I move that the Bill be now read a Second Time.
An Explanatory Memorandum has been circulated with the Bill. It runs to over 25 pages and I hope that it provides sufficient detail to be of assistance to Deputies. As the House is aware, of course, a memorandum of this kind is meant only to provide a factual explanation of the provisions of the Bill and not to present arguments in support of those provisions.
The Bill is a fairly long one and deals with a variety of matters. Since its publication last May, it has, as regards some of its provisions at least, become a centre of controversy and I think that this debate would begin in an atmosphere of unreality if I did not make some reference at the outset to this fact.
That a Bill which covers so much ground as this does should provoke some controversy and some criticism is not only understandable but very desirable. Public apathy would have reached a disturbing and indeed a dangerous stage if a Bill of this nature awakened no public interest.
An active public interest is, therefore, as far as I am concerned, to be welcomed for its own sake. It is especially to be welcomed where the criticism offered is obviously a considered one, backed by reasoned argument, and I freely acknowledge that some of the criticism I have seen meets this test. In recent days, we hear it said that I have had to announce some proposed changes in the Bill because of public pressure. Let me, therefore, put on record that, as long ago as last July, in a public statement published by both press and radio, I emphasised that the proposals in the Bill were not put forward as a rigid set of proposals but were open to debate and to change. That always has been the position and it still is.
Having said that much, however, I think it necessary to say, in very clear terms, that a great deal of what has been said, and written, by way of criticism of the Bill deserves no commendation. It has, indeed, been an almost incredible compound of error and misrepresentation. That the misrepresentation was, in some instances, quite deliberate, I find it impossible to doubt.
When I speak of error and misrepresentation, I would emphasise that I am speaking about matters of fact, not matters of opinion. If a person expresses an opinion on a provision in the Bill, his judgment may or may not be at fault but at all events he is showing an interest. And if he can show that a particular provision affecting individual rights has insufficient safeguards against abuse, he is doing a public service in pointing that out, and this would be so even if he were exaggerating the likelihood of an abuse taking place. I am at one with those who hold that, where fundamental liberties are involved, all reasonable safeguards should be incorporated in the statute itself and should not have to depend on the goodwill of the Administration.
What has been wrong with so much of the criticism that we have heard is, quite simply, that it has been totally misconceived. Some of it has been based on statements that the Bill contains provisions which, as a matter of provable fact, it does not contain. Some of it has been based on a total ignoring or misreading of safeguards that are written into the Bill. And some again has been based on assertions that the Bill is, on certain important matters, introducing new law or dangerous new principles when, again as a matter of provable fact, the Bill is either doing no more than re-enacting the law as it has been for generations or doing no more than applying a principle that has long since applied in other comparable cases.
Some of the criticisms I have referred to have been voiced by local authorities, by trade union branches and, in what was described as an "open letter", by a number of wellknown people, speaking as a group. Ordinarily, criticism from such sources would carry a good deal of weight but, when the same errors of fact are repeated by different people, the conclusion is inescapable that most of those concerned simply accepted what they had been told and did not themselves study the Bill or Explanatory Memorandum at all. I do not say this by way of criticism, for members of organisations or groups of this kind have little time to devote to such matters. I say it only to show why resolutions of criticism of the Bill should be taken with some reservations.
I now turn to the Bill itself. Part I contains the usual introductory provisions, including, in section 4, a provision for repeals. The proposed repeals are detailed in the First Schedule and include over 120 statutes that are being repealed in full. Some of the repeals are, of course, consequential on provisions in the Bill, mainly those in Part II which provide for the abolition of distinctions between felony and misdemeanour, but the repeals go beyond that and include many other statutes that are obsolete. The repeal of so many old statutes is a further and, I hope, significant step in the removal of dead wood from the Statute Book.
Part II of the Bill provides for the ending of the distinctions between felony and misdemeanour and for the enactment of consequential and related provisions. A detailed explanation is given in paragraphs 21 to 37 of the Explanatory Memorandum. I am sure that the House will not need to be persuaded that the abolition of these archaic distinctions, which are no longer maintained in modern statutes, is a desirable reform of the law.
It was necessary, of course, to do more than just provide that all distinctions between felony and misdemeanour are to be abolished— several consequential provisions were required including, as I have already said, a number of the repeals. I am glad, therefore, to take this opportunity to mentioned that my Department relied heavily on a report of the English Criminal Law Revision Committee which dealt with those matters. The report—it is identified as the Seventh Report of that committee—not only examined the problems in detail but included a draft of a Bill which has been the basis of Part II of our Bill here.
While I am making this acknowledgment, perhaps I may anticipate a little and likewise acknowledge the equally valuable assistance provided by the Ninth Report of the same committee, which has provided us with the draft of two later sections of this Bill, namely, section 24, which deals with proof by written statement, and section 25, which deals with proof by formal admission. As well as providing the draft of these sections—which, I may say, have already been enacted in England—the report provides a detailed and valuable analysis of the matters to which they relate. I shall be commenting further on these two sections later.
The two English Reports I have mentioned have been published and copies have been placed in the Library. To identify them again: they are reports of the English Criminal Law Revision Committee and are known as the Seventh Report (Felonies and Misdemeanours) and the Ninth Report (Evidence).
Reverting now to Part II of the Bill, I do not think I should delay the House by repeating the details to be found in the Explanatory Memorandum and the only comment I think I need make at this stage is that, while we have, in this part, drawn heavily on the English text, we have not followed it completely, partly because of differences between their law and practice and ours and partly because, in some respects, we took the view that what is proposed in this Bill is more suitable for this country.
One important matter that is not dealt with at all in Part II and that is closely connected with the legal concept of felony is the making of arrest without warrant. The reason it is not dealt with in Part II is that we have set out, not just to replace the existing provision whereby a person may be arrested on suspicion of having committed a felony, but to provide a comprehensive set of general rules governing arrest without warrant, and these provisions, together with provisions about search, et cetera, have been put in a separate Part of the Bill, namely, Part III, to which I now turn.
Here again, I would invite Deputies to refer to the Explanatory Memorandum which sets out in detail what the existing law is and what are the changes proposed. I propose, however, to mention what I would regard as the more important of the proposed changes.
First, in relation to arrest without warrant, which is dealt with in section 12, one of the proposals is that, instead of the existing common law power to arrest without warrant on suspicion of felony, the Garda will have such a power on suspicion that the person has committed an offence to which there can attach a penalty of five years imprisonment or a more severe penalty. This is in line with the provisions of Part II, in which an offence to which there can attach a penalty of five years imprisonment or a more severe penalty is taken as the nearest equivalent of the term "felony" as used in existing law. However, the linking of the power of arrest to offences liable to five years imprisonment or more, rather than to felonies, would give a much-needed power of arrest in respect of a small number of serious offences where such a power does not exist at present because the offences, though serous, happen not to be felonies. The bestknown example is the offence of obtaining money or goods by false pretences, where the lack of an immediate power of arrest is a grave handicap in cases where the goods are compact but very valuable—jewellery, for example —and the crime, or perhaps a series of crimes, is committed by a person who proceeds to leave the State a few hours later.
One of the provisions of section 12, namely subsection (4), has been singled out for criticism. The criticism suggests that the subsection means that if a person was ever involved in a breach of the peace—even 20 years previously— the Gardaí could arrest him without warrant if they believed that he was about to engage in conduct likely to lead to a breach of the peace.
