Wednesday, 16 May 1990
Seanad Éireann Debate
An Cathaoirleach: With respect to the Senator, it is not in order. I am concerned about the fact that the House is anxious to get on to this business. The Minister has been here for some considerable time hoping that we would get to the Bill.
An Cathaoirleach: Unfortunately it cannot. Unfortunately for the House it cannot at this time. We are dealing with the Larceny Bill — new section inserted by amendment No. 1 on Report, in recommittal.
.—Section 29 of the Principal Act is hereby amended by the deletion in subsection (3) of the words “or any solicitation, persuasion, promise or threat offered or made to any person whereby to move or induce such person to commit or permit the abominable crime of buggery, either with mankind or with any animal.”
I do not intend to unduly delay on this as most of the things I have to say are already on the record of the House from last Wednesday. Certainly, as I said before, there never was and never will be an intention to obstruct the Order of Business and the introduction of the legislation.
I regard the Bill as inadequate. The purpose of this amendment was to seek to eliminate some of that inadequacy and to amend a section by the deletion of words which I thought were appropriate and were in line with the decision in the Norris case in 1988 and in line with the Law Reform Commission recommendations.
We are concerned in section 29 with the offences of extortion and blackmail in the Larceny Bill. People might think it strange that matters of this nature in  relation to an offence of homosexuality should come into a Larceny Bill but we are talking about extortion and blackmail in relation to that. I was intent on deleting that section which asserts the criminalisation of homosexual acts in terms of an abominable crime and the Bill goes on to protect those from blackmail for the crime it is seeking to assert and to perpetuate. Of, course, homosexuals are vulnerable to blackmail but making homosexual acts criminal offences and then putting through a law that protects homosexuals by introducing legislation against the blackmailing of homosexuals is very much an Irish solution to an Irish problem.
We should be looking at it the other way in terms of introducing the decision on the principles in the European decision and we should be moving away from the situation we have in the 1861 Act, the Offences Against the Person Act, and indeed which is stated in this Bill, the reference to the criminalisation of homosexuals. I consider that the matter in terms of protection from blackmail is adequately covered by the civil law and that is the area that it should be dealt with, that would be the intent of any reforms introduced. I would like to see this section go through which would have the effect of removing the category of criminal offence in relation to homosexuality and, therefore, there would be no need for protection from blackmail because there would be no criminal offence as such within this legislation. The matter would be dealt with in the normal manner under the civil law.
That is a perfectly reasonable amendment to introduce at this stage. No doubt it would have the added effect of opening up the debate of these matters which are the subject of the Law Reform Commission deliberations at present. Indeed, the Minister was not able to indicate to me any precise time scale when any new legislation would be introduced in relation to this matter. Perhaps this would have the effect to some extent of  putting the skids under the Department of Justice and dealing with a matter which has been, to my mind, deliberately neglected for too long.
Mr. Burke: It is a Committee Stage debate so any Member as I understand it can speak at any time. We have debated this matter twice — first in Committee and then on Report Stage last week. We are now discussing it again. We are discussing it again because the section, if enacted into law would remove an important protection against blackmail. I am not prepared to see that happen as I intend to show the effect of the section has been totally misrepresented by the Senators who supported it.
The Government have two objections to this section. The first objection relates to the undesirability of tidying up certain parts of the 1916 Larceny Act in an ad hoc and piecemeal fashion. Of course, the 1916 Act needs an overhaul, and in that process I have no doubt that certain provisions of it will be dropped completely, or will not see the light of day again in anything like the same form. However, that is a matter which will be considered in the context of the Law Reform Commission's proposals on the reform of our laws on dishonesty, when they are received. As was made clear on Second Stage the purpose of this Bill is simply to reform the law relating to receiving of stolen property following the report of the Law Reform Commission and not to carry out a general review of the 1916 Act.
The second objection is on principle. Before I outline it in detail I want to correct the impression that has been given in the media about the effect of the Labour Senators' amendment. To judge by these reports this new section would decriminalise homosexual acts. Senator Costello has so represented his amendment, and his statements to that effect  have been reported uncritically and without any attempt to check the true position across the full range of our national media. Of course, this amendment would not decriminalise homosexual conduct.
I would like to tell the Seanad the precise effect of the section if it passes into law. The section amends section 29 of the Larceny Act, 1916. That section contains a number of separate, but interrelated offences, each of which attracts a punishment of penal servitude for life. To talk about putting it into the civil law would totally misrepresent the seriousness with which the law takes this question of blackmail. The severity of that penalty shows how seriously these offences are viewed. It is sufficient to refer to the 3 main offences: uttering a letter of writing demanding property with menaces; uttering a letter which accuses or threatens to accuse a person of a crime to which the section applies, with intent to extort or gain property; accusing or threatening to accuse a person of such a crime, with similar intent. All of these are forms of blackmail.
The section affects the second and third of these offences, which involves an accusation, or threat to accuse, a person of any of the crimes listed at subsection (3) of the section. The section would delete from that list of crimes solicitation to commit buggery or bestiality. Thus, the section would abolish an offence consisting of a nasty form of blackmail. It is important to note in the particular context of this section that the guilt or innocence of the victim of the demand is totally irrelevant.
