On behalf of Deputy McMenamin, I move amendment No. 1:
In sub-section (1), lines 23 and 24, to delete the words "land or premises or in the immediate vicinity of whose".
Committee on Finance. - Customs (Amendment) Bill, 1945—Committee Stage.
Section 1, 2 and 3 put and agreed to.
SECTION 4.
Has the Deputy anything to say in favour of it?
I am waiting to see what the Minister has to say.
The Deputy moved it and he ought to say a word or two in favour of it.
The Minister ought to state his objections.
I understand the purpose of the amendment is to direct the Minister's attention to the rather unreasonable provision which makes a man responsible for something found not in his own land but on land even in the vicinity of his own land. There might conceivably be a commonage, or a commons as it is called in the country, adjoining a farmer's place, and it is considered unjust and unreasonable that the owner of adjoining land should be held responsible for something found on that commonage and which according to this Bill would be found within the vicinity of his land or premises. The provision is too wide and conceivably an injustice might arise.
This might seem a very wide provision and to some people who are not accustomed to this type of legislation it might appear that it gives powers that should not be in the hands of officers of custom and excise, but without it the scheme of the Bill would not be workable. It is similar to powers that are in the Acts which are the foundations of the customs code.
This provision is necessary to enable a customs officer to deal with the many cases in which smugglers have dumps on premises or lands near the frontier. It is not an uncommon thing for customs officials to find dumps when smuggling goes on and so it is necessary to have this power. If they have not that power smugglers would, in many instances, be able to get away with the goods and get them across out of the dumps when customs officials might not be there in as great numbers as they normally are.
We want that power so that we can get after people who smuggle or attempt to smuggle and who might be using land, perhaps not their own land, or buildings as a place to hide smuggled goods. It might be that the person whose land was used knew nothing about what was being done on his land, or it might be that the persons who were using the land for dumping the goods were in connivance with the owners. If we had not these provisions in the law, our hands would be tied in very many cases. It has been proved over and over again that it is absolutely essential to us to have this power, if we are to prevent the smuggling that still goes on and that, even if this Bill is passed, will still be attempted in Border counties.
Surely the Minister will appreciate, in the case of an innocent owner who has nothing to do with the smuggling that goes on across the land frontier, that such a man is being put in an impossible position, in being asked to render an account to the revenue officials in circumstances of that kind? He probably has no knowledge, direct or indirect, as to what is going on.
I think he would be able to satisfy the revenue officials if that were so.
Is the Minister not aware that, in certain revenue cases, where the onus of proof is on the persons on whose lands certain things are found, an innocent person is in a very difficult position? He has to suffer the hardship of costs in defending the case, in which he is afterwards found to be innocent, but there is no means by which he can get costs from the State; even though he succeeds in his case.
I think, if one looked up the history of the number of cases where any evidence could be shown to go near proving that innocent persons had been made suffer, the number would be found to be very small, if any. I would be glad if the Deputy would let me have particulars of any cases.
It is easy enough. Take the poteen prosecutions, which are revenue cases somewhat similar to smuggling. An innocent person's land may be utilised by lawless persons and the owner is automatically charged with the offence and nearly always prosecuted.
Oh no, not necessarily charged with the offence. He would certainly be called on by the police authorities and asked to give any information he could but it does not follow that he would be prosecuted.
That has happened nearly always where things like that are found on the premises or on lands away from where the owner resides. Though he had no knowledge of them, he was brought to court, where it was proved to the satisfaction of the justice that he had no knowledge whatever of them; but he was still put to the cost of defending and he could get no redress for the costs he incurred. I want that to be avoided.
The only alternative is to let the smugglers get away. We cannot do that.
Would the Minister consider giving the costs, in the case of a person who is found not guilty?
That would be a matter for the court.
One should couple this section with what is said in sub-section (2) (a) and (b), that the person shall forthwith to the best of his knowledge or ability give such information or produce such document and if that person fails or refuses to do so he is guilty of an offence. In the case of a dump being found on a commonage or no man's land, the adjoining owner is put in a rather difficult position. If he even fails to give any information, he may find himself charged with an offence. I say that is rather drastic. If you delete the word "fails" and stick to "refuses", I would be in favour of it.
We need the power as it is given there. There is smuggling going on every day and, in some places, every hour of the day.
For thousands of years.
Not forgetting the nights as well.
