I move amendment No. 13:
In page 16, subsection (2), line 45, after "authorised officer" to insert "appointed under section 9".
SECTION 10.
Amendment agreed to.
I move amendment No. 14:
In page 17, subsection (2), line 2, after "authorised officer" to insert "; subsection (11) of that section shall apply for the purposes of the said subsection (10) as applied by this section".
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 and 12 agreed to.
SECTION 13.
Amendment No. 15 is in the name of the Minister. Amendments Nos. 16, 17 and 18 are related; amendments Nos. 15, 16, 17 and 18 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 19, subsection (1), line 1, after "meter" to insert "(without prejudice to the application of paragraph (a) to such a thing)".
These amendments relate to section 13 of the Bill. This section provides for the creation of offences and associated penalties relating to the theft of electricity and gas. The existing legislation relating to this subject in so far as electricity is concerned, section 10 of the Larceny Act, 1916, is being repealed by section 23 of the Bill.
The problem of larceny of electricity has been a major concern for the ESB for many years. It is estimated that the total revenue lost each year due to theft amounts to £2 million. These losses have to be borne by the remaining honest customers. Criminal prosecutions are at present instituted under section 10 of the Larceny Act, 1916, as amended by section 6 of the Electricity (Supply) (Amendment) Act, 1942. However, major loopholes were uncovered in this legislation which has resulted in defendants in apparently strong cases being acquitted. As a consequence, many apparently strong cases are no longer prosecuted.
Section 13 (7) prescribes the penalties for the various offences created under section 13. The penalty for using electricity or gas dishonestly, causing it to be wasted or diverted, for interfering with the meter, etc., or for manufacturing, importing, selling, etc. a thing to alter a meter or prevent a meter registering is a fine of up to £1,500, up to 12 months imprisonment or both on summary conviction, or a fine of up to £20,000, up to five years imprisonment or both on conviction on indictment. The penalty in the case of a person who has reason to believe a meter is not functioning properly because it has been interfered with and who does not take reasonable steps to stop the interference is a fine of up to £500, up to three months imprisonment or both for a first offence or a fine of up to £1,000, up to six months imprisonment or both for every subsequent offence.
Amendment No. 15 is drafting amendment. Amendment No. 16 is necessary to ensure that, for example, an ESB or BGÉ official who takes possession of a device found attached to a meter, or a member of the Garda Síochana who has possession of a device pending a trial, are not committing an offence. In other words, they cannot be accused of stealing the device.
A device may be designed or adapted to interfere specifically with an ESB or BGÉ meter or may be designed or adapted to interfere with an electricity or gas meter. The Bill, as drafted, only covers the former situation but amendment No. 17 will ensure that the Bill covers both situations.
As drafted, the Bill empowers a court to order the offender to pay the ESB or BGÉ compensation for the power used or for any damage done to any meter, etc. Amendment No. 18 will empower the court to order compensation for either or both of these situations.
How many cases are involved here? Are they commercial as opposed to domestic cases?
I do not have a detailed breakdown on that but the ESB estimates that about £2 million worth of electricity would be stolen in any year. I am aware it has failed to deal with these effectively in the courts in domestic cases where it does not have the right of entry — a further amendment will deal with that situation — and it cannot effectively prosecute people it knows are stealing electricity. We are trying to correct that, which is in the interests of all the other customers who have to pay for that stolen electricity because it has to be paid for.
People were fined heavily for this in the courts many years ago. How is it that, with all this technology, £2 million worth of electricity can still be stolen?
This technology is available to the thieves as well.
I know that.
This section and the amendments related to it will give powers to the ESB and BGÉ; gas can also be stolen. I do not want to give the impression that everybody in the country is stealing electricity or gas. Only a small proportion of the total customers, whether commercial or domestic, are dishonest and the other customers have to pay for them. This problem is well known to the ESB and it has quantified the amount being stolen but it has been unsuccessful in court recently because loopholes were found in the existing legislation allowed people to get off. For example, if an ESB man sees something stuck on a meter, he cannot take it away. He has to get a warrant to come back before he can remove it and, of course, it will be gone when he comes back. However, I will deal with that matter in more detail in the next amendment.
