Defence Bill, 1951—Report Stage (Resumed).

When the debate was adjourned, I was dealing with amendment No. 172 which provides for a right of appeal from the sentence of a court-martial. I had explained that the right suggested in this amendment was a right that has been clamoured for by many armies for quite a long time. Since the last great war, the right has been conceded in Britain and officers and soldiers there have the right of bringing appeals to the Court of Criminal Appeal in England on points of law. I do not know how many appeals have been heard, but I think the number of appeals heard in Britain, since this right was provided, has been very small. There is no question, and cannot be any question, of an abuse of the procedure, because the right of appeal is limited to a matter of law, and, so far as my amendment is concerned, it could apply only where the sentence was one of imprisonment, penal servitude or death, and the appeal is not against the sentence but against the conviction. In England, they have that appeal on a point of law.

When I put down the amendment, I thought the Minister would have considered it and that, as he kept up with modern development in Canada in regard to punitive provisions in relation to matters of pay, he would have adopted this new and long-sought after provision of the right of appeal which has been adopted by the English Parliament. The provision cannot be abused, as I say, so there can be no objection to it on that score. It is a valuable right—it is, in fact, an essential—that, where one has punishment of the nature provided in this Act, the conviction which gives rise to the punishment should be subject to examination by the Court of Criminal Appeal, and it is significant that when we had the Special Criminal Court, a court composed of military officers, which had very extensive powers granted to it by legislation and under the Constitution, a right of appeal to the Court of Criminal Appeal existed and was frequently availed of. There were many cases in which the Court of Criminal Appeal found that the Special Criminal Court, composed, as it was, of military officers, were wrong in their conception of the law and on a number of occasions quashed the convictions of that Special Criminal Court.

Where we have all this haggling and baggling with principles of justice, as we have here—quashing convictions that are found to be absolutely illegal and ordering the accused to be tried again and substituting one punishment for another—we certainly should have a right of appeal to the Court of Criminal Appeal. Bad as this particular Bill is in its draftsmanship, it would be very signally improved if it included a provision such as I suggest. I do not for one moment suggest that the form of words I have put down is the best to provide for the appeal, but if the principle of the appeal was conceded, the Minister would have the services of the parliamentary draftsman in putting in acceptable form the provision that there should be an appeal.

The Court of Criminal Appeal, as we know, is a court constituted of the Chief Justice or President of the High Court and two other judges of either the Supreme Court or High Court. It is a court which is constituted when any appeal is pending, and which hears very carefully the submissions made to it and which examines all the authorities laid down by itself from time to time and the principles of criminal law that have been laid down over the years and have been accepted as applicable to this country. Where an individual, whether a soldier or an officer, has been convicted of an offence which involves very serious punishment—imprisonment, penal servitude or death—I think it will be agreed that he should have the right to have his case considered if he thinks the court of trial has dealt with him illegally.

If the right existed in relation to some of the matters which we discussed on a previous section, as to the Minister ascertaining whether the proceedings of a court-martial are illegal, the Court of Criminal Appeal in a very short period would decide whether they were illegal or not. It is better in the interests of justice that there should be that immediate examination, where an accused person feels he has been treated unjustly, unfairly or improperly by the court-martial which tried him.

It is surprising that a Deputy should have to advocate this right of appeal for an accused person in the circumstances set out in the amendment. There should be no question whatever about it and I am anxious to know what objection the Minister can have to this right of appeal, what objection can he have to it on legal principles? What objection can he have to it on the grounds of justice? Does he think that a soldier or an officer who feels he has been illegally convicted should be deprived of the right of going to the highest tribunal in the country to have his conviction examined and, if illegal, set aside? What objection can there be to the procedure?

I am very anxious to hear from the Minister why he did not avail himself of the machinery of appeal that has been established in Great Britain. I read recently in the newspapers that, in Germany, where provision is being made at the moment for the creation of an armed force, where amendments to their own Constitution have been made and where certain laws in respect of the new military force have been under consideration this question of appeal from the verdicts of military courts-martial has also been very favourably considered. It does seem to me that in any country that considers itself in the van of civilisation there should be the right of appeal against a conviction carrying with it the grave and serious penalties that this military code provides.

The right of appeal against conviction is a right that has been established over a long number of years in the case of ordinary criminal offences. That right of appeal has been established at the insistence mainly of lawyers but at the insistence of citizens who believed it was the fundamental right of an accused person to have a case re-examined by a higher tribunal if they felt they were dealt with unfairly and unjustly. There has been rapid progress in regard to that conception of appeal. Anyone who reads our own history will find that it is not many years ago when an accused person in Green Street courthouse who had been sentenced to death was executed within a matter of hours. No right of appeal whatsoever was granted.