This is a complete misreading of the subsection. The subsection does not contain the whole law about arrest. It states the circumstances in which the arrest may be made, but the exercise of the power is, of course, subject to the general law that governs any arrest, whether made under these or other provisions. A person may be arrested only as a preliminary to and with a view to, charging him with an offence. It follows that an arrest under section 12 (4) is possible only if a charge can be brought and, in the context of that subsection, there is only one charge that can be brought, and that is the charge relating to the man's past actions which involved or threatened a breach of the peace. Obviously, that must be an offence with which he has not already been charged, and that alone, on the practical level, would mean that it would have to be a recent offence. But, in fact, it must be an offence committed only a very short time previously—a matter of hours rather than days— because another condition specified in the section is that it is not reasonably practicable to apply for a warrant.
I now turn to section 15 which is, I think, the most important new provision in Part III. Section 15 provides that a warrant to search premises may be issued by a District Justice or a Peace Commissioner in the case of a number of specified serious crimes.
It may come as a surprise to many people to hear that, while a warrant may be obtained to search a house for stolen goods and in some other special cases, this power to obtain a warrant is the exception rather than the rule. Even in relation to an offence as serious as murder, the law as it stands contains no provision enabling the Garda to get a warrant to search a house for evidence though they may be morally certain that vital evidence, such as blood-stained clothing, that would lead to the detection and conviction of the culprit is concealed in the house. Why the law should provide a power of search where goods have been stolen but not where a murder has been committed is a point on which I do not propose to speculate, though there are many who would say that it is just one more example of the tendency of the law in former years to be more concerned with protecting property rights than with protecting personal rights. Be that as it may, I think that the House will readily agree that, if we are to expect the Garda Síochána to cope with serious crime, we must provide them with the right to apply for a search warrant where the circumstances call for that. It will be seen that it is not proposed to extend this power to all offences or indeed even to all indictable offences but only to a limited number of very serious offences described in section 15 (1).
It is also proposed to give a power to search vehicles, where the Garda are investigating a larceny or one of the serious offences for which it is proposed, in section 15, to permit the issue of a search warrant. In this case, of course, there would be no time to get a warrant—the practical situation would usually be one in which the Garda would be trying to find people fleeing from the scene of the crime.
The other new provisions in Part III which I would like to refer to are in sections 21 and 22, concerning fingerprints. Section 21 provides that, in the case of a larceny or one of the other serious offences for which it is proposed to allow a search warrant to be issued, a District Justice may make an order authorising the Gardaí to take the fingerprints of a suspect. In such a case, if the person is not charged or if he is acquitted, the fingerprints and all copies must be destroyed. This section is linked directly to the investigation of a particular crime. Section 22, on the other hand, relates to a person who has been convicted of an indictable offence (or dealt with under the probation of Offenders Act for such an offence). The section permits his fingerprints to be taken and retained. The purpose of this section is to permit the Garda to keep a record of fingerprints of persons whose guilt has been proved. It does not follow that they will avail themselves of this power in respect of every indictable offence but I expect that it will become standard practice to do so.
We have heard some criticism about these provisions, to the effect that it is wrong that an unconvicted person should be required to give his fingerprints. The critics have not mentioned that this is proposed only under judicial warrant.
It is, of course, very easy to make a superficially impressive argument on the lines that, since suspects are unconvicted persons and are in law presumed innocent, they should not have to submit to fingerprinting even under judicial warrant. The argument may sound good, but it does not stand up. For by that process of reasoning, nobody could ever be arrested and certainly nobody could ever be remanded in custody while awaiting trial. But, we all accept —and international organisations dedicated to the preservation of civil liberties accept—that the legal presumption of innocence does not exclude arrest, search and, where necessary, even deprivation of personal liberty. The taking of fingerprints is certainly a lesser interference with personal liberty than any of these things. In fact, many people would argue that it is not an interference with liberty at all, and that it is something that any law-abiding citizen would willingly, and without any legal compulsion, allow in the interests of the community.
Part IV relates to offensive weapons. The basic difficulty in framing proposals to deal with this problem is that many ordinary household articles can be used as offensive weapons and, to put the problem in concrete terms, we obviously cannot prohibit the sale or possession of kitchen knives, screwdrivers, chisels or many other articles that could easily be used as weapons by persons so inclined. Neither can we proceed to impose on the citizen who has possession of these articles in the ordinary way the onus of showing that he has them for an innocent purpose.
The proposal in the Bill is that the problem should be dealt with in stages, so to speak. First of all, it refers to such places as dance halls, cinemas, amusement halls and the like and sets down as the basic rule that, when people are likely to be resorting to these places, nobody should, without reasonable excuse, have with him any knife other than an ordinary pocketknife. This is covered by section 22 (1). In this type of case, the onus is on a person carrying a knife—pocketknife excluded, as I say—to show that he has a reasonable excuse. This is obviously necessary if the provision is to work at all, because the prosecution could not possibly know or prove that he had not a reasonable excuse and, apart from being necessary, it is reasonable because we are here dealing with a person who is carrying a knife in circumstances in which the carrying of knives is being generally prohibited and in which his action, if lawful, is the exception.
The next provision is in section 22 (2) and extends to any public place. It prohibits a person from having, in a public place, without reasonable excuse, any flick-knife or any article whatsoever made or adapted for use for causing injury to the person. This particular provision, could, I think, easily be misunderstood at first glance, so I would like to draw attention to the fact that—apart from flick-knives, on which we need not spend any time— the subsection deals with articles "made or adapted for use for causing injury to the person". This does not include knives—except, perhaps, some rarely-seen ones of the stiletto type. The various types of knives that one sees in shops, whether they be household knives or knives designed for use by tradesmen, shopkeepers or others, may indeed be dangerous and easily capable of inflicting serious personal injury, but they are not, generally speaking, either made or adapted for that purpose—they are made for a legitimate purpose and I should like to make it quite clear that, except in those places mentioned in subsection (1)—cinemas, dance halls, et cetera— carrying a knife made for a legitimate purpose will not in itself be an offence.
What then is covered by subsection (2), or, to put it another way, what kind of article is meant to be covered by the words "made or adapted for use for causing injury to the person"? The answer is that, in practice, it applies mainly to home-made weapons such as the filed steel comb or the razor-blade embedded in some holder, or the piece of a bicycle-chain attached to a handle. Anybody found with a weapon of that kind in a public place will be committing an offence unless he can show that he has a reasonable excuse. What constitutes a "reasonable excuse" would be a matter for the court to decide in the circumstances of the case. I am confident, however, that we can depend on the good sense of the courts to see to it that, except perhaps in quite exceptional circumstances, nobody will be allowed to get away with the plea that he had the weapon for use only in case he was attacked.
I have mentioned that the first subsection, prohibiting the carrying of knives, applies only to dance halls, cinemas and other places where people congregate, and that the second subsection, which extends to any public place, has very little application to knives but only to these specially-constructed offensive weapons I have spoken about. This leaves untouched the carrying of dangerous knives or other articles in public places. Subsection (3) deals with that. It deals with it, however, in a very different way because, unlike the person carrying a knife in a dance hall or the person carrying a filed steel comb on the public street, the person carrying a knife or a screwdriver or a chisel on the public street is quite likely to be an ordinary law-abiding citizen going about his lawful business. If he happens to be a criminal carrying one of these things with him in order to assault somebody, we certainly want to stop him but we cannot make the carrying of these things in itself an offence without bringing into the net the tradesman on his way to or from work or any one of the numerous people who would have a legitimate reason for having one of these articles with him in a public place. Likewise, we obviously could not justify requiring the general body of law-abiding citizens concerned to prove that their intentions were not criminal.
Accordingly, what is proposed in this subsection is to make it an offence to carry, in a public place, any article intended by the person unlawfully to cause injury to or to intimidate another. Thus, criminal intent—mens rea—is an essential ingredient of the offence and the onus of proving it will be on the prosecution. The court will, however, be entitled to look at all the circumstances—the type of article, the time of day or night and the place— and, if the circumstances so warrant, to draw its own conclusions as to the person's intentions, in the absence of any adequate explanation by him.
