Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

Question again proposed: "That section 6, as amended, stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): Before progress was reported on the last occasion Deputy Cooney had said that as the section stands, provisos (i) and (ii) mean that a person could be punished twice for the same offence. A person could come before the criminal courts and be punished for a breach of the Act on the basis that he had caused damage, either directly or indirectly, and had not made good that damage, and the district justice or the judge could punish him on that basis. Under the other proviso that person, having paid the penalty in that way, could later on be subjected to a civil action for the damage done to the property either directly or indirectly. In that civil action a decree or judgment could be awarded against him for the damage done and in that way he would be punished or made to pay twice for the same offence.

It is true to say that the Minister saw the significance and the force of Deputy Cooney's argument and promised to look into the law and see if there was any overriding principle that could prevent this. He said that if he did not find such a principle he would rectify the position. That is as far as I can recall the discussion the last day. Generally, the section was considered to be rather harsh but we will await the Minister's observation on this point.

Minister for Justice (Mr. O'Malley)

I said the last day that I would look into this between Committee and Report Stages. It appears from what I could ascertain in the meantime that there is not an overriding provision that would stop subsequent civil action. For that reason I will endeavour to rectify the matter on Report Stage. I may say there are several other instances in our law of penalties of this type being imposed and as far as the question of payment of a penalty to the injured party is concerned I believe there are in the sections of those Acts specific powers given to the district justice to order it. That is not here.

Mr. Cooney

Apart from that part of the section there are also other objections which are equally significant. There are the provisos in paragraphs (a) and (b). The owner of the property is given the same right to make a demand as a garda in uniform and the owner can be compensated for damage caused by himself.

Mr. O'Malley

We dealt pretty fully with this on amendments Nos. 13 and 15 and I do not think it is necessary for me to go into it again. I will, however, refer Deputies to what I said then. Briefly it is that the primary duty in these matters is on the owner rather than the Garda Síochána and if the owner can rectify the position that is all to the good.

Question put.

The Committee divided: Tá, 48; Níl, 35.

Tá

Aiken, Frank.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Burke, Patrick J.
Carter, Frank.
Carty, Michael.
Childers, Erskine.
Colley, George.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Paddy.
Burke, Joan.
Burke, Liam.
Clinton, Mark A.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Cosgrave, Liam.
Cott, Gerard.
Coughlan, Stephen.
Creed, Donal.
Cruise-O'Brien, Conor.
Donnellan, John.
Dunne, Thomas.
Enright, Thomas W.
Finn, Martin.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Fox, Billy.
Governey, Desmond.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
Murphy, Michael P.
O'Hara, Thomas.
O'Sullivan, John L.
Pattison, Séamus.
Taylor, Francis.
Thornley, David.
Timmins, Godfrey.
Tully, James.

Tellers: Tá, Deputies Geoghegan and Browne; Níl, Deputies Begley and Cluskey.

Question declared carried.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Cooney

Could the Minister give any indication of the circumstances in which proceedings under the Bill will be brought by way of indictment rather than summary because there is a vast difference in the penalties applicable to the different type of proceeding? There is no indication anywhere in the Bill to say what the criterion will be as to what form the proceedings will take.

Mr. O'Malley

They would be summary proceedings or on indictment at the decision of the Attorney General. The way the section is drafted is the normal form for matters of this kind.

Mr. Conney

In view of the vast difference in penalties and the consequences could the Minister see any way in which the right to take proceeding on indictment could be related to second or subsequent offences?

Mr. O'Malley

I could not lay down something that would bind the Attorney General. He would use his own discretion because he is faced with that sort of choice or situation, I suppose, umpteen times every day. The normal thing is that only in the more serious or, in some instances, the most serious types of offences would he proceed by way of indictment. I have no doubt that the same consideration would apply here.

Mr. Pattison

We feel, having referred previously to the various types of squatting, that the penalties outlined in this section are far too excessive. We have pointed out that this Bill will create new offences and will make criminals of people who in some instances will be doing something which they might very well be justified in doing. To provide for penalties of this nature, penalties for a first offence of a fine that could be up to £50 and a term of imprisonment of up to six months is completely unjustified and completely ridiculous. It would not be justified either in quite a number of cases to provide for a fine of £100 and up to 12 months imprisonment for a second offence.

We must oppose this section because the penalties do not differentiate between the various types of squatting. The penalties are far too excessive and would in many cases prove a severe hardship on people who might be trying to find shelter for themselves and their families. If we apply it even to the Hume Street incident we would find that most people who took part directly or indirectly or were associated in any way with the organisations that took part in that protest would be liable to fines of £50 and six months imprisonment. If we only apply it to that incident we would see how unjustified this section is.

Dr. Cruise-O'Brien

I should like to add a few comments to what my colleague, Deputy Pattison, said on behalf of my party on this section. I should like to draw attention particularly to the harshness of these penalties when we take into consideration the rather extraordinary nature of the offences which this Bill would create. We agree, of course, that, if offences are to be created, penalties have to be specified for them. That is not what we are complaining about. We say that the nature of the offences created by this Bill is extraordinary. The Minister has, of course, denied that the Bill creates any offences at all. He says that it only spells out the existing law. Of course, that claim does not stand up for a moment.

I should like to refer in particular to these penalties as they would apply to persons found to have committed the offences specified or created by section 4. A person who encourages or advocates the commission of an offence shall under sections 2 or 3 be guilty of an offence and in certain circumstances each member of a group associated with them shall also be guilty. These penalties could work out particularly harshly in relation to the kind of person who would be deemed to have encouraged or advocated an offence under this section.

It seems, certainly prima facie, that a person would be guilty of an offence under section 4 if he said that a man whose children are without shelter is justified, if necessary, in making his way into unoccupied premises and squatting in them—forcible entry. The doctrine that he is so justified is very widely held and held by large and respectable classes of people. A person who really maintained that position, who said that, would, faced with the offence created in this Bill, be a person almost by definition who would be likely to repeat that. He would not regard moral principles as being changed by this Bill. He would not think that the principle concerning a family without shelter could be changed by his being found guilty of an offence under section 4. Thus he would be likely to repeat that offence and he could find himself, for no other reason than for having expressed this principle, being deemed to encourage and advocate offences under this Bill and he could find himself exposed to a fine not exceeding £500 or to imprisonment for a term not exceeding three years or to both such fine and such imprisonment.

We feel that it is a monstrous thing to have such a penalty hanging over the heads of people for no other reason than that they expressed such a basic principle, therefore being deemed to encourage or advocate. We think that this penalty, which is the edge of the offence created, is itself a significant invasion of the liberty of the press and of comment. For that reason, as well as for the reasons set out by Deputy Pattison, we shall oppose this section as well as the Bill in general.

Mr. T.J. Fitzpatrick

(Cavan): The Minister in his attitude towards certain sections of this Bill has made it increasingly difficult for the Members of this House to facilitate the passing of this Bill through the House. On the Second Stage I made it clear, speaking for myself and for this party, that the provisions of sections 2 and 3 were, in principle, acceptable to this party, but I also pointed out that there were sections in this Bill which were completely unacceptable to us and I dealt in particular with section 4 about which Deputy Cruise-O'Brien has just been speaking. I said that section 4 was an unnecessary and a dangerous section and that I intended to oppose it in toto on the Committee Stage. The Minister did make some sort of effort to amend section 4 but, as we pointed out in the discussions on that section, I think he did nothing in ease of the accused person and indeed it could be validly argued that the section with the amendment is more objectionable instead of less objectionable than the section as originally drafted.

I fully realise that the penalties provided for in section 7 are not minimum penalties. I appreciate that they are maximum penalties. I further appreciate that a district justice or a judge in imposing penalties under this section would have regard to the entire circumstances surrounding the offence committed, whether it was an offence committed by some poor down-and-out who simply took himself into a house because he had not got a roof over his head or whether it was the more arrogant type of forcible entry adopted by way of protest or demonstration about something or another.

