Monday, 3 July 2006
Criminal Justice Bill 2004: Committee Stage.
I move amendment No. 1:
In page 16, subsection (8)(a), line 40, after "practicable" to insert the following:
", but any failure to so do shall not render invalid, retrospectively or otherwise, such a direction".
Amendment No. 1 concerns the designation of a place as a crime scene. Subsection (8) prescribes that an order designating a crime scene should be in writing, where possible, and if the order must be given orally it should be written down as soon as possible thereafter. The principle behind this amendment is to ensure that the failure to write down an order within a given timeframe would not make it invalid. There should be an onus on the Garda to make an order in writing as quickly as possible, but I believe Members would agree that any number of unforeseen circumstances could prevent that from happening and this amendment would create a safety net for the Garda.
Amendment No. 2 also relates to crime scenes. When a place is designated a crime scene it becomes the subject of severe restrictions in order that evidence is not contaminated, etc. Ordinarily, this is not a problem but my concern relates to what would happen in the case of part of a supermarket, or any other type of retail business, which is designated as a crime scene. In such a case, the proprietor of the business would automatically lose significant income. The amendment is designed to ensure that certain boxes are ticked in advance of any such investigation.
Amendment No. 3 is technical in nature and seeks to ensure that the continuation of a place as a crime scene cannot be unduly delayed. It clearly establishes the limits within which a court must operate in respect of a continuation under section 5.
Amendment No. 4 is also largely a technical amendment that seeks to set out the legislation in a clearer fashion with a view to making it more intelligible to non-lawyers and, effectively, for it to be a checklist for members of the Garda Síochána who make applications under subsections (9) or (11) of section 5.
I am sympathetic to what lies behind amendment No. 1. I would not like it to be the case that anybody could argue that evidence of a technical examination would be rendered inadmissible by virtue of a failure to reduce the matter to writing. I will examine that issue between now and Report Stage. It is not the case that failure to do so would render invalid retrospectively a direction because that would not be possible but it could affect the admissibility of evidence. We will examine this aspect of the matter so that evidence shall not be rendered inadmissible by reason of a failure to designate an order in writing. Clearly, it would be a horrific situation if evidence in a murder case were somehow argued to be invalid by virtue of the fact that a Garda officer, having given an oral direction, had forgotten to execute a document.
The other amendments relate to style. Senator Cummins should bear in mind that while I will examine them between now and Report Stage, the Parliamentary Counsel is frequently wedded to his or her style and I do not lightly ask for that to be surrendered to somebody's else's style without there being a compelling reason to do it.
I move amendment No. 5:
In page 19, between lines 4 and 5, to insert the following:
"(2) Where a judge of the District Court issues a search warrant under subsection (1), he or she shall endorse or cause to be endorsed on such a warrant-
(a) the time and date of the issue of the warrant,
(b) the time and date on which the warrant shall expire, the period of validity of any warrant not to exceed one week,
(c) the named member to whom the warrant applies, and
(d) the maximum number of other members or persons who may accompany the named member, where a limit on such members or persons applies.".
Section 6 governs search warrants. Such matters have been prominent in the news media in recent months and years. There are several examples of cases where the subjects of search warrants have managed to get evidence disallowed because of a technical error on the part of gardaí. I accept it is necessary to balance the rights of accused persons with the right of society to obtain proper and lawful evidence. My party is very much opposed to the idea that people should be able to escape justice in any respect on foot of a technicality.
Time limits on search warrants appear to be a cause of regular confusion. This amendment seeks to clarify the issue once and for all. The insertion of this subsection would ensure the time limit on the warrant, including specific mention of when it expires, would be plainly on the warrant for any person to read. Similarly, it would make it clear exactly who is entitled to search a property covered by a warrant. This would benefit the Garda from the point of view of ensuring they would not exceed the terms of the warrant either by gathering evidence after it has expired or by allowing unauthorised members or persons from carrying out the search. The proposed change would also benefit persons whose property is subject to the search because all necessary information would be plainly evident on the search warrant.
Amendment No. 6 also relates to search warrants, which are currently automatically valid for one week. This is not necessary in most cases as the Garda execute warrants well within the seven-day limit. One week is an arbitrary length of time and acceptance of this amendment would allow a District Court judge to vary the term of a warrant, as he or she would deem fit. This is an entirely sensible provision and it would still prevent a warrant from being valid for more than one week.
Amendment No. 7 is designed to put a system of checks and balances in place for warrants issued by members of the Garda Síochána. Section 6(2) allows certain senior gardaí to issue search warrants where the District Court justice is unavailable for that purpose. The principle behind the amendment is that an independent body would be able to examine the issue of such warrants to ensure the procedure was carried out correctly and lawfully but also to reassure the public that this provision would not be abused in any way.
Amendment No. 8 will ensure gardaí have no excuse for exceeding the time limit relating to a search warrant and amendment No. 9 makes clear provisions in respect of the length of time during which a search can be conducted and includes incentives for the Garda to carry out searches in an expeditious manner.
These amendments all relate to warrants and include provisions in regard to locations, timeframes and so on. They are sensible and should be given serious consideration by the Minister.
I concur with the tenor of Senator Cummins's comments but I am not sure whether the specifics, as contained in these amendments, are necessary. I am, however, in favour of amendment No. 5, which provides that the time and date of expiration of a warrant should be endorsed on that warrant. This is important because there have been cases where warrants that were marginally out of date gave rise to situations where people escaped being prosecuted and brought to justice. Like Senator Cummins, I am concerned that individuals should not evade justice on the basis of technicalities.
I made the point on Second Stage that somewhere in legislation there should be the ability, whether at the behest of the DPP, the Garda or some other body, to make application to a judge to amend a warrant that includes some technical or administrative error. There should be some mechanism to allow for an amendment to be made even at the stage where the case in question has come to court. I understand that we must protect the rights of those who are charged with crimes. It is important to achieve a balance in this regard. However, it brings the entire system into disrepute when people evade prosecution on foot of technicalities. It is the job of solicitors to be clever in this regard and some specialise in preventing trials on the basis of technicalities. Some judges entertain such applications, while others apply common sense and override them.
There should be some legislative provision for the making of an application to amend a document where an administrative error of a technical nature, whether in regard to date, time, location or otherwise, was made. If such errors are found to recur at an unacceptable frequency because of tardy administration, judges will quickly recognise that and bring it to the attention of the relevant superintendent. There should be a general amendment somewhere in this or future legislation to take account of this issue.
Yes. The Minister has taken the body of Senator O'Toole's Bill and incorporated it into his Bill. There is nothing so maddening for the public as to see a case not go to court or be thrown out of court because of some defect in the process by which the Garda has exercised a warrant. Without making reference to any celebrated case being examined by the Oireachtas, it very much depends, as Senator Jim Walsh pointed out, on the individual judge.
There is much merit in Senator Cummins's proposal that some independent voice be brought to bear in regard to the execution of warrants. While there is clearly a responsibility on us to ensure that the legislation is correct, there is also a role for some independent person who would, from time to time, report on these matters to the Minister or the Government. Warrants are crucial in terms of the first principles of bringing cases before the courts. Where mistakes are made, it is a huge price to be paid by the public and the victims of crime that the perpetrators should evade justice on technicalities. There is particular merit in Senator Cummins's call for independent oversight in this area.
In regard to amendment No. 5, I indicated my intention to bring to the District Court rules committee — the most relevant committee in regard to the issuance of warrants — my strong belief that warrants should have their expiry date written clearly on them. This will concentrate everybody's mind on what is at issue and will ensure such mistakes are not made in future. One would need to be something of a geek to carry in one's head a clear understanding of the Interpretation Act in terms of when a day begins and whether a part of a day is or is not involved.
There must, in the first instance, be certainty in the mind of the executing garda as to when he or she cannot further execute the warrant. Second, there must be certainty in the mind of the person to whom it is issued as to its validity on the day it is presented relative to the date on which it was issued. People are entitled to know, in layman's language, whether a warrant is valid on a particular day and when exactly it will expire. Gardaí in Templemore may be more than up to the task of working out the intricacies of the Interpretation Act in deciding whether a day starts at midnight or whatever. The latter point arose in the celebrated case to which Senator Brian Hayes referred. It is not reasonable, however, to expect ordinary men and women to be so familiar with the Interpretation Act that they can work out whether a warrant is still in effect, nor to ask them to accept the word of the Garda in this regard. I intend to ask the District Court rules committee to make a rule to the effect that warrants must carry a clear endorsement as to when they cease to have effect. This may involve some extra work in the District Court but it will achieve a great deal more clarity.
In regard to the provision relating to the maximum number of persons that may accompany the garda executing a warrant, I am not clear whether and to what extent it is useful to include this in statute form. I am not convinced that the endorsement of such information on a warrant would be beneficial from the point of view of investigations.
Amendments Nos. 7 and 8 have been overtaken to some extent by an amendment I made on Report Stage in the Dáil. I removed the provisions relating to Garda-issued warrants because I wanted time to consider the views expressed by the Morris tribunal on this issue. I wish to be in a position to explain the full gravity of what Mr. Justice Morris said at a time when I am at liberty to lay those remarks before the public and the Oireachtas. I appreciate that Senator Cummins prepared these amendments when the goalposts were located on a different section of the pitch. I have moved the goalposts in this regard.
Amendment No. 9 proposes a new subsection to provide that searches may last for up to seven days. I assume Senator Cummins has chosen this particular timeframe because search warrants generally remain valid for seven days. Are we to have a situation where a search of somebody's house for stolen goods could theoretically go on for seven days?
At the moment the law is that the Garda can enter the house within seven days and do its business promptly and effectively. I do not know if it would be regarded as reasonable that a warrant with a seven day life span should also authorise, effectively, the invasion of a house for seven days, unless it was a proportionate and reasonable search in the circumstances. If one was searching for body parts in a house it might be necessary to tear the entire place down on foot of a search warrant. If one was looking for sophisticated terrorist material it might be necessary to conduct a very extensive search. However, to produce a general rule that the period of search can correspond to the length of the warrant's life might be seen as conferring a disproportionate power on the Garda. The idea that one could move into a person's house for a week looking for documents might be considered questionable.
I will consider the definition of place overnight. The particular phraseology used by Senator Cummins states that place means a physical location and includes a number of things listed from (a) to (e). It finally refers to "any other place whatsoever", so the value of the amendment is that includes something which could shift place. Therefore (b), (c), (d) and (e) are the operative parts of amendment No. 10. The advice I have received from the Office of the Attorney General and the Parliamentary Counsel is that it is better to leave the word place there in its simple form.
The phrase at the end of amendment No. 10, "any other place whatsoever", is frequently used by lawyers. If one lists different examples of places and then adds "any other place whatsoever", as in the amendment, lawyers apply the eiusdem generis rule. This means the last phrase must be interpreted by reference to what went beforehand. This does not mean the last phrase has been broadened, it means something similar to the preceding phrases. I will consider this amendment overnight, but the Parliamentary Counsel thinks the suggested route may be a slippery slope.
Amendment No. 33 relates to matters to be expressed on the warrant. A number of those matters are covered by section 6, subsection (4). As I said, I intend to bring the matter to the District Court rules committee.
Senators Cummins, Brian Hayes and Jim Walsh raised points on evidence becoming inadmissible for technical reasons. We have a rule that is an exclusionary principle on unconstitutionally obtained evidence and it has been interpreted by the courts as having a strict meaning. Evidence obtained in conscious and deliberate violation of a person's constitutional rights is inadmissible. The courts have gone on to state the term "conscious and deliberate" can also relate to a case where a person acted in good faith. In the case referred to by Senator Brian Hayes, getting evidence a day outside the life of a warrant could be accidental. However, the exclusionary rule laid down by the courts states that this amounts to a conscious and deliberate violation of the constitutional right of the homeowner.
The Taoiseach has written to the Attorney General and me asking us to revisit this rigid exclusionary rule and to examine whether a statutory or constitutional rebalancing would bring about a situation where, when people act in good faith, evidence would not be excluded. The Attorney General and I have discussed this on a preliminary basis and it is a matter to which we hope to return when the hurly-burly of politics allows us ten minutes to discuss issues of such fundamental importance. The fact that a slight error made by a person while trying to do his or her job is deemed a conscious and deliberate violation excites the imaginations of ordinary people.
I partook in a legal case, as a lawyer, in which a warrant specified an address of a certain number in St. Andrew's House in Dublin. This was a mistake by a clerk or garda and it should have read St. Audoen's House. The question was, did the warrant authorise the search of the place at St. Audoen's House and was it a valid search authorised by the District Court? Most people find such cases ridiculous. The Garda named the person who lived in the house, there was a slip in the transposition of the manuscript from one document to another but in that case the evidence was excluded on the basis that there was not a valid order relating to St. Audoen's House. This is engraved in my mind because the judge said: "There is a St. Andrew's House, is there not? Does not a senior counsel have a set of chambers there?"
I sympathise with the general proposition and the Attorney General and I are considering whether we can revisit the strict exclusionary rule that is now in place.
I am concerned at what the Minister for Justice, Equality and Law Reform has said about discussions taking place with the Attorney General. One accepts there are cases where genuine mistakes are made and so on, but there is a requirement on the officials to be careful. A lackadaisical approach is unacceptable. This relates to serious principles of law and it gives me great pleasure to open a case to the Minister for Justice, Equality and Law Reform. The case is the Director of Public Prosecutions v. Dunne where the validity of a search warrant, issued under section 26 of the Misuse of Drugs Act 1977, was at issue. The phrase "is on the premises" had been, apparently inadvertently, crossed out on the warrant, so it went to court. Mr. Justice Carney held as follows:
The constitutional protection given in Article 45 of the Constitution in relation to the inviolability of the dwelling house is one of the most important, clear and unqualified protections given by the Constitution to the citizen. If it is to be set aside by a printed form, issued by a non-judicial personage, it would appear to me to be essential that that form should be in clear, complete, accurate and unambiguous terms. It does not seem to me to be acceptable that the prosecuting authority can place reliance on words crossed out by asserting that it was an inadvertence or a slip. [Then he comes to the real principle, where I would be concerned.] Such an approach would facilitate the warrant becoming an empty formula.
Mr. Justice Carney has put his finger on something that would worry me. I accept it is offensive to the public that people appear to get off on technicalities, with search warrants having expired by one minute. We had the aggravating situation recently, of which the Minister for Justice, Equality and Law Reform is probably aware, where a judge droned on and on despite counsel drawing his attention to time constraints. He said this was of no concern. He did not give a damn. Counsel drew his attention to the ticking of the clock but he said it was of no concern. That infuriated the public but I believe it was deliberately provocative behaviour on the part of the judge.
Mr. Justice Carney has isolated an issue that is very important. We must be very careful and I am glad the Minister is engaging in conversations rather than making any specific, concrete proposals. I would sound a note of caution on the basis of the case to which I have referred.
The Minister is generally sympathetic to the position outlined by Senator Cummins, that there is a need to ensure that when warrants are issued, it is clear as to what they mean, the time limits involved, who is responsible for them and so forth. He said he has asked the District Court ——
They would be covered by statutory instruments introduced by the Minister. Can an argument be made that it would be better to have them in law as opposed to statutory instruments that the Minister may have to issue from time to time?
I know the Minister asks the district and other courts to examine issues such as these from time to time. Does the Minister have a timeframe in mind regarding how long they would have to examine this matter? Clearly, the plain-speaking, English guide to all these matters would be preferable. We have one chance to get this right and no one wants to see this issue dragging on indefinitely. Does the Minister have any idea how long it will take to bring these matters to a conclusion?
I will bring it promptly to the attention of the District Court rules committee. With regard to court rules, there is a separation of powers issue at stake. Under the courts legislation, every court has a rules committee, which consists of judges, lawyers and so forth. The way in which such committees operate is that they make a rule and I have to concur with, or sign off on, that rule.
I will ask the committee to urgently address the question of endorsing on warrants their expiry time and date. I hope it will be positive about it, although it may come back with some reason it should not be done, one which I cannot imagine. Assuming it is a good idea, which seems to be the view of everyone in this House, it should not take too long. It would just require an additional rule to be put in place or, alternatively, a slightly different form to be used. That should not take very long.
As to when one uses primary legislation and when one uses other systems, the House will remember that in the Civil Liability and Courts Act, I inserted many provisions in primary legislation which the rules committees argued should be left to them to provide for in rules. I did that because I wanted the entire package to move forward and did not want to leave it to the committees to take the initiative and for me to simply sign off on rules, when and if the committees got around to making them. I wanted to put the onus on the committees to make the new rules.
In view of the strong views expressed in this House, I would be surprised if there is not an appetite for making the warrants clearer and giving them a stated expiry date.
I move amendment No. 11:
In page 23, between lines 13 and 14, to insert the following:
"(b) in section 2 by the addition of following new subsection (11):
"(11) Where a court hearing, seeking the extension of the period of detention of an arrested person, is in session at the expiration of the period of detention, the detention period shall be deemed not to have expired until the court hearing is concluded.",".
A situation arose recently where a court hearing seeking the extension of a period of detention of an arrested person was in session when the period of detention expired and the person was freed. This amendment provides that the period of detention shall be deemed not to have expired until the court hearing is concluded. It is designed to plug the loophole revealed by the aforementioned case.
I support this amendment, which is in line with a motion tabled previously by Senator O'Toole, which I also supported. We had a ridiculous incident where a prisoner had to be freed despite the fact that the garda warned the judge involved that the warrant would run out. For practical reasons, it is most important that this amendment is accepted.
I am grateful to Senator Cummins for tabling this amendment. It covers the territory to which Senators Norris and O'Toole referred.
Again, this is an occasion where the Senator's amendment has been addressed. I have moved the goalposts between Report Stage being completed in the Dáil and today. I ask Senators to turn to sections 10(a)(ii) and 187(a). Senators will see that under section 10(a)(ii) in respect of the Criminal Justice (Drug Trafficking) Act, that has been done. Under section 187, it has also been done in respect of the Offences Against the State Act of 1939. That was one of the Report Stage amendments that was not debated in the Dáil but which was made to the Bill. I appreciate that Senators may not have been cognisant of that fact. It was done in two separate places because there are two different Acts in question.
