No. 14/1997:

CRIMINAL LAW ACT, 1997

ARRANGEMENT OF SECTIONS

Section

1. Commencement.

2. Interpretation.

3. Abolition of distinction between felony and misdemeanour.

4. Arrest without warrant.

5. Arrest on warrant or order of committal.

6. Entry and search of premises to effect an arrest.

7. Penalties for assisting offenders.

8. Penalty for concealing offence.

9. Trial of offences.

10. Powers of dealing with offenders.

11. Abolition of penal servitude, hard labour and prison divisions.

12. Abolition of corporal punishment.

13. Amendment of particular enactments.

14. Amendment of Defence Act, 1954.

15. Savings and other general provisions.

16. Repeals.

17. Short title.

FIRST SCHEDULE

AMENDMENT OF PARTICULAR ENACTMENTS

SECOND SCHEDULE

AMENDMENT OF DEFENCE ACT, 1954

THIRD SCHEDULE

ENACTMENTS REPEALED

ACTS REFERRED TO

Number 14 of 1997

CRIMINAL LAW ACT, 1997

AN ACT TO ABOLISH ALL DISTINCTIONS BETWEEN FELONY AND MISDEMEANOUR AND TO AMEND AND SIMPLIFY THE LAW IN RESPECT OF MATTERS ARISING FROM OR RELATED TO ANY SUCH DISTINCTION, TO ABOLISH PENAL SERVITUDE, HARD LABOUR, PRISON DIVISIONS AND CORPORAL PUNISHMENT, AND TO PROVIDE FOR CERTAIN OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID.

[22nd April, 1997]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—This Act shall come into operation three months after the date of its passing.

2.—(1) In this Act, and in any amendment made by this Act in any other enactment—

"arrestable offence" means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;

"fixed by law", in relation to a sentence for an arrestable offence, means a sentence which the court is required by law to impose on an offender, being a person of full capacity.

(2) Any reference in this Act to any other enactment shall, except so far as the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

(3) In this Act, a reference to a section is to a section of this Act and a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other enactment or provision, as may be appropriate, is intended.

3.—(1) All distinctions between felony and misdemeanour are hereby abolished.

(2) Subject to the provisions of this Act, on all matters on which a distinction has previously been made between felony and misdemeanour, including mode of trial, the law and practice in relation to all offences (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour.

4.—(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.

(2) Subject to subsections (4) and (5), where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.

(3) Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.

(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsection (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.

(5) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.

(6) This section shall not affect the operation of any enactment restricting the institution of proceedings for an offence or prejudice any power of arrest conferred by law apart from this section.

5.—A warrant for the arrest of a person or an order of committal may be executed by a member of the Garda Síochána notwithstanding that it is not in the member's possession at the time; but the warrant or order shall be shown to him or her as soon as practicable

(1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.

(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless—

( a ) he or she or another such member has observed the person within or entering the dwelling, or

( b ) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or

( c ) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or

( d ) the person ordinarily resides at that dwelling.

(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation of any enactment or rule of law relating to powers of search or powers of arrest.

7.—(1) Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender

(2) Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence.

(3) If, upon the trial on indictment of an arrestable offence, it is proved that the offence charged, or some other offence of which the accused might on that charge be found guilty, was committed but it is not proved that the accused was guilty of it, the accused may be found guilty of an offence under subsection (2) of which it is proved that he or she is guilty in relation to the offence charged, or that other offence.

(4) A person committing an offence under subsection (2) with intent to impede another person's apprehension or prosecution shall be liable on conviction on indictment to imprisonment according to the gravity of the offence that the other person has committed or attempted to commit, as follows:

( a ) if that offence is one for which the sentence is fixed by law, or for which the maximum sentence is imprisonment for life, he or she shall be liable to imprisonment for a term not exceeding ten years;

( b ) if it is one for which a person of full capacity and not previously convicted may be sentenced to imprisonment for a term of fourteen years, he or she shall be liable to imprisonment for a term not exceeding seven years;

( c ) If it is not one included in paragraph (a) or (b) but is one for which a person of full capacity and not previously convicted may be sentenced to imprisonment for a term of ten years, he or she shall be liable to imprisonment for a term not exceeding five years;

( d ) in any other case, lie or she shall be liable to imprisonment for a term not exceeding three years.