My difficulty and the difficulty of this party is that so long as section 4 is in the Bill we are put in a very difficult position because I do not think section 4 can be justified according to any standards of our criminal code. It endangers freedom of speech, it endangers the right of the individual to talk out about grievances because in doing so he could be bringing himself within the meaning of this very vague word "encouraging" somebody to do something, which is an offence under sections 2 and 3 of this Bill. It might restrain, to put it at its mildest, a newspaper editor from speaking out about matters of public concern, of public interest, because he might say: "Would I bring myself within the meaning of section 4 of the Prohibition of Forcible Entry and Occupation Act, 1970?" If it even restrains a newspaper editor or makes him stop to think or causes him to have doubts as to whether he should speak out fearlessly about a matter of public concern, then it is a move in the wrong direction, then it is a challenge to freedom of speech and freedom of thought and a section that is very dangerous.

That is what puts me, as spokesman for this party, in an extremely difficult position when I come to deal with section 7. I would only hope and pray that any judicial figure in this country, dealing with an offence under section 4 of the type that I have been talking about, would show his contempt for the prosecution by imposing not the maximum penalties prescribed under section 7 but the minimum penalties. While the history of the judicial system in this country has shown us, thank goodness, that—I can say this without qualification—judges and district justices act with the greatest impartiality and honour the oaths that they take when they are appointed to this elevated position, they do not divest themselves of human flesh and the weaknesses of human nature when they get on the bench. They are still human beings and, being human beings, they are subject to error and any system that is operated through a human instrument is likely to err and it could go completely wrong.

I had hoped that I would have been able to persuade the Minister to adopt a reasonable attitude towards this Bill on the Committee Stage. I realise that, if section 7 were deleted from the Bill, the Bill would be rendered useless, because it would then be a piece of criminal legislation without penalties and that would be meaningless. If that is the attitude that the Labour Party and perhaps also this party have been forced into the Minister is to blame more than the Opposition parties. The Minister was warned on the Second Reading of this Bill that we were only refraining from opposing it and giving a tacit permission to its being given a Second Reading on the basis that we reserved the right to fight hard to eliminate the objectionable sections from it. Perhaps even at this stage the Minister might say if he could do anything further about section 4 on the Report Stage.

An Ceann Comhairle

We cannot go back to sections previously dealt with.

Mr. T.J. Fitzpatrick

(Cavan): We cannot go back to do anything about it now on this stage, but section 4 is so related to section 7 which is the section which imposes the penalties for violating section 4 that perhaps the Minister at this stage could do something to relieve the genuine fears of people generally regarding section 4. It would be a big help if something could be done.

Mr. O'Malley

The first thing I want to say is that the penalties prescribed in the section are, of course, the maximum penalties. Some people may be under the impression that these are the penalties and that nothing can be done about them. They are, in fact, the maximum penalties. It is well known in our law that maximum penalties are imposed only in rare cases. There is nothing to stop a district justice, where an offence is proved, from imposing a fine of £1 or less or even applying the Probation Act, if he sees fit. The maximum penalties are designed to cater only for the most extreme sort of conduct. The number of times they are likely to be imposed is minimal. I say this not by way of prophecy but by way of comparison with maximum penalties because it is only on rare occasions that maximum penalties are imposed and this usually happens under one of the older Acts of past centuries where what was a fairly stiff monetary penalty now represents a rather small amount of money.

There has been a good deal of reference to section 4 and to my alleged unreasonable attitude during the Committee Stage debate. If Deputies will look at the sheet of amendments to this Bill they will find that I have accepted quite a number of Opposition amendments and have made a number of my own amendments. Some of my amendments were put down following suggestions or criticism of Opposition Deputies. It is scarcely accurate to say that I have been unreasonable. The Bill has been fairly extensively amended. We have completed 18 amendments and a very high proportion of those were either Opposition amendments or amendments prompted by Opposition criticism or suggestions. Particularly, my extensive amendment to section 4 came directly as a result of criticism or suggestions made by Deputy T.J. Fitzpatrick (Cavan) and Deputy Cooney in particular. I genuinely tried to meet the point which they had made strongly and convincingly. I did meet their point. These Deputies now say that although I met the point I made the section worse than it was before I accepted their suggestions or criticisms.

Mr. Pattison

The Minister will appreciate that there are organisations like the National Association of Tenant Organisations which act as watchdogs for local authority tenants. An organisation such as that in the pursuance of their duty to the people they represent could find themselves or their members subject to the penalties under section 7. We could find a large number of people being fined or, perhaps, imprisoned under section 7 because organisations such as the one I have mentioned will, because of section 4, find themselves many times, while carrying out their duties and obligations to their members, faced with problems under section 4. Consequently, there will be many occasions on which they will be faced with the penalties under section 7.

Mr. Cooney

I wish to refer briefly to the Minister's statement regarding his attitude to suggestions and criticism made. I readily concede that the Minister has accepted many of the suggestions in the spirit in which they were made, but I beg leave to take issue with him in regard to section 4. While the Minister says that he accepted our criticism and suggestions and has provided for them in his amendment I cannot agree that the Minister has done so or that his amendment removes in any way the obnoxious feature of section 4—the vicarious liability feature. The Minister's amendment introduced an equally bad principle whereby a person's conviction depends on the adequacy of his explanation to the presiding justice. That is a bad principle. Once section 4 with the vicarious liability principle and this question of the objective justice are in the Bill the penalty clause has to be considered in relation to that principle, as Deputy Conor Cruise-O'Brien said. There could be a newspaper editor or a member of a group unwilling or unable adequately to explain why he should not be convicted and suffering these rather severe penalties.

Question put.

The Committee divided: Tá, 53; Níl, 40.

Tá

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Burke, Patrick J.
Carter, Frank.
Carty, Michael.
Childers, Erskine.
Colley, George.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Haughey, Charles.
Healy, Augustine A.
Herbert, Michael.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Paddy.
Bruton, John.
Burke, Joan.
Burke, Liam.
Burton, Philip.
Clinton, Mark A.
Cluskey, Frank.
Conlan, John F.
Enright, Thomas W.
Finn, Martin.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Fox, Billy.
Governey, Desmond.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
Coogan, Fintan.
Cooney, Patrick M.
Cosgrave, Liam.
Cott, Gerard.
Coughlan, Stephen.
Creed, Donal.
Cruise-O'Brien, Conor.
Donegan, Patrick S.
Donnellan, John.
Dunne, Thomas.
Lynch, Gerard.
Murphy, Michael P.
O'Donovan, John.
O'Hara, Thomas.
O'Reilly, Paddy.
O'Sullivan, John L.
Pattison, Séamus.
Ryan, Richie.
Taylor, Francis.
Timmins, Godfrey.

Tellers:— Tá: Deputies Geoghegan and S. Browne; Níl: Deputies Begley and Cluskey.

Question declared carried.

NEW SECTION.

Mr. Cooney

I move amendment No. 19:

In page 4, before section 8, to insert a new section as follows:—

"(1) Where in summary proceedings in relation to an offence under this Act a question of title to land is brought into issue such summary proceedings shall be stayed and it shall be the duty of the party raising such question of title to proceed as soon as possible to have such question of title brought before a superior court of competent jurisdiction to have the same determined.

(2) Such superior court shall certify to the District Court having seisin of the said summary proceedings as to whether or not a bona fide question of title existed and in the event that such a bona fied question of title existed the District Court shall thereupon dismiss the said summary proceedings but should no bona fide question of title be certified as aforesaid then the District Court shall proceed to hear and determine the said summary proceedings and it shall not be necessary for the prosecution to prove ownership of the land or vehicle as the case may be.

(3) If the party raising such question of title does not commence proceedings in such superior court within 21 days of raising such question of title then the summary proceedings shall continue to a determination and the failure to commence proceedings as aforesaid shall estop any further raising of a question of title and it shall not be necessary for the prosecution to prove ownership of the land or vehicle."

Section 8, as drafted, provides that the jurisdiction of the district court shall not, in summary proceedings in relation to an offence under this Act, be ousted by reason solely of a question of title to land being brought into issue. Subsection (2) provides:

Where in summary proceedings in relation to an offence under this Act the question of title to land is brought into issue...

and has to be considered by the district court in proceeding to a penalty under the Act, that such consideration will not operate as an estoppel in subsequent proceedings in relation to the land. You then have the extraordinary position of the district court, in effect, in order to proceed to a conviction, having to make a decision on a question of title and subsequently there could be a title action in a higher court on the same issue.