Probably the night is the more profitable time. Deputies who do not come from Border counties do not realise the amount of traffic that is going on. I have to realise it, as it is brought to my notice officially. The Deputy from Dundalk could tell very many stories—interesting stories.
It is not a one-way traffic, either.
He could tell interesting stories, if he put his mind to it or had the time to do so. Judging by the number of appeals we get from the Deputy to consider the cases of persons who have got into difficulties, we know that he knows a good deal about what goes on. It is very, very difficult to stop it and we have not the powers at present that we need badly to enforce the law which this Dáil made to prevent goods leaving this country illegally or coming in illegally.
Would the Minister say the position is as bad as it was in regard to illicit distillation 50 or 60 years ago, when illicit distillation was practised in very many counties? The revenue authorities had none of these powers to cope with it, yet they managed to stamp it out in due time. I think I would prefer to see a smuggler getting away, rather than that an innocent person should be put in an impossible position. I quite appreciate the difficulty in coping with smugglers, whose work is largely done in the dark, but an innocent person may conceivably find himself charged with an offence, as this section is framed, if he even fails to give information which he may not have. I would certainly agree to "refuses", but "fails" would put him in an impossible position.
We will have to take the most drastic steps we can to stop the traffic.
Is the Twenty-Six Counties getting the worst of the deal or are we on terms of equality?
I have not enough information to be able to answer that question.
According to "The Donegal Widow", there was never a Munster man who could beat a "far-down".
On the question of illicit distillation, I had a deputation from the Licensed Grocers' and Vintners' Association a few years ago and one of the officials told me that, to his knowledge, there was illicit distillation going on then in 16 counties.
He was very good, when he was able to narrow it down to 16.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section agreed to.
Sections 5, 6, 7 and 8 agreed to.
SECTION 9.
I move amendment No. 3:—
Before Section 9 to insert the following new section:—
(1) Where proceedings for an offence under the Customs Acts are dismissed, whether on the merits or without prejudice, by the District Court, the complainant may appeal against the order of dismissal to the judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate.
(2) The decision of a judge of the Circuit Court on an appeal under this section shall be final and conclusive and shall not be appealable.
Section 84 of the Courts of Justice Act, 1924, provides that an appeal shall lie in all cases, other than criminal, from any decisions of a justice of the District Court, while Section 18 of the Courts of Justice Act, 1928, provides generally that in criminal cases an appeal shall lie only by the person against whom the order of court shall have been made. In the case of O Croinin v. Brennan (1939) I.R. 274, the High Court held, in a case taken under Section 186 of the Customs Consolidation Act, 1876, for knowingly keeping and harbouring uncustomed goods, that the proceedings were civil in nature. This case was concerned with an offence arising out of attempted evasion of duty, and accordingly the right of appeal from a dismiss by the District Court in cases of the kind has, so far, been regarded as secure.
A new position has arisen in consequence of a judgment given in the Supreme Court on 21st December last which is of importance as affecting the powers of the State in regard to appeals in the case of customs prosecutions which have been dismissed by a District Court (the State (Francis Gettins) v. Circuit Court judge—North-Western Circuit). The case in question arose out of an alleged breach of an export prohibition imposed by Emergency Powers Order, and the Supreme Court has in effect decided that all offences which are ultimately grounded on the Emergency Powers Act, 1939, are in their nature criminal and that, accordingly, there is no right of appeal in such cases.
The position is, accordingly, that while the State possesses the right of appeal in cases arising out of evasion or attempted evasion of duty, and possibly in cases of import and export prohibitions other than those imposed as the result of emergency legislation, it has no such right in the type of case which is at present of vital interest to the community, i.e., breach of emergency prohibitions. It is considered essential for the due enforcement of these prohibitions that such a right should be obtained, and, irrespective of whether or not the other clauses of this Bill pass into law, it is desirable to establish beyond doubt that such a right appertains to the State in all cases of prosecutions under the Customs Acts.
Are we to take it that——
The Supreme Court, in December last, altered the law.
Are we to take it that the present position is that customs prosecutions are to be treated as criminal prosecutions?
Customs prosecutions initiated under the Emergency Powers Act, 1939. The result of the Supreme Court decision is that they regard them as criminal prosecutions.
This Bill has nothing to do with the Emergency Powers Act, 1939.
