The Deputy's amendment is an amendment to amendment No. 148 moved by the Minister.
Defence Bill, 1951—Report (Resumed).
Section 192 says that there are certain circumstances in which proceedings should be heldin camera. That section is being deleted by the Minister's amendment. His substitute amendment provides for particular occasions on which the court may sit in camera. My objection to this particular sub-section is that it is too wide, and that the convening authority may consider the matter expedient, in the interests of public safety which, in fact, may be contrary to the public interest, to have it in private. It may consider that it may be in the interests of defence that the court-martial should not be held in public, or that it may not be in the interests of public morals that the trial should be held in public. Not only may the convening authority decide, but the president of the court-martial may decide. The difficulty that arises is that the convening authority which, in the ordinary way, would be the Adjutant-General or the president of the court-martial may form an opinion as to what is in the interests of public safety and may order, for that reason, that a court-martial shall be held in camera, which court-martial should in the public interest be held in public. From that point of view the convening authority, or the president, should not have the final say in relation to that matter. I think it is the Attorney-General who should take such a decision as that, or the Minister, because if the Minister comes to a decision which is not in the public interest he can be questioned about it here; similarly, if the Attorney-General takes a decision, that decision can be questioned here. But if the convening authority or the president of the court-martial takes a decision great difficulty will arise in having that decision raised here because neither of these officers is entitled to be present and the Minister would say that the Legislature had given that particular power to these officers and, once the power had been given and they had exercised it, the matter could not be raised here.
In those circumstances serious and grave abuses could grow out of the implementation of this particular sub-section as it stands and I am anxious that such power should not be given. If the deciding authority was independent of the military authority there would be some safeguard for the public interest; in matters military, both here and else where, the military profession is a sheltered profession in which ideas as to public safety may develop, unsound ideas both in the public interest and in the interests of public safety. It is for that reason I oppose the inclusion of a sub-section which confers such wide power as this and which confers no real protection on the accused person. The accused may be anxious that the proceedings should be public because the glare of publicity may prevent an injustice being done and it would be very wrong for the convening authority, merely because he thought it expedient in the interests of public safety, to order a trial to be heldin camera.
Almost every matter relating to public safety may be raised here. Almost every matter relating to defence may be raised here. I think it is unwise to give such wide scope in the prohibition of publicity as is provided in this sub-section. Similarly, in regard to public morals there are certain very well-defined rules laid down in the ordinary criminal code and I think the limitation in regard to public morals should be the same limitation as is provided in the ordinary criminal law.
Who is the deciding authority there?
The law has decided the cases which may be heldin camera. They are very specific. The judiciary then enforces those laws. The circumstances in which an ordinary civilian case may be heard in camera are very clearly and specifically laid down. It is not left to the discretion of the Attorney-General, the Minister for Justice or the trial judge to close the court on his own initiative because he thinks what may be disclosed might be contrary to public morals.
It is laid down clearly in the Constitution that justice must be done in public. The only circumstances in which justice may be donein camera are laid down in the statutes and I have some doubts, therefore, as to the validity of a sub-section such as this which gives absolute power to the convening authority or the president of the court-martial to say that it is expedient, in his opinion, in the interests of public safety to hold a trial in camera and to exclude the public from the whole or any part of that trial.
The Minister would be well advised to have this particular sub-section re-examined. He would be well advised to lay down specifically the circumstances in which a court-martial may be heldin camera. The reasons should be stated with absolute precision. I think that it is the Attorney-General who should decide whether or not a case should be held in camera, and such a decision should only be taken with his authority and on his certificate.
This sub-section raises very important issues in relation to the rights of citizens and very important principles in regard to the administration of justice. Matters of that kind should be decided by persons who have been trained in law, who have a knowledge of constitutional law, and who will be influenced by the principles relevant to the rights of citizens.
But if we leave it in the state in which it is in this amendment, the convening authority may have no knowledge of law, good, bad or indifferent. It is no part of his business to know anything about law. Every officer in the Army is supposed to know, and in fact does know, something about military law. Some officers know more than others, but all officers get some training in military law in the cadet school and they receive lectures on it from time to time. But there is no obligation on the convening authority, who, generally speaking, is the Adjutant-General, to have a knowledge of the principles of constitutional law of the law which governs this State in ordinary criminal matters. The same thing applies to the president of the court, who is an officer also and who has just a knowledge of military law that enables him to administer the military code.
It is very wrong that this very important power, because it is an important power, should be given, at absolute discretion, to one or other of these officers who, obviously, cannot be expected to have the knowledge of law that would enable an Attorney-General to issue an appropriate certificate in such a case. It is wrong that the decision, once taken, under that particular sub-section is final, conclusive and binding on everybody. It is a bad sub-section, it is a sub-section that can lend itself to grave abuses. As I have said on other sections, I do not visualise any grave abuses happening now or perhaps in the very immediate future. But this is a permanent Army Bill. These powers may be exercised, and can be exercised, contrary to the public interest and, consequently, to the rights of an individual, whether he is an officer or a soldier, and to that extent contrary to the interest of the citizens. I ask the Minister to agree that the sub-section should be deleted and, if it is not deleted, that the Minister should agree to have it re-examined. When the Bill comes before the Seanad, it may be possible for him to introduce an amendment which would have the approval of the Attorney-General in so far as it affects the constitutional rights of the citizens.
The Deputy is merely reiterating the statements which he already made at the Special Committee. Arising out of the case which he made on that occasion, I went to the trouble of having this very carefully re-examined and amendment No. 148 which I am proposing, is the result of that reexamination. The Deputy referred to this being a permanent Bill. It is permanent only in so far as it can be altered at any time that the House desires to alter it. If it is found that this works in any way such as described by the Deputy, it can be very readily amended. As I said, I have had this very carefully re-examined and it was re-examined in the Attorney-General's office. We did not even rely entirely on our own legal authorities; we sent it still further afield, and this is the result.
I do not think that any of the fears expressed by Deputy Cowan are likely to be realised. I think it is not only desirable but necessary that a convening authority or the president of a court-martial should have the power to judge whether the circumstances with which the court was confronted were such as to make it desirable that the case should be heardin camera. The matter is clearly defined here in sub-section (2) of the amendment:—
"When 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..."
That restricts the convening authority or the president of the court and no convening authority or president of a court is going to go outside of these directions.
I am sure that if a convening authority or the president of a court-martial deems it desirable from the point of view of public morals or from the point of view of public safety or defence that the court should be cleared nobody will grumble about that. It is only within this very restricted range that the convening authority or the president of a court-martial can suggest that the trial should be heardin camera. So that, having had a long discussion of this section at the Special Committee and having had it not only re-examined but reconstituted in the manner in which it has been reconstituted, I could not possibly accept the Deputy's amendment. I think I am going a very considerable distance to meet the Deputy in amendment No. 148.
I accept that there has been an improvement in this particular section since the Special Committee, but I am not satisfied that sub-section (2) is a sub-section which should be approved of by this House without being restricted much further. What is "in the interests of public safety?" That is one of the big problems that arise. It is all right for the Minister to say that he is satisfied if an Army officer came to the conclusion that it was not expedient in the interests of public safety to have a court held in the open that it should be heldin camera. But the problem that arises is the problem that I mentioned, that our courts of justice should be open except in such circumstances where it is provided by law that they may be closed to the public.
These are the circumstances.
Yes, but I just want to say that in my view that is not sufficient, that under the Constitution the law must be administered in open court and as far as the ordinary criminal cases are concerned there are specific rules governing the circumstances in which the cases may be heldin camera. It is not left, as far as the ordinary criminal law is concerned, to the discretion of the Attorney-General, nor is it left to the discretion of a judge. It is laid down by law. This proposes to close courts-martial not in accordance with fixed principles that are laid down but in accordance with the discretion of the particular officer who happens to have the responsibility of convening a court-martial or of presiding at a court-martial, and that is the difference between the ordinary criminal code and what is laid down here.
One of the dangers that can arise here is that in certain circumstances a military officer may consider that it is in the interests of the public safety that the light of day would not be allowed to shine on some particular aspect that might injuriously affect the military profession. Perhaps as a small country with a small Army we need not worry unduly about the dangers from that point of view, but nevertheless the dangers are there as has been known in certain countries where the military machine was operated in such a way as to cause the gravest injustice. If one wants to read about the sort of thing that can be done there is plenty of history on the famous Dreyfus case in France. That is one of the reasons why I object to the fact that this is left to the discretion of the officer rather than that we should say in the section that there are precise limitations to the exercise of that power. There is no limitation here. All the convening officer has to say to himself is: "I consider it expedient in the interest of public safety that this court should be heldin camera.”