I am perfectly certain that in those days there were judges and civil servants who opposed very vigorously that the right of appeal should be granted to an ordinary citizen. One has only got to read the defences that were conducted by John Philpott Curran to realise the sort of summary procedures that were carried out in those days where trials lasted right over midnight into the early hours of the morning, sentences of death imposed and the accused trandled off to Thomas Street or somewhere else to be hanged, drawn and quartered.

There were people in those days who believed that was the right thing to do and that the accused person should have no right of appeal. It astonishes me that that same old idea lingers on in, perhaps, the most conservative part of this country—the Department of Defence. In the early stages I said they were stretching out into new continents to avail of their experience for the purpose of executing for more offences than the old Acts provided, but when it is a question of this fundamental right of appeal against improper conviction we find them away back in the dark age of the 18th century when no right of appeal would be given.

I regret very much that I should have had to spend any time on this matter. I regret very much that the conception of appeal was not accepted. If it was there would be no trouble whatsoever in the machinery or in agreement on the form of words that would bring this about. I will be very interested to hear the Minister's defence of maintaining the military code without the right of appeal, particularly where there are so many instances already in this Bill of interference with what has up to the present been considered rights of the citizens and rights of the individual.

This is another of the sections which was discussed at very great length in the Special Committee. On that occasion I spoke at very great length also and I gave what I considered to be a very detailed and very exact description of the section and its effects. As a result of the long discussion which took place there and of the views which were expressed, I went to the trouble of having a special committee of legal men set up to examine the whole question. The committee consisted of representatives of the Attorney-General's Department, a legal representative of the Department of Justice and a legal representative nominated by myself.

That was going quite a considerable distance to meet the views expressed by Deputy Cowan on that occasion, which he has repeated here again this evening. As a result of that very careful and very meticulous examination by the legal men who examined this from every possible aspect, they advised me that the question of an appeal from a court-martial was not necessary in view of the small number of offences, of their almost exclusively military nature and the absence of a system of free legal aid and the fact that there is no form of compulsory military service here.

Deputy Cowan went to great pains to advise the House that a situation which existed for a considerable period of time in England was eventually altered in a manner in which he desires that the situation here should be altered through this Bill. But what Deputy Cowan did not tell the House was that a number of commissions had already sat for very many years examining that same question and that all these commissions without exception turned down the recommendation. They turned it down until conscription was enforced in England; then the commission was set up again and re-examined the situation. In view of the fact that men were being compulsorily taken into the army, in other words, that they were not coming in any longer in a voluntary manner accepting the conditions of service as they knew them to be but were, so to speak, being forced into the service, then the commission, naturally and logically I think, decided that there should be an appeal, but it was only on these grounds that the appeal to the Court of Criminal Appeal was eventually agreed to. I cannot see any good reason why a purely military offence should be appealed to the Court of Criminal Appeal here.

Under Section 238 of this Bill there is under the heading of Rules and Procedure a provision which says: "The Minister may make rules (in this Act referred to as rules of procedure) in relation to all or any of the following matters," and then a number of matters under headings (a), (b), (c), (d), etc., are listed. Sub-clause (h) provides for the presentation of petitions by or on behalf of persons sentenced by courts-martial. In that respect it is proposed to have such petitions as would be provided for by that sub-clause (h) examined by the Attorney-General in conjunction with the Minister. I think that represents a very reasonable precaution and safeguards the individual from the horrors which Deputy Cowan seems to think will be inflicted on him by reason of the passing of this particular section. I cannot see any good reason why a civil court should be asked to come in and adjudicate on a matter which is a purely military offence.

In the course of his remarks Deputy Cowan referred to the case of a person who is illegally sentenced. I do not know what he meant by a person who is illegally sentenced.

Illegally convicted I hope I said.

Whether it is "illegally convicted" or "sentenced"—whatever the difference may be—we can deal with that and I think we dealt with it some sections back. If a sentence is an illegal one it can be dealt with by the convening authority of the court-martial, by the President of the court-martial or by the Minister. But there is no question of illegal sentence covered in Deputy Cowan's amendment. Anyhow an illegal sentence would be an invalid decision and to my mind would not be a decision which would be upheld.

