Before we commence I remind Senators that a Senator may only speak once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment, other than Government amendments, must be seconded.
Criminal Justice Bill 2004: Report and Final Stages.
Does that include the Minister?
No.
He can only speak once.
Amendment No. 2 is an alternative to amendment No. 1 and they may both be discussed together by agreement.
Government amendment No. 1:
In page 16, line 40, to delete "practicable." and substitute the following:
"practicable but a failure to record the direction shall not by itself render any evidence inadmissible.".
Amendment No. 1 relates to section 5(8)(a) which concerns the preservation of a crime scene. I believe there is value in the arguments made yesterday by Senator Cummins in regard to this subsection. There is a need to ensure that evidence obtained from a crime scene is not rendered inadmissible simply because a garda did not make a written record of the direction from his superintendent that a place be designated as a crime scene as soon as practicable.
Amendment No. 1 qualifies section 5(8)(a) by adding the words, “a failure to record the direction shall not by itself render any evidence inadmissible”. This does not give the Garda an out in terms of the formalities but, equally, where through an oversight the direction is for some reason not recorded as soon as practicable, it would not in itself render inadmissible any evidence found at the scene. I commend the amendment to the House.
Senator Cummins will probably see that I have gone more than half-way to meet the point he made and confined the particular provision to admissibility. Whether it would have repercussions for the Garda in terms of exceeding its powers or being liable in damages to owners of commercial premises is a different issue and is not one with which we must be concerned here.
The Minister mentioned on Committee Stage that he was sympathetic to the amendment which I tabled. I welcome his amendment which covers the area I wish to address. I thank the Minister for that. I will withdraw my related amendment No. 2.
Amendment agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 20, line 18, to delete "includes a dwelling" and substitute the following:
"means a physical location and includes—
(a) a dwelling, residence, building or abode,
(b) a vehicle, whether mechanically propelled or not,
(c) a vessel, whether sea-going or not,
(d) an aircraft, whether capable of operation or not,
(e) a hovercraft, or
(f) any other place whatsoever”.
When addressing this matter the Minister suggested that the phrase covered by paragraph (f), “any other place whatsoever”, could be twisted by a lawyer to imply that it would include one or other of the definitions referred to in the above paragraphs (a) to (e). This is an effort on our part to clarify the situation. In spite of the Minister’s reply from yesterday, we are still not clear why this is not acceptable. We wish to copperfasten the entire definition. It is probably a belt and braces approach but we consider it is necessary. We would welcome further clarification on this matter from the Minister.
I second the amendment. If I recall correctly, the Minister stated yesterday that when paragraph (f), “any other place whatsoever”, was used, it would refer to paragraphs (a) to (e), and in the courts a lawyer could argue that paragraphs (a) to (e) would only be a reference point in terms of “any other place whatsoever”, and would not mean anywhere outside of those areas. I think the Minister said the Supreme Court had ruled to that effect.
Senator Cummins's aim is to provide clarity such that "any other place whatsoever" would include other places that were not referred to in paragraphs (a) to (e). The extent of leaving this out would mean that all of those areas referred to would be just those areas. For the sake of clarity it would be preferable to have a more all-embracing term included at the end, even in the context of case law that already exists.
I am not so familiar with procedure in this House. Is it possible to recommit to Committee Stage?
The Acting Leader would have to propose it.
I move: "That the Criminal Justice Bill 2004 be recommitted in respect of amendment No. 3."
Question put and agreed to.
Bill recommitted in respect of amendment No. 3.
If we were to put a full stop after the phrase, "hovercraft" and take away what appeared after it, I would be prepared to accept that amendment.
That would be an improvement. I am just trying to better the——
Will the Minister repeat the change?
If we were to take away the comma after "hovercraft" and put in a full stop and take away paragraph (f) down to “whatsoever.”
Would we need to put the word "or" after paragraph (e)?
It should be "hovercraft" full stop.
Hovercraft full stop. We also need to include the word "and" at the end of paragraph (d).
Will the Minister confirm the change that is required?
The word "and" should be inserted at the end of paragraph (d), a full stop should replace “, or” after the word “hovercraft” in paragraph (e) , and paragraph (f) should be deleted.
Is the amendment to the amendment agreed? Agreed.
Amendment No. 3, as amended, agreed to.
Bill reported with amendment.
I move amendment No. 4:
In page 23, between lines 13 and 14, to insert the following:
"(b) in section 2 by the addition of the following new subsection:
"(11) Where a court hearing, seeking the extension of the period of detention of an arrested person, is in session at the expiration of the period of detention, the detention period shall be deemed not to have expired until the court hearing is concluded.",".
This amendment relates to the expiration of a period of detention. The Minister was fully supportive of the corresponding amendment on Committee Stage but said its provisions were covered elsewhere in the Bill. Will he clarify which are the relevant sections?
I second the amendment.
The first reference is in section 10(a)(ii), which relates to drug offences, at the bottom of page 22. The other relevant section is 187, on page 161, which refers to the Offences Against the State Act 1939.
I thank the Minister for his clarification.
Amendment, by leave, withdrawn.
As Senator Norris is not in the House, amendment No. 5 cannot be moved.
Amendment No. 5 not moved.
Amendment No. 6 arises out of Committee Stage proceedings. Amendments Nos. 6 and 7 are cognate and may be discussed together by agreement.
I move amendment No. 6:
In page 29, to delete lines 37 to 39.
Having raised this issue on Committee Stage yesterday, I reviewed the relevant documentation I received from the Law Society. In its submission on the Bill, it said in regard to sections 17 and 18, "Declarations, oaths or affirmations should not be administered by persons who have an interest in the subject matter at hand but should be taken by an independent person with a duty to explain to the declarant the nature and import of the declaration, oath or affirmation which they are about to make".
