Dáil Éireann díospóireacht -
Wednesday, 11 Apr 1984

Vol. 349 No. 10

Criminal Justice Bill, 1983: Committee Stage (Resumed).

NEW SECTION.

Amendment No. 1 was moved by the Minister for Justice on Tuesday, 10 April 1984:

In page 3, before section 2, to insert the following new section:

"2.—Each of the following sections, namely, sections 3 to 8 and 14 to 18 shall cease to be in operation at the expiry of five years from the commencement of that section unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation.".

Debate resumed on the following amendment to amendment No. 1:

To delete "five years" and substitute "one year".

—(Deputy De Rossa)

Mr. Skelly

Before the Adjournment yesterday I was about to give my reasons why I thought this section should be altered. It is an untried law and there is great concern about its effect, especially in relation to the safeguards involved; and because there is a danger, both from the point of view of the protection of the Garda and of innocent members of the public, the House should be able to monitor it. It is desirable that Members of the House who are presently going to pass this Bill — it should be done during the course of the present Dáil — are in a position to do so.

By that I mean the full five years should not elapse before review because of the intense interest in the Bill and because so many Members have contributed to it. There has been keen interest from the general public and from professional and other concerned bodies. The amendment we are discussing concerns a one-year period, but even that means that we must wait for one year to elapse before reviewing it. If it proved unworkable or unsatisfactory we would have to wait until the year was up unless legislation was introduced for it to lapse if it was the desire of the Members of the House. It may be necessary to consider putting in a substitute clause to cover that. In brief I consider a five-year period to be too long and that two to three years would be more desirable. I would be worried that a period of five years is a long time to be putting up with a fault, or with something unworkable, especially if it is affecting innocent members of the public and is due to the difficulty of framing legislation. I suggest that the period of one year is too short. Ideally we should be in a position to keep it under review, preferably during the term of this Dáil, so that we can look at it again and I hope we can consider doing that in two to three years.

Mr. De Rossa

I propose to respond to a number of points made in relation to the amendment which The Workers' Party put down seeking to have a period of one year substituted for that of five years. The Minister's amendment seeks to allow various sections of the Bill — the most important sections from his point of view — to lapse after five years. Although we have been talking about the operation of the Act, if it is passed, there is nothing in the Minister's amendment, or indeed in my own amendment, which would require review of the operation of the Act. It is important to keep that in mind. The proposal to have the various sections lapse after one year is important because it would put the Deputies and the Government under some pressure to ensure that they could justify the operation of this Act within a year. If the powers were renewed for a further year they would again have to justify the operation of those sections.

Various charges have been made in relation to why The Workers' Party put down this amendment. Various points have been made in relation to the introduction of the Bill as a whole. Yesterday a number of Deputies mentioned that there was a crime emergency and fear of a total breakdown in Irish society. I am sure the Minister will agree that that is an overstatement of the situation in relation to crime. We know there is an increase in crime and that there is an increased perception or fear of crime, but an examination of the statistics does not indicate that Irish society has broken down or that by and large the Garda are not capable of coping with the level of crime. I would like to draw the attention of Deputies to a series of three articles, in particular to two articles, written by a superintendent operating in the Dublin inner city area. Those articles appeared in the Garda News in December 1983 and January 1984. The superintendent carried out a comparison of the levels of crime in Ireland, in various parts of England and Wales and in the United States. His conclusion was that our levels of crime are not as serious as the general perception in the public mind. I am not trying to understate the fear of many old people and the fear of many women in relation to crime but I would argue very strongly that charges from this House that there is a crisis or an emergency do not stand up to realistic evaluation. For Deputies to say there is an emergency and there is a breakdown in Irish society is not true.

Traditionally, cries of an emergency in any society are a prelude to the introduction of emergency-type legislation. It is my contention that the central sections of this Bill are emergency-type legislation——

An Ceann Comhairle

The Chair is in a difficult position here. I do not want to unduly restrict the debate. On the other hand, I do not want to let the debate again develop into a Second Stage type of debate that could drift on indefinitely. I am afraid that the Deputy is indulging in a Second Stage debate when he talks about old people being subject to attack, afraid to go out and so on. We are dealing with the law of evidence in the section which it is proposed to alter. The question is whether one is for or against the section, whether one agrees that a five-year trial period is sufficient or whether that period should be reduced to one year. Those are the lines on which the debate should run. Otherwise, we will have repetition on the same lines as on Second Stage.

I wish to assure the Deputy that the Chair has no interest in this other than to run the debate on reasonable lines and in accordance with Standing Orders.

Mr. De Rossa

I accept the Chair's position, that he is interested purely in the order of this House. I was making the case for the need for a one-year review rather than a five-year review on the basis that this is emergency-type legislation. I said that the attempt to imply that the public perception is that there is a crisis or an emergency does not stand up to examination and, therefore, a review is necessary within 12 months of the operation of the Bill to see if it is having the effect it is claimed of decreasing the rate of crime. Basically that was the point I was trying to make in relation to my amendment to the Minister's proposal. I may have strayed in one aspect but I think my general contribution was in order. I am trying to defend the amendment I put down.

An Ceann Comhairle

The Deputy is quite entitled to do that.

Mr. De Rossa

A number of points were made in relation to the amendment. One point by Deputy Shatter was that it could not be considered a serious amendment because of the short period involved, that one year was inadequate. I would argue that in Great Britain there is the Prevention of Terrorism Act which is renewed every 12 months, not every five years. Section 31 of the Broadcasting Act comes before this House every year for renewal and I have never heard anyone say that is too short a period. It is interesting that I have not yet heard a debate on that section and its renewal in the two years I have been a Member of this House. Those two examples show that the length of time does not indicate we are not serious. It indicates we are concerned about the need to have an early review of the operation of the legislation.

A point made by Deputy David Andrews was that we were being dishonest in relation to the amendment and I think that extended to our attitude to the Bill in general. In making that charge the Deputy has an obligation to specify how we are being dishonest in that regard. I may be wrong and I hope I am not misjudging the Deputy, but it seemed to me to be offered in the form of a threat, that if we continued our opposition to the Bill he would in some way divulge some dark secret about myself or about Deputy Mac Giolla——

Mr. D. Andrews

On a point of order, Deputy De Rossa is making the point that it is a case of personality politics but that has never been my form.

An Ceann Comhairle

It is not a valid point of order to rise just to contradict something a Deputy is saying because you think he has misrepresented you or because he has said something with which you do not agree.

Mr. D. Andrews

The Deputy is misrepresenting me.

An Ceann Comhairle

In the kind of debate we have here the Deputy will have an opportunity of speaking again if he wishes.

Mr. D. Andrews

Then the Chair will rule me out of order.

An Ceann Comhairle

No, I will not do that if the point the Deputy is making is relevant. We are now on Committee Stage.

Mr. D. Andrews

Deputy De Rossa does not know me long enough. To suggest that I would personally act like that against any Deputy is not true. I ask him to withdraw his allegation.

Mr. De Rossa

I am not making an allegation. I am refuting a charge made by the Deputy that in some way I was dishonest in putting down this amendment and was also dishonest in relation to my attitude to the Bill.

Mr. D. Andrews

That is a different matter. The Deputy implied that I would throw out something about his past. That is not true. I would not act like that against any Deputy.

An Ceann Comhairle

Order. I am surprised at Deputy Andrews.

