I have moved the First Stage of this Bill, the Long Title of which is:
Bill entitled an Act to repeal the Offences Against the State Acts, 1939 and 1940.
It is generally accepted that a Government elected by the people should be prepared to undertake the obligation of protecting the rights of the citizens. The laws which they enact must, therefore, be founded on the principle of individual liberty. This is the bedrock of democracy, or government by the consent of the governed.
The Offences Against the State Acts of 1939 and 1940, which we seek to repeal by this Bill, are a clear example of how the bedrock of freedom may be shattered and the edifice of law, built at a cost of great effort and the tremendous exertions of civilised man over the centuries, may be levelled, dismantled and taken away for so long as it suits the Government of the day. These Acts, for so long as they are on the Statute Book, remain as a lurking background threat of imprisonment without charge at the Government's pleasure and a denial of the accepted right of trial by jury. They are, therefore, undemocratic, false and bad and are inherently offensive to our concept of a free society. These are the Acts— the Offences Against the State Act, 1939, and the amending Act of 1940— which the Labour Party Bill would repeal. We seek, in this Bill, to restore to the citizens that of which they stand deprived — liberty guaranteed by statute. I commend to our narcissistic rulers in the consideration of this Bill the words of the Book of Leviticus:
And ye shall hallow the fiftieth year and proclaim liberty throughout all the land unto the inhabitants thereof; it shall be a Jubilee unto you; and ye shall return every man unto his possession.
In general, the Acts created a new series of offences which are made crimes. These crimes are by law required to be tried in secrecy before special criminal courts. The right of trial by jury is abolished, the accused is presumed guilty in most instances. The accused is required to testify whether he desires to do so or not. Upon conviction, the accused is not allowed to appeal to a higher court unless the special criminal court gives its consent. In actual practice, there is no appeal. Part II of the Act, as passed in 1940, is even more drastic because it allows the Government to imprison a person without ever holding a trial or making a charge.
It should initially be pointed out that the Act is not effective except when it is declared so by a Proclamation of the Government. Civil liberties are suspended by the Government's proclamation. No limitations are placed on the Government's right to issue the proclamation suspending civil liberty. Any time they wish to do so, they may publish the proclamation, suspend all personal rights and deprive our criminal courts of all jurisdiction. Part II of the Act contains some of the most radical provisions in the law, as it contravenes and nullifies every recognised principle of our criminal law as established by our courts. This Part of the Act out-lines numerous things which are made crimes but fails utterly to describe with clarity the acts or things forbidden.
It is an elementary rule of criminal law in any country where Anglo-Saxon law prevails—and this includes Ireland—that a law which labels an act criminal must satisfactorily describe in some detail the exact acts outlawed. The rule is such because the law recognises that fairness requires that a person be appraised in clear and concise language of the acts forbidden so that he can avoid them or, if accused of committing an act, answer the charge against him. The courts in this country, as well as England and America where Anglo-Saxon law prevails, have consistently set aside and avoided convictions based on vague and indefinite criminal laws. In effect, the courts have ruled that a criminal law must be clear and definite so as to enable the general public to be in a position to avoid breaking it.
Part II of the Offences against the State Act, 1939, fails to specify the acts forbidden as criminal, and as a result almost anyone is liable to be picked up off the street and charged with a violation of some part of the Act though, on reading the section allegedly violated, he is unable to learn what exactly is forbidden by the law. For instance, under section 7 of Part II of the 1939 Act, anyone who "prevents or obstructs" the "carrying on of the Government" is guilty of a felony and subject to seven years' imprisonment. One may well ask what is an act of prevention and obstruction as referred to in the law. Would, for instance, the refusal to pay part of one's income tax be deemed such an act? Who is to say, except apparently the Government or a Minister of the Government?
Section 9 of the 1939 Act makes it a crime to "encourage any person" in Government service "to be negligent". We are not told what the section means by "negligent". Obviously the word means many things to many people and as long as the act prohibited is not defined, we must only guess at its meaning. Those sections, like so many others in the Offences against the State Act, expose a person to any type of charge any Government official or police officer cares to make. In fact, the Act allows the Government official to say what the alleged crime is. This vitiates the entire Irish system of justice. The Government is allowed to act as a press censor under section 10 of Part II of the Act which violates our basic right to a free and uncontrolled press. Even Cromwell in Puritan England did not get away with that without protest and exposure by Milton.