I am aware there is legislation which allows other categories of persons to sign statutory declarations. In the case, for example, of a person applying for citizenship on the basis of marriage to an Irish citizen, I understand the declaration that must be provided to the Department of Justice, Equality and Law Reform may be signed by several categories of witnesses, including solicitors and commissioners for oaths. I am aware of other cases where this can be done and I presume the relevant provisions are set out in particular statutes and so on.
The Statutory Declarations Act 1938 does not deal with the question of a conflict of interest. It is standard practice on the part of solicitors that they should have no personal interest in cases where they witness or signs a statutory declaration on a client's behalf. Approximately one year ago, the Law Society wrote to solicitors, including myself, outlining the practice in this regard because it seems some people's understanding of it may have become vague with the passage of time.
If a witness makes a statement to a garda about an offence, it may well be in the interests of the garda to get the witness to make a statutory declaration to support that statement. Under section 17(2), it may be the investigating garda in question who enacts that declaration or objectively witnesses it. This seems inappropriate.
When we discussed this issue yesterday, the Minister referred to section 16(4)(a), which provides that a witness statement may not be submitted in evidence if the court decides “having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted”. If judges are to take that subsection into account, they will have to rule out any statutory declaration made according to the provisions of section 17 and perhaps section 18.
It is obvious there is a conflict of interest and that section 17(2) allows for a questionable way of securing a statutory declaration. I ask the Minister to reconsider. A peace commissioner could surely be authorised to sign off on such declarations as they do in the case of other declarations. I am not sure how it is done in other legislation but perhaps something could be included in the Bill to say what categories of persons may witness a person's statutory declaration, including not only solicitors and commissioners for oaths but also peace commissioners and others included in other legislative provisions. The Passport Office, for example, has a list of persons who may be witnesses to declarations. It would not be difficult for a garda to say that a declaration must be made and that it may be witnessed by certain categories of persons. Section 17 is flawed and any declaration made under it will not be worth the paper on which it is written. Any judge would rule out such a declaration because of the conflict of interest it involves.
I second the amendment. I have something of a Machiavellian interest in it because it deals with such matters as conflict of interest, validity of statements and so on. In addition to supporting this important amendment, I wish to afford the Minister an opportunity, if he so chooses, to revisit my amendment No. 5, which relates to the video taping of the taking of samples. I was 30 seconds late in moving the amendment because I had to take a telephone call. It relates to the same area of principle as Senator Tuffy's amendment. The Minister said yesterday he might look at this issue again. He seems willing to accept amendments and we are galloping ahead at an unprecedented rate.
Members have canvassed an interesting point in regard to these amendments. This section follows the Canadian model and provides that a judge can take into account where inconsistent statements are subsequently withdrawn. It is important that there should not be impediments in this regard.
I can see, as Senator Tuffy said, that solicitors will make an argument when the witness is hostile regarding the statement he has made and anything that might compromise it. There are practicalities involved also and it is not always easy to get a peace commissioner to attend when a witness is making a statement. Generally they are made in Garda stations. We should try to protect section 16 because it is important and may prove effective in tackling organised crime where intimidation of witnesses can occur.
If a garda other than the garda in charge of the case against the defendant took the witness statement in the station it could be argued there is not the same conflict of interest, in inverted commas. I have difficulty with this idea of a conflict of interest. The Garda exists to represent the State and society generally. It is the Office of the Director of Public Prosecutions that brings the case against the defendant with the garda, often, as a witness. Perhaps there should be a distinction made between the garda in charge of the case against the defendant and other gardaí in the station. I would hate to think that section 16 could be undermined by interpretations made subsequent to the passing of the Bill.
I am grateful to Senator Norris for the invitation to be disorderly and deal with his unmoved amendment. The issues that he raised can be dealt with by custody regulations made under the Criminal Justice Act 1984. Senator Norris is raising ways it can be proved beyond contradiction the taking of a sample was done in a lawful way. The majority of people will be happy to provide a DNA sample when asked to do so by running a swab inside the cheek. To put in place a requirement that all this must be done before a camera may be unnecessary with regard to cooperative witnesses. As I said, this can be dealt with by way of regulation.
The effect of the amendments raised by Senator Tuffy is to remove subsection (2) from section 17 and subsection (3) from section 18, the purpose of which is to extend the power to receive statutory declarations to members of the Garda Síochána and the employees of public authorities. Removing the two subsections would defeat the purpose of the sections and they would become redundant. The sections would then only provide that a person who makes a statement to a garda or an employee of a public authority could make a statutory declaration. A peace commissioner or commissioner for oaths would need to be brought in to receive the declaration and there is nothing to prevent this from happening at the moment. If the Garda really want commissioners for oaths present they will be asked to come in.
Section 17 extends the power to receive statutory declarations to members of An Garda Síochána while section 18 extends the power to receive statutory declarations to competent persons who are defined as the employees of a wide range of public authorities. Section 1 of the Statutory Declarations Act 1938 envisages that persons other than notaries, commissioners for oaths and peace commissioners might be designated by law to receive statutory declarations and sections 17 and 18 do this. The reason for the inclusion of these sections is that section 16(2) refers to statements made on oath or affirmation containing a statutory declaration or in circumstances where the witness understood the requirement to tell the truth and contains no limitation on to whom the statement must be made.
The extension of the power to receive statutory declarations to the Garda Síochána in section 17 and all public authorities in section 18 flows from section 16(2)(c). It means there is a mechanism that can be used by the Garda and public authorities, for example the Revenue Commissioners, immigration officers, the Passport Office and so on. Investigative agencies will know that people making statements to them should understand the requirement to tell the truth, that these are not simply casual conversations where people can lie, or not, as suits.