(5) Where a person is charged with an offence under subsection (2), no further proceedings in the matter (other than any, remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.

(6) The references in the following provisions, namely subsection (1) of section 13 (which relates to a plea of guilty in the District Court of an indictable offence) and subsection (1) (f) of section 29 (which relates to bail in the case of certain offences) of the Criminal Procedure Act, 1967 , to an accessory before or after the fact shall be construed as references to aiding, abetting, counselling or procuring the commission of an offence, and to an offence under subsection (2).

(7) The First Schedule to the Criminal Justice Act, 1951 (which specifies the indictable offences which may be tried summarily with the consent of the accused) is hereby amended by the insertion of the following reference:

"24. An offence under section 7 (2) of the Criminal Law Act, 1997 .".

8.—(1) Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed and that he or she has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss or injury caused by the offence, or the making of reasonable compensation for that loss or injury, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding three years

(2) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.

(3) The compounding of an offence shall not be an offence otherwise than under this section.

(4) The First Schedule to the Criminal Justice Act, 1951 (which specifies the indictable offences which may be tried summarily with the consent of the accused) is hereby amended by the insertion of the following reference:

"25. An offence under section 8 of the Criminal Law Act, 1997 .".

9.—(1) Where a person is arraigned on an indictment—

( a ) he or she shall in all cases be entitled to make a plea of not guilty in addition to any demurrer or special plea;

( b ) he or she may plead not guilty of the offence specifically charged in the indictment but guilty of another offence of which he or she might be found guilty on that indictment;

( c ) if he or she stands mute of malice or will not answer directly to the indictment, the court shall order a plea of not guilty to be entered on his or her behalf, and he or she shall then be treated as having pleaded not guilty.

(2) If, on an indictment for murder, the evidence does not warrant a conviction for murder but warrants a conviction for any of the following offences—

( a ) manslaughter, or causing grievous bodily harm with intent to do so, or

( b ) any offence of which the accused may be found guilty by virtue of an enactment specifically so providing (including section 7 (3)), or

( c ) an attempt to commit murder, or an attempt to commit any other offence under this section of which the accused might be found guilty, or

( d ) an offence under the Criminal Law (Suicide) Act, 1993 .

the accused may be found guilty of such offence but may not on that indictment be found guilty of any offence not specified in any of the foregoing paragraphs.

(3) If, on an indictment for murder to which section 3 of the Criminal Justice Act, 1990 , applies or for an attempt to commit such murder, the evidence does not warrant a conviction for such murder but warrants a conviction for murder or for any offence mentioned in paragraph (a), (b), (c) or (d) of subsection (2), the accused may be found guilty of murder or of any offence so mentioned but may not on that indictment be found guilty of any offence not specified in any of the foregoing paragraphs.

(4) Where, on a person's trial on indictment for any offence except treason, murder to which section 3 of the Criminal Justice Act, 1990 , applies or murder, the evidence does not warrant a conviction for the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence, that person may be found guilty of that other offence or of an offence of which he or she could be found guilty on an indictment specifically charging that other offence.

(5) An allegation of an offence to which subsection (4) relates shall be taken as including an allegation of attempting to commit that offence; and where a person is charged on indictment with attempting to commit an offence or with any assault or other act preliminary to an offence, but not with the completed offence, then (subject to the discretion of a court sitting with a jury to discharge the jury with a view to the preferment of an indictment for the completed offence) the accused may be convicted of the offence charged notwithstanding that he or she is shown to be guilty of the completed offence.

(6) Where a person arraigned on an indictment pleads not guilty of an offence charged in the indictment but guilty of some other offence of which the accused might be found guilty on that charge, and he or she is convicted on that plea of guilty without trial for the offence of which the accused has pleaded not guilty, then (whether or not the two offences are separately charged in distinct counts) conviction of the one offence shall be an acquittal of the other.

(7) Where a person charged on an indictment with any offence is convicted of some other offence of which he or she might be found guilty on that charge, conviction of that offence shall be an acquittal of the offence charged.

