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Dáil Éireann díospóireacht -
Wednesday, 6 Dec 1989

Vol. 394 No. 2

Larceny Bill, 1989: Committee Stage (Resumed).

Debate resumed on amendment No. 3a:

In page 3, line 27, to delete "believing it to be stolen" and substitute "being reckless as to whether it was stolen".

—(Deputy McCartan.)

An Ceann Comhairle

A number of amendments are being discussed together, 3a, 4, 5a, 6, 6a, 7, 7a, 7b, 8 and 8a.

Mr. J. O'Keeffe

There is a common thread running through these amendments. To clear the matter, I would like to mention amendment No. 4 in the names of Deputy Flanagan and myself. It concerns the whole question of whether the criterion should be recklessness. We discussed it before the adjournment. I want to push this amendment to show the Minister how strongly we feel about it. The Law Reform Commission recommended this approach. I want to put it to a vote and that would probably clear the air on this series of amendments.

Deputy Kavanagh rose.

An Ceann Comhairle

May I put the question, Deputy Kavanagh?

Mr. Kavanagh

I will be guided by you, a Cheann Comhairle. We were discussing a number of amendments, one of which is in my name, dealing with section 33 of the Principal Act. It deals with the extension of the interpretation of the words "belief" or "believing" to include "thinking". I am not satisfied with the Minister's reply on this matter. I intend to push this amendment to a vote but I may have something to say before we come to that stage.

An Ceann Comhairle

I propose to put the question in respect of amendment No. 4 in the names of Deputies O'Keeffe and Flanagan. Deputy McCartan and Deputy O'Keeffe had asked that amendment No. 4 be put.

Mr. McCartan

I am sorry I was delayed at another meeting and was not here when the debate resumed. I had presumed we might take up where we had left off prior to the adjournment of the debate. There are some aspects that need to be dealt with in advance of the question being put. There are very substantial issues to be dealt with. As I said earlier, these amendments go to the core of this Bill. The fact that I was late getting to my seat does not indicate that I am not actively pursuing the amendments in the name of The Workers' Party, that is, amendment No. 3a and related amendments which seek to include the concept of recklessness in the Bill.

Earlier I was beginning to address some of the questions levelled in my direction by the Minister in seeking to maintain a case as to why there should be no change in this section as it stands. The Minister had suggested that the proposed amendment would be uncertain, that it would present difficulties and that it would be hard to define. I have tried to counter that by suggesting that there are similar difficulties surrounding her own proposal and that they have been referred to in the report of the Law Reform Commission at page 60 where the judges, in attempting to interpret the definition of mens rea in the English Theft Act, 1968, up to 1987 and 1988, have been obliged to be addressed emphatically by the Court of Appeal in the English administration of justice to try to re-establish that court's view of what the Legislature in 1968 was attempting to do in Britain.

The point is that upwards of 20 years since the passing of the Theft Act, 1968, in Britain, they were still having difficulties in defining judicially the concept of knowing and believing; these are the very words the Minister wants to put into her Bill today. I find that remarkable in the face of the realities and the judicial dealings with the definition in Britain. After 20 years and upwards, they still have not got any form of unanimity at judicial level in interpreting the section. In the face of the strongest possible recommendations from the Law Reform Commission the Minister seeks to persist with a proposal similar to that contained in the British Theft Act, 1968. I want to pursue a little further why we are coming down to that line.

Deputy O'Dea has sought to suggest that there is nothing definite in the proposition that the Irish courts in interrupting the provision would borrow for English decided cases. The fact is that he acknowledges that judicial decisions of the British courts have the strongest persuasive status in legal argument before our courts. They are not binding, but it is in order to refer to them and, as he correctly points out, they would certainly present us with a strong persuasive argument that what would be availed of by a lawyer in the Irish courts in seeking to interpret the section.

If that is coupled with what has happened and what the Irish courts have done with the 1916 provision — well knowing the words of the 1916 Act to have been stolen — with what they have done judicially in restricting that provision, I do not think there can be any doubt in the minds of people in this House trying to predict the outcome, in some years time, of the judicial paring down and sharpening of the provision contained in the present Bill, that is, the provision of "knowing or believing". Coupled with a combination of what has been determined in this jurisdiction, in defining the concept of knowing with the very strong persuasive judicial pronouncement in Britain as to what they have done with the double concept of "knowing or believing", no doubt we would have an Act that is as protective and as restricted as the current legislation.

In short, I do not believe that the formula presented in the Minister's Bill would advance the cause of dealing with handlers and receivers one iota. That is a great pity. If there are to be uncertainties and difficulties then let us err — if that is the word — in favour of a more stringent attack on handlers and receivers. All of us would agree that there is, perhaps, no more pernicious offender in the law of dishonesty and in the law regarding attacks on property than the fat cat who sits back in his surroundings and allows others to carry out and direct the fences on his behalf. He is the fence who passes on goods, who secretes them and provides the wheels and oil for the whole industry of crime in regard to the disposal of property. We should make no apology for being definite and resolute in regard to that type of offender. In view of the history of the courts in interpreting the 1916 Act and of the persuasions that will be brought to bear on the Judiciary from the English authorities, the Minister is not as resolute as she should be in pursuing this issue.

The report of the Law Reform Commission records the fact that the Director of Public Prosecutions does not support this formula but this is not a view which should hold great sway in this House. As legislators we are attempting to redress the existing situation and we know that, to date, under existing law the handler, fence or receiver runs rings round the judicial process. There are major loopholes available to him or her in the law which we are trying to close off. That is why I tabled the amendment.

I want to draw the attention of the House to the reasoning behind the Law Reform Commission's concept of "recklessness". On page 89, paragraph 4, they deal with the area of liability based on reception where the accused was reckless as to whether the goods were stolen. Subparagraph 114 states:

This option is far closer to the traditional policy of criminal law although, as we have seen, it does not represent the law in relation to receiving stolen property.

The committee, in reviewing several options of liability that could be imposed, refer to nine and are of the view that the inclusion of "recklessness" as a concept is far closer to the traditional policy of the criminal law. The subparagraph continues:

In favour of this option it may be argued that the requirement of recklessness affords sufficient deference to subjective wrongfulness in this context. We are dealing here with anti-social conduct of a serious kind. If an accused, having addressed the question whether the goods were stolen, decides to take a chance, it may be said that this behaviour is sufficently wrongful to warrant punishment.

I fully adopt that line of reasoning and argument. The report continues:

Recklessness was used by the legislature in the definition of rape in the Criminal Law (Rape) Act, 1981. The legal implications of recklessness were addressed by the Supreme Court in the context of a prosecution for capital murder of a Garda in the People v. Murray. It appears to us that the concept of recklessness, property defined, has advantages in the context of the appropriate mens rea for receiving. We say “properly defined” because, unless the term is clearly defined, the Court could interpret the term in either a subjective or objective sense. One interpretation would require the accused to have actually adverted to the risk that the property had been stolen before there could be a conviction. Under the alternative interpretation there could be a conviction if a reasonable man would have adverted to the risk in the circumstances, whether or not the particular accused adverted to the risk.

I also adopt that argument to pursue my interests here. The report indicates areas where the concept of recklessness has been used on previous occasions and should be applied to this Bill. The report goes on to say:

There can be little or no doubt that recklessness in criminal law has always been defined in a subjective sense, at least before the Caldwell decision. Ranged in its favour are Kenny, Smith and Hogan, Jerome Hall, Glanville Williams, the English Law Commission and the American Law Institute, not to mention Lords Edmund Davies and Wilberforce who dissented in Caldwell. It presents an acceptable and just definition for the criminal law in general.

From comments that have been made it is obvious that there are misunderstandings about the differences as to where the subjective and objective come into play. My amendments are subjective to the extent that they turn the spotlight on the accused and require him to be subjectively observed. The concept of recklessness throws a certain onus on his or her shoulders to act carefully where the circumstances so require.

The definition provides for an objective approach to be taken by the jury when they analyse, in their deliberations, the activities of the accused. In other words, they will be asked — and will be entitled to ask of themselves — whether the accused acted objectively or in a way in which a reasonable man would have acted in the circumstances. That is the test I advocate in these amendments. The jury must be given the opportunity to rely on their common sense and to provide a test and standard which would be measured against the approach of the reasonable man. I wanted to clarify that point so that there will be no doubt in anyone's mind as to the line I seek to adopt in proposing these amendments.

I am disappointed that the Minister dismissed my amendments and I do not believe she has made a case for her own provision which is worthy of support. I intend to press the amendments in the names of The Workers' Party and myself because they are central and crucial to the effective workings of the Bill.

Mr. J. O'Keeffe

Deputy McCartan went over all the arguments which are well set out in the report of the Law Reform Commission, which we have all read. They are very compelling arguments and it is unfortunate that the Minister is not prepared to accept them. We have now reached a stage of honest disagreement as the Opposition believe that the test of recklessness should be included in the Bill which would facilitate, to a far greater degree, the conviction of people responsible for handling and receiving stolen goods. We have argued this all morning and part of this afternoon and I do not see any indication that the Minister is prepared to accept the amendments. There are a number of amendments tabled and we will have to put one of them to the test. The first is in the name of Deputy McCartan and it covers my point and that of Deputy Kavanagh.

