I beg to move to delete Sub-section (4) of this Section. That is the sub-section that gives power to a judge to sentence to flogging. Somebody has expressed a hope that there should not be very long speeches made on these amendments. I have said nearly all I have to say on this question. I oppose the principle of flogging, and I therefore oppose it in its application to this Bill. I think it is not a means of effectively preventing the crimes which are intended to be prevented. It does not deter and it does not make a good citizen out of a bad citizen. All it does is to satisfy the elemental passion of man, called vengeance. When the State takes upon itself to become an instrument for this purpose, simply that it may wreak its vengeance upon an offender, it is bad for the State. On that ground I oppose this sub-section and move its deletion.
DÁIL IN COMMITTEE. - PUBLIC SAFETY (PUNISHMENT OF OFFENCES) TEMPORARY BILL, 1924.—(THIRD STAGE).
I, too, have said pretty nearly all I have to say on this sub-section, and in particular on the matter of prescribing this particular penalty for these offences. The amendment which the Deputy has moved is practically identical in effect with the amendment which follows it on the Order Paper, certainly with regard to one of the offences mentioned. The ordinary law, for which the Deputy has so much reverence, prescribes that a judge may impose this penalty of flogging for the offence of robbery under arms. So far as that offence is concerned the only difference between this Bill and the ordinary normal law is that instead of the permissive or enabling provision of the existing law there is this change, that under the Bill it runs that the Court shall, unless it is satisfied that there are special circumstances in the case which constitute a mitigation of the offence, impose a penalty. So, the difference is not one of principle, but one as between "may" and "shall, unless there are mitigating circumstances," not a very fundamental difference.
The effect of the subsequent amendment would practically be the same, that is, to leave the law as it stands, to leave a permissive and enabling power to the judges to impose this penalty. Neither of the amendments would have the effect of abolishing the penalty of flogging for robbery under arms, because that penalty is embodied and enshrined in the existing law. The only effect of the amendment that the Deputy has moved, and it is exactly the same as the effect of the subsequent amendment, would be to leave the permissive power. Now, as between the statement that the Court may impose this penalty, if it thinks fit, and that the Court shall, unless it is satisfied that there are circumstances which constitute a mitigation of the offence, impose that penalty, there is really little to choose. I prefer the latter, and standing over that preference, I oppose the amendment.
I do not think the Minister has made any case for the inclusion of this sub-section in the Bill. If it is only a question of the use of "may" or "shall," a question of preference between one or the other, I cannot see that there is any case for the inclusion of this sub-section.
Mr. O'HIGGINS
It is a question of making a case for the amendment.
It is a case of defending the Bill as it is, or making a case, if you wish, against the amendment. I do not think the Minister has made any case against the amendment. I do not think he could make any case against it. Really, I do not think he can make a case for such a measure of punishment as flogging. He may be satisfied that if a criminal commit an offence he ought to be punished. We will agree that a criminal should be punished, but after all any punishment inflicted on any criminal ought to be considered, not only from the point of view of punishment for an offence committed, but from the point of view of the effect on the individual; the effect on the mind of the criminal as well as on the body. I am not inclined to think that flogging as a punishment would have such an effect on the mind of the individual who commits the offence that it will be a preventative in future. In my view it is really savage treatment which would tend not to raise the mentality of the individual who committed the offence, but rather to lower it, and in that sense it would really not be a preventative nor a deterrent against crime. It would rather lower the standard of mentality in the individual and have a reactionary effect, the opposite to what the Minister hopes it really would have.
The other day, when this Bill was introduced I said a few words upon it, and what I am going to say now is more or less a repetition of what I then said. I agree with Deputy Baxter that, of course, for an ordinary criminal who is only beginning his criminal career, flogging would be most undesirable. But there are people who are beyond that stage, and who are irreclaimable. In spite of what Deputy Johnson, who evidently has a very good opinion of mankind, has said, I am afraid there are some criminals who are entirely irreclaimable. To my mind, to reach such persons as these who understand nothing else, it is desirable that the Section should stand. These men understand nothing else. To them the punishment of imprisonment is nothing. To these men flogging would be a deterrent and flogging should be used. I mentioned the other day that in addition to robbery, which is very rife at the present time, there are complications that require to be dealt with in a very severe manner. If not, there may be very serious results all over the country. To the lonely man or woman living by himself or herself these times are very terrible.
No doubt it is a matter of common knowledge now that there are gangs of ruffians going about the country who have not yet been made amenable to the law. The Minister for Home Affairs will be aware of that. A lot of these people are known, and some of them are known to be desperate characters by whom nothing but a very severe punishment would be understood. Within a few years I have known of three or four cases, and there are many more, where these gangs have entered the houses of lonely people, and have committed offences that entail severe punishment. They work in gangs and not separately. For such people there is nothing for it but the "cat." They understand the "cat." They would not understand penal servitude to the same extent. They would sooner have penal servitude than the "cat." That is generally agreed, I think, and I have read that they fear the "cat" more than they do any imprisonment or penal servitude.