It has long been a part of our legal code that courts of inferior jurisdiction do not hear questions of title because of their very nature they are extremely technical and complex and, while the persons adjudicating and practising in the lower courts are, no doubt, competent lawyers, very often they have not got the time or the documentary resources available to argue and tease out involved and intricate questions of title. This section is allowing the district court to do exactly what up to now has always been prohibited in it, that is, to decide a question of title. It recognises implicitly that there could be a title dispute in the district court and that the proceedings in the district court, in effect, could be a title dispute. This is recognised by the section because in subsection (2) it is provided that anything that happens in the district court will not estop title proceedings subsequently in another court.

Once that recognition is there and once there could be, if you like, two title actions concerning the same matter in two different courts and two separate proceedings, there could be the extraordinary and ridiculous situation of a person being convicted on a title adjudication in an inferior court while a different conclusion might be drawn in a superior court. My amendment is designed to overcome the difficulties inherent in section 8. The amendment is, in effect, to substitute a new section for section 8. It recognises that there may be a bona fide question of title arising on the proceedings in the district court. Should that situation arise, the simplest and fairest thing to the parties and to the courts is to see if, in fact, there is a bona fide question of title, have that tested in a superior court and, if the superior court certifies that there is a bona fide question of title, the matter is removed from the inferior court and the technical question of title is decided by itself without any reference to the criminal proceedings under this legislation.

Subsection (1) of the amendment accordingly says:

Where in summary proceedings in relation to an offence under this Act a question of title to land is brought into issue....

I would submit to the Minister that that is reasonable because the amendments which he accepted earlier, providing for the raising of a bona fide claim of right, more or less ensure that a question of title will be brought into issue. The amendment then provides that the summary proceedings will be stayed and an obligation is imposed on the party raising such question of title to proceed to a superior court of competent jurisdiction to have the question of title determined.

There should not be any preliminary investigation by the district court as to whether a question of title has been raised because, to my mind, this would involve the district court, in effect, in making a decision on a question of title. Once a party raises a question of title there should be no more ado about it. His obligation should be to proceed forthwith to the higher court. It may be suggested that giving this right could give an opportunity to a certain-minded type of defendant to abuse this right and that he could always raise some ridiculous question of title and go immediately to a higher court. I doubt if there will be any severe incidence of such abuse but, even if there were to be occasional cases of it, the inconvenience they might impose on the courts would be more than counter-balanced by the genuine cases which would be assisted. In any event, a person who took advantage of what is proposed and went to a higher court would get only temporary breathing space.

The next subsection sets out that the superior court shall certify to the district court as to whether or not a bona fide question of title exists and, if it does, then the matter is to be removed from the jurisdiction of the district court. No one can object to that because the Minister has said all along that, where a genuine question of title is involved, most definitely this Act is not to apply. Consequently, if a superior court certifies that a bona fide question of title exists, the matter leaves the district court. That is in accordance with the spirit which the Minister wishes to see in this Act.

If no bona fide question of title can be certified by the district court, in other words, if the person going to the superior court merely goes for delaying purposes or on flimsy or quite ridiculous grounds, the superior court shall so certify and the matter goes back to the district court where it will be dealt with as a criminal offence under this Act. The proceedings in the district court will then have the added advantage that they cannot be clouded by any arguments of bona fide claims of rights. There will be a clean-cut decision on the question of criminal law only. There will be no question of title or anything like that to cloud the issue.

Subsection (3) puts an onus on the party raising the question of title to move, and to move speedily. If a criminal offence is alleged, it is important that there should be a speedy trial and the matter be determined speedily both from the point of view of the criminal law being enforced speedily and effectively and from the point of view of the defendant who should be entitled to a speedy trial. Nevertheless, if the party raising the question of title does not commence his title proceedings, or does not have the matter transferred to a superior court within 21 days of raising the question of title, the summary proceedings can continue to a determination. In fact, 21 days is possibly a short time within which to have proceedings commenced because if it is a matter that has merit and weight there may be some technical difficulty in getting the pleadings ready within 21 days in order to ensure that the right to go to the superior court would not be abused. If the party commences proceedings, the proceedings do not have to reach determination but if he commences proceedings and issues an initiating document within 21 days, the proceedings in the district court are deferred until the higher court determines the question of title raised. However, if he does not initiate the proceedings within 21 days in the higher court, then the summary proceedings shall continue to a determination. The subsection is severe in its consequences of failing to move within 21 days because the failure shall estop the defendant from raising the question of title and also it will remove the obligation from the prosecution to prove any ownership of land. In effect, the defendant would be in the same position as if the superior court were to certify that no bona fide question of title existed.

Possibly, the drafting of the section could be tightened up here and there but the principle of the section is to overcome the difficulty of having the district court or an inferior jurisdiction adjudicated on a question of title. This is a novel departure. It would be adjudication, not on a question of title and not in a title action but on a prosecution for an offence where the prosecution would be conducted by a superintendent of the Garda. In practice it is not possible to have the State Solicitor present and, consequently, if a question of title is raised and not ousted as it normally should be ousted, the result could be a very difficult situation with a superintendent of the Garda, who is not trained in any branch of criminal law, having to argue a question of title with defence counsel. The rule that already exists and which is of very old origin, that is that questions of title should never be taken in inferior courts, is a good rule and it is a pity to see it breached here.

The other inconsistency in the section is that there could be subsequent proceedings on the question of title which could bring about a different result but if a person had been convicted and punished in the inferior court, there would certainly be a ridiculous situation where the superior court could hold that the facts were such that he should not have been punished, and that there was a bona fide claim of right on his part. The amendment is for the purpose of imposing an obligation on a person alleging bona fide title to move quickly to a higher court. The higher court looks at the case and decides whether there is a question of bona fide title, certifies accordingly to the district court and the matter is then either withdrawn from the district court if there is a question of title or, in the case of there being no question of title, it is proceeded with in the district court. The issues are then clear and not clouded by any technical argument. Perhaps the drafting would have to be tightened up to provide for the preliminary hearing in the superior court and so that they could have a look at the initiating documents in order to certify that, prima facie there would be a bona fide case. I commend the amendment to the Minister.

Mr. O'Malley

I am afraid that I must oppose this amendment, because it would greatly complicate, delay and add to the cost of summary proceedings in relation to an offence under the Bill. The object of section 8 is to provide that the district court will have jurisdiction to hear and determine proceedings for an offence under the Bill notwithstanding that a question of title of land is brought into issue. The need for the provision stems from the fact that the district court has no original jurisdiction in regard to title to land and is subject to the common law rule —formerly applicable to justices of the peace and to resident magistrates— whereby the jurisdiction of the court in criminal cases is ousted if, on the hearing of the case, a bona fide claim of title to land is raised.

In civil business the district court has jurisdiction in tort cases which involve title to land of a valuation not exceeding £10, subject to the proviso that the decision of the justice in such a case shall not operate as an estoppel in or a bar to a suit in any court in relation to the land. Provision for this effect is contained in section 77 of the Courts of Justice Act, 1924. In their Fifth Interim Report in relation to the jurisdiction of the district and circuit courts, the Committee on Court Practice and Procedure, of which Mr. Justice Walsh is chairman and which includes three other judges, two barristers and two solicitors, considered the operation of this £10 valuation limit in tort claims in the district court and recommended that the limit should be removed altogether. I have decided to accept the committee's recommendation and the necessary amending provision will be incorporated in the new Courts Bill which I hope to bring before the House soon.

It would be only logical to introduce a similar change in relation to the criminal jurisdiction of the district court and I hope to provide for such a change as soon as a suitable opportunity presents itself.

The common law rule to which I referred at the outset had its origin in England where, of course, most summary proceedings are dealt with by lay magistrates. In this country, district court business is conducted by justices who are qualified lawyers and I see no objection to their having jurisdiction to dispose of criminal proceedings not-withstanding that questions of title arise. Their decisions in such cases should not, of course, operate to prevent separate civil proceedings being brought in another court in relation to the lands concerned, and in the present case this is provided for specifically in subsection (2) of section 8.

