I move: "That the Bill be now read a Second Time."
I want first to say that there were a number of typographical errors in my opening statement which had already been printed which had to be corrected. The corrected version has not yet reached the House but I understand it will be here in five to ten minutes and will then be circulated to Deputies.
In the two days since this Bill was published it has attracted a good deal of comment. Against the background of what has been and is being alleged, I will begin by saying the following:
First: The Bill does not—I repeat not—transfer to a defendant the onus of proving that he is innocent, or the onus of proving anything at all.
Secondly: It does not provide, or mean, that just because a senior Garda officer testifies to his belief that a person is a member of an illegal organisation, the courts must convict unless the defendant proves him wrong. The court need not convict even if the defendant adduces no evidence at all, let alone convincing evidence to counter the Garda officer's testimony. What the Bill provides is that the officer's testimony will be admissible evidence and, as with any evidence tendered to the court, it will be for the court to determine what weight is to be attached to it in the light of all the circumstances of the particular case.
Thirdly: It does not impose any prohibitions on newspapers, radio or television reporting, or any other reporting, that are not in the law already; and what it provides, in relation to statements likely or intended to interfere with the course of justice, is no more than a statutory restatement of part of the existing law governing contempt of court.
Fourthly: It does not provide, or mean, that a casual bystander or innocent onlooker at a meeting that is intended to interfere with the judicial process will be committing an offence, and this is so, and emphatically so, for the simple reason that, as part of the criminal law, the relevant provision is subject to the ordinary—and in this instance, I should say, elementary and fundamental—rule that a necessary ingredient in a criminal offence, and an ingredient that must be proved by the prosecution, is guilty intent or mens rea as it is called, unless the particular statute otherwise provides. And this is so fundamental that it is neither necessary nor possible to keep on restating it in Bills and to restate it in particular cases would only imply that it was not applicable in others, which in fact it is.
It is a strange commentary on the times in which we live, and on the abdication of responsibility by a number of people who should know better, that little more than 48 hours after a Government Bill designed to deal with a grave situation has been published, it should be necessary for me, as promoter of the Bill, to come into this House and to begin by trying to catch up with some of the erroneous, not to say irresponsible, statements that have gained currency.
We have heard quite a good deal in recent days about free speech. I would invite the House to consider what free speech is supposed to mean in the eyes of some of its defenders. In an editorial criticising this Bill in The Irish Times of yesterday 28th November the following appeared:—
Unfortunately, Mr. O'Malley will have a good start as far as the Dublin newspapers are concerned. The National Union of Journalists has decided on a 24-hour stoppage commencing at 8 a.m. today.
What are the facts? The Bill was published on Monday, without comment from me. The evening papers had it on Monday and the dailies yesterday—several editorials were written on it. Today, Wednesday, is my first opportunity to speak on the Bill and the daily papers will be back tomorrow and so will be able to comment on what I have said, if they so wish. What then, precisely, is meant by my being given a good start? I suggest that this House has an interest in noting the only meaning it can possibly have, and that is that the 24-hour stoppage by the union has meant that there has been that much less time for certain gentlemen to misrepresent the facts and to try to whip up hysteria before I, today, get the chance to come into this House and speak on the Bill. It is time that people, and especially Members of this House, take note of what is happening, as disclosed by this clearly-revealed wish that the public should be brainwashed before they are to be allowed to hear the facts.
The purpose of the Bill is to amend and strengthen the law dealing with unlawful organisations so as to enable more effective action to be taken in respect of membership and activities of such organisations. Experience has shown that there are serious defects in the existing law on this subject, particularly in so far as concerns proof of membership. Deputies will recall that I dealt with this matter at some length in this House on 16th December last on the motion for the Adjournment. I referred on that occasion to the allegations then being made, and frequently repeated since, that not enough is being done to deal with people who hold themselves out to be members of unlawful organisations. I spelled out in detail the very real difficulties under the law as it stands and I regret to have to recall that on that occasion I was shouted down by some Deputies opposite— so much so in fact that Deputy Desmond interjected more than once to say that I should be allowed to continue what I had to say. I returned to the subject again on the occasion of the debate on the Estimates for my Department on 12th April, 1972.
