I thank all the Deputies who contributed. There was a wide range of contributions to this debate, including the final contribution made by Deputy O'Dea. I hear him asking what this Government is doing about crime and he asks with such charm that it is as if he has never had an opportunity to do anything about crime and is therefore pleading with the Government to do something. He had his opportunity and should recognise that in criticising the situation in which our society finds itself, in criticising some of the gaps that exist with regard to legislation or methods of investigating crime, he is criticising himself, as his party had control of the Department of Justice for almost ten years. I see he has had to leave the House. I suppose he has a party meeting or something.
I welcome Deputy O'Donoghue back. I wished him well in my contribution in an earlier debate when he was missing from the House because of illness. He is looking extremely well and I hope he has fully recovered. I have no doubt that he will show his mettle when we debate the next Bill. He has probably had an opportunity to hone his literary quotations, his similes and his many colourful expressions. While lying in his bed he was probably thinking of arguments to knock this Minister for Justice even more than he has done before. I look forward to his deliberations in the fullness of time.
There is no doubt that this Bill is a technical measure, but its significance goes much further than just tidying up technical distinctions in the law. The Bill contains reforms that are long overdue and I make no apologies for bringing it before the House. The Bill represents a significant updating of the law in several important respects, including the area of powers of arrest. It has generated a considerable amount of interest outside this House as well as inside it.
Deputy O'Donoghue seems to have regarded this Bill as no more than a distraction from the real issues that he feels need to be tackled in the criminal justice system; Deputy O'Dea was of much the same view. That is a poor assessment by these Deputies of the significance of the measures. Perhaps Deputy O'Donoghue has had a chance in the intervening time to consult a little wider with some of the eminent lawyers whom I know advise him. If so, he will find that many of those eminent lawyers have called for these changes over a number of years. Having attempted to nonsense the Bill in some ways Deputy O'Donoghue declared that, like Delaney's donkey, he was willing to go half way down one road and half way down another road. He was afraid to vote against the Bill and would be supporting the Government on Second Stage. I am pursuing a programme of reform of the criminal justice system on a number of fronts and I am not dictated to by whatever story makes the papers on a given day. That is more in keeping with what Oppositions do and it is certainly in keeping with what Deputy O'Donoghue does.
In my opening speech I outlined a number of measures that I had already taken and that I was in the process of taking. I see this Bill as part and parcel of my reform programme, and the suggestion from the other side of the House that this Bill should be put to one side in favour of something which is in their view more important indicates that there are at least one or two Deputies who have failed to grasp the significance of the Bill.
We cannot as legislators hope to cope effectively with the realities of today's crime without systematically updating, modernising and clarifying the law in certain key respects. That is what is called for because some of our laws leave areas of doubt that have allowed certain things to be done in the courts that people have criticised. This is not just a technical distraction from the main criminal law reform programme. Deputies recognised the importance of this. Deputies Dukes, Crawford, Hogan and Byrne have properly put this Bill into perspective in the context of the criminal justice system. It would be wrong and mischievous to send out a message from this House that the Bill is anything more or less than a highly relevant piece of reform and a central part of the programme.
During the debate, a number of Deputies raised the issue of the constitutionality of the Bill. I want to deal with that issue in as clear a way as possible. I was shocked by the certitude of Deputy O'Donoghue's opinion that this Bill was unnecessary, unconstitutional and essentially a waste of time. This Bill went through the normal procedures for the preparation of legislation. It went through the Attorney General's office, the Department of Justice and the parliamentary draftman's office. To imply, as Deputy O'Donoghue did, that I plucked these provisions out of the air and just put them together in a Bill is a gross disservice to the officials in the Attorney General's office, the parliamentary draftsman's office and the Department of Justice.
Deputy O'Donnell also raised the issue of constitutionality but in a more considered and careful manner. Deputy O'Donoghue, in the course of his comments, quoted Article 40.5 of the Constitution which states: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law." It is precisely in accordance with law that I am providing the powers of entry for the purpose of effecting arrest. The Constitution permits and, indeed, envisages that; that is why it includes the phrase "in accordance with law". The criminal justice system, to be effective, requires it in the limited circumstances that the Bill permits, having regard at all times to the fundamental rights in the Constitution.
As I said on the first day of this debate, I would not knowingly introduce measures that were unconstitutional. A Minister for Justice would not do that. Nor would any Minister for Justice who takes on reform of the law preclude any challenges to its provisions. That option is a right that is there no matter what the questions about the law. This Bill has been cleared by the Attorney General in the usual way and I am satisfied that it is constitutional.
With regard to the powers of the Garda Síochána to arrest without warrant, nothing in section 4 alters the circumstances in which a garda can arrest a person without warrant. It provides that a garda may arrest any person who is, or whom he or she reasonably suspects to be, in the act of committing an arrestable offence. That is a restatement of the common law in respect of powers of arrest and arrest in felonies. The section also provides that a garda may arrest without warrant any person who has committed an arrestable offence and whom the garda reasonably suspect to be guilty of the offence. Again, this is a restatement of the common law.