Mr. O'Dea

Deputy O'Keeffe's remarks illustrate the difficulty we are in. There may be some logic to the arguments of the Opposition but there is a distinct lack of clarity. Deputy Flanagan is also confused in regard to this matter. Deputy McCartan quoted Glanville Williams, Kenny and Criminal Law, Smith and Hogan, etc.

As I understand it, and I have the same page of the Law Reform Commission report open in front of me, these cases are cited as authorities for the proposition that when the term recklesness per se is used in legislation, it means subjective rather than objective recklessness. In the case of the Crown v. Caldwell the English House of Lords divided three to two on the question of whether it was objective or subjective.

Deputy McCartan is advancing the argument that the concept of recklessness should be a mixture of subjective and objective. Earlier he argued that the concept of recklessness would be the clearer approach to take; however, everything that I have heard demonstrates exactly the opposite. Having read the Law Reform Commission's comments on recklessness, it is by no means a clear test. I looked up an article referred to in the report by Professor Mary McAleese in the 1981 Dublin University Law Journal entitled "What is Recklessness?" and anybody who reads that article will know that recklessness is a very uncertain and ill defined concept. If they do not want to believe Professor McAleese, they can read the judgment of the House of Lords in the case of the Crown v. Caldwell where there were fundamental differences between the Lords and they decided on a bare majority of three to two that it meant objective recklessness as opposed to subjective recklessness.

The basis of Deputy McCartan's submission seems to be that the further elaboration of the word "belief" the proposed section 33 (2) (c) where belief is specifically defined as including a situation where a person thinks that the property was probably stolen is going to have no effect. The courts will just ignore those words and treat them as if they were not in the legislation. I do not share the Deputy's pessimism. I think the courts will give them a very clear and specific meaning.

By and large, the solution being adopted is preferable to the concept of recklessness, unless we are very clear in our own minds what we mean by recklessness. A test for recklessness, which suggests a mixture of subjective and objective, is not clear and the Fine Gael amendment does not purport to define recklessness at all. They are perpetuating that uncertainty and ensuring that it will be carried into Irish law. I do not accept that.

An Leas-Cheann Comhairle

We have exhausted subjectivity and objectivity to the point where we are meeting ourselves coming back. I propose to put the question.

Question put: "That the words proposed to be deleted stand."

The Committee divided: Tá, 70; Níl; 55.

Tá

Níl

Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies McCartan and J. Higgins.

Question declared carried.

Amendment declared lost.

Mr. J. O'Keeffe

I move amendment No. 4:

In page 3, line 27, after "property" to insert ", or being reckless as to whether such property has been stolen.".

I feel strongly about this amendment. I am very anxious that the Minister would take on board the recommendation of the Law Reform Commission. However, it appears quite clear, in the light of the last vote, that the Minister has set her face against taking on board the definition of "recklessness" which we on this side of the House felt would make it easier to bring receivers and handlers of stolen property to book. On that basis I see little point in putting this amendment to a vote at this stage but I would say to the Minister that I will be renewing my efforts on Report Stage and I hope she will consider the matter further in the meantime.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendments Nos. 5, 12 and 13 will be taken together, by agreement.

Mr. J. O'Keeffe

I move amendment No. 5:

In page 3, line 30, after "both" to insert "and in addition to, or in lieu of, any such penalty, the court may order that person to pay such compensation as the court considers appropriate to the person from whom the property was stolen".

The principle behind this amendment is totally unrelated to the matter we have been discussing for the past couple of hours. It concerns the ability of the court to order compensation to be paid, where the court considers it appropriate, to the victim of the crime. This is a concept in which I believe very strongly. I know that from time to time courts have made such orders but there is no statutory basis for so doing.

Mrs. Geoghegan-Quinn

Sorry for interrupting but I was informed that as amendments Nos. 12 and 13 are related to amendment No. 5, they would be taken together. Is that correct?

Mr. McCartan

That has been agreed.

An Leas-Cheann Comhairle

That anouncement has been made and there is agreement on it. Amendment No. 5 has been formally moved.

Mr. J. O'Keeffe

All these amendments refer to the payment of compensation to the victim of the crime. This is a concept that should be developed a lot more and should be given a statutory basis. When we are talking about receivers, the common language we use is the godfathers of crime, the fat cats who grow rich from the ill-gotten gains, the proceeds of crime. I do not know whether there is a real basis for that but I suspect there is some basis for it. My concern is that unfortunate people who have had their goods stolen find themselves at the end of the day without recourse to anybody. There probably are people who have grown rich from the proceeds of crime and the figures alone give an indication that this is so. The Garda report on crime last year indicated the value of stolen goods in the order of £34 million. That is a lot of money. It indicates that somewhere along the line there are people who are living, if not in opulent circumstances, certainly in a degree of luxury on the proceeds of crime. I want to deal with that problem. I do not think it is sufficient that we change the procedures to put these people more readily behind bars and it is not right that the moneys accumulated should be there for them when they come out. In addition I want the court to have a statutory power to order compensation to be paid to the victim.

This serves two purposes. First, I have a natural sympathy for the victims of crime and I would very much like to see a system in place whereby there would be some degree of compensation to them. Secondly, it would serve as a further deterrent to those who are involved in crime if they knew that their ill-gotten gains could be sequestered by the court. I accept that in all cases it may not be possible to ensure that compensation is paid. I accept that there will be instances of receivers and handlers who have not got the wherewithal to pay and quite frankly they are not the people I am after because you cannot squeeze blood out of a turnip. If they do have such moneys vested away in properties or otherwise, I say take it from them. That will help the victim who will have suffered distress and it will also act as an additional deterrent. Some of these people would put with serving a year or two in jail, would consider they had paid their debt to society and then live of their ill-gotten gains for the rest of their lives but we should not permit that,. That is the central thinking behind my amendment which is to permit the court to order a convicted person to pay compensation, where appropriate, to the person from whom the property was stolen.

I do not think much notice is taken by the Government of the Law Reform Commission report and I am not sure whether it is helping my cause to point out to the Minister that the Law Reform Commission suggested that this course be followed. On page 110, paragraph 151 of the report that is very clear and explicit. It states: "We also consider that, where appropriate, in addition to any penalty imposed, the Court should be able to order payment of compensation by the handler to the victim of the primary offence whether or not that offence was committed by the handler himself". The Law Reform Commission are on my side in this case. It is clear from the amendment tabled by Deputy McCartan that he is behind this move and I have no doubt that the Labour Party will favour it also. I think the entire Opposition is in support of this approach and I am not surprised because it makes total sense. I would be very interested to know whether the Minister could muster up any logic or commonsense to oppose this amendment.

It has been mentioned that amendment No. 12 is to be taken with this amendment. That amendment is consequential and therefore there is no need for me to address it separately. Deputy McCartan's amendment is on all fours with mine and we can cover the issue by dealing with it on the basis of amendment No. 5. I would urge the Minister very strongly to take this concept on board.

Mr. McCartan

I rise simply to support what Deputy O'Keeffe has said and to draw attention to amendment No. 13 in my name on behalf of The Workers' Party. This amendment is on all fours with what the Law Reform Commission recommend. It provides that in addition to penalties of imprisonment and/or fine, the court should consider reparation being made to the victim of the primary offence, in other words the person whose property was first taken. That victim should be compensated by the person convicted of handling regardless of whether the person convicted is the original taker or depriver of the property. It addresses the fact that the handler is more often than not a person of substance, a person with accumulated property, ill-gotten or otherwise. It does not matter, for the purposes of this section, whether the accumulated wealth of the person is found to be legitimately obtained or otherwise.

If he or she has money at their disposal, then at the time of sentencing a court should be specifically empowered to order the payment of compensation to the party who lost the property at the outset. That is why I am proposing that this amendment be adopted.

I have no difficulty supporting Deputy O'Keeffe's amendment. He slots his amendment No. 5 in under section 3 but I felt it was more appropriate, as he did with his amendment No. 12, to bring the amendment under section 9 which deals with all offences. However, the principle is clear and it should be supported. I hope the Minister will acknowledge what wisdom is to be shared on this occasion.

Mr. Kavanagh

Lest the previous speakers are in any doubt as to the position of the Labour Party on these amendments, I want to say that the concept appeals to me. I understand these amendments will deal with handlers. As the layman on this side of the House I was of the opinion that nobody could make money out of stealing and other sorts of crime and that if the stolen money was found it would be returned to the owner. Obviously this new offence of handling should be extended to people who are not directly involved in perpetrating the crime in the first instance. The beneficiaries of stolen goods should be proceeded against also. Therefore, these amendments are totally acceptable to me.

