Shane Ross (Dublin Rathdown, Independent) | Oireachtas source

I thank Deputies Curran and Lahart for introducing this measure which identifies a problem. I believe we share a determination to resolve it. My only difficulty is that whereas we share the knowledge that the problem exists and the resolve to sort it out, I do not believe this Bill will advance doing that in any way. I will explain to the Deputies the reason I believe that. I will take up their offer and am happy to make my officials available, and to be available myself, to progress resolving this problem and to include other Deputies who are interested in this issue, and I know Deputy Ellis has been interested in it for a long time. However, there is not an easy solution to it. I will set out the reasons their Bill is not acceptable but in the future let us get together and sort this out. This is a significant difficulty, mostly in urban areas, in which we all have a common interest in resolving.

Scramblers and other such vehicles are designed for off-road use and are, essentially, sporting vehicles. However, anti-social, dangerous and irresponsible use of these vehicles has caused a great deal of concern. We have all heard of the horrific and life-changing injuries suffered by Ilabek Avetian who was run over by a scrambler while he and his wife were lying out in the sun last summer in Dublin. We all agree this menace must be stopped.

As I look at what Deputies Curran and Lahart are proposing, I believe we are in broad agreement on what is required. There should be clearly defined offences with appropriate penalties, and gardaí need appropriate powers, including the power to detain vehicles, either when offences occur or by entering places where they are kept. I believe we can agree too that we need a clear message that these vehicles should only be used responsibly, as is the case with every mechanically propelled vehicle.

The Government has examined this issue in some detail. Last year, as referred to by Deputies Lahart and Curran, a group was established under the co-ordination of the Department of Justice and Equality to examine it. Membership includes the Departments of Transport, Tourism and Sport and Housing, Planning and Local Government as well as An Garda Síochána and other stakeholders. A great deal of consideration has been given to whether there are any deficiencies in the law. However, the laws clearly exist both to punish offenders and to detain the vehicles where necessary. The real difficulty is with intercepting these vehicles while they are being used in a dangerous way around members of the public. As I believe Deputies will appreciate, any attempt to stop these vehicles in an area where members of the public are present could put innocent bystanders, as well as the riders of the vehicles, at risk.

While we are in agreement on the issues, I am afraid the Government cannot support this particular Bill, and I would ask the House, and Deputies Curran and Lahart, to consider with care the reasons I will give. As I will explain, the provisions of the Bill would not in fact add to existing Garda powers as intended, but would largely replicate them, while some of the new proposals would not be practicable. In doing so, the Bill risks creating confusion in the law and would, I am afraid, undermine rather than strengthen the law regarding the misuse of the vehicles in question. That is not questioning the integrity, honesty or intention of those who are proposing it but is stating that it is not really workable.

Let us consider what the Bill is proposing. Section 2 would allow gardaí to confiscate and dispose of a scrambler or other similar vehicle where, in the opinion of the member, it was being used contrary to the Road Traffic Acts or the Public Oder Act without a clearly visible registration plate. Gardaí already have power to detain a vehicle without a number plate, and in a variety of other circumstances. I recognise the proposal here goes further, and envisages confiscation and disposal of the vehicle, not just temporary detention. That raises two problems. The first is proportionality. Confiscation would apply only to all-terrain vehicles and scramblers - the same offence, with a different type of vehicle, would not lead to confiscation. The much larger problem is constitutional. The Constitution guarantees property rights. Property can be confiscated in some circumstances, but I hope Deputies Curran and Lahart will recognise on reflection that confiscation based on the opinion of a garda, as opposed to a conviction in court, would be a step too far, and would invite constitutional challenge. Section 3 envisages confiscation as a penalty on conviction, in certain circumstances, for dangerous driving. While I do not object in principle to the idea of confiscation as a penalty, I have to say it is not fully thought-out here. First, it takes no account of whether the person convicted of dangerous driving is the owner of the vehicle. If he or she is not, the Bill would mean punishing the owner with confiscation of his or her vehicle even though he or she would not have been convicted of anything.