Listening to the debate one would think that is not the position as it exists in common law. The section does not propose to alter the powers of arrest of the Garda Síochána. What is new is that the scope of offences in respect of which the Garda may have power to arrest without warrant will be extended. This arises because of the basic part of this legislation creating arrestable offences in section 2. This new category of classification will include offences which are misdemeanours at present but which have a penalty of five or more years. At common law Garda powers of arrest without warrant apply in the case of felonies. It is clear that in moving some of the misdemeanours into that category of arrestable offences they must have that accompanying statutory power as well.
The present complex situation with regard to powers of arrest without warrant for the Garda is unnecessary and undesirable and all Members wish to see our gardaí provided with clear and unequivocal statements of their powers. If they are to carry out their duties in an effective way, it is our duty to ensure that legal obstacles are not put in their way. I note that Deputy Woods acknowledged this in his contribution. Section 4 sets out the powers of arrest without warrant in such a clear and unambiguous way in putting it into the area of law.
The section dealing with powers of private persons to arrest without warrant was interesting. It led to the creation of a colourful picture by a number of Deputies, mainly Deputy O'Donoghue and, to a lesser extent, Deputy O'Donnell, and by the hurler on the ditch, Deputy Michael McDowell, who did not contribute during my time here but, from a sitting position, contributed much to this section. Deputies O'Donnell and O'Donoghue were concerned that private citizens would have oppressive powers of arrest without warrant under section 4. The section makes it clear that any person may arrest without warrant anyone who is, or whom the person suspects is, in the act of committing an offence. This is the current position in respect of arrest for felonies. It also provides that where an arrestable offence is being committed, a private person may arrest without warrant anyone whom he or she, with reasonable cause, suspects is guilty of an offence. This is the same as is reflected in the current law with respect to felonies. What is different is that the number of offences is being increased. This arises again out of section 2. Therefore, while it is accurate to say that the number of offences for which a private person may arrest without warrant is being increased, the circumstances in which a private person may arrest will not be changed.
Deputy O'Donoghue made some weak attempts to ridicule the Bill and to paint a picture of large-scale arrests of people pouring out of public houses and other areas of social gathering. That was colourful, and I am sure it got the Deputy a quote in the media. However, I am sure he knows that is not what will happen as a result of this increased extension of the offences. The Bill sets down in law the circumstances in which these new arrestable offences can be handled by a private citizen. A private citizen who decides to effect an arrest has to do so with great care. That is the situation at the moment. They would have to do so in the knowledge that if they make a false accusation they will be in trouble.
The critical difference between the powers of arrest of a garda and those of a private citizen is that a private citizen must be able to prove that an offence was actually being committed. It is a serious responsibility and anybody who gets it wrong will find him or herself facing proceedings for defamation, for wrongful imprisonment, accusation or trespass.
Deputy O'Dea tried again this morning to create the impression that this would give extra powers and credibility to people who decide to take the law into their own hands, namely vigilantes. That is not what will be allowed in this Bill. The handing over of powers of arrest to such groups, or the allegation that this Bill will do that, is without foundation. It is unnecessary scaremongering and I hope it will not be repeated that this is what this Bill will do. I do not want that message to go out from this House. I do not know that Deputy O'Dea made it absolutely clear where he stood with regard to vigilante groups. He spoke about them but I am not sure I heard in what he said a clear and unequivocal statement that vigilante groups, groups of citizens, residents and so on should not take the law into their own hands, and nothing that we do or say here should give them the impression that they can so do.
Deputies also know that a civilian making an arrest must have reasonable cause and that anybody who acts unreasonably and arrests others will quickly find him or herself in court. Deputies also know that this is not something that happens very often. It happens from time to time in the case of store detectives. That is the one area where citizens' arrests take place. For ordinary citizens who are not store detectives, it is a very rare occurrence. I cannot think of anybody I know who has effected a citizen's arrest. The Bill will not add greatly to the number of citizen's arrests that occur but is it essential the power is fully clarified.
The Opposition spokespersons queried the power to enter and search a premises to effect arrests. The purpose of section 6 is to enable a garda to enter and search a premises to arrest a person. It is not, as Deputy O'Donoghue has suggested, a catch-all power to enter and search a premises. The garda's power is restricted to the circumstances where a person whom he wishes to arrest is suspected of being in the place or where he forms a reasonable suspicion the person is there and he may then enter the place solely for the purposes of finding the suspect and arresting him. The section does not entitle the garda to continue searching the premises after an arrest has been made nor does it empower a garda to search the premises other than for the purposes of locating the suspect and arresting him or her.
Deputy O'Donnell rightly expressed concern about the interaction of section 6 of the Bill and section 9 of the Criminal Law Act, 1976. The Criminal Law Act, 1976, provides that where a garda carrying out a search under its powers finds evidence of an offence he may seize it. It could happen that a garda will enter a premises under section 6 for the purpose of effecting an arrest and will come across evidence of an entirely separate offence. Section 9 of the 1976 Act would then come into play and the garda would be entitled to seize evidence of the other offence.