Yes, and the other one relates to the Offences Against the State Act. The provision involves those areas of law but are there other aspects of law where it should be included? It is not a general rule, as I understand it. It is only applicable in the context of the amended sections, one dealing with drug trafficking and the other with offences against the State.
This section deals with the photographing of arrested persons which appears to be a good idea. I note that any such photographs are to be confined to the proceedings for which a person was arrested. What is the reason for this restriction? I presume the Garda builds up a file of photographs of suspects or persons who have been involved in crime and that should be part of its armoury for use in conducting investigations. There is also provision for the destruction of such photographs. In circumstances where a successful prosecution is mounted on the basis of a case for which a person was arrested, why would such photographs not be retained for the future, or will they be retained? The Minister might clarify that aspect.
This section, to some extent, anticipates the next amendment in Senator Norris's name which deals with forensic samples. I hope the Senator will allow me to get my retaliation in first.
I do not agree with the general principle of the destruction of anything. I hold the view — it certainly applies to politicians — that one's photograph is in the public domain and it is no great intrusion on one's privacy or rights if one's photograph is also in the bottom drawer of a desk in a Garda station for use as part of a mug shot manual or for intelligence purposes. I do not believe that any law-abiding or non-law-abiding citizen's rights are affected by he or she being photographed or not photographed in a Garda station. We are all photographed every time we use an ATM machine and very few of us, with perhaps the exception of Senator Norris, go around wearing a hat and mask——
I am sorry I let that out. There are not many implications for the infringing of civil liberties in the Garda having a person's photograph or not having it. The whole of continental Europe operates on the basis that citizens carry an ID card. One cannot board a Ryanair flight without producing one's photograph. The world has moved on in this context.
To address Senator Jim Walsh's point, in regard to forensic samples, fingerprints, photographs and DNA, in the context of the forthcoming legislation on a DNA database, we should conduct a fundamental philosophical audit on this issue and decide on which side of the line we stand. I am in favour of generalised retention of this material. The argument against the retention of this material is that the Garda would be tempted to arrest people to build up a photo library and that its members would bring people into stations on trumped up charges and take advantage of their detention to build up a photo library of everybody in the area.
If the Garda wants to take a photograph of any person who is suspected of being a big time "baddie" in society, it will be able to take the photograph on the street or in a pub and nobody can stop it from having that photograph. The question we must ask is whether any useful purpose is served by these destruction provisions. When the former Deputy Shatter introduced a Private Members' forensic evidence Bill, the question of destruction of forensic samples, DNA and the like arose. I do not see the argument for the destruction of such material. However, I can see the argument being made for it in the context of big brother knowing one's exact genome and using it for other ulterior motives such as deciding whether one is more prone to breast cancer or to developing this or that condition and discriminating against one in some shape or form. In the fight against crime, I do not see how the retention of any person's DNA is an infringement on his or her personal liberty.
If I went to a Garda station, was detained there for 12 hours and drank a tumbler of water, a clever garda would be able to extract my DNA from both my fingerprint and my mouth mark on that tumbler. Regardless of whether the Garda do that or make a record of my DNA profile does not affect my privacy or liberty. This is an issue we must face up to on another occasion.
I am interested in the area of DNA evidence. The Minister is correct in saying that such material could be useful in the future. However, a person's DNA exposes not only a great deal about that person but a great deal about other people. The DNA of the Minister's brother would be very similar to the Minister's DNA.
One can build up a profile of a family and a great deal of information can be gained about people who have had no involvement in the crime committed. This issue is already a problem in the case of insurance companies. Therefore, information is not only exposed about people detained in Garda stations but about their families. One can pick up a great deal of information about a family from the DNA of one of its members. A reason for destroying such material is that while it constitutes information on one person's identity, such information is similar to that of many members of that person's family. We must also recognise that aspect.
——is a strong advocate of the universalist principle that, from a criminal law point of view, none of us has anything to concede and we should be happy, in the same way as our photograph is displayed on our driving licence, to assist the Garda to enable it to exclude us from an investigation. I am not being dismissive of Senator Henry's argument. If three brothers were of a criminal disposition, it would be possible to identify that one of them was not the natural brother of the other two and to know that information about a family which is a private family matter. That is a possible abuse of DNA evidence, namely, to be able to prove that a person was not——
——all he or she seemed to be and had a different parent from those whom that person considered to be his or her natural brothers and sisters. There is an issue in that respect.
Without going as far as Professor McConnell's view of saying that everyone's DNA should be automatically on a register as of duty, although I have some sympathy for that point of view because some of his arguments are good, I would at least agree that where a person has come to Garda attention, the idea of positively destroying something which could come in useful in the future is dubious. If a person is arrested and there is a strong suspicion that this person was involved in a paedophile sex act or an attempted rape, the notion this person's photograph must be deleted from being used in any mug shot album at a later stage where victims of a similar crime come to light is one with which I am sure Joe and Josephine Soap would not agree. It is a matter of judgment. I am not saying that one side is obviously right in this debate or one side is obviously wrong. It is a matter of degree and the issues are complicated. The notion that a sample given ten years ago could not be used to identify somebody who commits a serious offence would strike many people as deeply offensive.
I had better spring to Professor McConnell's defence as he is my seconder for the Seanad. I would not share his view that everyone's DNA should be on-line because it depends on who has access to this information. I would not share all his views on the position of the fertilised egg, an issue which is quickly coming down the tracks. It is important to point out that issues of paternity do not only occur in criminal families. Amazing discoveries have been made when people were screened for various conditions and fortunate incidents discovered when it was found that a family member had not developed a condition.
I do not wish to prolong the debate as my argument is broadly similar to my previous one. I object in principle to the fact that section 13 covers not only photographs but palm prints and fingerprints. I believe the Minister is extending the period for which such evidence can be held, if there is not a prosecution, from six to 12 months. Given the way in which science is advancing, particularly in this area, we should retain any evidence more or less indefinitely. People who have once been interrogated and released are sometimes rearrested many years later because another piece of evidence has been uncovered which can be used to mount a successful prosecution. It comes back to the earlier argument about whether we should retain such evidence. The Minister said this would be part of a subsequent Bill which is probably when the full debate on the matter should take place. However, I wish to record that I am not happy with this section.
I move amendment No. 12:
In page 27, paragraph (b), to delete lines 1 to 3.
The two principal provisions in section 14 relate to the reclassification of saliva and other materials as non-intimate samples, thereby allowing the Garda to take these samples without consent. Then there is provision for extending the time during which the samples may be kept from six to 12 months. The Minister has been making an argument for holding these samples indefinitely. One must address this because, among others, it is about people who are arrested but not charged during that period and people who are arrested and may subsequently be found not guilty. The Minister is still suggesting, in line with Professor McConnell, that these samples should be kept anyway. That is dangerous because of the reasons so eloquently outlined by Senator Henry. She argued that due to the sophisticated techniques used to analyse these samples, the issue does not remain confined to the person from whom they are taken and can extend to a range of other aspects of life and relationships. This area needs to be re-examined.
I am aware that the Minister is interested in the idea of a DNA database. In its briefing to Members, the Irish Council for Civil Liberties suggested that one of the reasons it is worried about this Bill is that it would lead to the creation of such a database, about which it and other organisations have serious reservations. These reservations include the possibility that the Garda may decide that they have been given free rein and take DNA samples from everyone, which could be an inefficient use of their time.
Before anyone begins to believe that I am a Luddite and opposed to DNA testing, I must state that I am enthusiastically in favour of it. I was contacted by the Fitzpatrick clan society some time ago and attended one of its meetings. The society decided to try to find the lostMcGillapatrick through DNA testing. I immediately volunteered but was spurned, rejected, despised and scorned because I was related on my mother's side. I immediately volunteered a cousin of mine, they took a lump of spit and sent it off to America. Pages of stuff with X, Y, Z and number 10 came out of it. My cousin, who is a doctor, telephoned me to ask whether I understood it and I replied that I understood it perfectly. He asked what did I understand. I informed him I understood it stated that we are the last descendents of the ancient, royal and noble family, so I am very much in favour of DNA testing. It is a wonderful human advance but, like all these things, it can be dangerous. It was dangerous in those circumstances because a family from America presented themselves the previous year claiming to be the lost kings of Ossory and we all had to bow and retire backwards from their presence. They did not show up the second year and I asked about it. There was a little embarrassment and the people who carried out the DNA testing stated that the family might have originated in eastern Europe. The DNA exploded the family's pretensions rather disastrously.
This amendment deals with the destruction of samples. The Minister's philosophical position on this matter, which is akin to that of Professor McConnell, is that it is a good thing for the State to have this extensive record. Those of us who have hesitations about it feel that there are much broader implications than simply tracking down criminals and that there is a possibility of a Big Brother situation. I draw the Minister's attention to the fact that the people covered by this provision include persons who have not been charged with an offence or who may be subsequently found not guilty. If the Minister decides that a sample from anyone arrested will be retained, it constitutes a penalty against the innocent. I am so shocked that I think I will have to sit down.
There are many factors relating to DNA screening which have not been examined. Section 14 makes no mention of who has access to this DNA and does not mention whether it will be codified or whether it will be examined for signs of inherited diseases or dominant and recessive genes. The human genome is being unravelled around us much faster than we expected. Can one examine a DNA sample to find out if the person in question has some genetic abnormality which might mean that he or she is developing a mental abnormality like Huntingdon's disease? What can we do with this DNA? We do not know who will have access to it, what they can do with it or what they are allowed look into. All we are hearing is that this DNA evidence will be destroyed after 12 months, instead of six months. It is possible to do an considerable amount with a DNA sample in a few hours. It will not simply have implications for the person from whom it is taken, who may never be charged with an offence. It will also have implications for that person's family if we do not know who will have access to the sample. For example, there is nothing in the section to say that insurance companies cannot access these samples. It is not like taking a person's fingerprint. DNA testing provides so much more in the way of information that we must be very careful about who has access to DNA samples and the degree to which we unravel this DNA.
I accept the proposition that privacy and the use of material is a crucial question. This will be dealt with in the DNA legislation when we bring it forward later this year. Listening to Senator Norris, I was struck by his description of the retention of fingerprints, photographs or DNA samples as an additional penalty. I do not see how retaining these samples constitutes a penalty. I have a philosophical difficulty in respect of this. I would not regard it as a penalty if my photograph, in addition to being everywhere else, was kept in a file in the Department of Foreign Affairs on my passport application
I do not know whether the Soaps would agree with me or Senator Norris on this matter. One of the great things about DNA and paternity testing is that when a person is a citizen of a republic, ideas surrounding heredity are slightly less important than in a society based on aristocracy or breeding. It reminds me of the story about an English monarch who visited Ireland and, while touring the west of the country, was informed that a person remarkably similar to him was living in an isolated location and that he should visit him. The king visited the individual who turned out to be a dead ringer for him.
I was impressed by the comments made in a book by the former mayor of New York, Rudolph Giuliani, in which he wrote that he had once questioned the use of DNA evidence. In a particular case, he discovered that DNA evidence solved a problem to the extent of excusing an alleged culprit. DNA evidence has a benefit, not just in capturing criminals, but in relieving someone of the accusation made against him or her. This was part of what changed former mayor Giuliani's opinion on DNA evidence and caused him to become an enthusiast of records such as we are discussing.
I remind the Irish Council for Civil Liberties and all those of the same mind that rapists, homicidal people and assailants would be more careful and less likely to commit offences if they knew there was a significant chance of trace evidence of DNA being used to tie them to particular offences. Therefore, this is not just a matter of the civil liberties and rights of those accused — I take on board Senator Quinn's comments — it is also about the rights of innocent people not to have crimes perpetrated against them by persons who currently exploit the fact that there is no trace of them. Such persons would be more circumspect about their criminal behaviour if they knew they could be traced.
We are somewhat naive regarding the potential of DNA evidence. I went to Northern Ireland and spoke with representatives of its police service, which frequently uses DNA evidence as part of its investigative methods. While the service cannot make the evidence stand up in court, contact DNA is frequently used to give it a hint about who it should be looking for. Police would swab the entire locus within which stolen property was found and go hunting for potential leads, an approach that greatly assists the service in the suppression of crime and the identification of accused persons. As Senator Quinn said, there have been cases where people were found not guilty and exculpated on foot of DNA evidence, which would not have been possible were there no sophisticated DNA system.
These issues should be examined in the context of DNA legislation. As Senator Jim Walsh put it, the provisions of this Bill are fairly conservative. We are not changing the philosophy regarding samples, but we must revisit the matter, as we need a coherent view on what Joe and Josephine Soap want the balance to be between potential victims and perpetrators.
The Minister makes an interesting case. He is right in that this is a question of balance, which one should examine. On the Minister's difficulty in understanding why I described this provision as a penalty, if he ever achieves a national DNA register upon which everyone can be found, having a sample of one's DNA taken would not be a penalty, as there would be nothing unusual about such. However, if the register is one of persons accused or convicted of crimes and if the DNA of the accused is kept even when they are held innocent, the distinction between persons in that category and the rest of the population indicates a significant difference, which would undoubtedly be seen as a penalty.
If a sample is taken from a citizen without his or her consent after being arrested, the charge is subsequently not proceeded with or fails in court and the person is found innocent, the non-destruction of that material seems to constitute a penalty because the person has been found to be significantly different from the non-criminal population as a result of that action by the police and the courts. That is clearly a penalty.
This has been a useful discussion. Even with the limited provisions we are making in this Bill, it shows how important introducing DNA legislation as quickly as possible will be.
Senator Quinn was right in his point about innocent people, a recently important matter among those on death row in the United States. I hope rapists do not believe that by using a condom, they will get rid of all of the DNA evidence, as there will be plenty more.
The condom would provide some protection to the unfortunate victim. While we cannot underestimate the value of DNA evidence, this matter should be advanced in a properly controlled way. Access to view the information is an important matter. I hope the Minister agrees.
If people were aware that such sophisticated technology was in place, they might reconsider persisting with the crime, which would be of profound help in the fight against crime. I also accept Senator Quinn's comments to the effect that this provision could be of significant help when rounding up the usual suspects. If it was quite clear as a result of the DNA profiling that the majority of them had no hand in the crime, it would also be of help.
While not a part of this Bill, important issues are at stake. We should not lose sight of the fact that the DNA profiling argument could make a considerable difference in terms of trying to reduce overall crime, specifically the horrendous sexual offences referred to by the Minister, the levels of which have rocketed in recent years.
I move amendment No. 13:
In page 27, paragraph (c), between lines 32 and 33, to insert the following:
"(i) the video taping of the taking of samples in any case where the accused has refused permission for such samples to be taken,".
We do not need to spend much time on this amendment, but I hope the Minister will accept its principle. Just as Senator Quinn usefully proposed that DNA evidence could not just help in the conviction of the guilty, but also in the exculpation of the innocent, it is important that we make provision for videotaping the taking of samples where permission has been refused.
That record would show whether undue violence was used, which would not only protect the accused, but also secure the reputation of the garda. An accused could subsequently claim that violence had been used, he or she had been beaten or so on, which would taint the reputation of the garda and place a cloud over the evidence. However, if there were videotaping of such acts, the complaint could be shown to be untrue if such were the case. If a video camera were running, it would be highly unlikely that even an ill-intentioned garda would risk violence against someone.
The Minister referred to various tribunals, but there is such a proliferation of them that I confuse them. Vincent Browne regularly covers them and the re-enactments are marvellous. I recall a woman who claimed that a detective in a Garda station in Donegal pulled hair out of her head in lumps. We want to avoid such scenarios. If a situation arose wherein a garda of that temperament was tasked with taking a sample of hair, pubic hair, saliva or whatever without the accused's consent, while it would not be an incitement, it would be a facilitation of a brutal garda, of whom I am sure there are still a few among our excellent gardaí. It might incite them to administer a good, old-fashioned thump to the accused.
We are talking about people who are only accused and whatever way one looks at this it amounts to a violation of bodily integrity. When samples are not given voluntarily videotaping protects the good reputation of the gardaí involved and the well-being of the accused. I cannot imagine there can be substantial arguments against it and I await the Minister's reply with interest.
The arguments made by Senator Norris are plausible, particularly in so far as the proposal would protect the Garda against false accusations. There is an onus on the accused to co-operate and he or she would be committing an offence by not co-operating in the first place. If proceedings are videotaped it will bring a uniform approach to the procedures whereby the gardaí extract hair or swabs from somebody who is unco-operative. Clear guidelines issued by the Commissioner would be welcome in that regard. As I understand the amendment I am happy to support it.
On the subject of protecting members of the Garda, if somebody refuses a sample while the worse for wear due to alcohol are gardaí advised to wait a number of hours before taking the sample, or will they have to get the suspect in an armlock to extract it? It is not an infrequent occurrence for people to be very drunk when arrested.
It is not impossible to provide for such a measures under regulations dealing with people in custody. I will examine the issue and take a long hard look at whether samples should be taken under camera surveillance.
What was done with the video was the most offensive thing about the arrest of Saddam Hussein. I do not recall violence being used to take the sample but the humiliation resulting from its being shown afterwards was deeply offensive to some people.
The House should remember that at present the right exists to take fingerprints, palm prints, etc., by force. A totally unco-operative person must be manhandled towards an inkpad and a form by burly gardaí and the prints taken in a rather undignified way. Whether that is a breach of their bodily integrity or dignity as compared with having the equivalent of a cotton bud put into their mouth for a sample to be taken is something on which I have an open mind. I do not see a radical distinction between the two scenarios. If force must be used force must be used.
Most stations now have an interview room containing video material. I do not know whether it would be practical to make a regulation of the kind I have mentioned. There may be cases, which I cannot conceive at the moment, where videotaping would be difficult to carry out. I am in general agreement with a principle stated in the other House that as much of what takes place between gardaí and any person should be as verifiable and recordable as is reasonable, subject to the confidentiality requirements of people who deal with the gardaí. There are reasons, which I explained in the other House but with which I will not detain this House, as to why videotaping is not always a wonderful idea. The baddies use videotaping as a means of controlling what happens in interview rooms.
