I was suggesting to Deputy Cowan before the adjournment that the decision on amendment No. 77 covered all these amendments.
Private Members' Business. - Defence Bill, 1951—Report Stage (Resumed).
I am inclined to consider that it does, but if any point should arise when we reach them I would like to be able to refer to it.
I will not rule rigidly against the Deputy but I think as a general statement we might say it covers all these amendments.
So long as they are covered I will agree to take it in the way we are dealing with it.
The amendments covered are Nos. 92, 95, 96, 122, 123, 151, 154, 157, 163, 164, 165, 168 and 173.
In regard to this amendment No. 92, its purpose is to delete the word "death" from Section 124 and substitute "penal servitude". In the previous Section 123, the House has decided that the section as amended should stand and that the punishment for an offence under that section should be death. Section 124 is a somewhat different section to Section 123 in that it provides for a capital offence by any person in relation to the enemy and it provides that a person found guilty of one of the offences set out there will be liable to suffer death or any less punishment awardable by a court-martial.
I want to be brief in my submission in respect of this particular section because I think on the discussion on the previous section I did put forward as strongly as I could my own view in regard to the operation of capital punishment in regard to military offences. I want to say that since the State was established I am not aware of any case in which the sentence of death has been imposed on any officer or soldier of the State and consequently we are inclined to take the view that there is nothing to be worried about in regard to a section such as this. In general, I feel that where a person in this State is guilty of any offence that involves a sentence of death he should be tried not by court-martial but by a jury. If we ever reach the position in this country that the civil laws will not operate and where only military laws will operate I think we will be in a pretty sorry state indeed. I feel myself that in a state of emergency, if an ordinary person who is not subject to military law commits the offence of murder he cannot be dealt with by court-martial under the provisions of this Act and therefore he cannot be sentenced to death by court-martial as he is still subject to the jurisdiction of the civil courts and still entitled to be tried by a jury of 12 of his fellow citizens. Similarly, if an officer or soldier is charged with an offence that may result in his being sentenced to death I feel that he should not be tried by court-martial but like the person charged with the offence of murder he should be charged before a jury and before he is sentenced to death there should be the ordinary requirements of the law that the jury trying his offence should be unanimous.
I know the same point will be made in regard to this section and to the other sections as was made in regard to the previous section, that he will be tried by his peers. There is at least this difference between this and the previous section: that any person subject to military law, whether a reservist or an officer, a non-commissioned officer or a soldier of the permanent forces, is liable to be tried by court-martial which will consist entirely of military officers, and that court-martial can, if four out of five decide to convict, sentence him to death. I do understand what the Minister said on the previous section and which is the law, that if a person is sentenced to death by court-martial that sentence cannot be operated until it is confirmed by the confirming authority. In other words, there is that machinery for consideration of the sentence by the confirming authority which studies the evidence.
But the great objection I have to the sentence of death by a military or any tribunal of that kind, such as a court-martial, is that the same rights are not available for the soldier as would be available for the ordinary citizen if he was charged with a grave offence and that, in those circumstances, it would be much better if the power to sentence to death was not enforceable by military court-martial. I want to substitute for the provision of death the provision of penal servitude, because it is notorious in regard to military courts-martial in times of war or stress that they are inclined to act precipitately and to take a point of view in regard to an accused person that would not be taken if the matter were examined in the cold light of peace. For that reason, I am anxious that the supreme penalty of death, if it is to be enforced, should only be enforced in accordance with ordinary law where the person concerned would be tried by a judge and a jury, and where such rights as exist in this State in regard to State assistance for his defence would be made available. If a court-martial, in the heat of an emergency or war situation, sentences a man to death and that sentence is executed, subsequently, when more information is available, it may be found that the conviction was wrong and that the sentence was wrong but then it would be too late to undo it.
My view, in regard to it, is that if a sentence of penal servitude is imposed, which can be penal servitude for life, and if it is found subsequently that there has been an error, it is easy to release the particular person from custody, whereas if it is discovered that a person was shot, and was shot unjustly, or on evidence that subsequently transpired not to be sound evidence, he cannot be brought back to life. For that reason I move that the punishment of death, where the offence is as set out in Section 124 and in the other sections which have been mentioned by the Ceann Comhairle, should be replaced by penal servitude.
Major de Valera
I find it hard, indeed, to understand the attitude behind these amendments. First of all, I should like to reiterate what was said on the previous section. We have to realise that this relates only to active service, and relations with an enemy, and to a situation where your normal, peaceful and peace-time procedures have no application because they simply cannot be applied. The perturbation of war has made the application of ordinary peace-time standards impossible. You are up against the brutal realities of war. I have heard Deputy Cowan, in the course of the long debate on this Bill, put in a number of times the argument of invoking our own experience here. That is no argument, because in fact we have not had, thanks be to God, in this country, experience to the full of what active service conditions mean, particularly active service conditions where the theatre of operations is immediately present. Incidentally, these provisions only apply in the theatre of operations, if one reads the sections carefully, in the face of the enemy, and in contact with the enemy.
There is no use talking about our past experience here. It is not comparable to full-scale active service or full-scale action. Let us soberly realise that we have not had experience of what I may call real wholesale war in this country, and all that that means, since the Williamite wars, generally speaking, and in local areas since 1798. You certainly had that situation in 1798, but not, I think, since that date have we really had all out active service conditions here.
What really is involved here? It is necessary, unfortunately, for the maintenance of discipline and morale to have these sanctions. Deputy Cowan suggests penal servitude, and in his argument he seems to suggest civilian trials. Let us look at it realistically. What possibility would there be of calling juries and of carrying out the whole paraphernalia of a civil trial under active service conditions in face of the enemy? What chance would you have of doing that? Let us be realists about this. I know that Deputy Cowan has had military experience and that he can talk as a soldier. I know that he is not unaware of these factors. If I heard some of his arguments coming from somebody else I would be inclined to say that he was talking as an academic lawyer without any appreciation of the facts at all. I can, however, see what has activated Deputy Cowan in moving his amendment, and in a certain sense, I sympathise with his aim. The only proper answer to make, I think, is that here you have a brutal situation. You are faced with all the realities of what it involves, and there is no choice of procedures. So much so is that the fact, that, in the immediate theatres of operation, where the operations were actually being conducted, it would probably be necessary that all, even non-combatant and non-military personnel would be treated alike and would be subject to the same restrictions.
It would be a very nice legal nicety indeed in that situation to separate what you might call civil responsibility from responsibility touching on military matters. Take a crime that always has carried the death sentence under the military code, the crime of rape. If that is committed by a civilian, or if there is looting in the course of operations, you might argue that was a question of civilian responsibility, but it is not completely clear from having its military aspects for the very simple reason that if a civilian, any more than a soldier, indulges in that type of crime, he is a rotten apple and a source of demoralisation. He is, so to speak, the spark that sets the mob off in the wrong direction, and perhaps demoralises the whole corps in the area. It is necessary, because of that, to introduce into military law capital punishment for soldiers. One can see that there is a very arguable case as to why a civilian, a non-combatant, committing the same crimes in the same circumstances, would not be amenable to military law, and to the same punishment because of their repercussions on the forces, and on all the other things that are involved.
The brutal fact, again, is that where the animal passions are let loose, the weakness of fear and of self-preservation—where all these factors are likely to have free play in a situation where the normal restraints are not present, but where there is a coercive psychological influence in the other direction, the experience of the past in all armies and of all peoples who have had experience of active service, is that it is necessary to have this very severe punishment in order to safeguard the army and the community as well as to safeguard and maintain discipline and the troops on their mission. That has not only been the experience of this country but it has been the universal experience in war. Take any war you wish. Perhaps the 1918 war is the classic example where, again and again, unfortunate men were executed because they forsook their posts under devastatingly trying conditions in the front line trenches. Much has been written on that; many a soldier coming back from that war has written about it, and written about it in very scathing terms. But when one studies the subject one is forced to the conclusion that had it not been for these sanctions, whole sections of the defence would have been abandoned and it was, therefore, unfortunately a necessary military provision for holding one's positions.
The sentence of death for cowardice has been there for a very long time, and there because it was a necessity. Let me not be the one to decry the natural bravery and honour of Irishmen, and the name of our men in all generations of our history. I am speaking now in the presence of men on the front benches here who are in themselves a living testimony of that. On the other hand, we must be realists. We are dealing with human nature. We are dealing with the average man. Any responsible staff, civil or military, advising a Minister would have to advise him to bring in such a provision as this and any serious-minded Minister would have to implement it. Not only has that been necessary in the past, not only has it been necessary to have the capital sentence for these specific offences which may briefly be summed up as "failure in the face of the enemy" but it has been necessary to apply the same severe punishment to such things as looting, rape and other forms of indiscipline; and the real crux is not so much the indiscipline as the demoralisation which may spread if that indiscipline is not immediately checked.
Let us take Deputy Cowan's proposal of penal servitude instead of death. On humanitarian grounds we would all like to see such a provision. Let us consider for a moment the section to which it applies. Supposing one substituted penal servitude for a person who commits a number of these offences, for a person who fails to carry out an operation of war because he retires, refuses to fight or abandons his station —in other words, the man who runs away because he wants to get out; and very probably the man who will do that will only do it under the pressure of the instinct for self-preservation— what then will be the position? The whole object in committing that offence was to get away. If you substitute penal servitude you copperfasten it and give the offender exactly what he wants by locking him up. One would want pretty big prisons before one finished with an army on active service conditions if one started that kind of game. One might as well not have the section at all if one were to incorporate in it a provision of that kind.
