I welcome the Minister of State, Deputy Hanafin, and her officials. I propose that we deal with amendments until 10.15 a.m and resume, if necessary, at 2.30 p.m. in order to complete Committee Stage.
Criminal Justice (Theft and Fraud Offences) Bill, 2000: Committee Stage.
I have a priority question on Defence at 2.30 p.m.
We will reconsider that timetable.
Deputy Howlin will be taking over from me at 2.30 p.m. and is only available until 3.30 p.m.
We cannot resume at 2.30 p.m. if Deputy Timmins is not available. Hopefully we will get through as much as possible now.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 7, subsection (1), line 27, to delete "section 4(4)" and substitute "section 4(5)".
This is a purely technical amendment to rectify an error which occurred in the printing of the Bill.
Amendment agreed to.
I move amendment No. 2:
In page 7, subsection (1), to delete lines 28 to 30.
This amendment deletes from the Bill the definition of the word "computer". During the drafting of the Bill there was considerable discussion between the Department and the Office of the Attorney General about the desirability of including a definition of "computer" in the Bill. In favour of the inclusion of such a definition was the fact that the Law Reform Commission in its report on the law relating to dishonesty recommended it, although it recognised the difficulty in providing a suitable formula of words. Also in favour of its inclusion is that the Bill creates a number of new offences involving the use of computers and it may seem appropriate to define what is meant by a computer.
However, such a definition is not without its difficulties. For example, rapid advances in technological developments continue to be made and there is a real danger that any definition of computer would become rapidly obsolete. In addition, so many machines today, even household machines, function at such an advanced level that they could be considered computers under any reasonable definition of the word. It is noteworthy that the Data Protection Act, 1986, does not contain such a definition, although one might think that perhaps such a definition was appropriate and that is where it should have been. However, it is not included in the Act precisely for the reason it was considered that it would be rapidly overtaken by new developments. The Electronic Commerce Act, 2000, contains no definition of the word "computer" for the same reason.
Although the Bill was published with a definition of computer in section 2, discussion on the matter continued with the Office of the Attorney General. Following detailed consideration of the pros and cons of retaining it, it was decided that any definition could present greater problems further down the line which could not be properly anticipated. In any event, it is very probable there would be little difficulty in establishing that a machine or device was a computer for the purpose of establishing that a computer related offence under the Bill had been committed. Accordingly, amendment No. 2 will delete the definition of computer.
I have no objection to it being deleted, but it is quite extraordinary that we have no legal definition of computer.
Amendment agreed to.
I move amendment No. 3:
In page 7, subsection (1), line 32, after "right" to insert "or other lawful authority or reasonable excuse".
I wish to point out that we only received the Government amendments yesterday evening. One of the amendments in particular is quite substantial and is an attack on asylum seekers as it includes passports and other documentation under section 23. I wish to express my anger at the fact the amendment was circulated only yesterday afternoon. I know we will have an opportunity to debate it at a later stage, but it is a very significant attack on asylum seekers and it should not have been given to Opposition spokespersons on the evening before Committee Stage. In effect the Government amendment says the mere possession of a false passport or document makes a person liable to a criminal offence, a significant change from current legislation.
The reason for amendment No. 3 is that a person who has a reasonable excuse should not be held to have acted dishonestly. The Law Reform Commission's report on dishonesty discusses the point and says the concept of a claim of right has been held to be somewhat limited in certain cases. We suggest the amendment be included in the Bill to ensure a person with a genuine reason is not considered to be dishonest. I hope the Minister will consider the amendment, which is tabled in good faith to ensure there is no ambiguity in this section.
Regarding Deputy O'Sullivan's point about the timing of the amendments being circulated, it is regrettable that enough time was not available. The Government amendments were submitted on time but I understand the Bills Office is under considerable pressure because of the amount of legislation being processed, and that may have been the reason for the delay.
Amendment No. 3 seeks to provide that dishonesty would mean not only an absence of a claim of right as provided in the Bill, but also an absence of lawful authority or reasonable excuse. I appreciate the intention behind the Deputy's amendment, but I do not see how it helps clarify what is meant by honesty in the context of the Bill. Such a change could even add to confusion in an area where clarity is required.
As Deputy O'Sullivan stated, the Law Reform Commission examined the matter in detail and it was the subject of considerable consultation. In the end it recommended broadly the meaning contained in the Bill. This meaning also has the advantage that it is already used in the Larceny Acts and therefore the courts would be familiar with the meaning. Although these Acts are being repealed, that does not say we cannot retain what is useful. The Law Reform Commission acknowledged that defining dishonesty in terms of an absence of a claim of legal right was not without its problems. For example, it was suggested that the parameters of dishonesty are not identical with those of a claim of right. That is to say not every act done without such a claim is necessarily dishonest. In the end, however, the recommendation was broadly along the lines set out in the Bill.