I am not accepting this amendment but I will examine whether regulations for the treatment of persons in custody can be used to address the issues it raises. It is normal practice for medical practitioners to be present to take samples which are still considered intimate. It is difficult now to get doctors even to take drunk driving samples.
Getting a doctor to come to the station to pluck two or three hairs from a person requires two or three hours of his or her time away from surgery. It may not be practicable but I will look at the question because there is a consensus that this is not a manufactured concern on the part of Senator Norris.
That would be splendid. I understand the point made about the use of videos by the criminal classes for entertainment purposes or for frightening or harassing witnesses. I know they display them in pubs but that seems to be much more likely to occur following an interview situation, where they give smart alec answers. I cannot imagine there would be much mileage in photographing the taking of intimate samples.
I appreciate the very practical points Senator Henry made to the effect that people are very often drunk and have to be manhandled. If that was reviewed by a judge, however, the judge would know perfectly well what was happening and that it was justified behaviour on the part of gardaí. It would, however, protect against the outrageous situation that occurred in Donegal, where people had their hair pulled out by the roots. I do not say such practices are endemic in the Garda Síochána but it is possible that a garda, given the right under law to take a sample of hair without the co-operation of the accused, who might be difficult or drunk, could pull out a lump of hair and a number of follicles.
Section 17(2) states, "For the purposes of section 1(1)(d) of the Statutory Declarations Act 1938 a member of the Garda Síochána may take and receive a statutory declaration made under subsection (1)." Subsection (1) refers to the person making the statement rather than a person who is at the time suspected of having committed an offence. Is there not a conflict of interest in giving powers to the Garda to take a statutory declaration?
To make a statutory declaration that is in any way false or that one does not believe to be true is an offence. Sections 16 and 17 provide a system whereby someone can say something solemnly to the Garda as a statement of truth, knowing that a lie will constitute a criminal offence. Let us feed that back into section 16 as an issue that a court might take into account in deciding whether one is entitled to claim, without consequence, that one has forgotten something or is suffering from amnesia. Sections 16 and 17 are meant to work in tandem to allow gardaí to, for example, say to someone that since he or she claims to have seen an individual commit murder, they would like that in the form of a statutory declaration so that there can be no backtracking if pressure is exerted. The contents of such a declaration will be provable under section 16.
I appreciate the Minister's argument but it is in the interest of a garda taking a statement to secure a declaration. I hope that I have interpreted this correctly. Essentially, the garda is taking the place of a commissioner for oaths or a solicitor, who would be acting independently in taking the statement. On that basis, is there not a conflict of interest?
That is true, but how practical would it be to bring solicitors to Garda stations whenever a witness is interviewed? I accept that they are not as independent as outsiders but section 16's purpose is to clarify that, in certain cases, if one makes a statement to gardaí that is material to the trial of an offence, one cannot ultimately repudiate it without the court considering whether it was true. Its purpose is to give the process a degree of formality because people may express views in the course of interviews about, for example, who they think was present at an incident or who they think threw the stone that killed a man.
The purpose of section 17 is to enable at least more serious statements to be reduced to a statutory form whereby the person is on notice that he or she is making a serious statement which, if false, could attract prosecution. It is not an entirely novel proposition because, as I am sure Senator Tuffy is aware, under section 21 of the 1984 Act, notices can carry a declaration to the effect that one makes a statement believing it to be true and knowing that, if used in evidence and found not to be true, it will render one liable to criminal prosecution. It is not entirely novel because that is a kind of statutory declaration, a formalised statement that carries a warning from the declarant's perspective.
A judge will have an overriding obligation under section 16 not to permit a statement to be used as evidence of its contents if any injustice, risk or unfairness is perceived. That is written into section 16, which states:
(4) The statement shall not be admitted in evidence under this section if the court is of opinion——
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.
There is an exclusionary rule to the effect that if there is any unfairness to the accused, a judge is obliged not to admit the evidence.
I take on board the Minister's point. However, I have some doubts regarding the sections relating to the admissibility of witness statements. They are mainly to address the fact that witnesses can be intimidated. That is the most important matter because we have seen in several recent high-profile cases that people have been too frightened to give evidence and have retracted statements that they gave genuinely, knowing them to be correct. They have been frightened out of their wits because of intimidation by the thugs involved.
We certainly have no difficulty with the thrust of protecting people from intimidation. However, I appreciate what Senator Tuffy is saying and we must also have safeguards because the last thing we want is for gardaí to be blamed for insisting that statutory declarations be made under duress. As with the Bill as a whole, it is a question of the proper balance.
I move amendment No. 14:
In page 38, line 42, to delete "over 14 years of age" and substitute ", aged not less than 16 years,".
This relates to people of 14 years of age being granted training certificates. That is far too young. The age threshold should be increased to people not less than 16 years of age. It may be suggested that one has such training schemes in various schools and so on. In legal terms, however, children are not supposed to drink or be served in a bar until they are 18. We suggest, therefore, that the age of 14 be increased to 16. In amendment No. 16, we suggest that the age under which a person is obliged to seek his or her parents' permission be raised from 16 to 18.
I agree with Senator Cummins that 14 is far too young. The proviso is inserted that children may carry and use firearms for hunting and target shooting under the supervision of a specified person over 18 years of age who holds a firearms certificate in that regard. People on provisional driving licences are supposed to have someone who holds a full licence sitting beside them when driving. We know, however, that people on provisional licences take no notice of that stipulation, nor have they done so for many years.
It is dangerous to promote the idea that 14 is a suitable age at which to grant someone a firearms licence. The Minister is a more frequent cinemagoer than I and I am sure that he saw the film "Bowling for Columbine". The dreadful massacre that occurred in Columbine was re-enacted by schoolfellows and teachers of the perpetrators and victims. This was not a one-off event because there have been many similar massacres in schools across America. Most worryingly, in a majority of cases, the firearms used were legally held, frequently by the children involved, most of whom were under 16. It is bad to send out a signal that we think 14 is the right age at which somebody can begin carrying a firearm around for shooting, target practice and hunting, especially when we know section 2A(1)(a)(i), which specifies they will be supervised by an 18 year old, is unlikely to be enforced.
I have been contacted by a constituent who is an Olympic shooter and has significant problems. A cousin of mine has shot at Bisley. Shooting is a legitimate sport. Due to what my constituent feels are loose definitions of firing ranges or gun clubs in this Bill, he is afraid it may not be possible for young people to train effectively in this reasonable sport. He would support the Minister but his view is that the Bill militates against any Irish person achieving Olympic standard. I rushed out of the House five minutes ago because I assumed this correspondence was in my briefing folder but I cannot find it. I should be able to return to it if the Bill continues tomorrow. I remember the specific point that was made, which was that even as they exist the provisions of the Bill militate against Ireland ever having proper training facilities and equal access to the highest levels of this sport in terms of marksmanship, clay pigeon shooting and other disciplines. One of the principal points is the looseness of definitions of rifle ranges and gun clubs. I hope to have this correspondence before tomorrow, certainly in the next day or so, and perhaps I could send it to the Minister. Although he may be aware of the points, they are cogently argued by my constituent and I am full of regret that I do not have the correspondence to hand. However I have covered the principal points.
Senator Norris has made many of the points I intended to make. Youngsters who wish to participate in the sport of shooting must be allowed the opportunity to develop the necessary skills at an early age. I am in favour of it for that reason. It is open to the Commissioner to decide whether to give permission. I am sure the motivation behind the amendments is concern that people who lack maturity might become proficient in the use of guns. It might lead to the expertise they learn being used in the wrong way. There are ways of doing psychological tests through questionnaires and I wonder if some assessment could be made of the 14 year olds. I was trying to work out at what age a youth can join the FCA.
I thought it would be 16. They are trained to use guns at that age. I have much sympathy with Senator Cummins's amendment No. 16 on the applicant's being accompanied by a parent or guardian. It ensures that the parents are notified that their child is getting this training and may have some input, which is important. If the parent objects to the training certificate, that would have to have weight in the Commissioner's consideration on whether to grant the certificate.
I was sceptical about shooting clubs and people who shoot until I recently visited a club in my constituency. I was impressed by the club's organisation. The moment I entered this new rifle club premises in Bohernabreena I was conscious of security and that I was in an organisation of responsible people who had a strict code of practice and rules. I was impressed by that. The club members were clear on their procedures, which had been endorsed by the Garda Síochána locally, and that they had the full support of the community. If we are serious about advancing Olympic prospects, shooting is one of the few sports in which we have some hope of winning a medal, rather than some of the field and track events. However, the idea that a 14 or 15 year old could get one of these certificates is questionable. If, in terms of section 2A the Minister stated that children of 14 or 15 could shoot only in the confines of a club, that might be arguable because the environment provides a legal framework. Even when adults shoot in this club they are supervised on a one-to-one basis by a person who hears the person calling out the instructions. If children of 14 or 15 were allowed to shoot within a club I would have some sympathy with that position. However I cannot support keeping 2A1(a)(i), which specifies "under the supervision of a specified person over 18 years of age who holds a firearm certificate in respect of it". That is one individual. Some maverick parent or dubious character who has a training certificate could take a 14 or 15 year old out shooting wild boar or whatever, trying to have manly experiences up the mountains. If the Minister removed that I would have some sympathy with his position. I have sympathy with the concept that 14 or 15 year olds, possibly on a school outing, could shoot only in a club rather than supervised by just one person. However to allow a 14 or 15 year old to be taken shooting by one person over the age of 18 invites difficulty particularly in the context of the new pellet guns. The Minister is aware of a case in my area two weeks ago when a young boy was terrified out of his wits by threats, accusations and physical force through pellet guns, which are taking hold in our communities. In the context of one person training them, 14 or 15 years is too young. In a club or organisation there are greater guarantees that the minor would be under the supervision of a group of people who have built up knowledge and experience in this area.
If we are to win Olympic medals we must change our attitudes on many issues. We will not win any medals in sprints until we get more west Africans into the country because they are the only ones who win international events, be they Canadian, American or Australian. I have great sympathy for Senator Hayes's comments. While I think 14 is too young, gun clubs are in general very careful about their activities. Under the Bill the child can use the firearm for hunting under the supervision of a specified person over the age of 18. That is vague, particularly when we know how badly legislation is enforced, as Senator Cummins said about drinking and I said about provisional driving licences.
I have good news. Having rushed down to my office and back to the Chamber, I discover that what I had looked at but did not think was my briefing material actually was the material. I should not have doubted the wonderful and efficient Miriam. That reminds me that when I was in a butcher's shop on Parnell Street a couple of days ago a man said in a very accusing voice, "Are you David Norris?" I said, "I plead guilty." He said, "You do not look a bit like him." I said, "What is wrong?" He said, "Your face is all wrong." I said, "I will give it a slap." Unfortunately, my document did not look like the document I thought it was but I have it.
On Second Stage the Minister and Senator Jim Walsh nodded when I mentioned country pursuits. This is a fact of life. My correspondent is interested in the question of definitions, not just ages. He indicates that guns were removed wholesale because of the "Troubles" although this failed to stem the "Troubles". The only people who observed it were the legitimate users of gun clubs and it smothered their activities. They want the Minister to consider the following:
"target shooting" and "shooting range" to be defined in law since target shooting on an unauthorised shooting range is now a criminal offence. For "zeroing" to be defined separately from "target shooting" and for zeroing off a shooting range to be legal for a hunter since many hunters may live over a hundred miles from the nearest shooting range. To know what firearms the Minister wants to declare restricted and his reasons for such restrictions. For there to be an appeals process [which is a fundamental part of our legal system]. To be able to make submission on the drafting of guidelines. The guidelines required by law to be published openly. For clay pigeon shooters to be able get licences for target shooting with shotguns without having to join a rifle or pistol club. To not have to surrender character references and medical records and . . . [the] right to privacy in order to get a licence for a firearm with which to represent their country in international sport, Olympic or otherwise. To know what standards the Minister intends to demand that ranges and clubs meet.
There is much more detail fleshing this out but since I now have the document and have made the principal points I would like to make it available to the Minister, with the exception of the first page of the briefing. This suggests that perhaps the gun club was not taken at all times quite as seriously as it might have been. I shall remove it to spare the ministerial feelings but everything else will be made available to him and his advisers.
It would require a high velocity weapon to penetrate my thick hide.
Section 28 is a response to representations made to me by the shooting community. I have not thought up some new wheeze to expose people to gun-toting youngsters. The section provides a new section to the Firearms Act which ascribes responsibility to the Commissioner not to a tired sergeant maybe in Donnybrook Garda station, who is rushed and wants to get the file off the desk.
The Commissioner alone can do this. The administration of this provision is centralised in Phoenix Park. Section 28 states, "The Commissioner, on application and payment of the prescribed fee (if any), may issue to a person over 14 years of age a certificate (in this Act referred to as a "firearms training certificate") authorising the person to possess a firearm and ammunition...". In other words, the person can merely have it in his or her possession, not own it. The person is not allowed to have it in his or her house, or to store it or any of those things. It is not a right of ownership.
The section continues "only while (a) carrying and using the firearm for hunting or target shooting". A kid may not have a firearm under the bed at home. That is not authorised possession. A kid may not bring it to school. He cannot do any of those things. It must be in that context only and "(i) under the supervision of a specified person over 18 years of age". In other words it is not any person over the age of 18 but it must be a particular adult——
That person must hold a firearms certificate himself or herself and have therefore undergone all the assessment necessary for that activity. It is not just any 18 year old, in the way that any driver can sit in with a provisional driver and go wherever he or she wants. It must be somebody who holds a firearms certificate and who the Commissioner has decided is a correct person to specify for the purpose of the training certificate. Let us not get carried away with the notion that this is a licence for gun-toting teenagers.
The rest of the subsection states:
(ii) where the firearm is used for target shooting, on the premises of an authorised rifle or pistol club or at an authorised shooting range or other place that stands authorised under section 2(5) of this Act,
(b) complying with such other conditions (if any) as the Commissioner may impose in the interests of public safety and security.
It is wrong to suggest that this is a general licence. It is discretionary and is confined to 14 and 15 year olds to whom in certain circumstances the Commissioner thinks it reasonable to give a licence. The child must specify the exact person who will be in charge or, if it is happening in a club, the context to which Senator Brian Hayes referred will come into play. The Commissioner can lay down any conditions he likes which are justified in the interests of public safety and security.
Juvenile target shooting is an international sport. Curiously, there have been a few good Irish exponents. The law in its present form, however, means they cannot practise in Ireland, in theory. If they are law-abiding citizens they do not want to infringe the law. They can only practise abroad which is extraordinary. It is strange to have champion standard youngsters who are debarred from holding a weapon in their hands. In this we are out of kilter with the rest of Europe.
This is a measured provision, not a general licence, or some kind of proposal for everybody to have weapons. No youngster is entitled to keep a firearm at home. If a firearm is not being carried and used for the two purposes set out in section 28 2A(1)(a) it must be in the possession of an adult. No child or youngster has the right to have a gun except in this narrow window in which he or she can carry and use it for two purposes, and then only under the supervision of a person whom the Commissioner has specifically approved as a suitable person.
The age limit cannot be 21 because in university rifle clubs and the like, 19 year olds will be put in charge of 18 year olds or 17 year olds. People are younger going to college now than in the past. They may want to practise. This does not expose society to any new danger. The people who are minded to be dangerous will not pay one whit of attention to this provision.
I do not agree with the proposition that a 19 year old could not instruct a 16 year old. We are talking about adults — people who are free to vote. What could be more dangerous than allowing people to make a choice between Senator Cummins and me at an election?
The Minister referred to this section as a measured provision that offers a window of opportunity to gifted 14 and 15 year olds who are involved in target shooting. I agree with him that we should enable them to take part in international competitions, but this section does not allow them to do so. It refers not only to "target shooting" but also to "hunting".
I have no difficulty with allowing 14 or 15 year olds who want to represent their country or their club to do so within the context of a club. I have no difficulty whatsoever with allowing them to engage in such activity under the supervision of someone who is aged 18 or 19 years. A different argument can be made in respect of "hunting", which is clearly referred to on the first line of page 39. The Bill does not define "hunting", which is a pretty broad term. One could be hunting boar or whatever——
——on the plains of west Dublin or wherever, if the Minister gets my drift. I have no difficulty with target shooting, although there is a clear need to regulate the sport to ensure that gifted people are given an opportunity to participate in it. Hunting is different from target shooting, however.
We need to ensure we do not become overly restrictive. Farmers who use rifles because they are actively involved in hunting often have rifles at home. They may want their sons to become proficient in hunting at an early age. There have been some unfortunate accidents when teenage boys who have not received the necessary training have been messing around with guns. Like Senator Brian Hayes, I do not have any difficulty with the provisions in respect of target shooting — I do not think anybody would. In rural Ireland, in particular, it is not uncommon for fathers to take their sons with them when they go shooting. That may well be happening without training. This legislation puts in place a procedure whereby "a specified person" must be in charge and sets out other conditions in that regard.
I ask the Minister to monitor closely the provisions of section 28(4), in co-operation with the Garda Commissioner, who will issue the firearms certificates. Section 28(4) provides that if an application is refused, the Commissioner must "give the reasons for the refusal". I would hate to think this section will put extra pressure on the Commissioner to grant certificates in borderline cases. The Commissioner might find it difficult to put in writing his reasons for refusing the applications in such instances. Various arguments are often made in cases of this nature. In general, I support the argument that reasons should be given when certificates are not granted. As this is a safety issue, I think the Minister should monitor the use of this provision to see whether it gives rise to difficulties for the Commissioner. If such difficulties develop, perhaps this section of the Bill can be changed at a future stage. I know the Minister is anxious that the applications process should be transparent, which is how it should be, but I can envisage circumstances in which the provisions of section 28(4) could pose difficulties for the Commissioner.
If Senators consult the record of the other House, they will see I got a real kicking on the subject of transparency during the debate there. It was argued that I was not going far enough in respect of the requirement for reasons to be given. I have some sympathy for Senator Jim Walsh's point that, by putting the onus on the Commissioner to give a reason, I may be shoving his elbow in a particular way.