We are all aware that some people who have spent time in prison seem to live off the benefits of their crimes many years after they come out. They do not work in the normal way but they are able to live in style in this country and abroad off the benefits of their nefarious activities and ill-gotten gains. If this concept can be adopted and put into effect, the Minister should seriously consider accepting the amendments. I know she will produce also sorts of arguments why she cannot accept the amendments but surely she knows as well as the rest of us that the godfathers of crime seem to be the people who are making the money. We are able to quantify the loss to the public from the statistics which the Garda Commissioner gave us recently and we should use this Bill to ensure that when these people leave prison they will not be able to live off the gains made from their nefarious activities. I hope the Minister will accept the spirit of these three amendments and if she cannot accept the present wording perhaps she will promise to look at them and see if something can be done between now and Report Stage.

Mr. Flanagan

I hope the Minister will give serious consideration to taking these amendments on board. I am sure it has been brought to her attention that in practice judges in the courts have been making orders of compensation payable to victims of crime. We now have an opportunity to give statutory effect to this practice which has grown over the past number of years.

It is not possible to adequately discuss the amendments without saying a few words about the place of the victim within our criminal law system. We can readily see the changes which have come about over the years in the fundamental principle that the victim of crime was a member of a certain socio-economic grouping. Given the importance of property in the framing of our criminal justice system, it was unfortunate that we did not give pride of place to victims because of their place within society, as ordained in past centuries. If we look at the Brehon Laws we can see the importance of compensating a victim for a crime which was perpetrated against him. A fundamental feature of the Brehon Laws was not that society as a whole would be compensated, as we see now, but that the victim would be compensated. We should be moving in that direction. This is the only area of the Brehon Laws we should consider re-enacting, but it is worth considering that the primacy of property rights over the past number of centuries has moulded our criminal law system. We have not really debated the importance of changing that system in accordance with changing times.

The public prosecutor is the agent for the victim but he does not have any power under the criminal justice system to ensure that a victim is adequately compensated. I hope the Minister will see fit to accept the amendments. Over the past number of years other jurisdictions have taken on board an element of the compensating a victim. Pilot studies carried out in the United Kingdom show that there has been a remarkable decrease in crime both against persons and property in areas where these studies were carried out. One can see that as well as compensating the victim and making him feel a little more important in the entire criminal process, the results towards society as a whole have been positive. In other debates we discussed our prison system which has become terribly expensive. Rather than having a term of imprisonment as an immediate priority for conviction under this legislation our priority should be to pay compensation to a victim who has suffered the trauma of the burglary, larceny or some other crime.

The arguments in favour of the amendments are compelling. If they are otherwise I should like to hear the Minister's views in that regard. When concluding the Second Stage debate the Minister for Justice said he looked forward to a positive approach being taken on Committee Stage. This is an area in which the positive approach by the Minister could be seen to bear fruit. We must look at the broader concept of the victim within the criminal law code. It is not a matter for this evening's debate but I hope we will have an opportunity to discuss it at a later stage. In keeping with the need to highlight the importance of not alienating the victim from crime we should include a provision which would be discretionary and available to a judge to help him make up his mind in accordance with the merits of the case. It is also very important to consider whether the person paying the compensation can afford to do so. We would not want to have one law for those who can afford to pay the victim and another law for those who cannot. It is important to preserve a balance. However, I do not believe that that should be an excuse for the Minister to rule the amendments out of hand. I look forward to her positive reply.

An Leas-Cheann Comhairle

We hand over the hopes of the four speakers to the Minister for her treatment thereof.

Mr. Kavanagh

We must be right because Deputy O'Dea never said a word about them.

Minister of State at the Department of the Taoiseach (Mrs. Geoghegan-Quinn)

These amendments are opposed. These amendments follow a recommendation in the Law Reform Commission's report that the court should be able to order payment of compensation by the handler to the victim of the primary offence whether that offence was committed by the handler himself.

The commission's recommendation in this regard touches on an overlap between the criminal and civil law. The area of tort in the civil law is principally concerned with the provision of compensation for loss or damage, whereas criminal law is concerned with the regulation of conduct and the maintenance of social order and, to this end, with the imposition of penalties or sanctions. There can obviously be an overlap between the two areas, and one set of facts may at the same time constitute both a tort and a crime. In the present context a thief may be prosecuted by the State for larceny and sued by the owner for trespass to goods or conversion.

The existing system which requires that issues of criminal and civil liability be dealt with in separate proceedings has been criticised on the basis that in many cases it would be convenient to apply criminal and civil remedies together. In that regard reference has also been made to be desirability of avoiding unnecessary litigation and saving expense for victims.

There are, however, important matters to be teased out before the final form of a system of compensation in criminal trials could be settled, such as, for instance, whether it is right that the victim could get adequate compensation if, as Deputy Flanagan said, the offender was well to do but would have to manage without if the offender was penurious; whether a well-off offender should be able to buy his way, as it were, out of a punishment to which he might otherwise rightly be subject and whether a criminal court should have to concern itself with the difficult questions of title to stolen property which are likely to arise from time to time. There is also the question whether, in determining the amount of compensation to be paid by a particular offender, the concepts of contributory fault as between concurrent wrongdoers which apply in civil proceedings should be employed by the criminal courts. One must also face the fact that even if a prosecution fails because the guilt of the accused is not proven beyond a reasonable doubt, civil proceedings may still lie for compensation arising out of the same facts because there is sufficient evidence to prove the commission of a civil wrong on the balance of probabilities: thus a system of compensation in criminal trials may not always do away with the need for two sets of proceedings.

The introduction of a formal system of compensation by offenders would require very careful consideration. My view, however, is that this question raises issues of much more general application in relation to compensation by the criminal to the victim in all cases, and it should, therefore, be dealt with in the context of crime as a whole and not on a piecemeal basis. That is what I propose to do.

These amendments are not wrong in principle and I accept the spirit in which they were tabled. The Minister is considering this matter in the context of separate legislative proposals dealing with compensation generally and any general provision will of course, have to include detailed provisions as regards enforcement.

Mr. J. O'Keeffe

I would not like my remarks to be taken as being critical of the Minister's advisers, certainly, they are not intended as such. However, I must say that the reply read by the Minister amounts to the greatest lot of bureaucratic gobbledygook that I have heard for a long time. The Minister told us that the issue we have raised requires serious consideration, but any change in the law requires serious consideration. The Law Reform Commission some years ago gave the matter serious consideration and produced a recommendation. If there were other matters that the Minister, and her colleagues, wished to have teased out in the meantime, that could have been done.

Is the Minister seriously suggesting that there cannot be an overlap between the civil and criminal law? Deputy Flanagan has told us that, almost on an extra-statutory basis, the courts are making orders for the payment of compensation to victims. In my time I came across a case where a judge adjourned an assault charge to see if compensation would be paid. The judge said his final decision would depend on whether a certain amount of money was paid to the injured party. I do not think we should put judges in the position where they may be straining the boundaries of the law by doing what they think is proper. From what I knew of the case I mentioned, the judge was right in his decision but I wonder why we fear to tread where judges are pushing out the judicial boundaries. We should be prepared to bite the bullet and give judges the necessary legislative and statutory backing for the course of action they adopt.

The Minister referred to the danger of people buying themselves out of jail. I should like to point out that one of the reasons I tabled the amendment was that I wanted to tag it on to the penalty provided. That penalty is a term of imprisonment not exceeding 14 years or a fine or both. I made it clear that the power available to the courts was in addition to those penalties. There was no question of permitting any person to buy his or her way out of jail. At the end of the day it would be a matter for the presiding judge to decide what is best in the circumstances taking everything into consideration.

The Minister raised a question about the title to the goods. There are two answers to that question. Under the Police Protection Act of about 1890 applications are made to the District Court for the disposal of goods and district justices make decisions for the disposal of items held by the Garda Síochána as a consequence of a crime. There is a precedent for the courts to make such decisions. I should like to make it clear that I am not merely talking about the restoration of stolen goods to their rightful owner but about compensation. I am talking about developing a new approach so that we can get at the ill-gotton gains of the fat cats we hear so much about. It pains me to read about such people living in luxury and very often sending deprived people to do their dirty work. One can have a degree of sympathy for the minions employed in that capacity but we must get at the arch criminals, the people who are in the background, who will not stick their necks out but who are quite prepared to take advantage of the huge profits that can be made from crime.

It is my belief that the provision we have suggested will be a deterrent and, very importantly, it may help the victims of crime. As Deputy Flanagan pointed out, we have a precedent for our suggestion in the Brehon Laws. What is good in the laws of the past can be put in place in current legislation. The Minister has not faced this issue head-on. We would be strengthening the provision in the Bill if we included our amendment. We would be hitting two targets with one arrow, providing an additional deterrent and including a compensation provision for the victims of crime. I accept that the compensation will not be available in all cases, but where it can be made available those fat cats should be nailed and made pay it. We should have a procedure under which a judge can go beyond sending such people to jail for a couple of years. Of course, he could send him in for a longer term at a cost of £30,000 a year to the taxpayer which, again, is a matter which cannot be ignored.

I am one of those who believe we should hit the criminal where he would feel it most. The way to really get at some of those who have made it their profession to cream off the proceeds of crime is through their pockets. I am speaking metaphorically of course but if we can sweep out of their pockets the proceeds of such crime they will not be too quick to get involved in it again. In so doing we would have the opportunity to compensate the victim.

