Wednesday, 19 June 1991
Dáil Éireann Debate
“3.—(1) In any case under this Act, where the extent of the damage alleged exceeds £100, the accused person shall have the right, as shall the Director of Public Prosecutions, to elect for trial on indictment.
The purpose of this amendment is to address the right of a person to elect for trial by jury when charged with an offence under the Act. I have to concede however, that I am not going the distance that the Law Reform Commission seek to go in their recommendations in this respect. In my amendment I propose that all persons charged with an offence that exceeds £100 or more should have the right, if so accused, to elect for trial by jury and that the Director of Public Prosecutions should also have the right to elect for such a trial. In subsection (2) I propose that in all other cases, that is where the amount of damage does not reach £100, the matter shall be tried summarily and that the maximum penalty to be provided for on summary conviction shall be six months imprisonment or a fine of £1,000, or both.
The Law Reform Commission propose that the right to elect for trial by jury should repose solely with the Director of  Public Prosecutions and that is the way the Bill is drafted in this regard. There is a rule of construction, as I understand it, handed down by the present Chief Justice when he was President of the High Court that where an Act is silent as to the right to elect for trial by jury and where alternative penalties are provided — as under sections 3 and 4 of this Bill — the net effect of such a method of construction is that the right to elect for trial by jury reposes solely with the Director of Public Prosecutions. It is very important that we underline the significance of trial by jury, that we do not undermine it in any way and that we underline the importance we attribute to the right of an accused to be tried.
It can be said that trial by jury is a too greatly involved luxury to afford to persons awaiting trial. I recall some years ago being in the Supreme Court when a Supreme Court judge, who shall remain nameless, quizzed counsel for the prosecution whether it was true that a person charged with the larceny of any item regardless of its value had the right to elect for trial by jury in our jurisdiction. That was five or six years ago. To his amazement he was advised that, yes, indeed, a person has a right to trial by jury in respect of any item alleged to have been stolen by him or her, irrespective of its value. The point has to be made that it is often the case that where the item is of minute value it can have greater repercussions on the career, status or future of the individual charged, so that one cannot really measure these matters on a scale of value. Equally, when it comes to allegations in relation to malicious damage it is very difficult to say to someone whose career or future might hinge upon the conviction that he should not have the right to elect for trial by jury because the value of what was alleged to be involved was small compared to something far more serious, as the consequences need not necessarily have regard to the extent of the damage alleged to have been caused. Therefore, it is important that as far as possible we would  ensure that accused persons have the right to trial by jury.
In the existing law a person who is charged with damage in excess of £50 has, until today, a right to elect for trial by jury. I propose that we acknowledge that there is the matter of inflation although it is invidious to trespass into this area but I suggest that a reasonable figure for the Oireachtas to agree on where we would cut off the right to trial by jury for an accused is at £100, and anything under that should be dealt with summarily in the District Court and all other matters should be tried on indictment at the election of either the accused person or the Director of Public Prosecutions. There are instances where a person charged with an offence involving over £100 might wish to have the matter dealt with summarily but the Director of Public Prosecutions having regard to the wider issues or the greater problems attached might well decide that the trial should be dealt with in a higher court where wider attention might be given to it, broader and more important issues of law might be decided or a more serious penalty might accrue should conviction follow.
For those reasons it is important that we address these issues fully. The Oireachtas should ensure as far as is practicable and reasonable in drafting legislation that a person be entitled to trial by jury for all offences. The formula of a cut-off figure of £100 is reasonable and I hope it is acceptable to the Minister.
Minister of State at the Department of Justice (Mr. N. Treacy): The Deputy asked the Minister on Second Stage “to consider bringing forward a formula which would ensure that offences of a minor nature would be necessarily summary and after that the right to a trial by a jury would be a choice and right of the accused”.
I am inclined to think that the provision in the Bill is not too far different from what the Deputy was seeking on that occasion or indeed from what he proposes in his amendment. At most, so far as the Director of Public Prosecutions is  concerned, it is a difference of degree, not of principle. The fact is that an offence which is not a minor offence cannot constitutionally be tried in the District Court. The district justice is there to ensure that any contested cases before him or her that are not minor are sent forward for trial by jury. It appears from a decision of the Supreme Court in a 1981 case — The State (McEvitty) v. Delap (1981) IR 125 — that the defendant does not even have to raise the issue that the offence is not a minor one. Judge Henchy in his judgment said:
If, as the hearing proceeded, it appeared that the offence was not a minor one, the district justice would have to desist from the summary hearing and, instead, take the necessary steps to allow a conversion of the case into the procedures laid down by the Criminal Procedure Act, 1967, for the preliminary examination of an indictablel offence.
On the other hand, there is no right to a trial by jury for a minor offence. That was also decided by the Supreme Court in the case just referred to. The offence in that case was, like the offences under the Bill, triable summarily or on indictment. Judge Henchy said:
It is only when it is duly determined by the district justice that an offence is not a minor offence that the accused has a right to trial by jury ...... Therefore, the decision as to the mode of trial lies with the district justice on the due exercise of his judicial appraisal of the relevant factors.
The accused's right to be tried by jury on a criminal damage offence that is not a minor offence is not being curtailed by giving the Director of Public Prosecutions the right to elect to proceed summarily. It is the responsibility of the district justice, whether the point is made by the defendant, to ensure that a non-minor offence is not tried summarily.