Consider the position of the front line. If this unfortunate who under dire distress very naturally and understandably seeks to preserve himself— I refrain from using the word fear because there is a certain ignominy attached to it; the fear that drags people back in face of danger is a very natural one; in some cases it is almost uncontrollable—the individual who retires from that position and subsequently finds himself safely locked up in prison will not worry about the years ahead because he has solved his immediate problem. Indeed, I think such a provision would be a temptation to him to run away. I am rather surprised at Deputy Cowan's insistence on this. I sympathise with him and, as far as peace time is concerned, I would be with him all the way in his insistence on formality and the preservation of the rights of the accused and so on. That simply cannot be minimised and he has done a service in emphasising these points.
In relation to active service, however, while I go so far with him as to say that every precaution should be taken to ensure justice and fair play, one has a very different set of circumstances to deal with as compared with peace time. To legislate otherwise than is proposed here would be tantamount to introducing a very serious weakness into our defence framework. One must remember that so long as the chance of war exists, and so long as human nature remains as it is, we must have regard to the fact that a military organisation is something apart. Because of that, there must always be a certain element of coercion and a certain element of compulsion. The interests of the forcequa force must always take a rather more important place than the interests of the individual, to a far greater extent than the interests of the community are relative to the interests of the individual in the ordinary state.
These are the facts that must be faced if we contemplate having an army at all, and it is these unfortunate facts that we must contemplate in introducing this Bill. These provisions are necessary if our Defence Forces should ever be called upon to fulfil their rôle. We sincerely hope that necessity will never arise. Let us, by all means, adopt the view that Deputy Cowan advocates in relation to peace-time provisions and the interim period; but when it comes to active service, let us not stultify the situation by introducing impossible concepts, perhaps ideally desirable in a Utopian situation but incapable of realisation. Let us not introduce such concepts, because they are a potential danger. Their introduction will, at best, work out a nullity. If we adopt a realistic approach we will provide the proper safeguards in the direction the Deputy wants. If we provide impossible safeguards, or if we provide no safeguards, then, in actual fact, we are leaving the position at the mercy of the coercive and horrible circumstances of war without any regulations or protection whatsoever. While I agree with much that the Deputy has said, especially in Committee, on various parts of this Bill, on this particular issue I have to differ from him.
I think I have said all I have to say on Section 123 when we dealt with this whole subject. I would be only doing what Deputy Cowan was doing, that is, repeating myself, if I were to continue. But, once again, I want to impress on Deputy Cowan and on the House that Section 225 states:—
"A sentence of death passed by a court-martial and confirmed shall not be carried out unless and until the execution of the sentence has been approved by the Government."
I can assure the House that one of the most solemn occasions on which a Government can meet is when they have to discuss the question of a death sentence. In these cases, the crime is the horrible one of wilful murder. Yet I can assure the Deputy and the House that on occasions such as that the fullest possible consideration is given to every possible aspect of the crime before a decision is come to. I can well understand that here, where the wilful committal of brutal murder is not concerned, the Government dealing with a matter of this kind would deal with it in the most sympathetic possible way. That, I think, should remove any fear which Deputy Cowan, or any other Deputies who think like him might have. I cannot go very much further without repeating myself.
Major de Valera
May I intervene to say that, even with the provision that the Government must ratify the death sentence, I have my doubts whether it will work in war?
I appreciate the point of view of Deputy Major de Valera and the Minister in regard to this matter, and I can fully understand it. But the fact that a person has been a soldier does not really enter into the matter at all. To me, anyway, this question of life and death is a very important thing. In many civilised countries all over the world, and in some countries which, perhaps, in this country we might not call civilised, they do not impose, and are not in favour of, the death penalty. Of course, the taking away of human life is always a very serious matter. To-day, when certain Governments and Parliaments are considering this whole question of whether or not there should be a sentence of death at all, it would be a very bad thing if we in Parliament did not even consider the problem and just pass as a matter of course, the fact that, for the numerous offences set out in this Bill, you can sentence a person to death.
I must accept the criticism that I am actuated by humanitarian motives. I never like to see anyone executed. I think that every person, no matter how grievous his crime or offence is, should get an opportunity of atoning for it in this life. I am a great believer in what is known as the quality of mercy. I am one of those who think that the taking away of human life is the gravest thing that can be done. I do not see that this section is made any more effective by providing the sentence of death for the offences than it would be if there were a sentence of penal servitude. It is right to say, of course, that this section is limited, not to active service, but to offences in relation to the enemy. It goes some what further than the ordinary active service. It does involve some relationship with the enemy.
There is a provision which we will come to later in relation to prisoners of war. There is mutiny with violence, not on active service, but in peace time, and mutiny with violence may result in death as well. Deputy de Valera mentioned the question of rape but, strange to say, although that is a grievous offence, a person guilty of it cannot be condemned to death, as I understand it, because that is one of the offences in the ordinary law of the country for which the death penalty does not now exist. In actual fact for that particular offence the sentence of death may not be imposed.
There are my views in regard to the sentence of death. I do not want to repeat what I said on the other sections. I understand the Minister's point of view and I understand very fully the contribution which Deputy Major de Valera made but, nevertheless, I think it is a sign of greater civilisation when you can do away with this idea of the death penalty. There is something uncivilised about this idea of taking upon oneself the right to execute a fellow human being. It is because I have that view that I have put down this amendment.
Major de Valera
Would not the logical thing be if it could abolish war? We would all be very happy then. Is not that the real crux?
That is perfectly right. If we could abolish war, then we would save many lives. In fact, I think, the whole world tendency at present is, and has been for many centuries, to avoid wars as far as possible. I hope that the efforts of world statesmen to-day will result in the elimination of wars at least in our part of the world, and if they do then we would not be worried very much in regard to the operation of this particular section.
Major de Valera
We are legislating here for if war comes.
Yes, but I do not think we need worry too much about it because if war comes it will come like a thief in the night. However, I have put my point of view. I wanted to have it on record. I think that in a case of this kind it is no harm that the matter of death sentence or penal servitude should be discussed when the Bill is going through the House, and on general humanitarian lines I would like to put on record that I do not think that the imposition of the death sentence makes the section any more effective than the penalty of penal servitude which at least leaves a man his life.
Is the Deputy pressing his amendment?
Yes, just put it.
I move amendment No. 93:—
In page 62, Section 125 (2) (f), line 21, to substitute "unjustifiably" for "improperly".
It is substituting the word "unjustifiably" for "improperly".
Major de Valera
Does it mean anything?
It does, or at least we considered in the Special Committee that it did.
I move amendment No. 94:—
In page 62, Section 125 (2) (k), line 30, to substitute "without proper authority" for "irregularly".
I move amendment No. 95:—
In page 63, Section 126, to delete all words after "court-martial" in line 9 down to and including "case" in line 11.
Does Deputy Cowan require a decision on amendment No. 95?
Yes, I will take a decision on the amendment.
I move amendment No. 96:—
In page 63, Section 127, line 16, to delete "death" and substitute "penal servitude".
I move amendment No. 97:—
In page 63, Section 132, line 46, to substitute "in an insubordinate manner" for "with contempt".
I move amendment No. 98:—
In page 64, Section 134 (2) (a) (iv), line 43, before "or", where it secondly occurs, to insert "and continues so absent accordingly".
This refers to Section 134, which deals with desertion. Sub-section (2) (a) (iv) says that he deserts if he absents without due authority from his unit or formation or from the place where his duty requires him to be and at any time during such absence forms the intention of not returning to that unit, formation or place. I want to insert the words "and continues so absent accordingly", so that it is a matter of desertion if he is absent without due authority from his unit or formation or from the place where his duty requires him to be and at any time during such absence forms the intention of not returning to that unit, formation or place, and continues so absent accordingly. I do not know what the Minister will say.
I have had that examined by the legal authorities and they advised that the additional words suggested by the Deputy are unnecessary because the necessity for a charge of desertion under the paragraph would not arise unless the man continued to be absent. In fact, this is not necessary at all.
I will not press it, but I had an idea that it would help.
I move amendment No. 99:—
In page 64, to delete Section 134 (2) (a) (v), lines 44 to 51, and substitute the following:—
(v) if, at the termination of a period of absence with leave, he absents himself without leave and at the time of so absenting himself without leave or subsequently when absent without leave forms the intention of not returning to his unit or formation or place where his duty requires him to be and in pursuance thereof does not return to that unit, formation or place.
This is to substitute one sub-section for another. Again, in the definition of desertion, Section 5 says:—
"If, while absent with due authority from his unit or formation or from the place where his duty requires him to be, with the intention of not returning to that unit, formation or place, he does any act, or omits to do anything, the natural and probable consequence of which act, or omission, is to preclude his return to that unit, formation or place at the time required."
I propose to insert instead this proposed sub-section. I feel that the wording of my amendment is somewhat better from the point of view of the defences to what is in the section. However, I would like to hear what the Minister says.
This is actually covered by the preceding sub-paragraph, and the reason why we are insisting on retaining this is because there have been a number of cases which have been dealt with by that section. It would be necessary to retain it.