(8) Subsections (1) to (5) shall apply to an indictment containing more than one count as if each count were a separate indictment.

10.—(1) Where a person is convicted on indictment of an offence against any enactment and is for that offence liable to be sentenced to imprisonment but the sentence is not by any enactment either limited to a specified term or expressed to extend to imprisonment for life, the person so convicted shall be liable to imprisonment for not more than two years

(2) A person convicted on indictment of an attempt to commit an offence for which a maximum term of imprisonment or a maximum fine is provided by an enactment shall not be sentenced to imprisonment for a term longer, or a fine larger, than that which could be imposed for the completed offence.

(3) Where a person is convicted on indictment of any offence other than an offence for which the sentence is fixed by law, the court, if not precluded from doing so by its exercise of some other power, may impose a fine in lieu of or in addition to dealing with the offender in any other way in which the court has power to deal with him or her, subject however to any enactment limiting the amount of the fine that may be imposed or requiring the offender to be dealt with in a particular way.

(4) Notwithstanding anything in any enactment whereby power is conferred on a court, on the conviction of a person of an offence, to bind the offender over to keep the peace or to be of good behaviour, that power may be exercised without sentencing the offender to a fine or to imprisonment.

(5) A person sent forward to a court for sentence under section 13 (2) of the Criminal Procedure Act, 1967 with a plea of guilty of an offence may be dealt with in all respects as if he or she had been convicted on indictment of the offence by that court.

11.—(1) No person shall be sentenced by a court to penal servitude.

(2) Every enactment conferring a power on a court to pass a sentence of penal servitude in any case shall be treated as an enactment empowering that court to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of this Act, and accordingly, in the case of any enactment in force on the 5th day of August, 1891, being the date on which section 1 (repealed by this Act) of the Penal Servitude Act, 1891, came into operation, whereby a court had, immediately before the commencement of this Act, power to pass a sentence of penal servitude, the maximum term of imprisonment shall not exceed five years or any greater term authorised by the enactment.

(3) No person shall be sentenced by a court to imprisonment with hard labour; and every enactment conferring a power on a court to pass a sentence of imprisonment with hard labour in any case shall operate so as to empower that court to pass a sentence of imprisonment for a term not exceeding the term for which a sentence of imprisonment with hard labour could have been passed in that case immediately before the commencement of this Act; and so far as any enactment in force immediately before the commencement of this Act requires or permits prisoners to he kept to hard labour it shall cease to have effect; and accordingly the expressions "with or without hard labour", "with hard labour", "without hard labour" and corresponding expressions, wherever occurring in any enactment prescribing the punishment for an offence, are hereby repealed.

(4) So far as any enactment provides that a person sentenced to imprisonment or committed to prison is or may be directed to be treated as an offender of a particular division, or to be placed in a separate division, it shall cease to have effect.

(5) Any person who, immediately before the commencement of this Act, was undergoing or liable to undergo a term of penal servitude shall, if that person is or ought to be in custody at such commencement, be treated thereafter as if he or she were undergoing or liable to undergo imprisonment and not penal servitude for that term.

(6) Any person who has been sentenced to imprisonment with hard labour for a term which has not expired at the commencement of this Act shall, for the remainder of that term, be treated as though he or she had been sentenced to imprisonment without hard labour.

12.—(1) No person shall be sentenced by a court to whipping, and so far as any enactment confers power on a court to pass a sentence of whipping it shall cease to have effect

(2) Corporal punishment shall not be inflicted in any place to which the Prisons Acts, 1826 to 1980, or section 13 of the Criminal Justice Act, 1960 , apply

13.—The enactments mentioned in the First Schedule to this Act are hereby amended in accordance with the provisions of that Schedule

(1) The Defence Act, 1954 , is hereby amended in accordance with the provisions of the Second Schedule to this Act

(2) This section, the Second Schedule to this Act and the Defence Acts, 1954 to 1993, may be cited together as the Defence Acts, 1954 to 1997.

