Select Committee on Legislation and Security díospóireacht -
Monday, 20 Sep 1993

SECTION 12.

Debate resumed on amendment No. 16:

In page 6, subsection (1), between lines 20 and 21, to insert the following:

"or

(c) to enter any vehicle or be within the vicinity of such vehicle,".

—(Deputy G. Mitchell.)

Mr. G. Mitchell

The purpose of my amendment is to include in section 12, which states that it shall be an offence to enter a building with intent to commit an offence, the words "to enter any vehicle or be within the vicinity of such vehicle". What I have in mind here is the immediate vicinity of the vehicle.

The offence of being within the immediate vicinity of a vehicle with intent to commit an offence should be separate from the offence of stealing a vehicle. We are all aware that car owners have disturbed a person who was attempting to steal their car and that unsuccessful attempts have been made to get into a car by breaking the locks. I am given to understand that some of our more ardent thieves and vandals make equipment while on a training course or in college, which can be inserted in a car lock to yank out its centre so that they can force open the door or boot or release the ignition lock.

I will have to find a stronger word that "vandals" because these criminals are endangering the rest of us — they break into cars and entertain their friends by driving around at speeds of between 60 and 70 m.p.h. In this regard the representatives of a neighbourhood watch scheme in the inner city in my constituency recently sent me a copy of a letter they had sent to the Minister. A copy was also sent to the other Deputies for the area. In another part of the constituency recently cars were speeding around at speeds of between 60 and 70 m.p.h. and youths were overheard discussing the speeds they had reached in stolen vehicles. It is an offence to be in possession of a stolen vehicle.

In strengthening the law relating to public order we have to face the fact that people are stealing cars and driving around as if they were in Mondello. We have almost reached the stage where people are afraid to park their cars out on the street or even outside their own home. The motor industry is constantly complaining that the reason cars are not being sold is because of the high taxes on them. I am sure this is a contributory factor, but people think twice about buying a new car. Where would one park a new car when coming into town or where would one keep a new car if one does not have a garage at home? People are afraid to buy a new car and leave it anywhere in a public place. In all these circumstances it would be reasonable to make it a separate punishable offence to be within the immediate vicinity of a vehicle with intent to commit an offence. It is time we dealt with this particular crime as part of the public order Bill. There is legislation in this regard — part of the Road Traffic Acts will certainly deal with part of the problem — but the legislation that exists presently is not dealing adequately with the problem. I tabled this amendment to put down a marker specifically in relation to being within the vicinity of a car with intent to steal. That should be a separate punishable offence.

Mr. J. O'Keeffe

I support the intent of my colleague in relation to this amendment. Offences in relation to cars are increasing, particularly in our cities and urban areas, and in so far as we can tighten the law I believe we should do so. Some of these offences are covered in the Road Traffic Acts but the question arises as to whether that is sufficient and the Minister will enlighten us in that regard.

I was quite horrified this morning listening to a programme on the radio which dealt with the problem of people stealing cars and driving them at a high speed in built-up areas. I was shocked to learn of a report that the Garda do not have sufficient Garda cars to pursue these people and put a stop to this crime. In fact, at one stage in the principle station in the city there was only one Garda car available which could not be released to go to the rescue of people in a particular housing estate where speeding was taking place in stolen cars. If the problem has reached that stage it is a sorry state and perhaps now that I have raised it, the Minister might comment on this point. Law abiding citizens must be concerned to learn of a problem such as that. I am merely touching on the practical problems faced by the Garda in coping with offences involving cars and I can do no more than that. In relation to this Bill, if we can tighten the law to provide the Garda with further legal weapons in their fight against crime and in their efforts to control this particular problem, then let us do so. I would ask the Minister to take on board this amendment which will help to strengthen the law in this area.

Chairman

Before I call the next speaker I would remind Deputies that it is not necessary for Members to stand. They may remain seated if they wish to do so while making their contribution.

Mr. Briscoe

I was wondering if the words "loitering with intent" rather than "within the vicinity of such a vehicle" might be more appropriate because anybody might be arrested if they happened to be passing a vehicle or if they were in the vicinity of a vehicle. If we use the words "loitering with intent" it leaves it to the judgment of the garda who is making the arrest.

I agree with what Deputy Mitchell said in relation to the problem of cars being broken into, but most of the young people stealing cars today are 12, 13 and 14 years old. In relation to the penalties imposed here it would be appropriate if the parents of these children were made responsible for their actions and had to pay the necessary penalties. I do not know whether the Minister would be prepared to do that, but in view of the fact that so many car thieves are under the age of 18 the Minister might consider isolating this section from the house breaking section. On the other hand, many people who break into houses are also aged 12 and 13 and these people become involved in handbag snatching also. Therefore, when the Minister is replying I will be interested to see if thought is being given to these areas of crime.

Mr. Browne (Carlow-Kilkenny)

This amendment is an attempt to prevent theft taking place. Apprehending people who have stolen cars is necessary, but if people are loitering around cars and are up to mischief there should be some legal means to charge them and prevent them from stealing cars. I realise the definition of "vicinity" may pose problems in this regard. Reference has been made to the age of the people who are stealing cars. That is an unfortunate fact but it does not affect the issue. Indeed, Bishop Comiskey, who made what I thought was a very sensible statement last week, has been taken on by people who represent in one case the parents of Ireland. If there were more Bishop Comiskeys in this country with the same attitude there might be less stealing of cars and many other crimes taking place. It is unfortunate that we are going overboard in being liberal with out views. We are almost putting baulks in front of parents who are doing and should be doing a reasonable job. They should be seen to control their children and thus prevent many of the problems we are trying to deal with, regardless of what state the nation may be in ten years from now.

Minister for Justice (Mrs. Geoghegan-Quinn)

We are all aware of the crimes being committed in regard to vehicles and I appreciate the concerns which Deputy Mitchell has outlined and which prompted him to put down these amendments. I understand from you, Chairman, that we are dealing with amendments Nos. 16 and 19a. However, I cannot accept these amendments and I will try to explain my reasons for this.

The amendment to section 12 raises two separate issues and I will deal with both of them in turn. First, the amendment provides that it should be a specific criminal offence for a person to enter a vehicle with intent to commit a crime. I believe that the problem the Deputy and others have raised here is already covered adequately under existing law and, accordingly, I do not see any need for creating a new offence along the lines that are being suggested. In particular, I draw the Deputy's attention to the Criminal Damage Act, 1991, which makes it an offence to damage another person's property including a vehicle.

The maximum penalty for a criminal damage offence under the 1991 Act is imprisonment for ten years and a fine of £10,000. In addition, where a person enters a vehicle without causing damage to it he or she can, depending on the circumstances, be charged with attempt to commit larceny or unlawful taking of the vehicle. In that context also the amendment to section 14 would appear to be superfluous, given that it is difficult to envisage circumstances where a person enters another vehicle in a manner which causes fear in another person where another crime or, indeed, an attempt to commit another crime was not being committed.

The second part of the amendment would make it an offence for a person to be in the immediate vicinity of a vehicle with intent to commit an offence. I have given serious consideration to this proposal and I am not sure that it would achieve the purpose that the Deputy intends. He may have proceeded on the basis that a person who is intent on stealing or indeed breaking into a vehicle will spend a significant amount of time close to that vehicle before committing the crime. As Deputy Mitchell and others would agree, the reality in most of these cases is that where a criminal finds a likely target he or she does not intend to hang around but commits their offence without delay. Therefore, from a practical point of view I am not convinced that Deputy Mitchell's proposal would make any worthwhile contribution to tackling the problem of offences against vehicles.

I have a further concern about the second part of Deputy Mitchell's amendment. It is that the wording, in so far as it would relate to a vehicle, would be extremely difficult to interpret and this could give rise to legal difficulties in the future.

In that regard I should mention that the offences provided for in paragraphs (a) and (b) of section 12 (1) are related to trespassing on property. I would be concerned that the Deputy's proposal might lead to enforcement difficulties. For example, would a person have to be in the immediate vicinity of a vehicle for a certain length of time before he or she could be charged? That is another reason why I could not accept this amendment.