Mr. De Rossa

This is the kind of attitude that is given credence by the Bill, that any person who opposes it is slotted into a particular category and does not have any right to be in the House or express an opinion in relation to the Bill. I am offering Deputy Andrews an opportunity in this debate to clarify what he meant in relation to Deputy Mac Giolla and myself.

Mr. D. Andrews

I never made any personal imputation about the Deputy or Deputy Mac Giolla in one way or another. I said the attitude of the Deputies to the Bill was dishonest and I stand over that.

Mr. De Rossa

I would appreciate if the Deputy explained that statement.

An Ceann Comhairle

The Deputies should address the Chair and cease interrupting each other.

Mr. De Rossa

Deputy Andrews is interrupting me.

An Ceann Comhairle

I accept that.

Mr. De Rossa

I am concluding my contribution but I expect I will have an opportunity to refer to the other points later. We are dealing with serious issues and it is important that a one year review should be held into the major sections of the Bill.

Dr. Woods

Does the Minister not intend to answer some of the questions put to him? Perhaps the Chair should explain to the Minister that he can enter the debate at any time he wishes to reply to points put to him. The Minister has tended to regard this as a Second Stage debate.

Mr. Noonan

(Limerick East): I tried to enter the debate earlier but out of courtesy to Deputy De Rossa I yielded to him. In the amendment I am proposing that sections 3 to 8 and 14 to 18 shall cease to be in operation at the expiry of five years from the commencement of the section unless a resolution has been passed by each House of the Oireachtas. I did not put that down because I considered the Bill to be emergency legislation or because I thought the provisions represent emergency legislation. I will continue to make the case that the Bill stands on its own merits. I tabled the amendment for other reasons. In a serious Bill such as this, where the rules of evidence are being changed in some sections and where in other sections extra powers are being given to the Garda Síochána, it is important in a country such as ours with a reasonably homogeneous community as a whole that the greatest possible consensus is established. People were concerned and worried about certain provisions in the Bill. I introduced many safeguards when the Bill was first published and I have tabled a lot of amendments for Committee Stage. I do not think there is any reason to put a five year time limit or any other embargo on the Bill but because there is concern I am willing to do that because it will help to establish a greater concensus here and outside.

A reasonable time is necessary but I do not think one year is sufficient. If we are to allow the powers of these sections to die at the end of a certain period and if it requires a resolution of both Houses to reactivate those powers there must be an adequate period in which those new provisions can be assessed. In regard to sections 14 to 18 particular cases would have to be taken through the courts and the different courts of appeal. One year is not adequate for that.

Deputy De Rossa made reference to other legislation which he said is reviewed annually. That legislation is not reviewed in the House annually, it is renewed by Government or ministerial order. We are proposing that the powers being given in the Bill should die unless this House, and the other House, reactivate them. The Minister will put down a resolution and there will be a debate on the provisions and how they have operated over a period of time.

Deputy Woods and other Deputies made the point that five years was too long and suggested that the time limit should be three to four years. I am of the view that it should be either five years or four years. I am open to argument on that. I believe that at least four years is needed and I am not tied to five years. I am prepared to come back on Report Stage and change it to four years if that establishes a greater consensus. However, I need adequate time to see how these sections operate so that the House will be in a position to decide when a subsequent Minister comes back in four or five years after the commencement of the Bill to reach a decision.

Deputy O'Dea asked if in the event of these sections being amended in the interval over the five year period would those sections, as amended, also cease to operate. They would. I have been informed by my advisers that the Interpretation Act, 1937, states that references to an enactment are to be construed as reference to that enactment as amended. That brings to mind an important point, that there is not anything in the amendment to prevent me or a subsequent Minister from coming to the House before the end of the five year period with amendments. The amendment does not constrain me, or my successors, in any way from bringing in amendments if the provisions of the Bill are not proving effective or are not operating properly.

Deputy Shatter and other Members yesterday afternoon asked about the provisions of adequate statistics, particularly on the detention section, so that we have them when we are reviewing the provisions of the Bill. In view of the time limit it is proposed to collect statistics. I do not consider it necessary to make specific statutory provision for this. For example, it is envisaged that the regulations relating to the treatment of persons in custody will prescribe the keeping of certain records. It is considered that these records, together with other data which can be complied on an administrative basis, will provide the basic statistics for monitoring these provisions. I do not think it is necessary to write that into the Bill. I take the Deputy's point, particularly in regard to detention. It would not be possible for the House on the information presented to it by a Minister for Justice in five years' time to adequately make up its mind if it did not have adequate statistics on which to base its opinion.

Deputy Andrews and other Members asked in what light a Minister would come to the House in five years' time and what the basis for the review would be. It would be based on the experience of the operation of the sections as evidenced by the statistics, the examples of how the other sections operate in court and how the courts deal with them on appeal. They would have to be examined and reviewed in the light of the general crime situation, the incidence of serious crime and prison committals. In the meantime the Whitaker Committee on the penal system will have reported and the House, in the light of that report, will have extra information. Even though that committee of inquiry is centred on the prisons its terms of reference are wide enough to permit it to examine why people are sent to prison, what happens to them when they leave as well as how they are treated in prison. That material could be considered in the course of the review.

The reason I am bringing in this amendment is to help to establish a greater consensus. It is no harm that legislation be reviewed periodically. People see these as serious new powers and I have no objection to their being reviewed and, if necessary, renewed. I am not tied to the five years but I am certainly committed to an adequate period. I do not believe I would be prepared to go below four years but I will consider that matter between now and Report Stage and see if it is necessary for me to come back with an amendment to, as Deputy Woods suggested, reduce the time limit. Of course, there is not anything to prevent me, or my successors, coming to the House before the end of that time to make any amendments necessary.

Dr. Woods

In view of what Deputy De Rossa has said I must make a brief comment in regard to this matter. We are going along with these measures because we believe there is a serious situation at present, particularly in the cities. I differ with Deputy De Rossa in that I believe that the present level of crime is not acceptable and we have to tackle it. We must support the Garda and give them the backing they are requesting. Therefore, we want to see adequate safeguards in the measures proposed in sections 3 to 8, but there is a basic difference of opinion. We are accepting this provision at present. In the past we had a very low level of crime, and we still have it in parts of the country, and we do not want the present level of crime to increase further. We are prepared to support the Garda. We felt that three years might be adequate but we are supporting the five years at this stage in the hope that the Minister will consider our suggestion. I hope he will consider even a four-year provision and have an amendment to that effect on Report Stage. In practical terms the provision the Minister is proposing is wise because it provides for a fixed date, a definite period.

Question: "That the words proposed to be deleted stand part of the main amendment" put and agreed to.

Amendment to amendment declared lost.

Amendment agreed to.

Question proposed: "That section 2, as amended, stand part of the Bill."

Dr. Woods

This is a matter of interpretation. The section includes the words "imprisonment includes penal servitude and detention in St. Patrick's Institution". It might be desirable on Report Stage to add to that the words "or any other centre designated by the Minister". There may be some other centres which the Minister might use in the future and which should be covered in the Act. I say this because I think it is time to consider the provision of new centres and some new approaches. Some very old establishments, like Army barracks or billets, might be revamped and used. We have a major problem in regard to space, and Members from both sides have said that the Bill is only a contribution to solving the present problem. For instance, there are 419 places in Mountjoy but 4,300 people were committed there last year. This means there is great pressure in regard to space.

An Ceann Comhairle

This is purely a definition section.

