minister's position.
Amendment agreed to.
Amendment No. 249 not moved.
Section 24, as amended, agreed to.
Sitting suspended at 8.30 p.m. and resumed at 9.10 p.m.
SECTION 25.
Amendments Nos. 249a and 249b are composite and can be discussed together.
I move amendment No. 249a:
In page 26, lines 23 and 24, to delete "then, for the purposes of section 79 of this Act,".
These are proposed for consideration by the Parliamentary Counsel.
The Parliamentary Counsel looked at many of the amendments tabled by the Deputy that relate to drafting. Some of them will be accepted but the counsel has not accepted this one.
Amendment, by leave, withdrawn.
Amendment No. 249b not moved.
I move amendment No. 250:
In page 26, line 41, after "have" to insert "had".
This amendment corrects a grammatical error.
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26.
Amendments Nos. 250a and 250b are composite and may be discussed together.
I move amendment No. 250a:
In page 27, lines 30 to 32, to delete all words from and including "then," in line 30 down to and including "Act," in line 32.
These amendments are for consideration by the Parliamentary Counsel. They are merely efforts to improve the drafting of the Bill.
These are still not accepted.
Amendment, by leave, withdrawn.
Amendment No. 250b not moved.
I move amendment No. 251:
In page 27, line 52, after "have" to insert "had".
Amendment agreed to.
Section 26, as amended, agreed to.
NEW SECTION.
I move amendment No. a251a:
In page 28, before section 27, to insert the following new section:
"27.—The Courts (Supplemental Provisions) Act 1961 is amended by the insertion of the following section after section 32:
"32A.—(1) This section applies to the following powers of a judge of the District Court:
(a) the power to issue a warrant for the arrest of a person;
(b) the power to issue a warrant to a member of the Garda Síochána or, if appropriate, any other person authorising the entry to, and search of, any place or premises (including a dwelling) and, if appropriate, the search of any person found at such place or premises for all or any of the following purposes:
(i) the gathering of evidence of, or relating to, the commission or attempted commission of any criminal offence;
(ii) the gathering of evidence of, or relating to, the contravention in any other respect of any provision of an enactment;
(iii) ascertaining whether there is or has been compliance with any provision of an enactment;
(iv) the gathering of evidence of, or relating to, assets or proceeds deriving from criminal conduct (within the meaning of section 1(1) of the Criminal Assets Bureau Act 1996) or to their identity or whereabouts;
(c) the power to make an order, upon the application of a member of the Garda Síochána or, if appropriate, any other person, directing another person to produce, make available for inspection or to give access to any particular document, material or thing, or documents, material or things of a particular description, for the purposes of investigating—
(i) any criminal offence,
(ii) whether there is or has been a contravention in any other respect of any provision of an enactment, or
(iii) whether a person has benefited from assets or proceeds deriving from criminal conduct (within the meaning of section 1(1) of the Criminal Assets Bureau Act 1996) or is in receipt of or controls such assets or proceeds.
(2) A judge of the District Court may, in relation to a relevant district, exercise while in any place in the State outside that relevant district any of the powers to which this section applies for the time being conferred on him or her by law if, but only if, he or she would be entitled to exercise the power concerned at a sitting of the District Court in that relevant district.
(3) Without prejudice to the generality of paragraph (b) of subsection (1) of this section, a warrant may fall within that paragraph notwithstanding that the warrant or the power under which it is issued authorises all or any of the following:
(a) the entry, if necessary by the use of force, to a place or premises (including a dwelling);
(b) the doing of acts in addition to the acts specified in subsection (1)(b) of this section;
(c) the execution of the warrant by a person other than the member of the Garda Síochána or, if appropriate, any other person to whom it is issued;
(d) the accompaniment of the person executing the warrant by any other persons during the execution thereof.
(4) Without prejudice to the generality of paragraph (c) of subsection (1) of this section, an order may fall within that paragraph notwithstanding that the order or the power under which it is made authorises all or any of the following:
(a) a member of the Garda Síochána or any other person to enter a place for the purpose of inspecting or getting access to any document, material or thing or documents, material or things of a particular description;
(b) the execution of the order by a person other than the member of the Garda Síochána or, if appropriate, any other person who applies for it;
(c) the retention, or copying, for the purposes of proceedings (criminal or civil) by a member of the Garda Síochána or any other person of any document, material or thing, or documents, material or things of a particular description, produced, made available for inspection or to which access is given.
(5) In this section—
‘enactment' means a statute or an instrument made under a power conferred by statute;
‘district' means a district court district;
‘relevant district', in relation to a judge of the District Court, means a district—
(a) to which he or she is permanently assigned under paragraph 2 of the Sixth Schedule to this Act,
(b) to which he or she is temporarily assigned under subparagraph (1) or (2) of paragraph 3 of the said Schedule, or
(c) in relation to which he or she is acting in the circumstances specified in subparagraph (1), (2) or (3) of paragraph 4 of the said Schedule for another judge of the District Court who is permanently assigned to the district”.”
The Supreme Court held in October 2004, in the case of Dylan Creaven, that there was a clear requirement on a District Court judge to sit in the district to which he or she had been assigned to have jurisdiction. The principal matter at issue in the case was the validity of search warrants issued under section 14 of the Proceeds of Crime Act 1996. The court found that, for a warrant to be valid, it must be issued by the judge while he or she is physically in his or her district. The court found that certain warrants in this case were invalid because they were issued by a judge sitting outside the district to which he had been temporarily assigned. The judgment had significant implications, especially for the criminal sphere regarding search and arrest warrants which may be required urgently outside normal sitting hours. In emergency situations, some district judges often issue such warrants from their homes.
There is a need to allow flexibility for a District Court judge in issuing warrants wherever the judge is physically located. Accordingly, my proposed amendment will allow a District Court judge to issue a warrant for his or her district in circumstances where he or she is not physically in the district. This amendment has been the subject of very careful examination. It is vital that procedural matters of this nature are very clearly set down and in as comprehensive a manner as possible. With this in mind, my Department undertook a consultation with other Departments to identify matters which they considered appropriate for inclusion in the scope of the proposal. These are matters which do not fall neatly into the classification of a criminal matter but which may give rise to the necessity for an urgent application being made to a judge of the District Court for an order or warrant. An example of this is an application for a warrant authorising an inspector under the Safety, Health and Welfare at Work Act 2005 to enter premises and perform his or her functions under the Act.
Subsection (1) sets out the powers of the District Court to which the provision applies. The three powers identified are the power to issue a warrant for the arrest of a person, the power to issue a warrant to a member of the Garda Síochána for search purposes, as well as the power to make an order directing a person to produce documents for inspection. Subsection (2) is the key provision. It provides that a District Court judge may, in a district to which he or she is assigned, exercise jurisdiction regarding the powers in subsection (1) while in any place in the State. The subsection only refers to the exercise by the relevant powers of a judge while outside his or her district, as no doubt has been cast on the jurisdiction of a judge while in his or her district.
Subsections (3) and (4) provide greater clarity on the nature of warrants and orders that come within the scope of the provision. In particular, the subsections provide guidance in the application of this section to matters which may not be considered criminal matters in the true sense and may be more regulatory in nature. Subsection (5) is a standard provision providing for the definition of certain terms in the section.
I referred to my intention to withdraw portions of section 5 of the Criminal Justice Bill 2004. These dealt with emergency search warrants arising from the report of the Morris tribunal. A Report Stage amendment to remove the relevant sections of section 5 of the Bill is under preparation. The amendment will entail the deletion of subsections (2), (3) and (5) in their entirety, as well as a small amendment to subsection (4), as it contains a cross-reference to subsection (5). Section 5, as amended, will therefore amend section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 to provide that a judge of the District Court may issue a search warrant in respect of evidence of or relating to the commission of an arrestable offence. Section 10 currently only applies to certain serious offences. The provision will also align the wording of section 10 with other search provisions and increase the financial penalty for obstructing or attempting to obstruct an officer acting under such a search warrant. A copy of the provisions will be circulated to the Deputies later.