Nonetheless, I am reasonably content with section 28(4) as it stands.
The guns which will be used by 14 or 15 year olds for the two purposes specified in the Bill must be owned by those who are training the young people in question and must be licensed to the relevant adults. Section 28(8) states that it is "an offence under this Act for the holder of a firearm certificate in respect of the firearm to which the firearms training certificate relates to permit, without reasonable excuse, the holder of that certificate to carry or use the firearm while not under his or her supervision". If a young person is found to be using a firearm while not in the company of the licensed and specified adult who owns the firearm, the adult in question will be committing an offence.
It is a fairly strict regime. During the debate in this House on the Garda Síochána Bill, Senators said that the 18 year olds who were going to Templemore should be at university. It was argued that many trainee gardaí did not have a broad view of the world when they started in the training college. It was also suggested that the college should be moved from Templemore to Dublin.
When I checked the facts, I found that 54% of trainee gardaí have third level qualifications when they go to Templemore. The education that is offered at the training college is quite broad — it involves training in the community, etc. I mention that because we sometimes form our opinions on the basis of urban stereotypes. It was clearly a commonly held view that farmers' young sons were going directly to Templemore from school without any experience of the world, but that is not what happens in the Garda Síochána anymore. We are 1 million miles away from that. Those of us who represent Bohernabreena and Ranelagh may look at the world from the point of view of Bohernabreena or Ranelagh.
Many people in rural Ireland have 15 year old sons with whom they want to go shooting pigeon, etc., on their lands. They know the best way to get their sons to have a safe and educated attitude to the use of firearms is to bring them out, show them how it is done, teach them about breaking the weapon and inform them about safety procedures at an age when they are teachable. It is more difficult to educate young fellows at the age of 18, when they have decided they know it all and do not need training of any kind. Many farmers throughout Ireland have been educating their children in this manner for years. Those who think 15 year olds have not been shooting rabbits or pigeons on Irish farms are codding themselves. This section of the Bill merely regulates such activity. The notion that a farmer would never allow his son to take a shot at a pigeon while they are out in the field together is somewhat unrealistic. We are providing a legal basis for that practice. I could have restricted this provision to those who engage in competitive shooting and pretended I did not want to know about what happens on farms, but I was keen to put in place a fair and safe system whereby responsible farmers can teach their sons and daughters about the use of firearms. While it is much more likely to be sons who are taught in this way, I do not know why I kept referring to sons only because there are some very good markswomen in this country. We should deal with realities rather than with urban myths. I say that from a Ranelagh perspective as much as from a Tallaght or Bohernabreena perspective. The notion that a farmer who goes out on his land with his 15 year old son to shoot some pigeon should be deemed to be committing a serious offence if he allows his son to——
The Dail Divided:
For the motion: 24 (Cyprian Brady, Peter Callanan, Margaret Cox, John Dardis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Brendan Kenneally, Tony Kett, Terry Leyden, Don Lydon, Marc MacSharry, Martin Mansergh, Tom Morrissey, Pat Moylan, David Norris, Mary O'Rourke, Ann Ormonde, Kieran Phelan, Eamon Scanlon, Jim Walsh, Kate Walsh, Mary White, Diarmuid Wilson)
Against the motion: 14 (Paul Bradford, Fergal Browne, Ulick Burke, Paul Coghlan, Maurice Cummins, Frank Feighan, Brian Hayes, Mary Henry, Joe O'Toole, John Paul Phelan, Shane Ross, Brendan Ryan, Sheila Terry, Joanna Tuffy)
Tellers: Tá, Senators Dardis and Moylan; Níl, Senators Cummins and Terry.
Question declared carried.
I move amendment No. 17:
In page 41, line 28, after "person" to insert the following:
", where the permission of that person has been obtained".
The amendment relates to a person who uses or attempts to use a firearm on land occupied by another person where the occupier has not given his or her permission. Its aim is to safeguard landowners in regard to people who break the law by entering lands to shoot without having permission to do so. This is an important amendment.
These amendments relate to section 30, which inserts a new section 3 into the Firearms Act 1925. Amendment No. 17 proposes the insertion of the words, "where the permission of that person has not been obtained", in section 30(6)(b) where a limited certificate for a shotgun is being sought. I refer the Senator to section 30(11)(a) of the new section which provides that, "a limited certificate relating to land occupied by a person other than the applicant for the certificate shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate". In effect, I am totally at one with the Senator, although I arrived at this position by a slightly more roundabout way. One cannot get a certificate without having a written nomination from the occupier of the land.
Senator Cummins proposes in amendment No. 18 that a person who uses or attempts to use a firearm on land occupied by another person, without his or her consent, shall be guilty of an offence. A firearms certificate can only be granted for shooting on specified lands or for specified purposes. Where the prior consent of the owner of the land is not given, then no certificate will issue.
A separate firearms certificate is issued in respect of each firearm. All firearms certificates specify the conditions under which a firearm is to be used. Where it is to be used for the purpose of shooting over lands, the lands in question are specified. Where a person uses his or her firearm for a purpose other than that stated in the certificate, or on lands other than those specified in the certificate, he or she is using the firearm otherwise than as authorised by the certificate and under section 2(2) of the 1925 Act, as amended, any person who has in his possession, uses or carries, any firearm without holding a firearms certificate therefor, or otherwise than as authorised by such certificate, shall be guilty of an offence. We believe we have covered Senator Cummins's second point already, that if one uses the firearm in a way that is not authorised by the certificate one is——
In such an instance, if a person enters land for the purpose of shooting without having the relevant certificate, and if he or she falls and becomes injured, a claim can be made against the landowner for the injury incurred on that person's property. That is what landowners are afraid of. While an individual may be penalised for shooting on land for which he or she does not have a certificate, at the same time he or she can sue the landowner.
——that relates to civil liability. I do not see that the amendment to the law proposed by Senator Cummins is necessary because if one uses a weapon otherwise than in accordance with the firearms certificate which authorises one to use it, such as by trespassing on someone's land to shoot there, one is already committing an offence. I do not believe we need to have a separate offence of this kind.
I move amendment No. 19:
In page 43, line 12, to delete "authorisations."." and substitute the following:
(3) Any guidelines issued by the Commissioner under this section shall be made publicly available.".".
This amendment is tabled in the interests of clarity. The guidelines on conditions should be made public by the Commissioner.
This is the provision to which I referred on which I got such a hammering in regard to transparency in the other House. The purpose of the new section is to enable the Commissioner to issue guidelines for, among other things, the information of the public, on the practical application of firearms and the manner in which the law is administered by the Garda Síochána.
Guidelines for the information of the public will be published but the guidelines may also be used to inform and instruct members of the Garda Síochána on the application and administration of the firearms legislation and also to outline uniform standards and approaches to the application of the law. I have no problem about that information going into the public domain either. This was the point I made in the other House for which I got a very short shrift.
I hope I get a better hearing here. However, this section will also enable the Minister to issue guidelines to members of the force on specific operational issues which may relate solely to the administration of firearms law which would only be pertinent to members of the force engaged in the administration of the firearms law or which, in the view of the Commissioner, might on security grounds be considered inappropriate to put into the public domain.
The provision arises in view of the court case decision that the Commissioner had no right to issue guidelines in this regard and that superintendents were separate statutory officers with their own discretion and should not be guided by the views of the Commissioner in these matters. In other words, the Commissioner was deemed not to be in a position to substitute his or her judgment for that of superintendents. This provision establishes the right of the Commissioner to set down such guidelines. The great majority of these guidelines will be published but some may include security information for the guidance of local superintendents which the Commissioner may not want in the public domain. The gun lobby — if I may call it such — has been assured that the general guidelines will be published and, furthermore, that its members will be consulted in devising those guidelines. It is not a question of these people being left in the dark.
In cases where some security-specific guideline issues from the Phoenix Park to all officers, I do not want a situation where that must be put in the public domain if it is to have effect. Likewise, if a superintendent is to be guided by the Commissioner as a matter of entitlement on the part of the Commissioner to give that guidance, it should not be the case that every instance of such guidance must be put in the public domain. I was hammered for this proposition in the other House. The notion that there could be private guidelines seemed anathema, particularly to Deputy Howlin. The situation is that, in general terms, the guidelines will be published and there will be discussion, consultation and interaction between the Commissioner and the gun lobby. However, I do not want to say that no guideline could issue which would bind a superintendent on security issues unless it was thrown into the public domain. This was the argument we had in the Dáil.
I move amendment No. 20:
In page 43, between lines 39 and 40, to insert the following:
"(f) is of sound mental and psychiatric health,
(g) has sufficient capacity to possess and operate a firearm responsibly and safely,".
This amendment proposes to include two additional conditions an applicant must meet before being granted a firearm certificate, namely, that he or she is of sound mental and psychiatric health and will possess and operate the firearm in a responsible and safe manner. Perhaps I should have used the more correct wording Senator Henry employs in her amendment No. 25 in referring to "a person suffering from a mental disorder as defined under the Criminal Law (Insanity) Act 2006". The purpose of this amendment is to ensure that the issuing person takes into consideration whether an applicant is of sound mind. It is important that such a provision be included.
I support Senator Cummins's amendment. In the United States, for example, where there have been cases of gunmen killing numerous people, particularly in schools, we usually subsequently discover that these individuals have a psychiatric problem. If there was an awareness of this condition on the part of the authorities, these people would never be in possession of a gun. Anybody can purchase a gun in the United States but we should learn from the experience in that country. Is it possible for a person who has a psychiatric problem and may be in receipt of psychiatric treatment to get a gun licence? This amendment would ensure such persons could not secure such a lethal weapon.
Such problems are not peculiar to the United States; we have had similar cases in this State. It is an awkward issue because people can recover from mental illness and do well in life. If there is concern about a person, however, there should be a mechanism whereby a firearms certificate can be withdrawn with relative ease.
I am not hostile to this amendment and it is not a question of being right or wrong on this issue. Section 30 and section 4 of the principal Act should be examined together. Section 4(1) provides that an "issuing person shall not grant a firearms certificate unless he or she is satisfied that the applicant complies with the conditions referred to in subsection (2) and will continue to comply with them during the currency of the certificate". The onus, therefore, is on the applicant to ensure the issuing person — usually the local superintendent — is satisfied that the former complies with the conditions set out in subsection (2).
Subsection (2)(b) provides that one of the conditions that must be satisfied before a firearm certificate may be granted is that, in the opinion of the issuing person, "the applicant can be permitted to possess, use and carry the firearm and ammunition without danger to the public safety or security or the peace". A superintendent is positively prohibited from issuing a firearm to any person unless the latter can ensure the superintendent is satisfied in this regard.
"The peace" is a broadly defined concept. Consider the case, for example, of a person who has made appalling threats to a neighbour in the course of a land dispute. The person making the threats might be psychiatrically normal but simply a bad piece of work, like the Bull McCabe in "The Field". It is not necessary to pronounce a person such as the Bull McCabe as mad or suffering from a psychiatric disorder before he can be refused a firearm certificate. The local superintendent is prohibited from issuing a certificate unless the applicant ensures the former is satisfied that there is no danger to public safety, public security or the peace. There is a broadly based onus on the applicant to ensure the superintendent is satisfied in this regard.
Another condition that must be complied with, as set out in subsection (3), is that an applicant for a firearm certificate must "supply to the issuing person the information requested on the application form and such further information as the issuing person may require in the performance of the person's functions under this Act". The subsection further provides that this information includes, in particular, proof of identity, proof of competence and "written consent for any inquiries in relation to the applicant's medical history that may be made from a health professional by or on behalf of the issuing person".
The term "health professional" was introduced as a consequence of sensible amendments tabled by the Opposition in the other House. "Health professional" is defined as any "doctor or psychiatrist registered under any enactments governing the profession concerned or a clinical psychologist". This means that if a superintendent has any reason to suspect any psychological, psychiatric or medical condition, the applicant in question must supply the necessary information as a precondition of securing the firearm certificate.
If the issuing person is not aware that an applicant may have some psychiatric problem, how will he or she ask for the information at this stage? My amendment specifically obligates the issuing person to inquire whether a person is of sound mind or has any psychiatric problems. Otherwise, there is a loophole.
I mentioned earlier the need for a psychiatric assessment where it is deemed necessary or where a superintendent deems it desirable. I would be more comfortable with the use of a questionnaire as much psychoanalysis can now be done through the use of such methods. There is provision in the Bill for the use of such techniques to be added to the assessment process as part of its modus operandi. This could be used as a screening method, though one cannot safeguard against everything. Generally the thrust of the Bill is sensible and it contains safeguards. The inclusion of other safeguards that might make it even more secure would be desirable. At least this would mean a local superintendent or sergeant need not decide on the suitability of applications without documentary support.
This is a difficult issue because a person could possess a certificate and subsequently become ill. There is no way we can guard against that. In some well publicised cases it was well known locally that a person was suffering from a serious mental illness. In a small locality perhaps it is difficult for some to lodge objections against certain people who are known to be enthusiastic about gun clubs, hunting and so on. Would it not be more wise to have something specific in place?
The initiative to declare himself or herself in good mental health should come from the applicant, rather than the person issuing the certificate having to make a decision based, perhaps, on anecdotal evidence.
The Minister assumes that the garda issuing the certificate would know if there were a reason, based on medical grounds, why the applicant should not receive it. If the applicant is not well known to the garda how can he or she make such a decision?
If it is left up to applicants to provide their medical histories, as the legislation seems to allow, an individual may not be inclined to provide such information. If a psychologically disturbed individual commits a serious offence using a firearm there is no point in asking why he or she was issued with a certificate. People should provide a medical certificate at the outset to show they are medically fit to hold a firearm. The amendment would address this if it were accepted.
Section 32 inserts a new section 4 in substitution of section 4 of the principal Act. Subsection (3) of the new section 4 states:
An applicant for a firearm certificate shall supply to the issuing person the information requested in the application form and such further information as the issuing person may require in the performance of the performance of the person's functions under this Act, including [a number of items that follow].
There are 220,000 shotguns in Ireland. Are there to be 220,000 medical examinations and, if so, how often? Is a psychiatrist or GP to meet every applicant for renewal of a shotgun licence to ensure he or she is still sane?
What can we do on this issue that is practical? It is easy to lay down a method in advance, but does the Opposition really want every applicant to meet his or her GP to prove his or her sanity and have the GP carry out a psychological evaluation? If so, fair enough, but the paperwork involved will be prodigious. We have enough problems with eye tests for the elderly to determine suitability to drive. Is every one of the 220,000 shotgun licenceholders in the country to be submitted to a compulsory psychological evaluation? How is this to be done? It is not so easy.
Supposing a person had a nervous breakdown at the age of 20 and applied for a firearms certificate aged 45. Will the local superintendent have to carry out an inquiry?
What constitutes a psychological reason which would, in every case, be sufficient to withhold a firearms certificate? If someone is just an obtuse old loner living alone or a cranky old divil, must he or she be sent to a general practitioner for a full psychiatric evaluation or to a clinical psychologist for a psychological evaluation? These are questions which must be posed in this context.
The great majority of shotgun licenceholders never do anything untoward with their weapons. Only a tiny handful of people have used licensed firearms to commit an act of violence on another person. The number is infinitesimal and almost negligible from a statistical point of view.
In section 35 provision is made for the revocation of a certificate. If, for example, the Garda authorities become aware that Mr. Bloggs was recently sent to hospital because of psychiatric problems, has been behaving very strangely, threatening his neighbours or behaving totally out of character, it is open to them to apply to revoke the firearms certificate on the grounds that he is no longer a person who can, without danger to public safety or security of the peace, be permitted to possess a firearm.
While I do not want to anticipate the report of Mr. Justice Barr, in the case of the incident at Abbeylara there may have been knowledge among the local gardaí that there was a case for the revocation of a particular firearms certificate. I do not want to comment on that but we cannot operate on the basis that everyone must prove that he or she is not a risk, to a mathematical extent, before we issue a firearms certificate. The amount of Garda time taken up with issuing firearms certificates is considerable. That is one of the reasons we are moving from annual to three-year licences. The amount of time spent processing even run of the mill renewals is significant. If we are to have gardaí checking out medical and psychiatric reports, determining whether such reports are originals or photocopies and so forth, we will be in difficulty.
Senator Henry will agree that many people who develop endogenous or exogenous depression could have an episode of psychiatric illness which might have little or nothing to do with their suitability, 40 years later, to take up clay pigeon shooting. It is easy for us to put the superintendent or local gardaí in the position of being the judge of the suitability of every applicant and it is also easy to be wise after the event. However, we do not do this with kitchen or bread knives. We do not license them but I suspect that much more damage is done in this country with such implements in an average week than is done with shotguns.
We must try to keep things in perspective. The situation here is not the same as that which exists in the United Kingdom. An incident such as the Dunblane episode is very unlikely to happen in Ireland because the right to possess firearms is much more restricted here. Restricted firearms are rarely the subject of an authorisation. That is something with which we must live.
I appeal to the House to bear in mind that I cannot, through provisions in this Bill, ensure that nobody will ever use a shotgun in a dispute with neighbours. People will get into fiery tempers, they will drink, get overwrought and so forth and they may fire a shotgun by way of warning or bring one to a row. We all pray that people will not use their weapon in those circumstances but sometimes they will. That is the way things are. I imagine that shotguns are used more for suicides than for any other purpose. If a person is depressive or suicidal, it could be argued that his or her shotgun should be taken away but I do not know if that is a good idea. However, it is too much to expect gardaí to be able to intervene in all such cases.
I do not want to create a situation whereby whenever a death takes place involving a shotgun, it is deemed to be the fault of a garda, who should have known, intervened or ordered a psychiatric report. Neither should it be considered the fault of the local general practitioner, who should have seen that a young man was going off the rails, under marital stress, drinking too heavily, taking Prozac or whatever and intervened, contacted the Garda Síochána or told the local sergeant about the man's difficulties. Such actions might be taken in a perfect world but we do not live in a perfect world.
Subject to what Mr. Justice Barr finds in his report, we will deal with this issue. I would have liked the Abbeylara report to have been available prior to this amendment being tabled but if the Bill requires further amendment based on that report, I will act on that, if it is reasonable. We do not live in a perfect world but the provisions in the Bill as they stand are reasonable for dealing with reasonable circumstances.