Do we know the number of instances and are there specific areas that are badly affected?
It seems this section is dealing only with consumers; I do not see anything there covering staff or contractors. This section may be in conflict with existing strict ESB regulations pertaining to staff operations. We may be creating a loophole there which might not be advisable.
This section is closing loopholes rather than creating them. The Deputy is correct in saying there is a strict regime for ESB operatives and contractors. This amendment is trying to close loopholes where some consumers are currently stealing electricity and gas and effectively cannot be prosecuted. I presume I would have the support of the House for that general principle. We are discussing how it might be applied.
Is the Minister satisfied that we are not creating a conflict in law between the law for the consumer and that for staff?
My advice says we are not doing that and I am satisfied there will be no such conflict.
Amendment agreed to.
I move amendment No. 16:
In page 19, subsection (5), line 39, after "who" to insert ", without lawful excuse,".
Amendment agreed to.
I move amendment No. 17: In page 20, subsection (5), line 7, before "shall" to insert "(whether the thing is specifically designed or adapted to achieve such an effect only as respects a meter owned by or under the control of a body aforesaid or not".
Amendment agreed to.
I move amendment No. 18:
In page 20, subsection (8) (a), line 45, after "Éireann" to insert "either or both of the following".
Amendment agreed to.
Section 13, as amended, agreed to.
NEW SECTION.
I move amendment No. 19:
In page 21, before section 14, to insert the following new section:
"14. —(1) Each of the following, namely the Electricity Supply Board and Bord Gáis Éireann may appoint such and so many of its employees as it considers appropriate to authorised officers for the purposes of this section.
(2) A person appointed under sub-section (1) shall, on his or her appointment, be furnished by the Electricity Supply Board or Bord Gáis Éireann, as the case may be, with a certificate of his or her appointment and when exercising a power conferred by this section shall, if requested by any person thereby affected, produce such certificate to that person for inspection.
(3) Subject to subsection (4), an authorised officer who suspects with reasonable cause that an offence under subsection (2), (3), (5) or (6) of section 13 has been or is being committed on or in any land, premises or vehicle (being an offence that concerns the body referred to in subsection (1) which appointed the particular authorised officer) may—
(a) enter the land or premises or, as the case may be, halt (if necessary) and board the vehicle and require the driver (if any) of the vehicle to take it to a place designated by the authorised officer (and such a vehicle may be detained at that place by the authorised officer for such period as he or she may consider necessary for the purposes of this subsection),
(b) search the land, premises or vehicle and seize any thing he or she finds there on or therein (being a thing referred to in subsection (5) of section 13 or which is evidence of, or evidence related to, the commission of an offence under that subsection or subsection (2), (3) or (6) of the said section, as the case may be).
(4) The powers of an authorised officer under subsection (3) may only be exercised in respect of a dwelling or so much of a vehicle or premises as constitutes a dwelling where the authorised officer has reasonable cause to suspect that, before a warrant could be sought in relation to the dwelling under subsection (5), any thing referred to in subsection (3) (b)—
(a) is being destroyed, disposed of or removed from the premises or vehicle, or
(b) is likely to be destroyed, disposed of or removed from the premises or vehicle.
(5) (a) Where an authorised officer in the exercise of his or her powers under this section is prevented from entering any land or premises or if an authorised officer has reason to believe that evidence of or related to a suspected offence under subsection (2), (3), (5) or (6) of section 13 may be present on or in any land or premises and that the evidence may be removed therefrom or destroyed or disposed of, the authorised officer or the body by whom he or she was appointed may apply to a judge of the District Court for a warrant under this subsection authorising the entry by the authorised officer onto or into the land or premises.