Part V contains a number of provisions relating to proof and evidence. The first two sections of that Part, sections 24 and 25, which relate to proof by written statement and proof by formal admission, are, as I have already said, taken from an English Report and are already enacted in England. Without going into details on them at this stage, I recommend them on the basis that they should help to simplify court proceedings by eliminating the need for oral evidence on matters that are not being contested. I need hardly say that the simplification and resulting shortening of proceedings, where this can be done without risk to the due administration of justice, is as much in the interests of the defendant as of the prosecution and indeed more so.
Part VI deals with meetings, processions and demonstrations. The first section in this Part is section 28 which deals with meetings and so on in the vicinity of Leinster House or in relation to court proceedings.
The provisions relating to Leinster House are in substitution for provisions now contained in section 28 of the Offences Against the State Act, 1939. I will say quite frankly that the main reason for taking the provision out of the 1939 Act and putting it here is not that some changes are proposed—the changes are in fact of no great practical importance—but to put an end to suggestions that this law, which was designed to ensure that Parliament can function without interference, was intended to be invoked only in time of emergency. This, of course, was untrue. While it was assumed, in 1939, that the only persons likely to offend against this and some of the other provisions of the 1939 Act were members of illegal organisations, it was made perfectly clear that those provisions, including section 28, were being enacted as part of the ordinary law. Nevertheless, the fact is that many people have been led to accept the suggestion that it was somehow contrary to the original intentions that this provision should be invoked otherwise than in times of emergency. I think the House will agree that it is desirable that this issue should be clarified and removed as far as possible from the realm of controversy and accordingly I am proposing that it be taken out of the 1939 Act and put in here.
The new provision is not identical with the provision in the 1939 Act, though it amounts to the same thing in practice. Under the 1939 Act, the prohibition of a meeting within half a mile of Leinster House depended on the issue of a Garda prohibition notice. This, of course, was a device to ensure that meetings that had nothing at all to do with Leinster House, but that happened to be held within half a mile of it, would not be caught in the net. While it worked well enough in practice, I think events in recent years suggest that it would be better if the law itself distinguished between meetings that are, so to speak, "directed at" Leinster House and those that have nothing to do with it, and that the former should be prohibited by the Act itself without the need for a Garda order and that meetings unconnected with Leinster House should be clearly seen to be outside the scope of the Act.
I do not think that this House will hesitate to accept that it is right that Parliament, in its functioning, should not be subjected to attempts to pressurise it by demonstrations outside the gates of the place where it meets and indeed the Constitution itself, in Article 40, clearly and specifically distinguishes between meetings near the Houses of the Oireachtas and meetings in general.
Theoretically, at least, it might be possible to justify a distinction between the placing of a small picket at Leinster House and the holding of a public meeting or large demonstration outside the gates—what I might call a "show of force". It is the Government's view, however, that the prohibition should extend to picketing and the section is framed accordingly.
This is a provision which, in a very special way, is the particular concern of Parliament and I hope that Deputies on all sides of the House will give the matter special thought.
One exception to the general prohibition is proposed: it is in relation to picketing in connection with a trade dispute involving a person ordinarily working in Leinster House. This is a matter of holding a balance between two interests that are, perhaps, conflicting to some extent. On the one hand, Members of the Oireachtas should be free to take part in debates here without being pressurised by demonstrators. On the other hand, Members can be said to have a particular interest in and concern about any trade dispute involving anybody normally working in Leinster House— their own staff, so to speak—and, on the whole, the Government felt that it was right that peaceful picketing in this limited case should be permitted.
I now turn to subsection (2) which prohibits meetings, et cetera concerning proceedings pending or at hearing in any court. We have, unfortunately, witnessed in recent years a new development. I refer to the numerous instances in which groups of people have staged demonstrations in relation to court proceedings even while these proceedings were awaiting hearing. We have had many cases where groups have gone to the extent of marching in a body to the courthouse itself, of demonstrating outside the courthouse, and, occasionally, even in the very courtroom.
At the time the Bill was published, last year, I did not think there should be any need for me to say anything in defence of this particular provision other than to put on record the facts that I have mentioned, namely, that these demonstrations have taken place in connection with cases that were at hearing before the courts. Meanwhile, however, Deputies will have seen that some people have set out to criticise the provision and to put across the idea that people are or ought to be entitled to demonstrate in this way.
The very fact that such a suggestion could be made with every appearance of seriousness brings home the urgent need for Parliament to re-state something that we, as a community, have consistently insisted on, namely, that the right of free speech cannot be held to include a right to attempt to intimidate or even influence, by any form of comment, the course of judicial proceedings. There should be no need for me to stress that it is a fundamental part of our concept of fair trial and the independence of the courts that we do not tolerate what is known elsewhere as trial by newspaper. Thus, we accept and take for granted that newspapers must not comment on cases that are sub judice.
I gladly acknowledge that our newspapers do not seek to change that situation and that they would be the first to resist any suggestion that such a change should be made. Likewise, we in the Houses of the Oireachtas, despite the absolute privilege conferred on us by the Constitution, have always acknowledged that it would be an abuse of privilege for any Member to comment on a case that is sub judice. Yet, we now have people endeavouring to put across the notion that comment that is absolutely forbidden in newspapers, and even in this House, should be allowed to be made at a public meeting and that anybody who chooses to do so should be entitled to get up at a street corner and criticise one side or the other in a case that is before the courts. One has only to state the proposal to see how dangerous it is.
I should also draw attention to one important aspect that seems to have escaped the notice of those who claim to see in the provision some uncalledfor interference with individual rights. That is that demonstrations can just as easily be mounted against an accused person as in his favour and one can readily envisage what would happen in a case where a particular crime had caused local popular revulsion if demonstrations became the custom. We have, as I have said, stood firm against trial by newspaper. We must be equally firm against any attempt to open the way for trial by public meeting.
It has been alleged that there has been no demand for this—no comfo plaints from the judiciary or the gardaí that the courts were being intimidated. Even if that were so, it would not alter the principle that justice must be seen to be done and that demonstrations connected with court proceedings are designed and intended to interfere with the administration of justice. But let me add this. If members of the judiciary were to complain about being intimidated, it is not in the pages of a newspaper that they would do so. Likewise, it is not through the newspapers that the Garda authorities would express their views. I shall leave it at that.
I should perhaps point out that what is being prohibited is a demonstration concerning the court proceedings themselves, and that this does not mean, for example, that, just because there happen to be some court proceedings in connection with a trade dispute, picketing in connection with the trade dispute must stop. There is no question of this. What must stop is, as I have said, the mounting of demonstrations and so on that relate to the proceedings themselves. In practice what would be prohibited are marches to courthouses, picketing of courthouses during or before a hearing, meetings commenting on the proceedings before they are heard and so on.
One criticism—obviously designed as an effort to enlist trade union support—is that if a case of interest to trade unionists were being heard in Dublin, this provision would prevent the holding of a public meeting in Cork to discuss its implications. So it would. Of course, existing law and practice would also prevent its implications being discussed in, say, the pages of a trade-union magazine. But, that point apart, the criticism is misconceived. The case that is being heard, if it is a criminal case, is one in which it is essential that justice must be done and seen to be done. If it is a civil case, what the court is required to do is to state and apply the law without fear or favour. In neither case is it necessary or reasonable or desirable that the "implications" should be discussed at a public meeting. If genuine and serious discussion, as distinct from demonstration, is ever needed in such a situation, it certainly could not effectively take place at a public meeting.