I urge the Minister to rethink this one. Logic, commonsense and humanity all combine to support the case being made by my colleagues and I on the Opposition benches. I feel so strongly about this that I am making a further appeal to the Minister to rethink the matter and accept the idea in principle. Perhaps the wording needs to be tightened up somewhat — that is always an out for a Minister — but if the idea is accepted in principle that would satisfy me that we have done a good day's work.

Mr. McCartan

I wish to take this opportunity to address some of the reasons the Minister has advanced which, again, I am sad to say are unconvincing in their reasoning. The fact is that on an every day basis the courts, in imposing sanctions and penalties, can and do provide for the payment of compensation in whole or in part to the victims of crime of all sorts. As Deputy O'Keeffe has pointed out, judges advise the victims of assault to head off to the civil courts and issue a writ for assault or trespass of the person. In cases where cars are stolen and damaged and where property is stolen and disposed of, the courts will, where they feel it is appropriate to do so, order the accused to pay compensation. Often this is on top of a suspended sentence, a sentence which has to be served or in lieu of part of a sentence. There are a myriad of ways by which the court can do so.

What we are seeking to do with these amendments, in recognising that fact, is to underpin the idea in law so that it is made clear to a court dealing with the crime of receiving and disposal of stolen property that the Legislature take the view that it is appropriate for judges to address the concept of compensation in all, if not the majority of cases dealt with. That is all we are saying. If one likes, we are simply acknowledging that this practice takes place already, that it should be part of our law proper and that we are saying to the judges that we agree with them, that they should continue to do so and that they should have regard in particular to those with wealth and property stashed away, ill-gotten or otherwise, whenever they have to answer crimes of dishonesty, such as the conversion of stolen property.

The Minister has said that there will be an overlapping of the civil and criminal law and that what victims should do is head off to the civil courts to look for damages there. However, she does accede to the proposition, idea and concept that there can be overlaps and there is nothing wrong in principle with this. That being so, why advance the argument at all in the first place? Let us be clear that an overlap is allowable and does not fly in the face of either of the principles of the civil or criminal law. Let us also recognise that the victims of crime need some form of recognition on the part of the Legislature. I pointed out on Second Stage of the Rape Bill a few days ago, if not yesterday — I am in and out of here so often that I am losing track of when and where——

Mr. Kavanagh

It was yesterday.

Mr. McCartan

The Government have not had a good record in recent times in dealing with victims. We have closed down, effectively, the Criminal Injuries Compensation Tribunal. No further applications are being accepted. We are simply mopping up there and disposing of the hundreds of cases outstanding. Effectively, it will then be closed. The Irish Association of Victim Support have complained that central Government pay little regard to their need for funding. The Rape Crisis Centres, who counsel the victims of rape and serious sexual assault, have been on their knees during the past two to three years with little or no response from the Government. I understand that the Rape Crisis Centre in the Minister's consitituency has had to close its doors, if it is not gone entirely. I suppose one could mention that the malicious injuries code is also gone. This code was used in compensating owners of property from the public purse where the loss resulted from a criminal act or action. Overall, we do not have a good record. We could redress the balance slightly if we were to include an amendment along the lines of the one proposed here given that the Minister has indicated that there is nothing wrong in principle with the idea. I am sure she recognises and acknowledges that it is an every day practice in our courts for judges to order the payment of compensation.

The Minister indicated that there are general issues to be looked at and regard has to be had to a general scheme of things before we move in this direction. She also stated she was looking at the matter. In welcoming this greater review of the law and recognising the fact that it will be some time before that law is put in place, let me suggest that we might concede to this amendment, its correctness in principle and allow it in gently. When we come to introduce a comprehensive Bill on compensation for the victims of crime, whenever the Minister has completed her review of the law we could simply retreat from this amendment and repeal it in the new Bill. This would show a certain degree of goodwill and earnestness on the part of the Government towards the victims of crime and it would not cause great upset to the general principles, contrary to what the Minister says. Therefore let us include the amendment and when comprehensive legislation is introduced we could rescind it. This is a simple procedure so I can see no reason for the Minister not acceding to this request.

The Minister has said also that there are matters of concern which need to be addressed. She spoke about the rights of victims. How does one address the right of a victim who is faced by a defendant who is poor on the one hand and a defendant who is wealthy on the other? This is an everyday occurrence and it has not caused headaches for the courts up to now in its administration of the law in this area. I do not think it is a major consideration or would cause any problems in the future. Not wanting to anticipate anything, I suggest that the only conceivable law we could introduce is one which would allow the courts discretion in circumstances where it is appropriate for the courts to order the payment of compensation, unless of course the Minister is suggesting that the Government will establish alongside it a general fund from which the courts could borrow to compensate the victims in criminal cases if the accused is simply not in a position to do so because of his or her poor circumstances.

On the other hand, the suggestion is made that provision in this regard might allow for an accused to buy his or her way out. There is no suggestion of that. This is an alternative provision that allows for imprisonment, fine and/or compensation, one or all or any combination of two or three options. None of us is advocating that we put in a buying out option. We are underlining the primacy of consideration for the victim and saying that irrespective of what happens to the accused, that where possible the victim should be compensated out of the resources of the accused person whether or not he or she is locked up in Mountjoy for any number of years. If the accused has wealth and the victim is at a loss, the wealth should be appropriated in appropriate circumstances and paid to the victim.

Dealing in stolen property means that one is specifically accumulating wealth from it. The case is not the same where a person in a brawl strikes another person. Whilst the victim of such a crime might require compensation, the fact that a person hits someone does not by definition mean that he gains wealth. However, a person in the business of selling stolen goods is by definition accumulating wealth. It is appropriate in legislation dealing with the handler of stolen goods that there should be a provision to address that situation. The area of the drug baron is an example that has screamed at us from the headlines of newspaper articles. The Dunne family here in the city have been well documented in their dealings over the years in the pernicious drugs trade. They have a house in Stepaside, in the uplands of the Dublin mountains, looking down over the city with big bay-fronted windows. Whilst Mr. Dunne was locked up in prison that wealth remained intact. There is an example in relation to the other brother up in Crumlin, with the corporation house converted into a gin palace of sorts with a counter and plush surroundings. What about that other infamous character about whom we have heard so much, the general, Mr. Cahill, with his corporation house in one street and his townhouse off Cowper Road next door to the home of the retired company director of one of the biggest corporations in the country? Are not these people cocking a snoot at the system?

Whilst I am referring to them in the context in which they are better known, for their dabbling in the drugs scene, do they not represent an appropriate analogy to be referred to in the handler situation? When we get people into the dock, to a great extent they are people involved in the retail business, or the wholesale business, or in some aspect of it. They are involved, for example, in dealing in cigarettes, spirits and other goods smuggled over the Border. Many of these people are dealing in stolen goods over the counters in their own shops, pubs and bars and they appear before the courts. Is it not appropriate that some brake be put on their business, at least to ensure that at the end of the day a victim is compensated? We must address this problem at some stage.

Very wealthy, resourceful people end up in court answering for crimes which happen to be one of many of their pastimes in crime generally. At that stage we should be in a position to hit them with the full rigour of the law. We should not simply say that the victim could have a right to go to a civil court and bring an action there for trespass on property or otherwise. This is not the way to deal with it. After the trauma of the crime and of having to give evidence in court, we would be asking the victim to look to the prospect of putting good money after bad to try to get redress in the courts from the handler, and if the judgment was not honoured it would be passed on down to the sheriff who would be asked to go knocking on the door of the big house in Stepaside or in Cowper Gardens asking the occupants to hand over goods to the value of the award that the victim has secured in the civil courts. That does not seriously address the issue and the Minister should look at it again.

Mr. Kavanagh

I have criticised this Bill in that we have not taken the opportunity, after some 70 years, to do a root and branch job on updating the principal Act of 1916. The proposal being put forward in these three amendments gives a dimension which has been lacking in this important section. These amendments do not simply direct the Bill in the manual handling of stolen goods. They attempt to get at the blue collar type of crime. The Minister in spite of the arguments already made about the overlapping of criminal and civil law should accept what has been said so forcibly here from the Opposition benches.

In 1988, 30,000 or more premises or homes were burgled, 2,500 cars were stolen and 17,000 or 18,000 cars were broken into and goods or parts of them were stolen. The people who have made the money from these items were not those directly involved in carrying out the acts but the organisers, the people who handled the goods when they were stolen, knowing them to have been stolen. We are asking for an option of compensation to be included in the penalty when such people are caught and brought to justice.

A person, before he becomes a victim of these crimes, is paying for them, as we all have to pay very heavy insurance on homes or cars especially if one is living in this city or near it, because the loading here is very high due to the crime rate. The victim of such crimes endures hardship, trauma and stress, as well as the loss of the goods and the wreckage of his home or car and he continues to suffer from that experience. When one's home has been burgled, it is likely that the insurance loading will be heavier in certain instances. At any rate, a certain amount of the insurance will be deducted in that the first £50, £100 or £1,000 of the loss suffered must be paid by the victim. A garda said to my brother when his house was burgled in rural Dublin that he had it insured, as if the loss did not matter. That did not make any difference to him. He had lost valuables, some items of sentimental value and his house had been wrecked.