This Bill is to replace certain powers we have by an Emergency Powers Order. We are putting them in the ordinary Statute Book, and we are expanding the powers we have now by an Emergency Powers Order.
In my opinion, this amendment is designed again to get outside the decision of the court.
No, it is to bring the law into accordance with the decisions of the Supreme Court. That is what our proposition is here.
That in future these prosecutions will be regarded as criminal prosecutions.
If they are regarded as criminal prosecutions, we want to preserve the right of appeal.
Up to now the accepted principle has been that, where a dismiss has been granted either on the merits or without prejudice, the State has no right of appeal.
In certain cases.
Here you are introducing a section which cuts right across what has been the accepted principle in criminal proceedings up to now.
We are obliged to do that because the Supreme Court has altered the law.
The Supreme Court has said that, in the matter of export prohibition, which is based upon an Emergency Powers Order, the proceedings are criminal; but it is not at all clear that they have overruled the decision in O Croinin v. Brennan, which held that customs proceedings were in their nature civil.
Our understanding of it is that they have changed what was the practice; that they have given a new interpretation to what was the practice up-to-date.
The Gettins case has not been reported yet, so that I am at a disadvantage. But, from what I understand of it, it is not, strictly speaking, in conflict with the decision in O Croinin v. Brennan. In any case, you are now taking away something which has been the accepted principle of procedure in criminal proceedings.
We are not taking away anybody's right.
You are giving the State the right of appeal where the citizen has succeeded in getting a dismiss.
Even the State should get the benefit of the law. The State is certainly entitled to get a fair crack of the whip the same as the citizen, and that is all we ask.
The accused is in this position under the amendment, that if he succeeds in getting a dismiss even without prejudice, no hearing having taken place, the State can appeal to the Circuit Court, and before judgment is given by the Circuit Court, the State may again, on a point of law, bring him to the Supreme Court. I think it is a rather drastic invasion of the old procedure, and that to that extent it takes away a certain amount of rights which the citizen heretofore had in matters of this kind. You are loading the dice against him. The State can afford to go from court to court regardless of expense, but the average citizen is not in that position. You are not on terms of equality.
Not in that sense.
I hold it is unfair. Again, it is to a certain extent retroactive in its effect. You are getting away from the old procedure because of the decision in the Gettins case. I think it is very unreasonable considering the powers you already have under the Bill. You already have the power to make a suspect account for himself, the power of search, and the power to do all necessary things to make him amenable to justice. Having all these powers, you come along and deny him what was heretofore his right, that if he got a dismiss from the lower court, that was the end of the matter. You can now take him to the Circuit Court and to the Supreme Court, if necessary. I think you are loading the procedure against the accused. I do not think it is unconstitutional, but I do say it is very drastic in its effect, having regard to that aspect of the matter.
I think all people interested in the law should be glad that we are giving powers to let the citizen take his case or the State take its case into the highest court available in the land. I do not see that we are doing any injustice to anybody.
Under sub-section (1) the complainant may appeal. It is not a question of conferring any business on lawyers or anything like that. I think this is a matter where the rights of the citizen should receive first consideration. We feel that the principle embodied in this amendment cuts in so much on the rights which the citizen heretofore held that we will have to oppose it strenuously.
Up to the present we have had powers of appeal in cases involving duty. If we do not get this amendment, we will not have that power in cases arising out of the emergency.
Because they were civil proceedings. You are now assuming that after this Bill is passed these proceedings will be criminal proceedings. I do not know if that is the intention of the commissioners or whether or not they prefer that the proceedings should be criminal proceedings. Having given them criminal proceedings, immediately you proceed to deprive the citizen of the right which he has in all legal proceedings, namely, if he gets a dismiss in a lower court, that is an end of the matter.
I believe that the State and the individual should have equal right of appeal, but I should like the Minister to give the House his observations on sub-section (2) of the proposed new section:—
"The decision of a judge of the Circuit Court on an appeal under this section shall be final and conclusive and shall not be appealable."
In other words, the State claim the right, if they lose their case in the District Court, to appeal to the Circuit Court. If the State win their case in the Circuit Court, the citizen has no right to go to a higher court. The matter finishes there. I think there is something inconsistent in that. If the State claim the right to appeal in one instance, they cannot very well deny to the ordinary citizen the right to appeal to a still higher court. Under sub-section (2) there shall be no appeal from the Circuit Court although the State claim the right to appeal from the District Court to the Circuit Court.