I am not a very merciless person, but I think that for an offence like that against aged, defenceless women, who are living in lonely districts, and who have no one to defend them, there is no other punishment. There has been a case quite lately, not far from my own district, of a most deplorable kind. I say again for such criminals there is nothing like the "cat." They will understand that. They will not understand anything else. I hope that the Minister for Home Affairs will be able to introduce something that will adequately deal with these cases. I would like to see set out in the schedule something that would meet these cases. There is nothing but the "cat" to deal with these offences in an adequate manner. I refer to offences that must be put down at once. To my mind there is no way of doing that but by introducing in this Section something that these criminals will understand. It is for that reason I propose to vote against this amendment. I am firmly persuaded that if serious cases which are becoming very prevalent, and which are not generally known, because the people do not tell about them unless it is unavoidable, are to be put down, it is necessary that this punishment of the "cat" should be inflicted.
Deputy Wolfe has made a case in favour of flogging for certain offences. He began by saying he did not believe that flogging should be inflicted on persons unless they were irreclaimable. That is to say, not for first offences but only when it was being proved that the ordinary punishment of imprisonment was not effective. On his own case I claim his vote. Deputy Wolfe has been commended to the world as a Deputy carrying great weight, and having much experience, whose judgment should receive great consideration. He has not, however, taken very great care in reading the Bill, or if he has, he has not considered the effect of his argument upon the Bill. He does not think that the penalty of flogging should be applied to the first offence of robbery under arms. He does not think that the penalty of flogging should be applied in the first offence in the case of arson or burnings.
I am not so sure about that.
Oh! Then we learn as we go along that for the burning of property, even for the first offence, the penalty of flogging is not merely justified but required. It is a greater crime to burn a house or a rick than to commit robbery under arms. Is that the position?
I mean to say that such a case as that should be left optional with the Judge.
Then we are getting along nicely. There is to be an option. The Judge may have the power, or should be empowered with the option, of inflicting the flogging penalty in cases of arson, even for the first offence. Will the Deputy say how many offences of robbery under arms should be committed before the penalty of flogging would be inflicted? Is it for the first or the second or the third or the fourth offence? I have not seen any amendment in the name of Deputy Woulfe indicating that the particular offences which he has described or hinted at, are to be punished by flogging. So, notwithstanding his desire to have that particular offence punished by flogging, he has not been careful to try to embody that in this temporary and exceptional legislation. Is it because he is satisfied that it already exists in the ordinary law?
May I, as a matter of explanation, say that the reason I did not put down an amendment is that for the last five weeks I have been laid up.
But since the last time when this was discussed in the Dáil there have been opportunities for putting amendments. The same case was made on the last occasion, and yet the Deputy has not thought it well to put down an amendment, presumably because he recognised the punishment of flogging may be applied to such offences as he described. Notwithstanding the fact that the punishment exists, the offences continue. The fact that flogging may be a punishment in such offences has not prevented the offences taking place. On every count, Deputy Woulfe has made a case for my amendment. There is, of course, more than one question involved in this Section. The Minister has said that the penalty of flogging may, under the ordinary law, be applied in cases of robbery under arms, and that the difference which this Section brings about is that it is mandatory upon the Court, unless special circumstances exist, to inflict this penalty.
He did not say whether the penalty of flogging may be applied under the ordinary law in cases of arson. I take it from his silence that it does not. So the ordinary law is altered in that respect, and it is made mandatory in both cases. On account of the fact that I move for the deletion of this Section, because it imposes as a mandatory punishment the penalty of flogging, I need not be twitted on the ground that flogging is applicable in similar cases under the ordinary law. I would abolish the punishment even under the ordinary law if I had the opportunity. I object to the punishment, not solely or chiefly because it is cruel and unjust to the prisoner, but because it is harmful to the common conscience of the community, whether the community feels it or not.
One might ask: "Why make these exceptions?" If it is a good thing to inflict this kind of physical torture upon a man who has sinned or committed crime, and you want to make him feel the enormity of his offence in his body, why do you hesitate about imposing a similar penalty upon a man whose state of health is delicate or who is old? Surely you may go the whole hog in the matter? If you are going to tear the man's flesh, you ought not to hesitate about his age. If society, in its corporate capacity, is prepared to act the brute, to deliberately move in an organised fashion with all the resources of the State at its disposal, and to take an individual and beat him with thongs after disabling him, disarming him, tieing him up, and putting him into a position where he is absolutely helpless, and then considers that that is a good thing for Society, I am undone and I have no further answer to make. I cannot think it in any way justifiable at this stage of the world's history, that we should, as an organised body, attempt to treat a human being in that fashion, no matter what the crime.
It would be far better to take his life, because you prevent him committing similar crimes again. It would be far better to inflict capital punishment, because it is an absolute deterrent against that man committing that offence again. This punishment does not prevent the man committing the offence again. He may come out and do the same thing over again, as has happened in many cases after flogging has been administered. But you are hurting the moral sense of the community and you are preventing the development of that moral sense.
Question?
You may question it. You are entitled to do that. I am speaking to the question, if that is what you mean. You are, I say, hurting the moral sense, and it is on that ground that I press the amendment.
I would like to support this amendment, not so much from the humanitarian point of view— although I believe the humanitarian point of view ought to be considered— but from the practical point of view. I look upon this matter from the point of view of the effect of flogging and the question of whether flogging will have the effect of preventing crime. I think the history of modern civilisation and modern legislation is contrary to the imposition of such punishment. I think the main reason why this punishment has not been inflicted is that it has not been found to be a deterrent in preventing those upon whom it is inflicted from committing those crimes. I could understand this punishment last year in the conditions which existed in the country, the great difficulty of apprehending criminals, and the uncertainty, when they were apprehended, as to whether they could be retained in prison. It might have been necessary in such a period as that to impose a penalty which would be certain and quick. Under present conditions, however, I do not think such a penalty is necessary. From my knowledge of humanity, and from history, I do not believe that it has been proved that the flogging of criminals has had the effect of preventing crime or of frightening criminals from committing the same crimes again.