However, that is not what would be examined. What would be examined under this petition in Section 238 would be an appeal against a sentence which was inflicted for whatever offence had been committed. There would be no question of it being illegal; I presume the petition would be for a reduction in the punishment inflicted. If it was a question of an illegal sentence that would be another matter. It would be dealt with by the Attorney-General in conjunction with the Minister, provided for by rules of procedure which it is proposed to bring in. I do not propose to accept this amendment because I am satisfied that as far as the section is concerned every possible precaution that can be afforded to a man who is under trial by court-martial is in fact provided.

I think I am in the same boat I was in when I sat down before. I asked the Minister to justify the refusal to provide a right of appeal to a person convicted of an offence and sentenced to imprisonment, penal servitude or death, and the Minister has not dealt with that at all. The Minister has assumed that we were discussing purely military matters and that there was no reason why they should go before the Court of Criminal Appeal, which he says is a purely civil court to deal with purely civil matters. Obviously, there are very few military offences for which a person gets two years' imprisonment, very few military offences for which he gets a sentence of penal servitude.

There are cases in which he can be sentenced to death and whether they are military offences or not it is only right that the accused person should have the right to have the conviction reviewed by a competent court.

I was interested in the Minister's explanation of this matter of appeals against convictions of courts-martial in England. I have not had time to study it up and was interested to hear that a number of commissions in England decided against including this provision of appeal in the British military code. It is interesting to find that a more recent commission came to the conclusion that it was right that there should be appeals. The Minister says that was conceded by the commission because of compulsory military service in Britain, that when people were forced into the Army they should have the right of appeal and when they joined it voluntarily they should have no right of appeal. For the life of me, I cannot see the logic of it. Of course, I can see an ingenious British explanation for one commission coming to a different decision from that of previous commissions.

On a matter of justice, does it matter two hoots whether a man is brought in by compulsion and made subject to military law or whether he signs on the dotted line and comes in voluntarily? On the question of justice, it makes no difference, and it is justice I am concerned with and justice we all ought to be concerned with. To say that because a man is brought in by compulsion, because of compulsory military service, you give him justice, but you give him no justice if he joins voluntarily, is an explanation that I find it very difficult to accept.

The important fact is that in England over many years—because several commissions dealt with it— there was repeated demand for a right of appeal from sentences of courts-martial and eventually, as in all other matters, progress and civilised development brought about a right of appeal, just as progress and civilised development brought about the right of appeal in ordinary criminal cases. I would not worry an awful lot about some of these old English commissions. They were terribly annoyed some years ago. When it was proposed to take children out of the mines by legislation, they were shocked and affronted. It is not so many years since not one but many scores of judges in England came to the conclusion that the whole world would collapse if the right were removed of sentencing people to death for particular petty larcencies. This matter should be dealt with on a basis of justice. In England there has been this reasonable development that where a person has been convicted and where the conviction is due to an error or defect in law, he has the right to go to the Court of Criminal Appeal and have the conviction quashed. The number of cases in which that would occur would be very few. But the very fact that the machinery of appeal was there would ensure that no injustice would be done and that military courts-martial and judge-advocates on military courts-martial would take every possible step to ensure that no injustice was done.

They do that at present.

The Minister says they are doing that at present. Of course they are-they are doing their very best to ensure that nothing wrong takes place. Fortunately, the number of courts-martial in the Army to-day is very small. This is a measure to govern the Army in peace and in war. It is a measure to govern the Army whether it is 10,000 strong as it is at the moment, or 200,000 strong, as it might be in times of emergency. It is a measure to govern the present very experienced legal officers and judge-advocates there are in the Army and also to govern judge-advocates and legal officers who, in the case of the rapid expansion of the Army, would not have the experience or the knowledge that our present very capable staff of judge-advocates and legal officers have. I am dealing with this Bill as one which will become an Act to govern the Army in peace and in war—not to govern only the 9,000 or 10,000 we have at the moment.

It is not a final Act.

I am not looking on it as an Act to govern the half-dozen very competent legal officers we have now in the Army. My view of the present legal officers is that nobody could go to more trouble than they do to ensure that an accused person gets fair play. I want to take the opportunity of paying them a very high tribute that they deserve. I agree with the Minister that this is to be a permanent Act, though it is one which at some time in the future will be amended. I hope so. I think it would be a shame if the provisions of this Act were allowed to operate very long. It requires very substantial amendment. When it is as long in operation as the old Act of 1923, it will be frilled around with as many amendments as the Act of 1923 is. This measure is to govern the Army in peace and in war, to govern the present 10,000 or the future 50,000 or 100,000. It will govern inexperienced legal officers and, perhaps, unjust legal officers in the future.