The problem is that we have people who are self-confessed leaders and members of unlawful organisations but who, under the existing rules of evidence, cannot, save in exceptional circumstances, be convicted. I want at this point to make it clear that when I talk of unlawful organisations, I am not confining my remarks simply to the IRA in its different variations but I am including also organisations based in the Six Counties which are clearly unlawful under section 18 of the Offences against the State Act, 1939. These people have been able to broadcast their activities and propagate their beliefs and objectives in a way which has caused grave concern to our own people and to peoples in other countries whose attention has been increasingly focussed on Irish affairs in recent years. The duty of the Government in this situation is clear and beyond question. If the existing law is inadequate to enable the community to protect itself against those who are dedicated to the overthrow of the democratic institutions of the State, including this Parliament, then the Government must seek to have the law amended in such a way as to make it adequate.
Nobody should be under any illusion about the true nature of the problem with which this Bill is designed to deal. The men of violence at whom the Bill is aimed are the enemies of society. These people like to represent themselves in glowing terms as the heroes and martyrs of a holy war waged in the name of what they call patriotism. The reality is very different, very ugly and very sordid. The gospel of these people is a gospel of hatred and malice, and their only language is the language of physical force. The citizens of Dublin saw in no uncertain way last weekend how that brand of "patriotism" finds expression in the maiming of the innocent and the wreaking of indiscriminate destruction on property.
The issue raised by the existence and activities of these unlawful organisations is stark and fundamental. The issue is whether we are to be ruled by the democratically elected Government and Parliament of this country or by a small unrepresentative and self-appointed group who, without any semblance of a mandate from the electorate, have arrogated to themselves the right to carry on a campaign of violence and bloodshed, and to dictate the policies to be pursued, in the name of the Irish people. What we as a community now have to decide—and specifically what the Members of this House have to decide—is whether our affairs are to be conducted according to policies decided on by the elected Government and Parliament or whether we are to succumb to conditions of anarchy and mob rule in which a minority that has organised itself into private armies can terrorise and impose its will on the law-abiding majority.
The policies and methods of the men of violence are rejected by the overwhelming majority of the people of this country as well as, I believe, by the overwhelming majority of the Members of this House. I think I am correctly interpreting the mood of our people when I say that they have more than enough both of the threats and of the actions of the members of these subversive groups. Unfortunately the Government's efforts to put an end to the activities of these elements have been increasingly frustrated by the defects in the existing law to which I have already referred. That is why this Bill is necessary and that is the background against which I now ask the Members of this House to examine calmly and rationally the changes in the law which the Bill proposes.
I turn now to the detailed provisions. The purpose of section 2 is to strengthen the hands of the Garda in their investigation of certain serious criminal offences which are, for the time being, scheduled offences for the purposes of Part V of the Offences against the State Act, 1939. These include offences relating to malicious damage, explosives, firearms, et cetera. The section deals with the situation where a member of the Garda Síochána has reasonable grounds for believing that an offence which is a scheduled offence is being or was committed at a particular place. At the time of the offence or soon afterwards, he finds a person at or near the place of the offence. The member has reasonable grounds for believing that that person knows that the offence is being committed or knew at that time that it was being committed. The section enables the member, after informing the person of his belief, to demand of the person his name and address and an account of his recent movements. If the person concerned fails or refuses to give the information, or gives information which is false or misleading, he will be guilty of an offence punishable as mentioned in the section.
It is reasonable that a person found in such circumstances should be under a legal duty to help the Garda by giving his name and address and an account of his recent movements. The situation to which this section relates is, as the terms of the section make clear, a serious one and one in which, in my view, every law-abiding citizen would not only be willing but anxious to assist the Garda Síochána in their duty to apprehend persons responsible for serious crime. The section involves a minimal interference with personal liberty, an interference which, I suggest, is not only justified but necessary if the Garda Síochána are to discharge the duties which the community expect them to discharge.
