Criminal Justice Bill 2004 – Committee Stage Debate – 3rd July 2006
Mr. Norris: 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.
Mr. M. McDowell: 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.
Amendment, by leave, withdrawn.
SECTION 14.
Mr. Norris: 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 lost McGillapatrick 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 sit down.
Mr. Norris: The CIA is already looking at our bank accounts. Perhaps it will also look at DNA samples as well.
Mr. M. McDowell: 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
Mr. Norris: What about people from whom DNA samples are taken without their consent? The Minister should talk to his friends, Joe and Josephine Soap. They will tell him.
Mr. M. McDowell: 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.
Mr. Norris: Was it good old King Edward?
Mr. M. McDowell: The king asked the Irishman whether his mother had ever visited London. The Irishman replied that she had never visited London but that his father had.
Mr. M. McDowell: 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.
Mr. Norris: 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.
Amendment, by leave, withdrawn.
Mr. Norris: 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. Mr. M. McDowell: 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.
Mr. Norris: They are tight themselves at that time of night.
Mr. M. McDowell: 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.
Mr. Norris: Do the regulations come back to the Houses of the Oireachtas for approval?
Mr. McDowell: I cannot say off the top of my head.
Mr. Norris: It would be useful to know whether the Minister had taken the view on board. Can he get information on the practicality of his proposal by Report Stage?
Mr. McDowell: I will come back to the issue tomorrow.
Mr. 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.
Amendment, by leave, withdrawn.
SECTION 28.
Mr. Norris: 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.
Mr. Norris: 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.
Mr. B. Hayes: It is like the warrants.
An Cathaoirleach: To what amendments or section does the Senator wish to speak?
Mr. Norris: This addresses the very subject about which we were talking.
Mr. M. McDowell: It is relevant.
Mr. Norris: 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 them "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.
Mr. M. McDowell: I assure the Senator that my feelings are not all that sensitive.
Mr. Norris: The Minister surprises me.
Mr. M. McDowell: 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.
Dr. Henry: Shooting the ducks in the park.
Mr. M. McDowell: 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-----
Mr. Cummins: He is only 18-----
Mr. M. McDowell: The Commissioner must decide who that specified person is. It is not the case that one of the kid's four brothers is enabled to go rabbit shooting with him. That is not in the Bill.
Mr. Cummins: It is not very clear.
Mr. M. McDowell: 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,
and
(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 kid 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.
Mr. Norris: They will not look for a licence.
Mr. Cummins: If a 19 year old brings a 16 or 17 year old into the pub he or she is not entitled to drink.
Mr. M. McDowell: If the 19 year old brings him into a pub he will not be carrying and using the firearm for the purpose of target shooting or hunting.
Mr. Cummins: I am not suggesting that but the problem is in the paragraph (i) which refers to the person over 18 years of age.
Mr. M. McDowell: 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?
Mr. Norris: 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.
Mr. Coghlan: Does the Senator mean to say that he was not a member?
Mr. B. Hayes: That is his second mention of it.
Mr. Norris: The first was by the Minister and the second was by me.
Mr. B. Hayes: The Senator mentioned it first. It is the third mention.
Mr. Norris: In that case, the Senator cannot count. Will the Minister examine the material and make a response?
Mr. M. McDowell: I am grateful to Senator Jim Walsh for his paean of praise and note the qualification added by Senator Norris. The students of Trinity played their part in 1916 with all of the weapons to which the Senator referred.
Mr. Norris: Indeed they did. Some of them were shot in the 1960s.
Question put and agreed to.
Sections 35 and 36 agreed to.
Mr. Norris: 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.
Dr. Henry: It is reported in the medical journals.
Mr. Norris: 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.
Dr. Mansergh: 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 them here.
Mr. Cummins: Rightly so.
Dr. Mansergh: If one is to go by medical reports from hospitals and so on, we should ban hurling and rugby.
Mr. Norris: Hear, hear. I could not agree more.
Dr. Mansergh: We should close down pubs. Many leisure activities result in serious injuries.
Dr. Henry: We could start with rugby.
Dr. Mansergh: Are we to ban them all?
Mr. Norris: Yes, definitely.
Dr. Mansergh: 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-----
Mr. Norris: The children.
Dr. Mansergh:-----my wife, who is much more responsible than I.
Dr. Henry: That is true.
Dr. Mansergh: I hope we enjoy parliamentary privilege here. Our children enjoyed fireworks over many years at Hallowe'en which would not have been the same without them.
Mr. Norris: What about Guy Fawkes?
Dr. Mansergh: No. Guy Fawkes is commemorated across the water.