At a time when there is general agreement that the need is to streamline the machinery of the courts so as to secure the quicker and more efficient despatch of civil and criminal business and to reduce the cost of litigation, Deputy Cooney's proposal would represent a retrograde step and I cannot imagine anything less calculated to commend itself to this House.

Mr. Pattison

This amendment of Deputy Cooney's is one that we could support. I have one suggestion to make that, perhaps, would help the situation. I believe that the intention of Deputy Cooney in this amendment is to help defendants in these proceedings. However, Deputy Cooney did speak of possible abuse of what he proposes. My reading of the amendment is that it would be open to both the defendant and the owner to use its provisions. We would be much happier if the amendment was confined to the defendant and that a defendant in proceedings could avail only of the provisions of this amendment.

That could be incorporated in the amendment, say in subsection (2):

Where in summary proceedings in relation to an offence under this Act a question of title to land is brought into issue such summary proceedings shall be stayed...

Perhaps, too, that would eliminate some of the delays which the Minister spoke of. Certainly, the amendment is a vast improvement on section 8 and we would be even happier with it if the assistance which the amendment provides could be confined to defendants in proceedings only.

Mr. Cooney

The Minister stated that the amendment would delay, complicate and add costs to the proceedings. Certainly, I concede it would delay the proceedings in the district court but it would delay them to very good reason, the reason being where a matter which would be difficult in the district court was going to be determined in the superior court and I do not think anyone could complain about delay on those grounds. I would disagree with the Minister that it would complicate because I think it would ease the position in the district court by taking out from the district court any question of title. In regard to adding costs if there is going to be a bona fide question of title involved, or if it did arise, it will have to be determined and it will have to be determined at some stage with costs to the unsuccessful party and there would be no question of adding costs to the State.

The Minister argued also that because there are qualified lawyers adjudicating in the district court, as opposed to the system in England where the magistrates are lay persons, that is a reason why the question of title should not oust proceedings under this Bill. I accept that the persons adjudicating are qualified but I think the reality of the situation—and the Minister must know this as a person who practised before such tribunals— is that the format of these tribunals, the lack of pleadings—while pleadings are often a nuisance, nevertheless they are important to establish the issues between the parties—and above all the fact that a question of title is going to arise on a criminal charge where the parties' minds are not attuned to investigating the complicated question of property law, in effect mean that the parties conducting the case would not have been put in a position to do the research necessary to argue.

I think the Minister in stating that subsection (2) does not prevent estoppel implicitly recognises that the matter might get only a very sketchy examination in the district court and that there could be an injustice if the district court proceedings acted as estoppel. In recognising that he is implicitly recognising that the district court is not a safe court to deal with a question of title. Certainly as a person who practises regularly in the district court I would not be able, would not have the resources by way of a library, to put myself in a position to argue in a district court on a complicated question of property law and I am quite certain that any practitioner in the district courts would agree with me and would honestly admit that that would be the position. Without fault to the learned district justices, I do not think that they would be in a position to adjudicate again for the reason that their professional life and experience to date on the bench has been in branches of law which have not involved such considerations. They would be rusty—that is the long and the short of it. Again I doubt if they would have the time or the resources by way of libraries and availability of reports and textbooks. They would not have the resources to study the matter in the detail which would be required.

Furthermore, I have no doubt whatever that even if the arguments were put forward as they would deserve to be in a question of property, with all the technical backing that such arguments would require by reference to statutes, textbooks and cases, it would be quite inconceivable that the presiding justice would there and then be able to assimilate these arguments and be able to give a decision. In practice if a question of title arose in such proceedings it would have to be delayed and then you would have the delay that the Minister says my amendment would involve. I do not think you would have that under the amendment that I propose. It would go speedily to the High Court. If there was a question of title the court would deal with it in the normal way. Any question of title arising in criminal proceedings could be dealt with in the normal way.

With respect to the persons presiding in the district court, as a practitioner I would not feel competent, certainly I would not have the time in the course of conducting normal practice, to do the research necessary to argue a question of title in the district court. The fact that qualified person are adjudicating in these courts is not of itself a reason for permitting them to consider questions of title.

Mr. O'Malley

I feel that Deputy Cooney could not be altogether convinced of his own arguments because with all due respect to him they do not stand up. I have not examined his amendment in detail, in the sense that I have not gone through it word for word and tried to work out the consequences of each sentence and each word in it, but there are a few things that even reading it a few times strike one. One is that an onus is put on the party who brings a question of title to land into issue. To quote subsection (1) of the amendment, there is an onus put on him to go into a court of competent jurisdiction to have the question of title adjudicated finally. The court of competent jurisdiction to decide definitively questions of title to land is the circuit court where the valuation is under £60 and it is the High Court where the valuation is over £60. Many premises in Dublin, and indeed the other cities, have valuations in excess of £60—many of the sort of premises which might be subject to offences under the Bill. The onus is then put on what is really a man of straw for the most part to go into the High Court and to start a title action and Deputy Cooney knows as well as I do that a title action in the High Court or even in the circuit court is a major undertaking. The pleadings alone in the High Court are specialised, technical, complicated and lengthy and to get that action off the ground even would take in the normal way about four months, even assuming that both sides in the action were pleading as quickly as they could and were delivering their pleadings within the time limits set out by the High Courts rules. The cost of all this is very, very substantial and one effect of Deputy Cooney's amendment would be to put the onus of taking such an action in the High Court on to whoever was the defendant in the district court. Very few defendants in the district court, if they realised what is involved, would undertake that and if a High Court title action were to be fought out and fought to a conclusion under Deputy Cooney's amendment one party or the other would have to lose. The costs would be awarded against him. The costs would be very substantial and this is quite apart from and additional to the problem of costs he could have in the district court in the first instance. That is only one practical example that occurs to me quickly in relation to Deputy Cooney's amendment. I think it is quite unworkable. There is also the factor— which Deputy Cooney has admitted—that a 21-day interregnum would be given to defendants. They would bring into issue—which is a very vague phrase—a question of title and would get a 21-day respite although they would not have the slightest intention of starting a full-blown title action in the High Court. The 21-days interregnum would expire if they did not undertake this title action in the High Court but I do not see that they would either want, or could afford, to start an action of that kind. I am afraid Deputy Conney's amendment would be used as a delaying tactic by people who were not bona fide.

Mr. Cooney

When the Minister started his remarks he confessed he had not read the amendment closely and his remarks clearly endorsed that confession. The first point the Minister made was that the amendment is asking the defendant to undertake a title action with all the expense and complications involved in such action but this is not so. The intention of the amendment is that all that would be necessary would be to have proceedings initiated and to do this would not require four months. A period of 21 days should be sufficient, although one could imagine a situation where it might be cutting it a little fine. We only want to get proceedings initiated, we do not want to have a hearing then in the High Court. We want the High Court to certify that a bona fide question of title exists.

This would be akin to present summary proceedings in the High Court where the plaintiff moves an affidavit and if the defendant puts in a replying affidavit showing the defence the matter is set down for plenary hearing. It would be somewhat akin to such procedure in that the party alleging title would show a prima facie case and if the court decides that there was a case the matter would be put aside to be determined. That would not involve the defendant in any expense and it would avoid frivolous title action proceedings in the High Court. The High Court would be competent to see if there was a prima facie case or a bona fide question of title arising and if the court found there was the matter would go back to the district court. It would leave the district court and would be fought out as a title action. It is irrelevant whether the party raising the question of title is a man of straw. If he is a man of straw raising what is obviously a frivolous case, the High Court or the circuit court will not certify that a bona fide question of title exists and the matter goes back to the district court, unclouded by any frivolous objections or frothy claims of right. The matter could be dealt with simpliciter as a criminal offence.