Not feeling comfortable about going out and leaving the house unattended means such people suffer that trauma for years and probably for ever, and there is no compensation. Nor are these victims looking for compensation on that basis; but more is needed than somebody simply coming along and saying that the perpetrator of the crime has been caught and has got ten years in jail or four years in jail or whatever, that the victim has insurance and can make a claim and that everything will be fine. It is about time something a little stronger than that was done in these cases. These amendments are underlining a way that this Bill can be used to take an additional incentive in this whole area by introducing the offer of compensation. The Minister should not simply argue that it is not possible or that it should not be in here. She should be positive and accept that this is a worthwhile proposal and endeavour to see how her advisers could include this in the Bill before she denies us the option of having that additional compensation as a measure of how the transgressor can be penalised beyond a monetary penalty or a penalty of imprisonment. Some compensation should go to the victims of these crimes.

Mr. O'Dea

I am strongly in favour of a system of compensation for the victims of crime, not just crimes of theft but also offences against the person. This is something the Government will have to consider as a matter of urgency.

I want to take issue with Deputy O'Keeffe's statement that the Law Reform Commission have considered this in some detail and have made the recommendation here. I am open to correction on this but it appears that, to the question of handling stolen property, the Law Reform Commission gave very cursory consideration, throwing it in as a possible addition to the penalties that can be imposed by a court. I listened carefully to Deputies Kavanagh and O'Keeffe. What they said demonstrates that this is a complex issue. The Minister has demonstrated that also.

I do not know what the updated position is in the UK but I note that in the 1968 Theft Act there is a section 28 which allows the court to make an order for restitution in certain cases. It is narrowly drawn. I do not think it would go anywhere near meeting the points raised by the various speakers and by this amendment.

If this amendment were accepted today, there would be statutory provision to enable the victim of a theft to be compensated if it was a receiver who was convicted. There would be no corresponding statutory provision to enable that victim to be compensated if a thief, in the widest possible sense, were convicted. That would be illogical.

I understand that the Law Reform Commission are considering the entire law of theft with a view to updating it. The Minister of State has nodded her head, which I take to mean that they are considering that.

Mr. Flanagan

It is in this as well and it has been ignored.

Mr. O'Dea

The appropriate place for a statutory provision which would enable the courts to compensate the victims of theft in a wider sense is in the general law of theft. That is being considered at the moment by the Law Reform Commission. I would like some indication from the Minister as to when we might expect a report from the Law Reform Commission. The Minister has said that when that report is available, the Government will act expeditiously to bring legislative proposals before the House. That is the proper way to proceed.

I do not know if it would be preferable to ask the Law Reform Commission to consider as a separate issue the question of compensation for victims of theft and offences against the person or whether we should take the question of compensation for victims of theft and include that in the consideration which the Law Reform Commission are going to give to the general law of theft. In so far as we are talking about victims of theft here, any provision which would enable the court to order compensation for those victims should be part of the general law of theft.

Deputy McCartan has demonstrated that there are various ways to go about that including ordering direct compensation from people who have profited in some way or applying something analogous to the old Criminal Injuries Tribunal or a combination of both. It would be illogical to have a situation where a court could order a victim to be compensated if a receiver is convicted but cannot do so if the thief is convicted and the receiver is not. The general law of theft is the place for this, but I am strongly in favour of a system whereby victims of theft would be looked after and there would be statutory provision for this.

Mrs. Geoghegan-Quinn

I would like to assure Deputies on the far side that I am open to suggestions and I hope I can be as helpful as possible.

Deputy Kavanagh said he thought the Larceny Act should be replaced completely instead of amended piecemeal. We all accept the need for a more thorough-going look at the Larceny Act itself. The Law Reform Commission are looking at the whole area of dishonesty and will be making further reports on the matter. These reports will be dealt with fairly quickly and should enable us to take a very useful step towards ultimate codification of the criminal law by, perhaps, codifying in one statute all aspects dealing with theft.

I am not arguing against the principal of the amendment. I am aware of the ad hoc arrangements that were mentioned by the Deputies and which individual judges and justices make in cases which come before them. What I am saying, however, is that there are many matters of detail to be teased out to find a suitable, comprehensive system of compensation. Contrary to what Deputy O'Keeffe has said — and Deputy O'Dea is right — these matters have not been explored in any great detail by the Law Reform Commission. The matter raised in the amendments is much wider in scope than the Bill before the House and deserves separate, comprehensive and thoroughly thought out legislation. The Minister's Department have this matter under consideration with a view to formulating such a Bill.

I accept that it could be some time before this comes into law and I have great sympathy with the arguments which have been advanced by all the Deputies. For the information of the House there is provision for restitution of stolen property, a very partial provision in section 45 of the 1916 Act, but it is very obscure and of no value at present. It was replaced by section 28 of the Theft Act 1968 in England which was replaced in its turn in 1972 and 1974. It is a wide and general provision not just applicable to larceny cases. That is the point we are making. It needs separate consideration in a general context.

Before I make a final decision, the points and arguments being put forward by Deputy McCartan are the very arguments I was putting forward to my officials on the right here earlier and I would like to ask for advice from the lawyers in the House as to how they might reconcile the jurisdictional problems that could arise. For instance the Circuit Court, wearing its civil hat, cannot go beyond £15,000 compensation. What happens when it is wearing its criminal hat?

Mr. McCartan

A judge in the District Court recently ordered £25,000 compensation to the public purse without the slightest difficulty at all. No problem of jurisdiction arose.

Mr. J. O'Keeffe

That is the limit, self imposed, in the Courts Act in relation to civil matters. There is no difficulty there.

Acting Chairman (Mr. Jacob)

Is the Deputy pressing his amendment?

Mr. J. O'Keeffe

I am not satisfied with the response here. I take the point that of course we need a suitable, comprehensive system of compensation and I would be delighted to see the Government coming up with such a system here and now. I make a prediction that we will be waiting a while, but while we are waiting it does not make sense not to use this ready-made vehicle at least to make a start. Deputy Flanagan went back to the Brehon Laws. The Minister herself accepts that in 1916 an effort was made from the point of view of restitution and compensation, but it was unworkable. Therefore, Deputy McCartan and myself are being original by raising this point; it was thought of previously.

If we bridge the gaps in the Brehon Laws up to the Larceny Act, 1916, and again up to date, we are talking about long spans of time. I am worried as to whether we will have the same span of time before we have this very comprehensive system the Minister and Deputy O'Dea have spoken about. That is why I go back to the point that the good is not the enemy of the best. It is an addition to this Bill to have it in the Bill. The fact is it is not there in relation to people directly involved in the charge of larceny. I would prefer if it were there. I am prepared to broaden the amendment, if that is Deputy O'Dea's problem. It poses no difficulty whatever to me. After all, this is a Larceny Bill so that would cause me no problem whatever. What worries me about the Government's attitude is the approach that because we cannot have a perfect, comprehensive solution today we can have nothing. I do not accept that that is the basis on which we should legislate here. There is the opportunity to add to the effectiveness of this Bill here and now. On that basis I am pressing the amendment.

Mrs. Geoghegan-Quinn

In relation to the Adam Clayton award that Deputy McCartan talked about, I understand that could create constitutional problems. After all, it was a voluntary contribution which he could or could not have made. He made it in the circumstances.

Mr. J. O'Keeffe

He paid it.

Mrs. Geoghegan-Quinn

He made it in the circumstances; that is what I am saying. There are huge lists of cases the Supreme Court has overturned where the District Court went beyond its jurisdiction in the awarding of compensation amounts. We could have the same situation with regard to the Circuit Court.

Mr. J. O'Keeffe

If we give a legislative effect to it.

Acting Chairman

Is the Deputy pressing his amendment?

Mr. J. O'Keeffe

I am, indeed.

Amendment put.

The Committee divided: Tá, 64; Níl, 71.

Tá

Níl

Tellers: Tá, Deputies J. Higgins and Finucane; Níl, Deputies V. Brady and Clohessy.

Amendment declared lost.

Amendments Nos. 5a, 6, 6a, 7, 7a and 7b not moved.

Mr. Kavanagh

I move amendment No. 8:

In page 4, to delete lines 19 to 21.

I do not propose to delay the House in regard to this amendment. I said earlier that I could not accept the Minister's reasoning behind this section in the Bill. I said that "believing" should be extended to include "thinking" and although the Minister claims that if this section is not in the Bill wrongdoers would not be apprehended, she must know that obviously I did not want to make it any easier for these people to avoid being apprehended. I believe in sticking to the meaning of words but what is included in this Bill stretches credulity and introduces an aspect where the thinking person can be regarded as a criminal for thinking that property was stolen rather than believing it was stolen. I cannot accept that and, therefore, I have to press this amendment.

My final words may seem a little strange but next Sunday when the Minister goes to Mass — as I believe she does — and if instead of saying "I believe in God" she says "there probably is a God" she will find herself in trouble with many people outside this House. Using that analogy in regard to the Bill, it is not acceptable in this form.