Mr. M. McDowell: I am neither a killjoy nor a puritan. I often wonder whether the Irish attitude to Guy Fawkes is affected by the fact that he was regarded as someone who was doing his best. That's the way we are.
Dr. Mansergh: I am talking about Hallowe'en not Guy Fawkes.
Mr. M. McDowell: 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.
Dr. Henry: Yes, it happens everywhere.
Mr. M. McDowell: 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.
Mr. Cummins: That was £2.
Mr. M. McDowell: One either has an enforceable law or abandons it. Senator Mansergh argued for abandoning it.
Dr. Mansergh: No I did not.
Mr. M. McDowell: In certain circumstances. I am shocked by the revelation that the godfather of fireworks in Tipperary allowed one of his family to light the fuse. I thought with the courage of his convictions he would take the risk himself.
Mr. Norris: Ignite child and retire.
Mr. Cummins: It has shocked the Minister also that Senator Mansergh wants to ban hurling in Tipperary.
Question put and agreed to.
Sections 69 to 71, inclusive, agreed to.
SECTION 113.
Question proposed: "That section 113 stand part of the Bill." Mr. Norris: I will talk on the whole lot 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, Deputy Bertie Ahern, 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?
Mr. M. McDowell: No, but it depends on whether there are by-laws in operation on the street in question.
Mr. Norris: 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.
Mr. M. McDowell: They are in breach of Dublin City Council by-laws-----
Mr. Norris: Can the police enforce them?
Mr. M. McDowell: -----as was a prominent Member of the other House in regard to his drinking of Carlsberg at the Gay Pride demonstration.
Mr. Norris: For one horrible moment I thought the Minister had resurrected some shocking misdemeanour of my own.
Mr. M. McDowell: No.
Mr. Norris: Will the Minister indicate if those by-laws are enforceable by the Garda?
Mr. M. McDowell: Yes.
Mr. Norris: 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 -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-----
Mr. M. McDowell: An innocent dupe of people who are wrong-headed.
Mr. Norris: 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 jail 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.
Mr. M. McDowell: 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-----
Mr. Norris: I knew it.
Mr. M. McDowell: -have written articles and letters to The Irish Times, asserting this and if it is there to be read, then of course they are a failure. That is what has happened.
Mr. Norris: I may be quite bald but the Minister could not say there is much of a point on my head.
Mr. M. McDowell: They have not been a failure in the United Kingdom. The great majority of the people in the United Kingdom believe very strongly in them and believe they are a success.
Mr. Norris: Would they have stopped the car driving into Senator Tuffy's wall?
Mr. M. McDowell: One moment, please, Senator. There is no evidence that they are a failure in the United Kingdom but a group of people have asserted it, a group of the usual suspects in Irish society-----
Dr. Henry: Pointy-headed people?
Mr. M. McDowell: Yes, I said exactly that. The Senator missed it while she was out of the Chamber.
Dr. Henry: I have a nice round head.
Mr. M. McDowell: A group of the new hierarchy of civil society has announced this from its little pulpit and therefore, we are all to believe it. What squalid little people.
Mr. Norris: I am not a little person. Look at me.
Mr. M. McDowell: 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.
Mr. Norris: Such things are not unknown in my life but I put up with them.
Mr. M. McDowell: Let us suppose this went on to the point where, like Senator Tuffy, Senator Norris found excrement in his garden and wondered where it came from.
Mr. Norris: I would suspect the cat.
Mr. McDowell: 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
Mr. Cummins: There are many people who would be afraid to do that.
Mr. J. Walsh: There are many who could not afford to do it.
Mr. M. McDowell: 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.
Mr. Norris: They are a slippery couple, those Soaps.
Mr. M. McDowell: 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 -----
Mr. Norris: What shape is his head?
Mr. M. McDowell: 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 anti-social behaviour definition in law is more stringent that of 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. With regard to children in terms of the name and shame point, it is clear from the provision related to 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 made here, it was brought before the Committee on Justice, Equality, Defence and Women's Rights and discussed in shadow form and it was brought back before that committee in a very much amended form with the Children Act provisions amended to take care of this proposal. 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, what is in the best interestd of 85 year old pensioner? What about 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.
Mr. Norris: That is rubbish.
Mr. M. McDowell: The truth is that the neighbour's interests are what we must protect.
Mr. Norris: The Minister is torturing logic and he knows it.
Mr. M. McDowell: I defer to Senator Norris if he wants to poster 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 guage 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 called to my clinic have relayed they have seen and heard-----
Mr. Norris: The Minister should be careful - he should not say anything about being attacked by a person carrying a knife when he was Australia or Nigeria.