I mention this for the purpose of admitting an amendment on Report Stage. I intend to withdraw the proposals for emergency search warrants, pending further consideration, which I had set out in section 5 of the Bill, and to leave only the points of section 5 which are of general application and leave the law roughly as it is.
Two issues arise here. The first relates to the fallout from the Dylan Creaven case and the second is the change of position for emergency warrants under section 5. To a degree, the two issues are interconnected. I take it that the Minister is now stating that he will not be pursuing the emergency warrants under section 5 and that the proposal is now being withdrawn in its entirety.
There are bits of the section which I am keeping, but they do not apply to emergency warrants. They do not apply to gardaí issuing emergency warrants.
That makes it all the more important that we have a more sensible process for judges in the District Court to be able to issue warrants, both within and without their districts. In any event, this was a necessary outcome following the Dylan Creaven case. From that point of view, I welcome the extended jurisdiction now given to judges of the District Court to issue a warrant for arrest and search outside their district. It is preferable that warrants be issued by judges rather than by members of the Garda Síochána.
It is necessary to bear in mind the practicalities and the problems that arise. For instance, in my area of west Cork, the judge very often lives in Cork city and only visits the area to do his job in court.
Three days by mule train into the interior.
The problem was not getting into west Cork, but that the area is so attractive they might not go home. We had complaints from judges' wives that they never came home.
This amendment came through so late that I did not have the opportunity to get it fully assessed by my advisers. We are giving a judge of the District Court power, under subsection (2), to issue warrants in any place in the State outside the relevant district to which he or she may be assigned. I am concerned about the constitutional aspect of this power and would like to have it checked. My understanding is that judges of the District Court have a local jurisdiction. I am not sure how far that goes under the Constitution, but I did not have the opportunity to check it out. Although I want the power given, I do not want it given if it is unconstitutional.
Subsection (2) states: "A judge of the District Court may, in relation to a relevant district, exercise while in any place in the State outside that relevant district any of the powers to which this section applies for the time being conferred on him or her by law if, but only if, he or she would be entitled to exercise the power concerned at a sitting of the District Court in that relevant district." In other words——
Will the Minister explain why that would save the section?
If a judge has a power to exercise the power in west Cork but is on holidays in Killala, he or she would only have a power by virtue of this section to exercise that function in regard to west Cork if he or she would have had that power when in west Cork. It is not a widening of the power.
Would a judge in Kerry be able to issue a warrant?
Not unless that judge also had the right to exercise jurisdiction over the Cork——
We are really only mending one part of the problem in that we are allowing the judge to exercise his or her jurisdiction while being temporarily outside his or her jurisdiction.
Yes. To give an example of the other side of the coin, a judge might be a stickler for warrants and have a particular modus operandi. If this provision were not in place, gardaí could simply apply to another judge who was not a stickler for a warrant.
A soft touch.
That judge could come in behind the back of the local judge and give out warrants which the local judge would not give.
If a judge assigned to west Cork is in Killala or anywhere else in the jurisdiction, he or she can exercise the power. However, if that person is not available, nobody can exercise the power of arrest. Is that correct?
There are other provisions with regard to the position when judges are not available. People with broader functions are also assigned. This is only to deal with the very narrow Dylan Creaven point that where, say, District Court judge Jim O'Keeffe——
Is outside his locale.
——has a local jurisdiction, he is not deprived of it by leaving his area. That is all.
Even if the judge is exercising jurisdiction in Killala, he or she is still exercising a local jurisdiction in regard to the area.
Yes. Subsection (2) makes clear that the extra power given to a judge to make an order outside a jurisdiction only applies in cases where the judge would have jurisdiction if he or she were in that jurisdiction. In other words, it does not allow gardaí to go to any judge anywhere in the country and ask for a warrant for their area because the judge could not sit in the relevant District Court area unless he or she were authorised in law to do so.
Is the Minister satisfied it passes any constitutional test?
Yes. I would have a more radical view on the constitutional test. The court must be a court of local and limited jurisdiction but the notion that a particular judge must have localised personality is not a necessary constitutional point. That is an argument for a different day.
I raise the matter because I do not want to see the legislation struck down on the basis of the Constitution.
This is narrower than the Constitution would permit.
I will have to take the Minister's assurance on that. On another aspect, in light of the intention to limit the emergency powers under section 5 to a superintendent, a number of gardaí mentioned to me the kind of difficulties they have at night and at weekends with warrants. That will be eased slightly if they can go to a judge's residence or otherwise, but the judge might be in Killala. How do we cover the point of issuing warrants when a judge is not readily available?
A proposal has been made by the Courts Service and the President of the District Court, Judge Miriam Malone, on the assignment of judges and the issue of search warrants, the purpose of which is to allow some flexibility on the issue of formal assignment in circumstances where an assigned judge is not available. There is a similar provision for the charging and remanding of bail applications before a District Court judge. The Attorney General's office has flagged some concerns with the provision and its operation. It is intended to examine this proposal in full, bearing in mind the fundamental issue which is at the heart of the proposal, namely, jurisdiction.
Is the Minister referring to duty judges?
Something like that.
That is a fundamental issue.
It is. Therefore, it is a matter which I want to consider. It is not in this Bill.
Is the proposal in this Bill?
No. The proposal has been made and we are considering it.
The Minister will take out the section 5 powers and not replace them, other than closing the Dylan Creaven loophole.
Under the Offences against the State Act — it was an Offences against the State Act warrant which attracted the attention of Mr. Justice Morris in one of the reports he submitted to me — senior gardaí at present have a right to issue warrants in certain circumstances. The Leahy committee proposed extending that on a broad basis and section 5 was intended to accomplish this. In view of what Mr. Justice Morris has indicated to me, I am stepping back from that for the present so I can get it right. However, I am not scrapping the Offences against the State Act warrant procedure, about which Mr. Justice Morris also has concerns, until I can study the matter and bring forward an acceptable global solution to this problem.
That may involve duty judges and using the telephone and electronic means to make complaints and depositions to get warrants. It may involve verbally administering an oath over a telephone and these transactions might have to be recorded in particular ways. All those are issues I want to consider. In view of what Mr. Justice Morris has recently conveyed to me, it might appear that I was going in the opposite direction to the points he made on the reform of section 5. I want to reconsider the issue from that perspective.
There is a genuine problem, particularly in rural Ireland and especially over weekends, where gardaí want to take immediate action but the quarry may be gone by the time the weekend is over. It is an issue that cannot be allowed to gather dust.
The Deputy might appreciate that the Dylan Creaven case was perhaps an issue concerning other matters with which the Deputy is dealing in a different context in this House.
Does the Minister want me to refer to them?
What is the nub of the Dylan Creaven case?
On a construction of the Petty Sessions (Ireland) Act 1851 the Supreme Court held that one could only issue warrants at a sitting of the court, and it stated that a sitting in that context meant a sitting within the district. Therefore, if a judge happened to be somewhere else, the judge had no jurisdiction unless he or she was physically located within his or her district to issue the warrant.
The mountain must go to Mohammed.
Everybody goes to west Cork in the summer.
A what time will this meeting conclude?
I hope we finish our deliberations today in order that the Bill can be prepared for Report Stage. At least a week is required for that preparation.
We are discussing important and difficult issues. I wish to make an important procedural point but I appreciate we are all tired.
As I said, there are several stylistic amendments. May we dispose of these rapidly as we encounter them?