He is not answerable to anybody then?
No, he is not answerable, and that is the trouble. If he were the Minister he would be answerable to this House, but he is not, and if the Minister were asked any question about it this answer is: "The law gives that officer the power and I have no jurisdiction or function in regard to it." That is the objection I have to the section, that it does not prescribe the conditions in which the court may be closed but leaves it to the discretion of one or two officers who could not possibly have or be expected to have the training that would be necessary for them to have to decide what was in the public interest. It is not the function or duty of an Army officer to decide what is in the interest of public safety. That is a matter for the Attorney-General and for the Government, not for an individual Army officer. In actual fact it would perhaps be best if the decision as to whether it should be in public orin camera were taken by the Government rather than by anybody else.
Could the Attorney-General decide?
If we say so here he could. The Attorney-General in exercising a judicial discretion would exercise it as a person who was trained in and had knowledge of constitutional rights, and one could reasonably expect that his decision, which would be a judicial decision, would be a fair one, whereas if you leave it to a person who has no knowledge and no training and no preparation for that important decision, or function of decision, then I think you are making a mistake. I realise that the Minister has had this examined and that he has gone some way to meet the objections raised at the Special Committee by this amendment which the Minister moved and which is before the House. All I could do when I saw it was to propose that this particular sub-section be deleted. Time was not available to me to draft the kind of sub-section I think should be put in its place. It would involve and necessitate a substantial amount of work and all I could do was simply to put down the motion that I have here, to delete the sub-section, and give my reasons for it.
As I say, the Minister has had it examined by the Attorney-General's Department and apparently they have approved of the form of wording that we have here. I have a strong objection to it. I have expressed this objection. I have now placed it on record, and that is all I can do in regard to it.
Is the Deputy withdrawing the amendment?
No, just put it.
I move amendment No. 150:—
In page 86, to delete Section 193 (1), lines 8 to 11. This deletes Section 193 which is now unnecessary because it has been revised in the form of Section 192.
I move amendment No. 152:—
In page 89, Section 203, to insert before sub-section (5), two new subsections as follows:—
( ) An accused charged before a court-martial with stealing may be found guilty of embezzlement or fraudulently misapplying property.
( ) An accused charged before a court-martial with embezzlement may be found guilty of stealing or fraudulently misapplying property.
This is consequential to amendments Nos. 109 and 110.
I move amendment No. 152 (a).
In page 89, to delete Section 204 (2), lines 52 to 55, and substitute the following sub-section:—
(2) Each of the following sentences:—
(a) dismissal with ignominy from the Defence Forces.
(b) dismissal from the Defence Forces.
(c) discharge with ignominy from the Defence Forces.
(d) discharge from the Defence Forces.
(e) reduction to a lower non-commissioned army rank, or to a lower non-commissioned naval rank.
shall take effect on and from a date to be fixed in the manner prescribed.
This amendment deletes sub-section (2), which relates to the effective dates of sentences of "dismissal with ignominy" and "dismissal" from the Defence Forces, and substitutes a new sub-section to enable provision to be made in rules of procedure, fixing the effective dates of these and certain other sentences by court-martial. Provision is made in Section 238 for the presentation of petitions by or on behalf of persons sentenced by courts-martial. It is proposed under the new sub-section to fix the effective dates of the sentences mentioned in the sub-section so as to allow time, after the promulgation of the sentences, for the presentation and disposal of petitions.
I move amendment No. 153:—
In page 90 to delete Section 206 (2), lines 39 to 48.
Section 206 deals with contempt of court-martial and provides that if a person not subject to military law— that is, a person who is not an officer or soldier—is summoned as a witness and makes default in attending or realis fuses to take an oath or does anything that would be contempt if it were committed in a civil court, he may have his offence certified by the president of the court-martial to the High Court and the High Court may punish that person as they think fit. The second part of the section provides that where a person subject to military law is guilty of contempt, by using insulting or threatening language or by causing any interruption or disturbance in the proceedings of the court-martial, "the court-martial, if they think it expedient, instead of the offender being tried by court-martial, may by order under the hand of the president order the offender to be imprisoned without hard labour or in the case of a man, to undergo detention for a period not exceeding 21 days."
I think that that is a sub-section that we can easily do without. In the case of a civilian guilty of contempt before a court-martial, the court-martial cannot deal with him there and then. The president of the court has to certify the contempt and that goes before the High Court. The accused civilian or citizen has the right to make such defences as are open to him in regard to that particular charge. If, however, the offender before the court-martial is not a civilian and happens to be a soldier or officer, then we abolish the rule of law altogether and we give the court-martial power there and then, by order under the hand of the president, to imprison for 21 days or in the case of a soldier to give him detention, instead of imprisonment, in a military detention barracks for 21 days. In other words, the court may there and then give an officer 21 days' imprisonment or a soldier 21 days' detention. It seems to me unjust that we should have any such provision as that for the soldier when we have a completely different procedure in regard to the civilian.
The fact must not be overlooked, that if a person who goes before a court-martial as a witness is guilty of contempt of the court-martial, he may be charged with that contempt and he may have his case examined in the ordinary way, as if he were charged with anything else, so that the civilian witness is liable only to have his case certified to the High Court, but the ordinary soldier or officer before the court is liable to be court-martialled for the offence or, if the court so decides, he may be punished in drumhead fashion there and then when the members of the court are all "het-up" about something. I was reading in the papers yesterday or the day before about a witness before a French court who got into an altercation with the judge and all that happened to him was that they put him put out of court; but in the Army here—so far as a soldier or an officer is concerned—they want not only to have the right to court-martial him and to punish him, but they want to have the right to punish him there and then, in the heat of the moment, and to sentence him to detention or imprisonment for 21 days. I think that is neither right, desirable, nor necessary. I think that discipline can be maintained without that provision.
In an experience lasting over 30 years of courts-martial, I have never yet seen an occasion on which such a thing as is envisaged here happened. In fact, it is very seldom, if ever, that one hears of contempt of a court-martial. Courts-martial are treated with respect by everybody, by civilian witnesses and by military witnesses. On the very odd occasion on which, in future, a soldier or officer might be guilty of contempt, I think it is better that he should be charged and dealt with in the ordinary way by a tribunal that can give an impartial hearing to the facts on all sides, instead of what is here provided—permitting the president of the court to order the man to be imprisoned for 21 days for contempt, or for what he alleges at the time is contempt of the court, and which, in fact, might not be considered to be contempt of the court by an independent court-martial.
These drumhead procedures are objectionable. In my view there is no necessity for them and why we should provide for them now I do not know. You set up a president of a court-martial in this case to try one person in accordance with law and at the same time, if he becomes annoyed with a witness whom he may consider as having used insulting or threatening language or having interrupted the proceedings, you give him the right there and then, in the heat of the moment, to order that that particular person be sent for 21 days to imprisonment or detention and you give no right to the individual concerned to appeal against the decision or to go forward for trial by somebody else. You deprive the accused of that right altogether and it is specifically laid down that Chapter VII of this Part of the Bill shall not apply to such cases. In other words, in the case of any other soldier or officer punished by a court-martial, the sentence does not become effective until it has been confirmed by a confirming authority who studies the record and decides whether or not the proceedings should be confirmed. But even that procedure of confirmation is wiped out here and we have this out-of-hand drumhead procedure being authorised by the law of the country. It is contrary to my concept of justice.
If a person is alleged to have committed an offence, whether it be contempt of a court-martial or not, he ought to be tried in accordance with the proper procedure. He ought to have the right of having his defence heard and ought to have the right of being represented by an officer or lawyer and the decision should be subject to review in the same way as any other sentence is subject to review. Here there is no protection, good, bad or indifferent, and it is not even stated in the section that the court-martial of three officers shall, by a majority, decide that he was guilty of contempt. There is no protection whatever in it. The only thing in it is the definite statement that the president, by order under his hand, may order the offender to be imprisoned without hard labour for a period not exceeding 21 days. I am perfectly certain the Minister could find no justification for that drumhead procedure and I should be surprised if he should wish to retain a provision such as that in the military code.