 In any case, it would seem to be better to use a yardstick such as “minor offence”, which is sanctioned by the Constitution rather than rely entirely on a monetary value which is liable to alter and does not perhaps fully reflect the seriousness of a particular offence. In particular circumstances an offence involving damage of less than £100 could be a most serious offence so far as the alleged offender is concerned. For example, a conviction might mean the loss of the offender's job or pension rights. In such a case the person could ask the District Court to rule that it was not a minor offence and that it should be tried by a jury. The Deputy's amendment would not reflect that possibility.
Apart from that, I would not think it would be desirable to give an unrestricted right to offenders alleged to have caused damage exceeding £100 to be tried by jury. Damage of £100 could only be classed as minor by present day monetary values, unless there were circumstances making it non-minor in a particular case.
Finally, the legislative practice of giving the Director of Public Prosecutions discretion to proceed summarily or on indictment has been in existence for a long period and is subject to the safeguards I have mentioned.
The amendment also proposes to reduce the maximum period of imprisonment in summary cases to six months. The 12 months maximum in the Bill is the maximum period of imprisonment allowed to be imposed by the District Court and seems to be appropriate for the most serious of the minor criminal damage offences. “Minor” is not the same as “trivial” and in many statutes the District Court, though only competent to try minor offences, has been given power to impose a 12 month sentence. For example, “joy riding” in cars — taking them without authority — is triable under the 1984 Road Traffic Act either summarily or on indictment and, when tried summarily, carries a maximum 12 month prison sentence.
Mr. McCartan: I do not wish to withdraw the amendment for the moment. I am glad the Minister referred to the seminal case of The State (McEvitt) v. Delap. I was the solicitor who acted for Mr. McEvitt and two others in that case. They were charged with the invidious offence of forcible entry and occupation of the Liffey Dockyard in pursuit of a campaign to preserve their jobs there. They wanted to be tried on indictment for that offence but the prosecution insisted that it was a summary matter and wanted it dealt with in the District Court. It went to the High and Supreme Courts to have the issue determined because the Act was silent on the accused's right. The Supreme Court adopted the principle which had been laid down in an earlier case, the State (Reilly) in which the current Chief Justice and then President of the High Court, Mr. Justice Finlay, had ruled on the same matter in regard to common assault offences. Now that the Minister has elevated the McEvitt case, in which I was involved, to the higher ground as being the authority, I am very happy to work with it.
I am working from the positive position of the accused and his or her rights before the court. I am afraid that the Minister of State has taken the legal advice of the Attorney General's Office or a section within the Department which reflects a very fundamental change of direction in regard to the position of an accused and his or her right to elect for trial by jury. It was always understood that in criminal trials the right to trial by jury would exist where practicable and in as many circumstances as possible. It was the accused's right.
In more recent statutory provisions the right to elect is slowly being taken away from the accused and is being passed  into the hands of the DPP. That trend is reflected in this legislation because there is no reference to the accused's right, it does not fit into the formula of the 1967 Act and the only right to elect rests with the DPP. The law states that where an Act is silent with regard to the accused's right to elect and where there are alternative penalties laid down, the right to elect rests with the DPP alone. That is the trend and drift. We are moving away from recognising and respecting the right of the accused, who is the person innocently standing in the dock. As the Minister says, the accused can be left in a very invidious position and can suffer profound consequences in the event of conviction. That is why I put down my amendment, which provides that the right to elect shall be with the accused and with the Director of Public Prosecutions. The accused should not be written out of this legislation.
I respect and understand fully the function of a district justice. Where he or she, irrespective of the position of the accused or the director, feels that the offence is not a minor one, he or she has the duty to stop the proceedings at any point, even after the hearing has opened, and state that he or she is no longer of the view that this constitutes a minor offence and direct that it be sent to the Circuit Court for determination on indictment. That is an unassailable right and duty of a judge of the District Court in dealing with matters on a preliminary basis or on the basis of the facts as they emerge in the hearing of the case. That is aside entirely from what I am trying to address. I am trying to focus this House's attention on a trend that has developed in the drafting of criminal legislation over the last decade, if not longer, where this formula of the alternative penalty is used and no reference whatever is made to the accused's position. What is that position vis-à-vis this general right? If the Minister is not accepting my amendment I should like to tease it out a little further.
Leaving aside the ruling of the district  justice that this is not a minor offence and is being sent forward and leaving aside the position of the Director of Public Prosecutions, where does the right of the accused arise? Under this legislation has he or she the right to elect for trial by jury in any circumstances?
Mr. N. Treacy: We are talking about minor offences. To ensure there is proper management of our courts, good and expeditious decisions, we must ensure that there is a summary trial for minor offences and that there is no such thing as a queue of people waiting to have trial by jury in such cases. Although the accused has no specific right to elect for trial by jury, he has the right to apply to the district justice to decide the offence is not a minor one.
Mr. N. Treacy: I do not accept what Deputy McCartan is saying. We have the laws of the land and the constitutional provisions. Everybody is innocent until proved guilty. A person must be proven guilty conclusively before he can be convicted. We have held a very strong position on that over the years. We must ensure that as far as possible minor offences are dealt with speedily and clear decisions are given. There must be proper management and implementation of the law. I am sure Deputy McCartan would like that.