As I explained earlier, the idea, in section 28, is that the demonstrations, et cetera, which are to be prohibited should be declared unlawful by the Act itself and not just by a Garda order. There may, however, be some borderline cases where there would be a bona fide difference of view between the organisers and the gardaí. If the gardaí reasonably believed that the demonstration — it might, for instance, be near Leinster House — was unlawful it would ordinarily be their duty to arrest those responsible if they persisted. To enable the matter to be determined beforehand, section 29 authorises the superintendent to make a prohibition order where he believes that the demonstration would be in conflict with the law and goes on to enable the organisers to make a summary appeal to the High Court against the superintendent's order. I do not expect that there would be many borderline cases of this kind but I think it is useful to have the section there.
This brings me to sections 30 and 31, which relate to public meetings and demonstrations. Deputies are all aware, no doubt, that I recently felt obliged to make, outside this House, an announcement that I would have much preferred to reserve for my opening speech in the House, namely, the lines of the amendments to these sections that I intend to propose on the Committee Stage.
Since it is my intention to move these amendments, I think it would be unfair to the House that I should spend any great length of time either explaining or defending the sections as they now stand. But I would like to make a couple of brief comments. The first is that, from the outset, on these as on other provisions of the Bill, I had indicated my willingness to consider any reasoned objections. I am in fact satisfied that the sections would have needed some modifications to meet practical objections that had been raised, and it was my intention to move amendments to make such modifications. It follows that I would not argue that the sections as they stand are not open to some criticism. Having said that much, however, I want to put on record my utter rejection of the allegations that these sections either were designed to be used or could be used by the Government of the day for political motives, or that they required any substantial amendment to make them acceptable to reasonable people as a serious and genuine effort to resolve the conflicting claims of those who want to use the streets for protest marches and of those who want to go about their lawful business.
I will not pursue the point further. It has become quite clear that so much has now been said in public that it is impossible to have any rational debate on the particular scheme proposed in these sections. Even if the Dáil, having made some necessary modifications, were to pass them unanimously, we should be left with an atmosphere of distrust among members of the public. And so I intend to propose a new scheme.
While it is not open to me to put down formal amendments before the Committee Stage, I think it is right that I should tell the House now what it is that I propose to do.
Firstly, I propose to move an amendment to remove from section 30 the provision (i.e. subsection (2)) that failure to give advance notice of a meeting or procession is an offence. The requirement relating to advance notice would therefore become a formal declaration by Parliament that the giving of such notice, where feasible, is a civic duty. Secondly, I intend to propose a re-wording of the section to make it clear that this duty would arise only in the case of meetings or processions in the public highway that the police would not themselves normally know about in advance and that would be likely to cause some interference with traffic, et cetera. In other words, I propose that the section should, as far as possible, show, on its face, that the duty arises, not from any wish on the part of the State to put any obstacles in the way of legitimate public meeting, but from the fact that the holding of a meeting in the public highway is something that may and often does, affect the rights of others. In such a case, various duties, mainly in the regulation of traffic, fall on the Garda Síochána, and if, through lack of notice, they cannot discharge these duties, the general public are the sufferers.
The holding of a meeting or procession at a particular time or place could, however, involve an altogether unreasonable interference with the rights of the general public even if the Garda were told about it in advance and there is, obviously, a serious and growing need for some legal machinery which will provide a means for reconciling and harmonising, in an orderly and reasonable way, the serious conflict of interest that often arises between those who want to hold public meetings and those who want to pass by. Section 31 was intended to provide such machinery. The idea in the section as it stands was that a meeting or procession could be banned in exceptional circumstances specified in the section, in other words where the likelihood was that the interference with the rights of others would be excessive and the ultimate authority to decide whether the ban was justified was to be the High Court. Since that proposal is not acceptable, the alternative is to have some system whereby the organisers can be made amendable after the event where the circumstances justify this.
This is more difficult than may appear at first sight because — despite all the propaganda we have heard to the contrary — we in the Government want to be careful to avoid making the organisers of meetings legally responsible to an extent which could unjustifiably inhibit them from organising meetings, for fear of consequences they could not foresee or control.
In concrete terms, the problem is this: it might seem easy to say that if the organisers insist on holding a meeting at point "A" rather than point "B", and the result is total obstruction of the street, then they should be held responsible. But that would not necessarily be right, because the alternative site might be so far away that the meeting would lose its whole point. The community cannot, ever, be expected to acquiesce in deliberate obstruction, but where the obstruction is incidental, and is limited as far as possible by the organisers, then it may have to be accepted and it would be unreasonable to make the organisers responsible. Similarly, it would be unreasonable to make the organisers responsible, as a matter of course, for breaches of the peace associated with a meeting, even if it was their own followers, for instance, who were responsible. Obviously this would apply to even a greater extent if the breaches of the peace were caused by outsiders.
The solution I intend to propose takes account of these considerations and is on the following lines. If it appears to the Garda Síochána that a meeting at a particular point or time, or a procession along a particular route or at a particular time, would cause serious obstruction, or a danger of breaches of the peace, and the risk of this happening would be avoided or significantly reduced by a change in the time or in the place or route, the Garda Síochána could request — I emphasise request — that certain changes be made.
Failure to comply with the Garda request would not be an offence. If, however, the meeting or procession went ahead as originally planned and the serious inconvenience or breaches of the peace which the organisers had been warned about actually materialised then the organisers might be deemed to be responsible and to be committing an offence.
I say "might be deemed" rather than "would be deemed", for the reason I have already mentioned, namely, that even though the organisers had been warned about the likelihood of serious obstruction, it could be unjust to hold them responsible if the changes proposed by the Gardaí were tantamount to asking the organisers to abandon the whole project. There might, of course, be occasions where that would be justified and even essential but this cannot be assumed. To take a concrete case, I suppose we can all agree that it would obviously be reasonable, in ordinary circumstances, for the Garda to say that a meeting at the GPO in Dublin would involve total traffic obstruction and could just as well be held round the corner in Abbey Street. But suppose — if I may deliberately take an extreme example — the Garda were to say "We ask you to hold your meeting in the Phoenix Park", it would be unfair to the organisers that they should be held responsible for unavoidable obstruction arising from their meeting just because they did not comply with the Garda request. Accordingly, I propose that, even where a Garda request has been ignored and obstruction has resulted, the organisers will have a good defence if they satisfy the court that the Garda request was, in all the circumstances, unreasonable. And one of the factors the court could take into account was whether the organisers had given reasonable advance notice to the Garda.
To conclude, on this question of public meetings, perhaps I should point out — since many people appear to have forgotten it — that the constitutional right of public meeting is not an absolute one. Even if one assumes that the right of public meeting, as recognised in the Constitution, includes a right to hold a meeting on the public highway, the right is explicitly qualified by another clause to the effect that provision may be made by law to prevent or control meetings that may cause a breach of the peace or be a danger or nuisance to the general public.
We come now to section 32, which relates to "watching and besetting". The critics of the Bill had a field day on this one — it was supposed to be a particularly sinister example of the Government's alleged desire to suppress peaceful protest. It has, of course, nothing whatever to do with protest, and, as for its sinister content, it is no more than a re-enactment, practically word for word, of a well-known and regularly-enforced provision in section 7 of the Conspiracy and Protection of Property Act, 1875. It seems clear, however, that the critics have now realised their mistake as we have not heard this particular comment for some time. The present right to picket peacefully in connection with a trade dispute is a statutory exception to the existing prohibition on "watching and besetting" and that same exception is being re-enacted in this section exactly as it was before.
Section 33 makes it an offence, at a lawful public meeting, to act in a disorderly manner for the purpose of preventing the transaction of the business of the meeting. This is a re-enactment of the Public Meeting Act, 1908. All kinds of allegations were made about this section too.