Deputy Cowan is a bonny fighter, but on this occasion he had some difficulty in making his case. He said, in the course of his remarks, that this was a sub-section we could very well do without. No one knows better than Deputy Cowan does the absolute necessity of dealing with an individual who would treat a court with contempt. We know from our own past experience how far we were able to advance the national cause itself by our treating particular courts with contempt and we know that if we had not got a section to deal with that type of case, courts-martial might find it very difficult to deal with cases at all or to ensure that they would be regarded in what would be a serious manner. There is nothing drumhead about this and I am surprised by Deputy Cowan's repeated references to this drumhead procedure. The Deputy knows that is not correct. This is a case of a normal court-martial at which a man is being tried for some offence. If, in the course of the trial, whether the offence be a simple offence or a grievous offence, that man treats the court in a grossly insulting manner, the court will have to deal with it, and there was no necessity whatever for Deputy Cowan to take us to France in order to give us a case in point of something which he thought was contempt and which was merely dealt with by removing the individual from the court.
In fact, they threw him out.
That might have been a more drastic way of dealing with him, but in this case the maximum penalty is 21 days' imprisonment. Deputy Cowan kept on referring to 21 days as if that period were a minimum sentence. That is not so. There was no necessity for him to go to France, because how often have we read of court cases in this country which, because of something an individual may have said or some action he may have taken in court, have been stopped by the judge and the individual ordered to be taken into custody or removed from the court and, perhaps, tried by a higher court for contempt? We have had civil court cases in which individuals were not only removed from the court for contempt but were put into Mountjoy Prison for indefinite periods because of contempt.
I agree with the Deputy when he says there are very few cases—I do not know of any cases myself—of a court-martial being treated with contempt, but surely it is the right thing to do to provide for every and all possible difficulty which is likely to arise. This is merely another effort in that direction. The old Act which this measure will replace is an Act which is draped around with all sorts of amendments because of the experience we have gained over the years. We have had amendment after amendment year after year for the past 20 odd years and these are now contained in the legislation, and, if I were to hold it up for the House to see, the House would be amazed by the difficulties confronting officers who have to interpret it from time to time. We are endeavouring to make this Bill an Act in respect of which it will not be necessary, so far as one can foresee, to have amendments coming forward year after year.
I have already said that this is not a final Act. It is described as a permanent Act, but we all know that no Act is permanent, that, in course of time, all Acts have to be amended and I have no doubt that, in the course of time—I hope, a considerable time— it will be necessary to amend this Act, but there is nothing in this provision to which one can take objection. It conforms, so far as I can see, with the ordinary civil law and does not go any further. It merely makes provision that if a court should be treated with utter contempt—I hope it will never arise—the court will be placed in a position to deal with that contempt.
The Minister's reasons for retaining the section are not conclusive, so far as I am concerned, because this whole matter of contempt of court—not only of courts-martial but of any court in the country—has a very interesting history. A lot of matters which were considered from time to time to be contempt of court were nothing more or less than something considered to be an affront to the judge.
Judges in some countries in the world take the view that you cannot joke with them, that you cannot talk to them as one man to another and that you have always got to keep on your knees in front of them. This matter of contempt was a means of making people come, almost in a state of terror, before the courts. If a person is deliberately insulting and offensive to a court, I agree he ought to be punished. Where the Minister and I differ is in the method of punishment.
In this Bill, in Section 160, which has already been passed, we have provided a whole section covering offences in relation to courts-martial. In Section 160 we provide that every person, subject to military law, who, being duly summoned or ordered to attend as a witness, makes default in attending or refuses to take an oath or refuses to produce a document or refuses to answer a question or—and this is the very matter we are dealing with now—uses insulting or threatening language or causes any interruption or disturbance in the proceedings of a court-martial or commits any other contempt is guilty of an offence against military law and shall, on conviction, be liable to suffer imprisonment or any less punishment awardable by a court-martial.
I agree with the provisions of that section. If a person refuses to take an oath, refuses to produce a document or answer a question lawfully put to him and if he uses insulting or threatening language or causes any interruption or disturbance in the proceedings or commits any other contempt he is guilty of an offence and ought to be punished for it. He is liable to be sentenced to imprisonment not to 21 days but to two years. That is his liability but under that section it has to be proved that he is guilty of contempt and he has the right to defend himself and to cross-examine any person who alleges he is guilty of contempt and before the sentence can be made effective it has to go before the Judge Advocate General to consider it from the legal point of view.
It has also to go before the confirming authority to consider it from the general point of view. If the confirming authority, after considering the case and taking into account the opinion of the Judge Advocate General, thinks that the man is guilty of the offence then he confirms the punishment. If he thinks he is not guilty, he can quash the finding or if he thinks the punishment too severe, remit it in whole or in part. I have no objection to that but what I am objecting to is that where you have the same alleged offence committed before a court-martial the president himself may decide the conduct of the witness to be contempt. He may consider language used by a witness to be insulting that an independent tribunal would not consider insulting. Apparently, he need not take the view of the two or four other officers on the court-martial. He is the judge himself, the single individual. The president can there and then say to the witness: "21 days' imprisonment." That is the most he can say. He can say: "ten days' imprisonment, 14 days' imprisonment or seven days' imprisonment." He can say that there and then without giving the man any chance of explaining his conduct or any chance of making a defence. That sentence of the president is not subject to review by anyone and has to be carried out right away.
I describe that as drumhead procedure. I think that the Minister would agree with that. It is summary punishment inflicted on the spur of the moment perhaps by the president of a court who is peeved or annoyed with what has been said to him not by the accused person before the court but by a witness before the court. This section does not confine it to the accused. It is any person subject to military law and the very fact that he wears a uniform subjects him to this drumhead procedure as I term it. If he was not a soldier or an officer, then he has the right of being defended if he wants to be defended and of getting his case before the High Court. But because he happens to wear the uniform he can be dealt with in this summary fashion.
We are all aware of the particular type of contempt in the old days when people went in before a court—it might be a court-martial or it might be a criminal court—and said: "We will refuse to recognise the authority of this court" and they treated it with deliberate contempt. That was part of the national struggle. But I have seen judges who ordered into custody advocates appearing before them because they were peeved. They had lost the judicial sense and it required the strength of the legal profession to put an end to that sort of conduct.
In this type of case the president is a human being and he may be peeved, offended or annoyed by what is said to him by a witness in the court-martial and just because he is peeved, offended or annoyed, we give him the right just to write out a little docket and say to the Governor of Mountjoy Prison: "Take this man in for 21, 14 or seven days because he has been guilty of contempt of court." If the section allowed even the court-martial as a whole unanimously to say this was contempt of the court there would be some little protection, but apparently nobody decides it except the president himself. I say there is no sense in or necessity in modern times for such a provision, particularly where we have, as in Section 160, given power to another court-martial to deal with offences of contempt of the court-martial.
I would strongly press on the Minister to agree that the section is unnecessary, that it should not be there, and that it might be abused. If, in over 30 years' application of military law to our Defence Forces, we never had a case of it, I do not think there is any necessity to put the section in now.
I move amendment No. 155:—
In page 91, Section 207 (1), to delete lines 15 and 16.
The amendment deletes F. in the scale of punishments, viz., dismissal of a naval officer from his ship. This was raised in the Special Committee and I undertook to have it examined.
I move amendment No. 156:—
In page 92, to delete Section 207 (9), lines 7 to 9.
This is consequential on the previous amendment.
I move amendment No. 158:—
In page 93, Section 208 (6), line 8, to insert "or discharge from the Defence Forces" after "forces".
The amendment provides that where a man is about to be sentenced to penal servitude, he may, as an alternative to discharge with ignominy, be sentenced to discharge from the Defence Forces. I promised the Special Committee to have this amendment made.
I move amendment No. 159:—
In page 93, between lines 45 and 46, to insert a new section as follows:—
Where a person has been convicted by a court-martial of an offence against military law the court-martial may, in view of the previous good character and faithful service of such person, instead of awarding a sentence as provided for in Section 207 or Section 208 of this Act, record that in view of the previous good character and faithful service of the accused the court considers it proper not to impose any sentence.
I do not think I should have to say very much in regard to this. It is bringing into the military code something similar to the Probation of Offenders Act in the ordinary criminal law of the country. I may say to the Minister that I have personal experience of occasions on which a court-martial would be anxious to have a provision such as this where a person was charged, perhaps, with a number of offences and it was found that he was not guilty of any serious or grave offence but that it was a purely technical offence in which the court would be placed in the position of having to say "not guilty" when, in fact, they knew he was guilty, or of having the power of saying: "He is guilty of that offence—it is purely technical—but because of his previous good character and faithful service we do not think it right to impose any punishment." I do not think there should be any objection in the world to incorporating a section such as that in our military law.