Sections 17 and 18 simply allow the Garda and the employees of public authorities to receive statutory declarations. In the event that a statement contained in a statutory declaration is subsequently relevant to criminal proceedings and is recanted it will be a matter for the court to decide, within the parameters set out in section 16, whether it should be admitted.
A high threshold is set out in section 16 for the admissibility of a statement that has been recanted. The section requires the court to subject a statement that has been recanted to a series of tests before making a decision on whether it should be admitted. It can only be admitted if the person who gave it is available for cross examination and the witness confirms or it is otherwise proved that he or she made it. The court must also be satisfied that direct oral evidence of the fact concerned would be admissible in the proceedings, that the statement was made voluntarily and that it is reliable.
Furthermore, in order to be deemed admissible, the court must be satisfied that either the statement was given on oath or affirmation or contained a statutory declaration by the witness that the statement is true to the best of his or her knowledge or belief or the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. Section 16(4) provides that if the court is of the opinion, having regard to all the circumstances, that the admission of a statement would not be in the interests of justice it should not be admitted. It will be clear from the tests built in to section 16 that a statement containing a statutory declaration is not decisive when a court is deciding whether to admit a statement, it is simply one of a number of factors the court will take into consideration.
Senator Tuffy asserts that there is a rule of practice, in the world of lawyers, suggesting that solicitors should not act as the administrator of an oath or receive a statutory declaration relating to a matter in which he or she has a direct financial or professional interest and they should always go to another lawyer to achieve that end. That is ethical and I do not suggest it is redundant, but people dealing with agencies of the State, such as customs and excise, are in question here.
Customs and Excise officers may ask questions on where the oil in the tank of a car or heroin hidden behind a panel in a recently searched car came from. If, in those circumstances, someone makes a statement indicating who did it or who was in possession of the car and subsequently writes a statement to the that effect, containing a statutory declaration, then that statement carries more credibility than a mere conversation on a bar stool in a pub. If the person understood that he or she was making a statutory declaration and that it is an offence to tell an untruth in such circumstances, then it will help a court to decide whether that person was making a formal statement, expected to be relied on by someone else, or was simply a self-serving white lie to get out of a difficult situation. This is the line that concerns us.
I offer an example. A garda is interviewing a witness to a murder in Limerick. One of the people in the station claims to have seen AB stick a knife into the deceased. The garda asks if he is certain it was AB to which the answer is "Yes". The witness agrees to put this in writing and make a statutory declaration to that effect. It is entirely different for a person in such circumstances to recant than for a person to do so having simply made a statement to a detective in a bar.
It can be an oath, affirmation or statutory declaration or it can otherwise be given in circumstances where the court is satisfied that the statement maker knew it was important to tell the truth. I can imagine a situation in the latter category where somebody, in the course of a video-recorded question and answer interview, says he or she saw person AB stick a knife into the deceased. The detective sergeant conducting the interview would then ask if he or she was absolutely sure that it was person AB, to be told "yes". The detective sergeant would then tell the person that on the basis of the statement, members of the Garda Síochána will arrest person AB. He would ask if the statement maker was absolutely certain or had any doubts about whether it was person AB or somebody else at the scene. The statement maker says that he or she is absolutely convinced it was person AB. In certain circumstances, if there is a record of it and if the court was satisfied from what it saw that the person really knew the import of what he or she was saying, that it would be taken seriously and would be a serious matter to send members of the Garda Síochána on a false trail, that clause could kick in.
We are leaving it to the courts in the last analysis to decide whether a statement was made with such premeditation and formality that the maker knew that what he or she was saying would be relied on and that he or she had an obligation to tell the truth. Obviously, where an oath, affirmation or statutory declaration is concerned, there is an automatic obligation to tell the truth because one commits an offence if one says something false in that context.
We must remember that making a false report and accusing somebody of committing a crime is itself a crime if it is done with malice or with the knowledge that it is not true. If one goes into a Garda station and declares that one saw another person commit a serious offence, that is a false report and it is a serious crime to lie to a sergeant and then wander out of the station, knowing that it will have consequences. The Garda Síochána will pursue people for so doing.
The purpose of this section is to state that we must differentiate between remarks people might make by way of deception in order to exculpate themselves, to throw somebody off the scent or to impress somebody and statements made by people who sit down at a table and put themselves on the line by saying "that is what happened". It is in that latter category that the real scandal arises if somebody, having given a lengthy and vivid account of an incident in writing and having signed it, or it having been video recorded, says six months later to a jury, "I have no idea why I said that and am not standing over it at all". In certain circumstances, the jury is entitled to examine the original matter and declare that it prefers the original to what it is hearing in court.
Senator Tuffy asked if judges would automatically strike down statutory declarations taken by gardaí in these circumstances. I would certainly hope not because there is nothing inherently unfair about it. It is just a degree of formality which exists. Statements made under section 21 of the 1984 Act are relevant in this context. For those who are not familiar with that Act, providing a witness statement is made in a certain format, it can be handed into a jury without producing the deponent at all, if there is no objection from the accused. It is not always necessary, for instance, to produce the garda who preserved the scene in court. If he or she made a section 21 statement confirming that he or she stood beside the body from 6 a.m. to 4 p.m. until the State pathologist arrived and nothing happened to the body, that can be handed in to the jury. If it is tendered in writing, with a subscript declaring that the garda makes this statement, knows it to be true and that if anything in it is false, he or she will be liable to be prosecuted, should it be tendered in a trial, that statement becomes admissible evidence. There is nothing novel about that. Furthermore, that statement does not have to be made to a commissioner for oaths, a solicitor or somebody who is independent of the investigation. It is simply there and admissible as evidence with that particular proposition added to it at the end.