No legal person is ever unjust.

It is vital that this machinery should enable justice to be done at all costs. I accept what the Minister says, that he discussed this with a committee composed of legal representatives from the Attorney-General's Office, the Department of Justice and the Army. They said to him: "We advise against appeal." With all respect, it is not they who should decide whether there should be an appeal or not. That is a matter for the Legislature.

It is a matter for this House whether there should be an appeal or not. I would be very much surprised if they would take it on themselves to say that they advised against the appeal in principle or against an appeal in the manner suggested in the amendment or against the appeal because convictions are exclusively in respect of military offences.

I think we should put the whole blame on the Minister. His advisers do not come into this. It is the Minister who is accepting the advice and the Minister is the person responsible.

I am analysing the statement the Minister made. He made a point that we have no free legal aid. Perhaps due to my own stupidity, I did not get the point. We ought to have free legal aid but the fact that we have not should not be a justification for refusing to give a soldier or an officer the right of appeal to the Court of Criminal Appeal if he has been sentenced to imprisonment, penal servitude or death.

He gets it through the form of petition without any expense.

I want to come to that. Whether we have free legal aid or not, the machinery of justice ought to be available. The Minister says that under Section 238 the Minister can provide machinery of petition. I do not like very much the connotation of "petition". It suggests "I have been convicted properly. I petition the Minister to give me a lesser punishment than that awarded by the court." The form of petition could be extended but it is not a form of which I approve. I am not concerned with the punishment except in so far as the seriousness of the punishment justifies the right of appeal against the conviction.

Petition could mean a petition by a person who is convicted and who says: "I was convicted. I am guilty of this and graver offences. I have been a traitor to my country. I have let down the flag. I crave mercy from the Minister." I am not concerned with petitions against punishment. I am concerned with appeals against wrongful convictions.

I have specifically stated in the amendment that the Court of Criminal Appeal shall have no jurisdiction to hear an appeal against the sentence only of a court-martial, that the Court of Criminal Appeal will not interfere with the sentence unless it quashes the conviction. Therefore, I am not concerned with petition in that form.

The presentation of petitions by, or on behalf of, persons sentenced by courts-martial means nothing more or less than that a person who is sentenced, say, to imprisonment for a year or six months or two years, would get down on his knees to the Minister and ask for clemency and mercy. That is what "petition" is but that is not what I am interested in here. I am interested, not in the amount of the punishment, but as to whether or not the convicion was legal, or illegal. I hope I have made that point perfectly clear to the Minister.

Apparently, the Minister was advised that if we had free legal aid in this country a soldier or an officer could appeal to the Court of Criminal Appeal. I gather that there would not be the same amount of objection to giving the right of appeal if we had free legal aid. Because we have not free legal aid, apparently, we are depriving a soldier of the right of appeal, of the right of the machinery for appeal, simply and solely because we deprive him of the right to be legally represented at the expense of the State rather than at his own expense.

In my respectful submission, there is no justification for the Minister's opposition to appeal. Where a Bill such as this makes ducks and drakes of ideas we had in regard to justice and the machinery of justice perhaps it is only right that it should go the distance of refusing to allow the Court of Criminal Appeal to investigate the correctness or otherwise of a conviction by a court-martial.

The Minister has referred to the point that in England there is compulsory military service and that here we have voluntary service. I have dealt with that point. I want to direct the attention of the House to a section that we discussed earlier where we extended the classes who are subject to military law. Under the ordinary law, military law does not apply to a member of Fórsa Cosanta Áitiuil except when he is on permanent service, if called out in aid of the civil power or as prescribed in the Act. Similarly, in regard to the other classes of the Reserve, they are subject to military law when they are not on exercises or on permanent service or called out on public service when necessary. We have extended it to provide that a person is subject to military law when he is permitted to wear a uniform at a social function, or whenever he wears a uniform—and whether or not that applies to the men or the boys I meet from time to time down the country bringing home turf from the bog in uniform, I do not know. However, if one extends liability to military law to all these citizen soldiers who give their services and their part-time services to the State, why should they not have the right, say in the case of liability to imprisonment, to ask the Court of Criminal Appeal to examine the record of the proceedings of the court-martial that convicted them and to quash the conviction if the Court of Criminal Appeal finds it was illegal?