The Probation of Offenders Act is a very valuable thing in the ordinary criminal law of the country. In actual fact I had personal experience to-day of the application of the Probation of Offenders Act in a case in which a soldier was concerned, where he was found guilty by a jury of larceny by finding and in which the judge said he would record no conviction against him but would apply the Probation of Offenders Act. It was a very proper case for such a decision.
If that man had been convicted by a court-martial of the same offence he could not get the benefit of the Probation Act or of anything equivalent to it and the court would have to proceed under the scale of punishments that are laid down in Section 208. When they find him guilty, they have to impose a punishment. It was always considered an anomaly in the Defence Forces that where a person is charged before a commanding officer with an offence the commanding officer is given discretion, if he thinks the circumstances warrant it, not to proceed with the charge and, in effect, to dispose of it under that machinery by simply saying it is not desirable to proceed. We give that power to the commanding officer. That power has been in the old Act and it is retained in the new one. The commanding officer has discretion to say: "He may be guilty of this, but in my opinion it is not desirable to proceed with the case." That is the end of the matter.
If, however, that person goes before a court-martial and the court-martial finds him guilty, they must impose a punishment and they have no right not to impose it. I do earnestly press the Minister to meet me, even on this little point, where a soldier before a court-martial who is a man of good character and has given faithful service has been convicted of an offence. If, because of the circumstances of that offence and its technicalities, the court-martial want to say: "We do not want to give a severe reprimand or impose any punishment by way of fine or otherwise; we consider it proper not to impose any sentence," I think it is desirable that that should be provided for. I know from my own personal experience it is a power a court would wish to have. I know of many cases in which a court would like to exercise that power and I do not see any reason whatever why there should be objection to giving the court-martial that power. We cannot say to a court-martial: "If that is what you think, find him not guilty," because by their oath members of the court are bound to try him in accordance with the evidence. If the evidence is that he is guilty of that offence, even if he is only technically guilty, their oaths bind them to find him guilty. The suggestion I am making here is the way out, and I strongly press the Minister to accept the amendment.
We are retaining in this Bill the power of the commanding officer to deal summarily with an offence. If he deals with it summarily he can, as Deputy Cowan stated, award a punishment that may not be as serious as that which would be awarded by a court-martial. What Deputy Cowan is, perhaps, overlooking is the fact that it is the same commanding officer that examines the case. Having examined it, he comes to the conclusion that it is too serious for him to deal with and he refers it to a court-martial. If the case is not so serious and the court-martial tries the individual and finds him guilty, they can, if they think it not serious enough to award a severe sentence, reprimand the individual. That is, perhaps, almost the equivalent of the case which the Deputy himself has stated. I suppose it is the second least form of punishment that can be awarded to an officer. No doubt it is recorded, but it is a very mild sentence. If a man has been guilty of some particular offence that is serious enough in the view of the commanding officer to necessitate a court-martial, surely it should be recorded? I cannot see any grave reason why that type of crime should not be recorded on the individual's record, so I do not see there is much to worry about.
At the Special Committee, the Deputy made a strong appeal to me to consult various judge advocates or the legal officers in the Army who were dealing with matters of this kind. I did so. I consulted these particular officers and they said there was no crying need whatever for this, that the position was somewhat as I have said and they thought the present position should remain. Having consulted these people at the request of Deputy Cowan and having received their opinion, I regret that I am unable to accept the Deputy's amendment.
I think Deputy O'Leary said I was wasting time, and I feel we are, in discussing this Bill— and I will explain why.
We are wasting time.
As Deputy O'Sullivan would know, there are Acts of Parliament in which he might be vitally interested and might be in a position to help the House—I hope he is in a position to do so at some future date. I think it is desirable and beneficial to legislation that persons who have some knowledge of a matter should discuss it.
No doubt they had that discussion at the Committee.
That is the trouble about the Special Committee, that members of the Deputy's Party did not attend and I was the sole individual, just as I am in this House, on most occasions, trying to put the case to the Minister.
When the Deputy says he thinks it is wasting time, may I say that I think that is a gross exaggeration and not doing me or the Special Committee much credit. Does the Deputy not know that practically every ministerial amendment that is down here is to meet some point the Deputy made in the Special Committee? Surely that was not a waste of time. The Deputy should realise the amount of time and trouble that it cost me and my officials during the time the House was in recess, examining all the points made in that Special Committee—a Committee that sat for three months and produced a voluminous report. We went through that report day after day while other members of this House were, perhaps, taking life more easily. We examined critically everything in it. Where it was necessary to pass it on to the legal authority, even to the Attorney-General in some cases, we did so. We even called a committee of legal experts together—a representative from the Attorney-General's office, a representative from the Department of Justice and a legal representative from the Department of Defence. We got these people to sit down and examine it carefully before we decided to make an alteration— which in a very large number of cases emanated from Deputy Cowan himself. Almost every ministerial amendment here is down to meet some case made by Deputy Cowan. I am rather surprised then that he should make a statement that he feels he is wasting his time in discussing this Bill.
Listening here and studying the Bill, I feel like the Minister, that a lot is being done to clear up any misunderstandings which may have existed about the ministerial recommendations. I am accepting the whole thing the Minister is saying and feel that justice is being done in many cases.
Deputy Hickey knows nothing about it—good, bad or indifferent.
I have a certain sense of confidence about this.
The Deputy has not as much ego.
I have understood the legal advisers as far as the defence code is concerned.
When we are discussing social welfare or health, Deputy Hickey will say that from his wide knowledge of the way in which labour exchanges work he should give every help to make the legislation as good as possible.
I hope he does not object to anyone who feels he can help. That is all I want to say about this. What may have peeved me— like the judge I was talking about recently—was the approach of the Minister to the amendment I put down. He went on the basis that if the commanding officer considered it serious enough he could send the man for court-martial. Therefore, if they found him guilty they should punish him. The Minister overlooked this aspect of it, that an accused person has the right himself to elect to go before a court-martial, just as a person going before a district justice may elect to go before a judge and jury.
I did not overlook that, surely.
I am only dealing with what the Minister said in answer to my case, that where the commanding officer considered it serious and he was found guilty by a court-martial there should be some punishment, even though only a reprimand. If the accused person thinks he is not guilty of an offence, he may say he wishes to be tried by court-martial; and all I am asking is that when he goes before the court-martial and the court-martial comes to the conclusion: "Yes, there is a technical guilt there but it is of such a kind that we do not want to impose a punishment at all; we will apply the equivalent to the Probation of Offenders Act," they should have that power. I am not saying they are to exercise it unless it is necessary to do so, but that they should be given freedom to say: "This is only a technical offence, this is a very fine type of fellow and, while in strict technical law he committed an offence, we do not want to punish him; we will record the fact that we consider it of such a trivial technical nature that we will not record a punishment against him." I think that power should be given to the court-martial, and I see no reason why it should be deprived of that power.
The Minister said that the second lowest punishment is a reprimand. A reprimand is, in regard to an officer, the lowest punishment that can be imposed by a court-martial. A reprimand is a very serious blot on an officer's conduct sheet and certainly a reprimand imposed by a court-martial is very serious. Similarly, in regard to Section 208, as far as men are concerned, a man includes a sergenat-major down to a private, and a sergeant-major or a company quarter-master-sergeant or a battalion quarter-master-sergeant or a sergeant or a corporal who is given a reprimand by a court-martial has a very serious blot on his character record. The trouble is that the court-martial may not want to give him a reprimand, but they have nothing else to give him. The Minister knows very well that if it were a question of promoting a sergeant to be a lieutenant and the file came up with his record there: "Reprimand by court-martial" on a certain date, that finished him, as far as a commission was concerned.
It would not come up if that were there.
That is the point. If he was tried and it was a technical offence and the court-martial said that because of the man's good character and faithful service they considered that punishment should not be recorded and that it was not proper to impose sentence, that could not debar the man from being considered for promotion.
I can understand the Minister's opposition to me on the last section in regard to contempt of court-martial, but I cannot understand the objection to empowering a court-martial to deal properly with a case where a person is technically guilty but not otherwise guilty. There is provision in the ordinary criminal law in the case of a person who goes before a judge and jury, as happened to-day, that the judge may say that, although the jury has found him guilty, he will not record a conviction against him but will apply the Probation Act. That man was a soldier and that is how the criminal court decided that they should dispose of the case. If that soldier were before a court-martial, it would have to be recorded that he was found guilty and reprimanded by the court-martial.
I move amendment No. 160:—
In page 95, Section 218 (b), line 38, after "Act" to add, "the confirming authority shall refuse to confirm the finding and sentence of that court-martial".
Amendments Nos. 160 and 161 may be debated together.