The considerations of proof — in relation to establishing that someone was in the vicinity of a building for the purpose of trespassing with intent to commit a crime would, in reality, be different from those in relation to crimes involving vehicles.

When discussing section 9 some weeks ago I referred to the difficulties with the creation of a new general "loitering with intent" type of offence which Deputy Briscoe mentioned earlier. That offence was found to be unconstitutional but the powers being given to the Garda under section 9 to move people on, for example, where there are grounds to apprehend for the safety of vehicles should help deal with the kind of problems Deputy Mitchell and others have outlined.

Mr. G. Mitchell

I think it was Lord Welby who said that he could not define an elephant but he would know one when he saw one. I would know a vehicle when I saw one and any garda would know a vehicle when he saw one.

I am concerned that there are cars which are not interfered with simply by people passing by, they are stalked, they are interfered with once, twice or even three times. People have to put chains around the driving wheel to prevent their cars being driven away. In the still of the night if someone is found within the vicinity of a car, stalking that car with one of those jemmy type instruments under his jacket, a garda would be able to form the opinion that he is there with the intent of commiting a crime.

It should be possible for us to leave it to the Garda and the Judiciary in this type of situation to apply the Act in reasonable circumstances and for judges to find people guilty only where there is evidence. However, there is a clear difficulty in this regard. The fact that there was a section in the 1908 Act did not prevent us including section 8 of this Act when the Bill was presented to the House.

This amendment would be a marker for the criminals, it would give the Garda and the Judiciary a clear indication of our concern. I believe that it would alleviate the problem because the rate of interference with vehicles in this city and around the country is substantial, it is far beyond any acceptable level. In particular, we must put down a marker that if a person is loitering with one of those implements that can be used for yanking out the centre of a lock in a vehicle it is reasonable for a garda to assume that that person is there with intent to commit a crime.

In those circumstances, this section is reasonable and it is something which we should actively promote and be seen to promote. We should be seen also to put down a firm marker to anybody who is interfering with other people's property, in this case, specifically cars, that it will not be tolerated. Accordingly, I will be pressing the amendment.

Mr. J. O'Keeffe

I would draw the Minister's attention to the fact that under this section if we include the amendment there is a specific presumption in the section which possibly could be useful to the Garda. As the Minister is aware, when one is talking about intent the whole question of mens rea is a difficult subject of proof in the courts but in section 12 (2) there is a presumption which could be useful from the point of view of proving the case. The subsection clearly provides:

. . . . . that is reasonable to conclude that the person was so present as a trespasser with intent to commit an offence, shall be presumed, until the contrary is shown, to be so present with the intent to commit an offence.

The presumption is there and accordingly it would apply to the section as extended with the amendment, that that would reinforce the position of the Garda.

I had hoped that the Minister would comment on the question of enforcement, particularly in regard to the disturbing report that no Garda cars were available to deal with these young thugs who steal cars and speed around built-up areas. That is an aspect which caused me great concern and the Minister should give an assurance that whatever the problems may have been in the past the Garda will be adequately resourced to enable them to patrol in Garda cars in order to tackle this problem.

Mr. Barrett

With respect to the Minister, we are missing a glorious opportunity here to deal with what is a prevalant and serious problem for ordinary members of the public. We make a mistake in this House in that we act as lawyers when we are dealing with criminal Bills. We are trying to deal with common problems facing people in everyday life and we quote various sections of old Acts and say this may not be covered and that may not be covered. We should send out a message, loud and clear, from this Chamber to the public, first, that we understand their problem and, second, that we are endeavouring in this legislation to deal with their problem. If it is vaguely covered under some other Act, so be it.

As I said, at the end of the day we argue points of law here as if the courts did not exist. When somebody is brought before a court the court decides if that person is guilty or innocent. Whilst we may engage in academic arguments about the interpretation of a word and so on, the reality is that we are making law and we are indicating to the court and to the Garda that we support the public in their anxiety to deal with everyday problems.

In this section the Minister quite rightly makes it an offence to be within the vicinity of a building or the curtilage or part of such building for the purpose of trespassing thereon. It is presumed in the section that one is not there for any good reason. What my colleague, Deputy Gay Mitchell, is saying in this amendment is that in addition to being in the vicinity of a building, being in the vicinity of a vehicle with intent to break into that vehicle is also an offence. The onus is on gardaí to produce the evidence and it is up to the court to decide that the evidence is sufficient but, as I said on the last occasion, we are making asses of ourselves as legislators when we say to the public that not until someone eventually smashes the window of a car can we nab them. We cannot do anything before they smash the window even though we know that they are not there with good intent.

For that reason I urge the Minister to reconsider her thinking on this issue because this is a huge problem occurring on a daily basis for ordinary people. A law should protect ordinary people from hoodlums and vandals who go around smashing up people's property. If they damage the property I accept that that is covered under the Criminal Damage Act but we are not talking about damaging property. We hope to take action before the act to prevent them from damaging the property and give powers to the Garda to apprehend these people before they carry out the act. We should treat vehicles the way we are treating buildings under the same section.

Why should we differentiate between a building and a vehicle? The vehicle will be damaged and I am sure my colleagues who represent Dublin constituenties known exactly what I mean. I am sure Deputies from other urban and rural constituencies have had the same experience but to find one's car in Baggot Street with the windows smashed and then to hear that some fellow had been hanging around acting suspiciously all afternoon must be very frustrating. He was obviously surveilling the area, eventually saw his chance, smashed all the windows and removed car phones, radios and so on.

In this Bill we want to deal with the person who is acting in a suspicious manner, who everybody knows is about to do something criminal. The courts can decide on guilt and I hope the Garda will be able to prove that a person was about to commit the offence of damaging a vehicle. We should not refuse the power to the Garda to deal with this. We will not do any harm. It will not be an infringement of people's rights. The Garda will have to produce evidence and the court will have to decide if the person is guilty. Why not give them the power to deal with it and not wait for the damage to be actually done before we can deal with this problem?

Mr. Costello

The intention behind the amendment is certainly worthwhile. I have listened to the Minister's explanation as to why she is not satisfied to accept this amendment, and I am inclined to go along with her for the most part. The amendment is valuable in that it is a provision dealing with a type of modern day offence which is far too pervasive in our society. The problem of stealing vehicles, robbing cars, breaking into cars, crashing cars and joy riding in cars is one of the serious urban offences, that is part and parcel of our time and it should be dealt with in a serious fashion. We should give the Garda the power to deal with it. The Minister stated that she is satisfied that the existing Criminal Damage Act of 1991 covers the first part of the provision in this amendment. The provision with regard to entering any vehicle was the part of the amendment that I supported. If the Minister is satisfied that the 1991 Act covers entering the vehicle, interference with the vehicle, damaging the property, I am prepared to accept the Minister's assurance on that.

I had a reservation about the second part of the amendment which refers to a person who is in the vicinity of such a vehicle. Because a car, which I presume is the vehicle most of us are referring to is a mobile unit which is generally parked in a public place, a car is subject to most interference; but it would be extremely difficult to provide sufficient evidence in a court of law to uphold a case where a garda arrested somebody because he was in the vicinity of a vehicle like a car. Every person is entitled to be in a public place. While our purpose here is to support the public and be seen to be supporting the public and the Garda, at the same time we must not frustrate the Garda in fulfilling their duty. I think the Garda would find it extremely difficult to get successful prosecutions on foot of the second half of this amendment because of the vagueness of being "in the vicinity of a vehicle". There is no sense in putting a provision into law that is not effective, efficient and useful for the Garda. I am not happy with the second part of the amendment, but I am quite willing to accept the Minister's assurances in relation to the first part.

I am not sure that I would accept the Ministers distinction between being in the vicinity of a building and being in the vicinity of a vehicle. It will be equally difficult to prove a case in court if the accused is neither in the building nor in the curtilage of a building but in the vicinity of a building. There is such a degree of vagueness that the onus of proof will be extremely difficult to uphold in court. I would ask the Minister to perhaps look again at the word "vicinity" in relation to section 12 (1) a and section 12 (1) b.