Part VII of the Bill deals with appeals and cases stated. Its provisions are rather technical and complicated and again I would refer Deputies to the explanation given in the Memorandum. At this point, I think it will be sufficient for me to say that, in very general terms, what Part VII does is to allow the Attorney General, in certain cases where a person is acquitted on a point of law, to appeal to the Supreme Court against the decision and if the court holds that the point of law was wrongly decided — in other words if it upholds the appeal — to allow the court to order the re-trial of the person concerned. However, the order for a re-trial will be at the Supreme Court's discretion— in the words of section 40, the court is authorised to decide the matter "in the interests of justice and having regard to all the circumstances of the case"— but, in all these cases where the State appeals, the accused will be entitled as of right to have the costs of the appeal borne by the State, through the Legal Aid Scheme, and likewise the costs of a re-trial are to be borne by the State.
As will be seen from the Explanatory Memorandum, page 17, paragraph 128, these provisions for an appeal are in line with the present law in habeas corpus cases, as decided by the Supreme Court. The judgment I refer to was given in The State (Browne) v. Feran [1967] I.R. 147, and it established that, under the Constitution, an appeal lies to the Supreme Court against an order of the High Court releasing a person on a habeas corpus application and that, in a case where the Supreme Court allows the appeal and the person has already been released on foot of the High Court order, the Supreme Court has power to order his re-arrest.
It has been suggested, by more than one commentator, that, in providing that the Supreme Court may order a new trial where an accused person has been acquitted on a point of law that proves to have been bad, the Bill proposes to throw overboard a fundamental and heretofore sacrosanct principle of our criminal law, namely, that an accused person should not be put in peril twice, and that, once this principle is in any way departed from, there is no knowing where the rot will stop. In fact, I do not think it is going too far to say that this particular provision has been singled out for criticism as a particularly dangerous innovation.
It would be possible, of course, to go into great detail about this supposed principle that a person must not be put in peril twice. For instance, we could ask why, if there is such a principle and it is inviolable, it does not prevent the re-trial of a person in whose case the jury disagrees. Obviously, such a person has been in peril — often, until recent times, in peril of his life — but nobody raises the cry of "double jeopardy".
I need not, however, pursue that line because the provision in the Bill clearly relates to only one particular type of acquittal, namely an acquittal on a point of law that is found to be erroneous — in other words, bad law. And, contrary to what has been said in that regard, this proposal, far from being a radical departure from accepted principle, involves no change in principle at all. It is in fact in accordance with what is already the law in relation to the vast majority of criminal cases, so that the proposals are nothing more than an overdue correction of an indefensible anomaly in the law. What has, apparently, been overlooked in the criticisms that have been made is that under existing law, if a District Justice makes a mistake in law in dismissing a prosecution, his decision can be challenged by an appeal to the High Court by way of Case Stated and, if the appeal is upheld, the District Court is required to hear the case again. Lest there be any possible misunderstanding, let me stress that I am not talking just about a consultative Case Stated — I am talking about a straight appeal by way of Case Stated where the charge has already been dismissed.
Last year, more than 164,000 people were prosecuted for summary offences. Approximately 11,600 people were prosecuted for indictable offences and over 10,000 of them were dealt with summarily. This means that we had something of the order of 175,000 prosecutions, but only about 1,200 of them, well under one per cent, were dealt with on indictment. We, therefore, find that the type of provision that is proposed in this Bill, and against which this "double peril" criticism has been made, is in fact already a wellestablished part of our law in respect of over 99 per cent of all cases. Putting it another way, 99 per cent of all cases are subject to appeal by way of case stated on a point of law under existing law.
Some of the criticism tried to make a point of the fact that we are now speaking of a jury verdict, suggesting that a jury verdict is in some relevant way more sacrosanct than a verdict by a District Justice. There is, of course, no difference whatsoever, in this context, between a jury verdict and a verdict by a District Justice, for the point about "double peril", such as it is, is precisely the same in both cases. But, over and above that, there is the obvious consideration that, in these cases, we are not in fact speaking of the considered verdicts of juries but of verdicts that are jury verdicts only in the most formal and legalistic sense — cases where the jury have not been allowed to decide the issue on the merits, or even to consider the merits at all, but have been directed by the judge to bring in a "not guilty" verdict. It is purely a procedural arrangement that in such a case the jury formally bring in the verdict — the law could just as easily be that, instead of directing the jury that they must bring in the verdict, the Judge would give it himself.
There is, and there can be, no possible reason why the law should provide that an accused person can be re-tried if he is wrongly acquitted as a result of a mistake in law by a District Justice but that he may not be re-tried if he is wrongly acquitted as a result of a mistake in law by a judge in the Circuit Court or Central Criminal Court. Indeed, if anything, there is a stronger case for providing for re-trials in the Circuit or Central Criminal Court because the charge is more likely to be a serious one and the community has a much greater interest in seeing to it that a person does not evade trial because of a legal mistake.
I understand that the point has been made that, if an accused person gets out on a technicality, the fact must be faced that the technicality is part of the law and must be presumed to be there for some adequate reason — and that the accused person is entitled to the benefit of it. I agree fully with that — but it is not relevant to the proposal made. For we are not speaking about technicalities that the law provides but only about technicalities which somebody wrongly thinks that the law provides. In short we are dealing with an accused person who has neither a jury decision nor a point of law on his side but who, under the present system, evades trial because of a mistake.
It is possible, of course, that circumstances could arise in which the re-trial of a person wrongly acquitted on a point of law would be a hardship disproportionate to the seriousness of the offence. But this possibility is met by a double safeguard. In the first place, an appeal will not be taken as a matter of course but only where the Attorney General or other authority considers it ought to be taken. And, secondly, even if the appeal is upheld, the decision whether there should be a new trial will be at the discretion of the Supreme Court, having regard to the interests of justice and all the circumstances of the case.
I now come to Part VIII of the Bill which is headed "Miscellaneous". It includes provision for the formal abolition of penal servitude and hard labour and also for the sentencing of persons to particular prison divisions according to the crimes they have committed. All these concepts have become obsolete in practice and their formal abolition is mainly a tidying-up exercise.
Section 43 makes a substantive change. It provides that, in criminal cases in which there is a jury, the present requirement of a unanimous verdict will be altered so as to make acceptable a verdict in which there are at least ten affirmative votes.
This is similar to, but not identical with, a recent change made in the law of England, the difference being that while a 9-1 verdict is now acceptable in England in a case where the jury is reduced to ten, the verdict in such a case here will still have to be unanimous. I mention the change in England because it is something that many Deputies will already know of and because there may be a tendency to assume that the change here is proposed for the same reasons as it was proposed in England. In fact, this is not so. As far as I know, the change was proposed in England because of a special problem they had in relation to criminal gangs, mainly based in London, who engaged in large-scale robberies and similar crimes and who did not hesitate to intimidate jurors directly and through their families. Fortunately, we have not had this problem of organised robberies and so on here, so far.
We have had, however, an essentially similar problem on many occasions down the years, namely, crimes committed by members of unlawful organisations and I think that the best time to meet it is a time when the problem is not a pressing current one and when, therefore, it can be looked at in a dispassionate way. The intimidation of jurors has been a recurring feature and a matter of grave concern in these cases down the years. The direct and inevitable result was that special courts had to be established to deal with these cases.
Whatever may be said in the heat of controversy, I think we can all agree that no Government, and no Deputy in this House, likes the idea of special courts. If the Government of the day sets them up, it does so as the lesser of two evils. If we can ensure that the ordinary courts can function free of intimidation, this is obviously the better solution. I cannot guarantee that the proposal I am now making will enable us in the future to avoid setting up special courts but I am putting it to the House that it offers a good hope that it will have that result.