What we are really looking for here is appeal to the Circuit Court. The defendant has that right at present and we want to put the State in the same position.
That is the old argument again—the State must have prerogative all the time; the citizen must get no right.
We are not taking away the citizen's right.
I have no sympathy with anyone engaged in the smuggling traffic but I would prefer that 100 smugglers should get away rather than that one innocent citizen should have to put up with this type of legislation. You are taking away his rights.
No. If the defendant has the right to appeal also, we are not taking away his right.
The State had no right of appeal heretofore.
In certain circumstances, yes.
You are now establishing the principle that the State will have the right of appeal.
Yes.
I think that is a very serious invasion of the citizen's rights and an extraordinary departure, to say the least of it, from the criminal procedure obtaining up to now.
A person charged may get a dismiss or informations may be refused. The case is dismissed on the merits and without prejudice. The proceedings have cost him a considerable amount of money and a considerable amount of mental worry. The State, with all its machinery, with all its powers, is getting now, for the first time, a right to appeal against that dismiss. Deputy Coogan has very properly put it that the cases are not equal. The resources of the individual cannot be compared with the resources of the State. Where the State can lightly and light-heartedly appeal, the citizen cannot. I feel that the scales are being loaded against the citizen. There is a fundamental right in law at the moment, in criminal cases, that a person cannot be tried twice on the same facts, or cannot be put on his hazard. That is what you are going to do in this particular case. A court of jurisdiction has tried the case and has dismissed—and you will not get any judge to dismiss lightly. The State then, on the same facts, proceeds to charge the person again, on appeal, and puts the person charged to the trouble, mental and financial, of defending himself against the resources of the State. The State can lightly and readily employ senior and junior counsel and a first-class State solicitor's office to prosecute the case. The poor unfortunate citizen will be governed, very probably, by his pocket, and there will certainly be considerable loading against him. I would ask the Minister, before he presses the amendment, to consider very well the disadvantages as well as the advantages. I maintain that the disadvantages far outweigh the advantages.
Amendment put.
The Committee divided: Tá, 60; Níl, 34.
Tá
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Colbert, Michael.
- Colley, Harry.
- Daly, Francis J.
- Derrig, Thomas.
- De Valera, Eamon.
- Flynn, Stephen.
- Furlong, Walter.
- Harris, Thomas.
- Hilliard, Michael.
- Humphreys, Francis.
- Kennedy, Michael J.
- Killilea, Mark.
- Kilroy, James.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lydon, Michael F.
- Lynch, James B.
- McCann, John.
- McCarthy, Seán.
- Breen, Daniel.
- Brennan, Thomas.
- Breslin, Cormac.
- Briscoe, Robert.
- Buckley, Seán.
- Burke, Patrick (Co. Dublin).
- Butler, Bernard.
- Carter, Thomas.
- Childers, Erskine H.
- MacEntee, Seán.
- Moran, Michael.
- Morrissey, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O Cléirigh, Mícheál.
- O'Connor, John S.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O Sullivan, Ted.
- Rice, Bridget M.
- Ryan, James.
- Ryan, Mary B.
- Ryan, Robert.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Ward, Conn.
Níl
- Beirne, John.
- Bennett, George C.
- Broderick, William J.
- Coburn, James.
- Cogan, Patrick.
- Coogan, Eamonn.
- Corish, Richard.
- Cosgrave, Liam.
- Dockrell, Henry M.
- Dockrell, Maurice E.
- Donnellan, Michael.
- Doyle, Peadar S.
- Everett, James.
- Fagan, Charles.
- Giles, Patrick.
- Halliden, Patrick J.
- Keating, John.
- Larkin, James.
- McAuliffe, Patrick.
- MacEoin, Seán.
- McFadden, Michael Og.
- McMenamin, Daniel.
- Mongan, Joseph W.
- Murphy, Timothy J.
- Norton, William.
- O'Donnell, William F.
- O'Driscoll, Patrick F.
- O'Leary, John.
- Pattison, James P.
- Redmond, Bridget M.
- Reidy, James.
- Reynolds, Mary.
- Roddy, Martin.
- Spring, Daniel.
Tellers:— Tá: Deputies O Cíosáin and Kennedy; Níl: Deputies P.S. Doyle and Bennett.
Question declared carried.
Progress reported; Committee to sit again.