Section 218 deals with the powers of the confirming authority. Sub-section (1) says:—
"The following provisions shall apply in relation to any sentence passed by a court-martial—
(a) if the sentence is informally expressed, the confirming authority may, when confirming it, vary the form of the sentence so that it shall be properly expressed;
(b) if the punishment awarded by the sentence is invalid or in excess of that authorised by this Act—
(i) in case the offence in respect of which the punishment was awarded was an offence under Section 138, the confirming authority may substitute for the sentence a sentence of dismissal with ignominy from the Defence Forces or any less punishment mentioned in the scale to sub-section (1) of Section 207, and confirm the sentence so substituted,
(ii) in any other case, the confirming authority may substitute for the sentence a sentence of any other punishment which might have been awarded by the court-martial to the offender, and confirm the sentence so substituted."
I propose in amendments Nos. 160 and 161 to delete the two paragraphs I have mentioned, so that the paragraph would then read:—
"if the punishment awarded by the sentence is invalid or in excess of that authorised by this Act the confirming authority shall refuse to confirm the finding and sentence of the court-martial."
The whole thing is being stacked up all the time against the accused person. He goes before the court-martial. The court-martial gives him a sentence that is invalid or in excess of that authorised by the Act and then the provision is that the confirming authority can become the court itself and may look around to see what is the right sentence and give him that sentence. If the court-martial is so stupid as to give him an invalid sentence or a sentence in excess of their jurisdiction, I want to provide that the confirming authority shall refuse to confirm the finding and sentence of the court-martial.
This is another of the cases which was discussed at some length by the Special Committee and, on their suggestion, I consulted the legal authorities as to whether the provision should be expressed to be capable of operation only when the court-martial could not be reassembled, but they did not consider the amendment really necessary.
I do not think there is anything to worry about here. If there is any question of a sentence being invalid, it is not legal and it will have to be rectified and it will be rectified by the confirming authority. If it is an excessive sentence, the same thing will happen.
I move amendment No. 162:—
In page 95, Section 218 (1) (b) (ii), line 47, to delete "other" and substitute "lesser".
That is the same as the matter I have been talking about. It is not a question of substituting a lesser sentence. What has to be substituted is an appropriate one.
In other words, this provides that if the court-martial sentences a man and the sentence is invalid or in excess of that authorised by the Act, the confirming authority may substitute for the sentence any other punishment.
Yes, but it must be a valid punishment or a lesser punishment than the excessive punishment.
Obviously, it must be lesser than the excessive punishment. I wanted to substitute "lesser" for "other".
I move amendment No. 166:—
In page 96, Section 219 (2), to delete all words from and including "a" in line 57, down to the end of the sub-section in page 97 and substitute the words: "The Adjutant-General shall quash the finding and sentence."
I think this is the same as what we have just been discussing.
Sub-section (2) of Section 219 reads as follows:—
"Where a sentence passed by a court-martial has been confirmed and is found by any reason to be invalid, a superior authority may pass a valid sentence and the sentence so passed shall have the same effect as if passed by the court-martial and duly confirmed..."
I want to propose that the Adjutant-General shall quash the finding and sentence. I think it should be done. I see very few circumstances in which a court-martial will impose an invalid or excessive sentence but if they do I think that the finding and the sentence should be quashed. I think that is only just. As far as I can see from the amendments we are putting into this Act, it does not matter two hoots what sort of sentence the court-martial impose. It does not matter two hoots what they do: the poor unfortunate accused will be caught, anyway. The confirming authority will get him if the court-martial fails to do it. On top of that, we have the superior officer—say, the Adjutant-General. Even if the confirming authority go wrong, he will put it right. There is no escape from the punishment if you are convicted by a court-martial.
There is nothing very wrong about that. Take a man who is brought before a court-martial for the purpose of finding out whether or not he is guilty. If he is found to be guilty, sentence is passed. The court-martial can deal with that themselves. If the sentence is invalid or excessive then the higher authority comes in and sets the matter right.
I move amendment No. 167:—
(1) In page 97, Section 221, to delete "detention barracks" and substitute "a detention barrack" in the following places:—
(a) sub-section (1), line 30;
(b) sub-section (2), lines 34 and 35;
(c) sub-section (3), line 42;
(d) sub-section (4), lines 48 and 51.
(2) In page 98, Section 221 (6) line 3, to delete "detention barracks" and substitute "a detention barrack".
This amendment, together with amendment No. 167a, which are textual ones, proposes to substitute the words "a detention barracks" for the words "detention barracks" wherever they occur in the section. The expression "a detention barrack" is defined in Section 2.
I move amendment No. 167a:—
In page 97, Section 221, to delete "detention barracks" and substitute "a detention barrack" in the following places:—
(a) sub-section 2 (b), lines 38 and 39;
(b) sub-section (3), line 45.
I move amendment No. 169:
In page 98, Section 222, to delete all words from and including "and" in line 27, down to the end of the section, and substitute "and sentence of the court-martial."
This is really the quashing of the finding of a court-martial, which is a most extraordinary thing to find in the Bill. Section 222 (1) reads as follows: "Where the finding and sentence of a court-martial in respect of an accused person have been confirmed and it appears to the Minister that the proceedings of the court-martial were illegal, the Minister shall quash the finding, and thereupon the following provisions shall have effect..." This, again, runs on the same line. In other words, the finding and sentence of a court-martial have been confirmed. Then the Minister asertains that the proceedings were illegal. In such a case "the Minister shall quash the finding". After going through all the procedure whereby the man was tried, found guilty by the court-martial, sentenced and the sentence confirmed—after all that procedure had been gone through —it is subsequently discovered that the proceedings were illegal. However, that does not mean that the poor unfortunate accused person has escaped the net. A trap is set for him again—"... and thereupon the following provisions shall have effect:—
(a) the whole of the sentence passed by the court-martial shall cease to have effect;"
—as if it could have any effect once it was illegal—
"(b) the Minister may at the same time direct that the accused be tried again for the offence which was the subject of the finding, and in such case the accused may, notwithstanding anything in this Act or any rule of law, be tried by court-martial for such offence and if found guilty punished therefor."
I hope the Minister will not say that all the legal authorities mentioned— the Attorney-General and Army legal officers—have had anything to do with what I consider a disgraceful provision. Under the ordinary law of this country if such a matter came before a court of criminal appeal it would be quashed and that would be the end of it. There would be no question of trying it again. Here there is no escape at all—there must be punishment at all costs. It does not matter if it cost the accused concerned £1,000 to defend himself and if it is subsequently discovered that the trial was illegal, he has to face the music again when the Minister says so. Even if there is a rule of law against it, that is to be set aside and the man is to be tried again. I think any Deputy in this House who appreciates the importance of that and who would allow that section to go through is not doing his duty to the citizens of this country.
Why does the Deputy suggest that there is no escape?
I am saying that everything is provided to see there is no escape from punishment and there is no escape from punishment and there. No matter what goes wrong anywhere you are going to be punished and if they give you a wrong punishment there is somebody above to put it right and somebody above that to put it right again. Then if the whole thing is discovered to be wrong, no matter what it cost you to defend yourself you are tried again. If it is contrary to any rule of law you will still be tried again. Then I am told I am wasting time drawing attention to matters such as this.
Who told the Deputy that?
It is a blot on the whole legal code of this country to have provisions such as this. A provision such as this dare not be put into ordinary criminal law. No Minister for Justice would dare come before this Dáil with a provision such as this. But because it is an unfortunate man who has to wear the uniform of this country who is concerned he is subjected to this. Even if it was a case of giving the benefit of the Probation of Offenders Act, it would not be permitted. There is nobody here to suggest he would get it.
What do you suggest are extenuating circumstances? What is the underlying motive you have in mind and do you think that should be so?
I believe that the ordinary rules of law should apply to the soldier just the same as they apply to any other citizen and the fact that a man is a soldier and is wearing the uniform of his country should not deprive him of the fundamental liberties and rights of citizens. But when you get him into the Army and get a uniform on him, to hell with the rules of law. That is what is in this section.
The Deputy knows that is gross exaggeration.
The section says it, that notwithstanding any rule of law he can be tried again. There is no exaggeration in that. I did not write those words into the section. "Notwithstanding any rule of law he can be tried again." Notwithstanding the Act, notwithstanding any rule of law, where the trial has been found illegal he is to be tried again if the Minister so decides.
That is where you find the previous trial was illegal—not properly carried out?
If it is found that the proceedings of the court-martial were illegal. If Deputy Hickey were tried in the Central Criminal Court of this country and convicted, and if the Court of Criminal Appeal found the proceedings were illegal he would not be subjected to being tried again on a the same charge.