I strongly suggest we should leave the text as it is. This is an effort to make statements which are intended by the maker to be relied on by other people and are made in a context whereby the maker knows that it is important to be truthful, and prima facie capable of being used in the circumstances set out in section 16.
I forgot to mention earlier that I have a personal interest in this area in that I am a solicitor ——
I do not begrudge the Senator her fees.
However, I have not signed a statutory declaration in many months. I am winding down my work as a solicitor at present but I could benefit from this legislation in the future.
I still have a problem with this section. The Minister has referred to the 1938 Act which provides for different people to take these types of declarations. However, I do not think that the Act envisages that the people taking such statements would be directly involved in the particular case. The member of the Garda Síochána is involved and is probably the person to whom the statement was made. He or she is also trying to solve the crime and will be giving evidence in court. Therefore, he or she has an interest in the statement being made. That raises the issue of a conflict of interest and places a question mark over the statement. While the issue of ethics arises, the main question is whether the statement is worth the paper it is written on. It places a question mark over the statement and the person concerned can argue against it. Given that judges are former solicitors or barristers, I believe they will find it difficult to accept these declarations.
The legislation provides that a person may give a declaration but it does not specify at whose behest. It is obvious that a garda would be looking for a statutory declaration to be made to back up a statement that has been given to him or her. We are all aware that problems can arise in such circumstances. While that is not true in the majority of cases, there have been problems regarding statements in the past. Statements given by witnesses can be problematic. I read the Dáil debate on this legislation and Deputy Costello gave the example of the Kerry babies case, where a sister of Joanne Hayes made a statement about events which was not true. It can happen that people who are witnesses, even if they are not the accused, can give statements that turn out to be untrue. Obviously, for people who are vulnerable, dealing with gardaí is very stressful. One must always examine a statement on its own merits.
In terms of the statement and given what the Minister said about section 21 of the 1984 Act, what is provided for there is not covered under the Statutory Declarations Act 1938. It is not a statutory declaration, an oath or an affirmation, rather a person is simply given a certain degree of extra protection through the making of a statement. The Minister could have made provision for such a measure in this legislation.
The Minister appears to suggest that the fact that a person would have to make a statutory declaration would make him or her more fearful of giving an incorrect statement in the first place, but the statutory declaration is given after the event. The person concerned makes a statement and it should stand on its own merits or otherwise.
As to the provision for the making of a statutory declaration to shore up a statement, the process must be done in an independent way. That is not what the Minister is providing for in this section. He could have broadened the measure by providing for the involvement of one of a list of people such as a priest or a teacher. Such a person would be in a position to make the individual concerned understand that the declaration is a serious matter, the signing of which involves a formality. However, I am not sure the person concerned will take the matter seriously if the garda who took his or her statement then takes his or her statutory declaration, as if the person concerned is somehow removed from it. I do not believe such a declaration would stand up or be worth the paper it is written on. I do not accept what the Minister has said on this amendment.
Does the Minister wish to respond?
No, I am exhausted at this point.
Is the amendment being pressed?
Yes.
Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 31; Níl, 19.
Tá
- Brady, Cyprian.
- Brennan, Michael.
- Callanan, Peter.
- Cox, Margaret.
- Daly, Brendan.
- Dardis, John.
- Dooley, Timmy.
- Feeney, Geraldine.
- Fitzgerald, Liam.
- Glynn, Camillus.
- Hanafin, John.
- Kenneally, Brendan.
- Kett, Tony.
- Kitt, Michael P.
- Leyden, Terry.
- Lydon, Donal J.
- MacSharry, Marc.
- Mansergh, Martin.
- Minihan, John.
- Mooney, Paschal C.
- Morrissey, Tom.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Rourke, Mary.
- O’Toole, Joe.
- Ormonde, Ann.
- Phelan, Kieran.
- Scanlon, Eamon.
- Walsh, Jim.
- Walsh, Kate.
Níl
- Bannon, James.
- Bradford, Paul.
- Browne, Fergal.
- Burke, Paddy.
- Burke, Ulick.
- Coghlan, Paul.
- Coonan, Noel.
- Cummins, Maurice.
- Feighan, Frank.
- Finucane, Michael.
- Hayes, Brian.
- Henry, Mary.
- McHugh, Joe.
- Norris, David.
- O’Meara, Kathleen.
- Phelan, John.
- Ross, Shane.
- Terry, Sheila.
- Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Norris and Tuffy.
Question declared carried.
Amendment declared lost.
Amendment No. 7 not moved.
Amendments Nos. 8 and 9 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 8:
In page 41, line 28, after "person" to insert the following:
", where the permission of that person has been obtained".
These amendments refer to a person encroaching or trespassing on a person's land, for example, a person hunting with guns. At the moment, if a farmer calls the Garda to complain about such encroachment, he or she will be informed that it is a civil matter. The Minister stated that a person can only shoot on specific lands other than his or her own. This would cover the issue. The Minister went some way towards clarifying the matter yesterday but can he confirm that the gun licence will contain details about the specific lands on which someone can shoot other than his or her own? This would solve the current problem whereby a farmer complaining about someone trespassing on his or her land is told that it is a civil matter and confirm that it will be an offence to carry guns on other people's property.
I second the amendment.
Amendments No. 8 and 9 are amendments to section 30 of the Bill, which deals with the new section 3 of the Firearms Act 1925 and provides for the formal effect of firearms certificates. Amendment No. 8 proposes the insertion where the permission of the person has been obtained in subsection 6(b) where a limited certificate for a shotgun is being sought. In this respect, I can confirm to Senator Cummins that under subsection 11(a) of the new section 3, a limited certificate relating to land occupied by a person other than the applicant for the certificate shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate. Therefore, the person must have a written nomination from the occupier of the land.