That is fine.
We are already taking that approach. In regard to the more substantive amendments, we should avoid any more red herrings and adhere to the content.
Is there an indicative adjournment time?
No.
I would like us to finish by 11 p.m.
We will aim for that. How quickly will the Bill, as amended, be published and how soon will we have access to the Minister's substantive Report Stage amendments?
I hope the Bill, as amended, will be available to Deputies in electronic form on Friday.
When will the Minister's comprehensive Report Stage amendments be available?
We are working on them and hope they will be ready tomorrow evening.
If we are to deal with Report Stage of this Bill the week after next, can we ensure there are no late Government amendments after Friday, as far as is practicable?
It may be the case that some amendments are published early next week; I cannot guarantee I will get everything done by Friday. One of the senior officials dealing with this legislation has suffered a family bereavement and that has created some difficulty.
We understand the difficulties in that regard. There is no reason we cannot take Report Stage several days later than currently anticipated to allow time to study the amendments.
It would be helpful if the Minister and his officials could also arrange to have the new papers electronically transmitted to our advisers.
I will do what I can if Deputies provide me with the relevant e-mail addresses.
The amendment we are discussing uses many words to do very little. I do not suggest all these words are not required, but their import is simply to provide judges with an out-of-district authority which allows them to exercise their powers in the same manner as they do within their own district. That is it in a nutshell.
In regard to the emergency warrants to be issued by a senior garda, Opposition Members are in something of a difficulty because we have not seen the Morris report.
The difficulty is that the Morris report is now before a judge of the High Court who is in seisin of the case. An application would have to be made to move it from there.
By whom must that application be made?
I am party to these proceedings and one of the actions I propose to take is to ask the court to allow me to produce the parts of chapter six of the report that make no reference to any individual. It is important that Deputies and others know what I am talking about in this matter. I do not like this asymmetry of knowledge where I know the report's contents while my colleagues do not.
That is the point I wish to make. I accept the Minister's bona fides in this matter but all of us would like to read the report upon which his conclusions are based.
I will also take advice as to whether I may give a confidential briefing on a reduced portion of the report. The problem is that there is a prohibition on its publication.
Is there a legal prohibition?
Yes.
Is it an advisement or an injunction?
The court has said it should not be published until further order. However, the court is empowered to allow sections of it to be released.
When will it come to a conclusion about the totality of the report?
I do not know. The forthcoming trials of certain individuals are affected. I will try to rescue as much of it from the court process as I can.
This has implications in regard to the ongoing work of the Morris tribunal. Mr. Justice Morris needs to know the work he produces will not only be published but published in a timely fashion that can have an impact on legislation. It is of little use if the information is available to the Minister but to nobody else.
That is my point. What I am doing is in the spirit of what Mr. Justice Morris would want. He has said in the past that he was disappointed that some of his views were not debated and taken into account. I am doing my best in a difficult situation.
We must take the Minister's word on that. I am satisfied to support the amendment.
The changes to section 5, for which Deputy Costello and I argued in the first instance, are welcome. I give notice that I intend to withdraw my outstanding amendments. Most of them have been dealt with already in our discussions and I will resubmit some of them on Report Stage.
Amendment agreed to.
SECTION 27.
Amendments Nos. 251a to 251f, inclusive, may be discussed together.
I will not accept these amendments.
Amendments Nos. 251a to 251f, inclusive, not moved.
Amendment No. 252a is an alternative to amendment No. 252 and the two may be discussed together.
I move amendment No. 252:
In page 28, lines 24 to 26, to delete subsection (4) and substitute the following:
"(4) An appeal from a refusal or grant of an application for an order under this section shall lie—
(a) in relation to proceedings before the District Court, to a judge of the Circuit Court,
(b) in relation to proceedings before the Circuit Criminal Court or a Special Criminal Court, to a judge of the High Court, and
(c) in relation to proceedings before the Central Criminal Court or the Court of Criminal Appeal, to a judge of the Supreme Court,
at the instance of the prosecution or the defence.".
This a drafting amendment. As currently worded, section 27(4) provides that appeals against an order under this section lie to the High Court. This is not necessary, however, where, for example, proceedings before the District Court are concerned. Moreover, it does not address the question of which court shall hear an appeal against an order made under this section by the Special Criminal Court, Central Criminal Court or Court of Criminal Appeal. This amendment aims to correct these deficiencies by clarifying the different courts to which appeals lie under this section. I will not accept Deputy Jim O'Keeffe's related amendment.
Amendment agreed to.
Amendment No. 252a not moved.
Amendments Nos. 252b to 252g, inclusive, 253 and 253a are related and may be discussed together.
Amendments Nos. 252b and 252c not moved.
I move amendment No. 252d:
In page 29, subsection (8), lines 5 and 6, to delete "exceding" and substitute "exceeding".
This amendment corrects a spelling error.
Amendment agreed to.
I move amendment No. 252e:
In page 29, subsection (8), line 6, to delete "€13,000" and substitute "€25,000"
I propose to increase the maximum fine for mis-reporting in camera cases. I felt that the amount of money involved was very low for certain major establishments, which might feel they could treat the fine with contempt. Hence, I suggest the maximum fine should be increased.
I am happy to accept the proposal to increase the penalty.
Amendment agreed to.
Amendment No. 252f not moved.
I move amendment No. 252g:
In page 29, subsection (8), lines 13 to 16, to delete paragraph (c) and substitute the following:
"(c) if the matter is broadcast—
(i) any person transmitting or providing the programme in which the broadcast is made,
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
(iii) any proprietor or controller of the broadcast station.".
This may be necessary in the context of the changes made. It refers in particular to the issue of broadcasts.
I am told that under the law, it is not necessary to do so. For the Deputy's information, the problem is that if I accepted such an amendment, it might imply that other categories of people, who are included by implication, would not be included on the principle of expressio unius.
Amendment, by leave, withdrawn.
Amendment No. 253 not moved.
I move amendment No. 253a:
In page 29, between lines 37 and 38, to insert the following:
"(c) Where an offence under subsection (8) has been committed by a body corporate, that body shall be liable to a fine not exceeding €250,000.”.
This amendment pertains to a situation in which bodies corporate are involved, as opposed to a poor journalist, who is expected to carry the rap. While I am unsure whether it is a valid point, it has been suggested to me that there should be a provision for the proprietors, which are normally bodies corporate, to be exposed to a penalty, as opposed to the journalist.
Without introducing red herrings, this is an interesting point. It relates to the question of proportionality raised earlier by Deputy Howlin in one of his amendments. It is the same issue and I will ask the Attorney General to consider it. When I served as Attorney General, one matter that always interested me was whether a company has a right to trial by jury. There are two schools of thought on this. I favour the view that companies are not necessarily entitled to jury trials, although others, including Dr. Gerard Hogan, take the other view, namely, that companies are entitled to jury trials.
Individual company directors could be held criminally liable.
Yes, that is the point. I am probably in a minority in believing in the notion that a company is entitled to a jury trial. It means trial by one's peers. Why not put in——
Exxon.
I tabled this amendment because I want the issue to be considered.
In my former life, many bodies corporate were painters, plumbers or individual tradesmen, who simply operated as a company.
I am thinking of somewhat more substantial bodies corporate in the newspaper world.
I realise that.
Amendment, by leave, withdrawn.
I move amendment No. 254:
In page 29, after line 50, to insert the following subsection:
"(12) This section shall apply with any necessary modification to civil proceedings in any court.".
Section 27 is a desirable section——
While this is a desirable amendment, I am already engaged in drafting an amendment to the Civil Law (Miscellaneous Provisions) Bill to extend it——
The Minister is continually engaged in preparing legislation. How many Bills does the Minister have in the air at any given time? When will this Bill come before the House?