Only in court-martial— under the new Act that is so.
This is the sort of law we are bringing in in this House.
For the soldier.
For the Army. Of course, this has gone through the Special Committee. I spoke on this there, and many other things, and I was the sole person that raised these matters. The Minister was present; the members of his Party were present and I was there. The members of the Labour Party who were appointed members of this committee did not bother their heads attending. The members of the Fine Gael Party did not bother their heads except on a few occasions and then they talk about the proceedings of the Special Committee. There would be none of the discussion there is here on the Report Stage if the members of the Parties appointed to the Special Committee had attended the Special Committee and given their views to the Minister. There are many sections on which the Minister, with the opinion of different sides of the House, might have taken different views to what he is taking now. It is left then to me—and Deputy O'Sullivan may talk about my ego— to try to stop what I consider to be a grave abuse of our whole conception of the legal code of this country. Is there any Deputy in this House who would attempt to justify this—that where the whole thing is illegal he should be tried again?
Regardless of any code of law?
Regardless of any rule of law and regardless of anything that is in this Act. Sometime, the proceedings of this House in regard to this Bill will be read by somebody, and this Act will be the Act which will provide the rule of law by which officers and soldiers will be governed both in peace and in war. It is as important to this House as any other Act that provides punishments, even to the death punishment. But nobody, cares about it, and if anybody did care about it, a section such as this would not be put in. When I think of the simple little things like giving an officer or a soldier the right to something like the probation of offenders, which is not there, that this House would not even ask the Minister to give that right, I am naturally worried. When the House will permit the Minister to get accepted a section such as this which abrogates every such rule of law for the protection of an accused person, I think it will be understood why I am vehemently opposing particular sections of this Bill. Every one of the sections or sub-sections I am opposing here are ones that are interfering with rights and fundamental liberties of individuals. When the Minister comes to answer, there is no use in him saying: "This was raised at the Special Committee. I had it examined and I am not advised to change it." Where we have a section such as this seeking to abolish the rule of law in regard to the rights of a person who has been illegally convicted in any proceedings, the Minister should give reasons for it to the House. I am asking him now, if he insists on that being there, to give his reasons why that procedure should govern courts-material and should not govern ordinary trials outside. I know that if a case occurs, as a case is likely to, and may occur, of a person such as this being brought through all the procedure of a court-martial and of having the court-martial sentence approved, and it is then found that it is illegal, and the Miniter orders him to be retried, I am perfectly certain that one would find Deputies in this House endeavouring to make all the political capital they could out of the outcry that would arise. But, when it is a question of trying to prevent a section such as this going into the Defence Bill, there is nobody to bother about it. That is what is wrong not only with this legislation but with most of the legislation that goes through this House. The Deputies who would be foremost clamouring against the injustices that would arise are the people who are conspicuous by their absence from the House when the matter is being discussed. Here, we are dealing with the whole code relating to life and death, with the abrogation of the rule of law and the wiping out of any protection that is in the old Act, and providing that a person may be retried by order of the Minister, even where the whole proceedings have been found to be illegal. In that situation, we find that nobody seems to worry one bit about it.
I have expressed the opinion and the view that this is completely contrary to any conceptions that one should have of fair play and justice in regard to matters such as this. I should like to hear the Minister give reasons as to why the rule of law is to be abrogated, if necessary, in order to have a person tried again. In the section that we are dealing with, the whole idea is to give no escape at all, no matter how illegal, how excessive, or how invalid the position may be, but to pursue it and substitute one punishment for another. All this can be done by somebody before whom the written proceedings of the court come.
I wish it were possible to have the speech we have just listened to analysed by lawyers and their opinions on it submitted to this House. If that were done, I venture to suggest that their opinions would differ very greatly from the views which have been expressed by Deputy Cowan. What are we doing here? That is what we want to examine. What we are doing is that, "where the finding and sentence of a court-martial in respect of an accused person have been confirmed, and it appears to the Minister that the proceedings of the court-martial were illegal, the Minister shall quash the findings," and, because it is provided in the section that the Minister may order a second trial, the first one being illegal, Deputy Cowan objects. He wants the individual who is being tried, whatever his crime may be, and whether he was guilty or not guilty, to be set free right away.
Deputy Cowan, in the course of his remarks, also said: "I hope the Minister will not tell me that he has consulted his legal authorities." I have. I am not a lawyer, and I have to depend on expert legal advice in respect to everything that is contained in this measure. Naturally, not being a lawyer, I have to depend on that advice. Surely the position is not that all these legal experts, including the lawyers in the Attorney-General's office and in the Department of Defence, are all wrong and that Deputy Cowan is right? All these people sit together and consult on these matters. They examine them from every possible angle, and the advice which they give is put in the form in which it appears in the section. That is all that we are doing here. Suppose, for example, that the Minister discovers that a trial was it fact illegal or invalid. There are many reasons why it could be. The court-martial might have been illegally formed. It might not have been formed in accordance with the regulations governing courts-martial. There may be other reasons which I cannot think of at the moment why it might be illegal, but if by any chance some legal authority draws the Minister's attention to the fact that a trial which has taken place was an illegal trial, surely everyone will admit that it is the Minister's duty to see that whatever sentence was passed on an individual through the medium of that illegal trial will not operate, and that the next thing which the Minister should do is to reconstitute the court legally and have the trial carried out.
Deputy Cowan said that this was entirely against the ordinary civil law, that it takes away all the rights of the individual soldier, that once he gets into uniform he is the sort of person whom the law does not protect. That is not correct. So far as the soldier is concerned, he has all the freedoms which the Constitution gives to every citizen of this State. I suggest to Deputy Cowan that if he believes in the speech which he has made, that we are taking from the soldier any of the freedoms which the Constitution entitles him to, it is his duty to take the matter up and see that the soldier's rights are not endangered. I feel perfectly satisfied, however, about his constitutional position. I am accepting the advice which I have been given by my legal advisers. I am also advised that the Court of Criminal Appeal has the same power as I have. I do not think there is anything wrong here.
I am rather surprised that Deputy Cowan should allow himself to become so heated with regard to this particular amendment which I may say was discussed at great length in the Special Committee. It is unfortunate that we should have to keep on repeating the fact that this Bill was discussed at the Special Committee and that certain action was taken. That Special Committee gave three solid months to discussing this Bill. We accepted the recommendations of the Special Committee and we came back here, presented them to the House and the House accepted them. That was quite satisfactory. What is not so satisfactory is that practically every amendment that was discussed at the Special Committee has been put down once more on the Report Stage of this Bill and we are now doing on the Report Stage what we did in the Special Committee. From my point of view the valuable work done by the Special Committee has to some extent been lost by the continuous repetition over a protracted period. I do not know how long we have been on this Bill now here in the House, but the repetition has taken away from the value of the work done by the Special Committee. There are nearly 200 ministerial amendments and practically every one of those arose out of the discussions which took place in the Special Committee, which goes to show that the work of that committee was taken so very seriously that a very large number of ministerial amendments went into the Bill and the Bill we are discussing to-day is a greatly altered Bill as compared with the original measure.
Now it is a tribute to the Special Committee and to the House that the Bill received such careful examination. That is also verification of the fact that the Bill got a very through examination. I cannot see any good reason why Deputy Cowan should have worked himself into such a passion over this particular section, especially when one remembers that the same thing happens in the ordinary civil courts. Surely if a trial is found to be illegal in a civil court it can be retired and is, I am sure, retried. I have been advised that the Court of Criminal Appeal has power to order such a retrial. I want to emphasise that the likelihood of such a situation arising, whereby a court would be declared to be acting illegally for some reason or another is very, very remote. Such an incident would happen very seldom and it is only for the purpose of trying to foresee the likelihood of such an incident arising that we have made this provision. I cannot, therefore, accept Deputy Cowan's amendment.
When talking about the Special Committee and the value of the work done there, I do not lose sight of the fact that every amendment that was put down for consideration was put down by me; it was put down by me because I took an interest in this Bill. I am still taking an interest in the Bill. I am trying to ensure that we shall have the best possible Bill. If the Bill was examined very carefully by the Special Committee it was examined because of the amendments that were put down. But the Special Committee lost a good deal of its value because the members of this House who were appointed to attend the meetings did not do so. Take any of the records of the meetings and this is what one will find; I have just opened Number 16 of the 29th April, 1952, column 642:
"The Committee divided: Tá, 1; Níl, 5."