Section 9, a very useful and necessary provision, has been in operation for 20 years. If a garda searching a premises for the purpose of arresting a person, for example, comes across a dead body or a cache of drugs, it is reasonable that he be able to gather evidence relating to it, bringing section 9 of the 1976 Act into play. What Deputy O'Donnell appears to suggest is that if a garda is on a premises to arrest a person and comes across a dead body he must leave and return with another warrant. Section 6 will allow gardaí to enter premises to arrest a person but if in the course of arresting the person he comes across evidence section 9 of the 1976 Act will come into play but that is the only occasion which triggers section 9.
There is a fundamental misunderstanding of the way in which the provisions are being put into law and it is not correct to suggest that section 6 combined with the provisions of the 1976 Act will allow the gardaí carte blanche to do what they want. They will be bound by the two sections when this section is enacted. I am endeavouring to bring certainty to the law by providing the gardaí with what I consider proportionate powers to enter premises to effect an arrest. The law is anything but clear, as Deputies will know, and it is important that we clarify it. I am not proposing a concept unknown to the law. It may be that these concerns have been raised as a result of the wording of section 6 but I have been assured by those advising me on this legislation that the powers in the section are capable only of being construed as powers of entry to effect an arrest. However, having listened to the debate I will consider it carefully between now and Committee Stage and if I am convinced that further clarification is necessary, I will give it on Committee Stage. At this point I am convinced it does not need further clarification but as the Deputies raised this issue out of concern, I will not deny them the opportunity to outline what they think is wrong with it and I will look again at it.
I draw the attention of Deputies O'Donnell and O'Donoghue to section 12 of the Criminal Damage Act, 1991 which shows that many of their concerns are without foundation. The Deputies will see a remarkable similarity between section 12 of that Act and sections 4 and 6 of this Bill and there is no difference in principle between what I am proposing and what is in section 12 of the 1991 Act which was enacted during the lifetime of the Fianna Fáil-Progressive Democrats Coalition Government. Perhaps the Deputies did not get a chance to examine that legislation and have simply forgotten it or perhaps they are simply choosing to ignore it. Section 12 of the Criminal Damage Act, 1991, empowers any person to arrest without warrant anyone whom the person reasonably suspects to be in the act of committing an offence. In the course of the debate an impression was created either that the Bill was of no use or that what I was doing was somehow going too far.
Section 12 of the 1991 Act provides that a garda may for the purposes of arresting a person enter, if necessary by force — and note there is no reference to reasonable force, unlike section 6 of this Bill — and search a premises. In this Bill we are empowering the Garda to enter and search a premises for a person who is suspected of kicking or damaging the door of a house or who has broken a pane of glass. That also was covered in section 12 of the 1991 Act and under that Act any person has the power to arrest without warrant a person whom he or she suspects of committing an offence. I did not hear the same squeals of worry and anguish in 1991 from members of the two parties that are so critical of this Bill, when this was being debated in this House. I am dealing with potentially far more serious offences than those envisaged by section 12 of the 1991 Act, yet the Deputies are concerned about the extent of the powers. If it was all right to enact such provisions in 1991 when their parties were in Government why is it such a matter of concern? Is it because there is a change of seating in this House? When one becomes a Minister one does not lose one's cynicism and it is possible the Deputies forget what was in their Act or decided it was not worth remembering because there would not be as much fun at having a go at the Minister if they remembered it. I do not foresee a sudden change of practice in policy of the Garda Síochána with regard to the use of the powers of search.
I am not introducing a totally new concept, I am merely clarifying the law. The way we go about our business or the way powers of arrest are used has not completely changed since 1991. Democracy has not been undermined and with this Bill our democracy will not be undermined. Having listened to the Deputies, and particularly Deputy Michael McDowell, who is known for his quotable quotes who spoke about people being arrested in the middle of playing a card game, I am sure that was said with the lightness of his touch that he is famous for and that he was not really serious when saying it. The gardaí have powers of arrest without warrant in common law for felonies and we are extending those powers to cover arrestable offences. One of the principal reasons I am doing so is that they must have a clear and unequivocal way in which they can fight crime.
It is a feature of my proposals under the Criminal Justice (Drug Trafficking) Bill, 1996, that in the context of an application to a court for the continuation of a person's detention, the detained person should be brought before the court.
Deputy O'Donoghue wanted to dispense with that necessary safeguard, which I am building in because of rulings of the European Court and our rulings here. In that instance Deputy O'Donoghue wanted me to ignore the European Convention of Human Rights and yet in this Bill he seems to have forgotten that and wants me to be more concerned about the powers in this Bill. I find it difficult at times to reconcile Deputy O'Donoghue's concern about individual rights with Deputy Kenneally's views. He wants every citizen to be DNA tested at birth. It would be a blow to civil rights to test every baby in the land so that their file is on record forever. There would be many objections to such a policy. There is inconsistency in the Fianna Fáil argument. Perhaps they might clarify it at some stage.
The balance between people's rights and the need to protect society from crime is struck in this Bill. Deputy O'Donoghue will not gain any additional brownie points for opposing this Bill for the sake of it so that he might get a line in a newspaper which states that he attacked the Minister. I am sure he got good coverage in The Kerryman.