Well, I am not going to argue that. I have put down the amendment for consideration and if it is not considered necessary I will not quarrel with that.
I move amendment No. 100:—
(a) In page 65, Section 140 (b), line 48, to delete "when seeking redress under Section 113,".
(b) In page 66, Section 140 (b), lines 1 and 2, to delete "or knowingly, in respect of the redress so sought, suppresses any material facts".
In the Special Committee, it was suggested that the present section, with its specific reference to Section 113 might have the effect of making me afraid to seek redress under that section. I do not regard these fears as well founded, but neither my advisers nor I regard the matter as of any particular consequence, and, accordingly, there is no objection to doing what the Special Committee requests, namely, to delete the reference to Section 113. The alternations incorporated in this amendment provide accordingly.
I would like to say and to place on record that I appreciate the change that the Minister has made here, because Section 140 creates the offence of making a false accusation against an officer or a man and, as originally drafted, if when making a complaint under the redress of grievances section about which we had a long discussion yesterday he made a false statement against his superior officer he could be court-martialled for it. I felt at the time, and I think there was general agreement with the view I had, that to put in a section like that would have the effect of completely nullifying the whole procedure under the redress of grievances section, and that when a soldier or an officer makes a complaint to the Minister or to his commanding officer that complaint should not be subject to an examination that would result in the individual being court-martialled, because in making his complaint he had made some false statement affecting an officer or soldier. The Minister, having agreed to delete the words which he proposes to delete under amendment No. 100, in paragraphs (a) and (b), I think has improved the section and has removed fears that we held that a very important section affecting the rights of soldiers could be used to the detriment of the soldier and the officer. In that case the whole machinery for dealing with grievances would have been nullified. I am very pleased the Minister has brought forward the amendment.
I want to say that I appreciate the gesture of the Minister in amending the section in this particular way because it does make it more reasonable for a person who has a grievance to make a complaint. If he did slip up unintentionally, he could be charged, if the section remained as it was, with intentionally having made a false statement. I think the amendment will be a help.
I move amendment No. 101:—
In page 67, Section 149, line 43, to delete "not authorised" and substitute "forbidden by orders or by law".
Section 149 says:—
"Every person subject to military law who, being in command of a State ship or service aircraft, takes or receives on board, or allows to be carried, goods or merchandise that he is not authorised to take or receive on board is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment or any less punishment awardable by a court-martial."
Instead of the words "not authorised" I want to substitute "forbidden by orders or by law" so that the sub-section would now read:—
"Every person subject to military law who, being in command of a State ship... allows to be carried, goods or merchandise that he is forbidden by orders or by law to take or receive on board shall be guilty of an offence."
In other words, it is approaching the section in a different way from what is already there. It is putting the onus on his superior authorities, on the law, to say what he may or may not take on board. I think there is an important distinction here because if an officer in any ship happens to be at a port in France, Spain, Britain, Holland or somewhere else and takes some article on board that he is not specifically authorised to take on board, he commits an offence and I do not think that is right. I think that the offence should be taking on board something that he is specifically prohibited by regulations or by law from taking on board. If he disobeys regulations or the law of the country, let him face the music for that, but I think it is unfair to leave the section in such a way that if he takes something on board that he is neither prohibited nor permitted by law from taking, but simply takes on board something without being authorised to do so, he can be held to be guilty of an offence. I think the Minister should accept the amendment because, from the ordinary point of view of justice and fair dealing, it would improve the provisions of the section.
I can say that in the first flush of my examination of the wording proposed in the amendment, I, too, felt that it would be possible to use a word like "forbidden" instead of "not authorised", but I had the matter examined by the legal authorities concerned and their view was that the use of the word "forbidden" would necessitate listing the articles which a captain would be forbidden to take on board. No matter how we would like to look at it, the fact is there, that so long as men visit foreign ports and move around the world, they will always endeavour to bring something home that is probably dutiable or forbidden in some way. In their efforts to bring these things in, they not only break the regulations but get themselves into serious difficulties. I do not know that the use of the word "authorised" is going to prevent that. I have my own views about it, but when I am assured that the use of the word "authorised" is necessary in regard to this section, I can only assume that that advice that has been given to me is the result of very careful examination by the authorities concerned. I remember that, at the Special Committee, Deputy Cowan suggested that a man taking a box of matches on board would be liable to be charged with an offence under this section. Now, common sense teaches every one of us that that is the last thing in the world that anyone would interfere with or would suggest that it was in the nature of smuggling. There are quite a number of articles that individuals might be anxious to bring home as presents which would not be interfered with, but there again, as Deputy Cowan knows, my attitude in dealing with a matter of that kind might not be the attitude of the customs officials. I cannot accept this amendment in view of the very fact that I had it examined by people competent to express an opinion on it.
Major de Valera
I should like to add something by way of support to what the Minister has stated. If you use the word "forbidden"——
"Forbidden by orders or by law."
Major de Valera
Supposing we take that, you have two choices. One of them has already been mentioned by the Minister. You would have to prepare a positive list of prohibitions. I do not think it needs any argument to show the impossibility of that situation. You would prohibit perfumes, nylons, whiskey or anything you liked from the smuggling point of view. You might prescribe other things from another point of view, but, having gone about and probably having employed a large number of officers in the Department, racking their brains to see what should be prohibited or prescribed, you would not have got very far before you got a case that would not be covered, because something which it should be really an offence to import, had not been included in the list formulated. Any one of us who has had anything to do with the courts knows what happens in cases like that. In fact, the Deputy, like myself, has been confronted with such lists before and has been able to get through them.
I think we must accept what the Minister says, that that particular approach is ruled out. There is another method, in fairness to Deputy Cowan. You could do it this way. You could use Deputy Cowan's words and say: "every person in command of a State ship or service aircraft shall not take anything on board except"—and then proceed to define what he could take on board. That decision like the other sounds very reasonable, but analyse that too and you will find that probably you ban him from taking aboard some very necessary article which is required either for service or something like that. You have the smuggling case which the Minister seemed to be thinking of, and I can think of such things as safety in aircraft. Take a box of matches. You might feel you want to ban them from the point of view of safety in certain cases in aircraft. There was a time when that was done.
That simple case will immediately show you the difficulty you are in because you might want to ban matches from aircraft and it would be ridiculous to ban taking matches aboard an ordinary vessel at sea. When you look into the implications involved I think the Deputy should be able to agree that there does not seem to be any way out of it except by using this word "authorise", the point being this: that the man going aboard or, as this section has it, "any person subject to military law who takes or receives on board any article", is supposed only to take on board with him what is reasonably required or what is allowed to be taken on board. That is what is meant by authorised. Clearly he will not be authorised to take aboard a large number of other things, whether from the smuggling point of view, safety point of view or any other point of view which he might be forbidden to take aboard, such as spirits, for instance, from a medicinal point of view.
It is quite obvious that we want to have something like that and the only simple way I can see out of it is to use the word "authorise", and he is clearly and explicitly authorised to take aboard all he needs for his service. He would be implicitly authorised to take aboard such things as he might reasonably take aboard for his comfort, and he would clearly be authorised to take aboard a large number of other things which would be very difficult to specify in detail, or rather, I should say, not so much in detail as exhaustively. If you use the word "forbidden" you are caught. You have either got to define and list the forbidden articles or you have to forbid him to take anything aboard and define the permitted articles. Either course is objectionable. Like the Minister, you can argue on the dangers in this and there is always certain danger in provisions of this nature. But—let us face it—our whole criminal law is full of that kind of danger, and more and more as time goes on it becomes apparent that one of the things we have to guard against is the tendency to have such width as may possibly be abused. That is a hard fact. The unfortunate thing about this is that I do not think anybody has been able to think of a better way of putting it and I certainly do not think the Deputy's suggestion would meet it, as we pointed out.
There is only one point I want to mention. The commanding officer could make it impossible for a man serving under him to come aboard with his trousers on if it was not authorised that he should wear them.
Major de Valera
Then he would not be authorised to come aboard himself if he had not got them.
"Authorise" is a peculiar word, and I do not like it here. The customs code in every country states what you are not to bring in and, without going to much trouble, there is a huge list there already and I can see no great difficulty in a regulation being issued that the law relating to customs must be observed by every officer, N.C.O. or man coming aboard any ship. Then you might get down to other things that would not be dutiable and it is then only a question of what might endanger the ship. A man might want to take aboard "the eye of the little yellow god" which might bring a curse on the ship or something like that, which would get him into trouble.
Or if he took a dead body on board that he met at sea.
Yes, something like that. I do not know how we can get over it. I presume the captain of the ship can decide what he is to bring on, but who is to do the authorising?
That is the point. The captain is the man who gets into trouble.
The captain is in trouble anyway. It is a very difficult question but the Minister has told us that he has had it examined by his legal advisers and that common sense will govern the operation of it. I feel after taking everything into consideration it is very difficult to improve on that particular wording. I think that in view of the Minister's opinion, we should pass the section and not make it more difficult, because I think that by putting in the phrase "forbidden by orders or by law" there could be many things still left out that were not listed by orders or by law and that could still get a commander into trouble.