Taken together with the offences in the Bill involving dishonesty, it should be clear that any claim of right is one which must be made in good faith, that is, an accused must genuinely have believed that his or her action was justified and that he or she honestly believed he or she was entitled to take the goods. There have been a number of cases where it was held that a claim of right provided a successful defence to a charge of taking property. If the intention of legislation is to be clear about the elements which constitute an offence, the reference to "other lawful authority" may only serve to confuse. It is clear that lawful authority is a defence to any charge of dishonest taking. Thus section 4, dealing with theft, provides that it will not be theft where a person believes he or she has the owner's consent. This would surely amount to lawful authority.
The Deputy's amendment may also present further difficulties. For example, the reference to "reasonable excuse" has the potential to permit many types of dishonesty to go unpunished. It is possible to postulate a situation where an individual in financial difficulties steals something and pleads there was a reasonable excuse for his or her action. I am not necessarily thinking about somebody stealing food to feed a hungry child; it could be a business person whose business has hit a particularly bad patch. Who is to say one or the other, or both, is not entitled to plead "reasonable excuse" and escape liability? Where is the line to be drawn? When is theft reasonably excusable? I do not wish to give the impression the law should not show compassion to those who are particularly needy, but it is quite a leap from that to render it inoperable. Accordingly, I cannot support the Deputy's amendment.
I see the point the Minister is making in relation to definitions in other legislation. From a lay person's point of view I would have thought the term "other lawful authority" was clearer than "claim of right". "Lawful authority" is a very clear definition, but the Minister has indicated the term is used in other parts of the Bill.
I will not press the amendment but ask the Minister to again look at the possibility of including the phrase "other lawful authority" even if "reasonable excuse" is rejected.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 8, subsection (2)(b), line 31, before "prevents" to insert "unjustifiably".
A person who justifiably prevents another from obtaining information, for example, by withholding confidential information when asked for it, should not be held as engaging in deception. A person might have a genuinely justifiable case for withholding confidential information.
It would make the legislation more humane if that phrase were included to ensure that people, who for genuine business or personal reasons do not want to give confidential information, will not be considered to be criminal.
Again, the arguments on amendment No. 3 hold here in that this does not add anything to the Bill. The effect would be to add a subjective element to the requirement that deception consists in part of preventing a person from acquiring certain information. As that section stands, deception may involve creating or reinforcing a false impression, preventing the acquisition of certain information or failing to correct a false impression. This amendment seeks to add that there must be some unjustifiable element attached to the prevention of the person acquiring certain information which would affect that person's judgment of a transaction before it could constitute deception.
Having examined the possible effect of the inclusion of the word "unjustifiably", it strikes me that it would be possible for a defendant to claim that his or her preventing the other person acquiring the information was justified and that it would be extremely difficult for the prosecution to prove otherwise. Deception is an ingredient of the offence of theft in section 4 and of obtaining services by deception in section 7. Is it seriously suggested that a person should not be guilty of theft where the consent of the owner has been obtained through some deception, such as preventing that person from obtaining certain information, merely because the deceiver claimed that he was justified in withholding the information? Without inferring a base motive, his or her alleged justification might be that someone else might benefit more than the person properly entitled. What it would amount to would be allowing one person to determine whether another should be denied what is rightfully his or hers by reference only to that person's own view of the matter. It would be a recipe for all sorts of people to avoid liability.
Similarly, in the case of section 7, the effect of the amendment would be to enable a person to dishonestly obtain services by a deception which he or she claimed was justifiable. I could not accept an amendment which would have that effect. Accordingly, I regret that I cannot accept this amendment.
Surely it would be up to a court to decide whether something is justifiable. If it is written into the legislation that a person who prevents another from acquiring information which would affect that person's judgment of a transaction is guilty of an offence, it leaves no room for what may be justifiable reasons for a person to prevent another person from acquiring certain information. I would have thought it would be better to leave such a decision to an objective body
The Deputy is right to the extent that the court will decide whether such prevention is justifiable. This amendment seeks to include a subjective element by including what the person believed to be the case. This removes the objectivity of the court and places the burden back on the person.
I will have an opportunity to resubmit this amendment on Report Stage. I will not, therefore press it now.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 8, subsection (2)(c), line 36, to delete "or confidential".
Confidential relationships may be too wide to impose criminal liability for mere passive non-disclosure. For example, it seems unduly harsh to impose criminal liability simply because of non-disclosure of information which relates to a confidential business agreement. There may be criminal liability, but to say there is criminal liability simply because information is not disclosed seems harsh.
This amendment seeks to restrict the application of section 2 (2)(c) to cases where there is a fiduciary relationship between an accused person and the person whom he deceives. In the first place, paragraph (c) follows the recommendation of the Law Reform Commission. The intention was to include relationships which fell short of a fiduciary relationship but in which there was a requirement for utmost good faith on the part of the accused person.