Mr. M. McDowell: -----what it is like to live beside a family from hell and for a people to be driven - which is very wrong - to say they must leave their neighbourhood because there are people in it who are set on making their lives a misery. Such actions do not have 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 this.
The Senator may remember that he made a reference the other day to my going to open the Outhouse service in Capel Street, but 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 their arms, and came right up me and screamed in my face "Why do you want to take our children and give them to homosexuals?".
Mr. Norris: The same people said exactly the same to me after the Government's reception at the time of the publication of the report of the constitutional review committee.
Mr. M. McDowell: We should remember that when those people to 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 any more - I am off".
What I am doing is giving real remedies to real people in real situations. I 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 the 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 generally 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 that 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 the 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-----
Mr. Norris: If the Minister calls me an effete once more, I'll sue him.
Mr. M. McDowell: -----who manufactured a little storm about such orders and feel so good about doing so but do not live beside a neighbour from hell.
An Leas-Chathaoirleach: Is the section agreed?
Mr. Norris: No, I wish to comment on some of what the Minister said.
An Leas-Chathaoirleach: We have spent an hour dealing with this section.
Mr. Norris: Yes, but the Minister has had 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 put table amendments opposing 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 here, including people who should be listened to even if one does not agree with them, such as Professor Rod Morgan who is the chair of the Youth Justice Board for England and Wales and senior professor at Oxford University. The Minister rubbished such views.
Mr. M. McDowell: This has nothing to do with children. The sections the Senator is opposing apply to adults.
Mr. Norris: 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 tortured; I never said they should.
Mr. M. McDowell: They have access to legal aid under the Act.
Mr. Norris: Clearly it is not working.
Mr. M. McDowell: The other people can go to the gardaí who will help them. That is the service which will be provided.
Mr. Norris: 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.
Mr. M. McDowell: It is up to a point. If the State is to subsidise a legal argument between lawyers on both sides of every dispute between neighbours, a situation would pertain similar to that in the UK where the legal aid bill costs £2 billion per year.
Mr. Norris: I detect a slight swelling of the head.
Mr. M. McDowell: We cannot afford this.
Mr. Norris: The Minister is turning into a pointy head.
Mr. M. McDowell: It is not a lawyer-fattening matter.
Mr. Norris: 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.
Mr. M. McDowell: Senator Tuffy was making a different point. She argued that she experienced sleepless nights as a result of the incident and that this is the experience of people at the receiving end of anti-social behaviour.
Mr. Norris: 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.
Ms Tuffy: The Minister has grasped the reason I raised the issue. It is not so clear cut whether a person who drives a stolen car into property and damages it can be prosecuted for any other criminal offence.
Mr. Norris: I would have thought it possible to prosecute someone for stealing a car. Perhaps it is all right in Senator Tuffy's area.
Ms Tuffy: The offence of stealing a car differs from that of joy-riding 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 joy-riding and causing damage or danger to property or persons is not carried out with a stolen car.
Mr. Norris: Does this happen when one's neighbours drive a car into one's property? If that was the case, I would definitely move. Senator Tuffy should move to North Great Georges Street.
Section 113 agreed to.
Sections 114 to 141, inclusive, agreed to.
SECTION 185.
Mr. Cummins: I move amendment No. 42:
Mr. Norris: 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".
An Leas-Chathaoirleach: The Senator can raise this matter under the discussion on the section.
Mr. Norris: I take it that the Minister will be sympathetic. I will leave the matter until we reach the section.
Mr. M. McDowell: 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.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach: Amendment No. 43 has been ruled out of order, as it involves a potential charge on the Exchequer.
Amendment No. 43 not moved.
Question proposed: "That section 185 stand part of the Bill."
Mr. Norris: It is absurd that the Seanad is not trusted to make any recommendation that involves the spending of money. It is utterly fatuous and ridiculous.
Mr. M. McDowell: It also applies to Opposition Members in the other House.
Mr. Norris: 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.
Mr. Lydon: I wanted to speak on section 184. Has that opportunity now passed?
Mr. Norris: Yes it has - it came before section 185. It is a matter of arithmetic.
Mr. Lydon: 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.
Mr. Cummins: I noted the Minister's remark to the effect that Members in the other House were also denied right to speak on finance. We will see plenty of slush funds between now and the election.
Mr. M. McDowell: To answer Senator Norris, all non-Government Members in the Dáil, including Opposition Members, are prohibited from moving measures that would add to the burden of the Exchequer. That applies in the Seanad also.
Mr. Norris: The whole Seanad is precluded. Are we all the Opposition - the loyal Opposition on one side and the disloyal Opposition on the other?
Mr. M. McDowell: 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.
Question put and agreed to.
Sections 186 to 196, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