The Minister's other point is that there would be an interregnum of 21 days. I think this period is very short if the point in giving 21 days is to avoid possible injustice. The party prosecuting in the district court says that he has a question of title to raise; the district justice adjourns the proceedings; the party raising the matter initiates title proceedings by serving an initiating document. I said the drafting might have to be tightened up to cover exactly the procedure to be taken by the defendant in such a case so that the initiating document before the High Court would contain information sufficient to enable the High Court to make a determination whether a bona fide question of title existed. The matter is decided by the High Court. The High Court keeps the case and hears the title action or it sends it back to the district court and criminal prosecution proceeds. Instead of delay there would be a more speedy and satisfactory conclusion of the proceedings in the district court.

I can repeat that this amendment is not trying to tempt or force people into an expensive title action. It can arise only where there are grounds for a title action and, when such grounds exist, where the party wish to take title action. It does not say that the title action must be heard and determined before the matter is to come back to the district court. It says that there can be a preliminary look at the matter by the High Court to see if there is a bona fide claim of right, the court so certifies the matter leaves the district court and goes to the court competent and capable of deciding the matter.

Amendment put.

The Committee divided: Tá, 48; Níl, 57.

Tá

Barry, Richard.
Begley, Michael.
Belton, Paddy.
Bruton, John.
Burke, Joan.
Burke, Liam.
Burton, Philip.
Byrne, Hugh.
Clinton, Mark A.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Cosgrave, Liam.
Cott, Gerard.
Coughlan, Stephen.
Creed, Donal.
Crotty, Kieran.
Cruise-O'Brien, Conor.
Desmond, Barry.
Dockrell, Henry P.
Donegan, Patrick S.
Donnellan, John.
Dunne, Thomas.
Enright, Thomas W.
Finn, Martin.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Fox, Billy.
Governey, Desmond.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
Lynch, Gerard.
McMahon, Lawrence.
Murphy, Michael P.
O'Donnell, Tom.
O'Donovan, John.
O'Hara, Thomas.
O'Reilly, Paddy.
O'Sullivan, John L.
Pattison, Séamus.
Ryan, Richie.
Taylor, Francis.
Thornley, David.
Timmins, Godfrey.
Tully, James.

Níl

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Browne, Seán.
Burke, Patrick J.
Carter, Frank.
Carty, Michael.
Childers, Erskine.
Colley, George.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Foley, Desmond.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Haughey, Charles.
Healy, Augustine A.
Herbert, Michael.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Hillery, Patrick J.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Tellers:— Tá: Deputies Begley and Cluskey; Níl: Deputies Geoghegan and S. Browne.

Amendment declared lost.

SECTION 8.

Question: "That section 8 stand part of the Bill" put.

The Committee divided: Tá, 56; Níl, 47.

Tá

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Burke, Patrick J.
Carter, Frank.
Carty, Michael.
Colley, George.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Foley, Desmond.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Haughey, Charles.
Healy, Augustine A.
Herbert, Michael.
Hillery, Patrick J.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Paddy.
Bruton, John.
Clinton, Mark A.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Cosgrave, Liam.
Cott, Gerard.
Coughlan, Stephen.
Creed, Donal.
Crotty, Kieran.
Cruise-O'Brien, Conor.
Desmond, Barry.
Donegan, Patrick S.
Donnellan, John.
Dunne, Thomas.
Enright, Thomas W.
Finn, Martin.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Fox, Billy.
Burke, Joan.
Burke, Liam.
Burton, Philip.
Byrne, Hugh.
Governey, Desmond.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
Lynch, Gerard.
McMahon, Lawrence.
Murphy, Michael P.
O'Donnell, Tom.
O'Donovan, John.
O'Hara, Thomas.
O'Reilly, Paddy.
O'Sullivan, John L.
Pattison, Séamus.
Ryan, Richie.
Taylor, Francis.
Thornley, David.
Timmins, Godfrey.
Tully, James.

Tellers: Tá, Deputies Geoghegan and S. Browne; Níl, Deputies Begley and Cluskey.

Question declared carried.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): Section 9 is that which proposes to confer on a member of the Garda Síochána the right to arrest a person suspected of committing an offence without warrant in certain circumstances. There are certain safeguards provided in the Bill which follow the pattern in sections of Acts which confer on the Garda Síochána the right to arrest without warrant provided the member of the Garda Síochána has reasonable grounds, et cetera. The section states:

A member of the Garda Síochána may arrest a person without warrant where—

(a) the member knows or has reasonable cause for suspecting that the person is committing an offence under section 3 of this Act, and

(b) the owner of the land or vehicle to which the offence relates represents to any member of the Garda Síochána, and the member proposing to make the arrest reasonably believes, that, as a result of the continuance of the offence, serious damage of the land or vehicle or serious interference with the lawful rights of the owner in relation thereto, or serious inconvenience to the public or a section thereof, is being or will be caused, and

(c) the member proposing to make the arrest reasonably believes that the arrest is necessary to prevent the damage, interference or inconvenience, and

(d) it is not reasonably practicable to apply for a warrant.

I have no doubt the Minister will argue that the safeguards are adequate to protect the citizen. I want to say at the outset that I am very much against the trend creeping into legislation in recent years which confers on members of the Garda Síochána the right to arrest without warrant.

We had a battle royal here on the Road Traffic Act on this topic. That Act now on the Statute Book confers, quite unnecessarily in my opinion, the right to arrest without warrant on members of the Garda Síochána in such instances as dangerous parking. One thing of which there is no scarcity in this country is peace commissioners. They are readily available and appointments as titles of honour are held by gentlemen all over the country. I cannot see why a member of the Garda Síochána who proposes to make an arrest under this Act could not go to a peace commissioner and get a warrant. He could do so as quickly as he would be making up his mind that an offence was being committed. First of all, he has to make up his mind that an offence is being committed, then he has to consult the owner, then he has to make up his mind that damage will continue and that it is not reasonably possible to obtain a warrant.

The principle of arrest without warrant is bad. It should be obligatory on the garda to get a warrant from a peace commissioner. I cannot see the objection to it and my point in opposing this section is that I am opposed to the principle of arrest without warrant. The present Government and their advisers seem to avail of every opportunity to confer the right of arrest without warrant. It is a case of lifting a sledgehammer to kill a fly. Every opportunity the Government get in a piece of legislation of this kind they avail of it to confer the right of arrest without warrant.

This section gives an unqualified right to arrest without warrant because the safeguards provided in paragraphs (a), (b), (c), and (d) are not tangible safeguards: they are something that is going on within the mind of the individual who proposes to make the arrest. How is anybody to dispute these things if the garda concerned says he has reasonable grounds in his mind and that he reasonably thought this, that and the other thing. I appeal to the Minister in this Bill and to the Government in others, and to their advisers, to desist from this practice.

Mr. O'Malley

Because of the offences created by sections 2,3 and 4 are indictable, it will be possible for the gardaí to apply to a district justice, or a peace commissioner, for a warrant to arrest a person who has committed or is committing an offence under any of these sections. It is envisaged, however, that cases may occur where an offence of forcible occupation under section 3 is taking place and the circumstances are such that serious damage to, say, a building or serious interference with the lawful rights of the owner in relation thereto or serious inconvenience to the public is being or will be caused as a result of the continuation of the offence and the only way of preventing the damage, interference or inconvenience would be for the gardaí immediately to arrest those concerned.

Section 9 provides for the vesting in the Garda Síochána of a power of arrest without warrant in such cases. It is to be observed that all four conditions specified in the section will have to be satisfied before the power of arrest may be exercised—they are not alternatives. The power of arrest without warrant provided by section 9 is a very limited power, which will be exercisable only in rare cases. The fact that it must be in circumstances in which it is not reasonably practicable to apply for a warrant is enough to ensure that. The power falls far short of other powers of arrest without warrant that the Garda Síochána already have, both at common law and under statute.

A member of the Garda Síochána has a common law power to arrest without warrant as follows:

(a) On a reasonable suspicion that the person concerned has committed a felony, or

(b) if he sees a breach of the peace being committed, or

He has a statutory power of arrest without warrant—

(a) if he finds a person committing any indictable offence at night, Prevention of Offences Act, 1851, section 11, or

(b) if he finds a person, at night, loitering in any street, yard, et cetera, with intent to commit any one of several specified felonies (malicious damage, housebreaking, et cetera)—the power, in this latter case, is conferred in the various statutes dealing specifically with these crimes, and all the common felonies are covered—or

Under the Road Traffic Act and similar legislation, for example.

