The Deputies have identified this as a difficult matter because it deals with an area of common law. Section 6 states:
For the purpose of arresting a person for an arrestable offence or on foot of an order of committal a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any place (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be.
The section specifically provides that a dwelling place is included. Deputy O'Donoghue's amendment seeks to exclude a dwelling.
Existing common law as to entry on dwellings to effect an arrest is complicated and uncertain. The comments of the Deputies indicate their awareness of that sense of uncertainty. It depends on the offence in question being a felony and this Bill abolishes felonies and replaces them with arrestable offences. It seems that under the common law a Garda can effect a non-consensual entry into a dwelling to arrest a felon and can use reasonable force to enter. This is an opportunity to bring some clear statutory powers in that regard into the law. It is an area of uncertainty and we must take this opportunity to clarify the matter.
There is a statutory precedent for what is proposed in section 6. Section 19(5) of the Criminal Law (Jurisdiction) Act, 1976, and section 12(6) of the Criminal Damage Act, 1991, provide for similar powers. Those powers exist in statutes, since 1976 in one case and 1991 in another.
The Government has at all times been conscious of and has had full regard to the provisions of Article 40.5.5 of the Constitution which states that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The Constitution, therefore, permits the Oireachtas to provide by law for powers of entry into dwellings if it decides it is appropriate. The courts have made it abundantly clear in bringing forward a law in this area that we cannot ignore the fundamental rights set out in the Constitution but it would not be possible to provide the Garda with powers of entry and search for the purposes of arrest which are exactly the same powers as are currently exercisable in relation to felony. The purpose of the Bill is to modernise the criminal law by abolishing the distinctions between felonies and misdemeanours. While we cannot exactly mirror what is in common law, we must find a mechanism, which has already been found in the 1976 and 1991 Acts.
Retention of the common law as it stands would make for great uncertainty about exact Garda powers and I would not like to leave that uncertainty there lest a serious crime was under investigation and gardaí felt they needed to enter into a person's dwelling because they thought the guilty person was there to find, owing to a technicality because we have not clarified the law with any certainty, that the case could fall through. We should not legislate positively for the uncertainty which exists in common law. We must be able to legislate with certainty in this crucial area.
The powers are the same as under section 19 of the Criminal Law (Jurisdiction) Act in relation to offences committed in Northern Ireland. I can find no good reason that the Garda should have lesser powers in relation to offences under the ordinary criminal law of the State which involve no Northern Ireland element. We must grasp this nettle.
Section 6 is a proportionate and balanced way of taking the uncertainty out of the common law. Arrestable offences undoubtedly cover a wide range of offences but we are talking here about offences which attract a five year sentence or more. We are not talking about giving powers to the Garda to enter somebody's home on some petty minor offence. This is a proportionate balance.
The same kinds of arguments hold as with regard to the bail referendum, where we have used the word "serious" and created that category of offences. It is not quite the same but this issue of seriousness is mirrored here — the Oireachtas has designated such offences as ones which will be punishable by five years or more. It is a matter for us, as Oireachtas Members, to try to reconcile the exercise of individual rights within the claims of the common good having full regard to the Constitution. I assure Deputies that this has been cleared by the Attorney General's office in the usual way. It is intended to be proportionate and strike the right balance between the liberty of the individual and the protection of society from crime. Under the circumstances, it is something to which Deputy O'Donoghue, Deputy O'Donnell and I have given a great deal of thought. The committee should recognise that this is a necessary and appropriate measure.