Amendment No. 9 proposes that a person who uses or attempts to use a firearm on land occupied by another person without the consent of the owner shall be guilty of an offence and that a firearms certificate can only be granted for shooting on specific lands or for specified purposes. Where the prior consent of the owner of the land is not given, no certificate will normally issue. A gun club occasionally has permission to go across lands which are not mentioned in the firearms certificates of the club members.
A separate firearms certificate is issued in respect of each firearm and every firearms certificate specifies the conditions under which the firearm is to be used. Where it is to be used for the purpose of shooting over lands, the lands in question are normally specified, except in cases relating to gun clubs to which I have referred. Where a person uses his or her firearms for a purpose other than that stated in the certificate or on lands other than those specified in the certificate, he or she is, subject to what I have just stated, using the firearm otherwise than as authorised by the certificate. Under section 2, subsection (2) of the Firearms Act 1925, as amended, any person who has in his or her possession, uses or carries any firearm without holding a certificate therefor or otherwise than as authorised by such certificate shall be guilty of an offence.
Section 27 deals with an increase in penalties for offences under section 2 of the 1925 Act. Under this new section, any person found guilty of an offence under section 2, such as using a firearm otherwise than as authorised by the firearms certificate, will be liable on summary conviction to a fine of up to €5,000, or 12 months imprisonment or, on conviction on indictment, a fine of €20,000 or seven years imprisonment.
I have dealt with the points raised by Senator Cummins. It is not wise to make it an absolute rule that a person who uses or attempts to use a firearm on land occupied by another where the occupier has not given his or her permission for the use of a firearm is guilty of an offence. For example, if someone went on commonage beside his or her land and was not in a position to establish who was the occupier or where the permission lay, he or she might find himself or herself in a spot of bother. It might be slightly over the top to sentence that person to five years imprisonment on indictment for that particularly heinous crime. I believe the position is sufficiently covered.
I thank the Minister for clarifying the matter.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Amendments Nos. 10, 11, 13 to 15, inclusive, 17, 18, 19, 21, 22, 23, 25, 26, 27, 29, 30, 31, 33, 34, 35, and 37 to 40, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 10:
In page 54, lines 19 to 21, to delete all words from and including "term" in line 19 down to and including "and" in line 21 and substitute the following:
"term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and".
This looks like a massive raft of amendments but it is not as intimidating as it appears. The Bill as it stands provides a range of maximum and mandatory minimum sentences in respect of certain firearms and drugs offences. In deciding whether it would be just to impose a mandatory minimum sentence in all circumstances, there are a number of factors that the court must take into account, including whether the convicted person pleads guilty, materially assists in the investigation of the offence or has previous convictions for firearms or drugs offences.
The Bill provides that these matters may only be taken into account in circumstances where a first offence is concerned. However, when the draftsman examined her handiwork, she noticed a concern, namely, whether it could be argued that the relevant provisions of the Bill as currently drafted could have the effect of not allowing the court to impose the maximum sentence provided for in respect of a second or subsequent offence. While they will probably never be construed in such a way, to be 100% sure about no one being able to argue that we created a loophole, the draftsman noticed this possible interpretation at a late stage.
The amendments I have proposed make it clear that where second or subsequent offences are concerned, the court, while being obliged to impose the mandatory minimum sentence, may also impose the maximum sentence provided for. Where life is the maximum sentence, nothing in the amendment's earlier draft could be construed as stating that life was no longer the maximum sentence for these offences.
I welcome the Minister's amendments. We raised this matter via a number of amendments on Committee Stage, as we were concerned that extraneous circumstances other than a first conviction could be the case. Consequently, a number of our amendments were to insert "only" in several areas of the Bill. We welcome that the Minister has taken on board what we said on Committee Stage and compliment him on changing the Bill to cater for our proposals.
On amendments Nos. 38 and 39, it does not appear that the paragraph would make sense upon removing the word "who". One could remove "who is" or there would be nothing wrong with leaving "who". If "who" is removed instead of "who is", it will read a person "is convicted of a second or subsequent offence" and lead into "shall be sentenced", which would be changed as a result of the Minister's amendment on the mandatory minimum sentence.
Anything that clarifies the mandatory minimum sentence is welcome. On Second Stage, we spoke about the need to increase the number of cases in which the sentence is applied from 16 out of 76. We must know that the sentence is seriously taken on board by the Judiciary and I hope that any further reviews will show the proportion has significantly increased from 20%. Indeed, we could have the converse, that is, applying it in 80% of cases and using discretion in the remaining 20%.
I am grateful to the Senator for pointing out the difficulty, but amendment No. 37 in my name addresses the top line on page 87 and would change that part of the Bill to read "where a person". I agree that amendment No. 38 looks strange, but it must be examined in the context of the full set of amendments.
Amendment agreed to.
Government amendment No. 11:
In page 55, line 20, to delete "Subsections (2)" and substitute "Subsections (4)".
Amendment agreed to.
Amendments Nos. 12, 16, 20, 24, 28, 32 and 36 are cognate and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 55, line 21, after "effect" to insert "only".
These amendments have been addressed by the Minister's statements on previous amendments, which clarified the position on mandatory sentences. We are prepared to withdraw the amendments.
I second the amendment.
I was about to accept the amendments.
Did the Minister not address them?
No. I generously yielded the right of way to the Senator.
I believed our amendments addressed the same point as a number of other amendments, as they deal with extraneous circumstances.
I accept amendment No. 12 and will accept amendments Nos. 16, 20, 24, 28, 32 and 36.
Amendment agreed to.