This is not just a matter of its being three times as difficult to "get at" three jurors as at one. As matters stand, any individual juror is vulnerable to the threat of retaliation against himself or his family because if there is a verdict of "guilty" it is known that each and every member voted for it. But with majority verdicts, no such inference can be drawn so it becomes much more difficult to succeed in intimidation.
What I have said about special courts may give the impression that the establishment of these courts is always available as an answer to the problem of jury intimidation. This is not the case. We can have, as we have had, instances where serious crimes were committed by members of illegal organisations and threats were made not only against the jurors but against the judiciary. Nevertheless, the situation, taking the country as a whole, was not sufficiently serious to warrant the taking of the serious step of setting up special courts.
The reasons I have given for proposing majority verdicts amount, however, to only half the story because, no matter how advantageous the change might be in the matter of making intimidation more difficult, the change could not be justified if it carried with it any significant risk that it would lead to the conviction of innocent persons. I put it to the House that it carries no such risk. I will go farther and say that, on its own merits and without any reference to this problem of intimidation, what is now proposed is a system better calculated to serve the ends of justice, by which I mean that it is likely to lead to the conviction of some guilty persons where at present the jury is unable to reach a verdict, while on the other hand, it will in no way expose innocent people to danger.
The standard objection to a majority verdict — even if the majority is as big as 10-2 — is that, if two people are not suffeciently sure to join in a verdict of "guilty", that in itself means that there is a reasonable doubt. If those who put forward this argument were consistent, one would expect them to object, not only to majority verdicts, but also to the re-trial of a person in a case where the jury has disagreed since, in such a case, too, not all the jurors have been satisfied as to his guilt. Indeed where a jury has disagreed, it is possible that as many as 11 jurors have not been satisfied as to the accused's guilt and nothing that a second jury decides can alter that fact. In consistency apart, however, the objection does not stand up to examination. We are speaking of a situation in which, although two people have some doubt, ten people have no doubt — or, at all events, no reasonable doubt. It is not a question of ten thinking that the accused is guilty and two thinking him innocent. It is a question of ten being convinced beyond reasonable doubt of his guilt and two being not so convinced. The proposition that, because two jurors think there is a reasonable doubt, there must in fact be a reasonable doubt, involves a basic contradiction. For it means that, on the basis of the opinion of two jurors, a conclusion is drawn that, as a fact, there is a reasonable doubt, whereas the overwhelming majority of the jury have been satisfied that the fact is otherwise, namely, that there is not a reasonable doubt.
I am not suggesting that I am saying anything new when I point out that the standard argument against majority verdicts is inherently unsound. Various commentators have already pointed this out. It is, admittedly, no more than a negative point — it shows that a particular argument for unanimous verdicts is unsound but it does not, of itself, provide an argument for making a change. Nevertheless it is, I think, a point that is worth repeating and emphasising, as it may help to clear the way for a better and more objective examination of the arguments in favour of a change.
As I have said, English law now accepts that a 10-2 verdict is adequate. Scots law has long since accepted majority verdicts. So have some former British territories since achieving independence. In all these cases, we are entitled to assume that, irrespective of the reasons for adopting the system, the people concerned are satisfied that it does not lead to unjust verdicts. In civil cases, majority verdicts are accepted as a matter of course and, while an adverse verdict in a civil case does not leave the stigma which a criminal conviction does, or leave the affected party in danger of a jail sentence, the verdict in a civil case can mean a gain or loss of many thousands of pounds and can, in practice, have a more decisive effect on a man's future and on the welfare of his family than a verdict in a criminal case.
The next section — section 44 — provides that the court may permit the prosecution, after the case had closed, to remedy an omission in the proofs if the prosecution state that they can remedy the omission and the judge considers that, in the interests of justice and having regard to all the circumstances of the case, it is reasonable to permit them to do so. Under present practice, the rule is, briefly, that the prosecution state their case and, having done so, are not permitted to add anything later. If, at that point, the defence persuades the court that there is some gap in the proofs, the case has to be dismissed.
A gap in the proofs can arise in any one of three ways. First of all, the prosecution may have produced all the evidence at their disposal and the court may still hold that a prima facie case has not been established. If so, it dismisses the charge and that ends the matter, as it must. Such a case will not be affected at all by the new provision which applies only where the prosecution are in a position, there and then, to say that they can produce further evidence. The second set of circumstances in which a gap may appear in the proofs is where a legal dispute arises between the prosecution and the defence as to whether it is necessary for the prosecution to prove some particular point as a necessary link in the chain of evidence. The prosecution may contend that it is not necessary and may therefore not have adduced proof even if it is available, but the court may rule against them. At that point it is too late for the prosecution to introduce the evidence.
This situation is perhaps most likely to arise where there is a dispute as to whether the prosecution is under an obligation to prove a negative, such as that the accused person had not a licence. The third type of case where there may be a gap in the proofs is where the prosecution make a human error and forget to bring in proof on some point, often a point that the manin-the-street would regard — and rightly —as a pure formality. Again, the prosecution may have the proof readily available but if they omit it, by an oversight, they are not allowed to correct it. The object of section 44 is to ensure that in the last two types of case, that is where a proof was omitted either because the prosecution believed that, as a matter of law, it was unnecessary or because of an oversight, the court may allow the prosecution to remedy the omission.
Again, the suggestion has been made that this provision is dangerous and may open the way for all sorts of abuses, including the possibility that the prosecution may use it as a means of waiting to see what the defence has to say and then of looking around for further evidence. This criticism disregards the wording of the section. The section is confined to cases where the prosecution are, there and then, in a position to say that they can remedy the omission and, even then, it will not apply as a matter of course but only if the trial judge considers it right, in the interests of justice and having regard to all the circumstances of the case, to exercise the power. Thus, if the prosecution were to attempt to rely on this section as a reason for not collecting or presenting all the evidence, they would find themselves left high and dry, for it is quite clear that the court would not, and could not, exercise its discretion in a way that would enable the prosecution to behave in that way.
Some may say that the present law is as it should be—that if the prosecutor makes a mistake, it is only right that he should have to take the consequences. The great flaw in this approach is that it is not in fact the prosecutor who takes the consequences —it is the community-at-large. A prosecution is not a private contest between a prosecutor and defendant. A defendant is entitled to every safeguard that may be necessary to guard against the conviction of an innocent person but it is a denial of the legitimate rights and interests of the community that the defendant, in a serious case, should evade trial because of a slip on the part of the prosecutor, if the court is satisfied that the circumstances are such that the slip can be corrected without any injustice to the defendant. And that is all that the section provides.
I now want to refer to section 45— the section about transfers to military custody.
I think that some people have been frightened about this — they have a mental picture of something like a concentration camp, with prisoners locked away and no access to them by relatives. And people have also wondered what this is intended for.
This reaction is understandable as far as members of the public are concerned, especially when they have been told only of the basic provision but not of the conditions and safeguards that are provided.
But it is somewhat surprising to hear this kind of criticism coming from spokesmen for illegal organisations and their friends because, when some of these people were convicted of criminal offences and were sent to prison — usually, I may say because they refused to pay fines and wanted to make martyrs of themselves — they have been known to ask to be transferred to military custody, saying that it is wrong that people like themselves should be expected to stay under the same roof as other prisoners.
Now, I do not for a moment pretend that this section has been introduced so that people like this whose behaviour lands them in prison should be given the right to say where and how they are to serve their sentences. The point I am making is that they know quite well that military custody in this country would not be what the critics have made it out to be and would indeed be likely to be regarded as the soft option.
Already, in the section as it stands, there is provision that if the Minister for Justice orders a transfer of a prisoner to military custody, he must report that fact to Dáil Éireann. He would therefore be open, in a very special way, to question in the Dáil about his exercise of that power.