Section 3 is designed to facilitate the proof of a charge of being a member of an unlawful organisation contrary to section 21 of the Offences Against the State Act, 1939. It is not necessary to argue again the harm done to this country by the existence and activities of these organisations or the importance of bringing their members to justice. But difficulties have consistently arisen in that persons who are in fact members—and, indeed, important members—of an organisation cannot be convicted of the offence because not enough admissible evidence is available to prove their membership beyond reasonable doubt. This may be the situation even though the fact that they are members is well-known to their associates, to the police and even to the general public. Most of these people are, of course, content, and even proud, that their membership should be widely known, but at the same time they and their advisers take care to avoid— and have for the most part been successful in avoiding—going so far as to provide what they recognise would be admissible evidence to convict them of the offence.
The section seeks to remedy this situation by means of two provisions for the admissibility of evidence of membership. The first—in subsection (1) (a)—provides that any statement or conduct of the accused implying or leading to a reasonable inference that he was a member of an unlawful organisation at a material time shall be evidence that he was a member at that time. So far, the subsection is in accordance with the ordinary common law rules of evidence. A person's conduct speaks for itself and may be proved in evidence both in civil and in criminal cases and inferences may be drawn from it. As far as statements are concerned, an admission by an accused person—like that of a party to civil proceedings—is evidence against him, the reason being the obvious one that what a person has said against himself is likely to be true. What is new is the provision in paragraph (b), which defines "conduct" for the purpose of the subsection as including an omission by the accused to deny published reports that he was a member.
However, it is important to note that this definition is applicable only in the context and for the purposes of paragraph (a) and it follows that an omission to deny such reports is to be evidence only if the omission was such as to imply or lead to a reasonable inference that the accused was, in fact, a member. If the accused has not seen or heard of the reports, obviously his failure to deny them will have no significance. Again, he may think it best to ignore a false report in order to avoid drawing further attention to himself or simply because he is unwilling to take the trouble to deny it. But a moment's thought will show that there are some reports which any reasonable person would naturally deny if they were false, as when a respectable person is reported to be acting dishonestly or in any other manner which he himself would regard as reprehensible. In such a case his omission to deny the report will ordinarily, as a matter of common sense, imply or lead people to infer that the report is true. This principle applies with particular force to the offences under consideration, for there are some people who have been so often referred to in published reports as being prominent members, or holders of important offices, in unlawful organisations that they must be regarded, by reason of their failure to deny the reports, as holding themselves out as being members.
This is the principle which underlies the provision in paragraph (b) and, in the Government's view, amply justifies it. If anybody to whom the paragraph would apply should fear that he might suffer injustice because of a false report, his remedy is to deny the report, though the paragraph takes care to add that a denial shall not by itself be conclusive, since the denial may be purely formal and such that nobody could give it any credence.
If, for instance, a person is regularly invited to give in detail the views of an illegal organisation on some statement issued by the Government five minutes previously, a formal denial that he speaks for those for whom he is obviously speaking is hardly likely to carry any weight.
The second provision to which I have referred is in subsection (2) of section 3. The effect is that if a member of the Garda Síochána, not below the rank of chief superintendent, in giving evidence in proceedings for the offence of membership of an unlawful organisation, states that he believes that the accused was at a material time a member of such an organisation, the statement will be admitted as evidence of membership. This subsection extends the common law rules of evidence, under which a witness's opinion as to a fact is admissible evidence to prove the fact only in certain circumstances—in particular, in the case of an expert witness. But in the view of the Government the provision is justified because of the evil against which the law as to membership of an unlawful organisation is directed and because there will be no possible danger that an innocent person will suffer injustice as a result of the provision.