Second, the offence of dangerous driving is divided into two classes. Cases where death or serious injury are involved are tried on indictment - that is, before a jury - while other cases are tried summarily, which is to say before a judge only. The Bill is proposing confiscation as an optional additional penalty for the summary cases only. This would create a very unbalanced situation, with confiscation a penalty in less serious cases but not in more serious ones. I should note that a person convicted of dangerous driving, summarily or on indictment, is already prevented from driving by receiving a consequential disqualification.

Section 3 would also create separately a new power for gardaí to seize and dispose of all-terrain vehicles and scramblers used for dangerous driving. This raises again the constitutional problem of permanent confiscation based on the discretion of a garda. It also brings us back to proportionality - an all-terrain vehicle or a scrambler could be confiscated at Garda discretion, whereas any other vehicle could be confiscated only as a penalty on conviction. The Bill would add confiscation of a vehicle as a penalty for supplying a vehicle to a minor. This is in section 4. Minors cannot legally drive a mechanically propelled vehicle in a public place, and gardaí already have the power to detain a vehicle on the basis that the driver or rider is too young to be licensed to drive the vehicle. However, the Bill would confiscate the vehicle from the minor based on the conviction of the supplier. This raises serious questions regarding the law - the person convicted is the supplier, but the person punished is the holder of the vehicle. I believe this would be highly problematic, and I can foresee challenges in the courts.

Now we come to the proposal in section 5 to amend the Criminal Justice (Public Order) Act 1994. The Public Order Act falls within the responsibility of my colleague, the Minister for Justice and Equality. The Minister is of the view that sufficient powers to charge people for dangerous or anti-social use of scramblers and other such vehicles already exist in the legislation. The 1994 Act primarily deals with what could be considered traditional public order offences which can occur in public places - for example, disorderly conduct, threatening behaviour, etc. It does this in a general rather than specific manner, in the hope of avoiding the inadvertent exclusion of non-specified types of threatening behaviour or nuisance activity which may occur in public places.

Over the last 12 months, the Minister for Justice and Equality has consulted a number of stakeholders on this issue. Legal advice, received from the Office of the Attorney General last year, noted that, in principle, there would appear to he no difficulty in prosecuting a person who commits a public order offence with these vehicles under the current public order legislation. Importantly, An Garda Síochána shares this view. Therefore, it is the view of the Minister for Justice and Equality that the proposed change in section 5 of the present Bill would not add in any meaningful way to Garda powers in relation to public order.

Section 6 makes a number of proposals. It would require the Minister to make regulations within three months of the enactment of the Bill to allow the removal of all-terrain vehicles or scramblers from the curtilage of a dwelling where a garda is of the opinion that it has been used in an offence under this Act - in other words, an offence created by this Bill. While the Bill would create a new offence under the Public Order Act, there are no offences under the Bill itself. This means that the provision of regulations would be a dead letter. Happily, gardaí can already enter the curtilage of a dwelling to seize vehicles suspected of use in an offence.

Next, the section would require the Minister and the Minister for Finance to report on the establishment of a database of all-terrain vehicles, with a view to ensuring that all such vehicles are registered on my Department’s national vehicle and driver file, the NVDF. This proposal requires a report on the creation of a database, but does not require the creation of that database, except implicitly. Furthermore, if the goal is to have all-terrain vehicles listed on the NVDF, why would we create a new database for them first?

Another problem, and one I must emphasise, is that the proposal to create a new database, even if it is implicit, would mean incurring costs and, as such, this Bill requires a money message. Specifically, we would need to consider how much establishing a new database would cost the Exchequer in capital terms and whether its management would generate extra costs too. Every mechanically propelled vehicle used in a public place is already required to be registered on the NVDF. If some owners do not register their vehicles, creating a new database would not fix the problem.

An additional difficulty, and I ask Deputies Curran and Lahart to consider this carefully, is that the Bill refers to all all-terrain vehicles, not just those being used in a public place. Many all-terrain vehicles are used exclusively on farms. Do they really intend to put an added burden of cost and administration on the farming community? I am sure that is not what they intend but it would be the result.

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