Furthermore, the section has provision for regulations governing the conditions of military custody to be made by the Minister for Defence.
One thing is quite certain and that is that no Minister for Defence, in any Government, could go into the Dáil and attempt to justify a set of regulations that imposed harsher discipline on these prisoners than the discipline provided for in civilian prisons. Furthermore, of course, there would be an independent Visiting Committee to whom any prisoner could make a complaint. The House is aware that there is a Visiting Committee for each of our civilian prisons and the same would, as a matter of course, apply if civilian prisoners were transferred to military custody.
You may say: if this is so, if the discipline would not be more rigid than in civilian prisons, why is that not written into the section? The answer is that there is no reason whatever why it is not in the section except that it is quite unnecessary to have it there. But I would have no objection at all to writing in the principle that the regulations to be made must not be more rigid than those applicable in civilian prisons. It probably would be necessary to make some qualification about the requirements of security, because military quarters would probably be more open than a prison, but, apart from that, there is no question about different, or at all events more severe, conditions of custody.
So much for the suggestion that a transfer to military custody is a harsh or punitive measure. The question remains: why is such a provision necessary?
The answer to this is that I hope it will never be necessary to use it but that there is a distinct possibility that it may be needed. We are living in a time when it has become almost a fashion for groups of one kind or another to engage in planned and systematic breaches of the law in order to create a situation in which, ultimately, they have to be committed to prison. That is what they seek and, under the system of law we have, we must accept the fact that if any group of people are determined to get themselves into prison, they are likely, ultimately, to succeed.
I now come to the heart of the problem. Our prisons have neither the accommodation nor the staff to cater for a sudden influx of any substantial number of persons and we have already experienced the situation in which the available accommodation and staff resources were taxed to the limit.
We have had situations in which we had to abandon programmes of rehabilitation for what I might call "ordinary" prisoners, and I may say that this caused an atmosphere of great strain and tension between different groups of prisoners and consequential problems for an overburdened prison staff.
If we were again faced with the kind of situation which, as I say, any determined group can create if they so desire, we could be faced with the choice of providing military custody or looking for additional and expensive buildings for use as prisons, with staff to match. In fact, it is not so much a question of looking for additional accommodation when needed as of building in advance in case such a situation were to arise, for it is clear that we could not find suitable buildings at short notice. And since these are usually very short-term prisoners it is obviously unreasonable to expect the taxpayer to pay for the erection of buildings that might never be used and that almost certainly would be unoccupied most of the time.
The problem of accommodation is only part of the problem. There is also the problem of getting staff. If we were to have, in our civilian prison establishment, the capacity to cater for the kind of contingency I have mentioned, it would mean that we would be employing far more staff than would ordinarily be needed for the prison services.
I now turn to section 49, which has detailed provisions designed to permit a court to order an accused person who has inflicted injury or caused loss to others to pay compensation, up to a limit of £100 plus the restoration of anything stolen. This provision is, of its nature, experimental and we shall only have to wait and see how it works. Basically, it seems to me to be selfevident that, if a person injures another, either by assaulting him or by stealing or damaging his property, it is right that the court should be able to direct him to make restitution. Admittedly, restitution is a civil matter and we are here dealing with courts exercising criminal jurisdiction, but the reality of the situation is that, in many cases, the offender is not, as the saying goes, a mark for damages and there is no good reason why the victim should be required to spend further money in a civil action to recover what is plainly his due. Furthermore, willingness to make restitution to the best of his ability is quite properly a factor which the court should take account of in deciding on a penalty. On this point, I should like to make my views quite clear. I certainly do not suggest, and I am sure we can confidently depend on the courts not to take the line, that, by paying compensation, the offender automatically evades any penalty or, on the other hand, that a person who cannot afford to pay compensation goes to jail. What I do suggest is that, in every such case, the court should consider the desirability of ordering compensation to be paid and should take account of all the circumstances. By that I mean that somebody who clearly could pay compensation — or even some compensation — if he tried, but makes no effort to do so should have no claim on the mercy of the court. My point is not that he should not be punished if he pays but that he should be punished very severely if he does not. I include in this comment those people who have stolen money and refuse to disclose its whereabouts, preferring to spend a term in prison and to have the money to spend when they get out. I think that it is right and proper that a court, faced with such a situation, should have regard to the interests of that person's victim and should make the offender pay in one form or another.
On the other hand, there may be an offender — a juvenile or a young adult perhaps — who has damaged property to an extent beyond his capacity to pay. If he is willing to make a sustained effort to pay compensation, by instalments, even if he cannot pay in full, I think it would be right that the court should be entitled to allow for that and to mitigate the penalty it would otherwise impose.
One aspect of this I would mention particularly is the question of the first offender. Understandably and rightly, the courts are reluctant to send a first offender to jail for any but a very serious offence and, as the House knows, the application of the Probation of Offenders Act, 1907, which in the District Court does not involve a formal conviction, is quite common in the case of first offenders. Yet, there is no reason in principle why even a first offender should not be required to compensate his victim. And indeed the 1907 Act itself provides for this but with a limit of £10 in the District Court. Far from being undesirable, an obligation to pay compensation might often be the factor that would pull a first offender up sharply and set his feet on the right road once more. I would hope that the courts will be able to utilise this provision widely, even in the case of first offenders.
There is one other point I would make about this provision. It sets an upper limit of £100 to the compensation ordered. This is the upper limit of the jurisdiction of the District Court in civil cases and I think it would obviously be wrong that a District Justice should be entitled to make a bigger civil award — for this is a civil award — when exercising criminal jurisdiction than when dealing with an ordinary civil claim. Some limit must also be applied to other courts because this is a jurisdiction that is being exercised only in an incidental way, so to speak, in the hearing of a criminal charge and I do not think it is worthwhile having a different limit in different courts.
Section 51 provides that suicide is no longer to be a criminal offence. The fact that suicide is an offence has no direct effect in law nowadays, though it used to have the effect that, as the crime was a felony, the property of the deceased became forfeit. It has, however, the indirect effect that attempted suicide is also an offence and the practical effect of section 51 is, therefore, that attempted suicide will no longer be an offence. I think it will generally be agreed that this reform has not come before its time and that what people who attempt suicide need is sympathy and treatment not prosecution.
I now come to a group of sections —53 to 56—which are designed to prevent, or at least reduce the risk of, a campaign of civil disobedience being conducted along lines and to a point where the Government of the day would have no choice but to take very strong action.
Section 53 makes it an offence to encourage or advocate the attainment of an object by criminal means or the non-payment of central or local taxation or of local authority rents. The House will be aware that there is a somewhat similar provision in section 18 of the Offences Against the State Act, 1939, but the 1939 Act does not directly declare these activities to be unlawful. What it does is to provide that any organisation engaging in them is, by the very fact, an unlawful organisation. This can allow a situation to build up in which an organisation may suddenly find itself faced with the extremely serious consequences of being an unlawful organisation, whereas, if some of the people responsible could be prosecuted, as individuals, at the outset, it would bring home to them more clearly that that kind of activity, if persisted in, could have only one ending.
It hardly needs stressing that to cut off the supply of funds to the public purse would, quite simply, mean anarchy; and a provision that makes it an offence to engage in conduct so seriously and so directly threatening the very foundations of the State needs no defending.
I have heard one minor objection which, I think, is valid as far as it goes. That objection is that there can be purely local disputes between, say, the ratepayers in a particular locality — I mean a townland or something like that — and the local authority. It might have to do with the repair of a local road for example. The point that has been made is that, if a small group like this decide to go slow on the payment of rates, as a protest, their action is on such a small scale that there is no real threat to the finances of the local authority, and that ordinarily the situation could be resolved without resort to criminal proceedings. I agree with this, and, since I see no way of devising a specific exemption that would not be objectionable in principle, I intend to move an amendment to provide that the proceedings should not be brought without the consent of the Attorney General. This would ensure that proceedings would not be brought in trivial cases.