A fiduciary relationship is one which implies trust and honesty. However, there are other relationships which fall short of a fiduciary one but in which, nevertheless, a special responsibility is owed by one person to another. Such a relationship may be characterised by a requirement of confidentiality between the persons and it would be implicit that the person owing the duty should act at all times in the interests of the other person and should not be permitted to benefit from an error which he or she failed to correct. Such dishonesty should be penalised. It was to recognise that that paragraph (c) includes reference to confidential relationships.
Paragraph (c) may involve some action by the person who engages in the deception such that the false impression is one which the deceiver may have either previously created or reinforced. Surely there is an obligation on the person to correct this and failure to do so should attract criminal liability.
The essence of the deception in paragraph (c) is that there are special circumstances arising from the relationship between the parties which it is reasonable to expect should impose a duty to correct the mistake. The person who relies on another is entitled to count on him or her to inform fully and honestly on relevant matters. The effect of deleting the reference to confidential would be to limit the application of this paragraph to fiduciary relationships alone and that would be to restrict its application and possibly permit certain actions which should be penalised to go unpunished. I do not believe this should be the case, Accordingly, I cannot accept the amendment.
I would have thought the term "fiduciary" - an interesting word which I gather implies trust and honesty - would cover what is required in this regard. This wording and much of what is in the Bill came from the US model, but we should not necessarily swallow it entirely because it happens to be the model that was available to the Law Reform Commission and to the drafters of the Bill. The word "confidential" is a fairly general term. We deleted the definition of the word "computer" at the start of these proceedings because it was such a general term and because it might have incorporated ideas in the Bill which we did not intend. I make the same argument for deleting the words "or confidential" in so far as there are different kinds of confidential agreements, particularly business agreements, and I would have thought the term "fiduciary" would suffice in terms of this section.
The word "fiduciary" implies trust and honesty but is usually applied only to financial relationships. That would mean that all other types of relationships would be excluded.
We are arguing about the definition of words which are not as legally precise as one would like. The word "confidential" is very widely used outside of legal terminology. It is unlikely that we will get agreement, so I will not take up any more time.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 10, subsection (3), lines 34 to 44, to delete paragraph (c).
This is one of a number of provisions in relation to the onus of proof. A number of sections in this Bill seek to transfer the onus of proof to the defendant. I am concerned at this practice. I am not sure if it is constitutional to transfer the onus of proof on to the person who is being accused or whether it is in accordance with the European convention. It is provided here, for example, that-
(c) If in any proceedings . . .
(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency, it shall be presumed, until the contrary is proved, for the purposes of subsection (1) . . . that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.
What this provides for is a presumption of guilt until innocence is proven. That is a fundamental change in terms of legal rights, and that is why I am concerned about this and other provisions which occur later in the Bill.
Under the Constitution and our law, a person is not presumed to have done something unless it has been proved that they have. A person does not have to prove they did not do something. This is the section about which I am particularly concerned. The common sense of a jury or a judge should be relied on in relation to these matters rather than include a specific provision in the legislation a person is presumed guilty unless they can show they are innocent.
The effect of this amendment would be to remove from the Bill a presumption that a person who held property in trust for one or more persons had appropriated it for his or her own benefit or use in certain circumstances. Section 4(3) is based on a recommendation by the Government advisory committee on fraud. It recommended the creation of what it described as a general deficiency offence, that is, that it is an offence for a person who holds money in trust as an agent for others not to maintain in the accounts sufficient funds at all times to pay in full what is due to each person. For example, at present where an auctioneer or solicitor, who holds money on behalf of several clients in a mixed account, takes some of it for personal use, it may be difficult to prove an offence since it may not be clear whose money was taken because there may be enough remaining in the account to pay some clients but the general deficiency only becomes apparent if all clients seek repayment at the same time.
Section 4(3)(c) provides that where there is a deficiency and the person fails to provide a satisfactory explanation, it will be presumed that he or she appropriated without consent of the owner or owners all or part of the deficiency. Paragraph (c) provides that this presumption may be rebutted. The offence to which the presumption in paragraph (c) refers requires that appropriation of property was without the owner's consent and that there was an intent to deprive the owner. The purpose of paragraph (c) is merely to provide that the person is presumed to have appropriated the deficiency without consent in circumstances provided for in the paragraph. It does not presume any intention to deprive or any dishonest intent and it will not be activated if there is a satisfactory explanation. Therefore, it is not presuming guilt.
When a person holds property in trust for one or more persons, it is not inconsistent with the presumption of innocence that the trustee, who has a duty to account for the property and who alone is in a position to know exactly how a deficiency arose, is able to provide a satisfactory explanation of that deficiency when called upon to do so. Therefore, to delete paragraph (c) would be to leave the subsection without the necessary means to ensure that trustees can be held responsible for the disappearance of property. In those circumstances, I cannot accept the amendment.