Additionally, under the Dublin Police Act, 1842, a member of the Garda has powers of arrest without warrant in the case of a whole series of offences, where the offence is committed within the view of the member. It might be no harm if I were to advert to section 14 of the Dublin Police Act because it sets out 17 different categories of offences, which is many more than 17 offences, where the police have power of arrest without warrant in the Dublin Metropolitan Division. Deputies will recall, as I do, that within the past 12 months questions have been addressed to me by Dublin Deputies from all sides of the House asking me if I would take steps to extend the Dublin Metropolitan Division in order that the benefits—if that is the word for it—of section 14 could be extended to the parts of Dublin which are now for all practical purposes the city proper but which happen to lie outside the boundaries of what was the old Metropolitan Division.

Mr. Desmond

Can the Minister give the occasions when these requests were made?

Mr. O'Malley

There were about three parliamentary questions from both sides of the House.

Mr. Desmond

That is entirely inaccurate, no such requests were made. Will the Minister give the dates?

Mr. O'Malley

I shall give them to the Deputy on the next Stage.

Mr. T.J. Fitzpatrick

(Cavan): I think the Minister might find that what Deputies had in mind was the children's court——

Mr. O'Malley

No, they did not.

Mr. T.J. Fitzpatrick

(Cavan):——because if the area was extended the children's court would operate in those areas in which it does not now operate.

Mr. O'Malley

The point was made, I remember, with particular reference to Ballyfermot——

Mr. Desmond

Not in respect of the 1842 Act.

Mr. O'Malley

——that when an offence was committed on one street and a garda saw it happening he could arrest but if a friend of that person or an associate of that person committed the same offence on the next street the garda had to stand by and look on.

Mr. Desmond

That was never raised and the Minister knows that.

Dr. Cruise-O'Brien

Why does the Minister not have the references? He should have them.

Mr. O'Malley

I know perfectly well when it was. I shall produce the reference for the Deputy on the next Stage.

Acting Chairman (Mr. Tully)

The Minister should not get into an argument and he should not be interrupted.

Mr. O'Malley

It would interest Deputies to read the 17 categories of offences for which there is power of arrest without warrant under this Act.

Mr. T.J. Fitzpatrick

(Cavan): What is the title?

Mr. O'Malley

The Dublin Police Act. It is an Act of which considerable use is made and not alone has there been no agitation for its repeal or its limitation in any way but indeed the agitation has been in the opposite direction, for its extension. We could have a light entertainment interval while I refer to some of the offences in it. They include such remarkably non-criminal things as children making a slide in snow or frost, and indeed something which several law-abiding citizens have been known to do, flying a kite.

Mr. T.J. Fitzpatrick

(Cavan): There are plenty over on that side of the House.

Mr. O'Malley

By comparison with these very extensive powers of arrest without warrant the power of arrest without warrant being provided by section 9 of this Bill cannot be exercised unless four conditions—that is, all four, and not just any one of the they took to be rather seditious and four—are fulfilled. An analysis of these four conditions at paragraphs (a), (b), (c) and (d) clearly demonstrates that the section can be operated only in quite exceptional circumstances. As a matter of law, if a statute or a rule of law provides that a garda may make an arrest where he "reasonably believes" something, this means that his belief must be based on reasonable grounds. It is not enough, as Deputy Fitzpatrick said in his opening remarks, that the garda should think that he has reasonable grounds. The making of an arrest can be challenged in court and, unless the court is satisfied that there were in fact reasonable grounds, the garda will be held liable for a false arrest even if the court is satisfied that he acted in good faith. The use of words such as "reasonably believes" in the context of a section giving powers of arrest without warrant was strongly urged by the former Taoiseach, Mr. John A. Costello, in the Dáil Debates on the Criminal Justice Bill—Official Report of 23rd April, 1969, columns 2022-2025. I might add that the phraseology used in this section is the phraseology advocated on that occasion by former Deputy John A. Costello.

But that limitation on the operation of section 9 is less important than the condition prescribed at paragraph (d) which has nothing in it about the belief of the garda. The condition at paragraph (d) is that "it is not reasonably practicable to apply for a warrant". What the garda thinks is irrelevant. The only thing that is relevant, as far as this condition is concerned, is the factual question whether it was reasonably practicable to apply for a warrant; and it is the court and not the garda that will ultimately decide whether or not it was reasonably practicable.

It may legitimately be asked whether, if the section can be used only in such exceptional circumstances, it is necessary at all. My answer to that is that it is necessary because of the nature of the exceptional circumstances. If we look at conditions (b) and (c) in the section and read them together, it will be quite clear that, even if it is not practicable to apply for a warrant, the reasonably believes that the continuance of the offence will result in serious damage to the premises or vehicle or serious interference with the lawful rights of the owner, or serious inconvenience to the public or a section thereof, and that the arrest is necessary to prevent such damage, interference or inconvenience. Such a situation would practically never arise in relation to the occupation of premises as a dwelling. If people had gone into a dwelling house or a flat or any form of accommodation with the intention of living in it for a period, then a couple of hours more or less would make no difference in any circumstances that I can think of, with the possible exception of a case where the "occupation" meant throwing out or locking out people already living there and I cannot imagine that in such a situation any Deputy would object to immediate Garda intervention. The section is tied up by four conditions which for all practical purposes mean that it would be unusable by the Garda except in the most extreme and obviously meritorious cases in relation to the occupation of a premises or of a vehicle.

Dr. Cruise-O'Brien

We on these benches are opposed to this section both on the general ground that we are opposed to the widening without adequate reason of powers of arrest without warrant for the Garda Síochána and on the particular ground that we are opposed to them in the context of this Bill with its many other exceptional and objectionable features. The Minister has a curious, almost perverse, affection for Victorian statutes, with a preference for the early Victorian period. The period in question was one in which there was, in fact, a growing concern for the liberty of the subject and for safe-guarding him but there were exceptions to that in the Victorian legislative mind and one of the great exceptions was, of course, Ireland, and notably Dublin. Victorian legislators did not have the same sensitivity in relation to what the powers of the police should be when it was a question of Ireland and Dublin whose inhabitants garda may make an arrest only if he generally undesirable characters. They wanted the police to have a pretty free hand with them without too much mawkishness about freedom from arbitrary arrests and so on. Having regard to the Minister's somewhat colonial attitude, it is interesting and revealing that he should appeal to this kind of precedent as often as he does.

I do not think anybody will be satisfied with the so-called safeguards which are contained in this. As has been pointed out, these safeguards are of an entirely subjective character. They depend on somebody's believing to be reasonable something that is believed to have happened in somebody's mind and I do not think that is a safe-guard any one of us would like to depend on if we were the person likely to be affected by the measures concerned. We would like the Minister to consider that a more objective safeguard might be that the member of the Garda Síochána who found himself in this situation should at least enjoin the person whom he believes to be engaged in this form of activity to desist from it before he proceeds to this generally objectionable method of arrest without warrant.

Mr. O'Malley

That is already in the Bill.

Dr. Cruise-O'Brien

I do not see it in this section. Where is it?

Mr. O'Malley

In sections 2 and 3 the offences cannot be committed unless the person refuses to leave after request.

Dr. Cruise-O'Brien

Section 2 states:

if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner.

I do not see it in section 3 which is the section that is referred to here.

Mr. Desmond

Section 3 surely operates in a rather separate manner.

Dr. Cruise-O'Brien

Section 9 refers to section 3 and does not seem to impose this limitation on the member of the Garda Síochána. It is certainly not clear that it does so. Would the Minister be prepared to clarify this?

Mr. O'Malley

If the garda asks the person to leave and he does so, then he is not committing an offence under section 3.

Dr. Cruise-O'Brien

It does not say that. The Minister may at least agree that there is room for certain clarification there but, independent of whether it is clarified or not, we simply offer that suggestion. We are opposed to this section because of its widening unnecessarily, as we believe, this power of arrest without warrant which is objectionable in itself and in particular because this is taking place within the context of a Bill which makes extraordinary inroads on the rights of the citizen.