15.—(1) Except as provided by the following subsections, this Act, in so far as it affects any matter of procedure or evidence or the jurisdiction or powers of any court in relation to offences, shall have effect in relation to proceedings on indictment for an offence committed before the commencement of this Act if the person charged is arraigned after that commencement.

(2) Where a person is arraigned after the commencement of this Act on an indictment for a felony committed before that commencement, then, for the purposes of trial on that indictment, the offence shall be deemed always to have been a misdemeanour and, notwithstanding that the indictment is framed as an indictment for felony, shall be deemed to be charged as a misdemeanour in the indictment.

(3) On an indictment signed before the commencement of this Act, a person may be found guilty of any offence of which he or she could have been found guilty on that indictment if this Act had not been passed, but not of any other offence; and a person tried by a court-martial ordered or convened before that commencement may be found guilty of any offence of which he or she could have been found guilty if this Act had not been passed, but not of any other offence.

(4) For the purpose of Article 15.13 of the Constitution and for that purpose only, offences which were felonies immediately before the commencement of this Act shall continue to be treated as felonies and, accordingly, for all other purposes any rule of law or enactment whereby an offence is, or is regarded as, a felony shall be construed as relating to an indictable offence.

(5) Without prejudice to any express amendment or repeal made by this Act—

( a ) nothing in this Act shall affect the operation of any reference to an offence in the enactments specially relating to that offence by reason only of the reference being in terms no longer applicable after the commencement of this Act;

( b ) any enactment referring to felonious stealing or to felonious taking shall be read as referring merely to stealing;

( c ) nothing in this Act shall affect the punishment provided for an offence by the enactments specially relating to that offence.

16.—Each of the enactments mentioned in the Third Schedule to this Act is hereby repealed to the extent specified in the third column of that Schedule

17.—This Act may be cited as the Criminal Law Act, 1997 .

Section 13.

FIRST SCHEDULE

AMENDMENT OF PARTICULAR ENACTMENTS

1. In the Slave Trade Act, 1824, as amended by section 1 of the Slave Trade Act, 1843—

( a ) in sections 3, 5, 6, 7, 8 and 11, "and their procurers, counsellors, aiders, and abettors" shall be deleted;

( b ) in section 9, for "piracy, felony, and robbery" there shall be substituted "an offence, and shall be liable to imprisonment for life", and for the references to British subjects there shall be substituted references to Irish citizens;

( c ) in section 10, for the words from "and their procurers" to the end of that section there shall be substituted "shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding fourteen years";

( d ) in section 12, "piracies, felonies, robberies, and" shall be deleted.

2. In section 8 of the Carriers Act, 1830 (under which the protection given by that Act to common carriers does not extend to the felonious acts of their servants) for "the felonious acts" there shall be substituted "any theft, embezzlement or forgery".

3. In the proviso to section 30 of the Town Police Clauses Act, 1847 (which provides that a person liable to a penalty under that section for wilfully setting or causing to be set a chimney on fire shall not be exempt from liability to be indicted for felony) for "felony" there shall be substituted "any other offence".

4. In section 10 of the Offences against the Person Act, 1861 (which provides for the trial of murder or manslaughter where any person dies in a country after being feloniously stricken out of it or vice versa) for "feloniously", in both places where the word occurs, there shall be substituted "criminally".

5. In section 6, subsection (2), of the Criminal Law Amendment Act, 1885 (as amended by section 9 of the Criminal Law Amendment Act, 1935 ) (as to defilement of young persons) "of or above the age of fifteen and" shall be deleted.

6. (1) The Larceny Act, 1916, shall be amended in accordance with the provisions of this paragraph.

(2) Section 35 (accessories and abettors) shall be repealed.

(3) Section 37 (4) shall be deleted.

(4) Section 41 (3) (arrest without warrant) shall be deleted.

(5) In section 44 (1) (verdict), "acquit the defendant of robbery and" and in section 44 (3), "acquit the defendant of stealing and shall be deleted.

7. The Criminal Law Amendment Act, 1935 , shall be amended as follows: in section 2 (1) and 2 (2) (defilement of girl between fifteen and seventeen years of age), "of or over the age of fifteen years and" shall be deleted.