(b) If on application being made to him or her under this subsection, a judge of the District Court is satisfied, on the sworn information of the applicant, that the authorised officer concerned has been prevented from entering land or premises as aforesaid or that the authorised officer has reasonable grounds for believing the other matters aforesaid, the judge may issue a warrant under his or her hand authorising that officer, accompanied, if the judge deems it appropriate so to provide, by such number of members of the Garda Síochána as may be specified in the warrant, at any time or times within 1 month from the date of the issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, the land or premises concerned and exercise the powers referred to in subsection (3) (b).
(c) In this subsection ‘premises' includes so much of a vehicle as constitutes a dwelling.
(6) A person who—
(a) refuses to allow an authorised officer to enter any land or premises or board a vehicle in the exercise of his or her powers under this section, or
(b) obstructs or impedes an authorised officer in the exercise of his or her powers under this section,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both,
(ii) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 3 years or to both.
(7) Subsection (10) of section 13 shall apply to an offence under subsection (6) as it applies to an offence under the said section.
(8) (a) The powers conferred by the preceding provisions of this section are not in substitution for any other powers standing conferred on an officer or employee of a body referred to in subsection (1), a member of the Garda Síochána or any other person by virtue of section 108 of the Electricity (Supply) Act, 1927, or any other enactment in force immediately before the passing of this Act, or of any rule of law.
(b) A person who enters any premises pursuant to subsection (2) of section 108 of the Electricity (Supply) Act, 1927, shall have the same power to seize anything referred to in subsection (3) (b) which he or she finds on the premises in the course of exercising any power conferred on him or her by the said section 108 as an authorised officer has under the said subsection (3).
(9) (a) Any thing seized by an authorised officer under subsection (3) or by a person under subsection (8) (b) may, subject to the provisions of this subsection, be detained by that officer or the person by whom he or she is employed and either destroyed or disposed of in such manner as he or she thinks appropriate.
(b) A thing detained as aforesaid shall not be destroyed or disposed of under this subsection—
(i) in case an application is made under paragraph (c) in relation to the thing, save under and in accordance with an order of a judge of the District Court under that paragraph.
(ii) in case no such application is made or such an application is made but is withdrawn, before the expiration of 3 months from the date on which the thing was seized.
(c) A person who claims an interest in a thing referred to in paragraph (a) may, not later than 3 months after the date on which the thing was seized, apply to a judge of the District Court for the District Court district in which the seizure was effected for an order directing the return to that person of the thing or, as the case may be, enabling that person to exercise the rights in or over the thing which he or she was entitled to exercise immediately before the seizure and the said judge of the District Court shall, on the hearing of the application—
(i) determine whether the thing is, in fact, a thing referred to in subsection (5) of section 13 or, as the case may be, a thing which is evidence of, or evidence related to, the commission of an offence under that subsection or subsection (2), (3) or (6) of the said section, and
(ii) having regard to that determination and any other relevant matters, make such order in relation to the application as he or she considers just and equitable.
(d) A judge of the District Court may adjourn the hearing of an application made to him or her under paragraph (c) until after the conclusion of any proceedings being brought for an offence under section 13 in relation to the matter concerned.
(10) In this section ‘Bord Gáis Éireann" and "Electricity Supply Board" have the same meaning as they have in section 13.".
This amendment inserts a new section into the Bill. This section provides for the power of entry into and search of premises where an offence under section 13 of the Bill is suspected. Such powers are necessary because of the inadequacy of the existing legislation. For example, section 108 of the Electricity Supply Act, 1927, does not authorise the entry or searching of premises by ESB officers for the purpose of investigating suspected offences. The existing subsection merely gives officers of the board a power to inspect apparatus for the supply of electricity by the board.
It is clearly necessary that both ESB and BGÉ should be in a position to prove offences by admissible evidence obtained by their appointed officers. Without having such a power to enter and search, the evidence of such officers will be inadmissible in many cases.