Dr. Woods

It may be necessary to provide further places in addition to those covered in section 2. I want the Minister to assure the House that other places will be covered and a Report Stage amendment may become necessary.

Mr. Noonan

(Limerick East): The Deputy is concerned with the definition of imprisonment. People can be imprisoned in prisons but the definition is widened to include penal servitude and St. Patrick's Institution. Historically, penal servitude was a substitute for transportation and generally speaking it was a more exacting form of imprisonment. Persons sentenced to penal servitude were convicts. Unlike ordinary prisoners, they were subject to certain civil disabilities such as loss of right to administer their property, disqualification from holding certain offices, for example, membership of the Dáil. It is being abolished under the Criminal Law Bill which I hope will be introduced next session. At the moment there is no difference in practice between the conditions attaching to penal servitude and imprisonment.

In regard to St. Patrick's Institution, before the enactment of the Criminal Justice Act, 1960, persons could not be sent directly by the courts to that institution unless they were being sent for borstal training — detention for two years with the possibility of earlier release for good behaviour, for employment and so on. Since 1960 persons between 16 and 21 years of age may be sentenced for detention in St. Patrick's Institution for any offence for which they could be imprisoned.

So, to ensure that people sentenced to imprisonment under this Bill can be sent to prison we thought it necessary to make it clear that St. Patrick's Institution can be used for imprisonment. I accept the point about extra prison spaces. The courts can only sentence people to prison or to St. Patrick's Institution and they can be transferred to other houses or places of correction that would not be designated as prisons. That can be done by ministerial order or by an official designated by the Minister.

Question put and agreed to.

SECTION 3.

Mr. Noonan

(Limerick East): I move amendment No. 2:

In page 3, subsection (1), lines 31 to 35, to delete all words from and including "for which the sentence is fixed by law" to the end of the subsection and substitute "for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.

During the Second Stage debate is was suggested that the reference to "any offence for which the sentence is fixed by law" could refer to offences other than treason, capital murder or murder. The redraft proposed in the amendment would remove any possibility of such an interpretation.

Dr. Woods

There has been so much concern about this section that I thought the Minister might have told us a little more about it. Subsection (1) states that the section applies to any offence for which the sentence is fixed by law. Fairly early it was recognised that the "or" was a drafting error and that it could apply to all offences and consequently that it would be necessary to substitute "and".

There are many other problems in relation to this. I suggest that the Minister should spell out in more detail what the offences are. This is a very important section because it allows power to detain and arrest on suspicion. People will not like the idea, from the point of view of their character, that they have been arrested, even though only on suspicion. That will be the position under this Act. What offences apply? It is easy for us to say here that if offences carry a penalty of five years or more they are fairly serious, and this is what we are thinking about and we support it, but does this include larceny generally? Larceny can be of a large or a small amount. Questions have been raised as to whether the larceny of a transistor, one pound of butter, one bottle of lemonade and so on, will come within this area. Would the Minister spell out the offences to which this will apply? To whom will the sanction apply? The most common interpretation is that it will apply to those who have reached the age of criminal responsibility, to persons as young as seven years of age and to all over 14 years of age. There are some question marks over the period of seven to 14 years. Under seven years of age it is considered that the young person is incapable of crime, doli incapax, and between seven and 14 years, doli capax, which is what the legal people call a rebuttable presumption. The incapacity of infants to commit crime ceases upon their attaining 14 years. At that age they have to take full responsibility. This means that from 14 years up they accept full responsibility; between seven and 14 years there appears to be some doubt. They come under the aegis of the section as drafted but there would be this rebuttable presumption. We do not want to get into a situation of having to rebut this presumption in relation to children in that age group. I would like the Minister to clarify the position.

Mr. Noonan

(Limerick East): The Deputy is discussing the section rather than the amendment. If I deal with the points he raised now, I will have to deal with them again when we are discussing the section. In this amendment the phrase “any offence for which the sentence is fixed by law” means offences like murder and treason. People reading the Bill interpreted it to mean any offences for which the law prescribed a sentence of any sort, and there was a misunderstanding about this. The purpose of the amendment is to clear up this point. What concerns us here is, as the amendment says, “an offence which can be punished by imprisonment for a term of five years or by a more severe penalty”; the phrase “fixed by law” was to deal with treason and murder, the more serious offences. Here we are talking about any offence for which the prescribed offence is a maximum of five years or a more severe penalty. Crimes for which there is less than a five-year maximum sentence are excluded.

Dr. Woods

What is the position as regards larceny?

Mr. Noonan

(Limerick East): Larceny is an offence for which there is a five-year maximum sentence. I will deal with it now or later——

Dr. Woods

If the Minister deals with this now he will not have to discuss it later. In this section the Minister is specifying types of offences and the people who will be covered. It is reasonable for Members of the House to want to be clear about this point.

Mr. Noonan

(Limerick East): In this amendment I am clarifying the difficulty of interpretation people had with the phrase “fixed by law”. The rest of the section remains. I want to assure everybody that this means a crime for which there is a more severe penalty than five years; it does not mean the colloquial interpretation that was taken, that it was covering something for which there is a prescription under a particular Act of a certain set penalty which would be less than five years.

Dr. Woods

I want to be clear about this. When this legislation goes into operation it will be interpreted by gardaí on the ground. The amendment says "for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment..." The original section reads "any offence for which". Since "larceny" covers small and large items, and the penalty can be five years or more, the detention could be for larceny of a very small amount.

Mr. Noonan

(Limerick East): Larceny is a felony and this applies to felonies regardless of the amount taken. Larceny of one penny is larceny and larceny of £100,000 is also larceny. The law has not decided to divide larceny in proportion to the amount taken and there are a number of reasons for this. In the first instance, it would be very difficult to do so but we must also take into account the circumstances of the victims. The larceny of £10 from a very poor person could have a more serious effect on him than the larceny of a very large amount from a wealthy person. This section includes everything that could be termed as a felony.

Dr. Woods

The offences covered here are offences for which there can be detention, arrest and interrogation. Recently under the Offences Against the State Act an individual was arrested for malicious damage amounting to £15. I am sure that was never the intention of the House when that section was going through. That led to a certain amount of limited abuse during that period. That is the type of problem that arises. The spirit of the Bill would be that it applies to crimes of a serious nature. When we talk of a five-year cut off point, obviously that is what the Minister and the House have in mind. Another question I want to ask is, to whom will this apply?

Mr. G. Mitchell

May I ask a question and the Minister can reply to it when he is replying to Deputy Woods?

An Ceann Comhairle

If the Minister gives way.

Mr. G. Mitchell

Could the Minister state exactly what is meant by the phrase "full age and capacity"?

Mr. Noonan

(Limerick East): It applies to all larceny and to people who have reached the age of criminal responsibility.

Dr. Woods

From the age of seven?

Mr. Noonan

(Limerick East): Yes. Seven is the age of criminal responsibility at the moment.

Mr. Molony

If the Garda prosecute someone aged between seven and 14 years they must establish to the court that there was an intention to commit a crime on the part of that person. It presents a real difficulty as far as this legislation is concerned. It seems to mean that this power could apply to somebody aged as young as seven years.

An Ceann Comhairle

That will arise on amendment No. 3, the next amendment.

Mr. Molony

It refers specifically——

An Ceann Comhairle

There is a specific amendment which proposes to raise the age to 12.