It would be much more advisable if the Minister, and the Department for which he is responsible, devoted their attention more to the actual catching of criminals, and making the executive arm of the law much more effective, and more certain in its application. We know that under the Bill a man can be flogged for committing the crime of arson. That crime is one from which the farming community has suffered to a great extent. It would be better for the peace of the community if we could be sure that the forces of the law would catch criminals. At present the trouble is that criminals are not caught. There may be ten crimes of arson committed and the chances are that not one criminal would be caught for any of those crimes. It would be better if the forces of the law and the Civic Guard, about whom we hear so much, would devote their attention to bringing those who commit serious crimes to justice, rather than be devoting so much of the attention they are giving at present to catching farmers who have no lights on their carts at night, and hurrying people out of public houses because they are five minutes after closing time. I think that would be a more effective measure of dealing with crime in this country than by inflicting a very severe punishment upon one man and hoping by that to deter other members of the community and to frighten them from committing some such crime.
I desire to support this amendment, because I am opposed to flogging as a punishment which will deter people committing the crimes mentioned in the Schedule. The Minister and every member of this Dáil must recognise, and I am sure will recognise, that we are dealing with a different type of criminal order now from what were known as criminals in pre-war days. During the critical period of the struggle with England respectable men, and others, were encouraged to do things that we now look upon as crimes. They were encouraged to do those things with a certain object in view, and now they find it very difficult to understand why people who encouraged them to do these things, which were not then considered as crimes, are going to punish them under this measure that we are dealing with. That is one reason which has added to the number of criminals and added a class unheard of in pre-European war days.
I think we ought to hear what those things were which were then encouraged.
I think it is well known, and the President knows it quite well, apart from what we might think of the question to-day, that robbery was encouraged, or orders given for certain robberies to take place during the struggle with England.
Certainly not. I do not subscribe to that. No such order was ever given or encouraged, and I can, if the Deputy so wishes, give him particulars of a case where the strongest possible action was recommended, by the then Minister for Defence, in the case where a man made the mistake of making such an experiment as that. At no time was such a thing ever encouraged, recommended, or countenanced.
I might perhaps use the words "Commandeering or requisitioning of certain Government funds," but that, at any rate, appears to be robbery, and that is the way it is dealt with under this Bill. There is no doubt about that. Post offices, banks, and other places were robbed under the orders, and perhaps under the name, of the then existing Republican Government.
If they were it was not with the order or knowledge of the Cabinet or of Dáil Eireann. I can make that statement from my own knowledge. Never at any time was it done with the knowledge, consent or countenance of anyone in the Dáil Cabinet or even, as a Deputy behind me remarks, of anyone in Sinn Fein.
I quite accept the explanation given by the President.
The President has not given an explanation. The Deputy must use very clear words in this matter. It is a very important question. The President has not given any explanation. He said the thing had not happened, which is quite a different thing.
I will leave it at that.
I would like the Deputy to be satisfied that I am stating what is known to many people—to the members of Dáil Eireann, to members of the Cabinet and, I believe, to the majority of our followers, and the vast majority of those who subscribed to what we were doing at that time.
I am stating that it was done, at any rate, by members of the Army, and the President's statement, perhaps, will clear the matter, and I will leave it at that. It certainly was done. Whether it was done under orders, or in the name of a certain authority then existing, is a matter for the people and those here to judge. At any rate, I want to come to the point that we are not dealing with a criminal of the type that was in existence in the pre-European war days. I am not opposing—and I want to make that clear to the Minister and everyone else—this punishment, because I have no desire, far from it, to protect people who are committing the most horrible crimes in the country at the present time. Some of these crimes have not been reported and are, perhaps, not known either to the Civic Guard or the military authorities. I have in my mind two or more revolting cases that occurred here in recent times, and where certain men have been arrested and will be later on charged with the commission of a number of offences in which, perhaps, the lives of one or two people are involved. I would prefer that individuals, such as those responsible for the commission of crimes of robbery under arms, should be sent to some place of detention where they would not be able to get away, and instead of getting good healthy food, and having people to wait upon them, they should get whatever they would be entitled to, considering the type they are, and where they would be compelled by the State to do a certain class of useful work to pay for their detention in that Institution. That is the view I take of punishment, and I think it is a type of punishment that will deter those people from committing such crimes as those to which I refer. That is why I support this amendment.