Mr. McCartan: This is extremely  worrying. The more I listened to the Minister the more I felt he should take this matter back for reflection before Report Stage. I want to get one point out of the way: it is a fact that a person accused of stealing a half-penny worth of sweets from the corner shop is entitled to trial by jury of right. An accused standing in the dock can say he or she wants trial on indictment and no one, judge, prosecutor or Director of Public Prosecutions, can say “no”. I want to put the matter back into context. In major areas of the law, because the Minister has not amended this yet, an accused has this right to trial by jury, and long may it be so. Even in the most minor of instances of larceny an accused has the right to trial by jury. We may talk about monetary limits and say it is unreasonable on a petty, pilfering shop-lifting case involving goods under a certain value to engage in a jury trial but that debate is for another day. The Minister is suggesting that we cannot provide for trial by jury in every case. If it is provided for in one area of the criminal law such as larceny, why not in cases of malicious damage?
I accept the formula employed up to now has worked. Heretofore if the damage was under £50 the case had to be dealt with in the District Court; it could not be dealt with on indictment. That worked reasonably well. The amount was £5 and the Legislature increased it to £50. That cut-off point worked reasonably well. None of us out there defending people or concerned with the liberty or rights of an accused would have argued with that crude formula. In this Bill the right of automatic choice of an accused person is to go, irrespective of the scale of the charge or the amount of damage involved. Unbelievable consequences may follow for an accused person and that is unacceptable. I beg the Minister for Justice to reflect for a moment on this.
The two people who have a say in whether a jury trial should take place are the judge and the prosecuting authority,  though regarding the judge I know from practice that that need not always be the case, the judge must always be independent and remain aloof. There is pressure in the community to deal with unwarranted interference with motor cars in, say, Ballybrack and with the offensive behaviour of people who interfere wantonly with motor cars parked outside owners' homes, as illustrated by Deputy Barrett. The gardaí may have a case that will not go the full distance if opened up before a jury. A district justice may have experienced interference with his motor car, or indicated he or she adopts a severe stance against people who commit such offences or seem to the prosecution to have a predisposition to accept without question the evidence of police about their interrogation procedure and questioning of an accused in a police station. The Minister is suggesting that in those circumstances the obvious inclination of the prosecution would be to tell the judge that although the offence might seem a bad one on the face of it, taking everything into account the district justice should try it. The prosecution may, so to speak, plead with a district justice not to refuse the hearing of the case thereby denying the accused the right to trial by jury. I am almost afraid to say that will open up a debate on the fundamental right of the person it is proposed to protect, the accused.
I am glad the Minister has been forthright in confirming my interpretation of the provisions, that there is no specific right of the accused under this area of the law to elect for trial by jury. It reposes exclusively on a district justice deciding an offence is non-minor and refusing jurisdiction and, on the other, the right of election reposes only on the Director of Public Prosecutions. The Director of Public Prosecutions might not be ready to go full speed ahead with a prosecution. He might feel that witnesses would not swear up or that they might not be properly prepared if the matter was deferred.
 There are a whole range of administrative reasons and considerations that may be brought to bear on the director to opt one way or the other. That is not necessarily in the interests of justice. I am not suggesting for one moment that the director would do anything other than preserve the hearing of the case for the best forum for his case on the one hand, or select a date which would serve him best for the presentation of his case.
These are factors that come to bear on the decision of the director in the pursuit of his duties that should have no bearing on a decision as to where and in what forum and under what circumstances an accused should stand trial. The Director of Public Prosecutions is being allowed not only to prosecute but also to have a fundamental say before what tribunal and in what circumstances the trial should be heard. That is not a good principle in law. Although I have no authority to be definitive on this aspect there may well be constitutional considerations attaching to the drafting of legislation, dealing with the most minor and the most serious offences, a proposition that reposes no specific right on election to an accused person. I would urge that this matter be looked at again by the Minister before Report Stage. I am not saying that by conceding this I am right or that the Minister is wrong, but I would ask for the opportunity to look afresh at this matter on Report Stage because it deserves much more careful consideration.
Mr. N. Treacy: I have listened with interest to what Deputy McCartan has said. His inferences do not reassure me. I want to ensure that we clarify this situation beyond any doubt. I agree that for all indictable offences the accused has an absolute right to trial by jury no matter how trival the offence. The offence may be tried either summarily or on indictment and there are numerous examples of this over the past 30 or 40 years. There is no right to a trial by jury. The Deputy is right in saying that this is now the trend  and the proposal in the Bill follows the recommendations of the Law Reform Commission. The commission and the Government considered that this proposal was acceptable, bearing in mind that the accused could insist on a trial by jury, if the offence was not a minor one. I would like to quote from page 32 of the Law Reform Commission's report on malicious damage:
In our reports on Receiving Stolen Property and on Rape, we recommended that the new offences of handling and sexual assault should be triable summarily or on indictment at the election of the D.P.P. and that the accused should not have an absolute right to trial by jury for minor offences in these categories. The District Justice may conclude that, having regard to the circumstances of a particular case, the offence charged is not a minor one in which case it can only proceed, if at all, on indictment, thus preserving the constitutional right of the accused to a trial by jury in such circumstances. We recommend the same approach in the present context.