Mr. Browne (Carlow-Kilkenny)

A worse message than the failure of any law we may implement here would be if these vandals and car thieves hear the Minister say that we could not implement this thing because we might not be able to prove it and it is covered somewhere else. They would feel that they had complete freedom to carry on as they have been. The public would expect us to be aware of the problems, and car stealing is certainly a major one at this stage. We should be seen to be ensuring that we will prevent car thefts rather than acting when they are stolen or broken up. Deputies are worried about the effect of this amendment on innocent people walking the footpaths, but I am quite sure that if a husband and wife or a boyfriend and girlfriend were loitering around a car they could very easily explain to a garda why they were there and could prove that they were innocent. We could give all sorts of extreme examples as to why this would not work.

On the other hand, if as Deputy Mitchell says, if a fellow with a jemmy under his jacket has been loitering around a car for 15 minutes and is four miles from his home, it would take a lot of explaining to the Garda or to the court as to what he was doing there. If a person had a bunch of keys, would it be sufficient to say that he was trying to find out how many cars he could fit keys into and that he had no criminal intent? We can go overboard trying to explain why one cannot cinvict people. I accept what Deputy Barrett said — we should not be a court. There are courts, solicitors and barristers to defend cases. We should send out a very definite message to the public that we are serious in updating legislation to deal with a major problem. Innocent people will still be innocent after this amendment has been accepted, if the Minister accepts it.

Mr. G. Mitchell

I am seeking to amend section 12 to include the words "to enter any vehicle or be within the vicinity of such a vehicle". I would prefer the words the "immediate vicinity of such a vehicle, with an intent to commit an offence." Already, we have in that section the words

"to enter any building or the curtilage of any building or any part of such building or curtilage"

I do not see why we cannot use the same wording in relation to a vehicle. It is not a moving vehicle, but a stationary vehicle, a fixed piece of property, just like a building, a curtilage or, for that matter, a mobile home.

In my other amendment, No. 19a, which is being taken with this, I seek to insert the words "or vehicle" in a section which reads:

It shall be an offence for a person, without reasonable excuse, to trespass on any dwelling or the curtilage thereof

and I ask to add in the words "or vehicle"

in such a manner which causes or is likely to cause fear in another person.

It seems to me that the legislation which the Minister refers to, if it refers to vehicles as property, would similarly refer to any building or curtilage of a building. If we are strengthening the sections dealing with buildings or the curtilage of a building why can we not deal similarly with vehicles. This is one amendment which could reasonably be included. One might ask how this would work in certain circumstances and would we not be fearful of infringing the rights of other people? We have to be careful about that, of course, but we included a section in a Bill recently about kerb crawling. On pulling up in a car at night one is not fearful of being arrested for kerb crawling because areas in which kerb crawling occurs are areas known for other activities. Similarly in this case reason would apply. If a person is caught within the immediate vicinity of a car with implements or whose movements would give any reasonable person cause to suspect that he is within the vicinity of the vehicle with intent to break in, that should be an offence. I found the locks of my car drilled and knocked off. That was not done by a fellow picking up a rock on the side of the street. Whoever did it came equipped to do it with some sort of an implement. It is my understanding that these implements are being made while people are taking part in training or educational courses or while they are working. Criminals are getting people to make the implements which they then carry in order to drill a lock and then yank out the centre of the lock.

Is the Minister telling me that if somebody is caught in the dead of night within the vicinity of a vehicle outside my house or someone elses house and acting in suspicious circumstances with one of these implements on his person it is not possible for us to write into the law words which would make that a separate punishable offence? It should be possible and it would go a long way to preventing much of the vandalism and the stealing of cars that people are experiencing day in day out, particlarly at night time.

Miss Harney

On the last occasion on which we met I had to leave before Deputy Mitchell moved his amendment. I am not sure if the Minister said on the last occasion that she would look again at section 12. Perhaps she could clarify that for me.

I have considerable sympathy with the points made by Deputies Mitchell, Barrett and Browne. The theft of motor vehicles is a major problem, particularly in urban areas and it is certainly a very frustrating problem. A close friend of mine has had his car stolen on four occasions in the past 12 months. On one occasion when gardaí phoned late in the evening to tell him that the car had been left in a well-known hotel car park he decided to wait until the next morning to pick it up but when he got there the next morning it was gone. The person who had stolen it obviously felt that as it had not been removed it was not needed and he went back and took it again.

There is no doubt there is a major problem but the problem lies in trying to apprehend those who are responsible rather than in the existing law. It certainly is an offence to steal or damage a motor vehicle. The difficulty in apprehending those criminals has to do with detection work and the effectiveness of the police force and so on. However, the Minister should look at the possibility of including vehicles. If we are to have an offence of criminal trespass it would be wrong not to include vehicles. What we are doing here is making law. It is a matter for others to implement it and to interpret it. That is not a matter for us. We have to make sure, in so far as we can, that we make laws that are workable and enforceable and not simply give the impression that by putting in certain words we are going to suddenly end particular problems.

I have a problem with the use of the word "vicinity". I have often been in the vicinity of a car and I have looked at a new car and looked in the window. I would hate to think that because I was looking into somebody's car it would be assumed that I was going to steal it or damage it in some way.

Mr. J. Mitchell

Having a look at a State car perhaps?

Miss Harney

For example, a new type of Mercedes was launched last week. I read about it in the newspapers but I have not yet seen it. If I get an opportunity to see one I will probably have a good look at it. Not so long ago on Pembroke Street in Dublin I saw a very fancy car from Northern Ireland. It looked like something in which one would go into space rather than something one would drive on the Irish potholed roads. Certainly it was a spectacle well worth examining. That may be very well for me, but if one has a 14 or 15 year old child who has the same interest and a garda comes alone, it might not be so easy for the child to prove that he did not intend to steal it or damage it. As I said, I have a problem with the word "vicinity". The vicinity of a vehicle is different from the curtilage of a building or a dwelling. The Minister should take on board the points that are made by the Deputies in relation to vehicles to make sure that we are not leaving a loophole in relation to the law we are making on criminal trespass.

I was complimented the other day for not having omitted anything in a long list of things, but I have to say that mobile homes were omitted so I was not so perfect after all. I used the word "home" instead of the word "dwelling". Even when one thinks one has exhausted every possibility, within a matter of weeks after an amendment one finds that one has left something out. It draws to our attention the need to be careful and practical and to make the wording as comprehensive as possible but not so comprehensive that if one leaves something out it is automatically omitted for ever.

The Minister is aware of the problem of car thefts in Dublin in particular. It seems to be more a problem in Dublin than anywhere else. I would be happy if the Minister would agree to consider a Report Stage amendment to section 12 to ensure that there is no gap in the legislation in so far as vehicles are concerned.

Mr. O'Donoghue

I, too, appreciate the sentiments and the thought behind Deputy Mitchell's amendment. At first glance it appears to be a very reasonable amendment but it is too vague and too general. The reason I say that is that when one is dealing with buildings there are a number of elements which create the offence. The question of the individual trespassing or intending to trespass in the building is specified, but it is not specified in Deputy Mitchell's amendment. From reading it, one would take it that if an individual is in the vicinity of a vehicle with intent to commit an offence that individual can then be charged with that offence. What offence is he speaking about? Is the Deputy saying that if an individual is in the vicinity of a bicycle with intent to commit an offence that should not be an offence at all? In other words, there is no connection made between the offence and the vehicle in Deputy Mitchell's amendment. So far as I can see, that would be a fundamental flaw if my reading of the situation is correct.

Mr. G. Mitchell

The same penalty would apply to section 12 which would apply to all the other matters as set out in section 25. Section 25 makes it possible, for instance, where a member of the Garda Síochána is of the opinion that an offence is being committed under a relevant provision, for him to demand the name and address of the person, to arrest without warrant any such person who fails or refuses to give his name, and various matters of that kind. A person guilty of an offence under that section shall be liable to a further penalty. The full rigours of this section would apply if this amendment was accepted.