I would like to say that this subject has so far received from the critics of the proposals of the Government an examination which the circumstances of the time did not warrant. Nearly every Deputy who has spoken in favour of the deletion of this Sub-section dealt with humanity, with humanity in the abstract, and not with the particular circumstances of the days in which we are living, and not with the particular class of persons whom it is proposed here to deal with. Now the facts are—that people's property has been seized under arms, that arms have been used for the personal benefit and personal pelf of individuals who placed themselves outside of, not responsible to, and indifferent to, society as a class. Usually when cases like that occur in every country the attitude that has been taken has been to deal sternly and immediately with such persons to show them that they cannot, with impunity attack society and not pay the penalty. A good many years ago when a particular form of crime was prevalent in England, a certain judge adopted stringent and strong measures with regard to it, and within six months the crime was no more. It is not in an attempt to wreak the vengeance of the State or the vengeance of society on these persons that it is proposed here to administer corporal punishment, but it is that every person who has in his mind or contemplates the act of seizing property which is not his by arms or with arms in his hands, that that person is going to be dealt with in such a manner as will deter others of his class or order from making the same experiment. The facts are that quite a large number of those who have committed these crimes against society have been arrested, quite a large number of them. I saw from a recent report which I had from the Minister for Home Affairs that we had a proportion of thirteen persons arrested in respect of say seventeen offences—a fairly large proportion for a young and courageous body that is doing its work under extraordinary difficulties. Everybody knows that if you are to have an efficient police force it will require years of training and of study of its particular work to enable it to function. Here these young men have been thrown out in some parts of the country where some of them were never before, and the results they have achieved are a credit to them. What now is going to be the action on the part of the Government in assuring these young men that the strong arm of the State is behind them? What else except this thing of administering such punishment as will prevent a repetition of these experiments in the future. What has happened? Quite a number of Civic Guard stations have been raided. In some cases the uniforms of the Civic Guards have been taken, and in other cases their bicycles were taken. The Guards themselves have been maltreated, and I wonder will those who will come under this particular Act and who will get this punishment, ever consider what a serious thing it was to have maltreated these servants of the State when they were carrying on their nefarious designs throughout the country? There is no use in pointing to humanity and saying humanity is against this punishment. We are all against it, and none of us wish to have this particular form of punishment in our statutes; none of us ever see a sentence of that kind imposed on one of this class that we do not feel it just as much as any other person who will speak of it and condemn it.
I put to Deputies the case of the Civic Guard robbed under arms, thrown down on the ground and jumped upon. Will those who committed these particular acts ever feel what corporal punishment is unless there be a corrective, such as this, to deal with them? Let me take, say, the case that Deputy Baxter on leaving this House and on his way home is saluted by some gentleman with a blow on the chin; that when he gets up he finds his watch gone and sees his assailant move off. Is it the Deputy's idea that he must run after his assailant and say to him, "Erring brother, let me embrace you and restore you once again to society and show you what an awful thing you have done"?
I do not stand for that.
Certainly not, but if you do not, the question is, how are we going to correct it? I am sure Deputy Baxter would not countenance anything like that and would not like to see Deputy Heffernan assaulted in the same manner when going home. I am sure that if Deputy Baxter saw one of these gentleman assault Deputy Heffernan the first thing he would do would be to knock down that man. If that be the case, is there corporal punishment in that? I take it that there is, and that any man who would be knocked down would feel the blow unless devoid of all sense of feeling. That is the first impulse any man who would be knocked down, the impulse of self-defence. When you get back to normal conditions, and normal conditions mean that when robberies take place they will not be carried out under arms, then I say it will be time enough to wipe out this punishment, and no one will welcome it more than the Minister for Home Affairs and myself.
The President has made a speech he might have made had he been advocating whipping or flogging for any variety of offence what ever.
No.
If we see a man coming out of a jeweller's shop with a handful of watches are we to fall upon his neck and say "come back to the paths of rectitude, brother?" If we see a man having forged his employer's name are we to come up to him and say "come back, brother, do not do that sort of thing again; come and ask for forgiveness," but do not attempt to punish him. We might argue the same way for every offence imaginable and say there is nothing to be done except to put that man into such a position as he will feel the enormity of his offence. The same kind of argument was used when it was proposed to abolish capital punishment which at a certain time was awarded for sheep-stealing. The same kind of argument was used at every step towards the abolition of flogging or the use of capital punishment. A man attacks a Civic Guard and jumps upon him. How is he to be made to feel that that sort of crime cannot be condoned unless we inflict corporal punishment upon him. The President used that argument after six months of a Bill which inflicted corporal punishment and gives us references to offences of this kind which are being committed up and down the country in spite of the fact that this punishment of flogging has been embodied in the Temporary Provisions Act passed last year.
They are growing less.
Growing less; for what reason? Because of the flogging?
That is right, and also because of detection.
Then the efficiency of the Civic Guard has nothing to do with it?
And detection, I said.
Then every effort of the Government in the promotion of peace has nothing to do with it. It is merely the flogging punishment that is responsible. If then, the Minister can point to flogging as the reason why these various crimes are growing less, why does he not, as the logical deduction of that argument, ask for everything to be included—for all those offences, even those of summary jurisdiction, to be included. If flogging is a corrective, why limit it to these cases? The Minister will say because it is intended for the particular kind of offence. Deputy Wolfe told us of the particular kind of offence that he wants. Each Deputy has a different kind of offence for which he would inflict flogging on the offender. In one case it is a sexual offence, in another arson, in another it is a case of robbery with violence, and in another it is held up against a blackleg in a trade dispute. Each person or class of person, according to their training and character and social position, have a different kind of punishment as specially applicable to the kind of offence which those most interested have the greatest objection to.