Mr. Molony

With respect, it may not solve the problem. Deputy Mitchell asked what was meant by the expression "a person of full age and capacity". It is a description of somebody who is capable of committing a crime and who is aged between seven and 14 years. The amendment to which the Chair suggests I should address my remarks does not deal with that problem. It is more complex than that. I understand the Minister for Health has proposals for a new Children Bill which may deal with this. The Minister for Justice is concerned about this problem and perhaps he would look at it between now and Report Stage when the Minister for Health may have advanced his Bill. The matter will have to be clarified.

Mr. G. Mitchell

I asked the Minister to explain the term "full age and capacity" but the Minister did not take the opportunity to explain it. It appears it can apply to people aged seven years and upwards and this presents some difficulty. We were informed yesterday on the Order of Business, in response to a question I asked the Taoiseach, that the first of the Children Bills would be introduced shortly after the Easter recess. The whole question of the age of criminal responsibility now arises in terms of the application of this Bill and the detention of persons aged seven years and upwards. If the amendment stating that the section shall not apply to any person under the age of 12 is passed after the section is passed, is the legislation not then contradictory or would the amendment suffice?

Miss Harney

Perhaps the urgency of the Children Bill can be outlined while we are discussing this section. Recently the Minister for Health indicated his hope to have this Bill in the House in a matter of weeks. Until such time as that Bill is introduced and the age of criminal responsibility is raised from the ridiculously low level of seven years, I would not be in favour of adopting this measure. It would be an appalling reflection if a child as young as seven should suffer under this legislation. I would hope that the Children Bill would come into force before the implementation of this legislation. The Minister has already indicated that these measures will not be introduced prior to the passage of the legislation dealing with the setting up of the complaints tribunal. That may take some months and one would hope that in that period the Children Bill would also be passed. Does the phrase "full age and capacity" refer to mental capacity and have we a strict legal definition of exactly what mental capacity means? I understand this is in dispute, even among psychiatrists.

Mr. Shatter

The point has been made that if one amendment is dealt with before another the effect could be contradictory. Perhaps it would facilitate discussion if we could take amendments Nos. 2 and 3 together. I do not know whether that can be done but otherwise we will have repetition of discussion. Deputy Molony has explained what is meant by the term "full age and capacity". In essence in the criminal law in the context of legal jargon it would normally mean——

Dr. Woods

Could we discuss the two amendments together and then take them separately?

An Leas-Cheann Comhairle

We can discuss them together and have separate decisions. Number 15 is connected and may also be decided separately. Is that agreed?

Dr. Woods

Yes. Perhaps the Chair would explain to Deputy De Rossa that amendment No. 15 is being discussed at the same time.

Mr. De Rossa

I understand that.

Mr. Shatter

A person who is doli capax is one who commits a crime knowing at the time that what he is doing is wrong. If under the existing law a child between the age of seven and 14 is charged with a criminal offence, strictly speaking the court, before determining whether the child has committed the offence, must make a determination as to whether if the young person did the act in question he had the level of understanding to know that the act was wrong. There is a contradiction in the position. It would seem as the section is drafted that a person could be detained if he or she were of full age and capacity. In other words, before a garda could decide whether a person aged between seven and 14 should be detained he would have to carry out in his mind the judicial process and decide not merely whether the person was involved in wrong-doing but also whether he or she had the level of understanding to know it was wrong. That is probably unworkable in practice.

Deputy Woods proposes an age limit of 12 years. That is equally unworkable because at present children aged between 12 and 14 are presumed to be incapable of committing a criminal offence. They are presumed not to have sufficient knowledge within the legal context to know that what they are doing is wrong. It is possible on one interpretation of the amendment proposed by the Minister to take the view that it does not apply to children below the age of 14. One possible legal interpretation is that on the Minister's own wording in referring to a person of full age and capacity there is a very good legal argument, on the basis of existing case law in the courts, for saying that by implication that section would not apply to children under the age of 14 years. I do not wish to misinterpret Deputy Woods's intention, which is that children of seven to ten years should not be detained, with which I would agree; but curiously, because of the manner in which the law has developed, his amendment could result in children of ten to 13 years of age being detained. On the other hand, the Minister's wording may not allow that to happen at all. In the context of the amendment being proposed, this is a matter of concern and like some other items in this Bill, requires to be clarified.

Deputy De Rossa has tabled an amendment that this should not apply to persons under 16 years of age. It would seem logical that the detention provisions, if they are to apply, should apply to those persons who can be convicted of criminal offences. The point raised by Deputy Harney and, I think, Deputy Mitchell and also Deputy Moloney in effect might be summarised that in real terms detention provisions should not apply certainly to young children. That would be very much my view. If very shortly there will be legislation to raise the age of criminal responsibility, the detention section in the Bill should in no circumstances apply to children whose ages will be such as to be below that of criminal responsibility.

I suggest that the Minister review this section with a view to a more appropriate amendment being tabled on Report Stage to co-ordinate the age limit with that of criminal responsibility and in the context of having a definite age on which there is no uncertainty, so that there will be no need for a number of court cases to clarify the issue. It would clarify the position with a regard to a person being not merely of full age but having the capacity to commit criminal offences. None of the amendments as yet deals with that. Deputy De Rossa's amendment stipulates 16 years, but it could be that the age of criminal responsibility should be 14 years. I do not know, not having seen the legislation which the Government will produce in this area. I ask the Minister to look at the section in this light and urge Deputy Woods, in the context of his own amendment, to understand that the comments which I have made are meant to be helpful. I do not want to suggest that he was about something that he was not about. As someone who is familiar with this area of law I know that there is a linguistic and semantic problem with which none of these amendments has dealt.

Mr. Noonan

(Limerick East): On the question of full age and capacity, firstly the full age is 14 years. Capacity means of sound mind, not a lunatic.

The section defines the kind of offences to which the section applies. It does not deal with the kind of persons who could be arrested and detained under them. The capacity issue arises in relation to the sentence. One should ask the question: "If this person were an adult and not insane and if he were convicted, could he get five years imprisonment?" That is what the section is about. The law will pose that question and if the answer is yes, this section applies to this type of offence.

On the question of the type of person to which it applies, that is something different. It is tied up with the age of criminal responsibility which everybody in the House would agree is too low and needs to be raised, at present being seven years. To say that the age of criminal responsibility is seven years is not the full story. Between seven and 14 years there is a presumption of innocence, but that presumption is rebuttable. The type of rebuttal is to a scale between seven and 14 and would be a matter for a court to decide.

The amendment which I propose here was meant to clarify this phrase "fixed by law" which caused so much concern. The type of offence to which the section applies is an offence for which there is a sentence of five years maximum, or a more severe penalty. The penalty would be that applied to a person of full age — 14 years — and not insane, but it is the nature of the penalty which is being dealt with and not the nature of the person. Deputy Woods's amendment deals specifically with the age at which the section would apply, but I should like to come in again on that. We have there the problem of the existing age of criminal responsibility.

I am not introducing any new concept. All criminal law applies to people who have reached the age of criminal responsibility within the parameters which I have described of rebuttable presumption of innocence and so on. Whether we should have a different application of the law and a different application of the age in this Bill is something on which I would like the views of the House.