Does the section abolish the criminality of homosexual conduct? Not at all. That can only be achieved by a substantive amendment to the laws, in particular the provisions in the Offences against the Person Act, 1861, and the Criminal Law Act, 1885, which make homosexual conduct a crime. That is something that the Government have to consider because of the ruling of the European Court in the relevant case. The matter is under examination by the Law Reform Commission, which has already made tentative proposals about what action might be taken in a consultation  paper published last year. The Commission's final recommendations are awaited, and when received they will be considered in the context of the Government's response to the ruling of the court.
Far from decriminalising homosexual conduct, the section would in fact decriminalise a form of blackmail which threatens to accuse a person of soliciting or inducing buggery. Do Senators seriously believe that that is a good change to make? Can you imagine the row that would erupt if the Government were proposing to do as the Senators propose? Would they not agree that the removal of this offence in the criminal law removes an important protection against blackmail? On the Second Stage of this Bill on 1 March 1990, Senator Norris quoted — with approval I presume — the Wolfenden report, which described the two Acts of 1861 and 1885 as a blackmailer's charter. If that is what he feels, why now does Senator Norris support a proposal which would remove a protection against blackmail?
Let us be under no illusions about the effect of this section. Blackmail in any form is an unsavoury business; and this amendment would deprive all our citizens, no matter what their sex or sexual orientation, of the protection afforded at present by a law which punishes severely a particularly nasty form of blackmail. That is what the section would achieve.
I am glad to be able to put the matter again before the House today in some detail. Whatever the fate of this particular part of section 29 in the 1916 Act, it is not something that should be tinkered with in this Bill. I would prefer to leave section 29 there in its entirety, at least until the question of other legal changes is considered, as a protection for all our citizens.
Mr. Lydon: Under Standing Order 77, I think I am entitled to say that this is an emergency. I do not consider that this is a fit debate for the delicate ears of those young people in the Gallery. Under Standing Order 77, we are entitled to move that the Visitors Gallery should be cleared of these young people until this particular item be finished.
Mr. Mooney: I would have to concur with my colleague Senator Lydon. While I do not wish to deny the democratic processes, I feel in the circumstances this is a rather sensitive issue and I would appreciate a ruling from you on it.
Mr. Norris: Thank you very much, a Chathaoirligh. I welcome your vindication of free speech. I presume that the young persons who are now leaving the Chamber are literate and they will be quite capable of reading this debate in the Official Report should they so wish. I do not believe that the discussion of a technical legal matter is beyond their moral comprehension. The use of certain phrases such as buggery and sodomy are of course offensive. They are very offensive to me because I know the prejudicial origin of these words and the religious sectarian prejudice they enshrine.
The Minister, of course, is perfectly right in certain aspects. I think he is quite correct to go back to the source of the problem, which is the Larceny Act, 1916. He has directed our attention to section 29. The section is headed “Demanding money etc with menaces”. It deals, of course, with blackmail.
Every person who utters, knowing the content thereof any letter or writing demanding of any person with menaces without any reasonable or probate cause any property or valuable thing; (2) utters knowing the content thereof any letter or writing accusing or threatening  to accuse any other person whether living or dead of any crime to which this section applies.
any crime punishable with death or penal servitude to for not less than seven years or any assault with attempt to commit any rape or any attempt to commit any rape or any solicitation, persuasion, promise to threat offered or made to any person whereby to remove or induce such persons to commit or permit the abominable crime of buggery either with mankind or any animal.
Now, in parenthesis, I would like to come back to this question of the language. The language is important. It is offensive; it enshrines religious prejudice. “Buggery” comes from the Middle French, bougre, which means a Bulgarian, and it was a Papal accusation against the people of Bulgaria — the Alligensian heresy — that they were guilty of unnatural practices and so on. It has nothing whatever to do with the Act. It is very vague in legal terms. The same with “sodomy”, which comes from a complete misreading of the ancient biblical text. This is the kind of quagmire we are in when we are dealing with these ancient antiquated laws.
Sections 29 to 31 of the 1916 Larceny Act, which contain the law of what is colloquially termed blackmail, have been described as an ill-assorted collection of legislative bric-a-brac which the draftsmen put together with scissors and paste. The sections represent the collation of a series of piecemeal statutory provisions which were enacted from the 18th century onwards. Moreover, certain forms of blackmail amounted to robbery at Common Law, in particular extortion by threatening to accuse the prosecutor of having engaged in “unnatural practices”. There still remains an overlap between the offences contained in  these sections and those of robbery and assault with intent to rob although its extent has not been accurately identified. The uncertainty is aggravated by an element of inconsistency in the authorities and in Ireland matters are further confused by a dearth of reported cases which we might flatteringly believe to be a reflection of the national character. The gravamen of the offences contained in these sections is the making of improper threats in order to gain some benefit.
So, to a certain extent the Minister is right. We are dealing with the offence of blackmail; there is no doubt about that. But we are dealing with poorly drafted law. We are dealing with a rag-bag of offences collected together. We are dealing with the enshrining of prejudice.