Mr. Cooney

The power to arrest without warrant should only be available in a situation in which serious and immediate damage will inevitably occur. This should be the basis so that the garda can move to prevent the damage. That is the only acceptable basis of the power and it is important, therefore, that the garda should be uninhibited from moving promptly.

The Minister pointed out that the power contained in this section is hedged around by four conditions which are not alternative. Each one of them has to be complied with before power can be exercised. He pointed out this as a curb on the garda's power. To my mind it is inconsistent to give the garda power and then to hedge him around with these restrictions. As the Minister properly points out, it is not what the garda thinks; it is what the court afterwards feels about what the garda thought that is relevant in determining whether he was reasonable or not. One can imagine that there could be a very scrupulous member of the garda who knows his law very well and who is invited to effect an arrest without warrant for an alleged offence under section 3. This particular member is familiar with section 9, subsections (a), (b), (c), and (d) and he has to go over each of these in his mind, have a debate with himself and possibly with the person asking him to effect the arrest. He might decide this to be unreasonable, conditions not being fulfilled or he might decide, if there was a very skilled and experienced debater inviting him to take steps under section 9, he could do it. All this is the very antithesis of the principle behind arrest without warrant, namely, speed.

That is the whole point of arrest without warrant. If all these preliminaries have to be investigated speed is no longer relevant and the garda could have gone in the first instance to a police commissioner. As Deputy Fitzpatrick pointed out, the country is pickled with peace commissioners. In any event, this section purports to give the garda this power where serious damage or serious interference is being caused or will be caused. It is in relation to section 3, in relation to a person who is already in forcible occupation. If a person has gone into forcible occupation the changes are (1) that he has committed a felony in going in and (2) if he is causing damage inside he is committing a felony and that power for arrest without warrant is there already—it is common law. This is an indictable offence and if it should happen after advice then the garda has power to arrest without warrant. I do not think the section is necessary. The law as it already stands is sufficient in regard to this particular offence having regard to what the section purports to prevent. In my opinion the garda already has power under the common law to make an arrest without warrant and this power here is quite unnecessary. It is unrealistic and the Bill would be better off without it.

Mr. Desmond

We are very much opposed to this section. I do not know if there has been any demand whatsoever from the Garda Commissioner and the Garda authorities for the introduction of such a section. Certainly if there has, there has been no public comment from the Garda authorities. They more than any other group might be expected to make the initial approach to the Minister if they were gravely hampered in the execution of the law as it currently stands.

This section once again underlines the widespread public unease about this Bill as a whole. The introduction of a piece of legislation for which there has been no public demand— there has been no apparent judicial or law enforcement demand for it that we are aware of apart from the Minister's own intense preoccupation with the need to have such a section—is unnecessary. We strongly feel that the Garda have ample powers already to deal with the kind of serious situation envisaged by the Minister. The Garda have already adequate powers to deal with breaches of the peace which are likely to be committed or with loitering with intent. Any garda can act in an anticipatory manner and can, in fact, if he wishes, arrest without warrant in a range of circumstances which could closely approximate to the supposed serious damage, serious inconvenience and serious interference envisaged by the Minister under this section.

It seems to us that there is adequate statutory provision for members of the Garda. I also feel that an intolerable burden is imposed on Garda officers. An entirely subjective and invidious area of applying arrest without warrant is, in fact, now opened up. This is highly undesirable and certainly not welcome. The Minister made an inadequate reference to the 1842 Dublin Metropolitan Police Act. I had accused him of being Napoleonic in his approach to this Bill. Deputy Cruise-O'Brien rightly pointed out that today the Minister goes Victorian. The Minister has relied on statutes of an outdated social and legal nature right throughout the discussion on this Bill. It is appalling that any Minister for Justice would put forward such arguments to an Irish Parliament in 1971. The only conclusion one can come to is that he is extremely hard up for arguments.

The other point I should like to make in relation to section 9 is in regard to the highly ambiguous wording of clause (b) in relation to serious interference. Serious interference must be anticipated by the owner or the garda, serious inconvenience to the public must be anticipated and serious damage to the land must also be anticipated. Yet in clause (c) one sees a dilution of that approach, where a garda proposing to make an arrest must merely "reasonably believe" that arrest is necessary to prevent the damage. The word "serious" is not introduced into clause (c). "Damage" is put in, "interference" is put in, and "inconvenience" is put in. The Minister says that all four parts must apply before a garda may proceed with an arrest. One must ask him: why the differentiation? This is one example of the ambiguity in this Bill.

A garda has to act in such a hypothetical, subjective manner that he would be well advised, in order not to face a breach of the law himself, to go away and consult with a local solicitor before he started implementing certain sections of this Bill. It is imposing, in that context, an intolerable burden on members of the Garda Síochána. If any garda is unwise enough to take unto himself powers which he is not entitled to take and acts in a manner which is highly questionable, the section of course automatically gives him protection because he can claim until the cows come home that it was not practicable to apply for a warrant and this will be matter of pure speculation in many instances. He can claim that serious damage was anticipated by him even if it never occured. Meanwhile he has the fellow clapped in irons and under full arrest.

The Minister says in relation to section 9 that it will only be applied in rare cases, in the most extreme circumstances. Unfortunately there is nothing in section 9 which refers to the rarity of the section being applied. There is no reference whatever to the question of its being applied in extreme circumstances. Again we are faced with the appalling situation that the advice and guidance of the Minister both to the Attorney General and to the Garda Síochána as to how they might apply this Bill is not contained in the Bill. I do not think the Minister will be Minister for Justice for so long that he can anticipate that he can keep continuous supervision over the application of this measure in the years ahead. We do not know what will happen.

The longer I debate this Bill the more appallingly depressed I become. Yesterday I was in Brussels talking to staff members of the EEC. I explained that I had to return to Dublin for a vote on a Prohibition of Forcible Entry Bill. Apart from the general amusement which the introduction of such legislation caused to the EEC staff members, particularly in the context of the current political situation in Northern Ireland and in the Republic, they did not feel that we were in the throes of preparing ourselves for the exciting adventure of joining the Common Market. I had to explain that because about 120 people in Dublin, the vast majority of them subtenants, and a few miscellaneous individuals around the country were occasionally indulging in fish-ins and in the occasional occupation of premises— which, of course, on the Continent is now treated almost with casual disdain —the Minister for Justice had suddenly gone berserk in introducing various sections relating to arrest without warrant and extending the criminal law into an area in which we felt it could be handled more democratically.

For these reasons I feel quite depressed and I should like to convince the Minister that section 9 is unnecessary, it is ambiguous, there is no public demand for it, it is quite undemocratic and in the long term, and indeed in the short term, it is likely to bring about instances about which citizens will have good reason to feel concern. Members of the Garda Síochána, as the law enforcement officers, are having once again the legal interpretations of various Ministers imposed on them and are being told to go ahead and implement statutes relating to arrest without warrant where they would be much happier if they were able to exercise their undoubted common sense and their social influence on the community and deal with such instances without the crowbar and the hammer effect proposed by the Minister in this section.

Mr. T.J. Fitzpatrick

(Cavan): As one who is against arrest without warrant in principle I was rather interested to hear the Minister's argument in favour of this section. He went back to the Dublin Police Act of 1842, an Act which even amused him and which he quite candidly told us could provide some light entertainment for us if we had the time to devote to it because among other things apparently it gave the right of arrest without warrant to the Garda Síochána in respect of a child making a slide or young people flying kites. It is obviously an absurd sort of Act that should not be seriously brought into this House as a precedent or as an argument for introducing into this Bill arrest without warrant. If the Minister wanted to find in these rather dark ages precedents for doing all sorts of things that would not be regarded as thinkable now he could do it. If he went back far enough he could find that one Act provided the death penalty for sheep stealing and he could find all sorts of queer penalties for offences that now would be regarded as trival.