Mr. G. Mitchell

I have no difficulty in supporting any section of this Bill because, regrettably, the law is necessary because of our present crime problem. However, this section is capable of being misunderstood and misinterpreted. Indeed, people within my own constituency have been circulating letters deliberately implying that children from seven years upwards could be detained for up to 18 hours under this law and under the Offences against the State Act for up to 66 hours. I am glad to hear the Minister say that a seven-year-old cannot be detained for that period. There is still a question mark regarding children between the ages of seven and 14 years. That was why yesterday, on the Order of Business, I raised with the Taoiseach the question of the Children Bill. It is extremely relevant to this section of the Criminal Justice Bill. I am pleased to hear that the first section of the Children Bill will be before the House after the Easter recess. We should take time to be very clear and unambiguous about this matter. I ask the Minister to state clearly that children of from seven to 14 years old cannot be held.

I take the technical point made by Deputy Shatter. Deputy Woods's amendment could perhaps present more difficulties than it could solve. We are really out to detain people who are committing crimes. There are within the city many young people capable of committing quite serious crimes, which is a terrible thing to have to say. However, we should wait until the Children Bill comes before the House to decide how to deal with these. I favour some type of parental responsibility and hope that the Children Bill will deal with that. The Minister should not leave anything hanging because people have misgivings regarding the legislation generally due to inaccurate statements about the application of this law. In particular, the House should be clear that the First Stage of the Children Bill will come before the House shortly and the whole area of criminal responsibility can then be clarified. It needs to be. I should not like the full rigours of this law to apply to children and would be joined in this by the House and the Minister. The sooner the Children Bill becomes law, the better.

Mr. O'Dea

I am not happy with the Minister's explanation. Of course, the section applies to the type of people capable of being prosecuted and not specifically to age. The Minister and various Deputies on the other side have adverted to the fact that a person between seven and 14 years is more difficult to convict because there is the increased burden of proof arising from the fact that there is a rebuttable presumption of lack of knowledge or lack of intent. In other words a person who is convicted of a certain offence, who is aged 14 or over, might not be convicted if they were aged under 14 because of the fact that, under 14, there is a heavier burden of proof on the prosecution. There is no distinction drawn in this section between children aged under or over 14 in the same way as the ordinary law of criminal evidence draws a distinction, in the sense that it requires a greater burden of proof to convict somebody under the age of 14. There is no distinction drawn here; somebody who has reached the age of seven can be detained under the powers set out in the section.

To revert to what the Minister said about the five years provision I understand him to say — and it is my interpretation of the section — that an offence for which a person could be sentenced to five years is the type of offence referred to in the section. But, as has been pointed out on this side of the House, there are many offences for which, under the general heading of offence, one could get five years but, in practice, that sentence would turn out to be far less or there would be the application of the Probation Act. The Minister should ask the draftsmen to look at this again. To refer simply to offences in a general way is a lazy approach particularly when people prosecuted as a result of being detained under the powers contained in the section could get off with the application of the Probation Act.

Mr. J. Doyle

There is genuine anxiety felt in this House and amongst the community at large in respect of children of seven, eight, nine and ten years of age being detained under the provisions of this Bill. I would hope the Minister would explore every avenue open to him to ascertain whether this difficulty can be overcome but, having listened to Deputy Shatter, I think he will find it difficult. Nonetheless, in the interests of the community at large and by way of removing that anxiety, I would ask the Minister to reconsider the situation when, perhaps on Report Stage, he would be able to solve that problem.

Mr. De Rossa

Amendment No. 15 in the names of myself, Deputy Mac Giolla and Deputy Gregory seeks to do more than the amendment of Deputy Woods, in that we are seeking to have written into the Bill that nothing in this section will apply to persons under 16 years of age. I understand that no person under the age of 16 can be sent to prison. Yet the provisions of this Bill seek to give powers of detention, interrogation, strip-searching, the taking of photographs, fingerprinting and so on in respect of young people, as I understand it, from the age of criminal responsibility, which is seven years. It may be argued that it is stretching credibility to assume that the Garda will take in children of seven years of age. But the facts are that there are a number of young children on Dublin streets who are not much more than seven years of age, who are causing problems to the general community in the sense that they may be begging, engaged in taking handbags and so on. But it is unsatisfactory that these young people should come withing the provisions of this Bill. For instance, if they are arrested under the terms of this or any of the other sections, there is no obligation on the Garda to notify their parents or to have parents present when they are being questioned.

There is a wide range of powers being given in the Bill generally and in this section which are new powers. This means that those new powers will be applicable to everybody who comes under the law. I do not accept the Minister's argument that simply because the law as it stands applies to everybody over seven years of age automatically the provisions of this new Bill should also apply in the same way because they give very widespread powers to the Garda. I have no doubt but that by and large the Garda act in a humane and caring way in relation to the young people who come within their control or to their notice. But the facts are that if a garda in any part of Dublin city, or in any urban area, is subject to pressure — because of lack of staffing or anything else — then it is quite conceivable that a child could be put into a cell for six hours and forgotten about. That is quite on the cards under the provisions of this Bill.

I would argue that there is a grave obligation on the Minister to ensure that none of the sections of this Bill will apply to young children. Our amendment indicates that they should not apply to persons under the age of 16. There is also the fact that our amendment refers to sections other than the one to which the Minister's amendment refers. It must be pressed home that there is widespread neglect of the way people generally, whether they be juveniles or adults, are dealt with under our prison system. I intend to go into that matter on later sections. But I would appeal to the Minister to ensure, by way of amendment, that these sections, the core of the Bill, relating to detention, interrogation, strip-searching, fingerprinting and so on categorically, do not apply to children.

Mr. Molony

I have listened to the Minister's explanation and to other Deputies talking. There is now no doubt at all in my mind that this expression used "of full age and capacity" is simply not appropriate to the question of extending the powers of the Garda in detaining a young person, for this reason, that that whole concept of a presumption of innocence, or a presumption of a young person not having the capacity or intention to commit a crime makes sense only when one is talking in terms of convicting somebody. It is a decision a judge has to make, given the knowledge he has of a case. It is not at all appropriate that one should use such a means when one is deciding whether or not a garda has the power to detain somebody because in the consideration of whether the person whom the garda suspects of having committed a crime — as to whether that person has the capacity — there may be no way of a garda knowing whether a young person of between the ages of seven and 14 would or would not have the capacity. It seems to me that it is definitely possible and entirely probable that under this section, as drafted, and as the amendment is drafted, a person aged between seven and 14 years could be detained. I cannot see what any presumption might do for him because it is something that simply will not arise for six hours of a person's detention. Therefore it is wholly desirable that this be changed. I would urge the Minister to reconsider this matter and come back to us on Report Stage.

It may well be that if the Minister for Health is sufficiently advanced in his legislation — and we do not know for certain that he is — the only certain way of dealing with this is for the House to agree upon an age acceptable to us, to deal with it in that way, and leave out this expression altogether.

Mr. Noonan

(Limerick East): There are three amendments being moved and discussed at the same time from which a number of issues arise. As I have explained already, the amendment I am moving is simply to clarify the phrase “fixed by law” because there was a misinterpretation about it. The type of offence to which the section applies is one which has a five-year maximum sentence or a more severe penalty than that. That, in general, applies to all felonies.

On the question of full age and capacity, full age means 14 years or older and capacity means not being insane. But it is in assessing the nature of the offence to which the sentence applies that the phrase "of full age and capacity" is inserted and intended to be used. For example, somebody would not have a legal immunity if he or she was of full age and of full capacity. In that situation if guilty of an offence they carry a five-year maximum sentence at least. Then the section would apply to that type of offence.