I saw the difficulty that was in this section when I read it and I want to say right away that I accept what the Minister says—that he has had this examined by the legal authorities. But I am inclined to the view that the Army legal authorities examined it from the point of view of military law, from the point of view of the making of a charge against a commander now and again. Certainly the wording that is there makes it easier for them to draft a charge against a commander than my wording, and I am not concerned with what legal officers think about it being easy to charge or not to charge; I am concerned about what offence we should create here and if a person brings on board something which he should not bring on board then he commits an offence. But if he brings something on board, something about which there is no direction given and if he brings it on in good faith, under the section as it stands he can be charged and convicted for bringing on board or allowing to be brought on board an article that was not specifically authorised.
Deputy de Valera has dealt with the two points. Before anything can be brought on board, even the box of matches which the Minister mentioned, if that is brought on board without authorisation, an offence is created. That is why I think it is unfair to the commanders of ships that there should be a loose section like that which allows them to be charged if they themselves, or anybody else in the ship's company or in the crew of the aircraft, bring on board something that is not specifically authorised.
Take, for example, an aircraft flying to Paris or a ship going to Amsterdam. The captain can bring nothing on board in Amsterdam, and no member of the crew can bring anything on board. Similarly in Paris in regard to the aircraft, unless there is authority given, and apparently it cannot be given by the commander. It must be given by somebody else. Apparently, under this it would have to be given by the Minister or by some superior of the captain of the ship or the aircraft. If going to Paris they might have authority to take back some nice views of the beautiful buildings in that city or to bring back a fancy hat or a pipe from Amsterdam. The difficulty is that once the commander allows anything to be brought in that is not specifically authorised, he can be charged. That is why I am asking the Minister to meet the House by saying that he would agree to have this reexamined again before it is dealt with in the Seanad or during the time the Bill is there.
I want to put in the phrase that the commander commits an offence if he brings anything in that he is forbidden by orders or by law to bring in. It could be set out in very simple wording that no article, the import of which is prohibited by our customs, can be taken on board a vessel in Amsterdam or in Paris. That is what Deputy MacEoin referred to. That is where the order could bring the whole operation of the customs law into it. There could also be a general regulation that nothing could be brought on board that would endanger the ship or the aircraft. Similarly, there could be a clause in other provisions that there were certain specific articles which were not to be brought on board. It would certainly be very unfair, if the commander of a ship was charged with an offence because he himself brought in, say, a bottle of some foreign liqueur. I think that sailors all over the world avail of the opportunity of bringing in samples of special liqueurs or wines which are available at a cheap price in the countries they visit. The trouble under this section is that if these are brought in without specific authority the officer can be convicted and is liable to suffer imprisonment or any less punishment awarded by a court-martial. I am always afraid of a section that is left in the stage of "not authorised".
If he is unauthorised why should he do it? Are you not encouraging acts of indiscipline?
No. The matter of common sense has been mentioned. Officers who command ships or aircraft are not little children. They are men who have been trained, responsible people.
They are responsible, but they are also aware of what is not authorised. The Deputy is arguing in favour of people who bring in something which they know they should not bring on board.
No. I say that if they bring in anything which they know they should not bring in then they can be guilty of an offence.
They are fully aware of what they are authorised to take on board. The commander of a ship is made fully aware of that. Therefore, he knows what is authorised.
If that is so, then there is every reason to accept the amendment which I have proposed. If it is a fact that the commander of a ship or of an aircraft is well aware of what he can take on board, then if he takes on board anything other than that he can commit an offence—as I say in my amendment if he takes on board something that is forbidden either by order or by law. There may be some simple little things that a man takes a fancy to. If he brings these in, he can be charged under that section without any difficulty because it can be said that he had no authority to bring in a small picture, a small engraving or something of that kind. He is told that he was not authorised to bring these in, and that, therefore, it is an offence.
At the Special Committee I mentioned a case that I appeared in at a court-martial. The offence against the person charged was that he had consumed a bottle of stout in the course of a long drive from Tralee to Cork. It certainly came as a surprise to me, and to many other people, that he could be charged with, and convicted of, that offence because he was not authorised to take the bottle of stout on duty. That is why I am afraid of this particular business of "not authorised". I would much prefer if the Minister would accept the wording that I have in my amendment or some other wording that would make the commander responsible if he disobeyed some rule, law, regulation or order.
I move amendment No. 102:—
In page 67, line 48, before "aircraft" to insert "service".
This amendment is taken in conjunction with amendments Nos. 103, 105, 106, 107 and 108.
I am prepared to accept the amendment, but I think that, as a drafting matter, the "word" service should be inserted before the words "aircraft material". It is repeated there a second time and it will be necessary to make that amendment.
The Minister agrees to accept it but stipulates that the word service should go in before "aircraft material".
I move amendment No. 109:—
In pages 68 and 69, to delete Section 154 (lines 53 to 58 on page 68 and lines 1 to 31 on page 69) and substitute the following:—
Every person subject to military law who, being charged with or concerned in the care and distribution of any public property or service property, steals, fraudulently converts or misapplies or embezzles that property or is concerned in or connives at the stealing, fraudulent conversion or misapplication or embezzlement thereof shall be guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer penal servitude or any less punishment awardable by a court-martial.
I gave a guarantee to the Special Committee that I would bring in this amendment, and I now formally move this new section.
Though it does not go all the way it goes part of the way. It provides now for fraud by persons in charge of property and removes the very big difficulty we had about stealing under military law and larceny under the civil law.
I move amendment No. 110:—
In page 69, to delete Section 155, lines 32 to 38, and substitute the following:—
Every person subject to military law who steals, embezzles or fraudulently misapplies or receives knowing it to have been stolen or otherwise unlawfully obtained any property belonging to a person subject to military law or any public property or service property, shall be guilty of an offence against military law and shall on conviction by court-martial, be liable to suffer imprisonment or any less punishment awardable by a court-martial.
I move amendment No. 111:—
In page 69, to delete Section 156, lines 39 to 53, and substitute the following:—
Every person subject to military law—
(a) who wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any property being—
(i) public property, or
(ii) service property, or
(iii) property received for, or administered by or through, service messes, institutes or canteens, or
(iv) property contributed by members of the Defence Forces for the collective benefit and welfare of such members, or
(v) property derived from, purchased out of the proceeds of sale of, or received in exchange for property mentioned in sub-paragraph (iii) or (iv) of this paragraph, or....
The word "property" having been defined as including money in connection with the revised Sections 154 and 155, it is necessary to delete references to money in Section 156 and this redrafted amendment provides accordingly.
I think amendment No. 114 should be moved first.
I move amendment No. 114:—
In page 70, Section 157 (b), line 11, to delete "improperly" and substitute "wrongfully".
I am accepting that amendment.
I move amendment No. 113:—
In page 70, Section 157, to delete in line 23 "or" and paragraph (d), lines 24 and 25.
I move amendment No. 115:—
In page 70, Section 158 (b), line 37, to delete "recklessly or".
I move amendment No. 116:—
In page 70, to delete Section 158 (c), lines 40 and 41, and substitute the following paragraph:—
(c) who drives or attempts to drive a service vehicle while he is drunk.
I move amendment No. 117:—
In page 70, Section 158, to insert as sub-section (2) a sub-section as follows:—
(2) For the purposes of paragraph (c) of sub-section (1) of this section a person shall be deemed to have been drunk while driving or attempting to drive a service vehicle if the court-martial or the officer investigating the charge under Sections 176, 177 or 178 is satisfied that such person was, by reason of the consumption by him of intoxicating liquor or by reason of his having taken drugs, in such a condition that he was incapable of exercising effective control of such vehicle while in motion.
This is leaving the civilian definition of drunkenness. Is that right?
It is defined in accordance with the civil law as to when a man may be deemed to be drunk while driving.
I move amendment No. 118:—
In page 71, Section 162 (b), line 40, before "fails" to insert "without reasonable cause".
I cannot accept that.
Section 162 (b) says:—
"who fails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or man under his command is or has been billeted or the occupant of premises in whichmatériel is or has been accommodated.”
I want to insert there "who without reasonable cause fails to comply with regulations". I thought that was an innocuous little amendment and might have been accepted.
I have had it examined and I have been advised against accepting it.
I move amendment No. 119:—
In page 72, to delete Section 166 (c), lines 43 to 45.
These are offences in relation to documents. The section states:—
"Every person subject to military law who, when signing a document required for official purposes, leaves in blank any material part for which his signature is a voucher..."
I propose to delete that because I think it is covered in the other parts of the section. If, however, the Minister is advised that he wants that, I will not press the matter.
I have been strongly advised that the danger is if you leave a wide open blank you are providing a temptation to individuals to commit fraud and, it has happened unfortunately, that where forms of that type are left in blank someone with an evilly-disposed mind takes advantage of the fact, and we are trying to stop that.
I move amendment No. 120:—
In page 73, Section 167 (4), line 38 to delete "not."
Sub-section (4) of this section says:—
"Sub-section (3) of this section shall not be construed as affecting the generality of sub-section (1) of this section."
I want to delete the word "not" so that the sub-section will read:—
"Sub-section (3) of this section shall be construed as affecting the generality of sub-section (1) of this section."
Although it is a very simple amendment to delete the word "not," it has certain important repercussions. Section 167 is the famous Section 68 of the old Act which is known by everybody who has ever had anything to do with the Defence Forces for the last 30 years or more. I do not think anybody has ever gone through the Army without having brought before him the old Section 68 in one way or another. That has always been a much abused section, abused from the point of view of denunciation and from the point of view of exercise, because in the Army when you could not "get" a man on anything else you always fell back on Section 68.