I think the fact that the offences, while happily growing less as I am glad to hear, still continue even in a smaller number of cases, proves at any rate that the punishment embodied in the Act which has now expired, has not been effective in deterring others from committing the same crimes, and I think that the Dáil must get its mind clear as to what is the intention. Is it with the object of deterring the offender from committing the same offence again, or is with the object of deterring other people from committing that kind of offence? The figures adduced show that it has not been effective in deterring others, and I do not know whether it is likely to have been effective in deterring the prisoner himself, because he has not had another opportunity. But if he is the kind of person that is addicted to this kind of offence, such as Deputy Woulfe had in mind, then he is not being dealt with in this Bill, because this is a temporary Bill, and expires at the end of one year, so we are not dealing with the repetition of offences. I will ask the President, when this Bill has been securely passed in his leisure moments to read some of the speeches that were made respecting flogging and capital punishment at any period, say, since the beginning of the seventeenth century, and he will find, if he compares them with his own speech to-day, exactly the same sentiments, that for certain kinds of offences you must inflict this kind of punishment, and that if you do not, what is to deter the criminal. But it has been found, as a matter of fact, that notwithstanding the repetition of the old story about six months after the infliction of flogging by Mr. Justice Day the offences ceased, that they did not in fact cease, and that Judges of even greater experience than Mr. Justice Day proved that in their experience flogging had had no deterrent effect upon that particular class of offender. The case that has been adduced respecting other kinds of offences than those referred to in the Section need not be discussed, because they will not be affected, and as I said earlier, Deputy Woulfe is logically bound to support this amendment.
Mr. O'HIGGINS
I do not know whether it is Deputy Heffernan's view that people should be allowed to roll out of public houses half an hour after closing time and drive home without lights on their cars, but it struck me that the Deputy was somewhat out of order in airing grievances of that kind on this particular Sub-section. Deputy Johnson said that really of the two he would prefer the capital punishment to the punishment prescribed in this Section——
I said it would do less harm to the State and to the social conscience.
Mr. O'HIGGINS
——that at least it would be an absolute deterrent so far as the particular offender was concerned. Now, I am willing to give careful and sympathetic consideration to any amendment tabled by Deputy Johnson to any Bill which I introduce.
I know the Minister would like to wallow.
Mr. O'HIGGINS
I do not really know whether there is much to be gained by covering all the ground we covered last year, and treading the dreary round as to whether this particular form of punishment had or had not stopped garrotting in the year of grace 1780, or thereabouts, but there is one fallacy, at any rate, that ought to be exploded. The Deputy says these crimes still occur: therefore, the penalty was no deterrent. Now, you cannot prove a negative, and it is not possible to say, as the Deputy seems to suggest; that because crimes still occur there was no deterrent effect. I could just as well say that ten times as many crimes would have occurred but for this penalty, except that I could not prove it, and I do not like to put forward statements for which I cannot produce evidence.
Is not that what you do say?
Mr. O'HIGGINS
It is what I think.
Exactly. Can you prove a negative?
Mr. O'HIGGINS
I have not said it. The point is that you have arms sown all over the country. You have revolvers dumped here and there, and people willing and eager to use them, perhaps, particularly willing and eager to use them for their own personal gain, and I am convinced that the State, or society—call it what you will—in self-defence must resort to extra penalties, penalties over and above those prescribed by the ordinary law, which is held in such reverence, and which were adequate in a more normal situation. That is the position. Some men think because they commit a crime with a gun that in some way the crime becomes idealised; that whereas mere robbery is a shameful thing and a disgrace, if you rob with a gun it becomes a heroic and ennobling act. It is necessary to get rid of any delusions of that kind. It is necessary to take the halo, or any vestige of a halo there may be, from the head of the man who goes out to rob his neighbour with a gun. It is the deliberate policy to brand these two crimes as cowardly and disgraceful crimes. In a few cases where this particular sentence was imposed relatives sent in petitions saying: "It is all right that John should serve a term of imprisonment; we know that he over-stepped the line, but we would be glad if you would remit that particular portion of the penalty, because it is a disgrace." I am glad that they consider it a disgrace, and I hope that the person on whose behalf they petitioned will also consider it a disgrace, and will come to realise that the State imposed that ignominious penalty because a cowardly and disgraceful crime had been committed. All the sympathy, all the benevolence, is poured out on the side of the offender.
By whom?
Mr. O'HIGGINS
By everyone practically, except myself and a few wise men.
I am glad that you distinguish between yourself and wise men.
Mr. O'HIGGINS
A few other wise men. I invite Deputies to look at the other side of the matter, to put themselves in the place of the man trudging home with his week's wages who is held up and robbed. Such cases have been reported to me, where men to whom certain arrears of pay were due were waylaid within a few hundred yards of the factory or workshop where they were paid, and not only their week's wages but the arrears that were known to be coming to them were robbed from them on their way home, and the unfortunate men had to trudge home with empty pockets and report that to their expectant families.
These crimes are routine. They are common, as Deputies know, in many parts of the country—cowardly, base crimes of that kind—and there should be no apology due from a responsible Minister for taking the line that the situation is a special one, and an abnormal one, which the ordinary current law of the land is inadequate to meet. And, therefore, so far from being in any way apologetic for this particular sub-section, if the crimes increase in degree and increase in frequency, my only remedy for that would be to come to the Dáil and ask for still more stringent remedies. You cannot meet the situation otherwise. You cannot meet the situation by playing Brase's Band to the criminal. I did consider last year the advisability of tabling a proposal for the capital sentence in connection with robbery under arms. Every man who goes out to rob with arms is a potential murderer. The President, I think, put his finger on the gist of the matter when he described this as self-defence on the part of society. In the individual it is a truism to say that self-preservation is the first law of nature; and the State, no less than the individual, more than the individual, must defend itself, and defend itself by the most effective means, to use a phrase that has become famous, against the crimes that tend to undermine the social fabric, crimes that tend to bring back the barbarism of the Stone Age, with every man's hand against his neighbour. I did not wish to speak at length on this amendment, and I had made a good resolution not to speak with any vehemence; but lest the very few words which I said in expressing my opposition at the beginning should be misunderstood as any mood of apology, any mood of doubt as to the necessity for these provisions, as to the wisdom of these provisions, I thought it better on the whole to speak again.