I understand the text of the Bill has already been published. I will introduce the amendment on Committee Stage.
The Bill is already on Second Stage in the House.
The Bill to which I refer deals with——
The Bill in question was one of those Bills juggled in and then juggled out again, such as the Criminal Justice (Mutual Assistance) Bill.
The Civil Law (Miscellaneous Provisions) Bill has been published and is before the House.
It is on the Order of Business.
Amendment, by leave, withdrawn.
Section 27, as amended, agreed to.
SECTION 28.
Amendments Nos. 254a to amendment No. 257a, inclusive, not moved.
I move amendment No. 257b:
In page 31, lines 1 to 4, to delete subsection (6).
I have a simple query with regard to this amendment. Why single out offences under section 28(5) in section 28(6)? I refer to the question of trustees disclosing information which is false or misleading. Why has this been singled out?
Section 28(6) provides that information provided by the trustee in the courts shall not be admissible in any criminal proceedings, except for an offence under section 28(5). This was included to avoid a possible charge that it is a provision for self-incrimination, which is prohibited by Article 6 of the European Convention on Human Rights and Article 38 of the Constitution. It is similar to section 14C(6) of the Proceeds of Crime Act as amended by the 2005 Act. Having regard to the case law of the European Court of Human Rights concerning Article 6, as well as the case law of the Supreme Court, the Attorney General takes the view that section 28(6) is necessary to ensure that the Constitution is not infringed.
I am reassured and will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 28 agreed to.
NEW SECTION.
I move amendment No. 258:
In page 31, before section 29, to insert the following new section:
29.—(1) It is an offence for a person, without lawful authority or reasonable excuse to possess or control any article with the intention of using it in the course of or in connection with the commission of—
(a) an offence under section 15 of the Non-Fatal Offences against the Person Act 1997, or
(b) the common law offence of kidnapping to which section 2 of, and paragraph 4 of the Schedule to, the Criminal Law (Jurisdiction) Act 1976 applies.
(2) In a prosecution for an offence under subsection (1) the court (or the jury as the case may be) may, without more—
(a) having regard to all the circumstances (including the type of article alleged to have been intended for use in the course of or connection with the commission of an offence under this section), and
(b) where it considers it reasonable to do so,
regard possession of the article as sufficient evidence of intent for the purposes of subsection (1).
(3) Where a person is charged with an offence referred to in subsection (1), no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by or with the consent of the Director of Public Prosecutions.
(4) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.
(5) In this section—
"article" includes a substance, document or any thing;
"document" includes—
(a) a map, plan, graph, drawing, photograph or record, or
(b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form.”.
This new section is one of my pet projects. I have considered it for a long time and I will explain why to the members. A person was arrested while casing a bank. When the gardaí went to his home, they discovered a plan outlining the route to work of another individual, who had no connection to the bank. They found the latter's route to work, notes on movements and points of potential interception on that person's route to work. This gave rise to the reasonable inference that it was a document prepared with a view to kidnapping that person.
This issue has gone back and forth between the Department and the Attorney General's office. The latter was concerned that a general offence of having a document for criminal purposes could be too widely drawn. Hence, it is now proposed to make it an offence to have an article, with the purpose of committing an offence defined under section 15 of the Non-Fatal Offences against the Person Act 1997 or under the common law offence of kidnapping. In a prosecution under the offence, the court and jury may take regard that possession of the article is sufficient evidence of intent, for the purposes of subsection (1). These proceedings are confined to cases in which the Director of Public Prosecutions allows the prosecution. It is an offence carrying a five year penalty and the term, "article", includes a substance, document or any thing.
I will provide the two Deputies who are present with another example of where it might be appropriate. If one is found in a van with a garda uniform and ties in the back——
It is a good job that the Deputy has left the room.
If one was found in those circumstances, the court might well find that——
A quorum should be called.
Such offences, as well as the possession of documents which indicate preparation for kidnapping and false imprisonment, are covered by it.
That Deputy might become the Minister's Minister of State next year.
I like this idea. Why confine the possession of articles with such intent to section 15? Is false imprisonment dealt with in section 15?
Yes, it is. This project of mine started off being much broader——
The Minister obviously had the same original plan as I did.
——involving the plans of a bank etc. Doubts were expressed about the constitutionality of presuming that possession of the plans of a bank indicated the consideration to rob it.
It could be an architectural student or something.
It was thought that my original purpose was too broad. I just wanted to be in possession of any document that gave rise to reasonable inference that it was for the purpose of a serious offence. That was too broad.
I would be of the same mind. Has that been ruled out?
Thank God for small mercies — that and a coalition between Fianna Fáil and Fine Gael, in which case none of us would be safe.
I am not in Fianna Fáil yet.
The Minister is close enough.
We note the reference to yet.
Migration.
Will the Minister reconsider the subsection, which seems rather oddly framed?
I will remove the phrase "without more".
The oddness will disappear.
I will accept the Deputy's amendment to remove it.
What was its meaning?
I do not know. However, since I was on the receiving end of all this——
Reading the amendment, I was not happy with it. I now understand the background to it: it was a pet project. It would be very difficult to prove. I do not know whether the Minister uses the Internet and has come across the www.earth.google.com and www.maps.google.com websites. They contain a mapping device that allows one to home in on every street on earth. That sort of detail is available to everybody.
I agree that possession of a map per se would not be sufficient.
The Minister should let me develop the point. For an offence to be committed, one must prove the intention of using it. The only way to do so would be by catching someone carrying out the crime or having carried out the crime in which case he or she would be charged with a different offence anyway. Charging a person for possession of a map or document seems——
A map or document alone would probably not be enough. However, while I do not want to intrude on someone else's privacy, the proper analogy would probably be as follows. If a sketch was drawn showing the route from Deputy Howlin's constituency office to his home, containing a clear reference to both and if the document also showed reference to the registration number of the Deputy's car and was found in a bag with tie-ups, it might at some stage be decided that this was preparatory material for a kidnap and its possession should be an offence.
Would this be another candidate in Wexford, by any chance?
No. I know of the facts of a very vivid case in which there was not prosecution although it was very clear that a kidnap was planned. While it was not clear who had prepared the document, it was very clear that the person who had it in his possession could only have had it in his possession for the purpose of a kidnap.
I am willing to give it a go. However, I would be very surprised if it were ever used.
Subsection (2) permits an inference to be drawn otherwise it would be impossible to prove the intention in subsection (1). I believe it is worth a try.
I have no objection to it.
I will tell the Deputies in private afterwards what it was.
I would bet it will seldom if ever be used.
I move amendment No. 1 to amendment No 258:
In section 29(2), to delete ", without more".
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
SECTION 29.
Amendments Nos. 259 to 267, inclusive, not moved.
I move amendment No. 268:
In page 34, line 13, to delete "causing" and substitute "cause".
This is a grammatical amendment.
Amendment agreed to
Section 29, as amended agreed to.
NEW SECTION
Amendments Nos. 269 to 271a, inclusive, are related and may be discussed together by agreement.