An Leas-Cheann Comhairle

This amendment has already been discussed and it remains for me to put the question.

Mr. McCartan

On the section?

An Leas-Cheann Comhairle

The amendment has been discussed and there will be an opportunity to debate the section. I ask Deputies to wait until we come to the section. I did not want to interrupt Deputy Kavanagh, in whose name the amendment was, but we had already discussed it.

Question put: "That the words proposed to be deleted stand".

The Committee divided: Tá, 71; Níl, 16.

Tá

Níl

Bell, Michael.
Ferris, Michael.
Higgins, Michael D.
Howlin, Brendan.
Kavanagh, Liam.
Kemmy, Jim.
Moynihan, Michael.
O'Shea, Brian.
O'Sullivan, Gerry.
O'Sullivan, Toddy.
Pattison, Séamus.
Quinn, Ruairí.
Ryan, Seán.
Spring, Dick.
Stagg, Emmet.
Taylor, Mervyn.

Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Howlin and Ferris.

Question declared carried.

Amendment declared lost.

An Leas-Cheann Comhairle

We will now move on to amendment No. 8aa in the names of Deputies J. O'Keeffe and Flanagan.

Amendment No. 8a not moved.

Mr. J. O'Keeffe

I move amendment No. 8aa:

In page 4, between lines 21 and 22, to insert the following:

"(3) In a prosecution for an offence under this section in relation to fish or shellfish, it shall not be necessary to prove that the said fish or shellfish shall have been reduced to captivity before being stolen.".

This amendment touches on an unusual point and when I explain it, the Minister will find it close to her heart. A problem has arisen because of the development of mariculture and aquaculture around our coast, which is very relevant in Connemara in the west and down my way in the south.

The problem, as it has been explained to me, is that in many instances there really is no legal ownership of these oyster beds or areas where mussels and scallops are grown. But there is the trade, as it were, in oysters and other shellfish being improperly taken and handled by receivers. The tabling of this amendment arose out of an endeavour to resolve that problem.

The difficulty from the legal point of view, as I understand it, is that one cannot prove that oysters have been stolen because one cannot prove that they have been reduced to captivity; that is the difficulty. I had better explain how an owner operates at present. He will either be the possessor of a charter, he may hold a Roinn na Mara aquaculture licence, or in some instances he may have moved ahead of the designation and licensing procedures, as it were, merely staking out his claim on the seabed, putting in his oysters, mussels or whatever. Clearly that person is the owner of the shellfish because he has staked out his claim, he has seeded the bed, he regularly handles shellfish, looks after them, which may involve dredging to remove weed and to deposit spatting shells. Therefore, there is clear evidence that the person who does all those things is the owner of the shellfish.

Probably the point I am raising is more relevant to shellfish than, say, to farm salmon because normally farm salmon will be in a cage and, therefore, can be interpreted as being reduced to captivity. But, in the case of somebody with an oyster bed, that will not be so; the owner will be growing the oysters which cannot move of their own volition. Yet I understand that if those oysters are improperly and wrongly abstracted from the oyster bed and therefore traded by a receiver, there is the legal problem that an offence of receiving or handling does not lie because one cannot prove that those oysters have been reduced to captivity. I hope I am making my point clear.

I have taken advice on this point since it was raised with me and it does appear to be a very genuine problem. The Bill, as drafted, does not cover the point. Accordingly, I have tabled an amendment to provide that, in a prosecution for an offence for reciving or handling in relation to fish or shellfish, it shall not be necessary to prove that the said fish or shellfish shall have been reduced to captivity before being stolen. That is the net point of my amendment.

I did have an opportunity of looking at the English law. Mind you, they have a Salmon Act of 1986 which was touched on at page 61 of the report of the Law Reform Commission. The approach followed in the Salmon Act, 1986, in the United Kingdom does not answer the point raised with me in regard to the problems of those involved in mariculture and aquaculture.

It is my belief that the amendment, as drafted, is a worthy one and would go a long way towards resolving the problems of those people who are involved in mariculture and aquaculture. I see a very big failure here for the development of aquaculture and mariculture. It is important that we ensure that the legal protections are in place so that the fruits of their labours are not filched by some people who could steal their oysters or shellfish, trade them and then not be answerable to the law. That is the purpose of this amendment. I would ask the Minister to accept the bona fides of the complaint made to me in this regard and also the bona fides of the manner in which I have attempted to deal with that complaint.

Mrs. Geoghegan-Quinn

I am sure it is my fault but I have difficulty in understanding what the Deputy is trying to get at. In the case of oyster beds, for instance, their ownership is clearly laid down in Department of the Marine guidelines — the beds themselves are either in private ownership or are owned by a co-operative — and there is a very strict mapping procedure such people must follow in order to select. I know it is difficult to imagine but I find it easier since I was involved in one in my area not so long ago which covers a vast expanse of water. There are very strict guidelines laid down, so there would not be a problem with regard to ownership. If it is property, then it is covered. Perhaps there is some other point I am not getting that the Deputy is trying to make.

Mr. J. O'Keeffe

It was explained to me by one of those involved in such an undertaking who drew it to my attention. That person referred to the fact that one can operate either under an old charter or a Roinn na Mara aquaculture licence. He contends that a prosecution will not succeed unless one, as the possessor of a charter or a licence, can prove that the shellfish had been reduced to captivity on one's beds before being stolen. Of course, this is impossible to prove with legal certainty when dealing with shellfish in the open sea. I can see the point. Where one may be dealing with farm salmon in cages there is no difficulty showing that they have been reduced to captivity, but, if one is talking about an area of open sea, where one is growing one's oysters on the seabed, apparently a prosecution will not lie if somebody takes those shellfish because the State will not be able to prove that the shellfish have been reduced to captivity. I hope I am making the point clear.

I will say that the person who raised the issue with me felt so strongly about it he sought the advice of Senior Counsel. Senior Counsel agreed that there will have to be a change in the law, that there is a basis for the problems highlighted by my correspondent, incidentally somebody I would regard as being totally reliable.

If the Minister would like an opportunity to tease out the matter — I appreciate I did not raise this point on Second Stage; It was only brought to my attention after I had spoken on Second Stage——

An Leas-Cheann Comhairle

Is the Deputy accepting that there are no pearls in it for the moment and that they might come up later on?

Mr. J. O'Keeffe

If I thought that the pearl might grow between now and Report Stage, or if I were given an indication of same from the Minister, I would accept it. I do not want to try to ram through an amendment if the Minister is not totally satisfied with it.

I do want to reiterate that the point has been raised with me in all good faith and I am presenting it in all good faith. If, as has been suggested to me, there is a genuine problem involved here, then we should avail of the opportunity to resolve it in the context of this Bill.

Mrs. Geoghegan-Quinn

I accept that the Deputy is presenting his case in all good faith but I still have difficulty satisfying myself in relation to the point he is making because oysters just do not happen, they grow. Whether one is talking of an old charter of rights or of the new system under a Roinn na Mara licence to operate an oyster bed, the ownership of the property which one might call sea property is clearly mapped out. Therefore, everybody knows, within their own oyster bed, what oysters are there. Normally most of them would be growing oysters on a regular basis, putting seeds in all the time.

If the Deputy wishes, we can have another look at the amendment between now and Report Stage. I think it is probably more a matter for the Department of the Marine rather than for this legislation. It is something that I can have discussed between the Department of the Marine and the Department of Justice between now and Report Stage.

Mr. J. O'Keeffe

On the basis of the Minister's assurance to that effect and of giving myself time to tease out the matter further, I am prepared to withdraw the amendment and I hope the matter can be resolved on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: "That section 3 stand part of the Bill."

Mr. McCartan

I want to make some general comments in respect of the section, now that we have disposed of the amendments proposed by the various spokespersons in Opposition. I want to mark my concern that while the Minister has, on each occasion, responded to the amendments by saying she is attempting to be as helpful and as receptive as possible in dealing with them, she has rejected each one in turn. We have made no progress whatever in trying to convince her that the section is not all that it should be and it will not achieve all that we had hoped for or all that she claims it might achieve when passed into law. Nonetheless, it has to be conceded that it represents an improvement on existing law.

The Workers' Party do not intend to oppose it but we certainly must take the opportunity to say that we are gravely disappointed with the way the Minister has handled our requests to her to consider amendment of the Bill. Section 3, as it stands, and section 33 (1) of the Principal Act, once this is passed into law, will not be as effective a means of combating the handlers of stolen property as we would like it to be. The Government are not being as earnest or as determined as they should be in dealing with what is a very anti-social activity in our community. At the end of the day, those who are engaged in dishonest activities in this regard, will be sighing with relief, realising that the Government have won their way on this matter.

Mr. McGahon

I have to be a bit cynical about the 14 years' imprisonment that is proposed in this Bill. People who commit murder in this country do not even serve 14 years. The proposal to fine people who are engaged in receiving stolen property should be more realistic and the sentence should be without remission. Again I have to voice a certain amount of cynicism about a person who handles stolen property, knowing or believing it to be stolen property. How do you prove that a person knows or believes it to be stolen property? A person who is accused of that offence has only to sing dumb. How do you prove it? Surely it should be inserted in the Bill that the onus should be on him to prove from where he received it.