Government amendment No. 13:
In page 55, to delete lines 28 to 39 and substitute the following:
"(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 26, 27, 27A or 27B of the Firearms Act 1964 or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 14:
In page 63, lines 15 to 17, to delete all words from and including "term" in line 15 down to and including "and" in line 17 and substitute the following:
"term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and".
Amendment agreed to.
Government amendment No. 15:
In page 64, line 19, to delete "Subsections (2)" and substitute "Subsections (4)".
Amendment agreed to.
I move amendment No. 16:
In page 64, line 20, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 17:
In page 64, to delete lines 27 to 39 and substitute the following:
"(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 27, 27A or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 18:
In page 65, lines 17 to 19, to delete all words from and including "term" in line 17 down to and including "and" in line 19 and substitute the following:
"term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and".
Amendment agreed to.
Government amendment No. 19:
In page 66, line 19, to delete "Subsections (2)" and substitute "Subsections (4)".
Amendment agreed to.
I move amendment No. 20:
In page 66, line 20, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 21:
In page 66, to delete lines 27 to 39 and substitute the following:
"(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27A or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 22:
In page 67, lines 7 to 9, to delete all words from and including "term" in line 7 down to and including "and" in line 9 and substitute the following:
"term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and".
Amendment agreed to.
Government amendment No. 23:
In page 68, line 9, to delete "Subsections (2)" and substitute "Subsections (4)".
Amendment agreed to.
I move amendment No. 24:
In page 68, line 10, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 25:
In page 68, to delete lines 17 to 28 and substitute the following:
"(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 26:
In page 69, lines 5 to 7, to delete all words from and including "term" in line 5 down to and including "and" in line 7 and substitute the following:
"term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and".
Amendment agreed to.
Government amendment No. 27:
In page 70, line 7, to delete "Subsections (2)" and substitute "Subsections (4)".
Amendment agreed to.
I move amendment No. 28:
In page 70, line 8, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 29:
In page 70, to delete lines 15 to 26 and substitute the following:
"(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27A of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 30:
In page 72, lines 37 and 38, to delete all words from and including "term" in line 37 down to and including "and" in line 38 and substitute the following:
"term as the court may determine, subject to subsections (9) to (11) of this section or, where subsection (13) of this section applies, to that subsection, and".
Amendment agreed to.
Government amendment No. 31:
In page 73, line 41, to delete "Subsections (7)" and substitute "Subsections (9)".
Amendment agreed to.
I move amendment No. 32:
In page 73, line 42, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 33:
In page 73, to delete lines 49 and 50 and in page 74, to delete lines 1 to 9 and substitute the following:
"(13) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act or section 26, 27A or 27B of the Firearms Act 1964,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.".
Amendment agreed to.
Government amendment No. 34:
In page 86, to delete lines 17 to 19 and substitute the following:
"(ii) by the substitution of the following paragraph for paragraph (a):
"(a) to imprisonment for life or such shorter period as the court may determine, subject to subsections (3B) to (3CC) of this section or, where subsection (3CCCC) of this section applies, to that subsection, and”,”.
Amendment agreed to.
Government amendment No. 35:
In page 86, line 41, to delete "Subsections (3A)" and substitute "Subsections (3B)".
Amendment agreed to.
I move amendment No. 36:
In page 86, line 42, after "effect" to insert "only".
I second the amendment.
Amendment agreed to.
Government amendment No. 37:
In page 87, line 1, to delete "A person" and substitute "Where a person".
Amendment agreed to.
Government amendment No. 38:
In page 87, line 3, to delete "who".
Amendment agreed to.
Government amendment No. 39:
In page 87, line 6, to delete "who".
Amendment agreed to.
Government amendment No. 40:
In page 87, to delete lines 9 and 10 and substitute the following:
"the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years.".
Amendment agreed to.
Government amendment No. 41:
In page 128, line 36, to delete "educational" and substitute "education".
This a technical amendment to correct a spelling mistake.
Amendment agreed to.
I move amendment No. 42:
In page 164, between lines 25 and 26, to insert the following:
"197.—Section 13 of the Criminal Law (Insanity) Act 2006 is amended—
(a) by the deletion of subsection (1), and
(b) by the renumbering accordingly, of subsections (2) to (10) as subsections (1) to (9).”.
Senator Henry asked me to move this amendment on her behalf as she must catch an aeroplane. I previously seconded it. The amendment follows the Minister's acceptance of an amendment in the Dáil tabled by Deputy Ó Snodaigh. There was general agreement that giving permission to the Minister for Health and Children to designate certain prison centres as mental facilities was inappropriate. Having accepted the amendment, consequential changes should have flowed from it but did not. The subsection in question is, in any case, rendered redundant in light of Deputy Ó Snodaigh's amendment.
I was greatly facilitated by one of the Minister's advisers, who very helpfully gave me a copy of the principal Act. It may be helpful to put on the record the subsection being removed. Section 13(1) of the Criminal Law (Insanity) Act 2006 states, "Where a person is detained under this Act in a designated centre being a prison, the duties and powers conferred by this section and by section 14 of this Act on a clinical director shall be carried out by the governor of the prison on the advice of an approved medical officer”. The subsection is rendered meaningless by the amendment accepted by the Minister in the other House. If my memory serves me correctly he indicated he might be in a position to accept an amendment of the kind tabled. I and Senator Henry would be grateful if that were the case.
I second the amendment.
I am in a position to accept this amendment. As Senator Norris rightly pointed out, during the debate in the Dáil on the Criminal Law (Insanity) Bill I acceded to a late amendment tabled by Deputy Ó Snodaigh and supported on all sides of the House. I assumed that there would be no consequential amendments but, when it came before this House, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, noticed that there was a problem and, rather than bring it back to the Dáil — the Bill had been awaited for 20 years at that stage — we decided to pass it and avail of the first opportunity to remove the redundant and offending subsection.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank all the Members of this House for the way in which they have carefully gone through the Bill, participating in a very constructive debate on Second, Committee and Report Stages. I thank individual Members for the amendments that were accepted, and for those that were not, which nevertheless were argued for with passion and in a constructive spirit.