I move amendment No. 269:
In page 34, before section 30, to insert the following new section:
"30.—Section 19 of the Criminal Justice (Public Order) Act 1994 is amended—
(a) by the substitution of the following subsection for subsection (1):
"(1) Any person who assaults or threatens to assault—
(a) a person providing medical services at or in a hospital, or
(b) a person assisting such a person, or
(c) a peace officer acting in the execution of a peace officer’s duty, knowing that he or she is, or being reckless as to whether he or she is, a peace officer so acting, or
(d) any other person acting in aid of a peace officer, or
(e) any other person with intent to resist or prevent the lawful apprehension or detention of himself or herself or any other person for any offence,
shall be guilty of an offence.",
(b) in subsection (2), by the substitution of “€3,000” for “£1,000”,
(c) by the substitution of the following subsection for subsection (3):
"(3) Any person who resists or wilfully obstructs or impedes—
(a) a person providing medical services at or in a hospital, knowing that he or she is, or being reckless as to whether he or she is, a person providing medical services, or
(b) a person assisting such a person, or
(c) a peace officer acting in the execution of a peace officer’s duty, knowing that he or she is or being reckless as to whether he or she is, a peace officer so acting, or
(d) a person assisting a peace officer in the execution of his or her duty,
shall be guilty of an offence.",
(d) in subsection (4), by the substitution of “€1,500” for “£500”, and
(e) in subsection (6)—
(i) by the insertion of the following definitions:
"hospital" includes the lands, buildings and premises connected with and used wholly or mainly for the purposes of a hospital;
"medical services" means services provided by—
(a) doctors, dentists, psychiatrists, psychologists, nurses, midwives, pharmacists, paramedics (including members of the ambulance service) or other persons in the provision of treatment and care for persons at or in a hospital, or
(b) persons acting under direction of those persons;
and
(ii) in the definition of "peace officer", by the insertion of ", a member of the fire brigade;" after "a prison officer".".
This is an extremely topical issue, as listeners to "The Gerry Ryan Show" will appreciate. In yesterday's edition of the The Star I was castigated for not doing this and asked whether I was waiting for someone to be killed before taking action. This change comes on foot of representations made to me last year by SIPTU. The purpose is to address the problems of assaults and obstruction of personnel involved in providing services.
Section 19 of the Criminal Justice (Public Order) Act 1994 covers assault and obstruction of peace officers, who are defined as gardaí, soldiers and prison officers, acting in the execution of their duty. The amendment now proposed would broaden the definition of peace officers to include members of the fire brigade. Recent media reports of a vicious assault on a member of the fire brigade when he was answering a call-out demonstrate the need for the inclusion of this provision.
Section 19(1) is substituted by a new subsection to cover threats as well as assaults and to cover persons providing medical services at or in a hospital or their assistants in addition to peace officers. Nurses, paramedics and doctors in casualty units are entitled to special protection. Section 19(2) is amended to revise upwards the maximum fine and the penalty of five years' imprisonment remains.
Section 19(3) is replaced by a new subsection which provides that any person who resists or wilfully obstructs or impedes a person providing medical services or his or her assistants at or in a hospital will be guilty of an offence, which has the same penalties. Section 19(4) outlines the penalties for persons guilty of obstruction under section 19(3) and will apply to resisting or wilfully obstructing or impeding a peace officer, or a doctor, paramedic or nurse in a hospital.
Section 19(6) provides definitions for hospitals and members of the fire brigade.
How stands the Minister's view of our amendments?
In effect Deputy O'Keeffe wishes to amend my proposed subsection to provide that assaults or threats to assault persons providing emergency medical services or persons assisting them would come within this new offence regardless of where they take place. My proposal was that the offence be confined to being at or in a hospital, including its surroundings. The Deputy's amendment would mean that any person, for example a GP or a nurse providing medical assistance would be covered. With this type of offence it is necessary to define clearly the group of people we are trying to protect. We did not have in mind a GP having an altercation while entering a house. We are referring to people who are sitting targets.
I was thinking about emergency medical services.
Ambulance drivers etc.
Is an ambulance driver at the scene of an accident covered?
Yes. He would be covered under fire brigade.
It might not necessarily be a fire-brigade ambulance. It could be a HSE ambulance.
I agree that the driver would not necessarily be employed by a fire brigade.
Generally, he or she would not be.
Medical services are defined as doctors, dentists, psychiatrists and paramedics, including members of the ambulance service.
Yes.
It is still in a hospital sense.
Must they be in a hospital?
It is all in a hospital setting rather than outside. I agree with Deputy Jim O'Keeffe in that respect.
Will the Minister consider the amendment on Report Stage?
He could examine it.
I will. I am tempted to accept it now. The draftsmen were wary of referring to a district nurse who gets into an altercation somewhere, which is not what we had in mind.
It is providing——
A person could come along and do something.
The proviso in the amendment is that the person is providing an emergency medical service. If the good samaritan is on his or her knees giving the kiss of life to someone who has been assaulted, it should be a serious offence for the ne'er-do-well who caused the injury in the first instance to obstruct the life-saving exercise.
The other matter relates to the member of the fire brigade——
The Gerry Ryan man.
——who was on his way to a fire in Vernon Avenue in Clontarf.
He was carrying out his duties.
How will he be covered by the Bill?
By the extension of the Criminal Justice (Public Order) Act. When that man drives to a fire, he is deemed to be in the execution of his duties.
It does not matter where he is. He will be covered.
Yes.
That is some consolation.
Is he a peace officer?
Yes. He now falls within that definition.
Are we only referring to some other people who will provide emergency services outside hospitals?
I will re-examine the matter before Report Stage, which is the best way to address it. I do not want to make the provision too broad and create an arrestable offence relating to a general practitioner who gets into an argument with someone in his or her house.
Amendment No. 1 to amendment No. 269 not moved.
I move amendment No. 2 to amendment No. 269:
In paragraph (b), to delete ““€3,000”” and substitute ““€5,000””.
Yes. Amendment No. 3 will increase the prison potential from five years to seven years. In paragraph (d), an increase from €1,500 to €2,500 is more reasonable in light of the offence we are discussing.
I am inclined to accept those amendments. Seven years is more appropriate than five years. These must be serious offences.
I accept the Minister's good judgment.
Will the Minister increase the fine?
Yes.
Amendment to amendment agreed to.
I move amendment No. 3 to amendment No. 269:
In paragraph (b), after ““£1,000”” to insert “and by the substitution of “7 years” for “5 years””.
Amendment to amendment agreed to.
I move amendment No. 4 to amendment No. 269:
In section 30, to delete paragraph (d) and substitute “(d) by the deletion of subsection (4),”.
This has a technical link with amendment No. 1 to the amendment.
It ties into amendment No. 5 to the amendment.
Yes.
My amendment changes the amount of the fine under subsection (d) from €1,500. It was £500 and the Minister proposes €1,500, but €2,500 is more appropriate.
Amendment No. 4 would delete paragraph (d). If Deputy Jim O’Keeffe’s amendment is accepted, Deputy Howlin’s falls.
Yes.
I do not know what the Minister will say on amendment No. 4.
I want to leave paragraph (d) for the time being, as I do not want to shift it on this Stage. I will examine it before Report Stage but I am nervous about the amendment.
Amendment to amendment, by leave, withdrawn.
I move amendment No. 5 to amendment No. 269:
In paragraph (d), to delete ““€1,500”” and substitute ““€2,500””.
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Amendments Nos. 270 to 271a, inclusive, not moved
Section 30 deleted.
NEW SECTION.
I move amendment No. 272:
In page 34, before section 31, to insert the following new section:
"31.—The definition of "torture" in section 1(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000 is amended by the insertion after "omission" of "done or made, or at the instigation of, or with the consent or acquiescence of a public official".
I move amendment No. 1 to amendment No. 272:
Before "done" to insert "including torture".
The Minister's amendment reduces the definition of torture under the torture Act.
I will briefly explain. There was a case called Lelimo v. the Minister for Justice, Equality and Law Reform in which a South African person claimed that because of the definition of torture in the 2000 legislation, we had expanded the concept to non-public official torture. In that case, it was alleged that the State was obliged to allow someone to remain in Ireland where that person could make a prima facie case that he or she would be abused by people other than the state if he or she went home. One might ask what is wrong with this allegation.
Yes.