Mrs. Geoghegan-Quinn

As I said at very great length at the beginning, I appreciate very much, like everybody else, the sentiments behind the amendment. I tried to explain that my advice is that the amendment is unnecessary, that it is superfluous and that the intent of it is already covered under the Criminal Damage Act, 1991. I remember when the Committee Stage of that Act went through this House because I was the Minister of State who brought it through, and we had a long discussion here with former Deputy Pat McCartan in relation to the kind of implements that could be used and how they could be used. In fact, I learned a great deal about car theft. I think Deputy Harney was here as well, and we had a good debate about it at the time.

Mr. Browne (Carlow-Kilkenny)

I hope the Minister has not put it into practice.

Mrs. Geoghegan-Quinn

I have a copy of the Act to refresh my mind and the minds of all the Members here, so that there is no doubt in any mind that what Deputy Mitchell is trying to have included in this Bill is already included under the Criminal Damage Act. Section 4 of that Act states specifically:

A person . . . who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

(a) to damage any property belonging to some other person,

As I have already said, property, under the Criminal Damage Act includes vehicles. It goes on in section 12 (5):

A member of the Garda Síochána may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be about to commit an offence.

It covers not only the person committing the offence but also somebody that the member of the Garda Síochána might have reasonable cause to suspect is about to commit an offence. Exactly what Deputy Mitchell wants to have included here is already provided in the Criminal Damage Act. I appreciate very much that Deputies would like to have that restated but I cannot accept the terms of this amendment. The Parliamentary Draftman's advice is that it is not necessary, that it is not appropriate to provide for a vehicle in a section that is dealing with trespassing on property. While not giving any guarantees to Deputy Mitchell at this stage, because I do not want to tie my hands, I will ask my officials to put to the Parliamentary Draftsman the points that have been raised by Members here and if we can accommodate the sentiments that Deputy Mitchell wants to have included in some other formula of words, then I will do that on Report Stage.

Mr. G. Mitchell

It is possible for somebody to be within the vicinity of a vehicle with intent to steal that vehicle but not to be about to steal it. There is a difference, in that "about to steal a vehicle" means one is actually going about stealing it. I want the legislation to specify that there is an offence, if somebody is within the vicinity of a vehicle giving rise to a reasonable suspicion of intent to steal it. Given the extent of wanton vandalism on vehicles it is a reasonable provision and I am pressing the amendment.

Mr. J. O'Keeffe

I am glad the Minister referred to the Criminal Damage Act. It does not cover the point raised by Deputy Mitchell at all. As far as I can see it relates to the possession of equipment, causing damage or likely to cause damage. There is a clear distinction here. We are talking here about it being an offence to enter a building. The Bill does not say anything about possession of implements. Deputy Mitchell wants to extend this to entering a vehicle with intent and then there is a presumption of intent in certain circumstances and the same arises with "in the vicinity". I am pretty sure that the point made by the Minister does not apply and in fact we are talking about a different kind of offence. We never got an explanation about there being no Garda cars around to enforce the section. I take it the Minister does not want to reply to that point?

Mrs. Geoghegan-Quinn

No, I would be delighted to reply. I am sorry I forgot to reply to that point and I also forgot to reply to Deputy Harney's specific question. I said last week that I would try to find a formula by Report Stage to marry the way we drafted the Bill and the various points made by both Deputies Harney and McDowell and I intend to proceed on that basis. In relation to the Garda vehicles that Deputy O'Keeffe maintains the newspapers say were not available, when any incident like that occurs the Garda Síochána are always asked by the Minister's office to explain what happened. At all times we get a very full and lengthy explanation about the number of vehicles involved in a chase, how it happened and so on. I do not accept a criticism that the Garda do not have the necessary equipment to deal with any given situation.

I will be delighted to put Deputy O'Keeffe's points to the Garda Commissioner and to the Chief Superintendent in charge of that area. I would be very concerned if what Deputy O'Keeffe quotes from the newspapers is the case, because no financial resources have been spared in providing the Garda with all of the equipment necessary to combat this crime. Deputy Mitchell is correct in that it is not just in Dublin city that this kind of crime is being committed but in most urban areas around the country, and in some urban areas it is a growing concern. It is a matter of tremendous concern to me and it should be to motor manufacturers because if one looks at the data and figures that are produced now it appears, certainly in my part of the country, that one particular motor manufacturer is way ahead of all the others in relation to the number of its cars that are being stolen regularly. That was the case in relation to another motor manufacturer some years ago when this phenomenon appeared and he certainly went out of his way to provide anti-theft devices in newly manufactured cars and it worked very effectively. Perhaps the time has come for the motor manufacturer who is now being mentioned regularly in our newspapers to do something similar to assist those who purchase their cars and to assist the Garda to cut down on the current level of car stealing. However, I will be glad to ask on Deputy O'Keeffe's behalf what happened in the incident he referred to.

Chairman

Is the amendment being pressed?

Mr. G. Mitchell

Yes.

Chairman

As there are fewer than 31 Members present, under Standing Orders we are obliged to wait eight minutes or until a full membership is present before proceeding to take the division.

Amendment put.

The Select Committee divided: Tá, 8; Níl, 17

Tá
Barrett, Seán.	McGinley, Dinny.
Browne, John (Carlow-Kilkenny).	Mitchell, Gay.
Carey, Donal.	O'Keeffe, Jim.
Harte, Paddy.	Timmins, Godfrey.

Níl.
Briscoe, Ben.	Ellis, John.
Costello, Joe.	Fitzgerald, Liam.
Callely, Ivor.	Geoghegan-Quinn, Máire.
Harney, Mary.	Ó Cuív, Eamon.
Kavanagh, Liam.	O'Donoghue, John.
Kemmy, Jim.	O'Leary, John.
McDowell, Derek.	Ryan, Eoin.
Mulvihill, John.	Wallace, Dan.
	Walsh, Eamon.

Amendment declared lost.

Chairman

It is proposed to take amendments Nos. 17 and 18 together by agreement. Is that agreed? Agreed.

Mr. G. Mitchell

I move amendment No. 17:

In page 6, subsection (3), line 28, to delete "£500" and substitute "£1,000".

The Minister is providing in this section for a fine not exceeding £500 or imprisonment for a term not exceeding six months, or both. I am proposing to increase the fine from £500 to £1,000 in the hope that a substantial fine will be a sufficient penalty in itself and will not require a prison sentence as well. A prison sentence itself is not a major deterrent and in so far as it is even a mild deterrent it is expensive on the taxpayer. If somebody was faced with paying a fine of £1,000 they would think twice before breaching the law a second time under this section.

I ask the Minister to consider ways and means of applying penalties which do not automatically mean imprisonment. If we include provisions in the Bill — this is a general comment rather than a specific comment on this section — for imprisonment for everything, then we will end up putting many people into prison and have the revolving door policy whereby people go in and out of prison on the decision of the governor of a prison on a particular day. We should be able to put into prison anybody who needs to be incarcerated, while anybody who does not need to be incarcerated should face a severe penalty, if that will deal with the problem. For example, in cases where somebody does not pay a fine or does not observe a community service order, then it should be possible to confiscate one of their assets to that value or have an attachment to their earnings, social welfare benefits or wages.

In reply to a recent parliamentary question the Minister informed me that the non-payment of fines accounts for 14 per cent of cases and only 1 per cent of those prosecuted for such an offence end up in prison. The amount of paper work involved in dealing with such cases is extraordinary. If a judge in the case of a person not paying a fine of £1,000 makes an attachment order to social welfare benefits for £1,200 over a period of 12 or 18 months — the extra £200 is to cover the interest which would have accrued — people would pay their fines on time. If such a penalty does not deal with the problem then it should be open to a judge to send someone to prison. There are people in prison at present who should not be there and people on the streets who should be in prison. If we can ensure that all those who should go to prison do go by keeping out of prison people who do not need to be there by punishing them in another way we will have done a good day's work. I make that point because in automatically passing this section we will be overcrowding still further our already overcrowded prisons.