The importance of the amendment makes it necessary briefly to look at the section. Section 167 says:—
"Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law and shall on conviction by court-martial, be liable...."
Sub-section (2) (a) says that a person shall not be charged under this section with an offence against military law. Then there is a saving clause which says that if he is so charged his trial will not be prejudiced thereby. Sub-section (3) says:—
"For the purposes of this section the contravention (by act or omission) by any person of any of the provisions of this Act or any regulations, orders or instructions published for the general information and guidance of that portion of the Defence Forces to which that person belongs or to which he is attached, or any general, garrison, unit, station, standing or local orders, is an act, conduct, disorder, or neglect to the prejudice of good order and discipline...."
That is the generality of what it is. The next paragraph says:—
"An attempt to commit any offence which is, by virtue of any previous section contained in this Chapter, an offence against military law is, unless such attempt is in itself an offence against military law under that section, an act, conduct, disorder, or neglect to the prejudice of good order and discipline."
Then we come to the sub-section I am dealing with which says:—
"Sub-section (3) of this section shall not be construed as affecting the generality of sub-section (1) of this section."
In other words, sub-section (1) is in the widest possible terms. The sub-section says that you are not to charge a man with an offence under this section if you can capture him somewhere else but, even if you do, there is no harm done and, if he is convicted, the conviction is valid.
Then it sets out in sub-section (3) to interpret what an offence under this section is. I would be satisfied with that because I see that you do limit the section at least to reasonable military offences. But sub-section (4) says:—
"Sub-section (3) of this section shall not be construed as affecting the generality of sub-section (1) of this section."
In other words, there is no necessity for sub-section (3) at all or of any of sub-section (4). I am proposing in this amendment to leave out the word "not" and to make it specific that sub-section (3) of the section shall affect the generality of sub-section (1). In other words, the generality of sub-section (1) shall be construed in accordance with the very wide interpretation given to it in sub-section (3).
I am particularly keen on this because, as I say, it does not matter what we do here in creating offences against military law or anything else if we leave this Section 167 in the way it is. Then a person who parts his hair on the wrong side can be guilty of some offence against military law if his commanding officer thinks that it in some way offends his aesthetic sense. I ask the Minister to agree to my amendment. It is a very small amendment as it appears on the Order Paper, but it has very wide effects as far as the section is concerned. I should like to hear the Minister's views in regard to the amendment.
We discussed this at very great length in the Special Committee and as a result of the discussions which took place I have had this matter very carefully examined. It does seem to an ordinary person a very simple matter to delete the word "not" in the sub-section, but the effect of deleting the word would be such that it would practically leave us disarmed, so to speak. After careful examination, I do not think that it would be possible for me to accept the amendment. We argued all this out at the Special Committee. We did not vote on it at that time, but I thought I had more or less satisfied the Deputy. I undertook to have it examined. That may perhaps be the reason why we did not divide on the matter, but having had it examined I am advised now that the word "not" is a very necessary addition to the sub-section.
I have to agree with Deputy Cowan that this is the best-known section of the Defence Forces Acts of 1923 and since. It has been known as the commanding officers' sheet anchor to get the fellow that you could not get under anything else, because it is possible to charge an officer, an N.C.O. or a man with conduct prejudicial to good order and military discipline in that he did do anything. He could be charged and he would be put to the trouble of going through a trial and you could give him a hard time of it. I do not know why we have it at all in a sense, because the offences are clearly enough laid down, but if we must have it I think it should be left with its full effect and we would know that we are setting out under this to give the commanding officer power that if an officer, an N.C.O. or a man serving under him becomes obnoxious he can give him the works somehow without just throwing him out by the back of the neck.
I remember feeling that I had no redress at one particular time when I wanted to throw an officer out, and he deserved to be thrown out, and the legal officer in the place said: "Do not throw him out that way. We will throw him out under a charge that he was guilty of conduct prejudicial to good order and military discipline in that he did—" and he was thrown out. Instead of having to assault him by throwing him out physically he was thrown out through this process of law. It is the commanding officer or general officers' sheet anchor. It is something to use if the person becomes impossible to live with—and there is no army in the world that does not get a fellow like that in it at some stage, and there is no army in the world that has not to call upon that to get rid of him. The only thing is that it ought to be used with discretion. Mind you, to put it into a permanent Act, I am afraid of it. I do not like it. I am not going to say that I am a lawyer to decide that the amendment would make it more acceptable, but the Minister says that he has had it examined and it would practically nullify the section. If that is so, I think we have to leave it there, but I would like the Minister to have it fully examined to see do we want this confounded section at all. If it could be done without I think we should do without it.
I have always, I must say, during my whole army career had a very serious prejudice against this particular section. I hated the section, because whenever one was called upon in a judicial capacity to deal with soldiers one had this section trotted out day after day. It did not matter what the man was brought in for, he was brought in under Section 68. It did not matter whether he broke barrack orders, standing orders, mess orders, brigade orders, orders relating to sentries—it did not matter what it was alleged he broke, he came in under Section 68. I would not mind so very much about that, but you have the position of a young soldier perhaps full of beans, in the best of form, going out happy with the whole world, a smile on his face and his face beaming like the sun on a summer's morning; he meets a cranky, cantankerous sergeant with perhaps a liver or after a bad night, who certainly has the appearance of gloom on his face, and he is offended and annoyed when he sees this beaming young fellow passing him, and the next thing is that he has him up under Section 68 for passing him in an offensive way.
That is the sort of conduct I have an objection to. In so far as it could be brought for the breach of any military regulation I do not mind. Deputy MacEoin has referred to some of the people that it is impossible to live with. Of course he is perfectly right, but it is not so much a subordinate that it is impossible to live with—very often it is the superior who is impossible to live with, and it is in the superior ranks, whether it is a superior non-commissioned officer or in the superior officer ranks, that you get the bad livers and the bad stomachs.
In the case of this young soldier what sort of evidence would be given against him?
Evidence that he passed the corporal or the sergeant in an offensive manner.
That he was guilty of conduct prejudicial to good order and military discipline in that he did spit with the left side of his mouth.
If as Deputy MacEoin says we can be sure that this would be exercised with discretion it would not be an awful lot of harm. Unfortunately, no matter what the Minister or anybody else would try to do the section is there and it is amazing the kind of charges which it has been used to support.
Some of them would shake the House.
Would the Deputies allow me to intervene? In the course of the debate in the Special Committee I was so concerned about this that even there I went to the trouble of finding out what were the types of charges that would be preferred against individuals under this particular section, and these are the type of crimes which I got. They are not terribly serious but they are crimes nevertheless. I find cases such as passing bad cheques, giving false names to the police, improperly obtaining money in return for a railway warrant, producing a medical certificate knowing it is not genuine, borrowing money from subordinates, wrongfully opening official letters, fighting in a public street, attempting to induce a military policeman to neglect his duty, knowingly making an application for an allowance in excess of entitlement, an officer drinking on duty with N.C.O.s and men, altering the date on a leave pass, reporting sick without undue cause. These were the actual cases which I was given, and they are serious, every one of them, although they may appear to be humorous enough.
We could add a few to that.
They may appear humorous, nevertheless they are serious when it comes to a question of conduct of that type which would certainly be prejudicial.
I could imagine, of course, that the Army legal authorities would be asked for a record of that sort of thing and would go to their court-martial files and they would see where an officer or a soldier was charged with passing bad cheques. Of course, in regard to the cheque issues, if an officer passes or gives a cheque which bounces he has not infrequently been charged with scandalous conduct unbecoming an officer, which is a very serious offence. Giving false names to the police, wrongly opening letters— these would all be offences that would have been preferred against a soldier or an officer at courts-martial and in respect of which the records were available. But there are those hundreds of other cases that the legal officers in the ordinary way would not know about that are dealt with in the unit every day. Unless there is a fine it would not appear even in the unit orders, but they come up day after day. Every conceivable thing that could be thought of has been used under this section.
I feel that it has been used for the purpose of creating a kind of what I would term minor tyranny in regard to soldiers. It has been used to maintain very bad customs, and certainly it has been used to terrify young soldiers. Wrong conduct, which the Minister terms a serious matter, could be dealt with in other ways.
The Minister makes disciplinary regulations. There is a very wide code of disciplinary regulations issued by the Minister and in operation. A breach of any one of these Defence Force regulations or general routine orders is always dealt with under Section 68 or Section 167 as we have it now. A breach of barrack standing orders used to be brought under Section 141 of the old Act but all these things that the Minister says are wrongful could be included in orders made by the battalion, the barracks or the Minister in any of the disciplinary regulations that may be issued under this Bill.
I see an old friend of mine at the very bottom—"reporting sick without due cause". I do not know how many cases of that type there have been but I do know certainly there was one case in which the soldier concerned decided that he would have his trial in the public gaze—in other words, that the Press would be invited to be present at his court-martial. Members of the Press were present and they reported it fully. The court-martial decided that he was guilty of the offence of reporting sick without due cause but, within a couple of days, the confirming authority decided that he was wrongfully convicted and he was released from his obligations under the conviction. I distinctly remember that. Of course it is a very serious thing if a soldier reports sick to a doctor and the doctor instead of finding out he is in fact ill, decides that he should not have come at all and uses his disciplinary position to have the soldier punished under Section 168 rather than use his medical position to find whether, in fact, there is anything wrong with the soldier. There have not been many of these charges recently; they are discountenanced now and I think doctors nowadays would be afraid to charge an offence such as that because there was a further example of a doctor in the Army doing that and it was discovered some weeks afterwards by X-ray examination in St. Bricin's Hospital that the man was in fact very seriously ill at the time he reported to the doctor yet he was charged under Section 168 with reporting sick without due cause.