Specifically, section 10 forbids the printing and publication of any document which is incriminating, whatever that means, any document which is treasonable, whatever that means and any document which is seditious, whatever that means. None of those terms is defined in the Act and so we are all at the mercy of the personal interpretation of this section entertained by the Garda who happens to jail us. The great danger in all of those provisions lies in the fact that we are not appraised of what is unlawful and so we have nothing to guide our conduct.
The Offences Against the State Act rejects any principles of criminal law and procedure. Perhaps the most glaring violation is found in the provisions of the Act which state, in the very first instance, that the accused shall be presumed guilty and shall be required to prove his innocence. Our own courts, as the courts in England and America, have always followed the principle that an accused is, in the eyes of the law, presumed innocent and the State must carry the burden of proving the accused to be guilty. Unfortunately, the Offences Against the State Act reverses this process and the accused is in many instances presumed guilty and the State is not required to prove his guilt. As an example of this section 15 of Part II of the Act provides:
In any prosecution under this section the burden of the proof that any act was authorised under this section shall lie on the person prosecuted.
Section 19 contains a similar provision and states that:
The charge itself carries with it a presumption of guilt on the part of the accused.
The presumption of innocence in a criminal case, how I cannot say, has been universally accepted in all jurisdictions following Anglo-Saxon law. This includes Ireland, Great Britain, Canada, the United States and many other Western nations.
As if motivated by fear of the people, the organisation of groups of people is forbidden by Part III of the Offences Against the State Act. The Act provides that the Government can ban any organisation which in its opinion is unlawful. The ban is effected by a suppression order. All this is done, of course, by the personal edict of a State official without a trial or hearing. Moreover, section 19 provides:
A suppression order shall be conclusive evidence for all purposes that the organisation to which it relates is an unlawful organisation within the meaning of the Act.
As you can see, this section is very sweeping. In effect, a Government official can ban and suppress any organisation he personally declares to be unlawful. Not only is the organisation found unlawful without a hearing or trial, but any member of such an organisation is automatically guilty of a crime and subject to two years' imprisonment and heavy fines under section 2.
All property of the unlawful organisation, both real and personal, is forfeited to the State under section 22. In addition, a chief superintendent of the Garda can if satisfied that a building is being used or has been used in any way for the purposes, direct or indirect, of an unlawful organisation, close any such building. The closing is automatic and no hearing or trial is held beforehand. Although opinion and hearsay evidence is not allowed in our criminal courts an exception is made to this rule by the Offences Against the State Act. An example of this is found in section 26 of Part IV of the Act which allows the chief superintendent of the Garda to testify that an outlawed publication was published by an accused despite the fact that the police officer has no personal knowledge of the subject. Although our criminal courts and Constitution forbid the use of testimony based on rumour and suspicion in criminal prosecutions, an exception is made in the Offences Against the State Act and an accused can be convicted solely on the basis of hearsay and rumour testified to by one who, admittedly, has no personal knowledge of the commission of the alleged crime.
Public meetings of citizens can also be banned by a chief superintendent of the Garda merely because he is of the opinion that the meeting will aid or encourage an unlawful organisation. Anyone attending such a meeting can be imprisoned and fined. The Act also permits any member of the Garda to arrest without warrant. In this respect the Offences Against the State Act militates against our criminal laws which ordinarily require that an arrest must be based upon a warrant. Penalties under the Offences Against the State Act are extremely severe and go beyond the normal criminal penalties of imprisonment and fine. Section 34 provides that accused persons convicted by a special criminal court who are in the employment of the State shall forfeit their office, employment, place or emolument and the same shall forthwith become and be vacant. This means that a person, in addition to fine and imprisonment, will also suffer loss of his job and pension rights. The section also deprives the accused of the right to public employment for a period of seven years in the future.