They are very consistent. It confirms what Deputy McCartan has already said. I do not have any difficulty with it from a humane and justice point of view. I am happy that it should operate and proceed on that basis. As an experienced and professional lawyer I am sure Deputy McCartan can allay both his fears and mine on this score.
Mr. McCartan: I am sorry I cannot allay those fears. Though there is a recommendation to that effect in the Law Reform Commission report, it does not satisfy me and I say this in all seriousness as a practitioner who has worked in this area for almost 15 years. I am not in a position to allay the fears of the House if I have created any in what I have said. Perhaps I will pursue this matter a little further.
The point has to be made again that  there are many administrative reasons which have nothing to do with justice in the first instance whereby a prosecuting garda or the director may wish to opt for one jurisdiction but more particularly for summary jurisdiction in the prosecution of a case. To say that an accused person has no function or no right to elect on this issue is extremely worrying. To say that it cannot exist in any circumstances other than if a judge of a District Court so decides, it is worrying. The Minister contends that the only occasion on which an accused will be tried on indictment is after argument with the district justice and having convinced him that he is facing a trial for an offence that is not a minor offence and that therefore it should be sent up.
There are well established judgments at law with regard to what can constitute a minor offence. One of the most celebrated cases in the area has to do with offences against Customs Consolidation Acts going back to 1882 where an accused — if my memory serves me right — was charged with pig stealing. The consequences under the provisions of the Customs Consolidation Acts, was that not only would you be fined but all goods would be confiscated and other penalties such as the confiscation of the vehicle would apply. In the particular case the accused sought to go for trial by jury pointing out all the consequential penalties that would accrue. In its review of the position the Supreme Court laid down very clear guidelines as to what could constitute considerations for a minor offence. It ruled that all consequential orders, such as the confiscation of the pigs, the vehicle used for the purpose of the smuggling and any other related matters could not and would not have a bearing and could not be considered within the ambit and remit of what was minor. Therefore, that particular offence did not warrant a trial by jury; in other words, the District Court was correct to have proceeded to deal with the hearing and convict.
 An accused person is charged with a malicious damage offence. He comes in to the District Court and says: “Judge, I know the offence involves damage amounting to £100, that it was only the driver's window of a motor car, that the facts are straightforward, that it is one offence and one isolated incident. However, if I stand convicted on this offence, and I strenuously deny the charge and I am innocent of it, I run the risk of losing my employment which is in the area of security, or in an area of high trust with my employer, and I will lose my pension and all the other ancillary benefits”. The judge is bound by the stated law of the land, as interpreted and handed down by the Supreme Court, to have regard simply to the facts of the incident and must, as a matter of law, disregard all the ancillary, inevitable consequences of a conviction in deciding whether a matter is minor or not. What may flow from that has no bearing whatsoever on what is minor and what is not. The Minister is saying that irrespective of all the important consequential implications of a conviction, an accused can never have a right to rely on a right to trial by jury irrespective of all the other facts and circumstances. That is a bad day for the rights of accused persons, for those who will be tried before the court. That is the reason I say that trend has to be arrested.
The report of the Law Reform Commission deals with what should be tried summarily in their reports on receiving stolen property and on rape. It is in respect of one of the more minor categories of sexual offence — that of sexual assault — that the report restricted the right and made the recommendation, and the Bill was drafted on that basis.
Where the more serious charges were being dealt with, there was an absolute right of election left to the accused person. The problem with this Bill is that, irrespective of the circumstances or the extent of the crime, the accused never  has the right to walk into the court and say that he elects for trial by jury for reasons best known to himself and which he does not wish to enumerate. We are now reducing trial by jury in these cases to an argument between the countervailing interests of the Director of Public Prosecutions and the prosecution on one hand and the interest of the accused on the other. It will depend on which is more convincing.
One point which must be made is that either side may be reluctant time and again to show their full hand at a preliminary argument. It may well be that the prosecution know certain facts which they may wish to hold as a surprise for the hearing. They may be in certain difficulties at that stage in relation to the presentation of their case and do not wish to alert the defence to them. On the other hand the defendant may have many arguments, reasons and issues in his armoury which, as a matter of law, he is entitled to hold close to his chest and not to reveal until he is obliged to do so during the course of the hearing. People who have a right to be heard arguing these issues might not, for certain reasons, be prepared to disclose them in full.
A person may well come before a judge who has a certain view of a particular offence who might well say that he wanted to deal firmly, quickly and effectively with those kind of offences in his court and will not let the accused stand trial on indictment and put forward a full defence before fancy lawyers and a jury. I remember a particular district justice — I will not name him — who had a fierce view in regard to interfering with pedal cyclists. He was a pedal cyclist himself and a great believer in the bicycle as a mode of travelling round the city. If a person was convicted of stealing a bicycle or interfering with a bicycle which was not his property, in all probability he received a custodial sentence because of his view of that offence.
Judges in certain courts hold on to  those cases because they want to deal with them in their own way and will not allow defendants to be tried by a higher court. In some respects I am trespassing on the territory of the judge but, as I hope the Minister will accept, I am speaking from experience having spent many years in the courts. I recognise that there is a vast range of varying, disparate considerations for people adopting different attitudes and positions. It is very important, therefore, that the accused must have the absolute right in some circumstances to say that he has a right to trial by jury.