Many of the cases of stolen electricity or gas are discovered in an accidental way by board officers performing their normal functions who simply come across theft. It would be impractical for such officers to withdraw to secure a warrant to conduct a search and thoroughly investigate the theft as the evidence would be removed before the warrant could be executed. Without these powers, it is unlikely that the ESB or BGÉ would have any success in prosecuting theft of electricity or gas because without them there will simply not be admissible evidence to sustain prosecutions of any cases.
There are many statutory provisions already in existence which authorise entry without warrant, for example, section 94 of the Health Act, 1947, section 26 of the Finance Act, 1926, and section 24 of the Firearms Act, 1925. In the recent Social Welfare (Consolidation) Act, section 212 empowers inspectors to enter premises and inspect records.
In a situation like this which is giving specific powers, with which I agree, I presume more than one person would be carrying out this type of activity on behalf of a State agency. It would be advisable to have enshrined by way of regulation that no single individual will have to carry out this kind of investigation.
I would see it as a great difficulty and handicap to the enforcement of legislation if an ESB meter reader who sees electricity being stolen in a house could not take the evidence on the spot. The Deputy says that he should get somebody else; he might as well get a warrant. The evidence will be gone when he comes back. It is essential we give the power to the officer who finds the theft in progress to take the evidence in hand.
This provision also refers to a search. It is not just a case of walking up to a meter and finding something on it.
The description of "search" is looking at a meter.
I would regard looking at a meter as "investigation" rather than "search".
There are all sorts of meanings to words but I am advised that we will need "search" to allow him to look at, on top of or behind the meter, etc. and take away any offending material he finds which is having the effect of stealing electricity. If he has to get another person, we will need two meter readers for every meter to make it effective and we should not ask the ESB or BGÉ to do that, or indeed anybody else who might supply electricity in the future; it might not be BGÉ or the ESB.
Are these people by passing the meter?
I do not want to give details because I do not want to encourage anybody.
We can talk about this until the cows come home, is this not what we are talking about?
The easiest way to do this is to slow down the meter. Certain devices that are put near the meter slow it down, irrespective of the amount of electricty going through.
Can some of these devices stop it?
The ESB would become suspicious if they were not using any electricity.
All these problems are not man made. The elements have a certain contribution to make and the ESB often takes a long time to find that out.
That is true as well. However, we are not dealing with that matter but with the theft of electricity. Somebody else has to deal with that problem.
I agree with Deputy Treacy on the extent of the search of a premises. Is that search confined to the area around the meter? Search of a premises suggests to me that a person can look anywhere in a house, which leaves the ESB or Bord Gáis Éireann open. Is it confined? If not, it should be.
It is not confined nor is it intended to be so. However, it will be normal practice that meters will be inside a door and in new houses, outside a door. They are, of course, on private property and the inspector would have the right to search there. He would be unlikely to be searching for another device away from the meter. Once the electricity gets by the meter, it does not matter what happens to it; it is metered. That is the essential place.
However, where there was a suspicion of a serious theft taking place, the devise might be hidden in the house; that can be done.
If the suspicion proved to be unfounded, are we now allowing operatives of the ESB or Bord Gáis Éireann to investigate any part of a house on the basis on their suspicions? I believe we are interfering with people's rights here.
I see the point the Deputy is making. However, we already give power to the environmental officers of county councils to go into any house and search them to see if the water supply is being interfered with. Under the Health Act, 1947, an officer of the local authority can enter a house and search it. I know of one case where this power was used, but no interference was found with the water supply in that case.
We can rest assured that the inspectors, the meter readers, are not going to abuse this power nor is there any danger of them doing so. I am satisfied that they will act in the normal way. They will act where they suspect electricity is being stolen. It will be stolen at the meter; I am not aware of any other method of stealing it.
We do not live in a perfect society. While I have reason to believe that all our meter readers will behave in a proper fashion, there are very few of us who want to see any officer rambling around our house at any time of the year.
I am satisfied that no officers of the ESB or of Bord Gáis Éireann will ramble around people's houses. I do not foresee a situation like this arising. We will be dealing with the situation at the meter, which is where the theft occurs. In some old house this may be at the back, but in most houses it is in the front hall or in the front porch or, in modern houses, outside the front door. This is where the inspections and searches will take place.