Mr. Costello

I do not support either of the amendments. The penalties proposed in the section are adequate to deal with the offences. I am forever trying to emphasise that we should be providing for a wider variety of sanctions in our legislation. Our duty as legislators is to try to ensure that the penalty fits the crime. This section proposes to make trespass, which was hitherto a civil offence, a criminal offence. We should be seeking to impose an appropriate sanction for this offence rather than proposing the same unimaginative, unsuccessful and expensive type of sanctions which pepper all our legislation — a fine or term of imprisonment. We should be able to go beyond that. Increasing a fine from £500 to £1,000 will not solve the problem because the likelihood is that people who are prosecuted for such an offence are unlikely to have any disposable income. I do not think that is the road to go down. We are talking about disposable income which most people who commit such offences do not have. There may also be family commitments involved. An obvious penalty is community service, restitution. That is the type of penalty we should be talking about in the context of public order legislation; there should be restitution to the community. Public service is the obvious form of sanction that should be provided for such offences. I would much prefer the Minister to consider extending the range of sanctions provided for in the legislation so that the Judiciary would not have to impose the same old sanctions again and again.

I agree with Deputy Mitchell that there is an inordinate number of people in prison for the non-payment of fines. This has been the case for a long time. This matter is referred to specifically in the Whitaker report on the penal system. That report strongly recommends that prisons should not be used for punishing people who have not paid their fines and that alternative sanctions should be imposed on them. This would alleviate the problem of overcrowding in our prisons: a reduction of 10 per cent in the number of prisoners would alleviate the overcrowding in prisons. It is alleged that due to overcrowding we have a revolving door prison system. We could alleviate much of this overcrowding by imposing alternative santions on people for the non-payment of fines. I strongly suggest to the Minister that she should consider extending the range of penalties proposed in the Bill.

Mr. Barrett

I totally disagree with my colleague, Deputy Joe Costello, that somebody who does not have money should not be punished financially. Nobody ever thinks of the victim of crime. It is all very well to say that somebody who damages property or instils fear in people should not be hurt in the pocket and maybe they should do commuity work.

Mr. Costello

On a point of order, I did not say that they should not be punished financially. I said that there should be appropriate sanctions——

Mr. Barrett

The Deputy does not believe in fines. He believes that these people should do community work. I disagree with that view. These people should not commit crime if they are not prepared to pay the victim who has suffered as a result of their actions. That is what is wrong with this society. It is all very well to say that an offender should do community work but what about the victims of crime who have suffered loss, who are afraid to open their doors at night and who have not been compensated for the fear instilled into them? Many people are afraid to open their door after 7 p.m. I find Deputy Costello's argument quite extraordinary. If a court decides that a victim should be compensated — I strongly hope our society will look after the victim — the offender should compensate him even if it takes 20 years. As Deputy Mitchell said if the fine has to be extended over a period of time then so be it. The difference between a fine and compensation is that the fine goes into the coffers of the State while compensation goes to the victim. The fine does not go towards the victim who has suffered. People who commit these sort of crimes should compensate those people who have been injured as a result. An injury can be both physical and mental. People who suffer mental damage, whether through rape, violence or fear, must be compensated by the offender, who must also pay a fine to the State.

The most extraordinary thing about this provision is that it provides for a fine of £500 and/or six months imprisonment. It costs the taxpayer approximately £15,000, that is, £30,000 per annum, to keep a prisoner in Trinity House for six months. The cost to the taxpayer of keeping a prisoner in Mountjoy Prison is approximately £17,500 per annum. A judge can decide to either impose a charge of £17,500 or £30,000 on the taxpayer by sending the offender to prison or fining him up to £500. The two do not match up. As I have said for many years, one would think that time has not marched on. With respect to the Minister and her Department, all provisions relating to fines in legislation introduced over the past 40 years refer to "six months imprisonment and/or a fine of £500 or £200" as the case may be. One would think no other form of punishment had been invented since society began. Why do we not provide for penalties such as community service and compensation? Why do we not give the court the power to pay compensation in certain circumstances? Why does the penalty always have to be a fine? The fine goes back into the coffers of the State and it bears no resemblance whatsoever to the cost to the taxpayer of keeping an offender in prison. A man from Shankill came to see me after he was released from prison. He was unemployed, had five children and had no money to pay his television licence. He told the court he would pay the fine in instalments. However, he was told the system could not operate in that way and was sent to Mountjoy for a week. When he was release he was approached yet again because he had not paid this year's licence. That is nonsense. I am not saying that this man should not be punished or pay his television licence like the rest of society, but he should be facilitated and allowed to pay it in instalments. It is wrong that somebody who has committed a serious offence should be released from Mountjoy Prison having served a quarter of their sentence so that a person who has not paid his television licence can be imprisoned.

This is a joke. I am not saying we should lessen the seriousness of the offence by letting him off scot-free. But, as Deputy Mitchell and I have said on many occasions, prison should be reserved for those who commit serious crimes and they should serve their full sentence.

I would prefer to see us make provision for the payment of compensation, fines, community service and, in more serious cases, a prison sentence.

We should give the courts more discretion to decide what punishment should be imposed on the criminal, taking all the circumstances into account. In supporting Deputy Mitchell's amendment for the reasons he has outlined, which are extremely sensible, I ask the Minister to consider the possibility of making provision for community service and the payment of compensation so that we can move away from the concept of imprisonment and/or fines.

Mr. Kemmy

I dislike disagreeing with Deputy Barrett and Deputy Mitchell, because I know the amendments are well intentioned, but they have put the emphasis on the wrong issue. Deputy Joe Costello got the balance right. Our response in tackling the crime problem in society has been to put people in prison but we will not have enough prisons or be able to build them quickly enough if we fail to resolve our unemployment problems. In some large housing estates in Limerick 90 per cent of the population are unemployed. In those circumstances it is very hard to apply the normal sanctions.

Last week I cited an example to the Minister to show that difficulties are being experienced in churchyards and graveyards and suggested that the Bill should be extended to include these. However we are also confronted with the problem of young boys going onto railway tracks and the permanent way. Indeed, two boys from families I know in Limerick were killed on the railway track after they had sniffed solvents and other substances. They had been playing a game with their friends whereby they would lie on the track and jump off as the engine approached. However, the two boys did not jump off in time and were killed.

That is the attitude they take to life when they have drink taken; they are living on the margins of life. There is no point in me, as a politician, telling them that things will improve and that there are projects in the pipeline when they have been marginalised and pushed to one side by society. They know very well that life is not good or rosy for them and that is the reason they sometimes take refuge in alcohol and solvents. When they are under the influence of alcohol and sniff glue and other solvents they do all the things I have mentioned.

Recently I walked the railway line and permanent way in Limerick with the chief engineer because residents had complained that young people were engaged in crime and vandalism and that they were throwing stones and stealing the washing from the line. It was like being in Woolworths on a Saturday; I was surprised at the number of people walking along the line. As a young boy I was afraid to walk along the line, but these people had no compunction about doing so. Indeed, the young people thought I was an engineer. It was being used as a thoroughfare or short-cut by many people some of whom were drinking wine and cider at the side of the track.

The sanctions that have been mentioned could not be imposed on these people. We would make matters worse if we introduced a draconian measure, given that these people have been marginalised. Prevention is better than cure; we will not solve the problem by introducing more sanctions. We must resolve the problem of unemployment and give these people who are living on the margins of society a say and allow them to participate in the world around them. We need to adopt a more sensitive approach. If I felt these amendments would lead to a resolution of the crime problem I would support them but the emphasis has been put on the wrong issue. I share the view expressed by my colleague, Deputy Costello.

Mr. E. Walsh

I disagree with the proposal that the fine should be increased from £500 to £1,000 because the majority of the people we are concerned with would not be able to pay £500, as proposed in the Bill, let alone £1,000. It would be pointless fixing penalties that people would not be able to pay, because most offenders are young, are not in employment and would have no prospects of paying £1,000 to the State. If such a fine was imposed they might have to apply for supplementary welfare or seek further State assistance. That would make a mockery of the process.

I wish to repeat the point made by Deputy Barrett and ask the Minister to consider it. If a person takes a video recorder he should have to replace it and pay compensation to the victim. Similarly, if a person takes a television he should have to do likewise.