For instance, I could say——
My next door neighbour might beat me down.
Yes, or I could say that I am in the mafia in such a place and have offended many people. If they get me, X or Y will happen to me. The argument was that people who could prove someone had private grudges against them that could result in torture should be allowed to stay in Ireland on the basis of a convention against state torture.
We settled the Lelimo case without it being decided on because the implications were profound. If any type of prima facie case was proved in these torture-type cases, it would be up to the State to dislodge. One could imagine some of the criminals in the Dublin drugs trade announcing in another state that if they were returned to Ireland, they might be tortured by rival gangs. If they got rights of residence, it would make a nonsense of the laws in those countries. Likewise, we will not give protection to people who say there is a threat to them from a private source that would amount to torture if carried out by the state.
If the applicant in the Lelimo case had succeeded, there would have been a large hole. For example, Romanians, Nigerians, Moldovans and so on who say they are under threat from criminal gangs at home would be able to stay in Ireland in circumstances that were never comprehended by the UN convention. We want to make it clear that our Act, which is designed to give life to the UN convention in Ireland, is restricted to the situation concerned, that is, state torture.
What is the definition of public official?
It is provided for in the legislation. The torture must be State or, if you like, publicly inspired torture.
It is probably referred to in the convention.
It is.
Is not the definition in the Criminal Justice (United Nations Convention Against Torture) Act 2000?
I understand what the Minister is saying in respect of the difficulties posed in the specific case mentioned and its implications for asylum seekers. I am concerned about agreeing to modify or delimit the definition of torture in a way I have not considered fully. Are there circumstances wherein people could be sent back and tortured? I do not mean by a criminal gang or part of a criminal conspiracy.
There is a thing called a prohibition of refoulement under the Refugee Act 1996, which states: “A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers or territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.”
Is that a threat by anybody?
Yes. I cannot accept the argument of a person who has a neighbour with a grudge against him or her.
I have no difficulty with the Minister's assertion in that respect.
The refoulement relates to anyone who threatens.
There are implications in accepting the Minister's amendment.
A person's freedom shall be regarded as threatened if, in the opinion of the Minister, the person is likely to be subject to a serious assault including serious sexual assault.
Suppose it was not a public official but a young girl who made a case against female genital mutilation from a religious perspective.
I will not go down that road now.
Is it too late?
No, it is not too late in the evening. If I was to accept the proposition that someone could be subject to female genital mutilation and that this was a reason to stay in Ireland, half the world would be here. There are countries where female genital mutilation is practised by a small minority. People also have State protection against the practice.
This was just one example that came to mind.
It is a red herring.
I have some sympathy for the Minister's position. My daughter is in Darfur and tells me that 80% of women are subject to female genital mutilation.
In Mali the percentage is higher. I could not accept that any female from Mali could remain in Ireland for that reason. Some problems I can deal with, others I cannot. I abominate the notion of female genital mutilation but I do not intend to make Ireland a place where anyone could appeal to that as a reason to remain.
One would have to have a robust conscience to send a young girl back to such a country.
We have to investigate the likelihood in all such cases. If one did not have some robustness of character, we would be inundated.
Man of steel.
Heart of oak.
I am not satisfied with this but we will move on.
I will consider the amendment but it seems somewhat circular. It proposes to insert the term "torture" before the word "done" in my amendment. This would have the effect of defining torture by reference to torture and I am advised by the Parliamentary Counsel that this would be a circular definition and would not improve the Act.
I will not press amendment No. 1 to amendment No. 272 but I remain opposed to amendment No. 272.
Amendment to amendment, by leave, withdrawn.
Amendment put and declared carried.
Section 31 deleted.
Amendment No. 272a not moved.
Section 32 agreed to.
SECTION 33.
Amendment No. 272b not moved.
I move amendment No. 273:
In page 35, lines 24 and 25, to delete subsection (2).
Is this retrospectively changing criminal law?
The amendment seeks the deletion of section 33(2) which provides that the "section shall be deemed to have come into operation on 1 January 2003". The section of the Bill arises from the introduction of a centralised case intake system for exhibits in the forensic science laboratory. This development is in line with practices in forensic science laboratories worldwide.
Can we foreshorten the Minister's explanation? I accept and support what he is attempting. My concern is that it is not constitutional.
It is an admissibility rule and admissibility does not breach Article 15.5 of the Constitution.
Article 38.1 is the issue.
There is no prohibition on retrospective——
Is the Minister giving an assurance to the committee that he has examined its constitutionality?
That is the advice I have received.
I accept the Minister's assurances.
Amendment, by leave, withdrawn.
Section 33 agreed to.
NEW SECTION.
I move amendment No. 274:
In page 35, before section 34, to insert the following new section:
"34.—Section 16B(7) of the Proceeds of Crime Act 1996 is amended by the insertion of "of the Criminal Assets Bureau Act 1996" after "Sections 14 to 14C.".".
This proposes a technical amendment to clarify the relevant sections.
Amendment agreed to.
SECTION 34.
Amendment No. 275 not moved.
I move amendment No. 276:
In page 35, line 33, to delete "activities" and substitute "conduct".
Amendment agreed to.
Section 34, as amended, agreed to.
Amendments Nos. 277 and 278 not moved.
Section 35 agreed to.
Amendments Nos. 279 to 282, inclusive, not moved.
Section 36 agreed to.
SECTION 37.
Amendments Nos. 283 and 284 not moved.
I move amendment No. 284a:
In page 37, line 8, to delete "the courthouse in which" and substitute "the place where".
This is an outworking of a point arising from the Dylan Creaven case.
Amendment agreed to.
Section 37, as amended, agreed to.
Amendment No. 285 not moved.
Section 38 agreed to.
NEW SECTIONS.
I move amendment No. 286:
In page 37, after line 14, to insert the following new section:
"39.—Section 6(2)(a) of the Criminal Law Act 1976 is amended by the substitution of “€3,000” for “£500”.”.
This serves to increase a penalty from £500 to €3,000 in the Criminal Law Act 1976 for the offence of aiding or facilitating any person escaping or attempting to escape from custody. The amendment proposes a more significant fine.
Amendment agreed to.
I move amendment No. 287:
In page 37, after line 14, to insert the following new section:
"39.—(1) All property (including money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property, including funds as defined in section 12 of the Criminal Justice (Terrorist Offences) Act 2005) held by any person for the use or benefit of, or for use for the purposes of, an unlawful organisation in respect of which a suppression order under section 19 of the Offences against the State Act 1939 is in force is deemed, for the purposes of that Act, the Offences against the State (Amendment) Act 1985 and the Criminal Justice (Terrorist Offences) Act 2005, to be the property of that unlawful organisation and those Acts apply and have effect accordingly.
(2) (a) This subsection applies where the income or a substantial part of the income of a business is regularly applied for the use or benefit of, or for use for the purposes of, an unlawful organisation.
(b) Where this subsection applies, both the business concerned and any property that is, or is an interest in, an asset of the business concerned are deemed to be held for the benefit of the unlawful organisation concerned and subsection (1) applies accordingly.
(3) In this section—
"business" means a business carried on for gain by an individual, a body corporate or an unincorporated body of persons and includes a business carried on in the exercise of a profession or vocation; and
"interest", in relation to an interest in a business concerned, means an interest other than one acquired under a contract made in the ordinary course of business by a person acting within his or her trade, business or profession without knowledge of the fact that the income of the business is applied for the use or benefit of, or for use for the purposes of, an unlawful organisation.".