I am still concerned about the principle. The Minister of State suggested that the only way one can verify the guilt of a person is by including this section. There may be other explanations or reasons and it should not automatically be assumed the person is guilty. The Minister of State said the only way to verify a person is guilty is by including this section. Surely the presumption of innocence has to translate right across legislation. If a person is found guilty in relation to a trust, it has to be verifiable. One cannot assume they are guilty because one is not too sure one is going to be able to prove it and, therefore, it must be included in legislation that they are considered guilty unless they can prove they are not. It is a very basic principle.
It is important to reiterate that if there is a satisfactory explanation, it will not be activated. There is a presumption if the money was in the account but is now gone that somebody took it. If a person can come up with a reasonable explanation why that is the case, that provision would not be activated, so the presumption of guilt is not there.
I can see from where the Minister of State is coming. It is possible there could be an error, something going on in the bank or that somebody else could have got access to the account. There are a lot of possibilities. It should not be an automatic assumption that the person is guilty.
Any of those reasons would be considered to be a satisfactory explanation.
A person may not be able to prove any of those reasons. They may not detect an error in the bank, for example, or detect that somebody else had access to the account in that they might have found the account numbers, books or whatever. It should be possible to prove this if it is going to be considered an offence.
The basic offence to which we are referring in section 4 is that it is dishonest appropriation. Obviously one would have to prove dishonesty and not just the appropriation. If there is any kind of excuse to show that it was done accidentally, the section would not apply.
I am going to press the amendment. It is a question of who considers it to be dishonest. A person may consider themselves to be innocent, although the person accusing them considers them dishonest, and their judgment is subjective. It does not get us any further in terms of the onus of proof.
Except that the presumption can be rebutted based on the balance of probability. We are not using the criminal measure of beyond reasonable doubt. The rebuttal element is included.
It is a matter of judgment. The person can plead innocence but they are going to have to prove it. Because of the reversal of the burden of proof, they will have to prove they did not do it. That is the fundamental problem I have. We have not got any further in terms of satisfying my concerns in this regard.
What they have to prove on the balance of probabilities is that they have a satisfactory explanation.
That is my problem in that they may not have a satisfactory explanation. For example, if there was an error in the bank, they may not have a satisfactory explanation. They may say something went wrong in the bank but they will not be believed if the person accusing them considers they are wrong. They should not have to prove their innocence. It is a fundamental principle of law that one does not have to prove one's innocence.
To go back to the original point, if a person is the only one in control of other people's money in an account and the money is not in it any longer, if they can come up with an explanation why it is not there, there is no presumption of guilt. If they cannot come up with such an explanation, then it has to be proved that it is a dishonest appropriation.
My concern is that if somebody robbed a person's cheque book and forged their signature, that person might be considered guilty of something they may not have done.
Amendment put and declared lost.
I move amendment No. 8:
In page 11, subsection (5), lines 11 and 12, to delete all words from and including "means" in line 11 down to and including "property" in line 12 and substitute "includes taking possession of such property, exercising dominion over such property, usurping or otherwise adversely interfering with the proprietary rights of the owners of such property".
Section 4 proposes to define the offence of theft. The offence centres around the dishonest appropriation of property without the owner's consent. The definition of "appropriate" is a little abstruse and it would be clearer to have an all encompassing definition. The definition I put forward in this amendment would satisfy that need.
The amendment broadens the meaning given to the word "appropriates" by adding further to the circumstances which amount to taking ownership. In seeking to do this, it has the effect of creating uncertainty about when an appropriation is to be regarded as amounting to an essential element of the offence of theft. The intention in the Bill is that an appropriation will only arise where there is any assumption by a person of the rights of the owner. When taken with the requirement for dishonesty in section 4, it corresponds to the idea of converting the property for one's own use or benefit. It has the advantage, therefore, of clarity and certainty.
The amendment would add to the present meaning of the Bill by including taking possession of or exercising dominion over property. This would lead to the loss of the advantage of clarity and certainty to which I referred. To revise the Bill's provisions to mean that taking possession of property amounts to an appropriation for the purpose of providing theft would create great uncertainty in everyday life. In many circumstances, taking possession would not amount to a crime. Where a person takes possession as a bailee, he or she has certain responsibilities to the owner in relation to that property but the very act of taking possession could amount to appropriation if this amendment were accepted. A central aspect of bailment is that a bailee does not assume the rights of the owner although he or she has possession.
I am also concerned about the inclusion of terms such as "exercising dominion over such property". What does it mean to exercise dominion in this context? On one interpretation, it means the same as "using as one's own" which is comprehended by the words already in the Bill "usurps or adversely interferes with". Furthermore, this is not a familiar concept in our law and unless further defined, it would be likely to lead to greater confusion. The meaning of "appropriation" in the Bill is clear. When taken with the other elements of the offence of theft, it leaves no room for ambiguity. I cannot accept the amendment.