A different issue arises then from the amendments proposed by Deputy Woods and Deputy De Rossa, and it is this. At what age under our criminal law does the criminal law apply? I am not putting anything into this Bill about the age at which the criminal law applies because that is covered by the general matter of the age of criminal responsibility. If I came in here with any piece of criminal law about anything it would apply to people who had reached the age of criminal responsibility.

Therefore, there is no reason to write in any age, because it applies to the age of criminal responsibility. The age of criminal responsibility at the moment is seven years but between the ages of seven and 14 there is a presumption of innocence. This presumption of innocence is rebuttable. The evidence required to rebut the presumption needs to be enormously strong the nearer you are to seven and the evidence required to rebut the presumption need not be so strong as one moves up near 14. Everybody in the House agrees that the age of criminal responsibility is too low, but the age of criminal responsibility applies to all criminal law. I am not changing the age of criminal responsibility. I am introducing new criminal law which will apply to those who have reached the age of criminal responsibility.

A Deputy

Can they be detained?

Mr. Noonan

(Limerick East): Let me develop the point. I am not introducing any new powers of arrest in this Bill. The powers of arrest without warrant exist already. The Garda are not arresting seven-year-olds to my knowledge.

Miss Harney

But they can.

Mr. Noonan

(Limerick East): If the Garda are not using their existing powers of arrest to arrest seven-, eight- and nine-year-olds, why should one suppose that they will suddenly now take a fit and start arresting and detaining them? They have the power of arrest already. Where is the presumption that they will arrest and detain them? I can see the concern being expressed by Deputies in the House who are unhappy about the age of criminal responsibility. I am unhappy about it also. The Minister for Health has made a commitment that he will introduce a Children Bill and that Bill will deal with the age of criminal responsibility. If the Deputies in this House feel that we in the terms of this Bill should do something about the age, I am prepared to listen to the arguments, but none of the amendments being proposed is sufficient to deal with the problem and I would have to take the advice of Deputies here in the House and come back on Report Stage because the amendments proposed do not achieve what they purport to achieve and would not work. To be very brief about it, the amendment I am proposing is simply an amendment to assure everybody that it does not apply to offences that carry a sentence of less than five years and that this phrase “fixed by law” means, in effect, capital murder and murder and treason. We are changing that phrase now to show clearly that a more severe penalty is involved. The phrase “of full age and capacity” written in here is not a test of to whom it applies. It is a test of what penalty is applied.

Mr. Molony

Why is it put in at all?

Mr. Noonan

(Limerick East): It is necessary to put it in the Bill to explain that if somebody were of full age and capacity such person would not have legal immunity and then there would be certain offences to which a five-year sentence or more applied. There is nothing in the Bill about the question of the actual age for the implementation of this section because the age of criminal responsibility to which all criminal law applies is seven with a rebuttable presumption from seven to 14. My amendment is straight-forward as it stands and is being misunderstood, but if Deputies in the House want to discuss whether in this piece of criminal law we should put in an age provision in advance of the delivery of the commitment by the Minister for Health to change the age of criminal responsibility, I am prepared to listen to those arguments. However, to my mind, the amendments put forward are not adequate to do that and I would have to listen to what Deputies say and come back on Report Stage on the age provision.

Dr. Woods

I would like to take up the point made by Deputy Shatter earlier and I accept the spirit in which he made it. We are not prepared to accept this Bill applying to anyone under 12 years of age. We are prepared to talk about whether we want 12, 13 or 14 years of age or whatever, but we are not prepared to accept it as applying to under 12. With regard to Deputy Shatter's point, you could still have your rebuttable presumption between 12 and 14. If the Minister's amendment to the original subsection is agreed, then you have your rebuttable presumption up to 14, but you have also in the amendment which I put down an exclusion up to 12, that it will not apply to children under 12. The problem here, which Deputy Molony has brought out fairly clearly, is that the rebuttable presumptions really arise only in court. That is too late. I agree with the Minister that the Garda are not looking for the power to detain eight, nine, ten and 11-year-olds. Nevertheless, we are about to give extra powers to add to the present law, and in adding to the law surely we can say that the additions we are making will apply only to those from 12 up and at least let that be clear. If in due course the Minister for Health comes along with his new age of criminal responsibility — whatever it may be, it could turn out to be 12 — if it is not 12 a fairly simple amendment can adjust that.

In relation to the fact that the rebuttable presumption does not occur until later, the interrogation is the first question. I had a parliamentary question down on 2 November about the Offences Against the State Act, and it transpired that only 4 per cent of those detained in 1982 under the Offences Against the State Act appeared in court. Obviously that Act was being used to get information or for some other purpose. It was not being used to bring people into court. There is a danger that if we allow this Bill to go through without a provision such as the one I am suggesting we will find people under 12 being detained for questioning and never coming to court at all. The Minister has said that he is not changing anything. The present age of criminal responsibility is seven with variations between that and 14. I say that the Minister is changing something. He is changing the law and bringing new powers and this section particularly brings in these powers of detention and interrogation. In that respect we do not want to see it applying to children under 12.

Miss Harney

In relation to the Minister's last intervention, the fact that the Garda do not use their existing powers is not a good enough reason for us not to introduce proper safeguards in this Bill. I was informed earlier by the Minister for Health that he intends to introduce the Children Bill shortly, but we do not know the age of criminal responsibility. I hope that it will be at least 14 years, but we do not know — neither do we know whether the Bill will be passed quickly. In the meantime children between the ages of seven and 14 years should not be suffering as a result of this section. Between the ages of seven and 14 years there is a presumption of innocence at the discretion of the Judiciary, but a lot of youngsters in that age group could end up being questioned for endless hours in Garda stations. That would be unsatisfactory. I appreciate that a great deal of crime, particularly car theft, handbag snatching and beating old ladies around the head, is committed by people in this age group. That is a fact and it is a regrettable one.

We should consider introducing at some stage in this legislation an offence for parents failing to supervise their children. I realise that could be a problem and that it is not always the fault of parents but there are a large number of them who fail to supervise the activities of their children and who allow youngsters under seven years of age to roam the streets unsupervised until the late hours. That is not good enough. It may be difficult but we should consider the introduction of some offence for such parents.

The Minister made it clear that this section will only apply in such cases where a penalty of five years is fixed by law. I am glad that he specified that. When we consider some recent decisions of the Judiciary we see that some judges impose a sentence of five years for minor crimes, a sentence which would seem to be harsh. I am delighted that the Minister has stressed that these measures will only apply where a sentence of five years is specified by law, and also delighted the Minister has indicated that he intends to review this section before the Report Stage. I ask the Minister to include proper safeguards for the seven to 14 years age group before the legislation leaves the House.

Mr. Noonan

(Limerick East): As I have already said I hope the Children Bill will deal with the question of parental control. There is a lot of concern over this particular section of the Bill. The majority are happy to accept the legislation generally and however reluctant others are to have this Bill passed, they understand that there is a problem and that legislation is necessary.

Mr. G. Mitchell

There is some uncertainty about the provisions in relation to children. I am still unsure whether the powers of detention under this legislation can apply to persons between the age of seven and 14 — I would like a simple yes or no.

The Minister spoke about criminal law applying to persons over the age of 14, there being a presumption of innocence between the ages of seven and 14. This is all very well before a district justice or a judge, someone in a position to rule impartially, but we are talking about powers of detention — in other words, persons being held for the purpose of investigation of an offence, not when such a person has been brought before the court.