I am impressed by the Minister's humanitarian concern and compassion with regard to the question of blackmail. I am very glad he was paying attention when I quoted Sir John Wolfenden describing the 1861 — it is not 1961, Minister, I am very glad to say; if it were 1961 I would be seriously concerned— Offences against the Person Act and the 1885 Labouchere amendment, the section under which Oscar Wilde was convicted. However, I would be more impressed by the Minister's agonising over blackmail if any Minister for Justice had really attacked this question of the blackmailers' charter. I consider this Minister has gone some way in, for example, the incitement to hatred legislation. This Minister had the courtesy, good grace and intellectual honesty to accept the arguments advanced in the Seanad; and here I would have to say it was very important to note the role played by the Seanad in securing those amendments which were vigorously opposed by a previous Minister for Justice in a previous Seanad and using tactics of which I had necessity to complain. I will not reopen that because it would simply be divisive but the Minister will know what I am talking of. I command him and compliment him for having allowed the situation to be re-opened and  introduced very important, significant and far-reaching amendments which have been noted worldwide. However, the Government will have to tackle the substance. If the substance had been tackled the question of blackmail in the provisions of this Act would not arise.
I have no difficulty in voting for Senator Costello's amendment. None whatever, and I will tell you why. Because this concentrates the focus on the anomalies, on the discrepancies. It sharpens our understanding of the situation. How can the Government maintain on the one hand that they are worried about blackmail and still they do nothing about the blackmailers' charter? They are worried about the offence of blackmail but they still maintain the charter that gives the blackmailers' their rights.
The Minister will know that politically one of the best methods of applying pressure is to sharpen the focus, to point out the discrepancy, to point out the contradictions. This is not at all a party political point because all Governments have taken a similar defensive attitude. A line that was taken, for example, in the European Court case that has been quoted was similarly contradictory; that on the one hand these laws were necessary; the 1861 Act, and the 1885 Act were necessary to sustain the moral fibre of the Irish people. That is one argument. The other argument, held simultaneously, was: “Sure, we never implement them anyway”. So what happens to the moral fibre of the Irish people? In other words, the Government's position is riddled with contradictions.
I have sympathy for the Minister because I think he is a humane man. I believe him when he says he is concerned about blackmail, but that simply further heightens the contradictions and the nonsensical attitudes enshrined in the present legislation. The Minister did, of course, refer to the Law Reform Commission. When I reread the report of the Seanad debates last week I thought he was referring to the consultation paper, but he is of course a very conscientious and a very accurate Minister. This is why I think it is important out of respect for the Minister  and the technical advisers — and I have sometimes quite misunderstood the information they were giving the Minister and I have apologised to them for it — a committee system is the only thing that will deal with this kind of situation adequately.
The Minister is quite correct, of course, in saying it is not a Law Reform Commission report; it is a consultation paper. But look at the size of it. Look at the weight of it. Look at the amount of expertise enshrined in it. The consultation paper extends to 233 pages and we may well ask why there is not a Law Reform Commission's report on the offences that are dealt with in this section. Why is there not? The reason is because, despite urgings in letter, on radio, on television from myself and others, no Government has ever referred this to the Law Reform Commission. So the Law Reform Commission has to include it in a completely inappropriate place. They have put it into the question of child sexual abuse.
Do you think that gladdens my heart? Do you think I feel it is appropriate that the question of homosexuality should be discussed accidentally in a report on child sexual abuse? I certainly do not but I listen with respect to what they say. I am not going to take the time of the House in idle discussion so I will refer not to the substance, the body, of the actual consultation paper itself — although I commend it to anybody who wishes to read it — but to digest, the summary. One of the principal recommendations contained in the summary is this:
That point is worth underlining. Senator Costello is perfectly right. The Government is in contempt. If I was caught cycling on my bicycle with no light, I could be summonsed, charged. I could be brought before the District Court. I could be fined  a small amount, £10 or £15. If I did not accede to the jurisdiction of the District Court of Dublin and pay that fine I could be committed to prison for contempt. The Irish Government are in flagrant and open contempt of the European Court and are getting away with it. So, I will seize every opportunity, including the opportunity so valiantly provided by Senator O'Toole, to embarrass the Government on this issue. It is right that I should so do.
I would point out, with regard to this issue, why do we not have a free vote on these sort of matters? I well recall when we were discussing the question of the Incitement to Hatred legislation and I introduced a document into this House which demanded the burning, the destruction of places frequented by members of the Gay community and I have been involved in the Hirschfield Centre which was destroyed by fire. The Minister sat in that chair and said that this was subject to the criminal law. I wrote to the Director of Public Prosecutions who assured me that it was not, that that was inaccurate, and yet every single member of the Government side voted with the Government on this.
The creation of an offence of anal intercourse with persons under 17 years to correspond with the present  sexual intercourse offence in respect of girls under 17, which would be retained. The severest penalties would be provided where these offences were committed with the very young or by persons in authority. Thirdly, the replacement of the present offence of indecent assault with consent by a new offence of sexual exploitation. Older children would also be protected from this form of exploitation where the perpetrator was a person in authority.
I have accepted that the Minister is a decent, humane and compassionate man. I have accepted that there is an intellectually sustainable case for his attitude towards the amendment but I have to say it is not so simple as he maintains. Senator Costello can, for the reasons I have outlined, honourably continue to support his amendment, although it does not do what is appeared, apparently, to him to do in the beginning. I cannot read his mind; I do not know.
I can say that the Minister is, of course, absolutely right to say that reports carried did imply that there was a degree at least of decriminalisation implicit in this. There was not. When I returned to the 1916 Act and read these things together, this quickly became clear to me. I am sure the Minister, who is a fair man, will agree, if he listens, for example, to what I said on the radio, that what I said was very careful: I said that what was involved here was not a decriminalisation; it was the removal of the offence of buggery from a recital of a shedule of offences and was merely a technical issue. It put it up to the Government, and so it did. It is a political situation and it is one for which Senator Costello has a justification. It requires a more sophisticated approach than merely suggesting that it decriminalises homosexuality to sustain his arguments. It is quite possible honourably to vote on this side of the House.