I have always tried and been cautious in dealing with any measure put forward in the Dáil to look at the proposals, so far as my views on them are concerned, at any rate, from the point of view of what I would do if I were on the other side of the House. I have always realised that a Party such as ours, which probably may look forward in the near future to sitting on the other side, with perhaps Deputy Johnson where the President is to-day—I am not anxious for the day especially under present conditions—that any Constitutional Party appealing to the people to put them into the position of governing the country must realise that when they have got into that position they must deal with and punish criminals according to the nature of their crimes. It is from that point of view alone I have tried in any contributions I make here to any debate to give serious consideration to any proposals put forward. The President has stated, and perhaps it is one of the few examples he could give, that in a particular area 13 criminals out of 17 were detected and punished. That was a well-deserved tribute to the Civic Guard, or whatever body was acting on behalf of the Government, but I can tell the President that is not a typical example of the position as we find it in many parts of the country. I fully realise that it is due to the apathy or lack of courage on the part of the people who are interfered with and robbed. They are not prepared to come forward and assist the servants of the Government to deal with and punish the criminals who are infesting these particular areas. So far as I can judge in a number of cases where robbery under arms, arson, and other crimes of that nature are committed, the individuals concerned in their commission are not very large in number. They operate in many cases over a very wide area. Therefore, I have been forced to the view, and I would like to hear the President or the Minister on it, or that the Government must, if these crimes are to be put down, provide places of internment for these people where they will be made to work hard and give a return to the State for their internment.
Mr. O'HIGGINS
What will you do with them if they do not work hard?
I hope I am making my position clear to the Minister, and he can deal with it afterwards.
Mr. O'HIGGINS
I just asked the question, and I thought you might like to answer it off hand. What would you do with them if they do not work hard?
I think the Government has a sufficiently large army of paid servants at their disposal. For instance, if Deputy Conlan desired it, and I am sure that he does, they could be engaged in the drainage of the Barrow. If the Government are not prepared to find the money for that very necessary work, then I say there is no better class of work at which they could put them.
Mr. O'HIGGINS
If they do not work what would you do with them?
So long, at any rate, as you give them eggs and rashers and toast in the morning, such as you have been giving them for some time, there is no necessity for them to work. The Minister has said here that it costs the Government at the rate of £1 per week to keep the men who have been interned. Many States have been faced with a condition of things such as this State has passed and is passing through, and they have dealt with the situation in the way I suggest, and perhaps if the Government adopted that method it would act as a greater deterrent to those criminals who are committing these offences to-day. I put that suggestion to the Government in a serious way, and I hope they will consider it and withdraw the proposals they have put forward.
Tá.
- Pádraig F. Baxter.
- Séamus Mac Cosgair.
- Tómas Mac Eoin.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Mícheál O hIfearnáin.
- Domhnall O Muirgheasa.
- Pádraig O hOgáin (An Clár).
Níl.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- John J. Cole.
- John Conlan.
- Bryan R. Cooper.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Patrick J. Egan.
- Henry J. Finlay.
- Desmond Fitzgerald.
- John Hennigan.
- Connor Hogan.
- Domhnall Mac Cárthaigh.
- Liam T. Mac Cosgair.
- Maolmhuire Mac Eochadha.
- Pádraig Mac Fadáin.
- Pádraig Mac Giollagáin.
- Seán P. Mac Giobúin.
- Risteárd Mac Liam.
- Seoirse Mac Niocaill.
- Liam Mag Aonghusa.
- Seosamh Mag Craith.
- Martin M. Nally.
- John T. Nolan.
- Peadar O hAodha.
- Criostóir O Broin.
- Próinsias O Cathail.
- Aodh Ua Cinnéidigh.
- Conchubhair O Conghaile.
- Séamus N. O Dóláin.
- Tadhg S. O Donnabháin.
- Pádraig O Dubhthaigh.
- Eamon S. O Dúgáin.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Pádraic O Máille.
- Patrick K. Hogan (Luimneach).
- Seán M. O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
Mr. O'CONNELL
I propose: "In Sub-section (4), page 2, line 52, to delete the word "shall" and to substitute in lieu thereof the word "may." The Committee in its wisdom has decided that flogging is to be retained in the Bill, and the purpose of my amendment is to make it permissive rather than mandatory. The Minister for Home Affairs, speaking on the other amendment, said that there was not much difference in principle between "may" and "shall."
Mr. O'HIGGINS
"Shall unless" with the qualification in the Bill.