I am not an expert in this area but it appears that finance raised by way of fines is paid into State coffers. When we have an opportunity to do so, I would like to see a change in emphasis so that the fine imposed on the person who has committed the crime is used to compensate the victim. Perhaps we should allow the courts discretion. If a person suffers a personal loss as a result of theft, would there be any advantage to be gained by the victim by imposing a penalty of £1,000, which is a ridiculous figure, or a term of imprisonment? It would be far more effective to apply the principle of restitution. Second, the option of community service, to be undertaken in the community where the offence was committed, should also be considered.

Miss Harney

I agree with many of the points made by Deputy Mitchell, who made his case well. However, we seem to have moved on to deal with a different issue. It is being assumed that the person who commits a crime is poor and the person from whom they steal money is very rich. That is a false assumption; very often the poor suffer more at the hands of the criminal than the wealthy. I have come across many cases where widows and old age pensioners were robbed of everything they possessed, perhaps their weekly pension on their way home from the post office. It is therefore wrong to assume that the person who commits a crime is poor — and to use this as a justification — and the victim is wealthy.

We will have to take the matter of the collection of fines more seriously. Fines are not enforced effectively. Invariably, the petition system seems to operate and operates very effectively. I can understand the reason for this. What does a Minister do if he has a problem with accommodation and is faced with a choice of either reducing a fine and allowing somebody to pay it or placing them in a place of detention? I understand that the non-payment of fines accounts for 30 per cent of committals. The fact that only 1 per cent of the prison population in any one day are there for the non-payment of fines is not the same issue. Thirty per cent of those committed to prison in any year over the past two years — unfortunately we have not yet had recent prison reports — are committed for the non-payment of fines. It has become a total farce. It is not taken seriously. There are a number of things we need to do, and I know the Minister is sympathetic to that. We need to allow for the payment of fines by instalments. If a £200, £300 or £400 fine has to be paid by a certain day and the person involved just does not have it, there is no way he can pay by instalments over 12 months or six months. That is the only effective way to get large sums of money. There should also be attachment of earnings. I certainly agree with Deputy Costello that we need to keep people out of prison in so far as possible. I say that for a number of reasons including the fact that prison is expensive. Whitaker estimated that if we kept going on the way we were, by 1995 we would need 4,000 prison spaces, that we would need to double the amount of prison accommodation available. It will take time to provide prison spaces. Even the Minister's recent announcement about prison spaces will probably take two or three years to fulfil. I do not know what the time frame is but it will take a considerable length of time. It will probably cost £250,000 per prison space, so it is expensive while certainly not being effective. The Minister knows all this.

It is almost a status symbol among certain sections of the community to have spent a month or whatever in "The Joy" and they become almost folk heroes among their peers. Community service orders are needed. If there was an effective fines system more probation officers could be funded and so on. One hundred and eighty probation officers are not sufficient to do all the probation work of the court and to operate the community service order programme also.

The community service order programme is a very effective deterrent and it also shows the community that in some way criminals are making up for the damage they have done. I understand that the payment of compensation included in the criminal justice Bill which provided for appeal against lenient sentences applies only where there has been violence or the threat of violence. Perhaps the Minister could clarify that. I certainly agree that payment of compensation should be an option available to the courts even where there is no violence or the threat of violence.

I know that the draftsperson always advises that on summary conviction there must be a low fine but that the Attorney General accepts a fine of abut £1,000 on summary conviction. Deputy Walsh seemed to think that the amendment in my name and that of Deputy Mitchell is making it mandatory to have a £1,000 fine. We are not proposing that it be mandatory, but that it be a fine not exceeding £1,000. In recent years a well known Dublin criminal went into the DPP's office, took out 142 files for the purpose of affecting prosecution cases that were pending. It was a very serious offence but not an offence, about which the Garda could do anything. That person is extremely wealthy, as a result of crime unfortunately. I do not know why we can never successfully convict that person, but he would laugh at us if we just imposed a fine of up to £500. Criminals would make that in half an hour through all their unlawful activities. We want to provide a range of options to the court. We are dealing only with summary conviction, and £1,000 in this day and age for certain people is by no means an excessive amount of money. In any event the court always takes into account ability to pay. With regard, for instance, to a television licence there is no question of ability to pay but when it comes to crime and people are convicted, the court always takes into account in imposing sentence, the ability of the person to pay. We need to ensure that those fines are effectively collected; otherwise the law becomes a total farce.

Our amendment is reasonable. This law will be in operation for quite a considerable length of time: £500 today is not what it was five years ago and it certainly will not be worth as much as it is now in a couple of years. I know we will be making provision for the indexation of fines, etc., but in this day and age it is not unreasonable to say that in certain circumstances where somebody of means is convicted of criminal trespass on a premises for the purpose of committing an offence, a fine of up to £1,000 could be imposed. Sending somebody like the person I mentioned — but not by name because it is not fair to do so — out on a community service order or imposing a £500 fine will not be adequate. In the laws we are making we need to show that we take these activities seriously. We do that by providing fines in keeping with modern, everyday sums of money. We have had other Bills from the Government where £1,000 fines have been imposed at District Court level.

Mr. D. McDowell

I concur with much of what has been said about the inappropriateness of prison sentences in many cases. We should seek to expand the circumstances when community service orders can be granted by the courts and indeed the circumstances when restitution can be provided for. I cannot remember whether the Criminal Justice Act specifically restricts the courts to cases where violence or threats of violence have been made. That is something which has not really worked its way through the courts yet.

Specifically on this amendment, in my experience where fines of up to £1,000 are provided for, they are very rarely imposed even in circumstances where it would seem that the individual involved could well afford to pay it. There is a £1,000 fine, for example, provided for in "no insurance" cases. Indeed in many cases the insurance itself might well cost the best part of £1,000. The courts have very rarely enforced that.

We should be clear about the nature of the offence provided for in section 12. It is an offence which by definition does not itself cause any damage when nothing has actually been taken. Presumably if damage was caused, or if something had been robbed, then people would be prosecuted for that offence. In this section we are providing for an offence where somebody is merely present, not where he actually takes anything or does any damage, so the question of restitution, by definition, does not arise. In those circumstances £500 is probably quite an adequate fine.

Mr. G. Mitchell

I am very surprised by the comments from all of the Labour Deputies who spoke on this section. My objective in increasing the fine is that the fine will become a disincentive rather than prison. Sending someone to prison is a very expensive penalty on the rest of us. It is hugely expensive, at £250,000 per prison cell and up to £30,000 per year running costs. If a substantial fine is imposed and the person pays that fine, they will not have to go to prison, but if they do not pay the fine they will go to prison. Further I am saying that we should look at the possibility of ensuring that fines are paid by attachment of earnings or social welfare, or confiscation of assets or whatever. I was very surprised to hear Deputy Kemmy say that criminals, because of the way society treats them, are marginalised. The really marginalised people are those suffering the effects of crime. We have all retreated behind alarms, shutters, car alarms, locks and triple locks on our doors and all sorts of devices. One cannot go canvassing at election time on an evening without walking into a driveway where the light goes on automatically as people have installed body heat devices. We have retreated too far. Many of the people involved in crime enter buildings to steal goods to sell them to raise money for a drugs habit and they are not all poor people. Some of them are sons and daughters of people who could not be considered poor. If we impose a fairly small fine, at the end of the day criminals know that the judge will probably rarely apply the maximum fine and they might get away with a fine of £50 or £100. We should make the penalty sting so that people who have imprisoned the rest of us know that we mean business.

This amendment will not solve all the problems, but by increasing the penalty here from £500 to £1,000, we are putting down a marker that we consider this sort of activity to be a serious offence. Would the Minister consider introducing legislation which would look at a variety of offences and at heavier fines plus interest penalties that would be deducted over a period for non-payment of those fines?

For example, if one cannot pay a fine of £1,000, one could pay £1,200 over an 18 month period at a certain figure per month. Would the Minister consider compensation for victims, compensation for damage to property and for the fear caused? Would he also consider attachment of earnings and of social welfare and matters of that kind? We are too inclinced to provide for a small fine and/or a prison sentence. Let us look at all other options before we consider prison. For prison is not a deterrent. They are in and out; sometimes they are in for a day and then released straight away. If we are able to sting them in some other way I think that is how we should approach it.