I used a crude formula here of the £100 limit because it has been the one which worked well heretofore. However, I am prepared to abandon it — I do not have a commitment to it — if there is some other formula or device available to us. Having made my point at length and with great conviction, I hope the Minister appreciates it. I may not be getting through to him but I feel very strongly about this issue. Will he agree to look at this matter again before Report Stage to see if there is a stage in the proceedings or in the gradation of the seriousness of the offences where an accused would have the right to say that his best interests were served elsewhere and that he wanted to stand trial on indictment? That is the case in relation to many other people who go before the courts.
It seems utterly ridiculous that an accused charged with an offence in the area of malicious damage can never say that it is his right to stand trial by jury whereas a person charged with pilfering a packet of sweets from the corner shop has that right. There must be some way of approaching that massive disparity in the law. Let us look at this matter from the point of view of the accused and his position in the context of this debate.
Mr. N. Treacy: I listened with interest to Deputy McCartan. While he may not be getting through I am certainly receiving him. The law, as laid down by the  Supreme Court, is that no one can be tried on a non-minor offence except by a jury. The accused can insist on a trial by jury in such a case by applying to the district justice. Even if he does not, the district justice is obliged to refuse to deal summarily with the non-minor offence.
Mr. N. Treacy: There is no substantial reason for treating malicious damage offences differently in this respect from, say, handling stolen property or sexual assault. However, I do not seem to have reassured the Deputy and indeed he has not fully reassured me. I do not want to have any doubt or ambiguity.
Mr. N. Treacy: Justice must prevail at all times and there must be equality of opportunity within the law. I am prepared to reflect on this matter and if we feel that anything warrants change we will make it.
Mr. McCartan: I thank the Minister of State for agreeing to consider the matter. I hope, in the intervening period, that those who practise the law in this area — and who have more up-to-date views on it than I do — will make their views known to the Minister of State. Perhaps I will have the opportunity of discussing the matter further with him in the intervening period. There is a problem in this  regard and the matter needs to be examined more closely.
This section deals with possession of anything with intent to damage property. It starts by saying “a person (in this section referred to as the possessor) who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it....” I wish in line 1 after “has” to insert “or has had”. The reason I tabled this amendment is that I do not agree with the way the section is worded at present. Unless a person is caught with something in their possession, this section could be interpreted as not applying. If a person throws away a gun, a stick or whatever, it may be known that the person had that item but he does not have it when apprehended. Surely there is a flaw there and for that reason I am proposing that we insert the words “or has had”. That would strengthen the section. It would in no way damage the extent of the section but would remove any anomaly that could arise at a later stage when perhaps the case would be challenged in court.
Mr. N. Treacy: The advice I have is that the form of words used in the section is adequate to cover the possession of articles or substances with intent to cause damage, irrespective of when the possession took place, and that it is normal practice to use the present tense when creating an offence. However, I have  listened with interest to what Deputy Barrett said and in view of that I am prepared to refer the matter to the parliamentary draftsman for further consideration. If we feel we can approve his proposal we most certainly will do so on Report Stage. On that basis, perhaps the Deputy will withdraw his amendment.
This is a very important section containing the general provision dealing with compensation and the power of courts to make orders to compensate injured parties for loss suffered by criminal acts and other related offences. It is a particularly important provision and one that is welcomed in general terms. However, I have some reservations about the workability of the legislation on the one hand and the appropriateness of it on the other hand, but we will deal with that as we go along.
The amendment proposes that if we are to visit the full extent of a compensation order on an accused person it should be alternative to a term of imprisonment. It is a very desirable objective in the whole area of crime generally that if a person suffers loss as a result of the criminal acts of another, we should work as far as possible to have the injured party compensated. That is important. If it becomes a regular and determined goal of our criminal justice system it would go a good deal of the way towards assuaging a lot of the hurt, ill-feeling and damage  done in the community by the acts of criminals and thugs who, as the Minister for Justice pointed out, will always be a feature of our community.
While we often talk about the war against crime and the need to stamp out crime, we are now beginning to realise that we are talking about a movement to curtail or contain crime to manageable proportions. Unfortunately, we will never be rid of it and recognising that, one of the objectives we should work towards in the long term is to ensure as far as possible that when the criminal is being dealt with the victim is never forgotten, and that the victim is compensated. As I have said, that would help to assuage some of the hurt caused to that person. It would also help to bring home to the accused, having been convicted of the crime, that there is a victim. The loss of money from the pocket of the accused who transfers it to the victim would bring home to him that the damage he has caused is real, tangible and has caused hardship to the victim of the crime. That would help to educate the thug or the criminal as to the extent of damage he has caused and the hurt he has visited on his victim.
There is little practical hope of combining a system of compensation for victims with a system of automatically locking up the convicted person in prison. I cannot recall a case where a person was both imprisoned and ordered to pay compensation. That would not work. I never remember a person being sent to prison and at the same time offering to compensate the victim. That just does not happen. It is important that we be realistic about what we are attempting to do in this legislation. I am prosposing that we insert in section 9 (1) that on conviction of a person for an offence under the Act, instead of ordering a term of imprisonment the court should make an order with regard to compensation. We must be clear about that.