When a soldier joins the Army, this Bill gives the Minister and all his superior authorities the widest powers to make disciplinary regulations governing his conduct and character. If the section is passed in this form and the word "not" is left in sub-section (4), then the tyrannical system I have mentioned enabling any superior, from a corporal right up to a general, to have his own views as to how a person under him may behave, not in a military sense but perhaps in a civilian sense, will be continued. As I say it has been exercised very continuously in the Army to the detriment of young soldiers, particularly of the junior ranks. Now we have not reached the stage of freedom that they have in the American Army; we have not that here but I think it is desirable that our soldiers should have more freedom and liberty than they have and that the disciplinary restrictions are sufficient without enabling commanding officers and superiors to exercise the sort of control and power that this section enables them to exercise. True, the fact of bringing a charge against a soldier does not necessarily mean that the soldier must be convicted of that charge but everybody in the Army gets into this peculiar groove, as to the effect of Section 168, that to be charged with an offence under it, is almost a certainty that you are going to be convicted of that offence.
I should like the Minister to agree with what I have suggested here and leave it to the disciplinary provisions and regulations made by superior officers or by the Minister himself to govern matters in regard to discipline. If that were done, there would be more freedom for the soldier in his off-duty hours, in his barrack room, his mess, his dining hall, his canteen or anywhere else. He is subject, as I say, very often to the bad liver or the upset stomach of his superior officer, while the superior officer has the powers that are given to him——
He has often-times deserved it.
Perhaps. I have had so many instances that I just cannot remember some of the best examples of abuses of this section by the Army. I think that if the suggested amendment were made, soldiers or officers, no matter what their rank, would be able to meet their superiors when they were doing their duty as man to man and as I think they are entitled to meet them. They would be entitled to stand on their own feet, to assert their own individuality and not be reduced to the type of machine that has always to be standing to attention, saying "sir" and saluting. I do not suppose we will ever reach—not for many years at any rate—the freedom of the American soldier. An example of that has been given where a soldier went into his general and said: "General, can I have the car to-night?" And the general said: "Certainly, certainly." I think it was a British officer who was present and he said: "Does that happen very often?" And the general replies: "No, not so often. They generally take the car without asking for it!"
We cannot have that conception of relationship between officer and soldier here. We have the conception of the relationship that is always based on the fact that the superior is superior, that he is superior in everything whether he is on or off duty. I would ask the Minister to reconsider that section and delete that word "not", and avoid the dangers and the troubles that have been mentioned.
I will undertake to bring the Deputy's remarks to the notice of the proper authorities.
I move amendment No. 126:—
In page 74, Section 168 (1) (e), lines 4 and 5, to delete ", whether the offence is committed in the State or elsewhere".
Section 168 deals with offences punishable by ordinary law and it makes those offences offences against military law. Paragraph (e) of the section says:—
"if he is convicted of any offence not before in this sub-section particularly specified, which when committed in the State is punishable by the law of the State, be liable, whether the offence is committed in the State or elsewhere either to suffer any punishment assigned for such offence by the law of the State or, if he is subject to military law as an officer, dismissal with ignominy from the Defence Forces or any less punishment awardable by a court-martial or, if he is subject to military law as a man, imprisonment or any less punishment awardable by a court-martial."
What I propose there is to delete the words "whether the offence is committed in the State or elsewhere", so that the section would read that if he is convicted of any offence not before in this sub-section particularly specified which when committed in the State is punishable by the law of the State, he would be liable to suffer the punishments that are laid down there. If the words that I propose to delete are left in, then if a person subject to military law commits an offence of a civil nature outside the jurisdiction of this State in some other State he could be punished and if my amendment is accepted, then the section would be limited in the way I have mentioned.
I am not accepting that amendment. Section 3 of the Bill makes it clear that a member of the Defence Forces is subject to military law even when he is outside the State. It is necessary, I am advised, in this section also to make it clear that in the case of a member of the Defence Forces outside the State any civil offence for which he could be tried by court-martial if committed within the State is also an offence triable by court-martial if committed outside the State.
I move amendment No. 131:—
In page 77, Section 176 (3) (a) (ii), between lines 32 and 33 to insert a new clause as follows:—
The net effect of this amendment is to create a new form of punishment which will be lesser than the punishment provided in the section. The section provides that an authorised officer —for convenience we will call him a company commander — has powers under the section when he deals with a charge to dismiss it or to deal with it in other ways referred to in the section. He has powers in certain circumstances to impose a fine not exceeding £5, to impose severe reprimand, to impose reprimand, and I want to give him power also to impose admonishment which would be something less in the scale than reprimand. A reprimand in military language is considered rather serious punishment. I can visualise circumstances where the officers investigating the charge may wish to impose a very minor form of punishment not amounting to a reprimand, and if the Minister accepted admonishment it would be the least form of punishment that could be imposed by the investigating officer.
I am a little surprised at the Deputy wanting to put this in as a punishment, because that is what its effect would be. If we were to insert the word "admonishment", as the Deputy suggests, we would simply be adding another form of punishment to those that already exist. At the present time admonishment is administered in the case of certain types of incidents, and it merely counts as a warning. It is not a punishment. It can have no effect on an officer's advancement. If his name comes up for promotion the fact that he was admonished does not appear on his record. If it is put in now as a punishment, then it must appear on his record. Heretofore, I can say that, while I may have been informed that an officer was admonished, it did not mean anything serious, and in no way affected his chances of promotion. I suggest to the Deputy that he ought not to insist on having the word "admonishment" added to the series of punishments mentioned in the section.
Major de Valera
At present admonish corresponds to what the soldier calls "a bawling off."
The difference in viewpoint on this between the Minister and myself is not too large. I want to correct something that I said when I was opening on this amendment. I referred to the company commander who motors around. This refers to an investigation by an authorised officer who, generally, would be an officer of senior rank and would be authorised by the Adjutant-General to investigate the charge against an officer. He would have the right to impose a fine, to give a severe reprimand or a reprimand. I wanted to include this new punishment, if you can call it that, of admonishment. In other words, if the authorised officer, having heard the man's story thought that he should not reprimand him he would just admonish him which is the official way of advising him. What, in effect, the Minister says is that they have a little way amongst themselves which is not authorised by law whereby, when an officer does something, they just do not like to charge him. They say that they admonish him and put a note to that effect on his file. It is left there, and is an informal way of expressing their disapproval of something he has done. I am suggesting that if we put in the word "admonishment" in the section it will nullify the other form of admonishment which they are exercising at the moment in a friendly sort of fashion. I will leave the matter at that. I have, of course, expressed my views at this friendly way which they have in the Army of noting a thing down on a file and calling it an admonishment. Apparently, there is no grave objection to it, and we can leave it there for the moment.
I move amendment No. 132:
In page 77, Section 176 (3) (c), to delete all words after "shall" in line 42 down to and including "section" in line 45.
The effect of this amendment is that, under the section, if the authorised officer investigating a case is of opinion that he should deal with it by means of a fine, or if his proposal involves a deduction from pay or if he wants to make an order under subparagraph (f) which again involves the payment of money, he will ask the officer concerned whether he wants to be dealt with by him or to be remanded for trial by court-martial. I want to ensure that if an officer is charged with any offence before an authorised officer—for convenience, I will call him a commanding officer— and if the commanding officer thinks that the officer is guilty of the offence, then I think the officer should have the right to say that he wants to have the charge investigated by court-martial. The matter is very important because the commanding officer may say to himself: "I am finding this fellow guilty, and I am going to give him a severe reprimand", and at the end of it the officer has no redress and no right of appeal.
The officer charged may be of opinion that he is not guilty of the offence and may wish to have the charge tried by court-martial at which five officers will hear the evidence against him and before whom he can be represented legally and can make the defence that is open to him by calling witnesses. I think that in those circumstances he should have the right to say that he would like to have the case tried by court-martial especially if the commanding officer thinks he is guilty of the offence. If the section goes through as it stands, it is only when the commanding officer proposes to fine him a sum not exceeding £5 or to forfeit some of his pay or to make him pay some money under a subsequent paragraph, that the officer concerned has the right to apply for a court-martial. If the officer has the right to look for a court-martial where the commanding officer proposes to fine him £1, I say that he should have the right to ask for a court-martial in the case where the commanding officer proposes to give him a severe reprimand. If there is one thing which has a very bad effect it is a sense of grievance. If a commanding officer says: "I will not fine you £1; I will give you a severe reprimand for this offence and that will be recorded on your personal file; I will not give you the right to go for a court-martial" then the accused officer will labour under a grave sense of grievance. Where an officer is charged with an offence he should, therefore, have the right to have that offence examined and dealt with by a court-martial if he thinks he is not guilty of the offence and can establish that to the satisfaction of a court-martial. That is the effect of the amendment I propose here.