Mr. McCartan

The next amendment deals with it.

Mr. McGahon

I was not here earlier when the question of compensation was being discussed. The proposal in this regard is very laudable but who will pay the compensation? How many people who are engaged in the business of crime have no assets or will be seen not to have assets? Again the State, the suckling pig, will be called on to pay the compensation. Last week my car was broken into and the stereo and radio stolen from it. In Dublin there is a whole sub-culture engaged in the business of stolen property and people are living off it very well. I have no difficulty with the imposition of strict sentences but some realism has to be introduced into the matter.

One Deputy suggested earlier that prison is too expensive. Prison can never be too expensive for people who are engaged full time in crime. If people have assets, in addition to serving the prison term they should compensate the victims. It is very unrealistic to believe that the accused will pay compensation to the victims. What we are saying is that the State will pay yet again and therefore I have certain reservations about that. If we are really going to pursue the accused, will that entail selling their homes in order to pay compensation to the hapless victims of crimes? We have to be serious about this. While I agree with the sentiments behind the Bill, I have doubts as to how it will work in practice.

Mr. J. O'Keeffe

I believe that this section, the major section of the Bill, is an improvement on the existing law but a major opportunity has been missed to make it very much better. I am not going to oppose the section because, as I have said, it is somewhat better than the existing, entirely unsatisfactory position. It is proper to record my major reservations that this section does not go far enough and, as a consequence, a golden opportunity has been lost which would have enabled us to bring some of these godfathers of crime to book. That about sums up my view in regard to this section.

For the sake of completeness I should also raise the issue in regard to the portion of the section which shifts the legal burden of proof onto the accused. On the face of it, I am not unhappy with it but the Law Reform Commission report states that they do not favour setting specific circumstances in which presumptions may be raised in the section constituting the offence. They have this considered view based on constitutional implications. I mention it merely for the sake of completeness. I would be happy, if the transfer of the onus of proof in the circumstances outlined in the Bill does stand up constitutionally, to have it included but obviously if there is the slightest danger of a constitutional implication it behoves us as legislators to address our minds to it.

When I raised this point on Second Stage I think Deputy McCartan did not consider that it was a constitutional problem. If that is the case, I would be very happy to agree with the transfer of the legal burden of proof as proposed in the section. Overall, I would be prepared to let the section through as it stands. I hope the Minister, between now and Report Stage, will give further consideration to the points raised. We will again make an effort to make this provision a lot more effective and watertight.

Mr. Kavanagh

We have battled hard to gain some improvements in this the most important section of the Bill — the main reason the Bill was brought before us to deal with the new crime of handling — but we have failed in this respect. Nevertheless the position will be improved in that we will not have to rely on a Bill which was introduced many years ago. The introduction of this new offence is an improvement. We endeavoured to avail of the opportunity to further improve the Bill but we have failed in that respect. Nevertheless the Bill will be an improvement and I do not intend to oppose this section on behalf of my party. I hope the Minister will be a little more receptive to the reasonable arguments I believe will be made during the remainder of the debate.

Question put and agreed to.

NEW SECTION.

Mr. McCartan

I move amendment No. 8b:

In page 4, before section 4, to insert the following new section:

"4.—(1) Where in the prosecution of offences under section 3 of this Act possession by the accused has been proved to the satisfaction of the jury or the court, within the meaning of the foregoing section, and that the goods have been unlawfully handled, and the accused has failed or refused to offer any reasonable explanation, upon which the jury or court may act, the court or jury may take such failure or refusal as a consideration in reaching a verdict of guilty against the accused.

(2) Nothing in this section shall be construed as lifting the general burden of proof of all matters from the prosecution."

In my concluding remarks on the previous amendment I indicated that I thought the Government were showing a half-hearted attitude in dealing with the problem of the professional handler in our community. This amendment will put that view fully to the test. It proposes to insert a new section which will allow a jury who are presented with all other proven facts to have regard to an accused having remained silent and made no effort to address the facts when confronted with them.

My amendment proposes that if in the prosecution of an offence for handling the prosecution are able to prove to the satisfaction of the court or jury that the goods were unlawfully handled, the accused was found in possession of them and he failed or refused to offer any reasonable explanation on which the court or jury could act, the court or jury could take such a failure or refusal into consideration in reaching a verdict of guilty against an accused. The amendment is designed to address full square the resourceful and skilful crook or handler who knows that singing dumb in the face of incontrovertible facts is a good device which he or she should stand by. Say nothing and let the devil be damned is the good advice given by a lawyer to an accused in a police station. Time and again in the prosecution of these offences we have seen that the failure to make an accused answerable for incontrovertible facts allows him the opportunity and benefit of silence. We have also listened to judges in court advising the jury that it is a factor they should not bear in mind because there is a universal right to remain silent and not to self-incriminate oneself.

We must address the law in modern circumstances and modern circumstances tell us there is a difficulty in dealing with receivers and handlers. For that reason we are purporting to redefine the law in its entirety in this Bill. We have also introduced in previous legislation the concept of making it necessary to respond to circumstances when they present themselves. Under the 1984 Act an accused is obliged to explain the circumstances whereby he or she is found in the possession of stolen goods, firearms or explosive substances. If an accused fails to give an account a jury or court can have regard to this in the prosecution of offences under the 1984 Act. The concept I am proposing here is not anything new.

The amendment has been drafted at the suggestion of the Criminal Law Review Committee. Their report suggests that one of the things which should be provided for in the scheme of a Bill is the raising of this entitlement of a jury to have regard to the silence, refusal or failure of an accused to offer any reasonable explanation in the face of other facts being proved. It is for that reason I put forward my amendment. I have dealt in the amendment with the constitutional reservations Deputy O'Keeffe referred to by suggesting in subsection (2) that nothing shall be construed as lifting the general burden of proof of all matters from the prosecution. In other words, nothing in this section should require an accused to prove a case against himself. It merely says that if he or she elects to remain silent when found in the possession of stolen goods then a jury can be asked to have regard to that factor when they are ultimately sent to reach their verdict. For that reason I believe my amendment should be supported. I want to say without any hesitation that the position of the Government in regard to this amendment will illustrate one way or the other whether they are all serious in trying to firm up the law so that life will be made harder and hotter for those who want to engage in receiving and handling stolen goods.

Mr. J. O'Keeffe

There is a lot of merit in the case made by Deputy McCartan. It is really a question of putting the Government to the test as to how serious they are in tackling the problems we have all spoken about and which have been highlighted in the Law Reform Commission's report. It also puts the Government to the test about whether they give tuppence for what the Law Reform Commission say. Even though the Minister for Justice paid tribute to the Law Reform Commission on Second Stage and implied that the Bill was brought forward as a result of the recommendations of the commission virtually all of their recommendations have been rejected. That is no compliment to the commission who did such marvellous work by way of research, ultimately producing their final report.

The commission thought it would tighten up the law if the kind of provision I was proposing was included in the Bill and they gave a draft outline of what they thought should be included. Deputy McCartan quite frankly admitted that this is the precedent he used for his amendment. If we delve a little further we find that the reason the commission recommended the inclusion of this provision is not because it substantially changes the law in any way, in fact it largely states the law, but they highlighted the fact that the law, as stated by the Court of Criminal Appeal, has been misinterpreted by the lower courts on a number of occasions. I think it was largely for that reason that the commission thought it was appropriate that the matter be spelt out clearly in the Statute. They made it clear that while the onus of proof never leaves the prosecution and no legal or persuasive burden of proof is shifted onto an accused, possession will raise a presumption of fact which will shift an evidential burden onto an accused. This matter was teased out in a number of decisions, including the Oglesby decision in the Court of Criminal Appeal to which I referred. The Law Reform Commission stated:

We are satisfied that the Oglesby decision has occasionally been misunderstood by the courts. Certain judges and district justices have, from time to time, interpreted the decision to mean that unexplained possession of recently stolen goods does not even raise a presumption of fact and have therefore acceded to applications for a direction.

That statement was not put in lightly. It points to an obvious escape route that has been used by a number of people who have been hauled before the courts by the Garda and the Director of Public Prosecutions. That escape route has been pointed out to us and we would be criminally negligent if we did not ensure that it was sealed off straightaway.

It will not be sufficient for the Minister to say in reply that that is the law, that all our amendment does is restate the existing law. That is not the problem as highlighted in the commission's report. We will be testing the sincerity of the Government on this amendment. There seems to be no reason why the amendment, or the principle of it, should not be taken on board. I strongly endorse the views expressed by Deputy McCartan and I should like to urge the Minister to, to the minimum, accept the spirit of the amendment.

Mr. Kavanagh

I am sympathetic to the views of Deputy McCartan but I would like to hear the Minister's view before I decide whether to support it or not.