Senator Jim Walsh asked if one could use aptitude questionnaires and maybe one could. Certainly one can ask that somebody produce such information as is required for the person to carry out his or her functions. The information could be a questionnaire about a person's history, previous involvement in threats or disputes and so forth. One could ask whether an applicant has been prosecuted, bound over to keep the peace or whether proceedings were initiated against him or her relating to a threat of violence on another person. One could ask such questions but I do not know whether it would do much good. I do not think one could ask people what a particular picture reminds them of, while showing them images of candlesticks, faces and so forth. I do not think gardaí are going to be able to do character analysis of that kind, based on a piece of paper.
I ask the House to bear in mind that we are referring to 220,000 weapons and a supervisory function with regard to them. It must be the case, with the exception of those weapons that are stolen, sawn off and used by people who have no concern about the law, that less than a tiny fraction of firearms are ever used, or even contemplated to be used, in an improper way. The overwhelming majority of the applicants for firearms certificates are responsible, decent people who have different psychological and psychiatric backgrounds and have never caused a problem for anyone.
I ask Senators to stick with me regarding the text of the Bill as it stands because it is reasonable. I do not think we can ask gardaí to conduct psychiatric evaluations. It is not fair to ask a superintendent, who has a lot to do in his or her district, to satisfy himself or herself as to the psychiatric well-being of people who apply for certificates. It is far better to provide that he or she has discretion and can ask questions. It is better, as is set out in the Bill, that where there may be a problem, a superintendent can ask for a backup medical report or assert the need to consult the applicant's doctor rather than to provide that, in every case, local gardaí must conduct a rigorous psychological or psychiatric test. That would be an unreasonable requirement to place on the Garda Síochána and would consume an enormous amount of time.
I support the Minister's position. As a firearm licenceholder since the mid-1960s, I have engaged in a considerable amount of game shooting over the years. In this section the Minister has made it difficult for people to be granted a licence to hold a firearm unless they comply with the provisions of the Bill. We must recognise the role played by gun clubs which will not accept applicants for membership unless they have undertaken training. Furthermore, in most cases individuals will not be granted a licence unless they are members of a gun club.
Subsection 3(d) of the principal Act requires that an applicant for a firearm certificate must supply the name of two referees. A referee will support an applicant in good faith whom he or she knows to be of good character, but the referee cannot be held responsible if something goes wrong at a later date. Having read this section, the Minister has covered all aspects in ensuring that only genuine applicants who have a real interest in game shooting will be granted a licence.
Subsection (4) of the principal Act states that a member of the Garda Síochána may inspect the accommodation where a firearm is held. I urge the Minister to request Garda superintendents or sergeants to carry out a number of such inspections in a catchment area annually. In an area where 500 or 600 firearm licences are held, the Garda might carry out 100 inspections of the accommodation where the firearms are kept to ensure they are safely stored in gun cages and cannot be taken out of such gun safes. Nearly all firearms holders have gun safes. Many gun clubs insist that their members store their guns in a gun safe. The Minister might request the Garda to conduct approximately 100 on-the-spot checks of the accommodation where firearms are stored to ensure that guns are in safe keeping. I compliment the Minister on this section.
I accept that the vast majority of firearm licenceholders do not pose a problem in terms of safety concerns and they probably never will. I am not referring to those but to those people who are the exception to the rule. The Minister exaggerated matters by referring to psychiatric assessments. I am talking about a licenceholder's GP who would be able to give an immediate assessment as to whether the licenceholder is in good health and of sound mind. I am not talking about a psychiatric assessment. I want to ensure we err on the side of safety. That is my party's reason for tabling this amendment. I hold firm to the view that in such circumstances we should always err on the side of safety. We cannot predict what might happen in the future but I would prefer if this amendment was inserted in rather than omitted from the Bill.
If firearm licenceholders are required to obtain a letter from a GP, how much will that requirement cost them? It would add €30 or €50 to the cost of each licence application. I am not against the medical profession and I do not see Senator Henry, a member of that profession, protesting about this. If 200,000 licenceholders are required to obtain such a letter at a cost of €50, that would involve a levy of €10 million for licenceholders every three years.
We hear talk about creeping stealth taxes but such a provision would require a firearm licenceholder to visit his or her GP and obtain a letter to this effect. It is not fanciful to say that the letter and visit would involve a cost for the licence holder of €50.
The Dail Divided:
For the motion: 14 (Paul Bradford, Fergal Browne, Paddy Burke, Ulick Burke, Paul Coghlan, Maurice Cummins, Frank Feighan, Brian Hayes, Mary Henry, David Norris, Joe O'Toole, John Paul Phelan, Sheila Terry, Joanna Tuffy)
Against the motion: 24 (Cyprian Brady, Michael Brennan, Peter Callanan, Margaret Cox, John Dardis, Geraldine Feeney, Liam Fitzgerald, John Gerard Hanafin, Brendan Kenneally, Tony Kett, Terry Leyden, Don Lydon, Marc MacSharry, Martin Mansergh, Tom Morrissey, Pat Moylan, Mary O'Rourke, Ann Ormonde, Kieran Phelan, Eamon Scanlon, Jim Walsh, Kate Walsh, Mary White, Diarmuid Wilson)
Tellers: Tá, Senators Cummins and Terry; Níl, Senators Dardis and Moylan.
It would be remiss not to welcome the introduction of the provision that gun clubs, irrespective of whether they are rifle or pistol clubs, must seek authorisation. This is a new section and it is the first time this provision has been introduced. I compliment the Minister in this regard. Section 34 deals with the possibility of establishing an inspectorate to ensure that gun clubs are fully compliant with the terms of their licences and all regulations and legislation relating to the area. This is a very positive move in respect of good control.
I took the opportunity of transferring to the Minister the correspondence that had been sent to me on this subject. The problem is one of definition. I hope the Minister will be able to look at this situation again and make it very clear to the gun clubs exactly what their situation is in terms of matters like being able to make appeals and registration.
While Senator Jim Walsh raised this matter in an unadulterated paean of praise for the section, I must enter the slight qualification that I hope the Minister examines the material I have given him in the interests of the gun clubs. He seems sympathetic to and understanding of the situation. I blush when I mention the fact that there was a Trinity College gun club.
I move amendment No. 22:
In page 50, line 2, to delete "or".
These are simple technical amendments and I hope the Minister accepts them. They will prevent people getting licences if they have been involved in any violent crime. This is a sensible suggestion. Irrespective of how long ago it was, if a person was involved in violent crime, be it an assault or whatever, he or she should not be given a licence.
I sympathise with what the Senator is driving at, but I wish to emphasise what he is saying, namely that anyone who has ever been involved in any violent crime should never have access to a firearms certificate. Let us examine that provision because it means that if one was involved in a domestic altercation——
Yes, but what he is actually doing is preventing a superintendent from deciding that an altercation was, for example, only a row with a referee in a GAA club, which has nothing to do with whether a person can shoot rabbits on his or her land. We should not go as far as saying that anyone with any type of record——
Under section 32, the decision must be made on whether the person "can be permitted to possess, use and carry the firearm and ammunition without danger to the public safety or security or the peace". A superintendent can examine the issue and decide on whether a domestic dispute, such as a father giving his son a kick in the backside in front of a sergeant during the middle of a fracas at the farm, is reason enough to take away the man's licence.
We should not have an absolute iron rule of that kind. We should be reasonable and provide that a criminal conviction for violence is an issue that a superintendent might take into account in deciding on whether to grant a licence. However, it should not be an absolute bar. I ask the Senator to bear in mind that superintendents are sensible people.
If one of the consequences of being imprisoned by the District Court for any violent crime is the loss of a shotgun licence, the question would arise whether it was a fair decision or minor offence in respect of a person who was dependent on that shotgun for whatever reason. Such an issue has arisen in other contexts. What if a clay pigeon champion——
The Garda took the gun from the man and a Deputy made representations to the superintendent to have it returned; I did not. The man killed his nephew and was jailed. He should never have had the gun returned to him, as the representative process in that regard was not transparent. I do not know whether the details are available under freedom of information legislation. I always refuse to make representations to the Garda to have someone's gun returned, as I could not accept the responsibility.
It was an internal dispute. There should be some way to appeal to a higher authority, such as the courts, to have a licence returned. When the Garda suspects someone of being a danger to himself or herself or family members, a gun should not be returned. The situation I outlined became a tragic one.
I sympathise with the idea behind the amendment. The return of a gun should not be decided upon by any one individual. Rather, a judicial system should review the matter and public representatives should not be involved, particularly when they do not know the circumstances of the cases. In this instance, the ending was a tragic one. I do not know whether anything could be done about this matter in the Bill, but it is a warning shot across the bow for many people.
I am sure that the Minister does not mean to trivialise domestic violence, but such a long time usually passes between people being reported and convicted that a considerable amount of trouble may occur. People involved in domestic violence always withdraw complaints. If someone has a conviction for or history of significant violence, one should consider not allowing that person to have a firearm. Of course, people could use knives. As the Minister said, a gun is not needed to do the final act.
On Senator Leyden's point, there is provision in the Bill for guidelines which I presume will cover issues such as the restoration of guns. There is also provision in the Bill for an appeal to the District Court against any decision. Where someone is clearly the type of person to whom the Senator referred, he or she would probably be refused under the guidelines and would probably have a right of access to the District Court to settle the matter.
I move amendment No. 25:
In page 51, line 5, to delete "a person of unsound mind" and substitute the following:
"a person suffering from a mental disorder as defined under the Criminal Law (Insanity) Act 2006".
We have already had a considerable amount of discussion this evening about mental illness and psychiatric conditions. I am mindful of the words of the judge Senator Norris already quoted to the effect that we should use unambiguous terms. The phrase "of unsound mind" is open to many interpretations, which may be the reason it is used. If a person is of unsound mind we will take away his or her ability to earn a living as a gun dealer. What does the phrase mean? If someone thinks a gun dealer is a bad-tempered old recluse they can label him "of unsound mind" and stop him from running his shop, which he may have run very well and reputably for a very long time.
Most of the references I have seen to the phrase "unsound mind" come from very old legislation, perhaps dating from 1925 or 1945. I am aware that it is widely used but the definition I propose would at least be more easy to look at in court. As the Minister knows, people of a psychiatric disposition are capable of arguing a case and I foresee the phrase "unsound mind" being the subject of much controversy.
I am very disappointed that, in the miscellaneous provisions of this Bill, the Minister did not remove the anomaly in section 13 of the Criminal Law (Insanity) Act 2006. When section 3 was amended in the Dáil, in agreement with a proposal of mine when the Bill was before the Seanad that a prison not be a psychiatric centre, I was very pleased. However, section 13(1) provides that the governor of a prison, on the advice of an approved medical officer, be given the powers and duties of a clinical director. I suggest we include the deletion of that section in the miscellaneous part of the Bill before us today.
It is unfair to cause a person to lose his or her livelihood on such an ambiguous phrase as "of unsound mind". It is not psychiatric terminology.
The phrase "of unsound mind" is a term used quite frequently in statute law. I think the Senator appreciates that it is used in 173 Acts of the Oireachtas between 1923 and 2000.
Would the Senator's preferred phrase "mental disorder" refer to forgetfulness and loss of short-term memory? I do not know and I do not want to discuss it now. Can the Senator imagine a firearms dealer who suffers from loss of short-term memory to the extent that he or she could no longer be relied on to make records of dealings? As a person gets older, this is something which could significantly impair his or her suitability to be a firearms dealer. I do not say that uncharitably but situations could arise where gardaí could no longer rely on a person to tell them who had come into the shop on a given day, how many shotgun cartridges they supplied or if they were sure about the accuracy of their records.
The term was not just dusted off and taken from a Victorian Statute Book but is frequently used, whatever it means. It is a broad term but it is flexible and, in the last analysis, all the decisions will be subject to judicial interpretation. If people do not agree with it they have the right of appeal to a judge, who will decide what it means in a particular case.
The Senator mentioned the Criminal Law (Insanity) Act 2006. I was not present in this House for the debate but the Minister of State, Deputy Brian Lenihan, became aware of the fact that, having agreed to Deputy Ó Snodaigh's amendment on the substantive provision, a minor reference remained undeleted in section 13.
I thank the Minister for his last remark. I would have thought that forgetfulness could be regarded as a mental disorder. In view of the fact that it is in so much legislation, I will have to put up with it. We get so many requests from the courts for more clarity that I decided to table an amendment. It would be harsh for somebody to lose his or her livelihood on account of the legislation as it stands being enacted.
I move amendment No 27:
In page 55, line 21, after "effect" to insert "only".
We have discussed the ten-year mandatory sentence for drugs, which has only been implemented in 20% of cases brought before the courts. The section allows a judge to consider facts which may allow him or her to reduce the sentence from the mandatory ten years. I suggest in these amendments that if somebody commits one offence only he or she can be considered for a reduced sentence but if somebody is convicted of a second offence the mandatory sentence would have to be applied. This is the will of the Oireachtas and has been for some time. It allows the Judiciary to consider a reduced sentence if somebody is convicted of a drug offence just once. The word "only" is used for all the areas referred to.
There was considerable debate on mandatory sentencing on Second Stage. I differ from Senator Cummins in believing that if the Oireachtas decides a particular crime merits a mandatory minimum sentence that is the sentence that should be given. I do not have any difficulty if judicial discretion is used in order to suspend a portion of it but that is preferable to a lower sentence. At the moment we might think an offence is of such gravity as to carry a mandatory minimum, not maximum, sentence of ten years. However, a judge could decide, having heard all the facts, that a person should only receive a sentence of seven years. That person may then receive 25% remission for good behaviour so will have served less than half of what we considered the mandatory sentence and that is wrong. That is wrong, since the minimum sentence should be that handed down. If the judge wishes to suspend one, two or three years to take account of co-operation or any other mitigating factor, that suspended sentence should still hang over the individual, who is then at least bound to good behaviour. Otherwise, he will have to spend the balance of the minimum sentence in prison as a consequence of recidivism.
We must be tougher in the message that we send out. I heard what the Minister said regarding the mandatory minimum sentence applying in only 16 of 76 cases. That figure of approximately 20% is far too low. If that is not the case, we Oireachtas Members must be passing the wrong legislation. It is one or the other, and we cannot both be right. I cannot believe that 80% of the time the judge feels, having heard the case, that a lesser sentence should apply.
It may not be possible to clarify the area in this Bill in which there is a great deal I would like to see enacted. Its many positive elements will be of assistance in tackling crime and, one hopes, controlling and deterring it. We should examine this area, however. We should not insert mandatory minimums unless we mean them. If that is so, the judge should not act as if he were wiser than the 226 people who made the decision in the first place. I have no difficulty with granting the judge discretion, but I feel strongly that it should be in the form of a suspended sentence rather than waiving the mandatory minimum.
Senators Jim Walsh andCummins will appreciate that we are approaching the end of a debate on legislation. I do not wish to have this before the Supreme Court on an Article 26 reference. There are too many important provisions in the Bill, regarding which I had to make some conservative decisions following advice.
I have some sympathy with Senator Jim Walsh's comments. Although one can easily imagine circumstances in which there should be deviation, I agree with him that it should be in a minority rather than the majority of cases. It is very hard for me to understand why deviation is in the form of a derogation from the sentence rather than a suspensory provision of some kind. Unfortunately, I am unable to start another line of attack on the issue now.
It is significant that I told the other House how the Attorney General had advised me that it was constitutional to provide that the specific and exceptional circumstances clause no longer applied to second offences under any circumstances. That is a significant move forward. The law is being tightened up significantly, and there is also the provision on the new factors the court must take into account before it deviates from the ten-year sentence.
I will not repeat what I said here and in the other House, except to say that I appeal in all good faith to the Judiciary to consider the vast damage that drug dealing is doing to this country and ask whether these Houses have not, in their wisdom, laid down guidelines in the form of mandatory minimum sentences, with exceptions, which carry not only the force of democratically enacted law but the moral force of representing the views of the community on where the balance should be struck.
It should not be a matter of good news for this House to realise that the specific and exceptional circumstances defence now applies in only 80% rather than 96% of cases. If we heard the opposite, namely, that specific and exceptional circumstances obtained in 20% of cases, we might rest slightly easier in the belief that we were being listened to, although there is no formal channel of communication between me and individual judges. Every Member of the Oireachtas reads in the newspapers on occasion about very large sums of money and quantities of drugs being found for which someone is sentenced to five years imprisonment. As Senator Jim Walsh said, people are also given remission for good behaviour. Sometimes one must scratch one's head and wonder whether the crime's gravity has been understood.
I return to a point that I made in this House, namely, that someone who organises a cocaine party in a fashionable Dublin suburb might as well go out to the wastelands of Coolock and personally shoot someone in the head. They are just as guilty morally speaking. I do not know how we are to get that message across, which is not my individual view but generally accepted. Someone found in possession of sufficient quantities of drugs to enable that to happen must be dealt with as the flip side of those brutal shootings. They cannot be treated as if they existed in some different and parallel universe unconnected with those other acts.
Regarding Senator Cummins's amendments, Nos. 27 to 32, inclusive, and 34, if he tenders them on Report Stage in perfect form, I will accept them. There is a technical reason for my not doing so today; it would delay our procedures tomorrow. However, I thank him for tabling those amendments.
My attention has been drawn by the Parliamentary Counsel to a slight problem that has arisen on my side of the fence, namely, that in providing for a separate penalty for a second offence involving drugs or firearms, we may have undermined the maximum penalty of life imprisonment. I wish to tie up that technicality by way of an amendment. We may have failed to mention the term "life imprisonment" in respect of the second offence, which would be rather anomalous if it were available for the first. I wish to ensure that I have not overlooked another loophole, and I will tender an amendment to that effect tomorrow.
Section 68 deals with explosives and fireworks. I dealt with a case over the past few years where people had illegal fireworks which constituted an offence. At Hallowe'en in rural areas people let off fireworks and damaged livestock, mares in particular lost foals as a result of neighbours letting off fireworks. Is it an offence for people to be in possession of illegal fireworks? People can be inconsiderate, especially in rural areas where livestock may be close to the fireworks.