The 1939 Act stated that the real and personal property of an unlawful organisation becomes forfeit to and vested in the Minister for Justice. Such bodies, being unincorporated and secret, do not own much property registered in their name. The Offences against the State (Amendment) Act 1985 states that any moneys but not other properties held for the benefit of an unlawful organisation is deemed to be its property. The Act only applies to money and not other forms of property because it was emergency legislation to deal with a bank account that was discovered. The Minister will recall the case. The recent Criminal Justice (Terrorist Offences) Act extends the definition of property to include money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property, including funds as defined in section 12. The gap in the 1985 Act was not amended and it is still the case that the legislation divests an unlawful organisation of money held by it or for its benefit by others but divests the organisation of other forms of property only if they are owned by the organisation. Section 39(1) of the amendment addresses that point.
Where the profits of an ostensibly bona fide business are diverted to the use of an unlawful organisation, not only should the payment in question be forfeit to the Minister but the business which is effectively owned by the organisation, since that is where its profits go, should be forfeit to the Minister.
It is an interesting point. If the Deputy proposes it again on Report Stage I will make a "yes" or "no" decision on it. I do not want to make that decision this evening. I am sympathetic to his point.
Amendment, by leave, withdrawn.
NEW SCHEDULES.
I move amendment No. 288:
In page 37, after line 14, to insert the following new Schedule:
|
Section of Act |
Subject matter |
Word(s) deleted |
Words substituted |
|
(1) |
(2) |
(3) |
(4) |
|
Amendment of Firearms Act 1925 |
|||
|
12(4) |
Register to be kept by firearms dealer |
fifty pounds |
€3,000 |
|
12(5) |
twenty-five pounds |
€1,500 |
|
|
13(2) |
Inspections of stock of firearms dealer |
ten pounds |
€1,000 or imprisonment for a term not exceeding 6 months or both |
|
21(4) |
Search for and seizure of certain firearms, etc. |
liable on summary conviction thereof in the case of a first offence to a penalty not exceeding ten pounds, and in the case of a second or any subsequent offence to a penalty not exceeding twenty pounds |
liable on summary conviction to a fine not exceeding €1,000 or imprisonment for a term not exceeding 6 months or both |
|
22(2) |
Powers of members of Garda Síochána |
ten pounds |
€1,000 |
|
Amendment of Firearms and Offensive Weapons Act 1990 |
|||
|
7(6)(a) |
Possession, sale, etc. of silencers |
£1,000” |
€5,000” |
|
7(6)(b) |
“five years |
“7 years |
|
|
8(a) |
Reckless discharge of firearm |
£1,000 |
€5,000” |
|
8(b) |
five years |
“7 years |
|
|
9(7)(a) |
Possession of knives, etc. |
£1,000 |
€5,000 |
|
9(7)(b) |
£1,000 |
“€5,000” |
|
|
10(3)(a) |
Trespassing with knife, etc. |
“£1,000” |
€5,000 |
|
11(a) |
Production of article capable of inflicting serious injury |
£1,000 |
€5,000 |
|
12(3)(a) |
Power to prohibit manufacture, etc. of offensive weapons |
£1,000 |
€5,000 |
|
12(3)(b) |
five years |
7 years |
|
|
Amendment of Firearms (Firearm Certificates for Non-Residents) Act 2000 |
|||
|
3(4)(a) |
Prohibition of false information and alteration of firearm certificates |
£1,000 |
€2,500 |
|
3(4)(b) |
£10,000 |
€20,000 |
Amendment agreed to.
I move amendment No. 289:
In page 37, after line 14, to insert the following new Schedule:
|
Section of Act |
Subject Matter |
Words deleted |
Words substituted |
|
(1) |
(2) |
(3) |
(4) |
|
4 |
Making explosives in unauthorised place |
to a penalty not exceeding one hundred pounds a day for every day during which he so manufactures |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
5 |
Keeping explosives |
to a penalty not exceeding two shillings for every pound of gunpowder so kept |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
9 |
Regulation of explosives factories and magazines |
to a penalty not exceeding in the case of the first offence fifty pounds, and in the case of a second or any subsequent offence one hundred pounds, and in addition fifty pounds for every day during which such breach continues |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
10 |
General rules for factories and magazines |
to a penalty not exceeding ten pounds, and in addition (in the case of a second offence) ten pounds for every day during which such breach continues |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
11 |
Special rules for regulation of workmen in factories or magazines |
forty shillings |
€100 |
|
13 |
Devolution and determination of licence |
twenty shillings |
€50 |
|
17 |
General rules for stores |
to a penalty not exceeding ten pounds, and in addition (in the case of a second offence) ten pounds for every day during which such breach continues |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
19 |
Special rules for regulation of workmen in stores |
forty shillings |
€100 |
|
22 |
General rules for registered premises |
to a penalty not exceeding two shillings for every pound of gunpowder in respect of which, or being on the premises in which, the offence was committed |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
30 |
Restriction on sale of explosives in highways, etc. |
to a penalty not exceeding forty shillings |
, on summary conviction, to a fine not exceeding €2,500 or, on conviction on indictment, to a fine not exceeding €5,000 |
|
31 |
Sale of explosives to children |
thirteen years |
18 years |
|
to a penalty not exceeding five pounds |
, on summary conviction, to a fine not exceeding €2,500 or, on conviction on indictment, to a fine not exceeding €5,000 |
||
|
32 |
Explosives to be sold in closed packages labelled |
to a penalty not exceeding forty shillings |
, on summary conviction, to a fine not exceeding €2,500 or, on conviction on indictment, to a fine not exceeding €5,000 |
|
33 |
General rules as to packing of explosives for conveyance |
to a penalty not exceeding twenty pounds |
on summary conviction, a fine not exceeding €2,500 or, on conviction on indictment, a fine not exceeding €5,000 |
|
34 |
Bye-laws by harbour authority |
pecuniary penalties not exceeding twenty pounds for each offence, and ten pounds for each day during which the offence continues |
on summary conviction, a fine not exceeding €5,000 or, on conviction on indictment, a fine not exceeding €10,000 |
|
35 |
Bye-laws by railway and canal company |
pecuniary penalties not exceeding twenty pounds of each offence, and ten pounds for each day during which the offence continues |
on summary conviction, a fine not exceeding €5,000 or, on conviction on indictment, a fine not exceeding €10,000 |
|
36 |
Bye-laws as to wharves in which explosives loaded or unloaded |
pecuniary penalties not exceeding twenty pounds for each offence, and ten pounds for each day during which the offence continues |
on summary conviction, a fine not exceeding €5,000 or, on conviction on indictment, a fine not exceeding €10,000 |
|
37 |
Byelaws as to conveyance by road or otherwise |
pecuniary penalties not exceeding twenty pounds for each offence, and ten pounds for each day during which the offence continues |
on summary conviction, a fine not exceeding €5,000 or, on conviction on indictment, a fine not exceeding €10,000 |
|
40 |
Application of Part I to explosives other than gunpowder |
to a penalty not exceeding one hundred pounds, and to a further penalty not exceeding two shillings for every pound of such explosive |
on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
43 |
Manufacture, etc. of specially dangerous explosives |
to a penalty not exceeding ten shillings for every pound of such explosive brought in the ship |
on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
to a penalty not exceeding ten shillings for every pound of such explosive delivered or sold or found in his possession. |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
||
|
55 |
Powers of Government inspectors |
liable to a penalty not exceeding one hundred pounds for each offence |
guilty of an offence and liable, on summary conviction, to a fine not exceeding €1,000. |
|
56 |
Notice to remedy dangerous practices, etc. |
to a penalty not exceeding twenty pounds for every day during which he so fails to comply |
, on summary conviction, to a fine not exceeding €1,000. |
|
63 |
Notice of accidents |
to a penalty not exceeding twenty pounds |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
66 |
Inquiry into accidents |
shall for every such offence incur a penalty not exceeding ten pounds and in the case of a failure to comply with a requisition for making any return or producing any document, not exceeding ten pounds during every day that such failure continues |
is guilty of an offence and liable on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
69 |
Duty and power of local authority |
to a penalty not exceeding twenty pounds |
, on summary conviction, to a fine not exceeding €1,000. |
|
73 |
Search for explosives |
to a penalty not exceeding fifty pounds |
, on summary conviction, to a fine not exceeding €1,000. |
|
74 |
Seizure and detention of explosives |
to a penalty not exceeding fifty pounds |
, on summary conviction, to a fine not exceeding €5,000 or, on conviction on indictment, to a fine not exceeding €10,000 |
|
77 |
Penalty on and removal of trespassers |
to a penalty not exceeding five pounds |
, on summary conviction, to a fine not exceeding €3,000 or, on conviction on indictment, to a fine not exceeding €5,000 |
|
79 |
Imprisonment for wilful act or neglect endangering life or limb |
of the case, to imprisonment, with or without hard labour, for a period not exceeding six months |
“of the case— |
|
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or both the pecuniary penalty and such imprisonment, or |
|||
|
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or both the pecuniary penalty and such imprisonment”. |
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|
81 |
Forgery and falsification of documents |
to imprisonment, with or without hard labour, for a term not exceeding two years” |
on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both or, on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding five years or both. |
|
82 |
Defacing notices |
two pounds |
€100 |
Amendment No. 1 to amendment No. 289 not moved.