One of the most significant departures from our system of criminal law is found in Part V of the Offences Against the State Act. This part creates what are called special criminal courts. Those special criminal courts deprive our regular criminal courts of all jurisdiction in criminal matters. The special criminal courts are, in fact, military boards which try non-military persons. All proceedings are held in secret. No appeals are allowed except where the court gives its consent. All special criminal court judges are subject to removal at will, unlike judges in our regular criminal courts. In practice, all special criminal judges are high ranking military officers. The Government, in effect, is the accuser, prosecutor and judge of the accused, like Hempenstall. Under such a system justice is neither sought nor applied. The courts merely provide the Government with a device to arrest, jail and impoverish persons who may disagree with the Government's policy.
By an ingenious device the Act allows the Government to deprive the accused of a jury trial in our established criminal courts. This may be done any time the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice. Even the Dáil is helpless; it cannot invalidate any action of the Government under Part V. In other words, the people have no recourse in the case of Governmental abuse and tyranny. As a matter of fact, Part V of the Act is so sweeping that it allows the special criminal courts to try any offence under any particular enactment. This means that the Government's special criminal courts are not limited to the trial of offences and crimes listed in the Offences Against the State Act, but may try any other type of criminal offence.
This, in effect, allows the Government to try anyone in a special criminal court for any offence whatsoever, thus depriving the accused of his basic right to a trial before a jury and judge. The Act is so sweeping in this regard that the Government is allowed to divest and deprive our regular criminal courts of all criminal jurisdiction. The Government is granted complete control over the special criminal courts. This is made clear by a reading of Part V of the Act. Each court is required to have at least three members. Each member can be removed at will by the Government.
The average layman thinks of a judge as a barrister or solicitor of several years' experience but the Act provides that a judge of the Special Criminal Court may be "an officer of the Defence Forces not below the rank of Commandant." As a practical matter, all judges of the Special Criminal Courts have been high-ranking military officers, none of whom has had legal, judicial education or experience. The judges of each Special Criminal Court are unfettered as to procedure, as section 41 of the Act allows each court to adopt its own procedure without restriction. Criminal procedure is as vital to an accused in a criminal case as the substantive law and yet the special criminal courts can employ whatever procedure they see fit, without limitation of any kind.
Section 41 (4) acknowledges that the Special Criminal Courts need not employ "the practices or procedures applicable to the trial of a person on indictment in the Central Criminal Court...." The military overtones of the whole system of special criminal courts are emphasised by section 50 which provides for "military custody of any particular individual so sentenced." The right of appeal is basic to all systems of justice but despite this a person convicted by the Government's Special Criminal Courts has no right of appeal except when permission to appeal is granted by the court itself as provided in section 44. The realities of the situation make it obvious that a special criminal court will hardly consent to an appeal concerning errors allegedly made by itself.
It is elementary in our law that an accused can also question and contest the jurisdiction of the court which seeks to try him. The question of jurisdiction can be raised in a number of ways. However, an accused who questions the jurisdiction of a special criminal court is guilty of criminal contempt of court under section 51 of the Act and can be imprisoned for this crime.
A person in custody has no rights under section 52 of the Offences Against the State Act. He must answer all questions and explain his whereabouts to the police. If he fails to do so "he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment...."
An accused, in effect, is deprived of his right to remain silent, a right commonly referred to at times as the right against self-incrimination. The right to remain silent and not assist the accuser in his charges against you has been recognised in Anglo-Saxon law for centuries. The rule is codified in the American Constitution in the Fifth Amendment:
No person ... shall be compelled in any criminal case to be a witness against himself...
The Offences Against the State Act gives the Government broad powers of detention. These provisions are found in Part 2 of the Act which was passed in 1940. Under Part 2 the powers of detention come into operation any time the Government decides to use the powers it has. It has only to issue a proclamation under section 3. Part 2 is the most radical of all sections of the Act and permits detention without a trial of any kind. Detention as used in this section is, of course, imprisonment. The Government is given special powers of arrest and detention. A citizen may be arrested and detained any time a "Minister of State" desires the arrest and detention. The Minister need only feel that the person to be placed in detention is dangerous to the public peace or to the security of the State. It does not say, I emphasise, that the Minister for Justice should be the person to determine whether a citizen will be detained, interned or imprisoned; any Minister will do.