Tá was Cowan, Peadar; the Níl represents the Minister for Defence, Brennan, Thomas; Colley, Harry; Davern, Michael; Hilliard, Michael. The Minister, the members of the Minister's Party and myself—no one else. That is why I say more consideration would have been given to the work of the Special Committee if the members of the Dáil who were appointed to that committee had attended the meetings. It is a rule in other Parliaments that it is an offence not to attend committees of this kind and a member who does not attend has to give a very good reason for his non-attendance.
I do not like to be praised indirectly for the value of the work done by the Special Committee and criticised for continuing the examination of the Bill here in the House. If I feel the Minister's attitude was unreasonable in relation to the amendments suggested, then it is this House and the Seanad that can decide the issue. This provision makes a serious encroachment on principles and it should not be allowed to pass without protest. I would have been satisfied if the Minister had examined the issue, as I invited him to do.
In the Defence Forces Bill of 1923 there was no provision in relation to the quashing of a finding by the Minister. Something occurred, and in the 1924 Act provision was made in Section 33 whereby the Minister may quash the finding of a court-martial. That was in 1924. This is 1954. In 1954 the Minister wants the right, where he finds the proceedings of a court-martial illegal, to order the unfortunate accused person to be tried again. Mention is made of the Court of Criminal Appeal. That is some of the difficulty I have in discussing this Bill: one can mention that the Court of Criminal Appeal has the same powers. When our Court of Criminal Appeal was established it was given powers that the Court of Criminal Appeal in England, for instance, has not got. It was given power to order a retrial in proper circumstances. Up to that time if a man was found guilty and the Court of Criminal Appeal could not support the conviction, that was an end of it. No matter what the crime was the accused was acquitted.
Does the Deputy admit the Court of Criminal Appeal can order a second trial?
I am about to deal with that. The matter cannot be dealt with on the basis of question and answer.
The Court of Criminal Appeal in certain circumstances may order a retrial, and these circumstances are specifically prescribed in law. Where the Court of Criminal Appeal exercise the right of ordering a retrial, they generally, on application—in fact, I would say in 99 cases out of 100, because I have only known of one case —order the State to pay all the expenses of the retrial. That is of some little importance. On that retrial, the man may be defended by senior and junior counsel, and the State pays the whole of the expenses. Is there any such thing here? None. The Court of Criminal Appeal cannot just decide on a case before them that they will order a retrial. There are certain circumstances in which they can order a retrial. But if the proceedings of the Central Criminal Court or the Circuit Criminal Court were illegal, the Court of Criminal Appeal have no right and could have no right to order a retrial.
The Minister has been advised that in certain circumstances the Court of Criminal Appeal have the right to order a retrial. The Minister has not been advised what the circumstances are in which they can do it and what are the grounds on which they can do it, because that would have a substantial bearing on the decision. He is simply told: "They have the right to do it, and we advise you that you should have that right also." Why did the Minister depart from the law as it was in 1923 or 1924?
Because of the experience of the years between.
I am glad the Minister puts it that way. How many cases have been quashed since 1924 in which the Minister for the time being would have ordered a retrial if he had this power? That is a fair question if we are going to talk about experience. In how many cases has a trial been quashed by the Minister in which the Minister would have ordered a retrial if he had the power that he wants to get now? Can the Minister answer that question?
Does not the Deputy know very well that I could not answer that question now? If he put down a parliamentary question we might be able.
The Minister says that this is based on experience. What is the experience? The experience can only be of cases that occurred, of cases that were quashed in which the Minister considers he should have this power. On how many occasions has justice been thwarted by the fact that the Minister had not this power? I venture to say that there has been no case on which the Minister can base an appeal to experience in this House.
The Minister might not necessarily order another trial. He may order it, but he need not do so if he does not like. The provision is there as a safeguard.
The Minister's defence here will not divert me from the point I am making. The Minister stated that this alteration from 1924 to 1954 is due to experience in the meantime. What I am stating specifically and categorically is that there has been no case in which justice demanded a right to order a retrial and that this section confirms what I said about the rest of the sections, that this Bill is not the production of lawyers. It is clearly, as far as this is concerned, the production of some person who wants to proceed step by step to a particular objective whether or not all reason, all experience and all the rules and codes of law have been against that. In the words of the section, it is that notwithstanding anything in this Act or notwithstanding any rule of law, the unfortunate accused can be tried again and can pay for his own retrial.
There is no sense of justice, no sense of equity or no sense of consideration of rights in a section such as this. If the Minister could quote to us the case of A, B, C or D in which that provision would have been necessary, then the House could consider it and say: "Is it right that we should put this in?" But everything here in this Bill is being pushed to what I might call a logical conclusion based on the forms of words rather than on the principles of justice or the rights of an accused person or anything else. The Minister says: "Is there anything wrong in sending a man back for trial where the proceedings have been quashed because they were entirely illegal?" Is there anything right in doing it? I want to go on that basis. I want to see if there is anything right or anything fair about it when the whole proceedings have been found to be illegal and you simply quash them. If they are illegal, they are a nullity.
Is it not logical to have a second one if the first is illegal and really no trial?
If a person has been charged, sent forward for trial, brought before a court-martial, found guilty and sentenced, and if the proceedings have been sent to the confirming authority and the confirming authority has examined them and confirmed them and subsequently the Minister discovers that the proceedings were illegal, from any point of view, of fair play, equity or justice, that would be the end of it; but no, in so far as military law is concerned the Minister makes an Order quashing the whole proceedings and he may order the accused to be tried again. Of course, the Minister knows that there have been some encroachments on the position that was maintained for many years, that if you were tried you cannot be put in peril again. That has been very fundamental, that you should not be put in peril a second time. It has been a principle of law, and apparently a principle of military law in this country for the last 30 years, and now we propose to do away with it. If we propose to do away with it, as I have said, we ought to have grounds submitted to us for doing away with it. The same thing would apply outside. One can say in regard to any person tried outside that if the proceedings have been found to be illegal why should he not be tried again. The Minister and his advisers can say that. They may say that it is entirely wrong that he should escape because something went wrong with the trial and the trial was defective. But every person who has been concerned with justice and with rights and with the protection of the citizens says that, having put him in peril, if the State has gone wrong the citizen must not be subjected to the same procedure and to the same trial again.
In a case where the Court of Criminal Appeal directs a new trial in a case in which they are authorised by law to do so, and only in such a case, they try to soften the position as much as they can by providing that all the expenses and costs of fighting that retrial are to be paid by the State. That enables an accused person, even though in the previous trial he was on his own, to have solicitor, junior counsel, senior counsel, and to have those paid by the State for defending him. There is no such provision here, no right given to him, no protection given to him. It simply says that if the Minister quashes it where the whole thing is illegal then he may order him to be retried although that retrial may offend any rule of law that exists in this country and may, in fact, be contrary to the provisions of this Act.
We are building a pyramid right from the beginning of the Bill right up, rather like an inverted pyramid, with encroachments on rights that officers and soldiers had up to the present, and the Minister has not in any one instance been able to give concrete examples that would justify the line that he is taking. I think that where, as in this case, fundamental principles are interfered with, and rights in law abrogated, at least the House should be given the reasons for that, and reasons based on experience, and the experience justified by cases; and if there have been no cases to justify what is alleged to be our experience then there is no case for attempting to interfere with the law as it stands at the moment. The more I study this Bill the more convinced I am that it is a very bad Bill, that when it is law, as apparently it will be very soon, the officer and the soldier will be in a worse position than they have been for many years, that all the provisions that were in the old Act giving them rights and amenities and ensuring that they would be dealt with fairly and justly are being stolen away by this new Bill. This is one of the encroachments, one of the rights that have been stolen from them.
I cannot argue against the Minister when he simply says: "We have considered this matter. We think we should have these powers. The legal authorities think we should have them. Some legal members of the Attorney-General's staff think we should have these powers". It is impossible to argue against that, particularly to argue in a docile House that does not give two hoots what is done with the Army. I can only hope that when this Bill reaches the Seanad somebody up there will see these sections, particularly this section, that are encroaching on fundamental rights of officers and soldiers, and will be able to make a much better case than I am making for them here in this House, and will have more support for the case they are making against these encroachments.
Is the amendment withdrawn?
Amendment No. 170 is met by amendment No. 171, is it not?
I will just move it. We probably will find agreement here. I move amendment No. 170:—
In page 100, Section 224 (1) to delete all words after "part" in line 8 down to and including "words" in line 9, and substitute "thereof free of charge".