I accept the Minister's comments.
Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."
Does the concept of theft include unauthorised borrowing if there is an intention to return an item borrowed and not deprive its owner permanently? For example, a person may borrow a piece of machinery from a farmer's yard without the owner's consent although he or she may intend to return it.
Temporary theft could come under the terms of the Bill.
We may table an amendment on Report Stage to prevent a person who borrows an item with the intention of returning it being charged with theft.
Previous legislation in this area required permanent removal but this provision has been removed.
If a person goes into a shop and receives the incorrect change, perhaps the change of £20 rather than £10, would he or she be guilty of theft if he or she were to leave the shop realising that excess change has been given or if he or she discovered the mistake as he or she drove off? At what stage is an offence committed? Tthe Minister may not be in a position to address the matter today but may consider it prior to Report Stage.
It would depend on whether a person intentionally left a shop with the incorrect change or discovered the mistake at a later stage. Section 6 provides that a person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing a loss to another, induces another to do or refrain from an act is guilty of an offence. Deliberate dishonesty could be deemed to be theft.
I am just trying to establish the point at which a person may be deemed to have committed an offence. A person may discover the fact prior to leaving a shop but, equally, may only discover the mistake having driven a mile or two down the road and may decide not to turn back.
At what stage would the mistake be viewed as an embarrassment to the salesperson and at what stage would it be considered a crime?
If there is a dishonest intent to make a gain, section 6 would cover that.
It may be possible to refine this further on Report Stage.
Section 4(6) states that a person guilty of theft is liable on conviction or indictment to a fine or imprisonment for a term not exceeding ten years or both. The penalties provided for in the non-fatal offences against the person legislation are far more lenient than those provided here. This Bill provides for the imposition of a life sentence for robbery and aggravated burglary, a 14 year sentence for robbery and money laundering and a ten year sentence for most other offences, with the exception of corruption. Under the non-fatal offences against the person legislation, a threat to kill or intentionally piercing the skin with a syringe is liable to a ten year sentence and a five year sentence may be imposed for coercion and assault causing harm. The offence of assault is only liable to a six month sentence. A seven year sentence may be imposed for child abduction and a three year sentence may be imposed for poisoning. The penalties is this legislation are far more severe. Offences against the person should be treated as seriously, if not more seriously, than the type of offences covered under the present Bill.
Should we reduce the penalties in this Bill or increase them in the non-fatal offences against the person legislation?
I suggest they should be more severe in the non-fatal offences against the person legislation.
I fully accept the points made by Deputy O'Sullivan who may be aware that last week the Minister introduced new and more stringent penalties for rape and sexual offences arising from recent court cases and representations made to him. The issue of sentencing must be reviewed constantly.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 9:
In page 12, subsection (1), line 16, after "another" to insert "by any deception".
No specific reference is made to deception in section 6 which deals with making gains or causing losses by deception.
The side heading to section 6 reads "Making gain or causing loss by deception" although the word is not used in the section itself. The section provides that a person is guilty of an offence if he or she dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, induces another to do or refrain from an act. While the addition of the words "by any deception" would not detract from that meaning, we are not sure whether it would add to it. I will undertake to discuss this matter with the Office of the Attorney General prior to Report Stage.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Sections 7 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
Section 13 which deals with aggravated burglary states that a person is guilty of aggravated burglary if he or she commits any burglary and at the time has with him or her any firearm or imitation firearm, any weapon of offence or any explosive. A person who breaks into a house unarmed to rob it may, on finding himself in the kitchen and hearing someone coming downstairs, reach into the drawer and take out a knife. Would such a person be deemed guilty of aggravated burglary? What about a man who, having spent an evening skinning rabbits with a flick knife, goes into the pub for a few drinks and decides to commit a robbery on the way home? If he is arrested in the course of the robbery in possession of the flick knife, would he be deemed to have committed an aggravated burglary? I do not expect the Minister to address these concerns today but she may consider them prior to Report Stage.
Question put and agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
Amendments Nos. 10, 12, 13 and 24 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 10:
In page 16, subsection (3), lines 36 and 37, to delete "(inserted by section 21 of this Act)" and substitute "(money laundering)".
These amendments arise from a decision signalled on Second Stage to delete section 21 which substitutes a new section for section 31 of the Criminal Justice Act, 1994, dealing with money laundering. It was indicated that this provision would be more appropriate for inclusion in the Criminal Justice (Illicit Traffic by Sea) Bill, 2000, which will enable Ireland to ratify the Council of Europe Agreement on Illicit Drugs Traffic by Sea implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This agreement requires member states to take measures to establish jurisdiction over certain offences. To implement this will require a number of changes to the 1994 Act, including changes to section 31. Consequently, it was decided that the best way of making the necessary changes to the 1994 Act was to do so in one Bill, and the more appropriate Bill for this purpose is the Criminal Justice (Illicit Traffic by Sea) Bill. For the same reasons I propose to delete section 22 of this Bill and include it in the aforementioned Bill.