Mr. O'CONNELL
I think that there is a very important principle involved. We discussed the principle on various occasions here as to the propriety of putting, in the Bill, minimum penalties. That applies to a greater extent here. I think it ought to be left to the discretion of the judge whether the penalty of flogging should be inflicted. That is the purpose of the amendment. There is not much that I wish to say in the matter because the effect of the amendment is obvious. I do not think it is right that a judge should be in the position, as did happen in some cases recently, of feeling that he was forced to inflict a penalty which he himself did not think should have been inflicted. I think that the matter should be left to the discretion of the judge. I will only, in this connection, seeing that the object to be obtained is a deterrent, emphasise what was said in the other debate by Deputy Heffernan, and the others, that it is not the actual punishment will prevent crime so much as the apprehending of the criminal. If crime has become less frequent, I believe that it is due to the fact that in recent months a greater effort has been made in capturing criminals, and these efforts have met with greater success. I am firmly convinced that it is not so much the punishment the criminal will get when he is caught that will prevent crime being committed as the belief that potential criminals will hold that if they commit a crime they cannot get away without being captured. It is that comparative immunity from capture which criminals have had in the last three or four years during the disturbed state of this country that has led to the present position, which is, happily, becoming less and less acute every day, and I believe that it is along that line that success in putting down crime will be achieved rather than going along the lines of this Bill.
Mr. O'HIGGINS
It would be discourteous if I said nothing in reply, though I feel that everything that should be said on this amendment has already been said. The difference is not, as the Deputy suggested, between "may" and "shall," because the Bill says if there are special circumstances which in the opinion of the judge constitute a mitigation of the offence, this penalty need not be imposed. The Deputy spoke of judges being forced to impose this penalty, as if there were no remedy. There is, first of all, a remedy in the Bill. It is that if there are special circumstances which the judge thinks constitute a mitigation there is no obligation to impose a penalty, and in any case in which a judge entertains doubts as to whether the penalty is fully deserved it is open to him to make representation to the Executive to that effect. Any representation that has been received from any judge or magistrate has not been lightly treated or set aside. My position with regard to this amendment is quite simple. I believe that in the setting this penalty is necessary for these two offences. That is the position in the abstract. If a special case arises where there seems to be mitigating circumstances, and where the court is satisfied that there are such mitigating circumstances, then this sub-section as it stands, provides a remedy, and in such cases there is no obligation on the court to pass this particular sentence. There have been cases in which there were mitigating circumstances. There has been one case in which a robbery was committed, with arms, and for one reason or another— I am not in a position to say for what reason—the stolen money was returned. The person who committed the robbery was caught, but the fact that the money was returned was regarded as a mitigating circumstance, and the penalty was not imposed. There will, no doubt, be occasional cases in which the degree of guilt seems somewhat less than in the average normal case, and that case is met in the sub-section as it stands. The net effect of the amendment, if carried, would be simply to revert to the ordinary normal law which provides that this particular penalty may be imposed for robbery under arms.
Mr. O'CONNELL
What about arson?
Mr. O'HIGGINS
Not with regard to arson I quite agree, but with regard to the offence of robbery under arms. I have stated that I believe a situation exists which requires an extension of the ordinary law of the country. Consequently I am unwilling to accept the amendment.
The Minister now evidently has come to the conclusion that the object of this particular kind of penalty is to get back the money which has been stolen. The deterrent effect of the punishment is not the object now. It is because it has the effect of getting back the money which has been stolen. I realise, of course, that the Minister has spoken two or three times ironically in reference to remarks of mine regarding the ordinary law. He has spoken of the ordinary law which is held in such reverence. It is quite evident that what the Minister holds in reverence is not the ordinary law but special and temporary coercion Bills.
Mr. O'HIGGINS
I think it would be wrong for me to allow the Deputy to misrepresent me. I have not stated that the object of the penalty is to get back stolen property. I mentioned, in a purely passing way, as an instance, that there had been a case in which, prior to the trial and to the conviction, particular stolen funds had been returned, and that was regarded as a mitigating circumstance, and the penalty of flogging was not imposed. On this ordinary law question, it seems to me the idea is that the ordinary law, which incidentally is the law that was not made by ourselves, is worthy of every respect and reverence. But, if we consider a particular law necessary to meet a particular situation, then that is looked on with horror; that is an abomination. Yet the object of all law is simply to meet the requirements of society from time to time. But the home-made article is essentially wrong. The sound conservative mind of Deputy Johnson keeps harping back to that which was made prior to our times.
Why do you make this temporary?
Mr. O'HIGGINS
If the Deputy puts down an amendment I will consider it.
It is your Bill, not mine.
I beg to move: "To delete Sub-section (5)." The language used in the drafting of this Sub-section I think is the best argument that can be put forward in favour of its deletion. This Bill, which is a temporary Bill to meet a situation which is far from normal, lays down certain penalties for certain crimes referred to in the Second Schedule. These penalties, we take it, are not penalties to meet a normal state of affairs. If the existing law, which has been passed to deal with a situation and conditions which are normal, lays down more severe penalties for these crimes, then I fail to understand why this particular Sub-section is drafted in the way it is. The Minister must know, especially in regard to crimes such as arson, whether the existing law lays down more severe penalties than the penalties laid down in this Sub-section. Therefore, I think, if the existing law does provide for that, there is no necessity for the insertion of this Sub-section.