8. In the Criminal Justice Act, 1990 , paragraph 4 (m) of the First Schedule shall be deleted.

9. Section 19 (a) of the Criminal Law (Rape) (Amendment) Act, 1990 , shall be amended by the deletion of "section 169 (b)" and the substitution of "section 169 (3) (b)".

10. In section 3 (c) and (d) of the Criminal Law (Sexual Offences) Act. 1993, "of or over the age of 15 years and" shall be deleted.

Section 14.

SECOND SCHEDULE

AMENDMENT OF DEFENCE ACT, 1954

1. In section 2 there shall be deleted—

( a ) "the expression 'military convict' means a person under sentence of penal servitude passed by a court-martial", and

( b ) "the expression 'penal servitude prison' means any prison or place in which a person convicted and sentenced to penal servitude by a civil court may be lawfully confined;".

2. In section 40 (2) "military convict," shall be deleted in each place where the words occur.

3. In section 50 (2) "penal servitude or" shall be deleted.

4. In sections 120 (3), 206 (1), 222, 223 (1), 223 (2), 223 (3), 223 (4), 230 and 240 (1) (i) "penal servitude," shall be deleted.

5. In sections 126 (2) (i), 127, 131, 135 (1) (b), 145, 149, 151, 154 (1), 155 and 158, "imprisonment for a term not exceeding seven years" shall be substituted for "penal servitude".

6. In sections 129, 130, 132, 135 (1) (a), 169 (3) (a) and 169 (3) (b) "imprisonment for life" shall be substituted for "penal servitude".

7. In section 192 (2) (d) "for a term of two years" shall be inserted after "imprisonment" in place of the words "for any term not exceeding two years" (inserted by paragraph 4 (h) of the First Schedule to the Criminal Justice Act, 1990 ).

8. In section 208 (2) (a) ", without hard labour," shall be deleted and "or, in either case, to be fined" shall be inserted after "twenty-one days".

9. In item A of the Scale in section 209 (1) (as amended by paragraph 4 (j) of the First Schedule to the Criminal Justice Act, 1990 ) after "Imprisonment for life" there shall be inserted "or any specified period" and items B and C shall be deleted.

10. In section 209 (5) "penal servitude or" wherever occurring shall be deleted.

11. In item A of the Scale in section 210 (1) (as amended by paragraph 4 (j) of the First Schedule to the Criminal Justice Act, 1990 ) after "Imprisonment for life" there shall be inserted "or any specified period" and items B and C shall be deleted.

12. In section 210 (6) "imprisonment for a term exceeding two years" shall be substituted for "imprisonment for life or penal servitude" wherever occurring.

13. In section 212 "be served concurrently with the term then unexpired of the former sentence and on completion of either sentence any balance of the other sentence shall be served" shall be substituted for "not exceed such term as will make up a period of two consecutive years including the term then unexpired of the former sentence".

14. In section 223 (7) "penal servitude," (where occurring after "is sentenced to") and ", and where the sentence for such other offence is a sentence of penal servitude, then, whether or not that sentence is suspended, any previous sentence of imprisonment or detention which has been suspended shall be avoided" shall be deleted and "any sentences of" shall be substituted for "imprisonment or" (where occurring after "the aggregate term of").

15. Sections 224 (2) (c) (iii) and 228 shall be deleted.

16. In section 229 the following subsection shall be substituted for subsection (1):

"(1) Where a sentence of imprisonment is passed by a court-martial and confirmed, the military prisoner shall undergo sentence as follows:

( a ) if the sentence is for a term exceeding two years, he or she shall, as soon as practicable, be committed to a public prison to undergo sentence;

( b ) if the sentence is for a term not exceeding two years, he or she shall undergo sentence either in a military prison or detention barrack or in other service custody or in a public prison, or partly in one way and partly in another.".

17. In section 229 (8) ", kept to hard labour" shall be deleted.

18. In section 234 "an offence" shall be substituted for "felony" and ",with or without hard labour," shall be deleted.

19. In section 239 (1) "military convict or", "convict or" and "convict, "and in section 239 (2) "a military convict or" shall be deleted.

Section 16.

THIRD SCHEDULE

ENACTMENTS REPEALED