I would like to finish by commending to the Minister, with regard to blackmail, a full and proper review of the whole question of blackmail particularly as was undertaken in the reform of the Act  similar with a test Act in the United Kingdom in 1968. I did place an amendment, signed by myself and Senator Brendan Ryan, on this, because I agree absolutely with the Minister. The question of blackmail is fundamentally important but it cannot just be isolated and treated in relation to homosexuality alone. Senator Costello is also quite correct in saying that you can be blackmailed over things that are not criminal offences, so you can retain an offence of blackmail even though you decriminalise homosexuality, and I commend the Minister to do so.
I would like simply to read into the record the alternative that you a Chathaoirligh, have had to rule out of order and I appreciate that you have done so properly. I regret it. I commend this amendment, however, and I think it is appropriate to include it in the argument for the information of those who may wish to read this debate subsequently. What I would have suggested is replacing the amendment of Senator Costello with an amendment making a wider deletion, deleting the whole of section 29 of the 1916 Larceny Act and putting in the following a new section 29 and putting the plain, simple word “blackmail” beside it — because that is what we are dealing with — and saying as follows:
(1) A person is guilty of blackmail if with a view to gain for himself or another or with intent to cause loss to another he makes any unwarranted demand with menaces and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief (a) that he has reasonable grounds for making the demand and (b) that the use of the menaces is a proper means of reinforcing the demand.
I am not going to deal with the substance of that because, again, it is quite complicated and it is open to misinterpretation by people who are not versed in the law. But I think those who are will regard it as at least an interesting pointer to the direction in which this debate ought to go; and in particular we should concentrate our minds, if we are so worried about blackmail, on, first of all, removing the source. Is it not ridiculous to affect to be worried about blackmail and still to retain in operation the blackmailers' charter, and just to remove one? I do not accept that. Secondly, it is important to deal with blackmail as a complete entity in this new section.
I accept what the Minister says. I accept his advice is good in as far as it goes but it does not go far enough. There is a clear political point in the Government's embarrassment. Embarrassed they most definitely should be on this issue. If it helps to focus their minds and if it helps to impel them towards a proper consideration — 13 or 14 years ago a Minister for Justice from the same party in the Dáil replied to Dr. Noel Browne that they were considering the reform of this legislation. I am all in favour of due consideration but I really do not think that even the slowest of thinkers needs 14 years to deal with a situation like this. Can I remind the Minister that we are now alone in Europe, in our shame and in our humiliation, with regard to these sections of the 1885 Act? Why do we not purge our shame, purge our contempt of the European Court and get rid of those things? Then we will not have this trouble. All this trouble is consequent upon the Government's inaction in a really important matter.
Finally, I welcome the fact that Senator Costello has put down these clauses. I welcome the fact that my esteemed colleague, Senator Brendan Ryan, has put down sexual orientation clauses. In the beginning, I think I can say, I helped  pioneer this kind of approach, but I am more than delighted when other people take it up. It has much more impact and effect when it is done by someone other than myself. I look forward to the day when people of conscience on the Government side will be permitted to express themselves and to vote, as I am sure some of them would, to demonstrate their respect for the European Convention on Human Rights which, I would remind the House, was principally initiated by a former Minister of an Irish Government, the late Seán MacBride.
Mr. O'Donovan: I oppose the amendment. I congratulate the previous speaker on his great oratorical abilities, driving his own bull to the fair, so to speak but there is another forum for that. Whereas I appreciate and accept that there is need for change and that this matter will have to come before this House and the other House, we are losing sight of the kernel and the thrust of this Bill.
This was a very carefully prepared Bill and I must compliment the Minister. At all stages in the other House and here the Minister has acknowledged fully the need for reform of the Larceny Act, 1916, and other legislation but this Bill was brought before the House purely to rectify a serious on-going situation. Its prime purpose is to introduce a new category of crime, that of handling, to replace the crime of receiving stolen goods. This is done for very good sound reasons. We have had an on-going situation in this country. The statistics last year showed that the value of goods stolen came to £34 million whereas only £3 million was recovered. The prime thrust of the Bill is to try to rectify that pressing situation. It is urgent and the Bill should not concern itself with other matters.
I understand the point made by my learned colleague, Senator Costello, on the other side, but I feel he is mistaken. I would ask him seriously to reconsider the position. I agree with what the Minister has said — and I have researched it very thoroughly — that, instead of improving the situation, as Senator  Costello believes, it would be taking away an existing protection for homosexuals and other such people. That point should be made clearly and unequivocally.
This Bill contains new and necessary regulatory provisions. The introduction of this first amendment is totally irrelevant. It is unnecessary and it does not in any way improve the situation, which the Bill initially set out to do. The people on the other side should rethink the situation. The Bill is here primarily to establish a necessary category in the criminal law, that is, of handling stolen goods. Everybody accepts that. We must not lose sight of that by bringing in other matters. I could name another 20 issues in the Larceny Act that need attention. There are several issues under different legislation going back 150 years or more. We all accept that, but it is an on-going process. I differ with Senator Norris in so far as that this process is on-going and it will be going on when we have left this House.