The House feels generally that this is a section we have to review. There is a great deal of violent crime committed by persons of 14 or 15 years of age and, because of the presumption of innocence between seven and 14 years which is currently applied by the courts, I think Deputy Woods would be wrong to press his amendment. We should allow the Minister to look again at this section, as he is obviously prepared to do. We can scrutinise it more closely on Report Stage.

The amendment says "For which a person of full age and capacity and not previously convicted ..." Does it mean a person not of full capacity but previously convicted could be detained under this section? That is part and parcel of this section but I hope we can look at it again. I do not wish to go over the same ground but there is a lot of concern to get it right. I do not think it is in anyone's mind, including the Minister or the Garda Síochána, that someone between the ages of seven and 14 or who is not full capacity should be capable of being detained for 18 hours.

Mr. Noonan

(Limerick East): The words “Not previously convicted” means that a five-year sentence must apply on first conviction rather than where someone would have a lesser sentence initially.

With regard to seven-year-olds, I am doing nothing to change the situation that the age of criminal responsibility is seven. There was a commitment in the Children Bill that the age of criminal responsibility would be dealt with. What this age should be will be debated for a long time. Everyone knows from practical experience that persons of 13, 14 and 15 years are involved in a lot of crime and the convictions obtained in court would indicate that. If I were to accept Deputy Woods idea to come back on Report Stage with his amendment, and put in the necessary qualifications, it would simply apply to this Bill; but if the age of criminal responsibility was, for example, 12 years the effect would be a legal immunity below the age of 12. We must be sure to get the age right. If we leave a significant number of people below a certain age with legal immunity from the law — I am talking about the age of criminal responsibility in general — we are providing people with an immunity from the law. For example, if many young people in Dublin below the age of 13 are involved in criminal activity, then we are giving them absolute immunity from the law. Another question arises, namely, would the Fagins of this city organise them if they had that immunity?

This is not a Bill dealing with changing the age of criminal responsibility. I appreciate the concern of Deputies regarding the provisions of this Bill applying to children aged seven, eight or ten years. The age of criminal responsibility applies to them now even though there is a presumption of innocence. On Report Stage I will come back to the House with a proposal that I hope will satisfy Members. Perhaps the age of 12 years suggested by Deputy Woods is right: it seems to me about right. Some people would argue that it is too high and Deputy De Rossa would regard it as too low.

I cannot accept an amendment without examining it because other considerations arise immediately. For example, would evidence of age be required? Let us consider what would happen if I accepted Deputy De Rossa's amendment which specifies 16 years. At the moment the Garda have the power to arrest without warrant and when this happens a person can be held in a Garda station while they are waiting to be charged. The question then arises: would the period in the station while awaiting charge become illegal? That matter needs to be examined.

I can appreciate the difficulty of the House and the concern of Deputies. Many of the people opposed to the Bill in principle shamelessly used the matter of the age of criminal responsibility to attack the Bill, but that is not something I am dealing with in the Bill. There is a commitment to change the age in the Children Bill and all of us have agreed to it. I am prepared to come back on Report Stage and try to deal with this section and the problem that Deputies perceive because of the age of criminal responsibility being seven years.

Mr. D. Andrews

The Minister's approach to this problem regarding the age of criminal responsibility is reasonable. Deputy Harney referred to the introduction of the Children Bill by the Minister for Health. Perhaps the Minister would consult with the Minister for Health regarding the age to be provided for in the Children Bill. That might deal with the problem in relation to the whole matter of the age of criminal responsibility.

I think Deputy Woods is right. His amendment seeks to ensure that the section will not apply to any person under the age of 12 years and the Minister sees some favour in that proposal. The Minister should give serious consideration to the amendment put down by Deputy Woods. I find it very difficult to believe that the law now provides for the detention, albeit the unlikely detention, by the Garda Síochána of a child aged seven years. That is what brings the law into disrepute. I ask the Minister to consider seriously the proposal of Deputy Woods. The Workers' Party propose the age of 16 years. I do not intend to deal with The Workers' Party proposal but I think that proposal is unreal and I imagine it would be unacceptable to the House. The case regarding the age of criminal responsibility has been well argued and discussed.

In his amendment the Minister proposes the following:

"for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty..."

Is that a maximum term?

Mr. Noonan

(Limerick East): Yes.

Mr. D. Andrews

In those circumstances, would it be proper for our spokesman, Deputy Woods, to propose an amendment to ensure that this is made clear? There appears to be a certain ambiguity in the drafting of the Minister's amendment. The Minister may consider this a rather trite point but I do not think it is an unreasonable observation, particularly in relation to the Minister's response to my question.

Mr. Noonan

(Limerick East): It is imprisonment for a term of five years or by a more severe penalty.

Dr. Woods

Is it the case that five years will be the minimum? The Minister said maximum but I presume he meant minimum?

Mr. Noonan

(Limerick East): At least five years.

Mr. D. Andrews

Will the Minister consider putting that into the Bill?

Mr. Noonan

(Limerick East): I think it is sufficiently clear but I will consider it.

Mr. Shatter

I welcome the Minister's reaction to the debate. It is clear that Deputies on all sides have expressed the wish that there be added to the Bill an age limit so that children below that age cannot be detained. In essence that is what we want.

I accept many of the points made by the Minister. I appreciate he will want to consider now what should be the age limit and the possible consequences in other areas of the law. We are not asking the Minister in this legislation to define the age of criminal responsibility. With due respect to the Department of Health, the Minister there has promised us since 1981 that we would have a Children Bill but that has not yet emerged. However, with regard to this Bill, I do not think there will be any difficulty on Report Stage in adding a provision to the effect that children, whether under 12 years or under 14 years, cannot be detained under the provisions of section 3 and subsequent powers of detention.

I welcome the Minister's responsiveness to the debate. He should be given time to consider the form of amendment to be tabled on Report Stage.

Mr. Briscoe

I should like some clarification to make certain that I have interpreted the Minister correctly. If the Minister changes the age of criminal responsibility in this context, will that apply only to offences under this Bill or will it apply to offences across the board? It would be ironic if at the end of the day we passed legislation which only increased the rate of crime rather than led to a reduction in it. I am a great supporter of the argument of increasing the age of responsibility to 12 years of age but can one do that without having the new Children Bill to take over? Otherwise there will be a vacuum and, as the Minister said, there will be no control whatsoever over children under 14. I represent a constituency where there is a high level of crime committed by children between ten and 11 years of age. I wonder will they be exempt from the law. If that will be the case there are people in the city who will be quick to use them to commit crimes. Will we have a situation where an 11-year-old caught in the commission of a robbery or burglary offence cannot be dealt with under the law? Lawyers tend to see these things in black and white terms but the unfortunate suffering public do not see them like that. The public see them in black and blue terms. I want to be clear that any change in the age of criminal responsibility will not leave a vacuum, that we will not have a change without having other legislation to replace it instantly. I want the Minister to make it clear that we will not be creating a situation that will allow that to happen. It is important that we are aware of what we are doing.

Mr. Skelly

I should like to get clarification on a similar point. The Minister mentioned that if we accepted this amendment immunity would be given to certain people or to those under the age suggested by Deputy Woods, 12 years. If a Children Bill is brought in by the Minister for Health and the age is fixed at 12 years will children under that age not have immunity?