Mrs. Geoghegan-Quinn

The amendment covers the same ground as subsection (2) (b) of the new section 33 which makes it clear what the circumstances are in which an accused shall be taken to have known or believed that the property in question was stolen property. Subsection (2) (b) is designed to meet the situation where the accused is proved to have acquired the stolen property but denies that he or she knew or believed that it was stolen and, perhaps, says that he or she thought it was smuggled. It is proposed to place an evidential rather than a persuasive burden on the accused in such an instance to show that he or she did not know or believe that the property was stolen. This is as recommended by the Law Reform Commission. In placing an evidential burden on the accused in such cases it is following the precedent of section 8 of the Criminal Law Jurisdiction Act, 1976 which inserted a new section 27 (a) in the Firearms Act, 1964, under which a person is guilty of an offence if he has a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that he has not got it in his possession or under his control for a lawful purpose, unless he has it in his possession or under his control for a lawful purpose, unless he has it in his possession or under his control for a lawful purpose.

If the prosecution in a handling case proves the possession or control of the stolen property in suspicious circumstances and the accused puts forward an innocent explanation it will be for him to adduce evidence sufficient to raise an issue fit for consideration as to the innocence of his receipt of the property in question. If he fails to do so he will be taken as having known or believed that the property was stolen. "Believing" will have the extended meaning here of thinking that the property was probably stolen.

The subsection sets out in clear terms that where a person does anything with stolen property which, if done dishonestly, would constitute handling, in circumstances where it is reasonable to conclude that he or she knew or believed that the property in question was stolen, then he or she shall be taken to have so known or believed. The exception to this is where the court or jury is satisfied on the basis of all the evidence, that there is a reasonable doubt as to whether the accused knew or believed that the property was stolen. The purpose of this provision is to set out in clear terms that the knowledge or belief, which is a necessary ingredient of the offence of handling, can in appropriate cases be inferred from the accused's actions in receiving the stolen goods, or in doing any of the other things that would constitute a handling offence. It is designed to give effect to the Law Reform Commission's recommendation in the general scheme of their report, at page 118. Neither of the Deputies has persuaded me that their approach has anything more to recommend it than that which is contained in the Bill. Accordingly, I am opposing the amendment.

Mr. McCartan

Up to now I was given to expressing feelings of disapointmnent but the Minister is pushing me in the direction of becoming somewhat annoyed with the attitude she has adopted. If she is to borrow from the commission's scheme of things perhaps she will take on board their recommendation which I included in my amendment, the avoidance of doubt. The Minister said the matter is covered under section 3 and, therefore, that there is no departure between us in principle but I wonder why she has not included a provision along the lines of my amendment. It will not take from the Bill, or the principles being pursued by the Minister in it. It will do what the Law Reform Commission suggested that we should do, it will avoid any doubt that might arise in that area.

Mrs. Geoghegan-Quinn

It is already in. It would be creating sloppy legislation if we repeated provisions that are in the Bill.

Mr. McCartan

The Minister should not make me any more vexed than I am.

Mrs. Geoghegan-Quinn

I am not attempting to do that. I am telling the Deputy what the position is.

Mr. McCartan

The Law Reform Commission set out different headings and then sought to go a step further in the general area of section 3 and in the definition of mens rea. However, the Minister has not gone as far as the commission in the definition area. She has jettisoned the concept of recklessness as a basis. The commission were firmer than the Minister in regard to this, but they felt there was a need to clear up the issue and avoid doubt. They addressed the problem of interpretation that has arisen time and again in the working of this law, in the context of Oglesby and the mens rea element. What they have suggested is not sloppy; it is sure, firm and certain.

The Minister told us that subsection (2) (b) of the new section 33 covers the matter and, consequently, a person who offers an innocent explanation will be thrown against the test laid down, such as could the person have possibly believed or thought that the property was innocently obtained in the circumstances. The Minister went on to say that the failure to offer an innocent explanation would automatically mean that a finding would be laid against him, that because a person remained silent he or she would be presumed to have thought that the goods were improperly obtained. I do not think that follows at all.

I do not believe that a court in construing that section will take the step that silence by definition means that the person was thinking, or must have been thinking, that the goods were stolen. It is for that reason I am proposing this amendment which would enable the jury to at least draw on or act upon the fact of silence and no more to allow them have regard to that when all other matters have been proved to their satisfaction and beyond doubt. It does not address the case where a person offers an explanation but rather the case where the person simply remains dumb. That is the situation borrowed most on in reality by the more skilful and resourceful and by those who have their brief in tow and who have been advised by their lawyer either in advance or on being interviewed by him in the police station to say nothing, to wait and see what happens when the evidence has been fully assembled and the case is made against him.

I cannot for the life of me understand why, when there is no disagreement between us in principle, when the Minister maintains one inference from section 3 and I say I have worries about it as do the Law Reform Commission, she cannot take the little step of including this small amendment to show that a firm view is being taken on this area and that we are prepared to make life difficult for the handler.

Mrs. Geoghegan-Quinn

I do not want to repeat what I have already said——

Mr. McCartan

I am not asking you to.

Mrs. Geoghegan-Quinn

——but let me point out that I have already explained that it is included in subsection (2) (b) of the new section 33 and that it is not necessary to include it again. Does the Deputy accept that?

Mr. McCartan

To answer the Minister I do not think subsection (2) (b) is all that she makes it out to be. That is why I seek to amend it, in conjunction with the early major amendments in regard to recklessness. I am saying that in practice the courts seek to resolve all doubt which is their duty in some regards in interpreting penal statutes in favour of the accused. Because of the way the 1916 Act has been interpreted we are now at the stage where urgent amending legislation is required. We have to concede that the courts in construing the provision of the 1916 Act have rendered it almost unworkable and an ass. It is possible that they will do exactly the same with subsection (2) (b). I agree with the Minister that this could be covered by subsection (2) (b) but I believe the judicial interpretation will be more in favour of the accused and that in time this will work to exclude the instance of silence. I am trying to address that factor.

If I understand the Minister's line of reasoning, it is that silence will by definition be construed by the courts as representing a thought in the mind of the accused that he or she did think it may have been stolen property. This is taking a step and a leap which I do not believe the courts will take and it is for that reason I am suggesting we address the issue of silence directly. In my amendment I state that where possession has been proved and where theft has been proved beyond doubt the failure of the accused to give an explanation should be considered. I wish to make the point that I do not believe the courts will interpret silence, in the context of subsection (2) (b), as representing a belief on their part that the accused had to be thinking that the goods were stolen. I do not accept that proposition at all.

What I think the courts will say is that the accused has the right to remain silent, that there is no onus on the accused to make any comment good, bad or indifferent and that the members of a jury should not draw any inference good, bad or indifferent from that silence. That is what happens at present and I do not see anything in subsection (2) which would lead us to believe that it will be otherwise. Silence will not be construed in such a way as to allow the jury infer that the accused was thinking or should have been thinking that the goods were stolen. As judges point out constantly to juries, there are many circumstances where an accused might well want to remain silent. He or she might be unsure of the law, their legal rights or their position and they might well like to wait for another day to give their explanation. In order to deal with this issue and avoid confusion, which the Law Reform Commission have highlighted, and I agree with them, we should address this matter full square. That is all my amendment seeks to do.

Mr. McGahon

I also have a difficulty with this one. I agree with what Deputy McCartan has said. The right to silence in a criminal case is a joke. I do not know how a judge or a jury can work on presumptions. A person should not have the right to silence. They should be made to state their case. How is the State going to prove that a receiver knowingly received stolen goods if the accused person remains silent? I do not believe that anyone charged in a criminal case should have the right to silence.

Mrs. Geoghegan-Quinn

As I have said already, what Deputy McCartan seeks to achieve with his amendment is already in the Bill. He accepts this but he just wants to put it in here again.

Mr. McCartan

The Minister is not listening to me.

Mrs. Geoghegan-Quinn

I invite Deputy McCartan to study closely between now and Report Stage subsection (2) (b) of the new section 33. If he still feels as strong about it, there would be nothing to stop him, that is of course if the amendment is withdrawn at this stage, coming back and pressing it again. I am quite satisfied, if an accused remains silent, that subsection (2) (b) of section 33 will operate to give rise to an inference of guilt. It is the possession which gives rise to the inference, not the silence.

Mr. McCartan

I will take the Minister's suggestion on board and I will be amenable.

Mrs. Geoghegan-Quinn

Just like I have been.

Mr. McCartan

What is the Minister talking about?

Mrs. Geoghegan-Quinn

Of course I have. The Deputy has not been listening to me.

(Interruptions.)

Mr. McCartan

Bring back the Minister for Justice quickly.

Mrs. Geoghegan-Quinn

I will be delighted to.

Mr. McCartan

I do not wish to be ungracious or unfair to the Minister as she has handled her brief extremely well today. She has kept goal very well.

Mr. J. O'Keeffe

She has stonewalled very well.

Mr. McCartan

The Minister will have no criticisms. Nothing has got past. I will withdraw the amendment for the time being but I will bring it back. I invite the Minister to consider what I have said. There is room to consider this proposition so that we can be absolutely certain that we will enact water-tight legislation which will make life a little more difficult for the handler. I withdraw the amendment.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Progress reported; Committee to sit again.

Barr