This is a very extensive Bill of almost 200 sections. It is designed to make our criminal law more effective but it is not, as I said on Second Stage, the be all and end all of criminal legislation. There will be more in the fullness of time and further reforms may be necessary.
I am reasonably satisfied that all of the measures provided for in the Bill are proportionate and reasonable and will greatly assist members of the Garda Síochána in dealing with the new type of crime with which they are confronted. I refer in particular to the provisions on detention periods for investigations of serious offences and to those on firearms, which are of significant topicality. Other provisions relate to anti-social behaviour, the preservation of crime scenes and investigative procedures and there are general amendments to the criminal law which will be most valuable.
I echo what I said on Second Stage. We live in a very different world from the one in which most of our criminal law originated. I was impressed by a speech by the British Prime Minister, Tony Blair, the other day. He said that, coming as he did from a legal family and being a barrister himself, he had regarded many things as immovable and unchangeable cornerstones of society. We now live in a world where we must revisit certain fundamental propositions. We live in a world in which it is not just hardened paramilitaries who stare at a point on a wall in a Garda station for 24 hours but 19 year old thugs and where significant efforts are made to destroy forensic evidence, such as by burning out cars and leaving the handguns used for murders in them.
We live in a world where people who should be willing to be witnesses, because they see with their own eyes murders committed, suddenly become cold for that purpose. We will have to recalibrate our law to deal effectively with such people. This Bill addresses that to some extent, though I do not suggest it will be easy to achieve the right balance for the next generation of reforms.
Criminal law is formal and painstaking and the requirement for proof beyond reasonable doubt is difficult but I take that as a given in a society subject to the rule of law. Equally, it is not a game of chess between lawyers. It is a life and death matter, the health of our society or its sickness are at stake. It is the difference between human rights being trampled down or not being trampled down.
The criminal justice system does not exist as the private game park for lawyers but as the possession of every citizen as a bulwark against the invasion of their rights by others. I do not endorse everything that Tony Blair has said or done. For example, we in this country are fortunate to have a constitutional obligation to allow trial by jury, which cannot just be set aside for the convenience of the Government. Likewise we have a constitutional guarantee of trial and the due course of law, in which the Judiciary is the ultimate decider of what does and does not amount to a fair trial, by reference to constitutionally guaranteed values. Having said that, in the next few years Ireland as a society will have to revisit some fairly fundamental propositions if we are to be able to stand up to the drug warlords, the people who damage our society and those for whom life has ceased to have any sanctity.
I conclude by thanking the Leader and other Members of this House for their co-operation with me and my officials in the passage of the Bill through the House. I wish to convey how hard my officials have worked on the Bill. They have worked at weekends and until the early hours of the morning on what has been by no means an easy task. The amount of work involved, even in preparing amendments to set aside the loophole identified the other day, was colossal. I pay tribute to those in the Office of the Parliamentary Counsel who worked on this legislation and legal advisers in the Office of the Attorney General who gave of their learning to ensure the Bill was as good as we could make it. Finally, I thank the Bills Office in the Houses of the Oireachtas for all the work it did to ensure that our intention as legislators was translated, as far as possible, into good law.
This is comprehensive legislation that deals with major crimes involving firearms, drugs offences and anti-social behaviour, among other things. It is an attempt, as the Minister said, to make the criminal law more effective. We all realise that Ireland is changing day by day. As such, our laws will have to be kept under constant review to keep ahead of the activities of the criminals. I am confident the Bill will assist the Garda in dealing with major crimes. Our attempt is to make the punishment fit those crimes and the Bill is a good day's work in that regard.
I join the Minister in complimenting his officials. The Bill, with over 200 sections, must have presented major headaches. I also compliment the Bills Office and all the staff involved. We have worked long hours on the Bill. Above all, I thank the Minister. He has played an important part and taken a hands-on approach to the Bill. We thank him for accepting so many amendments, which is unprecedented. The Minister is prepared to accept a good idea that will improve legislation, irrespective of from what side of the House it comes. On behalf of my party, I thank him for accepting the amendments.
Let us hope the Bill achieves what we have set out to achieve, namely, to give the Garda and all right-thinking people the tools to combat the criminals who are prevalent throughout the country and commit heinous crimes on a daily basis.
Like Senator Cummins, I welcome the passage of this comprehensive Bill, which will have beneficial effects. I am not sure whether it was Senator Henry or Senator Norris who referred to the fact that balancing in the criminal justice system is always a challenge. In this Bill we have seen a rebalancing to the extent that it is necessary, including with regard to witness statements, which if withdrawn can still be taken into account by judges, which is a measure taken from the Canadian model. Changes have also been made with regard to drugs, where a loophole was used in the past, and in the area of organised crime, where provision has been made for an offence of participation in or assisting a criminal gang. All of that is very welcome.
The Bill has been well thought-out. The Minister and his officials deserve great commendation from the House for the hard work that went into the Bill prior to it coming to the House. To be fair, the House has given the Bill a good debate. The Opposition parties tabled constructive amendments and the Minister on this occasion surpassed his own propensity to accept good ideas from wheresoever they come, which is greatly to his credit. He is a Minister with a very good grasp of his brief and the Bill. As an eminent lawyer, one would expect this of him but he also showed a disposition to amend and improve the Bill during the debate, which is to be welcomed.