Amendments Nos. 10 and 24 are consequential on the deletion of section 21. They remove the existing references in the Bill to section 21 and substitute references to the current money laundering provisions of the 1994 Act. Given that I propose to delete section 21, there is no necessity for Deputy Timmins to move amendments Nos. 12 and 13 and I hope he will withdraw them.
Deputy O'Sullivan, we are discussing amendments Nos. 12 and 13.
Yes, they are our amendments.
I beg your pardon.
I take the point the Minister of State has made. My amendments are obviously irrelevant given that she proposes to remove the section. It is not relevant, therefore, to talk about them.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
On the issue of handling stolen property, will the Minister of State clarify on Report Stage what happens when the handler believes the goods are stolen and they are not?
I can clarify that now. One cannot handle non-stolen goods.
Is there scope for an offence of attempted handling?
If they are not stolen, they are not stolen.
Yes, but the person in question may believe they are stolen, which means he or she has attempted to handle stolen goods.
It does not matter.
We will probably table an amendment on Report Stage.
Is there such a thing as a mind crime?
I am sure there are many of them.
Question put and agreed to.
Section 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
We oppose section 19 because it is similar to section 52 of the Offences Against the State Act, 1939, and it is almost certainly contrary to the European Convention on Human Rights. It destroys the right against self-incrimination. I cite the Heaney, McGuinness and Quinn decisions of the European Court which held that such a provision destroys the basis of the right against self-incrimination.
Section 19 provides that, if a member of the Garda Síochána finds a person in possession of property, etc., and informs the person that he believes the property to be stolen, the member may require the person to give an account of how that person came by the property. The concern is that, in effect, the person must incriminate himself or herself. That is against the European Convention on Human Rights and should not be in any of our legislation.
This section reproduces section 16 of the Criminal Justice Act, 1984, which is being deleted, and adjusts it to meet the specific requirements of the Bill. The section is intended to provide assistance in the investigation of offences of stealing or handling stolen property.
The purpose of section 19 is to give the Garda power to require a person to give certain information in specifically defined circumstances. These are that the Garda has reasonable grounds for suspecting an offence of stealing or handling, finds a person in possession of property, has reasonable grounds for believing the property includes stolen property or the proceeds of it, and informs the person of his or her belief. It is not unreasonable that, in those circumstances, the Garda is entitled to ask how the person acquired the property. The section does not give carte blanche to the Garda to stop people at random and demand information. There must be reasonable grounds for the action and it must relate to a suspected offence of theft or handling.
It has been said before that there is little point in creating offences if we are not prepared to provide the resources to enforce them. One such resource can be provided in legislation, such as giving the Garda certain powers. We have it in other legislation. There are provisions for search warrants, seizing goods, requiring persons to account for certain objects and drawing appropriate inferences. These are all necessary tools in the fight against crime but it is noteworthy that each is ringed with safeguards for the person.
In the context of section 19, I have already set out what the safeguards are, and section 19(4) provides that any information given under this section will not be admissible in criminal proceedings against a person other than for an offence of failing to give a proper account when requested. There is no presumption of guilt. To be guilty of the offence of possessing stolen property under section 18, a person must know the property is stolen or be reckless as to whether it is stolen. Any information given to the Garda under section 19 cannot be used in criminal proceedings except for an offence under section 19(2) of giving false information.
Deputy O'Sullivan mentioned last December's decision of the European Court of Human Rights in the Heaney, McGuinness and Quinn cases. That decision concerned the use of involuntary inculpatory statements under section 52 of the Offences Against the State Act, 1939, under which prosecutions could be taken against a person for failure to give an account of his or her movements when arrested under section 30 of that Act. The decision of the court relates to the use of the section before the clarification on the lines of section 16(4) of the Criminal Justice Act, 1984, which was inserted in the 1998 Offences Against the State (Amendment) Act following the Omagh bombing and the further clarification of the law in this area by the Supreme Court in the NIB case, overturning the earlier authority permitting the use of such material generally by the Court of Criminal Appeal in the case of the Director of Public Prosecutions and McGowan.
The section in this Bill is also similar to section 15 of the Criminal Justice Act, 1984. Both this section and section 16 were considered by counsel following the decision in the cases mentioned. It is believed they are not affected by that decision and that is also the view of the Office of the Attorney General. As there is nothing new in this section and it forms a necessary aid to the Garda in investigating offences under the Bill, I do not propose to accept the proposal to delete the section.