The whole trouble with the Bill is that it is pushed to logical extremes against the officer and against the soldier. Where it is a question of taking his pay, of punishing him, of bringing him up like an Aunt Sally to be tried and tried again, hit and hit again, it is pushed to these logical extremes but the position is altogether different when it is a question of giving him the protection, say, of statutory provisions here in regard to his pay, in regard to the quashing of his conviction without re-trial, in regard to giving him the right of appeal. In these respects, the Bill is pushed to the other extreme to give him no rights at all.

That attitude of mind in regard to a military force might have suited military forces many years ago when armies were not citizen armies or were not manned by the decent type of citizen that one finds in the armies of all countries to-day. That type of mentality in regard to armies is out of date and out-moded. Personally, I am not a bit surprised that it exists in one of the few places where it could exist in this country and that is in the Department of Defence. I remember reading one time about a Duke—I think it was the Duke of Wellington—who went out and took a look at his army and said: "My God, I do not know how they affect the enemy but they frighten me." For that type of soldier, this type of Act would be all right but the modern citizen will not put up with it. You can have your logical Act pushed to its logical extremes against the soldier there but you will have a logical Act and no Army with which to play under that Act.

The Minister knows that, since the emergency, it has cost the State a very large sum of money, by recruiting campaigns from time to time to try and get the Army up to strength. The only hope of keeping the Army up to strength without these expensive recruiting campaigns is to have conditions of service in the Army so attractive that young boys will be encouraged to go into the Army—and in order to have that attraction the rights of the soldier must be preserved. Even the Department of Defence must realise that the young boys of to-day will not be pushed around. Whether it be in the factory, on the football field or anywhere else, the young boys of to-day will not be pushed around—and they will not permit themselves to be pushed around in the Army. I should prefer if we were keeping in step here with modern developments by providing the machinery for appeal—by providing the machinery that would eliminate grievances and complaints and causes of objection to the Defence Forces—instead of putting through a Bill of this type, designed only to punish the members of the Army and to deny them the rights that, as ordinary citizens, they should be entitled to.

I cannot do anything with it. I cannot do anything about it. All I can do is to point out the foolishness of the attitude being adopted here. All I can do is to point out to the Minister, in so far as I can, that where we have a development in military law in other countries—that is, following the development of some years ago in regard to the ordinary criminal law of the country—in regard to the rights of the soldier and the rights of the citizen to appeal against what they consider improper or unlawful conviction, we should put that in and that if this Act were to err it should err on the side of the provision which it would make for the rights of the citizens.

I have done my best in the Special Committee and I have done my best here to get this principle of appeal accepted. It is not being accepted. The House does not want it to be accepted. The members that compose this Dáil do not want those rights given to the Army. The members of this Dáil want to deny to the soldier that fundamental right of appeal to the Court of Criminal Appeal against an improper or an illegal conviction. The members of this House want to maintain the old idea in regard to the Army—that the soldier is a type of chattel or, if you like, of cattle that will not be given rights at all. That is the position of this House in regard to the Defence Forces and the rights of the Defence Forces. The Minister tells us that there is no necessity to give him the appeal, that he might not have the money to pay for the appeal. He might not have the money to pay a lawyer to appear for him in the Court of Criminal Appeal. He can appear himself if he wants to do so. We do not give free legal aid. Therefore it would be cheaper for him to make a petition. It would be cheaper for him to send in a bigmea culpa to the Minister or to the Government to reduce the sentence that has been imposed on him, whether it is an illegal or a legal conviction. That is what he has to do. He has the right of appeal. He has the right to petition. Everybody has right to petition, and in the bad old days one had the right to go in before the landlord with his cap in his hand. That is the right that is given to the soldier to-day and not the right of a freeman to assert his innocence of the charge before the highest court we have in this country in respect to criminal appeals. We are not giving him that right but the right of a supplicant to beg for mercy when he has been improperly or illegally convicted of an offence. If the Dáil wants it that way the Dáil can have it that way, but please God in the future some other Dáil will take a different view and it will be necessary to take a different view in regard to matters of that kind.

Amendment put and declared lost.
Amendment No. 173 not moved.

I think amendments No. 174 and 175 should be taken together.

I move amendment No. 174:—

In page 102, Section 228, line 15, to delete "or is released without proper authority".

