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Dáil Éireann debate -
Wednesday, 23 Jul 1941

Vol. 84 No. 16

Gárda Síochána (Compensation) Bill, 1941—Second Stage.

I move that the Bill be now read a Second Time. As I said during the consideration of the Estimates, the state of the law as regards malicious injury to the Gárdai in the discharge of their duties is unsatisfactory. The Grand Juries Act, 1836, lays it down that there must be malice proved if a policeman is killed or injured in the discharge of his duty. Unless it can be shown that the man who injured or killed a Guard had something against him, had some malice towards him, it was ruled, almost half a century ago, that the Act did not apply. There were six cases within recent times in which three Gárdaí were killed, while others were severely injured. The courts held, in five cases, that there was no evidence of malice and that, therefore, the Act did not apply. In the other case an award was given by the Circuit Court. An appeal was taken in that case, and it has not yet been decided. Under the Act to which I have referred the local authority was liable for the damages. In this Bill the proposal is that the Government and not the local authority should pay the damages. Some confusion may have arisen about the words in the Bill, "any other police force." Some people thought these words applied to the Local Security Force. That is not so. They apply to the Taca, which is only a temporary police force at present. Mention of the Taca is not made in the Bill, because it is hoped to make this a permanent measure. In the course of time some other kind of a temporary police force may be recruited, so that the Act would apply to it, so long as it was a whole-time police force. The Local Security Force is not covered in this Bill, but provision is made for it in another way. This Bill has nothing to do with injuries accidentally received. It does cover cases where there has been deliberate wounding or killing, but does not cover injuries accidentally received. The memorandum that was circulated fully explains, I think, the various provisions of the Bill, so that for the present I do not think there is any need for me to say more. If any points are raised I can deal with them when replying.

I welcome this Bill. I am glad, when the principle of giving compensation to the Gárdaí when they are injured was adopted, that it has been introduced here as a very wide measure, covering all injuries received by members of the Gárda when they are hurt in the discharge of their duties. This measure sets aside the decision in Murphy's case which, as the Minister has stated, gave a very narrow interpretation indeed to the old Grand Juries Act. Under that Act no compensation could be received by any member of the Gárda unless he was killed or maimed because of his exertions in bringing disturbers of the public peace to justice, and it had to be held that it was because of his previous exertions, of something that he had done on a former occasion, that malice was entertained towards him, and that for that reason he was injured. If a Guard was injured in the course of a riot, and by a person who was only anxious to injure a policeman, he was not entitled to compensation.

I am glad that this measure has been introduced. I am glad for another reason. The Minister on a previous occasion in speaking about the Gárda— he did it possibly inadvertently—did, I think, rather give a shock to the country by conveying, though I am sure he did not quite mean it, the opinion that there was something very rotten in the Gárda force, and that certain officers would have to be removed. I am very glad to see that this Bill is a concrete statement that the Government, as well as the whole country, recognise the excellence of the Gárda force, and that we have here a police force of which the country ought to be and is, I think, proud: that is a police force to which we are anxious, in every way, to give fair play. One of the measures of fair play is to see that if a man is killed or injured in the discharge of his duty that he will, in the one case himself, and in the other case his dependents, receive adequate financial compensation.

There are two features of the Bill which I do not like, and which I would ask the Minister to amend in Committee. The first is that the application referred to has to be made to the Department of Justice, the Minister being put in the position of a judge to decide as to whether a man is, or is not, entitled to compensation. I do not like that provision. I am quite aware that there is another provision in the Bill which states that if a person likes he can apply to the Minister who will then send the matter on to the courts.

That is only in death cases.

That is correct. In my opinion every case should be investigated by the courts. As a matter of fact, it is much more important to have matters investigated in court when persons are hurt than when persons are killed. When a person is killed it becomes an actuarial matter, to make a valuation of what his loss meant to his dependents; but when a man is injured, you have a very much more difficult problem. The Minister has not got the machinery to enable him to come to a decision on that. Suppose a Guard is hurt, the first question that may arise is—did the Guard receive the injuries in the course of his duties? That may mean that he will have to call half a dozen witnesses and that the State may have to call witnesses. In such a case the Minister has got no machinery by which he can investigate that adequately. Then, again, take the amount of injuries that a man has received, the likelihood of his recovery, how long it may take him to recover, has he been damaged to a very large extent or only to a small extent. These are all matters on which medical opinion may differ.