Let the pendulum swing back towards the centre. We have gone too far in considering the criminal. What about the person who suffered the crime, the old person, the child, and in particular vulnerable members of our community? It is time some consideration was given to them and it is our job to put down a marker in their interests. To double this fine to £1,000 would be one indicator that we are looking at the whole area. I hope the Minister will take on board some of the broader comments and perhaps consider introducing a Bill on its own which would deal with the variety of penalties available to the Judiciary.

Mrs. Geoghegan-Quinn

I find I am in difficulty. I have to be honest and say to my colleagues on my left that I very much go along with the main thrust of the amendment and with the points made by the Deputies on the far side mainly because I see a situation where we have bent over backwards in our criminal law over the years to be of assistance to the person involved in crime in one way. It has not necessarily been intentional, but it seem to me that we have put much emphasis on how we can help and assist criminals, and that should be so. Unfortunately, in the process of doing that we have conveniently forgotten about the victims of crime and we have left it very much to the Victim Support Association to help and assist victims. I think it is time that the criminal justice system became more victim orientated. I said that at the very beginning of this year when I became Minister for Justice and I got a tremendous support right across the board from all political parties and all Members of the House for doing that. In introducing legislation in the criminal law area I intend to keep that principle very much to the forefront of my thinking in relation to it. For that reason it is important to send a very strong signal to those involved in crime, and one of the ways in which we can do that is by having stiffer penalties available.

Having said all that, of course I go along with the points made by Deputies on all sides of the House on our sentencing policy. We have a number of problems, perhaps two in particular. The first is the inadequacy of some of the sentences and, as the general public see, very often there is no sentence base for certain levels of crime. The second concerns the kind of non-custodial sentencing or penalties that can be imposed and how widespread their use should be. As all Members know, the Law Reform Commission has published a discussion document in advance of presenting me with a report on sentencing policy. It is a lengthy document, but anybody who has had an opportunity of looking at it will see that they cover the points that were made here: attachment of earnings, fines being paid in instalments, community service orders and the extension of same, compensation, seizure of assets and all of those areas of which we are very much in favour. When the Law Reform Commission's report comes to me I would see happening exactly what Deputy Mitchell asked for and we would prepare specific legislation that would put into law the Law Reform Commission's recommendations. I think that is what everybody here would like to see happening.

To reply to Deputy McDowell's and Deputy Harney's point on the power of the court to make a compensation order under the Criminal Justice Act, 1993, that was passed some months ago. It is not confined only to where violence has occurred; it applies right across the board where any offence has been committed.

Now I find myself in the dilemma that I support my colleagues on the opposite side and my colleagues on my own side have a difficulty with Deputy Mitchell's proposal.

Mr. Browne (Carlow-Kilkenny)

Be reasonable.

Mrs. Geoghegan-Quinn

I am very much in the hands of the committee, Chairman. As I said, I would be quite happy to accept the amendment. I understand the difficulties that some of my colleagues have with it. Is there a way that we could meet in the middle that would be acceptable? Perhaps Deputy Mitchell would like to comment on that?

Mr. G. Mitchell

I am pleased with the Minister's response. There are actually two amendments involved, the first one is to increase the fine from £500 to £1,000 and the second is to increase the term of imprisonment from six to 12 months. Perhaps if we were to leave the imprisonment at six months and increase the fine to £1,000 that might be a reasonable halfway approach.

Mrs. Geoghegan-Quinn

If Deputy Harney were prepared to agree, because her amendment No. 18 is relevant——

Miss Harney

That is all right by me.

Mrs. Geoghegan-Quinn

——and if the rest of the committee, that is more than fair.

Chairman

Is that agreed? Agreed.

Mr. Costello

I am being put in an invidious position because we were supporting the Minister and now find she is not supporting us. It is the Minister's text we are defending. I do not think any of us on this side are opposed to the existing provisions in the section, namely, a fine of £500 and a prison sentence — in other words, a fine and prison sentence. The nub of the question concerns emphasis and direction. We believe we should not be putting the emphasis on increasing the existing penalties but on increasing the range of penalties. We are going in the wrong direction by simply looking at increasing the strength of existing penalties, whereas I want to bring to the Minister's attention that we are not dealing properly with the appropriateness of the penalty. This could best be dealt with by extending the range into areas that would deal with the matter and ensure to a greater extent that the penalty fitted the crime. The suggested compromise is, by and large, acceptable; but would the Minister think in terms of having written into legislation other appropriate penalties and drawing the attention of the Judiciary to them? Hopefully, these will be used to a greater degree than at present. All the arguments have been put forward already in terms of the ineffectiveness of prison, the cost and so on.

Amendment agreed to.

Amendment No. 18 not moved.

Section 12, as amended, agreed to.

Section 13 agreed to.

NEW SECTION.

Miss Harney

I move amendment No. 19:

In page 6, before section 14, to insert the following new section:

"14.—(1) Where any person is found in possession of any article, documents, or recorded information, in circumstances giving rise to the reasonable inference that such possession was for the purpose of planning or executing any indictable offence, such person shall be guilty of an offence and shall be liable on conviction or indictment to a term of imprisonment not exceeding 5 years or to a fine or both.

(2) In a prosecution under subsection (1) it shall not be necessary to establish an inference that such a possession was for the purpose of commiting a particular indictable offence where the evidence establishes an inference that such possession was for the purpose of planning or executing any one of a number of different indictable offences.

(3) Possession for the purposes of subsection (1) means having in one's possession power or control, either personally or by an agent, and includes having available the article, document or information at a distance or having it stored whether physically or electronically.

(4) Where a member of An Garda Síochána reasonably suspects that any person is committing an offence under this section, he may arrest any such person without a warrant.

(5) Where a member of An Garda Síochána may apply to any Judge of the District Court, or if no such Judge is reasonably available, to a Peace Commissioner for a warrant, and be granted same, to enter and search any home or premises or lands, in respect of which the member has tendered any information on oath that he has reasonable grounds to suspect that any article, document or information is located or stored in contravention of this section.".

The purpose of this amendment is to cover what I regard as a serious loophole in the existing legislation. What I have just proposed was included in the Bill I moved in this House in February or March. At the time the Minister said that a provision of this kind was not necessary because it was covered by the existing laws in relation to conspiracy but as I understand it you have to have more than one person for a conspiracy to occur, and second, you have to prove that a particular indictable offence was committed rather than that the intention was to commit an indictable offence. That is an important distinction.

For example, I became aware that recently the Garda came upon an individual who had a disguise and had certain material in relation to a well known individual's movements — the times the person left his own home, where he worked, times he went to work, the route he took to his work. The Garda properly took the view that the purpose of having this material and information was for the carrying out of a serious crime, an indictable offence, either to kidnap the person or to break into his property while he was out of his home and commit a serious offence. The Garda have often found people with disguises and the lay out of the bank close to banks, but unless they can prove that the purpose of the documentation was to burgle the bank as opposed to breaking into the bank to kidnap the bank manager or to interfere in some other way, a prosecution cannot be taken and certainly cannot be successful.

The purpose of my amendment therefore is to include in the Bill "having certain information and in certain circumstances having disguises on your person, or under your control or an agent acting on your behalf having them. In that way it would not be necessary for the Garda to prove that it was for the purpose of carrying out a particular offence like kidnapping or bank robbery or whatever, but could be only for the purpose of an indictable offence from a large range of offences and that that should be sufficient to get a successful conviction. I believe there is a serious loophole in the law at present. On the last occasion we referred to the fact that the courts will interpret his presence as unlawful purpose unless you prove what the particular offence is. We need not tie ourselves down with such technicalities, which effectively make it impossible to get successful convictions where it is well known that the intention is for unlawful purpose and in this case to commit a very serious offence. We have had a number of major bank robberies in this country as well as many high profile kidnappings. Well known individuals are followed; their movements are traced for many weeks and months in advance. We want to ensure that our laws are not so technical that it becomes impossible to take prosecutions when they find an individual or a group of individuals with material on somebody's movements and with the layout of their house. The Garda know it is for the purpose of serious crime, but because they cannot pin the exact reason for having this material they cannot take prosecutions. I discussed this matter with a senior garda recently and he felt that a provision with my intent is badly lacking in Irish law. Apparently on many occasions there might be just one individual involved and therefore the laws that relate to conspiracy do not apply in that case.

