I move amendment No. 196:—
In page 114, to delete Section 258 (3), lines 45 to 55.
This section deals with the penalty for any person who purchases certain military property. Military property is given the very widest definition. It includes:—
"(a) any arms, ammunition (including bombs, grenades or similar missiles), equipment, instruments or clothing issued for the use of members of the Defence Forces, or
(b) any military decoration of a member of the Defence Forces, or
(c) any furniture, bedding, blankets, sheets, utensils or stores in military charge, or
(d) any provisions or forage issued for the use of a member of the Defence Forces or his horse, or (e) any horse or vehicle employed in the service of the Defence Forces."
That is military property. Then, if any person—
"(1) buys, exchanges, takes in pawn, obtains or receives from any person, on any pretence whatsoever, any military property, or
(ii) solicits or entices any person to sell, exchange, pawn or give away any military property, or
(iii) assists or acts for any person in selling, exchanging, pawning or making away with any military property,
such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £20 together with treble the value of any military property of which he has become possessed by means of the offence or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment."
I was just wondering what the treble value of a military decoration would be—but I suppose that is for the future. The section says:—
"Where a person is charged with an offence under this section it shall be a good defence to prove that—
(i) at the time he did the act alleged in the charge, he was unaware that the property in respect of which the charge was made was in fact military property, or
(ii) the said property was sold by Order or with the consent of the Minister or some competent military authority, or
(iii) the said property was the personal property of a person who had ceased to be a member of the Defence Forces or of the legal personal representatives of a deceased member of the Defence Forces."
Obviously these would be and must be good defences. The section continues with sub-section (3)—and this is the sub-section I want to delete, along with sub-section (4):—
"(3) Where any military property is found in the possession or keeping of any person, such person may be brought or summoned before a justice of the District Court, and if such justice has reasonable ground to believe that the military property so found was stolen, or was bought, exchanged, taken in pawn, obtained or received in contravention of this section, then, if such person does not satisfy such justice that he came by the military property so found lawfully and without any contravention of this Act, he shall be liable on summary conviction to the same penalties as are specified in sub-section (2) of this section in the case of a contravention of that sub-section."
In other words, the law as we know it is not good enough when the Department of Defence operates. It is not the ordinary case of someone proving that a man is guilty. We have the provision here that the man must prove he is innocent. That, again, is contravening one of the fundamental principles of ordinary justice, that if you allege a man is guilty of an offence you must prove he is guilty of it before he can be convicted. In all such cases, the jury is warned and it is the practice of judges, in the case of doubt, to give the benefit of the doubt to the accused. Why should we, in respect of a soldier's blanket or sheet, change the fundamental principles of law? There is adequate law—the law of larceny, the law of receiving an article knowing it to be stolen or otherwise unlawfully obtained. In regard to "buying, exchanging or obtaining," as in this section, there is plenty of law at present. Apparently in the Defence Forces we are not satisfied unless we upset every known principle of law. I hope some jurist one day will examine this Bill and write an article or thesis on it and show it up in its nakedness for what it is. Every principle that we have established in regard to law, and every principle of law in regard to criminal charges, is thrown overboard. It says here that if any military blanket, or something alleged to be a military blanket, is found, you must prove that you came by it lawfully. Sub-section (4) says:—
"A person found committing an offence under this section may be arrested without warrant, and brought, together with the military property which is the subject of the offence, before a justice of the District Court, and any person to whom any such property is offered to be sold, pawned or delivered, who has reasonable cause to suppose that the same is offered in contravention of this section, may arrest without warrant the person offering such military property and deliver him and such military property into the custody of a member of the Garda Síochána to be dealt with according to law."
In other words, if a person offers a groundsheet which appears to be military property—the sort of thing you see a "bellman" wearing, and which obviously has belonged to some army somewhere at some time—the person to whom it is offered may arrest without warrant the person offering it to him and lug him down to the Garda station. I think there is adequate law in the ordinary criminal code to deal with this. There is plenty of law in the section to make him guilty of an offence. If he:—
"(i) buys, exchanges, takes in pawn, obtains or receives from any person, on any pretence whatsoever, any military property, or
(ii) solicits or entices any person to sell, exchange, pawn or give away any military property, or
(iii) assists or acts for any person in selling, exchanging, pawning or making away with any military property,
such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £20 together with treble the value of any military property of which he has become possessed by means of the offence or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment."
One would think there was enough law, enough punishment, enough provision regarding any such offence. But no, we have to proceed in the way we are proceeding all the time, throwing overboard all the canons of justice and reversing them as far as a military article or something alleged to be a military article is concerned. It may even be a military utensil—such as boy scouts go around with. We oblige the person to prove that he obtained the property lawfully.
I have no objection to a discussion in this House on the principles governing justice, whether we are to have the French system or any other system rather than what is known as the English system under which we operate, where the accused is considered innocent until he is proved to be guillty. I have no objection to that being considered, but I have the greatest objection to nibbling in and biting into the principles of law as we have it, as is done in this section and in this Bill. This is one of the examples.
The Minister will say: "We have to protect public property." Public property, private property or any other property is not as sacrosanct as the principles of justice, because on the principles of justice are based the freedom of the individual. If we deprive the individual of his freedom through interfering with the principles of justice, we nullify our constitutional provisions. For that reason, I object to that type of section in this or any other Bill.