Section 224 gives a right to obtain the proceedings of a court-martial and I propose to substitute "free of charge" in line 9, so that I want to put in the words "free of charge".
In the next amendment the Minister has "free of charge".
Yes, "in such circumstances as may be prescribed, free of charge". It is a small mercy which I accept.
I move amendment No. 171:—
In page 100, Section 224 (1), line 9, to add at the end of and as part of sub-section (1), "or, in such circumstances as may be prescribed, free of charge".
I promised the Special Committee to go into the question of making copies of the proceedings of courts-martial available free of charge in certain cases, and this amendment proposes to do that.
I move amendment No. 172:—
In page 100, between lines 23 and 24, to insert a new section as follows:—
(1) Where a sentence of imprisonment or any higher punishment passed by a court-martial has been confirmed the person sentenced may within 14 days after the promulgation to him of the sentence appeal to the Court of Criminal Appeal against his conviction.
(2) The appeal under this section shall be made in accordance with rules of the Court of Criminal Appeal.
(3) The appeal shall be heard and determined by the Court of Criminal Appeal in the same way as an appeal from the Central Criminal Court, but the court shall not interfere with the sentence of court-martial unless it quashes the conviction appealed against.
(4) The Court of Criminal Appeal shall have no jurisdiction to hear an appeal against the sentence only of a court-martial.
This is, perhaps, the last of the major amendments. It proposes to give a right of appeal to a person convicted and sentenced by court-martial. It is, as I say, a major amendment and I hope to be able to justify it although I have no hope that the Minister will accept it. In the course of the Report Stage of the Bill up to the present, and in the different other stages in the House and in Special Committee, we were told about the wonderful research that had been made into Canadian military law and British naval law and, in actual fact, at one period of desperation we were brought into the Police Forces (Amalgamation) Act. We were told that the Department of Defence had studied everything up to the moment in all possible countries to try to get for us the very best Defence Forces Bill they could, but one provision, one modern development, based on experience, they were not anxious to have, and that is a development that has occurred in Great Britain in recent years where—I think it was the Labour Government but I am not sure —the British Government brought in a provision whereby a soldier or officer sentenced by court-martial would have a right of appeal to the Court of Criminal Appeal against his conviction. That is a development that has been advocated for many years by persons interested in military law everywhere, that there should be a right of appeal against conviction to the Court of Criminal Appeal, which is the highest court that deals with criminal appeals in this country and, similarly, in other countries.
Although the British Army Act is substantially the same as our 1923 Act was up to the moment, and although there is not in it the sort of thing we discussed on the last section—this matter of a quashing order and of a retrial; where there is quashing, it is quashing and that is the end of it— they have provided an appeal to the Court of Criminal Appeal. I have been very anxious for many years that we should have such a right here.
I think it is a valuable right to have for many reasons. It keeps a court-martial on its toes, as it were. No person on a court-martial, certainly no legal officer of a court-martial or no judge-advocate, if there was a right to have the proceedings examined by the Court of Criminal Appeal, would do anything slovenly or carelessly in regard to the proceedings and he certainly would keep himself in touch with law and the developments of law. It would be an additional protection for an accused person if he felt that he were dealt with wrongly, to have the right to go to the Court of Criminal Appeal and say to that court: "I want you to examine this case and to declare that I have been legally convicted". No one would imagine that there could be any objection to that, particularly in a Bill where the authorities have gone out to crucify the officer and soldier all the way. I make no apology for using that expression to describe what is in this Bill in regard to the officer and the soldier. I have dealt with his pay. I have been dealing with his punishment and now in the matter of his trial, even where it may be illegal, they are going to get him again. Where it was a question of putting in something that might be beneficial or helpful to him, there was a stone-wall attitude against its insertion. Now they want to keep their whole procedure in the dark, to keep it away from the Court of Criminal Appeal.
A few sections back we dealt with the proposal to hear these casesin camera, to keep the public out. They certainly want to give no opportunity to the accused person to have his case examined by the Court of Criminal Appeal. A Deputy or even a citizen reading the amendment might say: “Well, what does the Court of Criminal Appeal know about military matters? They are not interested in discipline; they would not know anything about it.”
I want the House to know the specific right of appeal that I want to have incorporated in the Bill. The first part of the amendment reads:
"Where a sentence of imprisonment or any higher punishment passed by a court-martial has been confirmed, the person sentenced may within 14 days after the promulgation to him of the sentence appeal to the Court of Criminal Appeal against his conviction."
I want to point out where that leads us. In the case of an officer, it eliminates any appeal where the sentence is a reprimand, a severe reprimand, a fine not exceeding £25, a forfeiture of seniority of rank, dismissal from the Defence Forces or dismissal with ignominy from the Defence Forces. I would not give the Court of Criminal Appeal the right to investigate any of these things, but where, in the case of an officer, the sentence is one of imprisonment, which is considered to be something in the nature of the punishment imposed by a civil court on citizens, of penal servitude or of death, it provides that he will have a right of appeal to the Court of Criminal Appeal, but for nothing less than these.
Similarly in the case of a soldier, where he is sentenced to imprisonment, to penal servitude or to death, he will have a right of appeal, but will have no right of appeal where the sentence is detention, discharged with ignominy from the Defence Forces, discharge from the Defence Forces, reduction in rank, a fine, a forfeiture, a severe reprimand or a reprimand, so that there is no question of sending to the Court of Criminal Appeal any case where the punishment is purely military. The right of appeal is given only in cases of imprisonment, penal servitude or death.
A citizen of this country—whether he be a soldier, a sailor or an airforce man, whether he be a private or a general, or whether he is an ordinary citizen—if he is sentenced to imprisonment by any tribunal, be it the Circuit Criminal Court, the Central Criminal Court or a court-martial, will have the right to appeal to the Court of Criminal Appeal against the conviction which resulted in the sentence. I do not want anyone to ask what would the Court of Criminal Appeal have to do with courts-martial, with discipline. They are not asked to have anything to do with courts-martial or discipline. They are simply asked to examine into the proceedings of a court which has imposed sentence of imprisonment, of penal servitude or of death.
The next sub-section provides that an appeal under the section shall be made in accordance with rules of the Court of Criminal Appeal. That is a formal sub-section, although it is only in fact a sentence, because in every case where there is a right of appeal to the Court of Criminal Appeal, the Court of Criminal Appeal makes the rules—the simple rules about lodgment, about the number of copies and matters that are purely domestic, as it were, in so far as that court is concerned.
The third sub-section says that the appeal shall be heard and determined by the Court of Criminal Appeal in the same way as an appeal from the Central Criminal Court, but the court shall not interfere with the sentence, unless it quashes the conviction appealed against. In other words, the appeal is against conviction only. If the Court of Criminal Appeal find that the conviction is illegal, they quash it, but if they do not, if they find that the conviction is all right, they do not interfere with the sentence. In this I am again endeavouring to provide for as little interference as possible by the Court of Criminal Appeal, while having it there to protect the person who feels that he has been, and who, in fact has been, illegally convicted.
Then sub-section (4) provides that the Court of Criminal Appeal shall have no jurisdiction to hear an appeal against the sentence only of a court-martial. The position of the Court of Criminal Appeal so far as this amendment is concerned is that its duty is only to examine the proceedings to ascertain whether a man was legally and lawfully convicted. If he has been legally and lawfully convicted, it would be no business of the court to say whether the sentence was excessive or not, because different considerations, as has been stated here, must apply to military punishments from those which apply to punishments in the ordinary criminal courts.
The Minister cannot complain, and nobody can complain, that the insertion of a section such as that in any way interferes unduly, improperly or unnecessarily with the jurisdiction and functions of courts-martial and certainly it does not in any way interfere with the maintenance of discipline, because discipline has to be based on law and it cannot be based on illegal decisions of courts-martial. If there is an illegal decision of a court-martial, the sooner it is disposed of the better, and when an accused person feels that he has been illegally convicted, he has the right within 14 days of confirmation to have his case brought before the Court of Criminal Appeal and there examined and dealt with.
I think that would be an invaluable protection and not only would it be an invaluable protection but it would ensure that the rule of law prevailed. I do not want to be met with the answer that this would be entering the domain of the military. It is not entering the domain of the military—it is entering the domain of justice. Let justice be done, somebody has said, though the heavens fall, and neither the Minister nor anybody else could have any objection to an examination of a conviction, if that examination results in the quashing of an obviously illegal finding.
I have endeavoured, this being, as I think it is, the last of the major amendments, to put the case for this right of appeal on grounds of justice and I propose, when we resume, to say a few words in regard to the exercise of that right in those countries where it has been given.