The purpose of the Bill must not be lost sight of. I urge the people on the other side to accept this vital fact and to withdraw this amendment. It is irrelevant and it is time delaying. It is frivolous, and in this instance somewhat vexatious.
Mr. B. Ryan: Senator Norris has said a considerable amount of what I would like to say. I think Senator Costello was right in introducing the amendment. I want to make that perfectly clear. I do not think we should need a consultative paper from the Law Reform Commission followed by a report from the Law Reform Commission to decide that it is none of our business what adults do of a sexual nature in private. We are carrying on our backs a collection of hang-ups, attitudes and primaeval instincts about matters sexual and the sooner we got rid of them the healthier we will be. To suggest that we need two reports — one a consultative document and the other a report from the Law Reform Commission — to make up our minds that these things are none of our business, in so far as they apply to the behaviour of adults, seems to be so self-evident that  the opportunity to discuss the matters and to persuade the Minister he does not need a barrage of consultative documents, of reports, of warnings, to decide that these things are none of the legislators' business goes without saying. It is because we insist as a society on all these strange antediluvian views about sexuality that we need this sort of legislation, not the wording but the principle of the 1916 Act. Not all of those who are gay in our community are openly and publicly assertive of that fact. Many of them, perhaps the majority, are vulnerable, frightened, uncertain, confused people who feel threatened by their own sexuality, who feel threatened by what people would say about them if their own sexual orientation was publicly known, who are susceptible to threats, who are susceptible to prejudice, who are susceptible to a whole lot of things.
It is because of that and not with any great enthusiasm or with any great happiness that I have felt obliged to take the position I took today which is to support the recommittal not because for one second I have a sympathy with the enormous delays. This sort of amendment to get rid of the so-called offences should have been introduced 20 years ago. They should never have been on the Statute Book of any civilised society. The only issue that ought to be in our competence to regulate, in my view, is the whole issue of sexual exploitation. That involves the age at which people should be free to engage in sexual activity and the fact that people should be allowed a free choice without external coercion of any form in the way they choose to express their sexuality. That is our limit, to protect people who are young from exploitation or people who are older from exploitation, and to ensure that people can have a free choice. Beyond that it ought to be, should be and would be much healthier for all of us if we accepted it was none of our business.
That is why it is so singularly offensively and inappropriate, and Senator Norris is right about references to the decriminalisation of homosexual acts  contained in a document which refers to child sexual abuse. It has the unhappiest of connotations. I am sure it was not the Law Reform Commission but it probably reflects even the prissiness of that august body that it could not issue a report on something as self-evidently correct as the fact that it is none of our business what consenting adults do in private of a sexual nature, that they had to insert the reference into something else. It is also a reflection of the remarkable prissiness of successive Governments that we want to wait for another report before we do anything about it.
While I accept that the Minister has shown a considerable reforming zeal, I will not be able to make a final judgment on his reliability on this issue until I see legislation. If I do not see it soon I will have to form a negative conclusion. This is not complicated legislation, this does not require a huge, long Bill. Three or four sections would be enough to deal with our appalling breach of the European Convention on Human Rights. I do not know who it is we are afraid of. Is it ourselves? Is it the Church? The Church is a great excuse for all sorts of inactivity in our society, a huge excuse. You can always say: “We would love to do it but the Church will not let us”. I actually think the real failing is inside ourselves because we are unhappy and not comfortable with issues like homosexuality. It is time we became totally at ease with them and accepted homosexuality as a perfectly natural sexual orientation which happens to happen to about 10 per cent of the population, about which nothing can be done, which is not an ailment, a disease, a sickness or anything else. It is just the way people are and they ought to be allowed to be the way they are without us giving them lectures about how to behave and trying to remedy something that cannot be remedied. I am very glad Senator Costello introduced this amendment because all those things need to be said in this House, and said in the other House over and over again.
With regard to the amendment as it stands, in my view, and I have listened  carefully, the balance of advantage lies with retaining the present legislation. I would not have a scruple about voting for something like this to cause political embarrassment to the Government if I thought that would serve a purpose. I have been a Member of this House for nine years and I vote on issues in terms of what is political. I am extremely unhappy about continuing efforts to embarrass the Government politically at the expense not of the open, assertive, vocal, Gay community but at the expense of the vulnerable, silent, suppressed sort of frightened Gay community which is probably the majority of the Gay community because of the attitudes we retain. On balance, I have to accept that the Minister perhaps will do something about it. I have to accept that he is at present able to argue with some plausibility that he is waiting for a report from the Law Reform Commission.
I do expect, and I think this House, Irish society and European society is entitled to expect that within a relatively short time we will have purged our contempt of the European Convention on Human Rights and will have instituted the minimalist changes that are needed to get us away from a regulation of what people do in private as consenting adults. It is absolutely, totally and completely ludicrous to attempt to legislate for those sorts of matters. We would serve ourselves much better by getting rid of it.
In the meantime I have to say I believe the amendment on balance would leave some people who are vulnerable already even more vulnerable although it would, of course, have been very helpful if the Minister instead of simply opposing this amendment, since his Leader in the House has proposed recommittal, had actually responded to the sentiments of this amendment and proposed an amendment to the sections on blackmail similar to the one that Senator Norris and I attempted to introduce.