Obviously the legal advice available to the Minister of State and to me differ in this matter. Mine is that it would be contrary to the convention. We will resubmit this. Will the Minister of State take into account the points I have made? The suggestion was that the cases of Heaney, McGuinness and Quinn concerned involuntary information. Surely what is at issue in section 19 is involuntary information in so far as the person in question will be forced to give the information rather than giving it voluntarily. I do not see any difference between what is being proposed in the Bill and the manner in which the information in the cases I have mentioned was given.
A fundamental difference is that the section in the 1939 Offences Against the State Act does not have a prohibition against using the information in later proceedings whereas this section does specifically.
I withdraw my opposition to the section with a view to submitting an amendment on Report Stage.
Question put and agreed to.
SECTION 20.
I move amendment No. 11:
In page 18, subsection (1), lines 24 to 26, to delete paragraph (b).
It is questionable whether a worldwide provision such as this makes sense or is constitutional. The Good Friday Agreement amendment to the Constitution limits the power to legislate with extra-territorial effect to cases permitted by international law. Such law could require some substantial connection with the State which appears to be lacking in this section.
Section 20 defines the circumstances in which property will be regarded as having been stolen and thus be subject to the provisions of the Bill. Section 7 of the Larceny Act, 1990, contained a similar provision in relation to the handling of stolen property. Section 20 is, essentially, a re-enactment of section 7 of the 1990 Act.
Under section 21(b) property stolen outside the State and brought into the country will be the subject of the provisions of the Bill provided an offence has also been committed where the property was stolen. By virtue of subsection (2), stolen property includes any property, including money which represents the proceeds of stolen property. The effect of amendment No. 11 would be to prevent a person who either stole such property abroad and brought it into this country or who acquired such property in this country from being prosecuted under the Bill. Thus a person might avoid liability for the offence. This seems a strange proposition. It means that a person who succeeds in removing the property from the country in which it was stolen and brings it to this country will frustrate the efforts of both countries to prosecute him or her because the person and property were no longer present in the State in which the offence took place and our law would not recognise the property as stolen.
This would afford the perpetrator a kind of immunity. Similar provision is already contained in the Larceny Act, 1990. I am not aware that it has in any way proved problematic in terms of unfairly penalising anybody. Therefore its inclusion in this Bill is merely retaining an existing legislative provision.
I will not take up time on this amendment. The Minister gave a fairly detailed explanation. I may come back to it at Report Stage.
Amendment, by leave, withdrawn.
Section 20 agreed to.
Amendments Nos. 12 and 13 not moved.
SECTION 21.
I move "that section 21 be deleted."
Question put and agreed to.
Section 21 deleted.
SECTION 22.
I move "that section 22 be deleted."
Question put and agreed to.
Section 22 deleted.
SECTION 23.
Amendments Nos. 14, 15 and 16 are related and amendments Nos. 17 and 18 are alternatives to amendment No. 16 and may be taken together by agreement. Agreed.
I move amendment No. 14:
In page 21, to delete lines 30 to 43 and in page 22, to delete lines 1 to 5 and substitute the following:
" 'instrument' means any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and includes any-
(a) disk, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means,
(b) money order,
(c) postal order,
(d) postage stamp issued or sold by An Post or any mark denoting payment of postage which is authorised by An Post to be used instead of an adhesive stamp,
(e) stamp of the Revenue Commissioners denoting any stamp duty or fee, whether it is an adhesive stamp or a stamp impressed by means of a die,
(f) licence or certificate issued by the Revenue Commissioners,
(g) cheque, including traveller’s cheque,
(h) charge card, cheque card, credit card, debit card or any card combining two or more of the functions performed by such cards,
(i) share certificate,
(j) certified copy, issued by or on behalf of an tArd-Chláraitheoir, of an entry in any register of births, stillbirths, marriages or deaths or in the Adopted Children Register,
(k) certificate relating to such an entry,
(l) passport or document which can be used instead of a passport,
(m) document issued by or on behalf of a Minister of the Government and permitting or authorising a person to enter or remain (whether temporarily or permanently) in the State or to enter employment therein,
(n) registration certificate issued under Article 11(1)(e)(i) of the Aliens Order, 1946 (S.I. No. 395 of 1946),
(o) public service card,
(p) ticket of admission to an event to which members of the public may be admitted on payment of a fee;”.
Part 4 of the Bill deals with forgery. For the purpose of establishing what actions constitute forgery it is necessary to state what items or instruments are capable of being forged. Part 4 therefore defines what is meant by instrument. However, it contains two such definitions but with some overlap. One meaning given to the word "instrument" is set out in section 23. It refers to among others any document whether of a formal or informal character, any disk, tape, postage or revenue stamp, credit card or ticket. Sections 24 to 27 set out a number of offences in relation to these instruments. These are making a false instrument intending that it be used to induce another to accept it as genuine and to act on it to his or her prejudice, passing a false instrument, copying a false instrument or using a copy of a false instrument knowing or believing it to be a false instrument, intending it to be used to induce another to accept it as genuine and to act on it to his or her prejudice.