Amendment agreed to.
I move amendment No. 290:
In page 37, after line 14, to insert the following new Schedule:
SCHEDULE 3
Offences for the purposes of restriction on movement orders
1. Criminal Justice (Public Order) Act 1994
section 6 (threatening, abusive or insulting behaviour in public place)
section 8 (failure to comply with direction of member of Garda Síochána)
section 11 (entering building, etc., with intent to commit an offence)
section 13 (trespass on building, etc.)
section 16 (affray)
section 19 (assault or obstruction of peace officer)
2. . Non-Fatal Offences Against the Person Act 1997
section 2 (assault)
section 3 (assault causing harm)
section 9 (coercion)
section 10 (harassment)".
Amendment agreed to.
I move amendment No. 291:
In page 37, after line 14, to insert the following new Schedule:
|
Amendment No. |
Section of Act |
Amendment |
|
1. |
4, 5(2), 6 |
“, the Minister for Education and Science” deleted. |
|
2. |
22, 24(2), 25, 26(1) and (2), 28(2)(a), 30(3)(a), 32, 38(f), 39(3)(i) |
“or anti-social” inserted after “criminal”. |
|
3. |
28(2)(c) |
“or engaging in further anti-social behaviour” inserted after “offences”. |
|
4. |
31(2)(b), 39(3)(h) |
“or further criminal or anti-social behaviour by the child” after “offences”. |
|
5. |
54 |
Section deleted. |
|
6. |
71(1)(a) |
“Parts 8 and 12A” substituted for “Part 8”. |
|
7. |
95 |
Definition of “children detention centre” deleted. |
|
8. |
98(h) |
“or children detention centre” deleted. |
|
9. |
103(1) |
Paragraph (c) deleted. |
|
10. |
103(1)(e) |
“or children detention centre” and “or person for the time being in charge of the centre, as appropriate” deleted. |
|
11. |
142 |
“or children detention centre” deleted. |
|
12. |
143 |
“, in the case of a child under 16 years of age,” deleted. |
|
13. |
145 |
“under 16 years of age” deleted. |
|
14. |
147 |
Section deleted. |
|
15. |
150 |
Section deleted. |
|
16. |
151(1) |
“who is between 16 and 18 years of age” deleted. |
|
17. |
151(2) and 151(3) |
“children detention school” substituted for “children detention centre”. |
|
18. |
152 |
Section deleted. |
|
19. |
153 |
Section deleted. |
|
20. |
154 |
“, in any children detention centre designated under section 150 of the Children Act, 2001,” deleted. |
|
21. |
158 |
“appropriate educational, training and other programmes and facilities” substituted for “educational and training programmes and facilities”. |
|
22. |
167(4)(c) |
“Minister for Education and Science” substituted for “Minister for Justice, Equality and Law Reform”. |
|
23. |
179 |
“with the consent of the Minister” inserted after “time”. |
|
24. |
187 |
Section deleted. |
|
25. |
188 |
Section deleted. |
|
26. |
189 |
Section deleted. |
|
27. |
203(3) |
“Minister and” inserted before “board of management” and “the board’s” deleted. |
|
28. |
204(9) |
“Minister and” inserted before “board of management” and “board’s” deleted. |
|
29. |
214 |
Subsection (2) deleted. |
|
30. |
225(2) |
“Minister for Justice, Equality and Law Reform” substituted for “Minister for Education and Science”. |
|
31. |
263 |
“(a) while in transit to a court from a remand centre or children detention school,” substituted for paragraph (a). |
|
“(c) while awaiting removal pursuant to this Act to a remand centre or children detention school.” substituted for paragraph (c). |
||
|
32. |
265 |
“or a place of detention designated under section 150” deleted. |
Amendment agreed to.
Amendment No. 292 not moved.
TITLE.
Amendment No. 293 not moved.
Amendment No. 294 has been ruled out of order.
I draw the committee's attention to Deputy Ó Snodaigh's sense of humour in amendment No. 294. He proposed to insert that one of the purposes of the Act was to "disproportionately and unnecessarily limit certain rights of individuals". I do not accept that.
Amendment No. 294 not moved.
Amendment No. 295 not moved.
I move amendment No. 296:
In page 5, line 17, before "A" to insert the following:
"PROVISION FOR OFFENCES RELATING TO ORGANISED CRIME, AMENDMENTS TO THE MISUSE OF DRUGS ACT 1977, AN OBLIGATION, IN THE INTERESTS OF THE COMMON GOOD, ON PERSONS CONVICTED ON INDICTMENT OF CERTAIN DRUG TRAFFICKING OFFENCES TO NOTIFY CERTAIN INFORMATION TO THE GARDA SÍOCHÁNA, PROVISIONS IN RELATION TO SENTENCING,".
Amendments Nos. 1 to 3, inclusive, to amendment No. 296 not moved.
Amendment agreed to.
Amendment No. 297 not moved.
I move amendment No. 298:
In page 5, lines 24 to 26, to delete all words from and including ", AN" in line 24 down to and including "CERTIFICATE" in line 26.
Amendment agreed to.
Amendment No. 299 not moved.
I move amendment No. 300:
In page 5, line 29, before "AND" to insert the following:
"TO AMEND THE FIREARMS ACTS 1925 TO 2000 AND THE EXPLOSIVES ACT 1875; TO MAKE PROVISION IN RELATION TO ANTI-SOCIAL BEHAVIOUR BY ADULTS AND CHILDREN; TO AMEND THE CHILDREN ACT 2001; TO PROVIDE FOR THE ESTABLISHMENT OF A BODY TO BE KNOWN AS THE CRIMINAL LAW CODIFICATION ADVISORY COMMITTEE".
Amendment No. 1 to amendment No. 300 not moved.
I move amendment No. 2 to amendment No. 300:
After "KNOWN AS" to insert "COISTE UN CÓDÚ AN DLÍ CHOIRIÚIL OR IN THE ENGLISH LANGUAGE AS".
I accept the amendment to the amendment.
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
I thank the Minister and his officials for the amount of time they put into this. I also thank Deputies Howlin, O'Keeffe, Ó Snodaigh and Hoctor as they spent much time here. I thank all those who contributed, including the clerk and assistant clerk for all they work they did. We had 12 meetings on Committee Stage and it has been a long Bill. I hope we have done some service.