The object of the amendment here is to delete certain words from the section as it stands. It is a section dealing with the suspension of currency of sentences where a person escapes or is released without proper authority. The section provides that if a person who is sentenced to imprisonment, detention or penal servitude escapes, his sentence is suspended for the period of his escape, the period during which he is free after the escape, and it begins to operate again when he is apprehended. The Act provides that where a person is released without proper authority the sentence will be suspended while he is out and when he is caught again the sentence will resume. I cannot see how a soldier or a person subject to military law could be released without proper authority. That is the first thing that worries me. Secondly, if he is released by some authority whose power to release might not be all that is desired, why should he be re-arrested and why should his sentence be revived? Why should he have to serve the balance of his sentence? I would ask the Minister to inform the House what are the circumstances in which a person could be improperly released? If a person is sentenced to penal servitude he is down in Portlaoise. I am leaving out the escape part of it because I am not quarrelling with the fact that if he escapes and is caught he goes back and that is all about it. But how could he be released improperly from Portlaoise or if in Mountjoy, how could he be released without proper authority? Or if he were in Arbour Hill detention barracks how could he be released other than by proper authority? One need not say very much about the ordinary detention guard rooms and things like that but I would like to hear the Minister explain the circumstances in which it is visualised that a person could be released from Portlaoise or Mountjoy, or any other civilian prison or Arbour Hill, or any other military detention barracks. How could he be released without proper authority? And if he is released by some mistake of somebody, some person of military authority or civil authority, if he is released by mistake of fact or mistake of law, is it right that he should be liable to apprehension and liable to be put back, liable to be kept there as if he were never released? I would like the Minister's view on that. I think the same point arises on amendment No. 175—exactly the same point.

The best way I can answer the queries which Deputy Cowan has put to me is by quoting from the report of the Special Committee which deals with this particular section. I was replying to Deputy Cowan—he made a similar case to that he has made just now—and this is what I said:—

"Mr. Traynor: Release without proper authority may be accidental but it could also be by collusion. If it is accidental the person need not necessarily be required to serve the period during which he is away as the section merely says `may'. On the other hand, if there were collusion he should be required to serve it. If there is some kind of conspiracy to get a man out and he is party to it he should be made to serve the full term, but if he is released by mistake the provision need not operate at all."

Then Deputy Cowan said:—

"I would be satisfied so long as that would be the interpretation."

I can see the force of the argument made by Deputy Cowan. If he is released through collusion or a conspiracy, then somebody else ought to be in a jail instead of the accused.

That is another matter.

It is, but I cannot see that happening, and, therefore, I must take the point of view that he is released by some sort of authority, and that he cannot be released except by those who have the responsibility of keeping a convicted person in custody. The thing that upsets me about this is the fact that if he was in Portlaoise prison and the Minister for Justice released him, could it be argued that he had not been released by the proper authority? In that case he had been in a convict prison which is under the Department of the Minister for Justice. If the convict appealed or petitioned to the Minister for Justice, instead of to the Minister for Defence or to the convening authority, would his release by the Minister for Justice be an improper release?

It would not be questioned.

Well, the point is that it was not the proper authority that released him.

Or even if it were accidental.

I will come to that later. It is an admitted fact that, under the Courts of Justice Act, the Government may delegate power to the Minister for Justice to remit in the case of punishment or a conviction. Suppose the Minister for Justice got a petition from Private John Brown or Lieutenant Michael White appealing for release or for a remission of his sentence, and that the Minister released him, would his release be held to be an improper one? I am afraid that the Minister for Defence or the Army authorities could hold that it was, and could under this section rearrest him. That is why I do not like the phrase "released without proper authority".

Now, with regard to accidental releases, I have known of such cases. I think that in a case where a release was accidental, somebody else had to pay the piper, and that a new warrant was issued for the arrest of the accused. He could not be taken into custody again without a continuance of the offence. I am aware of accidental releases under the existing Act. At the same time, I feel that the use of the word "may" in the section does not give enough protection to an accused person. I think the words in the section are not necessary, and that the Minister would be well advised to examine the matter again and see if my contention is right. My opinion is, that we should not put anything into the Act that is unnecessary. I think that the words "without proper authority" are unnecessary.

I am glad that Deputy MacEoin has made that point on this particular amendment. The Minister, however, says, in effect: "Well, this is what I said in the Special Committee and this is the end of it." That, of course, is part of our trouble in regard to the whole Bill and it has been so all the time—that is this style "that is what I said and I stick to it".

The Deputy said he was satisfied with it.

No. I said I was satisfied if that was the effect of it. I am not satisfied, however, when the Minister says: "This section will be interpreted in the way that I say it will be interpreted." That is our difficulty. That would be all right if the Minister were to be a Methuselah and we were to have him for the next 900 years—that is, that he would always deal with cases that came before him in that way. If that were so, we would have nothing to worry about. I do not think, however, that science has progressed so far that any of us can hope to reach the age of Methuselah.

