O'Malley, Desmond J.

Friday, 20 August 1971

Seanad Eireann Debate
Vol. 71 No. 5

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I should like to take up the point referred to by Senator Robinson with regard to a discussion yesterday between Senator Kelly and myself on this question of bona fide claim of ownership. At the time...More Button

My recollection is that if you can theoretically or technically prove that you had the right in 1189——More Button

The method of proving that you had the right in 1189 is obtruse.More Button

I only use this question of a several fishery in a tidal water as an example. There cannot be many similar cases related to property as opposed to fishery but it is one example that comes to my mind....More Button

It is simply that they do not have to go through the full legal process of proving the legal ownership of some property whether a house, a vehicle or otherwise, to which quite clearly the defendants m...More Button

I venture to suggest they would not, which goes to prove my point that the question of proving ownership in these sort of cases is of no significance whatever in the makeup of the proof of the offence...More Button

The question of permission is an entirely different matter. Frankly, I do not foresee any problems in this regard. One of the matters which everybody seems to overlook is that this is not an absolute...More Button

The Senator was right to protest but I am afraid they are necessary. One of the outstanding examples of that is the section which enables a member of the Garda Síochána to inquire from the registered...More Button

I do not know if he could go to jail on it or not but certainly the penalties could be immensely severe. The onus placed on him is very heavy. It is out of all proportion to the very limited, partia...More Button

The logic of what Senator FitzGerald suggests is that every tort should also be a crime.More Button

If an owner for the purpose of this tortiously does something, in other words, if he does something for which he has not got a civil right, Senator FitzGerald's logic then suggests that he should, the...More Button

Surely the case is being made here ad nauseam that it is criminal at the moment.More Button

When Senator Robinson was moving these amendments she moved them on the basis that, by inadvertence, she took it that the remainder of the section was at it was originally drafted. There was a consid...More Button

But we are not; that is the point.More Button

Senator Robinson made quite a number of statements with which I could take issue, but we might, if I did so, raise a number of hares. I cannot follow her statement that, in England, it is only the f...More Button

——take possession of property. Surely it is fundamental in their common law, as it is in ours, that an owner can take possession of his property.More Button

Here, at the moment, if somebody is unlawfully trespassing on your property, as I understand the law, you are entitled to use such force as is reasonable to eject him. You may not be able to recover,...More Button

No, but an occupier, or a person entitled to immediate occupation, would, in my submission to the House, be the only person who would, in fact, carry out such an ejectment and certainly would be the o...More Button

I beg to differ with the Senator. I should like to refer to the position in England. I quote from the 12th Edition of Russell on Crime. page 283, where he says in describing the present English law:More Button

May I suggest that we let Russell and Archbold fight it out?More Button

I will solve the problem raised by Senator Ó Maoláin now. In further support of my assertion that Senator Robinson is not correct in her statement as to the existing law in England or here, I would r...More Button

It is the 3rd edition.More Button

I do not know. I carry my learning round in little pieces. It is the current edition, I am told. I quote: A mere trespasser cannot by the very act of trespass immediately and without acquiescence by...More Button

I think we are getting more academic than we need. I do not think it would be a matter for me to comment on what the position is in England.More Button

I am not aware of statutory provisions, but that does not invalidate our adding our own. I do not think we must copy England in everything. Question put and agreed to. SECTION 7.More Button

I am in agreement with what Senator O'Higgins says. That would be my approach too. If we were to differentiate as between sections 2 and 3 offences, on the one hand, and inciting, encouraging or advo...More Button

I could not agree that a penalty of £100 fine or 12 months imprisonment, or both, is excessive for the district court as far as our law is concerned at the present time. I cannot say what the Supreme...More Button

But he probably would be, anyway. If he repeated the offence to that extent, I am sure the Attorney General would indict him.More Button

A penalty cannot be imposed unless they commit an offence.More Button

In my opinion a maximum penalty of £5 for a first offence and of £10 on a second or subsequent offence on summary conviction would not alone be inadequate but would be absurd. Moreover, where offence...More Button

A guard's existing powers of arrest without warrant arise from the common law and from particular statutes. In no case is there a requirement that the guard must be in uniform at the time of making t...More Button

But in section 2 and in section 6 they are doing different things. They are not acting in emergency situations; they are acting in accordance with formal requests made to them.More Button

The Senator is right. There would have been a request by the owner.More Button

We may take it that in practice an arrest, if and when it became necessary under this section, would be invariably carried out by uniformed personnel.More Button

I would propose to ask the Commissioner, when the Bill is passed, to give a direction that as far as may be practical arrests would be made under the section by members of the force in uniform.More Button

I think the addition of this paragraph is not necessary. While I accept Senator Owens' anxiety to limit arrest without warrant to the greatest possible extent and, therefore, have the greatest number ...More Button

I am in difficulty that I did not apply myself to this particular amendment as strongly as I might have——More Button

——because of the fact that I made the error of thinking that it would not be allowed for discussion in view of the fact that it is part of the housing code rather than the criminal law.More Button

No thanks.More Button

I find myself in the position that I do not think I could reasonably accept an amendment which would cut out an important section of the housing code which comes under the Minister for Local Governmen...More Button

I should imagine that with the hard core of organised squatters that are there, if actual legal action were necessary it would have to be under the Forcible Entry Act as it then would be. I am very h...More Button

That report is dated 2nd March, 1971, and is related to incidents that took place in a number of flats in Lourdes House and Liberty House on Friday, 26th February, 1971.More Button

Yes, long after, eight months after.More Button

I have no figures on that. I could not really say but in reply to Senator Owens's point that it is a problem which is over so far as the Housing Act is concerned, or at least the Housing Act could no...More Button

I cannot be absolutely definite, but I think that is so. Amendment, by leave, withdrawn. SECTION 10.More Button

I think the amendment is not being pressed very strongly. As Senator O'Higgins has said, I have absolutely no intention of doing this. In any event, I am precluded by Article 15, section 5, of the C...More Button

This amendment assumes that the problem of forcible entry and forcible occupation which the Bill is designed to control would disappear within three years. The Government cannot accept this assumptio...More Button


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