In the ordinary running-down actions and workmen's compensation cases, we often have a very considerable difference of opinion between the most eminent medical men. They are cross-examined in court, and the judge has to make up his mind between them. If one particular surgeon thinks that a man will have completely recovered in six months, and if another surgeon thinks it will take him two years to recover completely, how on earth is the Minister to have that investigated? There is no provision to enable him to call these surgeons before him, even if he were competent to investigate a case of that kind. Really, nobody is competent, unless a man is put in the witness box. The medical expert is put in the witness box, and is subjected to cross-examination. From a cross-examination of medical witnesses on both sides there gradually emerges a measure of agreement, or at least it is made possible for the court to come to a conclusion. There is, however, no possibility of that being properly done if the matter is going to be investigated by the Minister with the mere statement before him from the injured person. I cannot see the advantage of the Minister outing the courts and taking upon himself duties which ought to devolve upon the trained judges of this country.

The Minister may say that there would possibly be extra expense if the matter were investigated in court and properly done. My reply to that would be twofold. If the cases can be settled out of court, if the injured person is satisfied with the amount of compensation which the Minister offers, well then the case is settled, as, one might say 75 per cent. of the running-down cases in this country are settled; they do not come to court at all. But if the Minister thinks a certain amount is sufficient, and a Guard thinks it is entirely insufficient, then the Guard should be able to have the matter investigated in court. The Minister would lodge in court the amount which he thinks is sufficient, and if the Guard is wrong then the Guard suffers in costs. I cannot see that there is any advantage at all to be derived from this ousting of the courts. I would press upon the Minister very strongly, so that this may go through the House entirely as an agreed measure, that instead of making application to the Minister application should be made to the courts in every case.

There is one other point which I do not like in this Bill. Under Section 13 the Minister may, by order, apply this Act to any force other than the Guards who, for the time being, are doing police duties. I do not at all like legislation by order. I think it would be better if a short Act, ad hoc, were brought in. If there is a new force like the Taca Síochána to which the Minister wishes that compensation should be given in case of injuries, it would be better that a short Act should be brought in for that purpose, or let Section 13 of this Bill be amended so that it would not require any order by the Minister. I do object to legislation by order being pressed forward. If a new force is established, and compensation is to be given to them, let the Minister come to the House and let the House consider whether it is right and proper to do so.

Those are my two objections to the Bill. Neither of them goes to the root or substance of the Bill. They are questions of procedure; they are questions of detail. I would ask the Minister to amend the Bill on the lines which I have suggested, but, taking the Bill as a whole, I welcome it very heartily.

I am glad the Minister has introduced this Bill, but I think it is rather a pity that he spoils the benefits of the Bill by putting into Section 6 the arbitrary powers which are conferred upon the Minister under that section. A Guard who has been injured may make an application to the Minister for compensation, that compensation having already been refused by the court. The Minister is the defendant in this particular case, and the Minister takes power under Section 6 to say, as the defendant: "I refuse to admit the plaintiff's right to compensation." If the Minister takes up that attitude in that case, then under sub-section (4) of Section 6 the Minister's decision shall be final and conclusive, and there is no appeal against that decision. I know the Minister has a very deep sense of fair play, and I know that normally he would say that that is a rather arbitrary power for a Minister, as a defendant, to possess against a plaintiff. The Minister can refuse to pay compensation; he can refuse to admit that the case is one in which the compensation is payable. When the Minister does that, the plaintiff has to accept the Minister's judgement, and there is no means by which the plaintiff can get to the court. I would have less worry about this section if the present Minister were likely to be Minister for Justice for ever, because I am sure he has such a highly developed sense of fair play that he would not consciously do a wrong thing. That certificate does not extend to the political activities of the Minister, but merely to his administrative activities.

The Minister, under Section 6, is taking very wide powers. He is simply preventing an applicant for compensation from having his case heard in court once the Minister elects to say: "No." We all live in 1941, and we all know what Government Departments are. The Minister may very well be advised by his advisers in the Department of Justice that this is a case in which compensation should not be paid, and all the pressure in the world will be brought on the Minister to refuse compensation in that particular case. With the best intentions in the world the Minister would be scratching his head and saying "I would like to do it, but the case put up by the Department is so strong that it is not easy to overrule it, and in any event I cannot do that too often if good relations are to continue in the Department." Does the Minister want to be put in that position? Would it not be easier to say: "Well and good, if you think you have met with injuries in the course of your duties as police officer, go to the courts, convince them that you have a case, get a decree, and I will pay"? From the Minister's point of view, that is a particularly suitable arrangement; it is not likely that there will be a tug-of-war between the Minister and the Department to prevent an applicant from going to the courts.