Therefore, I say to the Minister that if he is coerced into going back to the Dublin Police Act of 1842 in order to justify this section he should withdraw the section. I was interested in the Minister's reference to the definition of the Dublin Metropolitan Area. I am told that there is the right within that area for arrest without warrant for offences for which a member could not arrest without warrant outside that area. The Minister said that there had been a demand by Members of this House for the extension of the Dublin Metropolitan Area. I made an appeal that this area should be extended. The records will show that I made that argument because the Children's Court now covers only what I would call, perhaps, incorrectly, Greater Dublin and I felt that the Children's Court should be available to young people who commit offences in built-up areas of outer Dublin. The Minister or his predecessor said that it was not possible to extend the area at the time. I do not know what reason was given. A young person who commits an offence now in the metropolitan area is dealt with in the Children's Court by a district justice, a lady who specialises in dealing with offences committed by young people. If a young person who is living in a built-up area outside the metropolitan area commits an offence he is brought before the criminal court. That is the argument I was making in favour of the extension of the metropolitan area.

I saw a ray of hope in the Minister's argument when he said that this Bill provides only for arrest without warrant in the rarest of circumstances. I do not accept that. If I were satisfied that that is the Minister's thinking on the subject, and the thinking of his advisers, I would say that all the talk I have done on this subject has not been entirely in vain and that the Minister realises that arrest without warrant should only be a last resort where instant action is necessary to preserve life or to prevent irreparable damage being done. I do not think that those circumstances can be brought within this section. For that reason I think that the Minister himself both by reference to this obsolete Act of 1842 and by his statement that this section only confers the right in very extreme circumstances has made a practically unanswerable case for opposing this section.

Mr. Enright

I agree with some of the speakers on this side of the House in regard to this particular section. I do not believe that it is necessary because sufficient power is available at present to the Garda Síochána to make arrests without warrant. The Minister spoke about section 14 of the Dublin Police Act of 1842. He mentioned this Act in a jocose manner. I do not intend to attack the Minister, but I feel that, in honesty, in this day and age having such Acts on the Statute Book is very dangerous. It brings the law into contempt. It holds the law up to ridicule. This is serious. Instead of section 9 being before the House this morning I believe that more effort should be made by the Minister and his Department to remove such ludicrous powers. We would be much better off. If the powers of arrest without warrant were employed I am certain that many members of the Government—and one in particular—would have been arrested on many occasions. Adequate powers are available at the present time. There are sufficient powers of arrest without warrant without introducing further powers and putting them in the Statute Book. This extra power is not necessary or wise in the present circumstances.

I do not believe that the Garda Síochána want this extra power. I honestly believe they would be better off without it. The vast majority of the gardaí are careful about the use of their powers and act with discretion, care and tact. I can say that without fear of contradiction. Extra powers are not necessary at the moment. We are told that in an exceptional case where these powers are exceeded a charge can be brought against a particular member of the Garda Síochána for false arrest but this of itself is not sufficient because when a person is unnecessarily arrested there is an affront to his personal dignity and rights. We would be much better off without such a section in the Statute Book.

Question put.

The Committee divided: Tá, 53; Níl, 47.

Tá

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Foley, Desmond.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hillery, Patrick J.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Paddy.
Bruton, John.
Burke, Joan.
Burke, Liam.
Burton, Philip.
Byrne, Hugh.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Cosgrave, Liam.
Cott, Gerard.
Coughlan, Stephen.
Creed, Donal.
Crotty, Kieran.
Cruise-O'Brien, Conor.
Desmond, Barry.
Donegan, Patrick S.
Donnellan, John.
Dunne, Thomas.
Enright, Thomas W.
Finn, Martin.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Fox, Billy.
Governey, Desmond.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
Lynch, Gerard.
McMahon, Lawrence.
Murphy, Michael P.
O'Donnell, Tom.
O'Donovan, John.
O'Hara, Thomas.
O'Leary, Michael.
O'Reilly, Paddy.
O'Sullivan, John L.
Pattison, Séamus.
Ryan, Richie.
Taylor, Francis.
Thornley, David.
Timmins, Godfrey.
Tully, James.

Tellers:—Tá: Deputies Geoghegan and S. Browne; Níl: Deputies Begley and Cluskey.

Question declared carried.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): I think it only right to say that we do not propose to vote on this.

Question put.

The Committee divided: Tá: 52; Níl: 12.

Tá

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Foley, Desmond.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hillery, Patrick J.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Timmons, Eugene.
Wyse, Pearse.

Níl

Cluskey, Frank.
Coughlan, Stephen.
Cruise-O'Brien, Conor.
Desmond, Barry.
Kavanagh, Liam.
Murphy, Michael P.
O'Connell, John F.
O'Donovan, John.
O'Leary, Michael.
Pattison, Séamus.
Thornley, David.
Tully, James.

Tellers:— Tá: Deputies Geoghegan and S. Browne; Níl: Deputies Cluskey and Ka vanagh.

Question proposed: "That the Title be the Title of the Bill."

TITLE.

Dr. O'Donovan

I wish to speak on the Title of the Bill. On Second Stage I raised the point that the Title is incorrect. The Bill should be entitled "Prohibition of Illegal Entry and Occupation Bill". If the Government are going to do this kind of thing they might at least behave like Herr Hitler and do it in proper legal form. Since they are setting themselves up as neo-Fascists they might keep the law of the land as it exists. Let us suppose that a house is left unoccupied but that the doors are not locked—the inference in this Bill is that somebody forces his way into the house. This is in the Title but, of course, they could get in illegally by simply raising the latch of the door. It is a great pity the Minister for Justice and his advisers did not use whatever brains the good Lord gave them when they were setting up the Title of this Bill. If we are to have legislation of this kind it might at least be done properly. Therefore, I oppose the Title to the Bill.

Mr. Gallagher

I would welcome the passing of this Bill. With due respect to the last speaker, I consider the Title to be appropriate. Any person entering property, whether that property be locked or otherwise, who has no right to be there is going in forcibly.

Dr. O'Donovan

It is an extreme interpretation of the word "forcibly".

Mr. T.J. Fitzpatrick

(Cavan): On Second Stage I made it perfectly clear on behalf of this party that we accept the principles embodied in sections 2 and 3 but that we thought there were many objectionable features to the Bill. On Committee Stage we have done our utmost, by constructive amendments, to try to improve the Bill. We have not succeeded. In regard to section 4 in particular we have fought tooth and nail. This is a diabolical section and one which attacks the right of free speech. It is a section that may prohibit editors of newspapers from speaking fearlessly as they have done in the past.

An Ceann Comhairle

This does not arise on the Title.

Mr. T.J. Fitzpatrick

(Cavan): No, but I am coming to that. In so far as the Title of the Bill is concerned we do not propose to hold up the business of the House or to walk through the division lobbies on a technicality like that. We have done our best to improve the Bill and it is not our fault if we have not succeeded.

The Committee divided: Tá, 53; Níl, 12.

Tá

Aiken, Frank.
Allen, Lorcan.
Boylan, Terence.
Brady, Philip A.
Brennan, Paudge.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Collins, Gerard.
Connolly, Gerard C.
Cowen, Bernard.
Crowley, Flor.
Davern, Noel.
Delap, Patrick.
de Valera, Vivion.
Dowling, Joe.
Faulkner, Pádraig.
Flanagan, Seán.
Foley, Desmond.
Forde, Paddy.
French, Seán.
Gallagher, James.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hillery, Patrick J.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Loughnane, William A.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Connor, Timothy.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Power, Patrick.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Níl

Cluskey, Frank.
Coughlan, Stephen.
Cruise-O'Brien, Conor.
Desmond, Barry.
Kavanagh, Liam.
Murphy, Michael P.
O'Connell, John F.
O'Donovan, John.
O'Leary, Michael.
Pattison, Séamus.
Thornley, David.
Tully, James.

Tellers:— Tá: Deputies Geoghegan and S. Browne; Níl: Deputies Cluskey and Kavanagh.

Question declared carried.

Bill reported with amendments.

Report Stage ordered for Wednesday, 30th June, 1971.

Dáil Éireann díospóireacht - Wednesday, 16 Jun 1971

Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

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Dáil Éireann díospóireacht -
Wednesday, 16 Jun 1971