I agree with Senator Cummins. While it is an offence for people to be in possession of fireworks, I do not want to have draconian laws which ruin children's careers by bringing them to the District Court. I want to deal with it mainly at source.
It is technically an offence to have a prohibited firework in one's possession. Senator Cummins makes that point and it echoes our earlier discussion of the rural-urban divide. It is a serious issue in rural Ireland. When mink was in fashion and people ran mink farms one of the consequences of fireworks was that it caused the animals to abort. Fireworks can have that effect on livestock, particularly horses. It can also cause them to do self-damage.
In urban Ireland, youngsters who get access to bangers put them through the letter-boxes of elderly people. It is great fun for the children because they do not think for a moment of the reaction of an elderly person in those circumstances. It was no surprise to me when an opinion survey we carry out showed that people want the present law enforced, do not want fireworks, are not interested in Guy Fawkes in the UK and do not think Hallowe'en requires fireworks. I must confess that this is a fine line.
One could argue as strongly that if children did not have access to bicycles there would be fewer injuries each year, and that would be a foolish argument. The amount of fun children get from fireworks does not justify the amount of damage done each year, the blinded children, the frightened parents, the frightened pets in urban areas and livestock in rural areas. On balance we are better off saying "No", and that is where the consensus lies.
A minority wants to liberalise the law but the majority does not agree. It is a question of political judgment and I will not say the answer is obvious. Normally I would not consult public opinion before legislating. While I was conservative on the subject and wanted to keep the present law and make it workable, before we took that road I wanted to know that I could tell the Government where public opinion lay. Public opinion is in favour of keeping the law as it is.
At midnight last Saturday as I was down on the farm I heard what might be described as snap, crackle and pop outside. I opened the front door and saw a firework display lighting up the sky approximately two or three miles away. It may have been related to a wedding reception, and was no doubt in a place that has a licence for fireworks. I am ambivalent on this. We have a puritanical attitude in this country to fireworks. They provide magnificent displays. Few countries ban the purchase of fireworks by individuals. If one spends New Year's Day in Vienna bangers will be going off at one's feet in the streets. I have to admit it is dangerous and indiscriminate. At Hallowe'en in Dublin fireworks go off everywhere and I am sure very few are licensed. We are talking about a law that is both unenforced and unenforceable, certainly on Hallowe'en night.
I accept the other side of the case, which is that if people, particularly youngsters, can indiscriminately buy fireworks, this would be another dimension to vandalism and disorder. I rise to speak because we should not kid ourselves that the situation is satisfactory because the law, certainly around 31 October, is unenforced and unenforceable. The Minister needs to re-examine this issue.
Fireworks create a great deal of enjoyment. While I will plead the First Amendment, a long time ago my children had fireworks at their birthdays. When properly supervised by adults there need be no unnecessary risk to life and limb. I would not entirely believe public opinion surveys. If opinion is against fireworks why are there so many on 31 October? We do not have a satisfactory state of affairs.
While I do not argue that a free-for-all would be satisfactory, it should be examined to see if one could find a better position that encompasses legitimate rights to public enjoyment. A good firework display, even for 15 or 20 minutes, is magnificent. We lean to the puritanical side. I do not blame the Minister. According to my research the ban on fireworks was brought in by his predecessor as Minister for Justice, Mr. Charles Haughey.
That is fine, but they are put on in accordance with the law. It is fine to say that children have good fun with fireworks, but I do not want to incur the wrath of my colleagues in the Royal Victoria Eye and Ear Hospital. Every Hallowe'en children lose bits of eyes, part of their sight and fingers because they hold the fireworks in their fingers. It is all very amusing until something like this happens. I saw terrible burns a few years ago when a child let a firework fall down the Wellington boot of another child. They are not suitable things for children to play with. The plastic surgery journals, and the eye journals——
We can at least try to give some protection to children. This is a sensible way to proceed because damage occurs every year. If the Senator wants any further confirmation he need only telephone the Royal Victoria Eye and Ear Hospital or talk to any of the plastic surgeons in St. James's Hospital who will describe in far more vivid detail than I can, the injuries with which they deal, caused by children playing with fireworks.
I listened with great interest to Senator Henry who comes from the coal face of the medical profession. I had not realised the level of injury because it is not reported in the newspapers. I recall when the restrictions on fireworks were brought in during the late 1940s or mid-1950s.
I understand that and I listened with great respect to the Senator. I recall when the ban was introduced a firework shop in Donnybrook exploded and people were killed. I also recall an incident similar to the one Senator Henry mentioned which involved not children but a Trinity student. During some prank a rocket went down her boot and blew her leg off. She was an adult and this section would not have covered her.
I have a great deal of sympathy for Senator Mansergh's point. Firework exhibitions are immensely delightful. As children we absolutely looked forward to them. If anyone could get hold of contraband fireworks we were thrilled to pieces. The Minister will have to divert large sections of the Garda down Henry Street where the sellers are pretty fly. They offer the fireworks from under voluminous garments but the minute a garda comes into sight off they go like a flight of seagulls.
A balance must be achieved. I had intended fully to support Senator Mansergh but one must listen to Senator Henry's report and if there are in fact such serious injuries every year we must take that seriously. They are allowed, however, in other countries and we have not seen the scale of injury that I recall hearing about in the past. It is up to the Minister to strike a balance.
I refute totally the notion that I wish fireworks to be bought or sold by children but it is perfectly legitimate for families to have firework parties at an appropriate time of year, with responsible supervision. I am rather surprised because the Minister normally adopts a relatively libertarian approach to these matters but he is not adopting one here.
How is it that other countries manage to have a more liberal regime than ours? Is there something peculiar to our culture that we are not able to manage fireworks responsibly? I am not in favour of a free-for-all whereby ten year olds can buy bangers but legitimate moderate enjoyment is possible. Most people enjoy firework displays, even on a small scale.
I have no compunction about saying that we used them although I left the lighting of them to——
Having recently seen a magnificent display in the Phoenix Park I think fireworks are fantastic when they are in safe hands. Every year, however, particularly in the United Kingdom, the figures are horrific for children mutilated by fireworks.
I had to face up to the question of whether, on liberal principles, I should say, these things happen, children will lose eyes, or a foot if something slips down their Wellington boots or whatever, and let people make money selling fireworks to them. We have decided to impose a significant penalty on people who have them with intent to supply. People who are in Moore Street, or wherever young Gonzaga boys went to get their supply of bangers in the 1960s and 1970s, face significant penalties.
The law was unenforceable because the penalties were 40 shillings or £10 which today would hardly cover the cost of the stamp on the summons going out to these people. The penalties are significantly increased, and it is in an arrestable offence to be in possession of fireworks with intent to supply them to others. Anybody who brings in a container load of fireworks in future will face a severe penalty.
We cannot simply leave the law unenforced or at 40 shillings which is absurd.
I raised this matter on Second Stage. I welcome the provision to make it an offence to participate in a criminal gang which the Minister said is based on the Canadian criminal code. It has not been widely used there and probably will not be widely used here because it is difficult to prove. Its effect, however, is that anybody who participates in, or in any way contributes to, a gang involved in organised crime would be in breach of the legislation and suffer the penalties outlined therein.
The Canadians took account of the fact that police are often involved in undercover activities which may mean ingratiating themselves to participate in a gang. The Canadian law exonerates the police, even when they participate in offences, with the exception of murder and rape and other such crimes. Does this section open up a situation that will make it difficult for gardaí or special branch detectives to operate in that way?
I am unsure about the extent to which the practice is used by the Garda. If it is not used to a great extent, it should be. It is used in other jurisdictions as an effective way of infiltrating gangs and bringing the heads of those gangs to account. It has often been said in this House during debates on organised crime that while the smaller fry within gangs are often caught possessing, selling, trafficking or importing drugs, it is much harder to catch the godfathers of crime. While I welcomed and agreed with the introduction of the legislation in question, I would hate to think that it has created a difficulty in other areas of investigation — that needs to be considered. The Minister has rightly said that it is good to have the legislation on the Statute Book, even if it is not widely used.
Senator Jim Walsh is right to point out that police in some parts of the world have infiltrated organised crime gangs. One is on a very slippery moral slope when that starts to happen. If members of police forces want to impress their would-be colleagues in crime, they have to be seen to engage in criminal acts. It is difficult to justify a decision to authorise police personnel to do things which are criminal, such as possessing firearms or being part of bank robberies so they can see what is happening. I completely agree with Senator Walsh that if we are dealing with offences of this nature, the truth is they will be prosecuted in the last analysis by internal informer evidence rather than external observation. I see nothing wrong with informer evidence in such cases. I mentioned on Second Stage that the Labour Party proposed an amendment that would allow people to be retried for offences of which they were convicted. Deputies Howlin and Jim O'Keeffe argued that it might be a good thing for people who have got away with murder to spend the rest of their lives wondering whether one of their accomplices in the murder will inform on them. It was suggested that they should not be given a free ticket for the rest of their lives — they should not be sure they will not be brought to book for the crime. It is an issue about which I will have to think seriously. Perhaps people who have committed such crimes should live in a world where the prospect that one of their accomplices might get into trouble someday and decide to provide vital evidence, such as telling the gardaí where the murder weapon is concealed or the body is located, is always hanging over them. They should be worried that they could get caught in the end.
I will consider the important point made by Senator Jim Walsh. Today is not the day for me to give a definitive answer in that regard. I take the point that if one really wants to penetrate organised crime and organised drug dealing, one has to be willing to pay and protect informants. As Fr. Peter McVerry said in today's Evening Herald, we need to be in a position to penetrate these organisations, by whatever means, so we can get evidence from within. Under our law, it is impossible to prove many of these offences from the outside. We are familiar with some of the structures which are used in the United States, including plea bargains and immunity deals, etc. We may have to raise our game substantially. I would like to say, in response to the points made by Fr. McVerry in the Evening Herald about the amount of resources being allocated to informer evidence and witness protection programmes, that there is no sense in which the Government is holding back on resources in that regard. If the Garda Commissioner tells me more money is needed for a witness protection programme or an informer evidence programme and that such funds would yield results, the Government will not fail to sanction such expenditure.
I welcome the Minister's comments in this regard, including his promise to consider the matter. I agree fully with him that serious moral questions arise in this regard. Some diverse views were expressed in Canada during the controversial and broad debate on this issue there. Witness protection programmes are absolutely essential in the fight against crime. We need to do everything we can to assist the investigative authorities so they can catch the heads of the gangs, who can be very difficult to pinpoint and bring to justice. I am concerned that if we leave the legislation as it is, we might cause the Garda to discontinue its attempts to infiltrate gangs. The infiltration of a gang is a high-risk business for any garda. Those who get involved in such activity put themselves at great personal danger and risk. If the infiltration of gangs is to be part of the Garda's armoury in fighting organised crime, as it should be, gardaí need to be allowed to gain an element of credibility among those they are infiltrating. If it is to be effective, gardaí must be seen to go along with the organisations' activities at a certain level. In Canada, which I have mentioned, the line has been drawn in a certain place — members of the police force are not allowed to get involved in murder, bodily harm, rape and sexual assault, etc. Perhaps it needs to be broader than that. Given that some serious questions have to be raised in this area, I am glad the Minister has agreed to give it some consideration. I am sure there would have to be a fairly thorough debate in both Houses before the Minister could enact legislation in this regard.
I move amendment No. 35:
In page 103, subsection (2), lines 34 to 36, to delete all words from and including "both," in line 34 down to and including "day" in line 36 and substitute "both".
The purpose of amendments Nos. 35 and 36 is to remove the restriction whereby the court does not have the power to grant a restriction of movement order for more than 12 hours in a single day. The use of such an order has the potential to act as an alternative to incarceration in the case of some individuals.
I appreciate that. It would be strange to decide that a person who is at liberty and not in prison is under house arrest and cannot leave his or her home. Would such a person be allowed to go to a religious service or to a doctor? If the person is living alone, will he or she be allowed to leave the house to get some food? Will such people have to rely on others to come to their homes in such circumstances? It is a question of judgment.
I did not want to risk the possibility of having the section being regarded as unconstitutional for allowing for a form of house arrest. Twelve hours is not a magical number. Twenty four hours, on the other hand, would raise significant issues as to whether it was equivalent to house arrest and would carry with it many implications. I must bring public opinion along with me on this issue. I would not be able to do so if I introduced a provision where an individual was confined to his or her house, 24 hours a day.
I move amendment No. 37:
In page 104, subsection (6), line 11, to delete "is participating, and it shall ensure, as far as practicable," and substitute the following:
"ordinarily participates, and it shall ensure, as far as is practicable,".
Section 101 contains an important proviso that will allow an offender to complete a course of training or education before being made subject to a restriction of movement order. Subsection (6) allows this delay to be spread over a maximum of six months. I see no reason it cannot be extended to over a year since that is usually the maximum period for the duration of a course. Many courses last more than six months and will mean some offenders could be forced to leave them. I hope the Minister will see the value of allowing offenders pursue such courses by virtue of the fact that proviso is already contained in the Bill.
Senator Cummins is proposing that subsection (6) makes no provision as to the maximum period for which an order may last. Subsection (3)(a) states that a restriction on movement order may last for a period of not more than six months and allows for orders over shorter periods. The six-month limit applies even when there are multiple orders. The sums of the period may not exceed six months. The policy reason behind this choice was that a longer period may create difficulties with the likelihood of non-compliance. As a matter stretches on, will the individual comply with an order? Does one expect people to comply with it over a long period? A relatively short period is more likely to be effective and is the reason the section is drafted as such.
These matters must be balanced. In the UK, ASBOs must last for at least two years. Our proposed ASBOs will not last more than two years. It is an interesting distinction and I do not know which model is better. If the period for these orders needs to be changed at a later stage, we can revisit it. There will be plenty of occasions to strike the balance differently.
I move amendment No. 38:
In page 104, after line 52, to insert the following subsection:
"(12) The court shall, in all circumstances, endeavour to ensure and satisfy itself that, the offender who is to be the subject of an order under subsection (1) fully understands the implications of his or her agreeing to comply with the requirements of the order under subsection (11).".
This amendment seeks to ensure the courts will make it clear in plain English the effects of a restriction of movement order to the individual concerned. While there are other duties on the courts, this is the clearest way of expressing the courts' requirements.
Senator Cummins is proposing to insert a new subsection (12). Is it necessary to do so? Subsection (11) states:
Before making a restriction on movement order, the court shall explain to the offender in ordinary language—
(a) the effect of the order, including any requirement which is to be included in the order under section 102,
(b) the consequences which may follow any failure by the offender to comply with the requirements of the order, and
(c) that the court has power under section 103 to vary the order on the application of any person referred to in that section,
and the court shall not make the order unless the offender agrees to comply with its requirements.
It is rather clear.
I move amendment No. 39:
In page 105, subsection (1), line 22, to delete "written".
This amendment addresses two issues arising from the subsection. First, the subsection requires any legal submission to be made in writing before it may be considered. There does not appear to be any solid basis for this and such a restriction should not be contained in primary legislation. If endorsing expiry times and dates is a matter for the rules committee of the various courts, then this matter should, at the very least, be decided at that level. Notwithstanding that, there is no reason a person should be prevented from making such an application orally. The subsection also unfairly discriminates against illiterate persons or those with weaker writing skills from acting on their own behalf.
The second issue relates to representation by a barrister or solicitor. It is a technical element but the subsection does not allow for a professional legal representation. The amendment would remove any potential confusion surrounding this issue.
Regarding the written application, if an individual were illiterate, the District Court clerk would help him or her to draft the application. The purpose of it is to ensure that the person at the receiving end of the order — the person who will want to object to the variation — will know why he or she is being brought to court. We cannot have a situation where gardaí standing in court find out on the hoof why they are there. We do not want a situation where they are told an application has been made, the nature of which is unsure, but they are asked if they could attend and object to it if they believe it is wrong. It must be in writing to give notice to the other side of what is being proposed. District Court clerks are good at assisting people who cannot manage forms. Judges are always careful to ensure that an individual with a literacy disadvantage is assisted in getting a summons or an application filled out for him or her by court staff.
It is a constitutional right to be represented by a lawyer in court. The section would not be interpreted in a manner so as to prevent a solicitor or barrister appearing in court for cases such as this.
I will speak on all of them if I may and we will take it from there as these sections amount to a package of measures. I have some difficulty with the question of anti-social behaviour orders, ASBOs. I recognise that there are unpleasant circumstances in which people, especially old age pensioners and single mothers, have come under a lot of pressure from gangs of young louts. It is not just male louts who are involved. In the case to which I referred the other day, a couple of teenaged girls bit the arm of a policeman in Donegal and he had to be hospitalised. In some circumstances the attacks are most serious and unpleasant but such cases are extreme.
I note that in speaking in the other House, that wily politician, the Taoiseach appeared to want to have it both ways. He stated:
Sometimes the individuals are under age and although we have passed tough laws in this House, whereby drink can be taken from them and whereby they are not allowed to loiter or use their ghettoblasters or motorbikes, some of them still persist to engage in such activities. It is for that reason the Minister has, in this Criminal Justice Bill, adopted what will be regarded by many as a draconian position.
That is what the Taoiseach described as "a draconian position". He also stated:
It is tough to introduce civil orders the breaching of which will be a criminal offence. It will be possible to apprehend those who breach the orders without warrant. These are very tough measures. People will be down to St. Luke's complaining about them. Parents do so now and say their Johnny is getting a rough time from the police. However, the reality is that if young people do not get a bit of a rough time from the police, we will never address these issues.
On the one hand the Taoiseach admitted there was a problem, which we would all recognise, but on the other hand he said this is fairly draconian. He accepts that the measures are tough and draconian. He also referred to the issue of drink. Will the Minister indicate if it is legal for people to drink openly on the street?
I am thinking of central Dublin where one sees people with cans all the time yet nobody does anything about it. These people sit on steps having been to the local off-licence, the Polish pub or wherever else. They misbehave considerably, especially in an insanitary fashion which I will not describe fully in this House, immediately after consuming all this booze. This type of situation is already covered.