I think the Minister might very well allow the courts to adjudicate in the whole matter. The courts must adjudicate where the application is in respect of the death of a member of the Gárda Síochána. Where the application is in respect of injuries sustained by a member of the Gárda Síochána that person cannot get to the courts. His only hope is that the Minister may, in his own discretion, grant compensation, but, if the Minister elects to refuse compensation, that person has no further remedy, and cannot even have his case heard by the court. I think the Minister might very well provide that the case should be dealt with by the courts in instances of personal injury. But if the Minister still wants to retain some of the machinery of Section 6, he ought to provide that, where he refuses to pay compensation, the aggrieved applicant would at some stage have the right to appeal to the courts against the Minister's decision, because one has got to remember all the time that the Minister is the defendant in this case, and he also sets himself up as the judge. Obviously, the Department of Justice ought not to mix up the functions of a defendant with the functions of a judge, and that is what the Minister is doing in this case. He appears as the defendant, and he acts as the judge. He may, as defendant, decide as the judge that he is not going to pay compensation in such a case. I should like the Minister to look into that matter with a view to remedying that very serious blemish in the Bill, a blemish which might very well be used unfairly on some future occasion.

I observe from the Bill that it is to operate as from 1st January, 1940, and I am wondering whether those cases have arisen only since 1st January, 1940. Were there any cases at all before that date, and, if there were, what does the Minister propose to do in those cases? If the position is that we had cases before 1940 and have had other cases after 1940, what is the idea of drawing a line at 1st January, 1940, and saying: "Before that date, you will get no compensation, but after that date you will get compensation"? It seems to me that if there is a like case before 1940 it ought to get like treatment after 1940.

There is just one small point which I should like to make, and it is a point which I think applies equally well to the ordinary Criminal Injuries Acts. This Bill provides that compensation payable to the Guards will be paid out of the moneys of the Exchequer. Let us assume that some person assaults a Guard and does him bodily injury to some extent, so that the Minister feels that the Guard is entitled to compensation. That person is tried and convicted. If that person is a substantial mark in law, I think he should be made liable for the compensation which the State has to pay to the Guard. The very same thing arises in connection with the Criminal Injuries Acts. Somebody burns a rick of hay. The person whose rick is burned applies to the Circuit Court and gets an award against the county council. The ratepayers pay the amount of the award. Somebody is prosecuted and gets two months in jail, but otherwise he gets off scot free while the ratepayers pay the compensation. In a case where somebody assaults a Guard, and the Guard is awarded £500 compensation for injuries occasioned to him in the assault, if the person who is tried and convicted of that assault is a mark in law I do not see why the money should not be recovered from that person instead of being paid by the taxpayer. It is entirely unreasonable if anybody, even a Deputy of this House, should assault a Guard and is a sufficient mark to be able to pay compensation in the ordinary way, that the taxpayers should have to pay for that person's wrong-doing. I suggest that the Minister should put in some section in this Act to the effect that where persons, who are marks in law, are convicted of being guilty of the injury or death of a Guard, who was doing his duty, these persons should be made liable for the amount of compensation that the State will have to pay to the Guard, because if such a person commits that wrong I fail to see why he should not be made pay for it.

I do not think it is necessary to repeat the arguments put forward by Deputy Fitzgerald-Kenney about the provisions of Section 6, and I suggest to the Minister that the point raised by Deputy Fitzgerald-Kenney, which I think appeals to every section of the House, can be met by the introduction in line 28, of sub-section (5) of Section 6, after the words "in respect of," of the words "injuries to the applicant or of the death of a deceased person." That leaves it open to the applicant, whether the application for compensation is in respect of injuries or death—to himself in the one case or to his personal representative in the other —to apply to the Minister to have the matter determined by a High Court judge. I have no doubt that that would meet Deputy Fitzgerald-Kenney's case if, in every case of injuries and otherwise, it was left to the Guard himself whether he wanted the adjudication to be made by the Minister or by the High Court. Personally, I think that the Minister himself would find it very much more convenient if there was an obligation upon him to refer every such case to the High Court.

I do not share Deputy Norton's illusions about the Minister's incapacity to sin, because I regard him as being human like the rest of us, but whether it be he or his successor, I think you are in great danger if you leave the option of determination to the Minister, in cases which are very questionable, strong pressure may be brought to bear on the Minister, to decide the case himself ad misericordiam rather than in accordance with the terms of the Act. He may be in the very embarrassing position that the Guard is anxious to have the Minister settle the case himself and that several influential people will come along and say: “This Guard ought to be looked after, he is a decent fellow,” and so on and so forth. You can easily imagine the kind of representations that would be made, and the Minister, eventually, would feel constrained to give a very liberal interpretation to the Act. We know what has happened with regard to the housing code. Parliament thought that it was going to build houses for agricultural labourers, but we are now building houses for seamstresses and hotel keepers because the Minister made up his mind that “agricultural labourer” meant anybody in rural Ireland who was not a plutocrat. I think the same will apply to the interpretation of this Act if the Minister is constrained to determine whether a Guard has been injured in the course of his duty or not.