It is from that point of view that I think the section is a bit slipshod. It is a new section, and, as far as I can see, it is slipshod in so far as it refers to "without proper authority" because it does not say what the authority is. You could have a position where the civil authority would release, whereas in fact, under the provisions of this Act it might be the military authorities that should give the order. I think that once he is released that is the end of it, although an attempt is being made in subsequent sections to deal with cases of temporary release.

Not so very long ago I had a question before the Department of Justice. It was a case where I was anxious that a person sentenced to a period of imprisonment would be released to attend a family funeral. The Department of Justice explained to me their difficulty in regard to it. If the man concerned had almost finished his sentence or had more than half finished it, the remainder of the sentence could have been remitted, but it was not possible as he had only started to serve the sentence. My suggestion was that he should be released or let out in charge of a warder. The difficulties were pointed out to me. The Department felt that, once he was let outside the prison, they had no power under the existing law to bring him back. The position is different in regard to a convicted person in Portlaoise, because then he could be released on a ticket of leave or on conditions. If he broke the conditions he could be re-arrested.

There are difficulties in regard to the section. It is not as simple as it may appear on the face of it. I hope the Minister will adopt the suggestion made by Deputy MacEoin and look into this matter again. I do not like the words "without proper authority". I do not know whether they have been defined or not. I have not been able to check up on that. The term "released without proper authority" is vague and uncertain. If a person is released by someone who thinks he has authority, although, in fact, the authority may not be there, it would be very wrong if that person should be liable to be brought back again because some person had misconceived what his authority was. I think that the words I have referred to should not be in the sub-section, and I strongly appeal to the Minister to drop them.

Amendment, by leave, withdrawn.
Amendment No. 175 not moved.

I move amendment No. 176:—

In page 105, Section 238 (1) (c), line 10, to delete "and constitution".

In this amendment I propose the deletion of the two words "and constitution". Section 238 provides that the Minister may make rules of procedure. Now rules of procedure are very important rules because they are rules that govern the procedure of a court-martial under the Bill. The rules adopted under the 1923 Act were very good rules. They lasted a long time. Defects were discovered in them and it took some little time to cure those defects, but, generally speaking, the principles of justice were contained in the rules of procedure as they then existed.

This section gives the Minister power to make rules of procedure governing all the matters relating to courts-martial and the sub-section I propose to amend deals with the convening and constitution of courts-martial. But the constitution of courts-martial is already set out in the Bill and for that reason I do not see why we should have a double-barrelled power stipulating that the constitution of courts-martial should be set out in the rules of procedure. That is the net point in relation to this matter.

In this Bill we provide that the president of a court-martial will be of a certain rank; that the president of a local or limited court-martial will be of a certain rank and that the local or limited court-martial will have a certain number of persons. Similarly, in relation to a general court-martial, we provide for its constitution. The very words are taken from the old Act and I can see no reason for the insertion of the words "and constitution" in this sub-section, seeing we have already provided for the constitution of a court-martial.

I have already told the Deputy that Rules 22 to 29 of the present Rules of Procedure, which will continue in operation, contain incidental matters relating to the constitution of courts-martial. These rules are necessary and are designed to enable a court to satisfy itself that it is properly constituted according to the requirements of the Act. If the Deputy looks at the Act he will see that the Minister may make rules, and so on. Then there is a reference to the convening and constitution of courts-martial. The actual constitution of a court-martial is, of course, set out in the Bill itself, as the Deputy has stated, and the rules cannot add anything to what is already there. They are, in the main, merely a kind of guide or yardstick for the convenience of the court-martial itself, something to which the officers can refer if they are in any doubt. As the Deputy has said, the court-martial is already dealt with in the Bill and the Rules of Procedure are merely there for guidance subsequently.

I cannot see the point. It does not matter very much and I will not waste any time on it. We set out in the Bill the specific constitution of courts-martial. Then we come along and we give the Minister power to make rules of procedure, in other words to deal with incidental matters such as the time of assembly of the court, how it will be convened, the steps taken to bring the man to trial, the supplying of a summary of evidence and the charge sheet. All these things cover the position. But we set out the constitution of a court-martial and since the Rules of Procedure cannot alter that I do not like to see in another section power being given to the Minister to prescribe the constitution of a court-martial because under the Bill when it becomes law the Minister will have no power to do that. However, the Minister insists he must have the power, although I think it is not necessary. But who am I to say that the Minister is wrong?

Amendment, by leave, withdrawn.