I find it difficult to imagine in what circumstances an officer who was merely reprimanded would be anxious to seek a court-martial. These punishments are graded gradually up or down, whichever way one looks at them, and I can hardly imagine where a senior officer examines a case carefully and decides that the act committed by the officer will be sufficiently punished by a reprimand——
A severe reprimand.
——that the officer concerned, who may be the type that dearly loves a legal argument, should be allowed the opportunity of insisting on a court-martial. Even if the officer did insist on a court-martial— and I can hardly believe that there is such an individual—the State must be taken into consideration. A court-martial is not a very simple thing. It consists of five officers, one of whom must have the rank of colonel. These would have to be taken away from their normal duties; a court would have to be formed and would have to sit for probably some hours; they might have to travel some distance to examine a case which might be quite trivial in its nature and could be dealt with on the spot by a reprimand. Remember, a reprimand is not a very serious thing. Even a severe reprimand is not very serious. Certain penalties are inflicted for certain types of indiscretions but reprimands are not regarded as being very serious. I do not believe they would operate against an officer who was in line for promotion. However that may be, I cannot understand why the Deputy would suggest that we should open up all this machinery to deal with something that can be dealt with in a simple manner where an intelligent, common-sense, senior officer is satisfied after his own personal investigation that the case can be met by a reprimand, severe or otherwise.
I understood considerable time was spent by the Special Committee set up by this House considering this Bill before it reached the Report Stage. Furthermore, both Deputy Cowan and the Minister together with a number of other Deputies have given a considerable time to the Bill since then. It has now come before the House on the Report Stage and, in view of the results of the two by-elections which have just been announcel, perhaps the Minister would indicate as the spokesman of the Government whether the House will be troubled further with the Bill.
Surely that does not arise.
If we got an indication from the Minister we might save considerable time by not discussing the matter any further.
That does not arise on amendment No. 132.
It is not relevant and, because it is not relevant, we can say nothing about it.
It is hard to say very much about it at the moment.
Deputy Cowan concluding.
I cannot accept the Minister's reasoning. His argument is based on the fact that there might be a lot of trouble involved in assembling a court-martial, and that an officer who looks for a court-martial when he is merely going to be severely reprimanded is a peculiar type of individual whose mental outlook it is difficult to understand.
The punishment is not the important thing. The important thing is the conviction. The fact that an officer is found guilty of disobeying an order, or commits some other offence, is the important thing where another officer is authorised to deal with the offence. If the offending officer thinks he is not guilty, then it is only right that he should have the opportunity of having that case examined by a court-martial. That right is given to him in this section if the commanding officer proposes to fine him £1. Before he can fine him £1 he must ask him: "Do you wish me to deal with this summarily or do you wish to go for court-martial?" If we give him the right to go to court-martial in relation to a fine of £1 why should he not have the right to go for court-martial where the punishment is a severe reprimand? But it is not the punishment that is the important thing. It is the fact of being convicted of an offence and having that conviction recorded against him; that may have the effect of delaying his promotion; it may have the effect of preventing his promotion altogether. That is the issue.
If the commanding officer proposes to fine him one shilling he must give him the option of having a trial by court-martial. A fair commanding officer will do that. An unfair commanding officer, and there can be unfair commanding officers, will deliberately set out to convict the officer and impose a punishment on him which will not entitle him to have his case tried by court-martial and will blacken his record deliberately for the purpose of doing damage. It is to prevent that sort of thing that I propose this amendment.
If the House looks at the section it will see that where a commanding officer proposes to deal with an ordinary soldier, and if the punishment involves so much as one shilling of his pay the commanding officer must give that soldier the right to say that he wants to have the offence tried by court-martial. It is part of the ordinary machinery of the Army, that an allegation against an officer will be examined fairly and if the officer is not guilty of the offence he must be honourably acquitted. I think it is very wrong and very improper to give an officer the right to destroy a fellow-officer's career by imposing on him a punishment for an offence of which his fellow-officer is not guilty, and of which a court-martial, if he was before it, would find him not guilty.
The Minister knows that for many years in the Army, right up to the Emergency when it was necessary to bring in these provisions in regard to authorised officers, the matter of punishment by commanding officers of officers was eliminated altogether. An officer always had an opportunity of being tried by court-martial for an offence, and to be tried by court-martial does not mean to be convicted. To be tried by court-martial means that the case against an officer would be very fully gone into and examined and, if he is entitled to the benefit of any doubt, he will get that benefit from the court-martial. If the court-martial acquits him, his record is clear, his personal file in the department is clear of any blot and his promotion is in no way retarded. So that one way we cannot do it is that we cannot say that it may mean a little upset to convene a court-martial to try an officer to whom the commanding officer only proposes to award a severe reprimand. An officer knows he is charged with an offence of which he is not guilty. He knows that the commanding officer in finding him guilty is doing something unjust and unfair and he is entitled to have his case examined by a court-martial and determined in his favour.
That is the issue that is here. If the commanding officer proposes to fine him a shilling, if the decision of the commanding officer would involve one shilling of his pay, he should be entitled to have his case tried by court-martial. In these circumstances, the right should be given to him when he is before his commanding officer to ask for trial by court-martial, as proposed in this amendment.
We have the very same provisions in civil law. If a person comes before a justice charged with a particular offence, the justice asks him whether he wishes to be dealt with summarily or whether he wishes to have his case dealt with by a jury in the Criminal Court. In every case in which a man knows he is innocent and is afraid that one single individual, the justice, might convict him on the evidence, he always asks for the right to appeal to a judge and 12 men of a jury knowing that before them he can establish his innocence. If we give that right to any person charged in the Criminal Court we should give a similar right to an officer charged with an offence as to which a verdict of guilty may ruin his whole career.
That is the point I am making to the Minister. If the officer is denied that right he will suffer from a sense of grievance. He will always feel that he was unjustly treated, that he was convicted of an offence of which he was not guilty, that he was deliberately denied the opportunity of having his case examined by a court-martial. I have known grievances of that kind to operate on the minds of individual officers to such an extent that after a period their health broke down and they had to be invalided out of the Defence Forces. The one thing that we cannot have in the Army is any sense of grievance, if we can avoid it. If it were proposed to fine an officer one shilling then I say we have the right to ask that his case should be examined by a court-martial.
The Minister will agree that that is a reasonable amendment.
I certainly do not agree.
Amendment put and declared negatived.
I move amendment No. 133:—
In page 78, Section 176 (3) (e), to delete lines 8 to 10, inclusive, and substitute "the officer who remanded the officer charged for trial by court-martial shall apply to the authorised convening authority to convene a general court-martial to try the officer charged".
I am accepting this amendment.
I move amendment No. 134:—
In page 78, to delete Section 177 (3) (a) (iv), lines 57 to 59.
That is a very good amendment.
I move amendment No. 135:—
In page 79, Section 177 (7), line 40, to insert "of this section".
This is a purely drafting amendment.
I move amendment No. 136:—
In page 79, Section 177 (8), to delete lines 53 and 54 and substitute "the commanding officer shall apply to the authorised convening authority to convene the appropriate court-martial for the trial of the man".
I am accepting that amendment.
I move amendment No. 137:—
In page 80, to delete Section 178 (3) (c), lines 19 to 21.
Amendments Nos. 138, 139, 140 and 141 can be taken together.
I am not accepting amendment No. 138; I am accepting amendment No. 141.
I move amendment No. 139:—
In page 81, Section 180, line 16, to insert "and a court of inquiry has been held in respect of matters relating to the alleged offence" after "military law".
I move amendment No. 140:—
In page 81, to insert a sub-section (2) of Section 180, a new sub-section as follows:—
(2) Where a person is ordered to be tried by court-martial under sub-section (1) of this section, a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial shall be delivered to him before the trial.
I move amendment No. 141:—
In line 4 before "shall" to insert "and a copy of the proceedings and findings of the court of inquiry".
I move amendment No. 142:—
In page 82, Section 183, to insert as sub-section (2), a sub-section as follows:—
Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after such regulation is made and, if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent 21 days on which that House has sat after such regulation has been laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under such regulation.
I move amendment No. 143:—
In page 83, before Section 187, to insert a new section as follows:—
Where an order has been made for the trial by court-martial of a person accused of an offence against military law, the offence shall be taken to be prosecuted at the suit of the convening authority, and accordingly the convening authority shall, in addition to any other powers conferred on him by or under this Act, have, in respect of that offence, powers similar to those conferred by law on the Attorney-General in respect of offences triable on indictment before a civil court.
This is an amendment inserting a new section which provides that for court-martial purpose the convening authority shall be the prosecutor. That, I understand, has always been accepted. I am advised, however, that it would be advisable to have a positive provision here in regard to the matter.
I move amendment No. 144:—
In page 84, Section 189 (2), to insert between lines 49 and 50 a new paragraph as follows:—
(a) an officer who has examined into or advised on the matters on which the charge against the accused is based.
This is another that arises out of the discussion on the Special Committee.
I move amendment No. 145:—
In page 85, Section 189 (2) (g), line 8, to delete "an advisory" and substitute "any".
What does the Minister say about the amendment?
I am not accepting amendment No. 145.
I just want to examine the section for one second. The Minister proposes to insert a new paragraph in this section which deals with the disqualification for membership of the court-martial and for acting as judge advocate. The section provides that certain people are disqualified, for instance, the prosecuting officer, an officer who is a witness for the prosecution, an officer who investigated the charge against the accused or took down any summary or abstract——
I think that is reasonable enough.