Such an amendment is also desirable  from the point of view of our prison population. We have an immense prison population, we have a prison system that is creaking at the seams, it is grossly overcrowded and requires us to reserve our places of detention and imprisonment for the most serious and deserving of cases. I am not arguing that we should not lock people up. There are people who must be put away for long periods because they represent a serious threat and danger to the person and the community, but there are huge numbers of people in our prisons who should not be there at all. They are there because the courts have ordered it in exasperation because there are no serious alternatives.
This amendment proposes a potential alternative. It would require that the accused pay compensation directly to the victim, whether it be out of their wages, welfare money, savings or ill-gotten gains. That would prove to be a far more effective alternative for all the reasons I have explained. Rather than locking up these people at a cost to the taxpayer of £600 or more per week — almost £30,000 a year — they could be working and transferring to the victim compensation for their loss and injury. That would be a far more effective system than the present one. It would be as punitive in its effect as locking up people in the luxury of a prison for a shorter period after which they are back on the streets again with their resources and their ill-gotten gains intact. I have no sympathy for the criminal elements in our community but at some stage we have to ask whether simply locking people up is working, whether it is cost effective and if the taxpayer and the community are getting an effective return for their money.
I notice tonight's evening papers' reports about the revolving door prison system. Courts are ordering people to go to prison, but because there is no room for them the door revolves; they are in prison one evening and out the next. Would it not be better to abandon that farcical system and, instead of putting  those people through a revolving door, hold them under order of the court strictly to make recompense in so far as possible to the injured party? Progress could then be reviewed. The idea of compensation could work well with supervision by the probation service or in conjunction with community service.
My argument is that we cannot have a comprehensive compensation programme in place while at the same time purporting to lock people up. I accept that there is in that an element of those with resources to some degree being able to buy their way out, but I have come to the conclusion that the system is very much overloaded. When one analyses the figures, one finds that 60 per cent to 70 per cent of those who are locked up are locked up for extraordinary short periods of six months or less. Offenders will gain no real impact of the concept of imprisonment and being taken out of the community for such a short period. When remission provisions and other factors are taken into account, offenders are released sooner rather than later.
Those who are in prison for only a very short time have no opportunity to be subjected to rehabilitation, retraining or educational programmes within the prison system. This debate provides the opportunity to ask whether it is desirable to lock up many people for such short periods. Would we not be better to reserve places in prisons for those who deserve to be put in prison for a long period so that they may serve their full sentence and during that time be subjected to some degree of rehabilitative training programme that might help them become better people when they come out of the system?
I am not arguing that this idea should be applied throughout. District justices will, no doubt, recognise that where an offender is so far off the rails and is a threat to the community he or she must be incarcerated, then the idea of compensation would not enter the formula.  When a court has considered all of the facts, has recognised that a term of imprisonment might be visited but that that would not be for a full 12 months or an additional two years, and has decided that it is possible to put matters right for the victim, then I say the system of compensation should be worked as an alternative to imprisonment as opposed to a system working alongside imprisonment — it just will not work that way.
Mr. S. Barrett: I welcome this section of the Bill. It is a move in the right direction. It is a concept I have been promoting for a long time. The courts should be given more options. We should certainly ensure that people who commit offences, such as criminal malicious damage, or, as I referred to earlier, people who collect large sums of money from activities such as house break-ins, should face the confiscation of assets derived from crime. It should be made clear that crime will not pay.
I do not support Deputy McCartan's amendment, however, because I do not think that the hands of the courts should be tied. It is wise to leave the section as in the Bill at the moment. I have been saying for a long time that options to custody should be used much more than they are at present.
Some of those people being put in prison do not benefit from it. In fact, they are coming out more proficient criminals than they were before they went in. That is not to say that there could not be circumstances in which, because of the particular offence committed, the courts may feel that in addition to a person being forced to pay compensation they should also be punished by serving a period in prison. It should be left to the courts to decide whether that penalty should be imposed.
 It should not be the case that because there is provision for the payment of compensation an offender is relieved of the punishment of possible imprisonment. There is a danger that it could boil down to the situation that if an offender had resources then he or she would be asked to pay compensation but if he did not, then he would spend a period in prison. That would be a dangerous outcome, but it is what could happen. Offenders might not have resources at the time of conviction but might gain them in the future.
Compensation orders should also provide for attachment to earnings or benefits. That is why in later discussion on the section I shall disagree with the Bill's restriction on payment by instalment to a period of 12 months. There is no logic in that. The fact that a person might not have resources at the time of conviction, although possibly having an income 12 months in the future, should not relieve him or her of responsibility under an attachment order made against earnings or any other source of income.
As I said, the section is a very positive part of the Bill. However, I wish to make several amendments to it. I support and will always support options to custody when used wisely. Community service orders are not being used enough. Part and parcel of that problem is lack of resources.
I listened to what the Minister for Finance has to say about some of the proposals put forward by Fine Gael and other Opposition parties during the local elections campaign. To me, part and parcel of the Government's problem was shown up in the Minister's statement — the failure to understand that proposals put forward by Opposition parties that may appear to cost money today will result in savings. Savings could result from taking positive actions today — savings in health bills, social welfare payments and in the Vote for the Department of Justice. It costs more than £30,000 a year to keep someone in prison, and that is certainly not a payment that  the taxpayer would wish to make. Those who commit certain kinds of offences should contribute something to society instead of taking more out of society by serving time in prison and costing the taxpayer money.