Volumes have been written in connection with cases under the Workmen's Compensation Act on that one point alone, as to whether an injury was sustained in the course of the applicant's duty or not. The most extravagant interpretations have been given under that Act. You will find such a case as that of a fellow cycling 25 miles away from his work and being entitled to compensation for an injury arising out of his employment on the ground that, at some time during the day, he intended to cycle towards the factory where he was working. That, however, has all been worked out by careful codification in the courts, and it is a matter for lawyers to wrangle about. If, however, it is possible for the courts so to extend the law, in the detached and invulnerable position of a judge, what hope has the Minister of giving anything like a judicial decision on a case brought before him for adjudication under this Act? Every argument for granting liberal compensation will be strong, and every argument for protecting the public purse will be weak. It will be represented that the sum claimed by the officer is trivial in comparison with the amount of the Budget, and that it is a criminal thing to leave an officer injured, or his relatives, in the event of his death, poor, because the Minister will not give a few hundred or a few thousand pounds to compensate him out of the £40,000,000 Budget. Therefore, I suggest that, not only from the point of view of the Guards, but from the point of view of the Minister himself and his advisers, the duty of assessing damages in a matter of this kind should not be laid on the Minister but should be a matter for the courts. If the Minister will insert the words I have suggested in sub-section (5) of Section 6 I think he will have gone the whole way to meet the representations that were made by Deputy Fitzgerald-Kenney. I would urge him to go even further and make it mandatory on himself to refer every application to the courts, leaving himself no discretion whatever to adjudicate such cases, and I think the Minister would be well advised to take my advice.

Deputy Norton I think referred to the cases that have been already disposed of. Will the Minister, when he is replying, make a short statement as to what is to be done about these cases?

Mr. Boland

The old cases?

Yes—the six cases that have been adjudicated upon, and that were rejected on the grounds that they did not come within the old Acts, because I imagine that the relatives of these people will be anxious to know what is the position.

I should like to know from the Minister whether the intention of Section 11 of this Bill is that no matter what may be the deliberation with which a police officer is injured in future a claim will not lie against the local body.

Mr. Boland

Yes.

I should like to refer to the matter raised by Deputy Fitzgerald-Kenney as to the limiting of this Bill to actual members of the Gárda Síochána. He has raised an objection to the power given to the Minister, by order, to include temporary police of another kind, or any person who may be acting as a police force for the time being. I think that is a very objectionable thing, and it is a power that I think the Minister would rather not have. I think it should be laid down in this Act that compensation in cases of this kind should apply to certain persons, and that the persons should be named or defined. I would take it even further than that, and apply it to other than temporary police officers, because it would be possible that a civilian might get involved very seriously in a matter of this kind. We can easily visualise a case where armed robbery would be taking place, and where a police officer in the course of his duty might be overpowered by armed men, and a civilian in the discharge of his duty to the State might go to the help of that police officer, and in the course of the affray lose his life or be badly maimed or injured. There is nothing in this Bill to help a man in a case of that kind, and I think the Bill should go a little further.

We had a case recently in Dublin where some military officers, who were not on duty, went to the help of a policeman who was endeavouring to arrest armed people in a motor car. Luckily, these officers did not suffer any injury, but they might have lost their lives. Then, in the County Leitrim, at the present time, we have the case of a military officer and a soldier being wounded by armed robbers, and this Bill does not apply to them. Accordingly, I think the Minister should enlarge the powers under that section to include not only policemen, killed or wounded in the discharge of their duty, but persons of any kind coming to the help of a police officer in the discharge of his duty and helping him to enforce law and order. I put it to the Minister that the Bill might be made a little more comprehensive in that regard, because a civilian at present has no right to claim compensation if he gets maimed or injured, or his dependents if he loses his life, in helping to enforce law or order or follow up the ends of justice.

Mr. Boland

As to the last point, this Bill only deals with police officers. If such a case as the Deputy refers to does arise, I suppose it would have to be dealt with. We are not attempting here to deal with any case except cases of actual whole-time members of the police force who are killed or injured in the discharge of their duties. If other cases arise, they can be dealt with; but we are not proposing to do it here. I do not propose to extend the Bill to include any case of that kind, but if such a case arose it can be dealt with.

Under what Act?