Mr. Farrell: It is a pity this Bill get knocked down, as it did, because it set out to try to put an end to robbery and plundering with violence and menace of  all kinds. The media and everybody is saying that something should be done to end that situation. We know that nothing can ever be done until we get some grip on the receivers. If there were no receivers or takers there would be no stealers. People are stealing now to order and this Bill was designed to put an end to that situation.
I wonder were the people who voted against the amendment the other day thinking of higher motives or merely of embarrassing the Government when they got us offside for a few minutes. I am fully convinced that was the reason and they lost all sense of direction, they were so hell-bent on causing embarrassment. On 21 March that very same amendment, word for word, was proposed by Senator Costello and debated and withdrawn by him. If he felt so strongly about it here last week, why did he withdraw it on Committee Stage? I think that is the answer and nobody opposed it at that stage. Why did it become such a big issue then on Report Stage? We all know that it is on Committee Stage that most of the debating, talking and researching is done but nothing was done there. It was withdrawn. So it was obviously a cheap, snide move to try to embarrass the Government.
Mr. Farrell: I think Fine Gael were more embarrassed when they had to sit down today and not vote against the motion and when they had to go out and explain to the rank and file, decent people down the country what they voted against.
Mr. Farrell: I am amazed at Senator Norris, an educated, intelligent man like him, is so obsessed with his favourite sexual activity that he put that before the welfare of the people who are being robbed and plundered.
An Cathaoirleach: Resume your seat, Senator. Before we go any further, the personal behaviour of any Member of this House should not be discussed in the House. I would respectfully ask to withdraw the remark you made.
or any solicitation, persuasion, promise or threat offered to or made to any person whereby to move or induce such person to commit or permit the abominable crime of buggery, either with mankind or with any animal.
Mr. B. Ryan: That is an outrageous statement. The Senator has no right to say things like that in this House. You defend them or I will defend them. That is outrageous. He has no right to say things like that.
Mr. Farrell: Nobody. No, I am saying in general, in the context of the amendment, that when we took out all those words anybody could go along and solicit. It is no longer against the law. They could go along and try to ballyrag people, coax and cajole them and do what they like. In the normal case that person could call the Garda and ask for help but if this was wiped out blackmail would no longer be involved and, therefore, they could do nothing about it. We are exposing vulnerable people. That is the point I am making. I can only say that if it was so serious, why was it not voted on on 21 March?
An Cathaoirleach: I am not going to allow this House to debate matters that have been raised in one situation  improperly. I have dealt with that matter by making a ruling. The Member has withdrawn the remark made and that is sufficient. We will either stick to the Bill now, or I will have to take other steps.
Mr. B. Ryan: I did not provoke any exchange. Everything I have said on this Bill since we began has been extraordinarily reasonable, far more reasonable than I often am, because I think the issue is extremely serious. I will suffice with this. Senator Farrell's speech was the finest argument I have ever heard for the decriminalisation of homosexuality; that people who are gay in this country should have to be subjected to that sort of a rant is the finest argument I have every heard for sorting out the law.
Mrs. Doyle: I had not intended to contribute but I feel I must put on record my deep disgust with the tone of the contribution of Senator Farrell. Normally I take your ruling and have no difficulty at all in accepting your decisions or in understanding them but I feel the use of the word “pervert”, given the amendment we are discussing and the particular issue we have been talking about today, and the preceding remarks of Senator Farrell, I found extremely offensive. I think in this House above everywhere we must be tolerant and respect personal liberties. I think it augurs very badly for the future if we start off only one hour after the good intentions that were  offered on all sides on the Order of Business today with the tone of the debate we have now. I am sickened as well by the tone of that contribution. I find it hard to express in words how I feel.
Professor Conroy: I did not intend to intervene either but I would like, and I think I am speaking for most of my colleagues on the Government side, to dissociate myself totally from some of the words which I am sure were used in the heat of the moment. We certainly totally dissociate ourselves from that.
Mrs. Honan: As a long-serving Member of this House I would like to support Professor Conroy. It is very late in the day to appeal but I have the respect and support of everybody in this House. The Minister came here today absolutely sincere and with his contribution he tried to pull us back to where all Members want to be, and to correct unhappiness that has been in the House in the past few weeks. I did think, in fairness to the Minister, Deputy Burke, that Senator Costello, who has become a friend of mine also, would agree with him.
Let what happened last week happen. If I had been on the other side and what happened last week happened, I would have pulled my party back from scoring the type of political goal that was scored. Today I listened to Senator O'Donovan. In all our contributions today we were very constructive. We thought we were doing right but this unhappy tone has crept in again. At this late stage, as a Senator since 1977, I appeal to everybody to let this Bill go on and conclude. As Senator O'Donovan said, it really went off-key with the amendments. Really, the Larceny Bill was to deal with stolen goods. I thought that was the main thrust of the Bill.
With the greatest respect to Senator Costello, he should look more carefully at amendments. I appreciate that the Senator has gained much experience in a very short time, much more so than I when I had been that time in the House. I ask that if in future he saw where an amendment which he might well have put  down in good faith was leading this House he would think about it again. I say that to Senator Costello with the greatest respect. We should all cool ourselves because it pays us in politics to do that at times, and try to pull the Seanad back from the brink.
Mr. Neville: I would like to express my abhorrence at the outburst of Senator Farrell. I would also like to welcome the Minister's clarifications on the implications of the section. It was obvious last week that the Minister was not fully informed and not in a position to fully inform the House of the implications.