Back-up services and more resources are needed to impose more community service orders. The cost of that back-up is balanced against the cost of keeping someone in prison. Also in the balance is the recognition that some people go into prison and do not achieve anything good during their term of imprisonment other than learning how to be better criminals and how to commit more sophisticated crime.
I do not know the exact cost of building Wheatfield — perhaps the Minister could tell me — but if I remember correctly, the cost of the wall alone was £2 million and I think the total cost would be more than £30 million. Did it cost £40 million to build that prison, added to a cost of at least £30,000 a year for each inmate? There could be a fair number of community service orders and a fair few people employed productively in the community keeping an eye on those serving out community service orders for £40 million, or for £30,000 for that matter. That might put a stop to what is happening in our society.
We welcome the provision for the payment of compensation. While sharing many of the views Deputy McCartan put forward and saying that those views were held by me when I was spokesman on Justice in 1987, I do not see the wisdom of tying the hands of the court by saying that once they impose a compensation order they cannot then also impose a prison sentence because the seriousness of a case, that we do not anticipate at the present time, may warrant both. I think, therefore, that it would be wise to leave the section as it is in that respect.
Mr. N. Treacy: It seems that the amendment would exclude the possibility  of a court imposing a sentence of imprisonment and requiring the payment of compensation. I believe that would be unduly restrictive to the power of the court to do justice in many cases of criminal damage where the circumstances would be such that the convicted person should be sent to prison and where that person could afford to pay compensation. We cannot allow a rich offender to buy his way out of prison or away from prison. I do not see much difference in principle between that and ordering a convicted person to pay a fine and also compensation which the section clearly contemplates. I would have to agree with Deputy Barrett's interpretation. We must have a dual system with compensation or imprisonment or both at the discretion of the court.
I accept Deputy McCartan's point that a person sentenced to imprisonment would not normally be in a position to pay compensation. However, there may be some cases where he could. In such cases, why should we oblige the court not to pass a sentence of imprisonment when it orders compensation? The court should be trusted to use its discretion and realise that in most cases compensation plus imprisonment will not work but that in some cases it would be appropriate.
Mr. McCartan: I would like to respond briefly to some of the points that have been made both by Deputy Barrett and the Minister. They do not necessarily take me by surprise. At some stage we will have to bite the bullet on this issue and figure out whether locking up people is productive in terms of the amount of investment and the amount of money that we as a community have to pay through tax. As Deputy Barrett has illustrated. the building of Wheatfield is an incredible  commitment and expense and there is also the cost of maintaining and running it.
I wonder whether we will ever have the courage to take on board some of the projects that have been started in Britain. One was a project that ran very well in the inner London area for many years in conjunction with the Prisoners' Rights Organisation in London. The project was a very simple one. In the local magistrate's court in a district in London, the name of which I cannot remember at the moment, there was a programme where, when a person was convicted, whatever the offence, the first objective would be to try to find a solution to the problem without locking the person up.
Mr. McCartan: It was not Islington although it was not far from it. It may well be that the pilot scheme was subsequently extended to include Islington. I think Newham is the name of the district I am trying to think of. I do not see a Minister here having the courage to take the same initiative.
I accept this would be difficult in a climate where yesterday I complained bitterly that my own area of Raheny, the back door of the Minister for Social Welfare, was pointed out as the area with the single biggest increase in crime in the last year in the country, an increase of almost 30 per cent. That is a shocking statistic for a very good residential area of the city that does not deserve that type of image because one would not expect it there. At a meeting yesterday when I spoke with the residents they pleaded with me to point out that although the crimes are being committed in Raheny, they are not committed by Raheny people. Needless to say, that is obviously so.
The response is usually that we should have more police on the beat, that we should get the offenders and lock them up. Indeed, Fine Gael in trying to  respond to another problem of persistent reoffending in the area of bail, again spoke about locking them up but the question is where and at what cost? Will it ultimately be effective? Those are the issues.
The section offers us an opportunity to take on board the idea I am advancing here. Before we lock someone up we should look to see if we can have a more productive regime of putting the offender out there under licence from the court with a strict obligation to put something back into the pocket of, and trying, in a monetary way, to make amends to the injured party. I have no doubt, from talking to the victims of crime around this city and country that, it would help them greatly to believe that society will make the offender pay and in so doing make the victims feel that little bit better.
Far too often offenders are taken out of the community against which they have committed their crime, brought before the courts and sentenced without the victim ever knowing that an offender was caught, tried and convicted. The victims of crime often go about in bewilderment wondering what ever happened to the complaint they lodged at the local Garda station. The scheme that is being prompted by the section is an excellent one and gives us a real opportunity to start that type of approach, to see if we can come up with a more constructive and meaningful remedy than simply locking people up.
The first objection to my idea was that it would be too restrictive and would tie the hands of the court. There is a clear precedent in our law for this type of formula and it is contained in the legislation providing for community service orders. There the legislation says that where a district justice or a judge has convicted a person and is of the mind to impose a custodial penalty, there is a duty in the law for the district justice, before imposing a sentence of imprisonment, to investigate the circumstances of the accused to see whether it would be proper  to put that person under a community service order. It has not worked out like that in practice, unfortunately; but the idea of community service orders was designed exclusively as an alternative to imprisonment.