Mr. O'Dea

In spite of the Minister's explanation — I should like to thank him for his reasonable approach — I am still unhappy with the amendment introduced by him. It should be opposed. The general criminal law protects people who are over seven years and under 14 years in a sense that it requires a greater burden of proof to convict a person under 14 than it would require to convict an adult. There is no distinction in these powers of detention between those between seven and 14 years and those over 14 years. The difference in the general law should be reflected in the powers of detention which the Minister is introducing.

The Minister has also mentioned that these powers of detention apply to an offence for which a person could get five years. Unfortunately, they also apply to offences for which the person, if convicted, could get benefit of the Probation Act or a small fine. I am unhappy with that. The Minister should go back to the parliamentary draftsman and have the entire section reconsidered.

Miss Flaherty

The Minister invited us to express our views in regard to the possibility of exclusion under this. I share the consensus in the House that there should be a level of exclusion involved in this. The debate has got confused because we are dealing with a number of amendments together. I support the Minister's amendment. It is a valuable clarification. Perhaps the point raised by Deputy Andrews could be clarified further with a view to doing what the Minister intends doing on Report Stage. With regard to the amendment moved by Deputy Woods, I welcome the Minister's commitment to look at the general area and to consider exclusion. I fully accept that it would be grossly irresponsible and that we could not change the age of criminal responsibility in the Bill. That is not what we are asking the Minister to do. If he did that he would, as he said himself, be leaving a vacuum. The age of criminal responsibility can be changed only in the context of a Bill that will present an alternative structure for dealing with criminals. Clearly there are many serious criminals in the 13 to 14 age group. It is a tragedy for the individuals that they have become hardened criminals at the age of 13. They have been done a grave injustice and I hope the Children Bill will deal with that more fully.

The Government are committed to introducing a Children Bill and to looking at the way we care for children in need of care and those who get into criminal difficulties. We are committed to look at them and to include the raising of the age of criminal responsibility. Therefore, it would be irresponsible when dealing with this legislation to increase powers against those about whom we hope to introduce alternative structures in a short time. Certainly, by the end of the year we will have detailed proposals before us on the whole area of children's law. I urge the Minister to exclude as far as possible children perhaps up to the age of 14. I am not definite about the age but 14 years is the age that is accepted in the courts. The Minister should exclude children under that age from the increased powers of the Bill. Those children will still be liable to be dealt with under the existing criminal law if found guilty of crimes.

Miss Harney

I appreciate the Minister's difficulty and I am aware that a lot of young people in the seven to 14 age group are involved in serious crime. I do not share the view that they should be questioned or taken to a Garda station. In many cases they could co-operate with the Garda not only in relation to crimes they may have committed themselves but in relation to crimes they may have witnessed. The reason I am worried about this is because adequate safeguards are not built into the Bill later. These young people may be questioned without a compulsion being on the Garda to have a parent or next of kin present. The Garda are asked only to do that as far as is practicable, but that could mean anything. There is not any compulsion to have a legal adviser present. It is because those safeguards do not exist that I am worried that young people in the seven to 14 age group can under the legislation be detained for long periods for questioning by the Garda. It is because the adequate safeguards are not there that I am so worried. If we had such safeguards I would be happy to accept that we could have a lowering of the age from 14 but until we get them this is not acceptable to me.

Mrs. Glenn

I share the concern of most Members and the public that a distinction is not being made between the treatment to be meted out to adults who may be apprehended on serious crimes and the treatment for children apprehended on less serious crimes other than there is the requirement that parents would be notified as soon as practicable if the child requests that. My opposition to the section remains in that the Garda continue to have that power to hold children. It has been suggested that the Bill does not deal with the age of responsibility and that the Garda are not pursuing children of that age, that they consider them as not being amenable to the law at such a tender age. It has also been suggested that we should somehow delegate our responsibility to a Children Bill which is long overdue but has not been presented to the House. We have a responsibility to deal with the legislation before us and not to defer decisions to future legislation. I would be just as apprehensive about trying to reach a decision in the course of the discussion on this section as to what is the correct age of responsibility. Young people can be guilty of serious crime. We see a number of Dublin Deputies in the House now because of what young people can do to vulnerable sections of our community.

I am pleased the Minister is taking note of what has been said and I suggest that we allow him to take back this provision and give it the type of consideration it should be given on Report Stage. I am happy to settle for that, but I oppose the section as it stands and will wait until the Minister has had an opportunity to consider it before coming back to us on Report Stage.

Mr. De Rossa

The discussion on this aspect of section 3 is an indication of the kind of uncertainty there is in relation to the whole area of crime and the level of criminal responsibility. The debate has indicated a failure to discuss in depth how this should be dealt with. We have been suggesting the exclusion of certain categories of young people from this section and that the Minister will come back later. I have no doubt he will have a quick word with the Minister for Health to ask what the Children Bill contains in this respect and that the Minister will then stick that in as the age under which young people would not be criminally responsible. That would be regrettable because there will be a long debate here on the Children Bill and that will not leave adequate time here on Report Stage to discuss such an important aspect.

The question has been asked whether seven, 12, 14 or 16 years is the appropriate age. Without a clear statement by the Minister on the age he considers to be the correct one for excluding young people from this section I am not happy.

I wish to advert again to the extent of this section. It will be applicable to children; they will be brought to court and they will be detained for the purpose of interrogation. That is the purpose of the section. They can be held for up to 20 hours, they can be held between midnight and eight in the morning during which they can be fingerprinted, photographed and searched by the Garda. The Garda will not be obliged to contact their parents or a solicitor, if the young person concerned knows a solicitor. I am sure that in most cases the Garda would make efforts to contact parents or solicitors. However, statements made by young persons in the course of interrogation will be admissible in court and failure of a child to co-operate with the questioners can result in a prison sentence.

Generally, the Bill provides a fairly serious enlargement of Garda powers. I have expressed opposition to that enlargement, not because the present level of crime is acceptable but because I argue that this is not the way to deal with it. Some Deputies have asked that this provision should be applied to children from the age of seven upwards. That is an indication of the kind of morass we are getting ourselves into in dealing with crime and the level of criminal responsibility.

Mr. Noonan

(Limerick East): The House might be interested to know that in the annual report for crime, 1982, it is reported that 768 children under 14 years were convicted or had charges proved against them. This happened every year between 1978 and 1982. I have said that the Bill does not deal with the age of criminal responsibility. There is no age in this Bill, which merely applies what existing criminal law provides. What I have promised to consider is the exclusion of children under a certain age from being liable to arrest. This does not affect the age of criminal responsibility. The power of the courts would remain. Existing powers will remain and it would be for this House to change the age of criminal responsibility.

I cannot accept the proposals of Deputy Woods. I must consult with the Government and the Attorney General. How can the Garda establish that a person is 12 years of age? It does not arise in the matter of criminal responsibility in the case of a seven-year-old because the presumption of innocence at that age is so strong. At 12 years of age the presumption of innocence would not be so strong. The Garda have power of arrest without warrant. It is not new. It applies to everyone of the age of criminal responsibility upwards. If somebody of 12 years was brought to a Garda station and charged and if there was an interval between the arrest and the charge, as there can well be, a bland amendment like Deputy Woods proposes would not cure it because it would have an effect on the body of criminal law.

However, I will examine it. I am very sympathetic towards it. I can see that a consensus exists on it in the House. However, I will have to have consultation to try to establish what the age should be. Then we would need a much more detailed amendment than that suggested.

Mrs. Barnes

I just want to follow on briefly what the Minister has said.

Progress reported; Committee to sit again.