If one looks at the realities of the situation, the fact that a senior officer has formed the opinion that the accused was a member of the organisation, and the fact moreover that the officer is prepared to swear to his belief in court, make it virtually certain that the accused was indeed a member. His opinion may be wrong but there are complete safeguards. First, the defence will be able to cross-examine the officer as to the grounds for his belief; and if the cross-examination shows that the officer has inadequate grounds for his belief, or if his credibility as a witness is shaken, then obviously his evidence will lose most or all of its value, and the judge would, in the exercise of his general power, direct the jury to ignore the evidence or, if there is no jury, himself ignore it.
I emphasise this fundamental point because it has been suggested, wrongly, that the chief superintendent's evidence is conclusive if the defence calls no evidence and—so it is alleged— some defendants call no evidence as a matter of principle. It is a fact that some defendants call no evidence—it is a situation where principle and expediency happen very often to coincide—but refusal to call evidence does not mean refusal to cross-examine witnesses and not only in theory but in practice the chief superintendent will be subject to cross-examination and, I have no doubt, severe cross-examination. That is how it should be. Additionally, of course, where he wishes to do so, the accused will be able to give and call evidence—if he has any—denying his membership and it will be only if the court is satisfied beyond reasonable doubt that the accused was a member that it will be possible for him to be convicted. In view of certain criticisms that have been made of the section I must emphasise that it does not—and I repeat not—alter or affect the principle that an accused person is innocent until he is proved guilty. Moreover, the section in no way changes the rule that the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. There is a precedent for such a provision in section 26 of the 1939 Act, which reads as follows:
Where in any criminal proceedings the question whether a particular treasonable document, seditious document, or incriminating document was or was not published by the accused (whether by himself or in concert with other persons or by arrangement between himself and other persons) is in issue and an officer of the Garda Síochána not below the rank of Chief Superintendent states on oath that he believes that such document was published (as the case may be) by the accused or by the accused in concert with other persons or by arrangement between the accused and other persons, such statement shall be evidence (until the accused denies on oath that he published such document either himself or in concert or by arrangement as aforesaid) that the accused published such document as alleged in the said statement on oath of such officer.
To sum up, the argument for section 3 (1) of the Bill is that a person who deliberately remains silent in the face of false reports about his membership of an unlawful organisation is not in a position to complain of an injustice when he has the power— and some would say the duty—to avoid by denying the reports, and the argument for section 3 (2) is that it does no more than take account of the facts of the situation and could cause no injustice. It is important to remember that a senior officer of the Garda Síochána who gives evidence of his belief will, in the nature of things, be a man of considerable experience whose opinion will not be stated lightly. He will be a man whose duties over a long number of years will have made him an expert on that on which he speaks. In addition, he will by experience have had a unique training in sifting and evaluating information given to him by his colleagues or subordinates or obtained by him from other sources. Finally, as I have already pointed out, his expertise may be tested and his credibility attacked in the cold light of cross-examination.
Section 4 of the Bill makes statutory provision for the punishment of conduct constituting an interference with the course of justice. The safeguarding of the course of justice is, as every Member of this House is well aware, vital for the survival of democracy and civilised life generally. Yet it is a remarkable fact that in recent years some people have claimed a right to interfere with the proper course of justice by statements, protest meetings and even demonstrations outside courts in order to enforce on the courts, and on the officers of the law, their own opinions as to whether particular legal proceedings are rightly instituted or as to what should be the result of the proceedings. The section declares, in sub-section (1) (a), that:
Any public statement made orally, in writing or otherwise, or any meeting, procession or demonstration in public, that constitutes an interference with the course of justice shall be unlawful.
Subsection (1) (b) contains a definition of an "interference with the course of justice", as follows:—
A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if it is intended, or is of such a character as to be likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings (including a party or witness) as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome.
Subsection (2) of section 4 makes it a specific offence to make any statement, or to organise, hold or take part in a meeting, procession or demonstration, which is unlawful under the section and it goes on to provide for the penalty.