I thank the Minister. I will do my best to ensure that they are. We already have a solution to that problem without resorting to ASBOs. The Taoiseach was quite right when he stated the Bill is fairly draconian. The section relating to people engaging in offensive conduct in public is a similar situation. What constitutes offensive conduct is any unreasonable behaviour which may, with regard to all the circumstances, be likely to cause serious offence or serious annoyance to any person who is or might reasonably be expected to be aware of such behaviour. In an earlier section they do not even have to be aware. The behaviour may be causing annoyance to nobody but a garda may say it might have cause in certain circumstances. The aspect of the Bill concerned with public behaviour is fairly draconian.
In his contribution on the preceding section, the Minister stated that perhaps after two years we should examine the operation of ASBOs in the light of experience. I welcome the fact that the Minister is prepared to do that. However, we do have experience in this area. One only has to look across the water, which is basically where the provision came from. If I am correct, ASBOs are a British invention. They were introduced in 1999 in England and Wales in circumstances of fairly considerable controversy, even though in the British Parliament it was possible to present to the Houses significant evidence of a very serious disturbance in poor housing estates where there was harassment, intimidation, vandalism and so on.
One of the ways British ASBOs worked was to displace people. They moved the problem on. One of the difficulties I have with these ASBOs is that they were banishment orders but they did not address the issue of problem children. In recent years we have introduced a child-centred approach where there is a diversionary tactic. The Children Act 2001 appears to go directly against the introduction of ASBOs because its aim is to try to get under-age offenders out of the penal system and into a much more positive environment, which is what I would welcome.
I am not sure the Minister or Government spokespersons have yet made the kind of consistent, sustained case about extensive incidents of this kind of behaviour. Perhaps it does happen, but as I suggested with regard to drinking, by-laws and other measures already exist under which these issues can be tackled and we have taken on board the principle of diverting juvenile offenders away from the criminal fraternity and into an environment in which their problems may be more easily resolved. The experience in Great Britain has shown that children or young adults are the principal targets of these kind of orders, and in particular, those who are marginalised. At first the number of ASBOs issued were quite low at 104, but they have rocketed up in recent years to more than 2,600 between November 2003 and February 2005. There has been a considerable expansion of the number of ASBOs issued in England and Wales.
There is a view that these provisions are contrary to the various obligations of the State, both domestic and international, towards children, such as Article 3 of the UN Convention on the Rights of the Child, which requires that the best interests of the child must be of primary consideration in all actions taken concerning him or her. In the case of ASBOs, we are worried about the impact on the neighbours. Although the situations involve children, we are not focusing on the child and the reasons for its dysfunction. I have no doubt that I will be regarded as a bleeding heart liberal or a pointy head academic even though I have retired from university but it appears to me that it is a——
I will provide the Minister with another term he may use, "invincible ignorance". How about that? There is a good old fashioned ring to it. I believe a child-centred, preventative policy would be better. If we are to learn from the experience in Great Britain, a significant problem with ASBOs has been the fact that, unusually, the names and addresses of under-age people are released by the court in a policy which will be familiar in this House as one of my colleagues continually refers to it — naming and shaming. I do not believe this is a good idea. I wonder if under this legislation we will have the same situation where low-level British-based tabloids publish the names and addresses of young people in the newspapers. I sincerely hope this will not happen. It has also happened that photographs of young people were published, which is dreadful.
With regard to the making of anti-social behaviour orders, there is shift in the burden of proof, which is on the balance of probability rather than beyond reasonable doubt. I am sure the Minister is aware of what has happened in Great Britain, which is that a reliance has developed on hearsay evidence, which is admissible. This means that an application can be made on the basis of either anonymous reports, complaints where the sources are known, complaints where the source is known but not disclosed or reports by the police in the course of their duties where the source is either unknown or undisclosed. This would almost lead to guilt by attainder. That is problematic, especially in situations where the initial behaviour while aggravating, annoying, a nuisance and all the rest of it, has not escalated to the level of a criminal offence. If an ASBO is issued and it is contravened, the person can go to prison. If it is possible for an ASBO to be issued on foot of hearsay evidence this would be a serious matter that should cause us to reflect.
The experience in Britain is again instructive in this regard. In both England and Wales, breaches of ASBOs occur in approximately one third of cases and, of these, half the perpetrators end up in custody for behaviour which does not constitute an imprisonable offence. This is significant. The system has been described as a "geographical lottery" by a respected professor. I could name the districts in Dublin, for example, where ASBOs will be rife. People from these deprived areas will be put in prison for offences that are not of themselves punishable by prison sentences.
In regard to the situation in Britain, Professor Andrew Ashworth of Oxford University states, "The combined effect means that people are being sent to prison for committing a non-criminal act such as entering a part of town when banned or for an offence which has a maximum penalty of a fine". He continues, "Such provisions not only turn the criminal law upside down but do so when safeguards are sidelined because the key proceedings are civil". This is the reason for my hesitation and uncertainty in regard to ASBOs. I am aware their introduction will be politically popular. I will undoubtedly get negative feedback for raising questions about them, if anybody is paying attention to the proceedings of the House at 9 p.m. It is highly unlikely that any of this will be reported anywhere. I have, however, discovered some of my constituents are highly intelligent and watch these proceedings on their computers. I may look forward to several snotty e-mails or letters in coming days.
It is undoubtedly a politically popular move that will play well in the Irish equivalent of Peoria. I wonder, however, whether it is in the interests of young people. I oppose sections 113 to 119, inclusive, because I remain to be convinced in this regard.
I am sure the Minister's intent in these sections is to make more bearable the lives of ordinary people who are subject to harassment, "significant or persistent alarm, distress, fear or intimidation", or "significant or persistent impairment of their use or enjoyment of their property". From my dealing with patients, I have found harassment is not so widespread a problem. However, I cannot count the numbers of patients who tell me of their experiences of persistent distress, intimidation and impairment of their enjoyment of their property. It is sometimes entire families who cause dreadful trouble for their neighbours while, in other cases, it may be only one or two members of a family who cause trouble, alone or with other persons.
Senator Norris may be correct that the introduction of ASBOs is politically popular. However, rather than saying they are a good idea, many people have pointed out to me that they have not been a success in Britain. In some parts of that country, unfortunately, an ASBO seems to have become a badge of distinction. It is considered an achievement among some youths who have caused the most appalling trouble for their neighbours. I was frequently asked for notes, from patients in corporation housing estates in particular, to the effect that they had to move house for health reasons because of their neighbours' behaviour.
I received a telephone call from one woman concerned about the behaviour of a boy on her street who, as he got older, was increasingly causing trouble for others. His latest trick was to knock children off their bicycles. How far does a person like this have to go before something is done about him? In this case, the boy's aunt had come to stay with him and seemed, although she was a far smaller woman, better able to deal with him than his widowed mother, who was entirely incapable of controlling him.
In many of the cases I have seen, alcohol and drug abuse was a significant factor. We must provide far more facilities both outside and inside prison for those with problems in regard to drug and alcohol abuse. A great number of those who engage in anti-social behaviour are addicted to some substance. Mental illness is another issue that must be addressed and which is not mentioned in the Bill. It is often the case that children who engage in anti-social behaviour come from homes in which other family members have appalling problems. In most of the cases I am aware of, it is young people below the age of 22 or 23 causing the problems. It is only in respect of totally delinquent families that there are complaints about adults.
Facilities for the treatment of adolescents and children with problems are inadequate. There are long waiting lists to see psychologists and psychiatrists, even when the school which the child may or may not be attending believes such treatment is required. After-school facilities are also inadequate. I do not know whether the Minister had time to read the report on lone parents that his Department was involved in drawing up for the Minister for Social and Family Affairs, Deputy Brennan. It is a good report although it does not contain many solutions. In attempting to get lone parents back into the workforce, it is extremely important to consider who will look after their children while they are at work. There is a shortage of after-school clubs and crèches. Children are bound to become engaged in problematic behaviour if they are running wild on the streets. Parents no longer enjoy the support of the extended family as they did in the past and many grandmothers are working outside the home.
Restorative justice schemes have been successful and I understand the Minister is promoting activity in this regard. He also plans to expand the probation service and the successful Garda diversion schemes. It will be great if ASBOs are successful but I am extraordinarily pessimistic about how this will be done. If they are not within the remit of his Department, will the Minister ask his Cabinet colleagues to examine the areas to which I referred? After-school clubs can help ensure children are not on the streets. In all areas, rural and urban, there are difficulties in helping those people engaged in anti-social behaviour who may be suffering from mental illness.
While I support Senator Norris's amendment, I understand the Minister's intent in regard to these sections. He asked in his speech on Second Stage what the media might say if no provisions are introduced to deal with anti-social behaviour. I advise him that the media will say what they want to say. We must do the best we can to resist being led by them because we do not get much thanks for it. If the ASBOs fail, all that will be said is that they were useless in Britain and are also useless here.
I take an entirely converse view to that expressed by Senators Norris and Henry. I fully support sections 113 to 119, inclusive, and consider them an essential component of the Bill. I take on board the comments made by Senators Norris and Henry in regard to protecting children when it comes to the operation of ASBOs. That is dealt with in sections 159 to 166, inclusive. The issues have been well thought through in regard to how the process will evolve and operate in practice.
Sections 113 to 119, inclusive, relate to adults. When I was on Wexford County Council, I was aware of situations in particular housing estates where one or two persons or an entire family caused absolute havoc for their neighbours. In an estate of 30 or 40 families, one family can make life hell for everybody else. This is totally intolerable and the law should not allow it. Wexford County Council embarked on consultation with the Garda in the locality in regard to the most serious such cases. In one case, a person who was involved in the rally car business would wait until 10 p.m. or 11 p.m. to begin revving motors and would continue to do so until 1 a.m. or 2 a.m.
With what crime can such persons be charged? The council could only choose whether to evict them. In that case, it is necessary to gather evidence and go to court, where the judge might take the view it is only one or two members of that particular family causing problems and the entire family cannot be evicted. Such a system is totally ineffective. Anti-social behaviour orders are not a British invention. The Joint Committee on Justice, Equality, Defence and Women's Rights met representatives of the Metropolitan Police in London and we discussed community policing and ASBOs. The Metropolitan Police had visited Holland and the United States, Boston, I think, where ASBOs are in operation. They copied the operations they saw and applied them to London.
What this means is a mechanism is created for dealing with people causing a nuisance in their area. A warning is issued and, ultimately, if an ASBO is issued the recipient is entitled to free legal aid, if necessary, in the District Court. A person who breaches an ASBO is guilty of a criminal offence. This is the only mechanism I can envisage for taking effective action. It is unlikely that an innocent person will end up a victim of this legislation. Those causing turmoil for neighbours and entire estates should not be allowed to continue with impunity. I ask the House to support this strongly. It is specifically aimed at people aged over 18, although I agree with Senator Norris that other issues relate to children aged from 12 to 18, the age limit prescribed for children who can be subject to ASBOs. We must be careful in dealing with that. This provision is well structured and will be effective. I hope the introduction of joint policing committees will see major issues like this around the country effectively tackled to ensure people can live in peace and harmony without mindless disruption from those inflicting great torment.
My party held more than 50 meetings nationwide over 18 months ago on the issue of anti-social behaviour. We came across horrendous cases of neighbours from hell at nearly all of those meetings. We all hear of such cases but do not witness them unless we have to live next to such people. In estates throughout the country it is often one family or extended family causing much of the trouble. We need the existing law to be enforced along with the introduction of new law. However, there is no point in making laws if we do not give the resources to the Garda to implement them. We must provide communications systems that work and much more to enforce the law.
Senator Norris, probably correctly, said he could determine where the majority of ASBOs will be issued in Dublin. I could do likewise in Waterford and I am sure it is the same in many areas. I hope these areas are not seen as a soft target. There are many other residential estates where people causing trouble for neighbours, elderly and otherwise, need a slap on the wrist. I support the concept of restorative justice and the pilot schemes around the country are working reasonably well. I agree with the expansion of the juvenile liaison system and believe it is necessary. Such changes do not derive solely from this Bill. The Garda Síochána (Police Co-operation) Act 2003 provides for community policing and the policing committees that will be coming into force. Marrying these pieces of legislation will, hopefully, solve the major problem of anti-social behaviour. We fully support many of the measures contained in this legislation and several were contained in our own policy documents. I take on board the points made by Senators Norris and Henry. A balance must be struck in the area of anti-social behaviour.
I am also in favour of anti-social behaviour orders, ASBOs. Anti-social behaviour is becoming a larger part of crime in Ireland. It is still somewhat hidden and statistics should be calculated on the problem. People in my area, not one or two but several, have given up council houses, leaving themselves homeless, in order to escape anti-social behaviour. These may be elderly pensioners leaving their home of many years. The type of people targeted are usually vulnerable, like single mothers and the elderly. Anti-social behaviour can cause terrible stress and ruin lives. Some victims will not leave their homes, they may be very distressed, yet it is often difficult to pinpoint a particular crime that has been committed relating to the behaviour. However, such behaviour is unfair, selfish and alarming.
I told the House on Second Stage that recently my garden wall was demolished by a stolen car at 4 a.m. We had to rebuild it and I could take the situation up to a point, but I realised a week or two later that I was staying awake at night having heard speeding cars, not necessarily on my estate. The fear had returned of it happening again. That is on a very small scale, but I can imagine what it must be like for people living in constant fear of anti-social behaviour.
It is but not all joyriding involves stolen cars. There has been criticism of such legislation in the UK but there has also been much positive feedback. Many local authorities and people in communities are involved and many reports state that it has improved areas, which is of benefit to everyone including the children and adults involved in anti-social behaviour. This can help nip such behaviour in the bud so that a child or young adult will not get involved in crime later on.
This legislation has been reviewed in the UK since it was introduced in 1998 and the 2004 antisocial behaviour legislation in Scotland has updated it. We must also carry out this type of revision to see how the legislation is working. We might consider introducing an anti-social behaviour Bill, upgrading this legislation and adding other elements. I hope the Minister will bear this in mind, especially as he is introducing joint policing committees.
In the United Kingdom the local authorities are much more involved. It is my experience that local authorities play an enormous role in dealing with anti-social behaviour here and have great expertise in the area. I do not think the Garda Síochána will be able to cope with the added duty of having to apply for and enforce anti-social behaviour orders. Further down the line we should consider involving the local authorities and allowing them to apply for such orders.
In Scotland a new provision to the 2004 Act requires that the chief constable and the local authority adopt anti-social behaviour strategies. There is much more of a joint role there. We all know that anti-social behaviour is not just a matter for the Garda Síochána but also for local authorities, communities and so forth.
I also note that in Scotland parenting orders have been introduced, based on the idea that parents have an important role to play in this area. The orders have not been introduced simply to get at parents. The thinking behind them is to provide support for parents. Parenting orders are made when the making of such an order is desirable in the interests of preventing a child from engaging in further anti-social behaviour. An order is given to the parents to be involved in the process. There is nothing similar in this legislation, unless I have missed it, but it is a provision we might consider in the future.
The idea behind parenting orders and the UK equivalent of good behaviour contracts is that there are supports available to help people to comply with anti-social behaviour orders. Dr. Ursula Kilkelly has said that an enormous problem for children in the Children Court is that they are not given any support in complying with bail conditions and she called for a bail support programme. I would argue that the same should apply to the orders being introduced under this legislation.
I radically and profoundly disagree with Senator Norris. I excuse him the fact that he has opposed a series of sections here which have nothing whatsoever to do with children and only apply to adults.
It has been blithely stated, again and again, in the Irish public domain — and I am glad that Senator Tuffy has corrected it — that anti-social behaviour orders are a failure in the United Kingdom. This is because a group of pointy-headed intellectuals have——
I wish to say, in the best humour, that a group of people announced they had an alliance against ASBOs and all of the usual NGOs came galloping out of the woodwork and said they were against them too. We then had the usual pitched battle on a battlefield which has nothing to do with reality.
I wish to explain to Senator Norris what we are dealing with in this legislation. Imagine if everyday Senator Norris left his house and a neighbour stood beside him as he left and said he was a disgrace, was this, that or the other and made disparaging remarks about his lifestyle. The neighbour went out to the back garden when Senator Norris was there with friends and spoke to him over the wall, saying that he objected to him, found him disgusting and so forth.
Imagine members of the Senator's family and his guests had nasty things said to them as they went in and out his door and he had a neighbour from hell. What crime would be committed by that person? If, in the end, the Senator found that he could not bear the situation any longer and felt he would have to leave his home unless someone came to his aid, what would he do? I will tell him what he would do in North Great George's Street. He would go to a solicitor and get an injunction against that person and say, "Do not harass me, do not address me, do not address people coming into my house, stay away from me when I am going in and out of my house, do not talk to me over the garden wall, do not put banners in your window referring to me", and so forth. That is what the Senator would do.
The point is that Senator Norris would probably have access to a solicitor who would take out an injunction for him.
I urge him to now picture himself in an apartment block run by a local authority, where he does not have the wherewithal to go down to his local solicitor and obtain an injunction or does not even know about the law relating to injunctions. The Senator should try to picture himself in circumstances where, as Senators Tuffy and Cummins have said, he feels that the only way to keep his sanity is to move out and get away from people who are ruining his life on a systematic basis by venting hatred at him in a low-key way and making it clear to him that as long as he lives beside them or on their street, they will make his and his children's lives hell, if he has guests, they will insult them on their way in or out, and so forth. That is the reality we are dealing with and if Senator Norris does not think that happens, he should consult Senator Cummins about what he found at his meetings. It happens regularly. People become fixated and driven by an evil passion to make other people's lives unbearable.
What is the difference between the ASBO procedure and a civil injunction? The latter is handed to a wealthy person, relating to his or her neighbours, on the balance of probabilities, after a court hearing. The judge puts a penal endorsement at the end of a civil injunction which states that if the person disobeys it, he or she can be sent to prison. If the neighbours disobey the injunction and keeps shouting abuse over the garden wall or harasses guests, they go back to court. They appear before the judge, the plaintiff swears the behaviour happened, despite the order made by the court. They go to prison and are fined.