Section 54 provides that a person who commits the offence of advocating non-payment of public moneys will be disqualified for a period of five years for receiving grants from public funds unless the court waives the disqualification on his signing a recognisance to be of good behaviour. This, of course, is no more than ordinary commonsense. It is absurd that a person should be entitled to go out and encourage the cutting-off of the supply of funds to the public purse and at the same time continue, himself, to apply for and receive grants from the public purse at the expense of those who may be much worse off but who are still paying their share.
I invite special attention to the fact that, contrary to what has been alleged in newspaper editorials and in speeches by certain critics, it is not correct to say that the court is being given no discretion in this matter of disqualification. The contrary is the case. Not only will the court have discretion at the time of the conviction, but it will have jurisdiction to lift a disqualification subsequently. The provision is in subsection (2).
Section 55 provides that, where the prosecution applies to the court to have this done, the court may order certain types of fines to be deducted from grants, namely fines imposed for offences against the "public meetings" provisions about unlawful agitation, etc. Section 56 has a similar provision for deduction of rates or taxes where it appears to the court that failure to pay is due to organised activity to discourage or prevent their payment. Again, these provisions are no more than ordinary commonsense. It is absurd that a person who, in pursuance of an organised campaign, refuses to pay his rates or taxes should be able to sit back and put the State in the position of having to secure payment by seizure of his goods at the very time when public money is being handed out to him for some other purpose.
I would like to emphasise, again, that these sections, far from being punitive in concept, as has been alleged, are designed to prevent, if possible, a situation developing to the point where it becomes necessary to invoke the much more stringent provisions already in the law, namely, the provision that an organisation advocating the withholding of rates is an unlawful organisation with all the consequences that that entails, and of course the provision that rate defaulters must, if they persist, face the fact that the sheriff will have no choice but to make seizures. I assume that it will be common ground, in this House, that rates and taxes lawfully due must be collected.
I do not think I need delay the House by referring specifically to any of the other sections — they can be considered in detail on the Committee Stage—except to mention that, by section 62 and the associated Third Schedule, the Defence Act, 1954, is being amended to keep military law under this Act in line with the ordinary criminal law: in other words, to include in military law such changes as the abolition of the distinctions between felony and misdemeanour, the abolition of penal servitude and so on.
This, then, is the Bill. It is, as the House will have seen, a wide-ranging one, touching on many aspects of the criminal law. Some of the changes it makes are little more than formalities, such as the abolition of sentences of hard labour. Others, though technical, are more important, including the substantial amount of cleaning-up of the Statute Book that is being done in the repeals.
Over and above changes of this kind, and in addition to the provisions about public meetings on which I think I have spoken in sufficient detail already, the Bill contains many important provisions designed to remove obvious weaknesses in the law relating to the detection of crime and the bringing of offenders to justice. In this, of course, we come up against the age-old problem of seeking to keep a proper balance between the rights of the individual and the needs of the community to protect itself. This Bill seeks to adjust the balance here and there but not in any radical way or in any way that is open, in my view, to any reasoned objection. In doing so, it makes two types of change and I think it is important to distinguish between them. The first concerns the powers of the Gardaí when they are investigating a crime. The second concerns the position of the person who has been brought before the Court.
As regards the first matter — the powers of the Gardaí when investigating — the principle must be that the Gardaí must be given the powers they reasonably need to combat serious crime but no more. The Bill seeks to give them that much — but no more. The powers of arrest without warrant which are provided for in the Bill are in fact very little different from what the law already allows, and Deputies will notice from the Explanatory Memorandum that, while there are some extensions of these powers, there are, on the other hand, counterbalancing provisions that spell out clearly that the powers must not be exercised arbitrarily but only where the circumstances are such that their exercise is necessary.
The main change which the Bill would make in the powers available to the Garda Síochána is the provision in section 15 which enables them to seek a warrant to search premises when they are investigating very serious crimes. That this provision has not existed before this will, I think, have come as a surprise to many and will underline how handicapped the Garda have been in the investigation of some serious crimes before this.
As regards the second matter — the position of the person who has been brought before the court — we must accept that, in a legal system in which the safeguarding of the innocent against wrongful conviction is rightly given the highest priority, it is inevitable that cases will occur in which even obviously guilty people will evade justice. But there is no good reason why this should have to be accepted to an extent greater than is necessary for the protection of the innocent. In particular, there is no reason why the community should have to accept a situation in which the jury are prevented from assessing on its merits evidence that is admissible and available just because the prosecutor makes a technical slip which can be corrected without injustice or because of a legal ruling that is in fact erroneous and bad. I would, therefore, like to say quite clearly that on this point the Bill involves a firm and total rejection of the still-lingering idea that there is, in the enforcement of the criminal law, an element of the chase in which the accused, even if plainly guilty, has to be given a sporting chance to escape.
The existence of, and indeed the pervading influence of, this sporting concept are, of course, freely acknowledged by most legal commentators though, occasionally, one sees an alternative theory on the lines that the community are, in their hearts, afraid to pursue an accused person too far because they recognise that human justice is fallible and they fear that, occasionally, an innocent person may be convicted. If this were in fact even a partial explanation of the present law, which I doubt, it would point to a singularly irrational situation for, if the possibility of error were to inhibit the community from punishing those who are found guilty, it ought to do so in all cases and not just in the exceptional cases where some technical hitch occurs. The possibility of error and the occurrence of a technical hitch are entirely unrelated.
The present situation, which the Bill seeks to change, is an historical relic. I am far from saying that it was always wrong. The attitude that the accused— the quarry — had escaped the net, that it would be unsporting to chase him again and that he must be given the benefit of his stroke of luck, was understandable in the days when a man could be hanged for stealing a sheep and when conviction, even of the guilty, often led to greater injustice than their acquittal. I suggest that the time has now come when we should consciously turn our backs on that kind of attitude and face the reality that law enforcement is not a sport.
In asking for this change in our approach to the problem of crime, I should like to emphasise that I am not for a moment suggesting, nor do I believe, that in our efforts to combat crime there is any need for us to throw overboard any of those principles that we rightly regard as fundamental. For instance, the right of the individual to be safeguarded against unreasonable or arbitrary invasion of his privacy, through searches or the like, while a crime is being investigated is a right which this Bill fully recognises and a right which I have no doubt that we, as a community, will continue to uphold in the years to come. Similarly, when a person is charged with a crime, he is entitled to safeguards properly designed to protect the innocent from wrongful conviction. These matters are not at issue here. As I said earlier, all the Bill seeks to ensure — and I suggest that the community is entitled to insist on this much — is that a person against whom there is admissible evidence will be tried on the merits of that evidence.
In conclusion, I should like to refer briefly to a memorandum on the Bill that has been circulated by the Irish Association of Civil Liberty. I have not referred to this memorandum in the earlier part of my speech; I got it only yesterday morning.
Since it has been circulated to Deputies with the assurance that it represents the work of "university professors of law, distinguished members of the Bar and practising solicitors", Deputies might be excused for assuming that it would be factually accurate in its statements about the Bill and about the existing law. Such an assumption, however, would be very wrong. Indeed, some errors it contains have already been dealt with incidentally in the course of what I have said earlier.
A specific reply to the memorandum will have to wait for another occasion — the Committee Stage perhaps — but I think it is right to warn Deputies who may be disposed to rely on the memorandum that it falls well short of gospel.
With that, I commend the Bill to the House.