Mr. Costello: I must say at the outset that I was disappointed by the remarks of Senator Farrell particularly when he described the amendment which is in my name and that of the Labour Party as a cheap, snide attempt to embarrass the Government. I think everybody in the House will agree that was not the intention at any stage. The only reason the Government were embarrassed was because there were no Senators on their benches on the occasion.
I have argued this amendment and the other amendments with the Minister and we have done it in a polite and reasonable fashion. I am glad all of the other remarks by the Government and by the Opposition Senators were made in that courteous and polite fashion. I am also delighted that Senators Honan and Conroy dissociate themselves from the remarks that were made by Senator Farrell. They were improper, discourteous and indeed totally unacceptable in any circumstances.
The amendment was put down in good faith. It was an attempt to delete a section of the 1916 Act and not to decriminalise. If you read the debates of last week you will see that what we were seeking was deletion rather than decriminalisation. I had hoped the Government would have taken action before now in relation to the decision of the European Court. The amendment I put forward was on the lines of the recommendations, not of the Law Reform Commission but the Law  Reform consultative paper which is a massive tome. That is the gist of what this amendment is about. If action had been taken by the Government in relation to decriminalising homosexual acts, then there would be no crime referred to in the Larceny Act. Therefore, there could be no blackmail for a non-existent crime. What I was doing was pushing this a bit further, making the Government face up to the situation that no action had been taken and also referring the situation to the civil law courts, that that is where action could be taken if an instance of blackmail did arise. It was not an attempt to embarrass the Government.
I am glad the Minister has given an undertaking that the whole area is being investigated by the Law Reform Commission and that he will be looking at it — not, as he put it, of tinkering with the 1916 Larceny Act — in terms of the comprehensive proposals in this area. In that context having had a thorough debate, having drawn attention to the substantial matters underlying it, at this point the Labour Party do not intend to press the amendment.
Mr. Burke: Senator Neville said that in some way or other my contribution to the House left the matter in question last week. This matter was clarified in great detail during Committee Stage as to exactly what was involved in Senator Costello's amendment. It was clarified by me again last Wednesday at columns 1626 and 1627 of the Official Report of the Seanad of 9 May. It showed exactly the clarification in relation to blackmail, etc. It was clarified at great length when we debated it here. Senator Costello put down the amendment on Committee Stage and the implications of that amendment in relation to blackmail were clarified. I am glad the Senator is not pushing his amendment at this stage.
In page 3, line 31, to delete “14 years or to a fine or both” and to insert “seven years or to a fine or to community service or to make compensation to any injured party or to any two of these penalties”.
The amendment was moved last week and I have little to add to it except to state that the intent here is to extend the range of sanction options available to the judge. In the principal Act and in the Larceny Bill, 1989, there is just a range of two options, a prison sentence or a fine and I am seeking to extend that to a fine, community service, compensation to an injured party or to any combination of two of these penalties. At the same time this amendment seeks to reduce the maximum sentence from 14 years to seven. The intention is to bring it into line with the overall recommendations of the Whitaker report which stated that their experience was that institutionalisation in prison occurred after seven years of imprisonment.
I believe we should be looking in a more positive fashion to try to get alternatives to imprisonment, particularly in the context of what is happening in our prisons. We have got overcrowded prison conditions which are not conducive to rehabilitation and a long period spent in prison in present circumstances is not of benefit to the offender. I believe it is a very reasonable amendment to direct the judge towards the variety of sentencing options that are available. No harm can be done by taking it on board and a lot of good can be done. Indeed, all future legislation should include as wide and varied a list of sanction options as are in existence in this country. I suggest that  this amendment could be accepted by the Minister without any opposition.
Mr. O'Donovan: I am opposing this amendment. I will be brief in my remarks. The Minister on the last occasion quite clearly set out his reasons with which I concur. The handling of stolen goods is becoming one of the most serious and regular crimes concerning large sums of money. Because of its increasing popularity with the criminal element in this country we must have a suitable penalty here to fit the crime and that is the 14 year term. That must stay and I urge the Opposition to support me in this respect. It is a very serious crime, one that has been escalating gradually in the past ten or 15 years. Last year alone something like £31 million or £32 million of stolen property was not recovered. There are major criminal elements involved in it and the sentence of 14 years is quite reasonable and should be retained.
In relation to the community service, I cannot understand why — this is a matter I have raised here before and I am not being in any way disrespectful to the Senators on the other side — there is the necessity to include community service. It is inherent and inbuilt in our criminal system and jurisdiction at the moment that the district justice or Circuit Court judge have the power in any given situation to apply community service as an alternative to a custodial sentence. This point should be made emphatically because from time to time the public are being misled by this. There is no need for this amendment as far as the community service is concerned. I have seen several district justices operating the community service option on an increasingly successful basis. I am aware that the President of the District Court has urged that it be used. The situation is already dealt with and I would urge, in the circumstances, that the amendment be withdrawn.
Mr. Neville: I would like, as I did the last day, to support the extension of the  range of penalties from fines and imprisonment. I mentioned a few of them the last day. Briefly, there are other approaches that should be taken, such as confiscation of property, payment of fines by instalments and so on. I expect the support of Senator Donovan on amendment No. 3 because it expresses his view that for crimes such as larceny a sentence equal to the penalty for receiving should be available to the courts.