That is the law and it is what happens when wealthy people's lives are made a misery by neighbours from hell. That is what they do. They go to solicitors, get an injunction to prevent themselves, their children and guests from being harassed. They bring the offenders to book and obtain a remedy. The remedy is based on the civil standard of proof, exactly as here, and when it is breached, the person is brought to court and jailed. That is what happens. That is the contempt jurisdiction.
What we are dealing with here is nothing new but it is bringing this remedy to Joe and Josephine Soap, to use the phrase used earlier, who at the moment could not imagine getting their act together and putting their house up on hazard for civil costs.
An ASBO does not criminalise misbehaviour any more than the civil injunction and contempt punishment criminalises ordinary behaviour. It is a simple thing. In certain circumstances, a person's behaviour may cross a threshold which requires him or her to be brought to court. An order is made on the balance of probabilities, using the civil standard of proof, against that person and if he or she breaches that order, it is explained, as is provided in this Act, that he or she will commit a criminal offence. If the person commits the criminal offence, under this Act it must be proven beyond reasonable doubt. If a court, on the second stage, has a reasonable doubt, it must acquit the person concerned. That is what we are dealing with here.
Is this a novel proposition when looked at from another point of view? It is not. From time immemorial, as the late Mr. Justice Rory O'Hanlon has said, justices under the common law ——
——had the right to summon before them people to require them to enter a bond to keep the peace and be of good behaviour. That has been a power of common law judges since the year dot. That is preventative justice of exactly the same kind. It asserts that we have a basis in which to say to a person that if he or she does not behave in future, he or she will be punished. There is nothing wrong with that principle.
What we are doing in Part 11 of this Bill is bringing to Irish people some remedies by which they can have some hope that the neighbours from hell will be dealt with by somebody in an effective manner. Our legal definition of anti-social behaviour is more stringent than that in the UK. We have separate provision in law in this respect for adults and children, in the UK the measure applies to everybody over the age of ten. Our law provides that only a senior member of the Garda Síochána can apply to bring a person to court. The local PC Plod cannot bring a person to court, although he can give a person a warning. However, a senior officer must decide whether a person will be brought to court.
As Senator Tuffy mentioned, in the UK the local authority can bring an individual to court. Joe Soap working in the local authority can commence proceedings to bring a person to court by issuing an ASBO against him or her. Our proposals will extend for a maximum of two years, whereas in the UK such orders can be made only if they have a minimum life of two years. Our proposals provide for a €3,000 fine or six months' imprisonment on summary conviction for breach of an order. In the United Kingdom the provision is five years' imprisonment for breach of an ASBO.
Reference was made to the name and shame principle when it comes to children. It is clear from the provision dealing with children that publication of a child's name could take place only if it was essential to make the order work, in other words, if one had to tell local shopkeepers that a child cannot be loitering around the precinct.
A proposal was brought before the Committee on Justice, Equality, Defence and Women's Rights and discussed in shadow form and brought back before that committee through the amended provisions of the Children Act. There is provision for good behaviour contracts. Parents must be involved in the process in terms of their children. There is also provision for repeated warnings and the requirement for youth diversion measures before orders are applied to children.
However, a 15 year old is as capable as a 25 year old of making an 85 year old pensioner's life a misery and somebody must be willing to do something to protect the 85 year old pensioner. I reject as trite the suggestion that action in this regard can be taken only when it is in the best interests of the child. Children live in the real world and I pose the question as to what is in the best interests of the 85 year old pensioner. What about the right of pensioners to live in their homes in their declining years with some degree of dignity? The best interests of the child is not the sole determining factor as to whether an ASBO is made and it would be grotesque if it were because the best of the interests of the child may be to allow him or her pester his or her neighbours until the crack of doom.
I defer to Senator Norris if he wants to posture on the fashionable side of this argument, but I point out to him that the fashion is not to be found in the letters column of one newspaper or in the collective musings of the NGO sector. The Senator should attend one of Senator Cummins's meetings to find out from people who have experienced such behaviour where the real balance of opinion lies rather than gauge that from articles written by people who wit around on subjects the hard side of which they have never experienced. I speak with some passion because as a constituency representative I know from what constituents who call to my clinic have relayed to me what they have seen and heard——
——what it is like to live beside a family from hell and for those constituents to say they must leave their neighbourhood because there are people in it who are set on making their lives a misery. That is very wrong. Such actions do not have to amount to criminal behaviour for the reasons I mentioned. I gave the Senator examples. None of those actions would constitute a crime. If a neighbour were to say, on a constant basis, to guests entering the Senator's house that he or she disapproved of his lifestyle or X, Y or Z , that could be the last straw for a person of a less robust character or a more delicate disposition than the Senator, and such a person could say that he or she could not take any more of it.
The Senator may remember that he made a reference the other day to my going to open the Outhouse service in Capel Street. However, he may not know that as I left those premises, three people who effectively had stalked the meeting, approached me on the street and one of them, who had a toddler in arms, came right up me and screamed in my face "Why do you want to take our children and give them to homosexuals?"
We should remember that when those people find a vulnerable gay person living in their community, that kind of obsessive hatred will be vented in a homophobic way on that person. A person who is lonely, vulnerable and does not have a robust constitution cannot put up with that for three or five years. At some stage he or she will say, "I just cannot live in this street anymore, I am off".
What I am doing is giving real remedies to real people in real situations. I agree with Senator Tuffy. I would argue that, perhaps because of the pointy-headed people, I have watered down this measure too much and I have made it too difficult to operate. Before an order can be issued, gardaí have to give warnings and such warnings have to be ignored and, in regard to child offenders, repeated warnings have to be given. Senator Tuffy may be right in that perhaps we will have to revisit this issue. No criminal law is in place forever but to say that this measure is a bad idea or that the measure in the UK has been a failure is wholly unscientific, not true and flies in the face of the evidence in the United Kingdom that the great majority of people want such orders to be part of their law.
We have to stand up for the small people in our society. Leona Helmsley said she thought that tax was only for the little people. Peace of mind and the right to live peacefully in one's home are not confined to the big people in society who have access to lawyers and the legal system to defend their rights. These rights apply to everybody equally — little and big people in our society. I appeal to the House to strongly support this measure to vigorously launch it as part of our law. I appeal to this House to reject the smug and effete witterings of a group of people——
Yes, but the Minister has had a pretty good innings. What he said was delightful and I enjoyed every bit of it.
The Minister may be suffering from short-term memory loss and he should apply to my colleague, Senator Henry, for treatment because he might have otherwise remembered that on Second Stage I referred to the good behaviour contract clauses in a positive light and I said I would oppose sections to tease out the ideas. I am damn glad I did because Senator Tuffy appears to think that an ASBO would prevent some drunken lunatic driving a tractor through her house. The Minister appears to think that I have a pointy head and that I share this disfigurement with Senator Henry. He does not appear to realise that I have a neighbour from hell. I ignore her totally — she is socially dead as far I am concerned.
The Minister dismissed the views of a range of people, including those who should be listened to even if one does not agree with them, such as Professor Rod Morgan who is chair of the Youth Justice Board for England and Wales and senior professor at Oxford University. The Minister rubbished such views.
Yes, but that professor referred to the whole situation. The Minister has rubbished such views. The general burden of the case the Minister made in the beginning was that persons like ourselves could get an injunction but other persons could not. He is absolutely right and I agree with him. Is that calamitous situation not a catastrophic criticism of the legal process here? We pose as people who protect all the people and as a society in which everybody has rights, but why do people in these circumstances not have access to free legal aid? They should have access to free legal aid. I agree that people should not be tortured; I never said they should.
The Minister made the point that persons of a certain level of education and privilege have the opportunity to get an injunction and that other people are disbarred from doing so either through their social conditions, intellectual inadequacy, poverty or ignorance. If this is the case, it is surely a criticism of the system.
The Minister has successfully shifted the goalposts. The law is patently not being implemented in respect of drinking, which is a genuinely anti-social issue. One can walk down any street in the centre of Dublin and see people sitting on footpaths and boozing away to their hearts' content.
I sympathise with Senator Tuffy. It must have been a horrible experience having a car driven at her house by louts. However, an ASBO would not solve problems such as these. She introduced an extraneous argument.
It did not sound like that to me. Everyone experiences sleepless nights. It was a very emotional argument which gave the impression that this situation could be cured or ameliorated in some way by an ASBO when it is obvious that this is nonsense. I do not care what shape Senator Tuffy's head is. I do not care what shape the Minister's head is or whether it was growing a point earlier like Pinocchio's nose. The longer he went on, the more pointed it became. Obviously, I will not get very far with this matter and, as my colleagues pointed out, the hour advances.
The offence of stealing a car differs from that of joyriding and causing damage or danger to property or persons. Perhaps it is another day's work but it is not necessarily true that someone who carried out such an action could be prosecuted for stealing a car because it is a separate issue. Sometimes, the offence of joyriding and causing damage or danger to property or persons is not carried out with a stolen car.
I will repeat a point I made on Second Stage. Would it be possible to hold a person for another year or two years if his or her sentence was to expire before he or she was 19 or 20 years of age rather than imprisoning them? I greatly dislike imprisoning young people, particularly if they have displayed good behaviour in detention centres. Prisons can become institutes of higher criminal education and have done so for many people. These people become contaminated by prison life.
I am sympathetic to Senator Jim Walsh's argument. If a person was coming to the end of his or her sentence, in practical terms, the chances of him or her being moved to a prison are slight. The authorities tend to put them out on temporary release rather than move them to a new environment where they would learn bad habits.
This section deals with reckless endangerment. Under this section it becomes a more serious offence for someone in authority over a child to intentionally or recklessly cause or permit the child to be placed in a situation which would create a substantial risk. This offence carries the maximum penalty of a fine, or ten years imprisonment or both. On the face of it, I fully support this provision but one scenario worries me. This scenario has arisen in the past in very serious cases of child sexual abuse and I do not doubt that it arises as we speak and will arise in the future. In this scenario, the father is abusing some of his daughters with the knowledge of the mother, who is also in authority. For whatever reason, such as the belief that exposure would bring shame on the family, the mother feels she is not in a position to do anything about the abuse. I am concerned that under this provision, the family, which could contain younger children, could be deprived of both parents because their father would be rightly imprisoned for the abuse and their mother, an otherwise exemplary person, would be imprisoned because she was a person in authority who failed to act. Has any consideration been given to this scenario because it has arisen in the past and will undoubtedly arise in the future? Most cases of child sexual abuse occur within the family and extended family. It is an area that worries me.
Senator Jim Walsh raised a very interesting point. I will revisit an issue I raised on Second Stage which was not answered by the Minister. Under the Bill, an abuser means an individual believed by a person who has authority or control over that individual to have seriously harmed or sexually abused a child or more than one child. These people need not be convicted. This will be quite hard on people.
I agree that such is a hard case. For a woman in those circumstances, it is a real Sophie's Choice situation. Does one destroy the family, imprison the bread winner and make the family destitute or does one protect one's child? I would hate to be in that position and I cannot conceive of an easy answer. To fail to apply this provision to a parent who sees a child being abused by another parent would be equally grotesque.
Senator Henry is right in that I did not address her other point. "Abuser" in this context is someone that is believed to be abusing a child. If someone who had abused a child for a long time committed suicide or died, another person could not walk away from his or her own responsibility because there was no conviction or he or she was acquitted by a jury on a defective warrant or whatever we usually have.
The Senator's point is a good one. The term is particularly defined in this context as someone who is believed to be abusing a child. We are discussing people who recklessly endanger a child by causing him or her to be left in such a situation because they are safe as long as the abuser in question is never convicted. For example, take the Ferns Inquiry, from which this all falls. Where were the convictions? There was plenty of reckless endangerment in my view, but I do not want to prejudice any potential trial.
I propose a change to the Order of Business. We have been following the words, many of which have been enthralling, that have fallen from everyone's lips and, as we are making such progress, I propose that should it be necessary the House sit until 10.30 p.m. to complete Committee Stage.
I move amendment No. 42:
In page 160, between lines 26 and 27, to insert the following:
"(b) by the insertion of the following:
"(2) Any person who assaults or threatens to assault—
(a) a person providing emergency medical services in any place, or
(b) a person assisting such a person, shall be guilty of an offence.",
(c) in subsection (2)—
(i) by the substitution of "under this section" for "subsection (1)", and
(ii) by the substitution of "€3000" for "£1000",".
The purpose of this amendment is to create the specific offence of assaulting members of the emergency services who are acting in the course of their duties. We all agree that there is no more heinous or cowardly act than to attack a fireman who is trying to save a life or property or a paramedic who is trying to save someone's life. We believe that this principle should be enshrined in our law.
Recently, a fireman received more than 35 stitches after being hit by a bottle in the course of duty. There have been many such incidents, including in our accident and emergency services. I know a girl of 26 or 27 years, a head sister in an accident and emergency unit, who gave up nursing because of the hassle and abuse and assaults she experienced while working there.
The Senator will appreciate that we are criminalising assaults on firemen, nurses in hospitals and people engaged in the due execution of their duties. The real question is whether someone rendering medical assistance other than in a hospital should be the subject of this provision, such as a general practitioner on a house call who becomes involved in a fracas there. In this legislation, we have decided not to extend the provision to that situation. The ordinary law applies. If one assaults any GP or paramedic, one is liable to be prosecuted. Special penalties do not necessarily apply.
I spoke about the fireman in question on the Gerry Ryan programme. He received a number of stitches to his face after a bottle was put through the windscreen of his fire tender. The offence, which involved that man's serious disfigurement — I hope he makes as good a recovery as he can — carries a sentence of life imprisonment. In this Bill, we are providing a seven-year penalty for someone who throws a bottle at a fireman and misses, assaults a nurse working in an accident and emergency unit or a paramedic. We are introducing serious penalties. Other forms of serious assault can be pursued independently of the matters in question. As the Senator knows, these provisions were being drafted before the fire tender assault.
——who only does good, and for authority and the contempt shown for humanity in terms of someone doing injury to a person in those circumstances are almost unbelievable. I have never heard of a fireman who went out in his tender to do ill. I welcome that Members of both Houses said that they were shocked by this type of behaviour.
The advantage of this provision is that if someone throws a stone at a fireman attending a fire and misses, he or she will be in serious trouble. We are not even discussing the people who hit the fireman.
I welcome and am not at all surprised that the Minister is speaking so strongly on this issue. The House is united behind him in that context. There are other circumstances in hospitals, for example, where members of gangs who have been shot are placed under armed guard, which exposes nurses without any increase in remuneration in terms of danger money or special insurance. They are placed in great danger.
While the principle of my amendment has been disallowed, I wish to speak on it with the guidance of the Chair. I received a notice from the Cathaoirleach indicating that the next amendment, which deals with the same matter, is out of order. I tabled an amendment stating "all such persons acting on behalf of the state to whom reference is made in this section shall have the same rights to compensation as members of the Garda Síochána and the armed services".
Someone assaulted in the same circumstances as those two firefighters should have some form of compensation available to him or her. They are not my employees. I am responsible for the Garda. In so far as we are including its members in the term "peace officers", I see the moral force of what the Senator is suggesting, but I cannot accept a new form of liability on the part of the State. In any event, the existing law relating to the compensation of members of An Garda Síochána is in need of reform, which I did not address in the context of the Garda Síochána Acts. I cannot give a commitment to broaden this protection to other services.
It has always struck me as slightly odd that if Senator Norris went to the aid of a young garda who had been beaten up outside Leinster House and, for his trouble, the Senator took a brick to the head and was seriously injured, the garda would get compensation but the Senator would not. It is a strange system, but I am not in a position to right all the wrongs of the world.
It is foolish and it neuters the Seanad in many areas. It means we have to find mechanisms to circumvent it, as I have done once or twice. On one occasion I got as far as a couple of pages into a budget because Albert Reynolds accepted it. It is a mistake and diminishes the dignity of the House to impose a blanket ban, so that when we table sensible amendments they are disallowed. Even though we have been duly elected as Members of Parliament we cannot be trusted with anything to do with the purse strings.
I am glad the Minister has accepted moral suasion on the section in question. I understand he may not be in a position to do anything about it directly at the moment and the services referred to are not in his remit as Minister for Justice, Equality and Law Reform. However, as the Minister for Justice, Equality and Law Reform and a distinguished practising lawyer, I am sure he has a general feeling about the concept of justice. He indicated in a reply to me earlier this evening that he regards this provision as a bit strange. It is more than that — it is unfair and includes a series of anomalies.
The Minister graphically described the serious injuries firemen sustain and I am not sure the fireman to which he referred is entitled to any form of compensation, which is grossly wrong. If we expect such people to put their lives in danger and accept an ever-increasing risk of injury it is quite extraordinary, wrong and immoral that they should have no compensation.
I understand the Minister's difficulties but hope he will talk to his Cabinet colleagues to persuade them to take into account the rights of these personnel, particularly as he says that the very system I had suggested be used as a benchmark is itself inadequate, unsatisfactory and out of date, namely the Garda compensation system.
Section 184 seems to provide great potential for a garda to abuse his position. I say that as a Member from Donegal. I do not say many gardaí will abuse their position but the potential exists. It is different from a traffic offence because a garda can issue a charge and demand payment.
The system makes sure the Government stays in control of the Exchequer because it is responsible for it.
I do not agree with Senator Lydon. If a person is found acting in a drunk and disorderly way, for example urinating on the street, drinking and creating mayhem, two things can happen. The garda can either tell him to go home or summons him to court. Under the current system, in three or four months the person will be brought before the courts and, if he is found guilty, he will have a criminal record. Under this Bill, a garda can catch a young man and send him a written notice stating he was caught urinating in the middle of, say, Main Street, Ballybofey. If he pays, for example, €150 there will be no prosecution and I believe that will teach many people a hard lesson. It is preferable to bringing them before a district judge, in full view of journalists, to put manners on them. I appreciate Senator Lydon's point that bullying could arise in the form of repeated harassment, but to bring a person before the District Court, to humiliate him before that community and ruin his job prospects in the locality and to plaster his name all over the Donegal Democrat might be just as tough.