The penalty following conviction or indictment will be a fine, which is unlimited, or up to ten years in prison or both. "Instrument" is also defined in section 28 but only for the purpose of offences under that section mainly related to the possession of forged instruments. This definition includes some of the other instruments set out in section 23 above as well as additional ones such as money orders, postal orders, cheques, share certificates, birth, death and marriage certificates and passports. The offence under section 28 relates to possession or control of a false instrument with the intention of inducing a person to accept it as a genuine and to act on it to his or her prejudice, or a machine or implement for making a false instrument, or a machine or implement for making a false instrument with the intention of inducing a person to accept it as genuine and to act on it to his or her prejudice.
This approach broadly follows the recommendation of the Law Reform Commission in their report on the law in relation to dishonesty. While recognising the simplicity of a provision penalising the possession of any forged article or implement, they recommend that possession offences in relation to forged instruments be restricted to the possession of certain listed instruments. Since the Bill was published and the provisions of Part 4 have been further examined, the outcome has been that having two separate meanings may be unnecessarily confusing. There was no good reason this approach should be maintained. In addition, that examination also revealed that there would other instruments not included in Part 4 which it was felt should be included, such as resident and work permits. Having discussed the issue with the Attorney General's office it was decided to simplify Part 4 by having only one definition of instrument for the purpose of offences of forgery. This is the intention of amendments Nos. 14, 15 and 16.
Amendment No. 14 sets out the new definition of instrument and is quite comprehensive. It includes the matters listed in the current sections 23 and 28 as well as resident and work permits and registration certificates for non-nationals. The practical effect of the amendment, when read with the other sections of Part 4, is that a person will be guilty of an offence if he or she makes or uses such a false instrument or possesses or controls a false instrument or a machine for making a false instrument.
Amendment No. 15 repeats the meaning of "share certificate" currently contained in section 28(7). This amendment is necessary because the definition of instrument in section 28 is being deleted. The amendment will place the meaning of share certificate after the new definition of instrument in section 23.
Amendment No. 16 will substitute new subsections for section 28(1) to (6). This is necessary because the definition of instrument currently contained in section 28 is being deleted. There is a consequent need to recast the offences in that section to reflect this. The new subsections deal with the following matters. It is an offence to have in one's custody or control an instrument which the person knows or believes is a false instrument with the intention that it is used to induce another to accept it as genuine and to act on it accordingly; an offence without lawful authority or excuse to have in one's custody or control an instrument which the person knows or believes to be a false instrument; an offence to make or to have in one's custody or control a machine, etc., including a computer programme with the knowledge that it is specifically designed to adapt it for the making of a false instrument with the intention that it be used to make a false instrument to be used to induce another to accept it as genuine and to act on it accordingly; an offence without lawful authority or excuse to have in one's custody or control a machine, etc., with the knowledge that it is specifically designed to adapt it for the making of a false instrument with the intention that it be used to make a false instrument. The aim of these amendments is to simplify the nature of offences of forgery in the Bill and to include certain other instruments capable of being forged but which had been omitted from the Bill as published.
Amendments Nos. 17 and 18 seek to add further to the list of instruments currently contained in section 28. However, the appropriate provision of section 28 is being deleted. Nevertheless, the matters set out in these amendments are appropriate to be considered in the new definition of instrument. I will look at them again with a view to introducing appropriate amendments on Report Stage.
Is the amendment agreed?
I do not know if I misunderstood the Minister in relation to subsection (l) which reads: "passport or document which can be used instead of a passport" and 16(2) which reads: "a person who, without lawful authority or excuse, has an instrument which is, and which he or she knows or believes to be a false instrument, in his or her custody or under his or her control is guilty of an offence". What this section is seeking to do is make an asylum seeker who enters the country with false documentation guilty of an offence. They do not even have to intend using it. To simply have it in their possession is an offence under amendment No. 16.
We are all aware, from speaking to asylum seekers and from evidence in the media and various organisations which support asylum seekers, that people who flee countries because of a danger of persecution very often can only leave that country by means of false documentation. That is a reality of life in many of these countries. They may well be able to explain why their documentation is false and be granted asylum here but to make them a criminal because they possess a document that is false is wrong.
That is my interpretation of what the Minister is doing. I received the amendments at 5.30 p.m. yesterday after we had concluded the justice Estimates. To make them guilty of an offence as a result of holding these documents appears to deny them the option of seeking asylum and, in effect, criminalise them as soon as they arrive here with false documentation. As I have serious concerns about the amendment, I will be voting against it. I strongly object to the Minister's amendments.
As it is now 10.20 a.m., we must adjourn for the Order of Business in the Dáil.
The Select Committee adjourned at 10.20 a.m.