With regard to Deputy O'Higgin's amendment I should like to say that on this issue there is not much difference between Deputy O'Higgins's view and my own. The draft, as it stands, means substantially what Deputy O'Higgins wants it to mean, so that the real question is whether any drafting amendment is necessary.
The Deputy makes the point that the word "intimidation" could be held to include certain types of canvassing for membership of an organisation. I agree with that—a threat of a boycott, for instance, is a form of intimidation in the ordinary meaning of the word. But, and this is the point, we are not speaking just of intimidation but of an offence involving intimidation. This, I think, makes all the difference.
Let us look at the wording of the Bill as it stands. First of all, it will be seen that the provision does not apply to cases where an offence has already been committed. It is concerned only with persons caught in the act, so to speak. Of course, one cannot speak with confidence of a person committing an offence until the court has found him guilty and so the section has to speak of the situation in which the man is doing something which the Garda reasonably believe to be an offence. This does not affect the point I am making which is that the provision relates to acts in progress and not to actions that are already completed. This is important because it limits the type of offence to which the provision can relate.
Secondly, the words used are "an offence involving the intimidation of another person". What I want to mention here is that it does not describe intimidation as an offence nor does it suggest that intimidation is an offence. In fact, intimidation, by itself alone, is not an offence at all. There must always be something more. Therefore we have to look at the section and see what the words could or might apply to.
What offences could it apply to? Assault might seem the obvious one but in fact assault is covered by another provision, namely, paragraph (d). The offences it applies to are very few.
There is a common law offence of intimidating witnesses in judicial proceedings. Presumably there will be no argument about the desirability of allowing an arrest of a person in that case, and especially when, as will be seen, the arrest is permissible only where it appears to be necessary to prevent a continuation of the offence.
There are some other offences that could be said to involve intimidation but that are more usually classed under the head "menaces". They either involve threats of personal violence —which the Deputy accepts as justifying arrest when the offender is caught in the act—or they involve threats by letter or the like, in which case the conditions required by subsection (3), as a preliminary to the arrest, could not possibly be satisfied. Besides, in practically all of these cases there is a power of arrest under other provisions of the law, for they are felonies carrying heavy penalties.
This leaves the only other offence that is of any significance under this head—and this is the one that matters in the present context. The relevant Act is the Conspiracy and Protection of Property Act, 1875, and the offence is the intimidation of a person or a member of his family with a view to compelling him to do something which he is legally entitled not to do, or with a view to compelling him not to do something that he is legally entitled to do.
This, then, is the provision that we have to look at and the point to be made about it is that the word "intimidation" in that provision has already been the subject of judicial interpretation. As a result of this, it is established and well accepted that "intimidation", in the context of the 1875 Act, is limited to the kind of intimidation that would justify a district justice in binding over the intimidator to keep the peace. Primarily, this means a threat of personal violence, which is what the Deputy's amendment speaks of, but it also could include a threat of damage to a person's property, and I think it is right that the provision should extend to this.
The net effect of what I have said is that, while I would not go so far as to agree that the word "intimidation" should be restricted to threats of personal violence, it is in fact already limited, under the Bill as it stands, to intimidation which involves either a threat of personal violence or a threat of damage to property. In fact, I expect that the Deputy would agree that it should extend to threats of damage to property, so that the net question is not one of substance but one of drafting. The legal advice I have is that it is quite unnecessary to state this and as I am sure Deputies will appreciate, there are sound and serious reasons why one should not indulge in what I might call over-elaborate drafting. Basically, the problem is that if you try to define every word you use, no harm may be done in the immediate context but great harm may be done to the construction of other sections or even other Acts of Parliament.
My legal advice is that it is better to leave it as it is and that it applies only to a very restricted number of cases.