While we have gone some distance in rebalancing the law, there are many advocates for the human rights of the offenders, which is as it should be. However, we need to further strengthen the human rights of victims and society generally. The Bill is a move in that direction and I would like to think future Bills will take further steps in that direction so an even better balance will be achieved.
I agree this is a very important Bill. Every Member of the House supports the Minister in his objectives. Some of us had qualms about some of the approaches but the Bill will pass. I join my colleagues in thanking the Minister. He has taken a clear and personal interest in the Bill. He has been present in the House throughout its passage and did not hand the debate to a surrogate Minister. As always, he was completely in charge of his brief and was able to illuminate certain aspects of the law. I found it a refreshing and educational experience, and there were some moments of the light banter without which Parliament would be considerably impoverished.
I join the compliments to the Minister's team, who have obviously worked extremely hard, and the Bills Office, which had to put up with amendments being fired at it from here and there during a pressurised time. I repeat that I received very gracious assistance from one of the Minister's team who gave me a copy of the original law which we were amending under Senator Henry's amendment.
A rather nasty word, "resile", has slid into common usage from legal parlance. I do not like it and believe that most who use it do not have a complete grasp of its legal meaning — I probably do not fully understand it myself. However, I was glad on this occasion to see the Minister resile a little from his initially enthusiastic endorsement of Mr. Blair, for whom I do not have an admiration, despite his legal background. I noted with some horror that Mr. Blair said that the cornerstone of British law would have to be revisited. I hope the British people have the good sense to get rid of him before he has a chance to do any more damage to fundamental principles.
I am one of the bleeding heart liberals and pointy heads — I make no apology for it. My friend, Senator Jim Walsh, referred to the offence of assisting in the commission of a crime. This is exactly what we have been doing at Shannon Airport. I am glad this is being criminalised in Irish law. I shall remember this when we come to consider rendition.
Will the Senator resile?
I will not resile. I congratulate the Minister and his team on the passage of the Bill. I thank him for the courtesy he has, as usual, shown to the Seanad, and for being present throughout the debate and answering all the questions. Even if questions were tedious and ill-informed, he was always courteous. I learned a good deal during the progress of the Bill. I hope it will achieve the effects the Minister, his advisers and the House wish for, namely, that crime can be fought and that ordinary, decent people are permitted the enjoyment of their lives as citizens of this country.
Like other Members, I thank the Minister for successfully bringing the Bill through the House, and thank his staff and the Bills Office. We read every day of the shortcomings in trying to bring to justice those who flagrantly blackguard our laws. The Bill will go some way to addressing that problem and will help gardaí to successfully bring criminals before the courts. In that, it is a good day's work.
I thank the Minister and his staff. I am particularly grateful that the Minister will allow the Bill to return to the Dáil, thereby allowing Members to table amendments that could be accepted by the Minister, which he duly did in some cases. This is particularly welcome as it was not expected. I presumed we would be told we could not have amendments accepted because the Bill would not go back to the Dáil. I am pleased this is not the case.
I would like to reiterate some of the points I made with regard to anti-social behaviour orders. I am in favour of the orders but it is important that we review the legislation and that within a couple of years we would consider introducing an anti-social behaviour Bill, such as that introduced in Scotland in 2004. If we do this we will consult communities. The Minister spoke about the NGOs and the "pointy heads", on which I will not comment. The Law Reform Commission does great work but often bases its papers on certain groups. The usual groups consulted make submissions while the views of communities are not necessarily heard. It is important to consult communities if this legislation is to be reviewed. People in communities have to deal with anti-social behaviour. It is not an us versus them situation. They want the young people in their areas to succeed and do not want them to be involved in crime. They want it to be nipped in the bud. People often say that if one does something about the young child who is lighting fires in the local park, one might prevent him or her from going on to commit worse crime. There is a positive aspect to anti-social behaviour orders because they do not necessarily criminalise people. Hopefully they would stop people from getting involved in criminal behaviour.
Local authorities need to be given a more important role. They should have been able to get anti-social behaviour orders and we need to introduce this in the future. There will be teething problems. The Scottish legislation introduced interim ASBOs and we may need to examine that here. One of the difficulties found by the reviews was that it took a long time, numerous court days, to get an anti-social behaviour order. Interim ASBOs would be one way to address that. We need statistics on anti-social behaviour similar to those the Minister is building up on crime. We will need statistics on the ASBOs made, the outcome and so on. Politicians and people such as the Ombudsman for Children can use that kind of information for review. People may revise their views on how they work as a result.
The Labour Party raised points with which the Minister was sympathetic. In the other House questions were asked about how to facilitate community fireworks and there is an issue there. We must address the fact that people buy fireworks in the North and use them here illegally. We must bring in a workable law on this. Yesterday the Minister mentioned reopening cases where a person is acquitted of serious crime. I hope the Minister finds a way of dealing with that issue. I do not agree with the qualification in the legislation on the age of culpability for children. The Minister should have stuck with what his Government introduced initially. Perhaps the child protection committee could review that. It is an unnecessary move and the Minister should reconsider it.
As Leader, I thank the Minister and his officials for their constant presence. I cannot think of another Minister, aside from myself when I held ministerial office, who came to the House and stayed for the duration. I admire his steady spirit and his imaginative intellect, and if he ever wants a second I will be in his corner, if that is any good to him.
I thank the Leader.
I, too, welcome the passing of the legislation and offer our sincere thanks to the Minister, his officials and all personnel in this Chamber.
We are like a chorus.
It is great to see Members of all parties and none give their co-operation and strength to the Minister in the legislation he has brought before this House. It is great to see the high esteem in which the Minister is held by all Members of this House. We thank him sincerely for this legislation and wish him well for the future.
Senator Brennan will be in the Minister's corner with me.
Question put and agreed to.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.