While the section largely speaks for itself, there are a few aspects which should be mentioned. Firstly, a "statement" will be within the prohibition imposed by the section only if it is a "public" one, and, similarly, a "meeting, procession or demonstration" will be within the prohibition only if it takes place "in public". Thus the section will not apply to things said in private conversation or to private gatherings.
Secondly, the essence of the test laid down in paragraph (b) is that the conduct in question is intended or likely to interfere with the proper consideration, by the person or authority concerned with the proceedings, of whether or how he should institute, defend or conduct them. The person or authority may be the Attorney General or the Garda Síochána when considering whether to institute a prosecution or civil proceedings, the judge, the jury, the officers of the courts, the parties, their legal advisers or the witnesses. Any conduct intended or likely to prevent or discourage any of these persons from properly carrying out his duties, from putting forward or defending his interest in any way that is proper, or from telling the truth in his evidence will constitute an interference with the course of justice.
The provisions of the section reenact as accurately as possible that branch of the law of contempt of court which relates to comments on a case that is sub judice. Such conduct is ordinarily dealt with summarily by the court in relation to which the offence of contempt is committed. It might therefore be asked why it is necessary to create a specific statutory offence to deal with this kind of conduct. The answer is that the extent to which these activities have been carried on in recent years, their increasing seriousness and the fact that they are frequently planned and organised for the clear purpose of subverting justice in relation to members of unlawful organisations make it right, in the Government's view, to prevent the activities by making them the subject of a statutory offence that can be prosecuted in the ordinary way and that is punishable with suitably severe penalties.
It is, moreover, right as a matter of principle that persons charged with this kind of conduct should not be left to be dealt with summarily by and on the initiative of the court concerned, which indeed may be, and often is, totally unaware of such activities, but by means of ordinary criminal proceedings. This will mean, on the one hand, that the ordinary processes of law enforcement will apply, with the initiative being taken by the Garda Síochána where the circumstances so warrant and it will mean, on the other hand, that the prosecution will have to prove their case in the usual way and prove it beyond reasonable doubt. However, subsection (3) provides that "Nothing in the section shall affect the law as to contempt of court", because it is obviously right that it should still be possible for cases to be dealt with summarily under the present procedures, if that appears to the courts to be proper.
Section 5 of the Bill is technical. It extends the definition of "document" in section 2 of the Offences Against the State Act, 1939, so as to cover some kinds of documents which are not, or may not be, within the definition in that section—which simply provides that the word "document" includes a book and also a newspaper, magazine or other periodical publication, and also a pamphlet, leaflet, circular, or advertisement. Section 5 of the Bill extends the definition to certain articles which in effect are of the nature of documents but which may not be regarded as such in ordinary language. In particular, the new definition takes account of recent inventions for the purpose of recording sounds, such as discs and tapes, or of embodying visual images, such as films and microfilms. The definition relates to various provisions of the 1939 Act, in particular the provisions of sections 10 and 12 concerning documents emanating from unlawful organisations and treasonable or seditious documents.
As I said at the outset, there has already been considerable speculation and comment in the news media concerning the provisions of this Bill. Much of the comment has been ill-informed. Some of it, indeed, has been palpably misleading. I want to say that there is no threat to individual rights and freedoms in this Bill. The proposals for amendment of the law which are contained in the Bill are essential for the protection of society and the institutions of the State. Nobody need feel any apprehension about the provisions of the Bill except those organisations and their members who are committed to the attainment of political objectives by violent means and who want to be free to engage in activities that are dedicated to the destruction of the Parliament, Government and institutions of the State.
I do not relish the task of preparing and introducing this kind of legislation at a time when there is so much other important work waiting to be done in my Department, work that would be of direct benefit to the ordinary people of the country. I introduce this Bill, not because I want to, but because circumstances demand it, and are clearly seen to demand it, and so I ask the House to support it.