I move amendment No. 177:—

In page 106, to delete Section 240, lines 1 to 39.

I propose in this amendment to delete Section 240in toto. This section deals with the punishment of certain offences committed by reservists. This is where we come into the country, as it were. This section enables a reservist to be brought before a court of summary jurisdiction and punished. I have a very strong objection to the section because, if it is ever put into operation, it is good-bye to the Reserve.

When a man joins the Reserve and is out for training, whether on permanent service or otherwise, he is subject to certain regulations. When he is subject to military law, he can be dealt with for a breach of these regulations. But, under this section, a reservist who fails to attend a parade in Clifden, Ballydehob, Ballinalee, or anywhere else can be brought up in the local district court and charged with not attending a parade at 20 hours on Friday of a particular date. If we are to deal with the reservists in that fashion, if we are to bring a reservist up before a district court for not attending a parade, and if the reservist has to go in there and give an excuse to the district justice for not attending the parade, it is good-bye to that member of the Reserve, good-bye to any relations he has with the Reserve, in fact it may be good-bye to the local company. If we cannot have a Reserve without that sort of business, then I do not think it is very much good to us.

It is even worse as one goes down the section. It is bad enough to bring a reservist before a district justice for being absent from parade, but if he "uses threatening or insulting language or behaves in an insubordinate manner to any officer or non-commissioned officer who, in pursuance of Reserve Defence Force regulations, is acting in the execution of his office and would, if such reservist were subject to military law, be his superior officer," again he can be brought up in the District Court.

I can visualise a person who holds the rank of private in the Reserve and a person who holds the rank of corporal in the Reserve using certain language to one another on occasions, and it would be a nice state of affairs if the private were liable to be brought up in the District Court for telling a person who would be his corporal if they were both subject to military law what he thought of him. I do not think it is very desirable from the point of view of either of them or from the point of view of the Army Reserve that we should have our local District Courts dealing with that sort of thing.

If a reservist "in reply to any notice served on him under this Act of Reserve Force Defence regulations sends any communication of an insubordinate kind," again he may be brought up before a district justice and dealt with. Similarly, if he "by any fraudulent means obtains or is accessory to obtaining any pay or other sum contrary to regulations made under Section 97," in other words, if he claims too much travelling expenses, he can be brought up in the District Court.

That would be worst of all.

Or, if he "fails without reasonable cause to comply with Reserve Defence Force regulations," he will be liable on summary conviction to a fine not exceeding £25. There is, I think, in the Department a sense of humour, because they have a great chance of getting £25 either from the court or from anybody else for any of these types of offences. It also provides that "where a reservist commits an offence under this section he may be taken into service custody." I am not sure how far that extends. Perhaps the Minister will explain whether, if he is absent from parade, he can be arrested for that. Sub-section (3) provides:—

"Where a reservist commits in the presence of any officer an offence under this section, such officer may, if he thinks fit, order such reservist, in lieu of being taken into service custody, to be taken into custody by any member of the Garda Síochána."

The next sub-section deals with the certificate which would be evidence in the court and sub-section (5) deals with what Reserve Defence Force regulations are.

My objection to putting in such sections as these is that they have no basis in reality. The Minister knows that he will never have a reservist brought up in a District Court because he fails to attend a parade and that he should have to give a reasonable excuse to the district justice for not attending the parade. He knows very well that if a person who is a corporal uses strong language to a person who is a sergeant, both of them being civilians but the sergeant being the superior officer, and they are both subject to military law, he would not have that type of case brought before a civilian court. If a person gets a notice and sends in a subordinate answer to it, he will not be brought up in the District Court. If he fails to comply with Reserve Defence Force regulations, he will not be brought up in the District Court. But the section provides that if he does any one of these things he may be brought up in a District Court and be subject to a fine not exceeding £25.

I feel that it is ridiculous to put a section such as that into the Bill, because it will never be operated. The day you start to operate that sort of provision by bringing a reservist before a district justice to answer why he did not parade on a Friday night at 8 o'clock it will be good-bye to the Reserve. Some of these sections are put into the Bill because there is an unfathomable sense of humour somewhere in the Department. I should like to know where this originated, whether it is part of the provisions that governed the old militia who were in a very different category from the young men who belong to our Reserve. The provision whereby a reservist can be taken into service custody or ordered into the custody of the Garda Síochána for breaking the Reserve regulations in purely disciplinary matters is one that, in my submission, ought not to be passed by the House.

I move the adjournment of the debate.

Debate adjourned.