Mr. Boland

By legislation if necessary. In this Bill we are simply dealing with the police force. It is another day's work to deal with any other case. On the point about the Minister fixing the amount of the award, the intention was, of course, that in well-established cases, which could be very easily settled, the Minister would award compensation. But, as there has been objection taken to that, I will consider amending Section 6. The intention was that difficult cases would be sent to the courts. Of course, in any death case, if the next of kin wish, they can insist on going to the courts. But it was thought that it would save expense and time in the case of ordinary injuries, where the facts were well known and there was no dispute, if it were left to the Minister. I do not think it is right to say that the Minister for Justice would be the defendant. If any Minister were the defendant, it would be the Minister for Finance. It would not be the Minister for Justice who would perhaps err on the side that Deputy Dillon mentioned; he would be likely to do it, if the Minister for Finance would allow him. In all the circumstances, I suppose it is better to have the matter go to the court in its entirety and I shall have the Bill amended in that way. It is a matter which we considered carefully, and we thought that in simple injury cases it would save time and expense. We did not bring it in without thinking well over it.

Once an applicant is refused compensation he cannot get to the courts?

Mr. Boland

Yes.

He would have to die and let his relatives go there.

Mr. Boland

No Minister wants to be the judge. People would press him to give more compensation rather than less.

Surely it is better to let it go to the courts.

Mr. Boland

I would say so. I examined this matter fully and I agreed that it would probably be better as it was, but, having heard the case made, I think it is better to let it go to the courts. As to Section 13, I cannot see what Deputy Fitzgerald-Kenney objects to, because I do not think there is any likelihood of there being a second police force unless in some emergency situation like the one which exists at present. The Taca Síochána were established by order under the Emergency Powers Act. Unless you want to bring in a new Bill whenever this may happen again, I think this section is all right. I do not think that is a very sound objection. As to Section 11, that means that, so far as the Gárda Síochána are concerned, the Grand Jury Act does not apply. This is the Bill which will apply to them and the local authorities will not have to pay.

I do not think this Bill repeals the Grand Jury Act.

Mr. Boland

It does not repeal the Grand Jury Act, but it removes the Gárda Síochána from it, and any case of death or injury will be dealt with under this Act. They are taken out of the Grand Jury Act. The only persons left in then would be magistrates or district justices if they were murdered or injured. We are simply taking the Gárda Síochána out of it, and they will be dealt with under this Bill. It does not repeal the Grand Jury Act. Deputy Norton asked about previous cases. There was a previous case where the officer was married, and the court gave an award in that case. There were some cases where there was a dispute about the amount of compensation given, where there were parents concerned. They can be settled without legislation. I believe they are being settled. There are very few of them. The only case that I know of where there were dependents was the case of an officer who was murdered in Tipperary, and his widow was given compensation by the court. The other case was settled. There was a dispute between two Departments, and finally the matter was satisfactorily settled. There are a few outstanding small claims, but they will be adjusted, and they do not require legislation.

Do I take it that the Minister will settle those outstanding cases?

Mr. Boland

Yes. They are very few, and there is not very much involved.

Otherwise it would be better to let them go to the courts.

Mr. Boland

There is no necessity for that. They will be settled all right; I can assure the Deputy of that. About the other cases which are at present before the courts and those which have been thrown out, they will naturally go to the courts under this Bill.

What about those who have been before the courts and a decision given?

Mr. Boland

They come under this.

They can go to the courts again although it is res judicata?

Mr. Boland

Yes, under this Bill they can go to the courts.

Will the Minister consider the matter of criminal liability?

Mr. Boland

That is there already. I remember a case myself where a man was murdered in County Leitrim, I think. The widow sued the person who was convicted and got damages. I am pretty sure that that is the law.

I suggest that they are entirely different circumstances.

Mr. Boland

So far as these are concerned, I would not amend this Bill to deal with them. I think I am right in saying that a person who commits an assault or injures or kills somebody can be proceeded against.

The widow or anybody else could not proceed in this case, because the widow was already paid by the State. What I want is machinery that will enable the State to recover off the person convicted.

Mr. Boland

I think the State can do that.

They never did it.

Mr. Boland

I am not prepared to answer that right off, but I believe they can. I believe that in motor car cases they have done it. Anyway, we do not intend to do it in this Bill.

Question put and agreed to.

When will the Committee Stage be taken?

Mr. Boland

As the Dáil is adjourning this week, I should like to get it to-morrow.

We will agree to give all the stages to-morrow if the Minister brings in a suitable amendment to Section 6.

Mr. Boland

All right.

Ordered: That the Committee Stage be taken to-morrow.
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