Most meter readers would not be electricians. They would not have the knowledge to search anywhere else for a device that may be used. In my experience, meter readers read the meter, and if they see something, perhaps on the meter, they will probably report it rather than take action themselves. Additionally, they may bring somebody better qualified with them if they consider that something unusual is happening and there may be a device elsewhere. This is something they would not have to signal at the time.
The householder or premises owner can refuse admission, and the officer seeking to enter must show and have reasonable cause. The judge in a court can review whether he had reasonable cause. It is an offence for somebody to refuse to allow an officer to enter in these circumstances, the case would go to court and the inspecting officer would then have to show he had reasonable cause. If he did not do this to the judge's satisfaction, there would be no offence.
The main issue here is that the Minister is trying to preserve the rights of those who pay their bills and to ensure that they do not have to carry the cost. We can go down cul-de-sacsand suggest that inspectors will be looking under beds or whatever. However, the meter or the gas cut off point is the area they will inspect. In newer houses these points are outside the house, or inside the front or back door. Since this does not mean any major involvement in the general household I cannot see a problem with it.
The Minister is proposing strong new powers, but he is covering them well with the requirement that where there is a refusal to allow somebody to enter, the person with the certificate can obtain a warrant and proceed accordingly. Deputy Fitzgerald made the point that meter readers are not, by skill or trade, expert in electricial matters. Is the Minister restricting the number of authorised officers or meter readers or does he intend to extend the certificate to other more qualified people in terms of skill and expertise in the area?
By and large, householders may not be present when the meter reader calls. In view of this, there is nobody to whom the authorised officer may request permission to gain entry to the premises. What happens in such cases? Is it proposed that there be a right of forcible entry? This would be a difficult matter to deal with.
There would be no restriction on the number of officers that may be appointed with the necessary powers by either the ESB or Bord Gáis Éireann. There is no question of forcible entry, but if people have a warrant it will be executed with the assistance of the Garda, if necessary. However, in the first instance, there is the right of refusal of entry, but it is an offence to do this, and it would be tried in court.
I examined this in great detail so I am aware of the concerns that have been expressed, and would have held them myself. We have structured this in such a way that the civil right of the householder is protected, and I am satisfied this is the case. I thank Deputies for raising these important points, but I would not wish to be party to something that would reduce the civil rights of a large, or even a small number of people, or, indeed anybody at all. I am satisfied that what we propose here will not do this. The object of the exercise is to protect a very large number of people who are at present carrying the can for a few people who steal electricity and gas.
I raised this matter to ensure that the rights of people are protected and that those designated have the competence to do the job. I also wish to ensure that the personal security of such people is protected. If a meter reader undertakes work single-handedly, he is in a very weak position in that while he has a professional job to do, it is his word against that of another. If a second officer can verify the situation, there is a greater chance that the legalities of the case would stand up in court rather than face the situation where, if officers work on their own, questions can arise regarding their competence and the infringement of personal and constitutional rights of the individual. Ultimately, semi-State organisations could be victims of this situation and be compelled to pay cash in consequence of an officer's work. If a second officer was required to be in attendance, the section would be much stronger.
There is no minimum or maximum number of people who have to call to a house. This is a matter for the ESB and Bord Gáis Éireann to organise. The Bill gives them the powers that are required to detect theft and present admissable evidence in the court. It is then a matter for the ESB and Bord Gáis Éireann to protect themselves. Once one sends any officer among the public there is a risk that he will do something wrong or something which will enable somebody to make a claim. It happens now with various kinds of officers. If members of the public are damaged in any way they are entitled to claim and I would defend their right to do so. It would, therefore, be the business of the ESB and Bord Gáis Éireann to ensure that they do not damage people or their interests. It is a matter for both bodies to organise this on a daily basis. They are not restricted to one person, but there is no requirement for two.
I agree with the section but its operational legalities concern me.
Amendment agreed to.