I compliment the Minister on her attitude to the last amendment. She is adopting a very reasonable approach and I am delighted that she agreed to increase the fine. It may be of interest to her to note that I was not actually going to move my amendment because I had decided that since I have made so many arguments about reducing prison sentences I should not now be proposing to increase them. She is adopting a very open attitude and certainly this Bill has been much improved since its initial publication. If we continue with that to the end, we will have a much better legislation. I think legislation that is brought in through consensus rather than confrontation is always the better for that. It also gives Opposition Members the opportunity to take legislation more seriously when the Minister will listen and where necessary take on board suggestions made and do so in a very open and fair fashion. The spirit in which the Minister approaches this Bill is a great example which I hope will be followed by many of her colleagues.

Mrs. Geoghegan-Quinn

As Deputy Harney outlined, I am very much aware of the fact that this provision was included in the Progressive Democrats' Private Members' Bill and I am sympathetic to what Deputy Harney is proposing here. I am sure she will appreciate that the issues raised by the amendment, impinging as they do on the law generally in relation to attempted conspiracy etc., are extremely complex ones. I am very reluctant to proceed with an amendment along the lines the Deputy is proposing here without having been in a position to have had the benefit of a detailed review of issues in this area generally. Unfortunately, I do not believe it would be possible to have completed the consideration of the issues involved without delaying the passage of this Bill. I know that members of the committee, including Deputy Harney, agree there is a very strong demand that public order measures of the kind proposed in the Bill should be brought forward with as little delay as possible, and being consistent with all of the measures being properly and adequately debated and considered by both Houses of the Oireachtas. In the circumstances I regret that I am not in a position to accept the amendment at this stage and I would be unrealistic to expect that that situation would have changed by the time we would get to Report Stage.

I have directed that an assessment should be undertaken by the Garda Síochána of any deficiencies in the existing law in this area which might be hampering the fight against crime. Obviously I would prefer to have had at least an opportunity to look at the outcome of that assessment before supporting or indeed proposing a specific measure dealing with this area. In this context I might also mention that at a later stage in this session I propose to bring forward a Criminal Justice (Miscellaneous Provisions) Bill which might prove a suitable vehicle for including the type of amendment that Deputy Harney is proposing here for this Bill, depending on how soon we can progress our examination. That legislation will be published in this session and I hope our discussion of it will have advanced before the end of this session. My hope is that an amendment along the lines proposed by Deputy Harney would be ready for inclusion in that legislation.

Mr. Browne (Carlow-Kilkenny)

Having listened to both speakers, I am worried. Suppose the Garda find persons with a document outlining, for example, the Minister's movements, her house, when she leaves and when she comes home; or, worse still, suppose the Garda in Carlow find documents with my movements and my abode. Obviously, that information would not be for entertaining themselves. Would it not be a serious matter if such information was found on somebody? Can they not be dealt with at present? If not, is this amendment not very important?

Mrs. Geoghegan-Quinn

As I said a moment ago when we discussed a similar proposal, members appreciate that the whole law on conspiracy is a very difficult and complex area. As a result of the points made by Deputy Harney I directed the Garda Síochána to assess how the law operates or fails to operate in this whole area. I would like to have that report to hand in advance of making any amendment to the Bill. The Deputy need not have any concerns but that I will do what is necessary, and I take Deputy Harney's word for the fact that she feels it is very necessary. I know there are difficulties with it. I could not give a guarantee. I feel that the Garda will not have that assessment ready for me in advance of the Report Stage of this Bill. Rather than give the House a commitment that I cannot live up to on Report Stage, I would prefer if you were prepared to accept my word for the fact that on the Criminal Justice (Miscellanous Provisions) Bill, which will come forward in this session also, I would be in a position to bring forward an amendment along the lines suggested by Deputy Harney.

Mr. D. McDowell

I have some sympathy with the amendment but the word of warning sounded by the Minister is also appropriate. Wa are talking about inchoate offences, circumstances where we think an offence might arise. At times the distance between somebody thinking about doing something and actually doing it can be quite considerable. Members of the committee may be aware that there have been difficulties, for example, in Britain, where a provision along the lines is used and where they have used conspiracy charges rather more than they tend to be used in this jurisdiction and reasonable suspicion arises as to whether the convictions are the sort that could have been obtained in this jurisdiction. I understand Deputy Harney's point but, as the Minister has advised, we should be very careful about it.

Chairman

Is Deputy Harney pressing the amendment?

Miss Harney

I will not press it because of what the Minister said and I do not want to delay time by calling a vote. The Minister has not outlined what the difficulties are. I know it is impossible to prove conspiracy here and I do not think such cases are taken any more. What I am proposing is not very different from what is proposed in section 12 where one has to prove there was an intention to commit a crime. The garda I spoke with in this regard gave me two examples. In one case he or a colleague came across somebody in a car close to a bank near the city centre. The person had a disguise and a layout of the bank and the garda knew that this person, together with other people, intended to rob the bank, terrorise the staff, kidnap the bank manager or whatever, but because he was not aware of the precise offence a case could not be taken. One has to be specific in relation to the indictable offence or one will not get a successful prosecution. One cannot prosecute for conspiracy unless there is more than one person involved. If one finds one person with the material as opposed to more than one person the law of conspiracy does not apply, as I understand it.

I do not want to be unreasonable. I first raised this matter in March and if the Minister wishes to have a look at it for a subsequent Bill later in the year I will be happy with that. It does not have to be in this legislation. We need to close off the loopholes in existing legislation and ensure that people do not escape prosecution for what should be very serious offences.

Why is this so different from the provisions of section 12? Why does section 12 only apply to summary conviction and not indictable offences? Under that section the requirement is to prove that the person intended to commit an offence because he was found on a building. Here I am suggesting that if they had documentation of a specific nature, for example, the layout of a Minister's office, details of her movements, when she arrives, the route she takes on leaving, days and dates, the reasonable inference is that the purpose for which that information was in the possession of the individual in question was to commit an indictable offence. Likewise if a well-known criminal is found with the layout of the DDP's office the inference has to be that he intends to go in there and take out files referring to himself or others.

We should ensure that this kind of area is covered by our legislation but not necessarily in this Bill. If the Minister gives me an undertaking that it is under examination I will be happy with that. Although she said it is a complex area she did not say what are the precise difficulties with my amendment?

Mr. Browne (Carlow-Kilkenny)

I certainly do not wish to be unreasonable. If a person is found in a car sitting in front of a bank and so on, why does the difficulty with conspiracy prevent us getting that fellow behind bars where he should be?

Mrs. Geoghegan-Quinn

My advice is that the existing legislation on this offence is very vague and that there have been constitutional difficulties in relation to it. The Director of Public Prosecutions has been very slow to authorise prosecution in these cases because of that vagueness in that he requires a certain certainty in relation to them. If somebody was found in the DPP's office or in the Department of Justice at three or four o'clock in the morning going through documentation and somebody else was found sitting outside some institution with maps or documentation that seemed in some way to refer to the institution, it would be easier to prove that the person found on the premises with documentation was there to commit an offence rather than the person found with documentation sitting in a car. That might not make much sense to the layperson but the legal advice is that the second situation is far more difficult to prove and that in such cases the Director of Public Prosecutions has been very slow to direct that a prosecution take place. For that reason and to allow for an assessment by the Garda Síochána who would be the best people to advise as to what is wrong and make recommendations as to how the law could be improved in this area, we might in the Criminal Justice (Miscellaneous Provisions) Bill which will be introduced also in this session be able to come up with an amendment that would make the law more certain, while at the same time respecting the limit to which we can go under the Constitution.

Amendment, by leave, withdrawn.