Mr. O'HIGGINS
This Bill was intended to provide an expeditious method of dealing with crimes set out in the Schedule. It is of a temporary nature, and because it is temporary we do not think it worth the trouble of finding out in each particular case whether the punishment prescribed in the Bill is less than the punishment prescribed by the ordinary existing law. It was not the intention when the Public Safety Act of last year was passed that it would operate to the exclusion of the ordinary code. But some Judges and some District Justices took the view when a prosecution was brought under the Public Safety Act that then of necessity only the penalties mentioned under the Public Safety Act could be imposed. Without professing to pronounce on that view it was thought wise to put in this Section to make it clear that there was no intention to hamper judges or magistrates in that way, and wherever, in a special case, the ordinary law enabled them to prescribe and impose a heavier penalty than is mentioned in this Bill that they would have power to do so.
The Lord Chief Justice in trying one particular case which came before him remarked that as the charge was formulated under the Public Safety Act he was precluded from imposing the sentence which he thought the crime deserved and he expressed the opinion that the criminal as a result got off too lightly. He said that the penalties imposed by the Public Safety Act with regard to the particular offence, the nature of which I forget at the moment, were inadequate to meet an aggravated case, and that, in fact, under the ordinary law which existed prior to the passing of the Public Safety Act, heavier penalties could be imposed. It so happened that that particular charge was formulated with specific reference to a Section and Sub-section of the Public Safety Act and in the circumstances the judge felt that he was confined to the penalties which the Public Safety Act prescribed. This Section 5 is simply inserted so that, if it should happen in a particular case that a heavier sentence could be imposed under the ordinary law than is mentioned in this Bill, Justices would be at liberty to impose it. I see nothing objectionable in the Section. I see a certain advantage. It meets such a special case as was commented on by the Lord Chief Justice and I do not propose to accept the amendment.
On that question I want to draw attention to Sub-section (1), and to relate it to Part I. of the Schedule, paragraph 2. One of the offences in Part I. of the Schedule reads: "Unlawfully inducing or attempting to induce any officer of the Government of Saorstát Eireann to refuse, neglect or omit to discharge his duty as such officer." I want to suggest to the Minister that he should reconsider the effect of this Sub-section and that paragraph of the Schedule. There are very many officers. I take is that originally it was thought "officer" had reference particularly to military officers. Let us assume the case of a Customs officer on the Border. Some Deputies perhaps will be interested in this. One of their constituents attempts to pass through the Border without disclosing that he has a certain quantity of cigarettes in his pocket. The customs officer is in duty bound to report. It is a minor offence, let us assume, and the person concerned quite unlawfully attempts to persuade that officer to neglect, or omit to discharge his duty in the matter. Undoubtedly that is an offence. What kind of penalty is provided? Nothing less than penal servitude, and there is no option. "Every person found guilty on indictment of any of the offences mentioned in Part I. may be sentenced to suffer penal servitude for life, or such term of penal servitude as the judge may decide." It may be said of course that that person would not be charged on indictment, but we do not know. Offences that are not so minor as the one I have instanced may still be of a kind which would not justify the minimum penalty of penal servitude. Yet, we are obliging a judge to inflict a penalty of penal servitude.
Mr. O'HIGGINS
"May be sentenced."
Yes, "may be sentenced." If guilty, he cannot be sentenced to anything less than penal servitude, and penal servitude, I think, implies not less than three years' imprisonment. There are very many classes of officers of the State carrying on a very great variety of duties, and many attempts may be made to induce such officers to neglect or to refuse to discharge their duty. If we are going to impose these minimum penalties, such as penal servitude, under indictment, and these other imprisonments, with or without hard labour—of course, there is more option in paragraph 2, but in paragraph 1 there is no option to the judge but to impose a penalty of penal servitude—I submit that paragraph 2 of the Schedule, which is related to Section 1, requires amendment to confine the offences to officers, and I would suggest military officers or members of the army. There is no amendment down in this matter, but I would like the Minister to pay attention to this criticism, because I think it will be found when we get to the Schedule, if it is passed in its present form, that possibly grave injustice and over-penalising for certain classes of offences may be embodied in the law.
Mr. O'HIGGINS
I will consider what the Deputy has stated, and will consult with others on the matter. Meanwhile I would like to offer some comments. The paragraph which the Deputy quotes, Part I. of the Schedule, sets out two offences, and Sub-section (1) of Section 1 deals only with conviction on indictment. For a minor or trivial offence the State is not likely to formulate a definite charge and bring a man before a jury. Minor offences would be dealt with in a summary way. The objection to confining the matter to officers of the army, officers of the disciplined forces of the State, police or military, is that resort to terrorism against civil officers of the State is not infrequent. District Justices, Under-Sheriffs, State Solicitors, who are essential factors in the machinery of the State, have from time to time been subject to threats and terrorism in various forms. It would, of course, be a question of degree, and the degree would decide whether the State would formulate an indictment and put a man forward for trial before a jury of his fellow-citizens or proceed by summary charge. It is necessary to extend the sub-section to officers of the State other than officers of the army or of the police forces. Meanwhile, what I said holds, that I would undertake to look more closely into the matter in the light of the remarks made by the Deputy.
I would like to supplement what I said and correct a slight misconception of my own, and I think a slight misconception on the part of the Minister. As it appears to me, any offence in Part I. of the Schedule must be the subject of an indictment. At least that is suggested here. There is no suggestion of an offence under Part I. being the subject of summary jurisdiction.
Mr. O'HIGGINS
A minor offence would be dealt with otherwise than under this Bill. A minor offence would be dealt with under the ordinary code.
That is assuming that the Minister will be of the same mind in six months as he is now, or that his successors will be.
Progress ordered to be reported.