When a person was convicted and the judge was of a mind to impose imprisonment he was then obliged, because of the terms of the Act, not to impose imprisonment for the moment but to investigate the possibility of a community service order. If the Minister will consult his officials or reflect on this before Report Stage he will see that that is the formula that was devised by the Legislature in 1984. It has not necessarily worked like that but that is the way the legislation is worked. Unfortunately, community service orders are much too often used by judges in lieu of a fine or of a suspended sentence and they were never designed to be used so. They were specifically designed to tie the hands of the court and as an alternative to imprisonment. The precedent is there for this type of stricture. My amendment does not prevent the judge in the particularly nasty case from committing a person to prison and not allowing the element of compensation to come into it. The Minister has said that we should keep that option open because there might be compensation there. In my experience there has never been such a case. If there was, it would be an extremely rare event, so why legislate for that extreme event when the alternative presented by my amendment might prove to be far more exciting, innovative and effective in the long term in achieving a sense of justice between penalising the accused on the one hand and seeing some good element of compensation for the victim, on the other?
The Minister should put this in and let us see how it works. If it does not work the Minister can in time amend the legislation and do something else. We should bite the bullet, have a go and see if it will work to try to achieve some other way of hitting the criminal for his criminal acts,  compensating the victim and saving those places in our prisons for those who far more richly deserve them and so that we can ensure that such people will never have the opportunity for reasons of over-crowding to slip out through the revolving door.
Mr. N. Treacy: I have no objection to the principle of this amendment. The limit of £2,500 imposed by this subsection is the limit of the District Courts jurisdiction in tort. It is proposed to increase this limit to £5,000, in the Courts (No. 2) Bill, 1991, the Second Stage of which is scheduled to be continued here tomorrow. The drafting of the amendment has to be examined by the parliamentary draftsman. There should probably be a specific reference to the District Court's jurisdiction in tort. I will bring forward an appropriate amendment on Report Stage, if Deputy Barrett is prepared to withdraw amendment No. 7.
Mr. McCartan: It is a sensible amendment. I support the idea in principle and I will be glad if the Minister comes up  with a formula that would allow the District Court to keep abreast of changes in jurisdiction and values generally in this regard. It is a good idea.
(2) The compensation payable under a compensation order shall be of such amount (not exceeding £2,500 in the case of such an order made by the District Court) as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the Court, the owner of the property concerned would be entitled to recover.
I am just trying to cover any possible angles or any possible loophole, in the case of a dispute in court to the effect that only the owner of the property would be entitled to compensation. Those who are not the owners but who have some beneficial interest in the property or are responsible for repairs to the property should be able to have compensation paid to them.
Mr. N. Treacy: The justification for providing for compensation to be awarded by a criminal court after convicting an offender of damaging property is that it would give the owner of the property concerned a speedy remedy and also bring home to the offender the need to make restitution. However, a criminal court is not the right forum for deciding on the correct amount of compensation or, indeed, if there is a dispute about the  ownership of the damaged property, and it would not be appropriate for it to decide whether the compensation should be paid to the owner or, as proposed by the amendment, the occupier or the person likely to be held responsible for repairs to the property. All that could only be sorted out properly later on in civil proceedings. Very often civil proceedings would not be worth while as the damage would exceed what the offender could pay.
The section has adopted a practical approach. It limits the making of compensation orders by the convicting court to cases where the amount of damage and the owner of the property can be readily ascertained, and it requires the court to have regard to the convicted person's means. These are sensible limitations. I accept that the reference to the owner of the property could create a difficulty for the court in some cases. I will see if it is possible to get over this difficulty between now and Report Stage and find a formula which will do this, while avoiding a situation in which the Criminal Court would find itself involved in disputes about the person to whom compensation should be paid. Based on this commitment, perhaps Deputy Barrett would withdraw his amendment.
A compensation order shall not be made unless both the owner of the property concerned and the approximate cost of making good the damage to it (or, where appropriate, of replacing it) are readily ascertainable.
 The subsection is far too restrictive. I do not see the sense of putting this proviso into this worthwhile section. Why should the owner of the property concerned have to give an approximate cost of making good the damage and why must the costs be readily ascertainable? In a lot of cases compensation will not be sufficient to cover the damage or cover the upset caused to a person who perhaps has had property damaged by some young thug. I do not see why this restriction should be imposed in relation to the person who has suffered the loss. Why is this subsection there in the first place?
Mr. N. Treacy: This amendment proposes to delete subsection (3). It will allow the Criminal Court to make a compensation order even though the owner of the damaged property, or the cost of making good the damage was not readily ascertainable. That envisages a detailed consideration by the Criminal Court of both those matters where there is a dispute or where adequate information about them is not available at the hearing of the criminal charge. As I mentioned on a previous amendment, the kind of detailed examination that would be necessary in such cases belongs more properly to the area of civil proceedings. I undertook on the other amendment to look again at the adequacy of the reference to owner in subsection (1). That has implications for this subsection and may involve a consequential amendment on Report Stage. In the light of this, perhaps Deputy Barrett might withdraw his amendment.
Mr. S. Barrett: I do not want to be awkward but as long as we have the legal aid system we have at the moment, the reality is that there are many people who just cannot afford to take a civil action because of the cost. If they take a civil action they will have to pay the costs out of their award with the result that they will have nothing left. Therefore, they will not take a civil action. Perhaps the  only way a person can get compensation is through the criminal law.
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