I made a comprehensive speech on the section last week which is on the record. I do not propose to delay the House by going into it again in great detail now. There is an approach developing of almost glamorising prisoners. It must be realised that these people are in jail for committing serious crimes. Many of them have committed murder, rape, child abuse and so on. We must be careful. I would urge Senators on the other side of the House to read my contribution on amendment No. 3 last week.
Mr. Burke: Amendment No. 2 in the name of the Labour Party Senators seeks to have the maximum sentence provided in the Bill for handling stolen property from 14 years imprisonment to seven years and this is totally unacceptable. Amendment No. 3 in the name of Senator Neville seeks to increase from ten years to 14 years the maximum sentence provided in the Bill for larceny and other related offences and this is equally unacceptable. A maximum sentence for larceny and similar offences is provided in the Bill at ten years and it is my view, the view of the Government and of society generally that handling stolen property is a more serious offence than the principal offence by which property is misappropriated. This is because handling and handlers of stolen property encourage further crimes by creating and maintaining a market in stolen goods. For this reason, we want the Bill to give both to the courts who are charged with determining sentence in each case and to the criminals who promote and profit from illicit trade a clear measure of the seriousness with which handling is viewed.
 The message the Bill as it stands sends is that the most grevious individual crime of handling is deserving of a penalty 40 per cent greater than a penalty for the most grievous individual crime of simple larceny. I expect that the courts in dealing with the less grievous incidents of larceny and handling will maintain this proportional difference whether they decide in any case that a custodial sentence, a fine, community service or any of the other penalties available to them is appropriate.
I might mention here, in passing, that the ten years maximum specified by the Bill is for simple larceny and related offences such as fraudulent conversion and embezzlement. The 40 per cent differential created by the maximum sentence specified in the Bill is between handling and simple larceny. Larceny with violence or the threat of violence, in other words robbery is viewed as being so much more serious than the deed of simple larceny or handling that the Legislature has specified a maximum penalty of life imprisonment for that crime. No one expects that the courts will hand out a 14 years sentence on handlers on a regular basis, any more than they are likely to hand out a ten year sentence on thieves, or life sentences on robbers, with any frequency. The maximum sentences are there to cater for the most gross occurrence of such offences.
Without labouring the point, I want to make one thing clear, that is, that the present maximum sentence for receiving is 14 years. The Bill does not bring about a change in the position. What it does is highlight the difference between the most serious cases of handling or receiving other than those of theft and other offences covered by section 9 of the Bill.
The new section 33 must specify a maximum custodial sentence for the offences specified in it and on that there can be no argument. Because the offences are felony, then unless the legislation also specifies a fine the court may not impose one and this legislation specifies that a fine may be imposed in addition to or instead of a prison sentence. There  is no need, however, to make any reference here to the powers of the court under the Criminal Justice Community Service Act, 1983. To do so would be just as superfluous as to make reference to the court's power to suspend sentences or to apply the provisions of the Probation Act.
As regards the reference in amendment No. 2 to the payment of compensation, I have repeatedly in the debates both here and in the Upper House given a commitment to have the whole question of compensation in the context of crime generally examined in my Department as resources permit with a view to preparing comprehensive legislative proposals for consideration by the Government. In the light of that, it does not make sense to deal with the matter piecemeal in relation to the offences dealt with within this Bill alone.
Senator Neville's amendment would destroy the relationship set up by the Bill and indicated by the maximum sentences specified in it between the seriousness with which society views handling on the one hand and simple larceny on the other. It does not stop there, however. It would have the effect of equating simple larceny with burglary, a crime which in addition to a possible larceny element has the aggravating element of entering as a trespasser. Because burglary also attracts a maximum sentence of 14 years, the effective message which Senator Neville's amendment would send to the criminal fraternity and the courts is that burglary is no more serious than larceny. I hardly think Senator Neville would intend that and I certainly would not find it acceptable.
The fact that we have here two amendments which would move the maximum sentence provisions of the Bill in opposite directions confirms to me that the middle course proposed in the Bill gets the right balance. I urge the House to reject both amendments.
Mr. Costello: In relation to the reduction of the period of imprisonment from 14 years to seven, in that context I had been seeking to introduce a particular quantity or value of property for which there could be a penalty of imprisonment. As it stands, the amendment simply refers in a blanket fashion to the handling of stolen property and there is no reference whatsoever to a value over a certain amount for an offence. That was the context in which the earlier part of the amendment was being introduced. Also, it was being introduced in the context of prison sentences and the effectiveness of prison sentences and getting the Minister to think in the context of the value of imposing huge prison sentences that do not seem to have the effect for which they were imposed.
There is another matter which the Minister has not addressed, but which Senator O'Donovan has addressed — and I compliment him on the manner in which he has addressed it, which is entirely in line with what I have been saying — that is, that there is great value in having a range of alternatives. I want this Bill to state the alternatives so that they are drawn to the attention of the judge, so that he sees specifically what is available to him in terms of an alternative range of sanctions other than imprisonment. There are two penalties there: imprisonment or a fine. Why can we not let our judges know the full range of sanctions that are available? The Minister has not addressed that. He did not address it on Committee Stage or on the previous Report Stage. That was the one area that I am particularly unhappy about.
Mr. Costello: May I thank the Minister for being here for the entire debate on this Bill? It has been fairly long and somewhat controversial. As I said before, I am delighted to see the Minister for Justice present for the entire debate.
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