——or who was a member of the court of inquiry, or the commanding officer, any officer who has a personal interest in the case, any officer who is not for the time being subject to military law, and so on; and the Minister now proposes to insert an officer who examined into or advised on the matters on which the charge against the accused is based. In the sub-section (g) which refers to an officer who in an advisory capacity dealt with the charges to be tried by the court-martial or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial I propose to introduce the word "advisory" and to substitute "any". In other words, an officer who in any capacity dealt with the charges to be tried by the court-martial or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial. I do not see why the Minister did not accept the amendment.
Is the Deputy now discussing amendment 144 or 145?
Amendment 144 is agreed. I am on 145. I wonder why the Minister did not agree to the deletion of the words "an advisory".
God knows we had a very long discussion——
I know we had.
And we came to the conclusion that everybody who touched the papers at all would be ruled out if we were to take the line that the Deputy's amendment would suggest.
You could rule out the fellow who advised that no prosecution be brought.
I can see the general effect of the section and what the Minister is putting now. The whole general effect is to exclude anyone who has anything to do really with the prosecution. I am satisfied that it will be fairly operated.
That is good enough.
I move amendment No. 146:—
In page 85, Section 190, between lines 27 and 28 to insert a new sub-section as follows:—
(4) A court-martial shall not have jurisdiction to try any person subject to military law for an offence which is by virtue of paragraphs (a) (b) (c) or (d) of sub-section (1) of section 168 triable by court-martial unless a certificate is issued under the hand of the Attorney-General consenting to the trial of that person by court-martial.
It proposes to insert a new sub-section. Section 168 is the section which makes ordinary law offences such as treason, murder, manslaughter, rape, etc., offences that may be dealt with by court-martial, and this Section 190 deals with the jurisdiction of courts-martial; and sub-section (1) gives jurisdiction to try any person for an offence against military law committed by such person while subject to military law as an officer or man. Then a local or limited court-martial, as it is called, shall not have jurisdiction to try any person for any offence against military law committed by such person while subject to military law as an officer, to try any person who is for the time being an officer, to try any person for the offence of treason or murder, or to award to any person any sentence greater than imprisonment. A court-martial shall not have jurisdiction to try any person subject to military law for the offences I have mentioned— treason, murder, manslaughter, or rape —unless such offence was committed while he was on active service. I wanted to put in the additional provision that it would not have jurisdiction to try any of those offences unless there was a certificate issued under the Attorney-General's hand consenting to the trial of that person by court-martial.
I am not accepting that because first of all this only applies to active service conditions and it is quite reasonable to assume that if the conditions were of a very severe type it would not be possible in many circumstances to get the Attorney-General. That is a possibility. But it would only be in circumstances of active service that any of these crimes would be tried by a court-martial. In ordinary circumstances they would be tried by the civil court and the question would not arise.
The only thing I feel about this is that by accepting Deputy Cowan's amendment you would prevent a person standing trial twice. The point I see in Deputy Cowan's amendment is that when the Attorney-General agrees to try him for these offences by court-martial, at least by inference if the court-martial acquits him or anything like that he is not put on his peril again—that it would prevent a second trial. Even under active service conditions if a person subject to military law is tried for any of these offences, when that is over and he is acquitted or some punishment is ordered the civil arm can still step in again and the person is then put on his peril twice on the same facts. It has been argued that you should only be put on your peril once on the same facts; and by Deputy Cowan's amendment, with the certificate of the Attorney-General being given that would more or less be a certificate that if he was tried by court-martial and the verdict given in the case, either favourable or convicting him, he would not then be put on trial again. I think that is the only value of Deputy Cowan's amendment and I would like the Minister to consider it from that angle.
I think that perhaps the Minister will look into that.
I can have the views expressed here examined all right.
Then I will not press it.
I move amendment No. 147:—
In page 85, to insert in Section 190 a new sub-section as follows:—
(4) (a) The Minister, with the concurrence of the Minister for Justice, may make regulations with regard to the exercise of the jurisdiction conferred on courts-martial by Section 168 and may in particular by the regulations provide that the exercise of such jurisdiction shall depend on the consent of such civil authority as may be specified in the regulations.
(b) A certificate under the hand of the officer convening a court-martial for the trial of a civil offence certifying that as respects such trial the consent referred to in paragraph (a) of this sub-section has been obtained shall beprima facie evidence of that fact.
Having regard to the decision to delete any provision for dual trials, it became necessary to provide some alternative method of ensuring that in the case of offences against the civil code the jurisdiction of the civil power will not be interfered with. The proposed method is that set out in this amendment, namely, to provide that a court-martial will not have jurisdiction to deal with an offence against the civil code unless conditions set out in regulations are, where applicable, complied with. It is envisaged that these regulations will provide that, for instance, where the offence is against the person or property of a civilian, the agreement of the local chief superintendent of the Garda Síochána will have to be obtained before the case is tried by court-martial. Failure to comply with the regulations will make the trial an invalid one and will enable the civil authorities to proceed with the proper civil trial. I think that Deputies will agree that this is a desirable provision and that they will accept it. It was following discussions in the Special Committee that this amendment was drafted.
I think that meets the desires of Deputy MacEoin in regard to the last section and ensures that there will be a method of avoiding double proceedings.
I move amendment No. 148:—
In page 86 to delete Section 192, lines 1 to 7, and substitute the following:—
(1) Subject to sub-sections (2), (3) and (4) of this section, courts-martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the trial.
(2) Where the convening authority or the president of a court-martial considers that it is expedient in the interests of public safety, defence or public morals that the public should be excluded during the whole or any part of a trial, either of them may make an order to that effect, and any such order shall be recorded in the proceedings of the court-martial.
(3) Witnesses, other than the prosecutor and the accused person, shall not be admitted to a trial, except when under examination or by specific leave of the president of the court-martial.
(4) On any deliberation amongst the members of a court-martial, no person shall be present except the members, the judge advocate and any officers under instruction, and the court-martial may either retire or cause the place where they sit to be cleared of all other persons not entitled to be present.
This amendment proposes to delete Section 192 and to replace it by a new section.
Amendment No. 149 which follows is an amendment to amendment No. 148:—
I move amendment No. 149:—
To delete sub-section (2).
Section 192 as it stood provided for the hearing of proceedings of a court-martialin camera. The section provided that whenever a court-martial was satisfied that it was expedient in the public interest to exclude any particular person or persons not immediately concerned in the proceedings from the place in which the court-martial was being held the court could exclude that person or persons from the court-martial. That was the original section to which strong exception was taken in the Special Committee. The matter was considered by the Minister as a result of the discussions in committee and the Minister brought in the new section now proposed in the amendment. Sub-section (1) of that section says:—
"Subject to sub-sections (2), (3) and (4) of this section courts-martial shall be public and to the extent that accommodation permits the public shall be admitted to the trial".
Sub-section (2) states:—
"Where the convening authority or the president of a court-martial considers that it is expedient in the interests of public safety, defence or public morals that the public should be excluded during the whole or any part of a trial, either of them may make an order to that effect and any such order shall be recorded in the proceedings of the court-martial."
Sub-section (3) states:—
"Witnesses, other than the prosecutor and the accused person, shall not be admitted to a trial except when under examination or by specific leave of the president of the court-martial."
Sub-section (4) goes on to recite:—
"On any deliberation amongst the members of a court-martial, no person shall be present except the members, the judge advocate and any officers under instruction and the court-martial may either retire or cause the place where they sit to be cleared of all other persons not entitled to be present."
In regard to sub-sections (1), (3) and (4) of that section, no one can take any exception. I am proposing in my amendment to delete sub-section (2), the sub-section which gives the convening authority or the president of the court-martial power to exclude the public. In other words, I suggest that the court-martial should be open to the public. It should be like any other court trial, open to the Press, and it should be open to the public in so far as the public can get in. Up to the present, for the last 30 years, every court-martial in the Defence Forces was an open court. It might be attended by any member of the public, by an officer or soldier who happened to be free from duty, unless he was a person who was a witness in the particular case. There has been a feeling that a court-martial is a closed court and that nobody can get in to it. Of course that is a mistake.
I want to say that I appreciate very fully the efforts the Minister has made to meet the wishes of the Special Committee in regard to this particular section but I oppose sub-section (2) for the purpose of having this matter of public courts fully considered by the House. This provision in regard to the "interests of public safety" or "defence of public morals," is a very wide power given to the convening authority or the president. The president may be of opinion that it is not in the interests of public safety that a court-martial dealing, say, with the theft of stores from a barrack, should be in public. I feel that that power to declare a court closed in the interests of public safety is entirely too wide and that it may be exercised detrimentally to the public interest. Similarly, if the president thinks that a matter of defence is involved he may come to a like decision. Of course if it is some matter of military equipment or military machinery being stolen or misappropriated, the president or the convening authority might think that it was not in the interests of defence that these matters should be investigated publicly. Similarly, in regard to public morals, which has a very wide definition, the president of the court-martial or the convening authority may have views on public morals that would be rather narrow and, which if applied in regard to the closing of a court-martial against the public or against the Press, may not be in the public interest. While I realise the difficulty of getting a sub-section such as this worded in such a way that all the objections to what I might term the closed court procedure——
Would the Deputy move the Adjournment?
I move the adjournment of the debate.