Before I reported progress I was dealing with the section dealing with suicide ceasing to be a crime and when I asked at that time what the relevance was of charging somebody who was dead with a crime of course I was thinking entirely in terms of the criminal law. I was not adverting to what is now only a historical effect, as is outlined in the White Paper, where on proof of sucide the lands and property generally of the person who committed suicide were forfeit. Of course, that is so long in abeyance that it is not there at all. But the White Paper purports to say that the fact that attempted suicide will no longer be an offence is implied in the section. I do not think it is because the section specifically says: "It shall no longer be an offence for a person to commit suicide". There is a finality about that description. It will not tax the Parliamentary Draftsman to amend that simply to include the attempt as well as the successful act of commission. I also adverted to the fact that I welcomed the provision making the survivor of a suicide pact no longer guilty of murder. Perhaps in dealing with these matters I took them some little bit out of order because I find that the note I made regarding suicide came up first.
I want to refer now to sections 44 and 45. Section 44 is a section that deals with the mode of prosecution. It is well for the House to know that when the prosecution, according to present practice and procedure, closes its case the phrase "closing the case" means exactly what it says—that the case has been closed and cannot be reopened. It is equally true, as is expressed in the White Paper, that sometimes at the close of a prosecution case, either due to the failure of the prosecution to present the case properly or due to some inadvertence or due to some piece of forgetfulness or simply due to the lack of care, a judge finds himself constrained at the close of the case to direct that the accused be acquitted. If the provisions of this section come into operation a State prosecutor will be enabled when that stage is reached—that is the normal stage of closing the case and the judge is compelled to give a direction in law—to rise and say: "My Lord, I forgot so-and-so" or "If you adjourn until tomorrow I can have a witness here who will deal with that".
This will make for sloppy and careless presentation. It will reach a stage where people will not care whether their proofs are in order or not for the hearing. That being so, of course, any prisoner—the innocent as well as the guilty—will have to wait over until such time as this careless preparation is amended and some further evidence sought and procured in order to fill whatever gap is left. That presents two dangers, in my view. It presents the danger of interfering with the timehonoured custom of onus of proof in the single presentation. It makes for a further danger of people filling a gap too easily, or attempting to fill a gap too easily, whereupon the general public will come to hold the law in disrepute and to disregard the authenticity and indeed the veracity of the new piece of evidence thus adduced. Now in every criminal case, as the law stands at the moment, every prosecutor and every defending counsel or solicitor—and indeed the trial judge— must have regard to this great principle of onus of proof; and a judge trying without a jury must keep in mind this principle of the onus of proof and must tell a jury of the necessity for the establishment of the proof and that the onus of so establishing a case—that is, the onus of proof—rests upon the State at all times, that it never shifts, that an accused is never under any obligation to give an explanation, go into the witness box or do anything in the nature of an answer to what the State alleges against him.
This shows how faulty this drafting is and how far from the knowledge or practice the draftsmen have wandered. Every case alleged against any accused must be proved beyond all reasonable doubt. That is the way it is and, in my view, that is the way it should remain. A case would never end; it would become almost burlesque if we had a situation in which the State prosecutor would say that the case was closed but the defence would ask for the admission of further evidence on the grounds that there was an insufficiency and we could have the farcical situation of whoever was appearing for the State saying, "But, my lord, I can tender further evidence to remedy the insufficiency. I can recall a witness to whom I did not put a certain question". So it could go on and on with a public gallery tittering, as well they might titter, at this possibility of the law being brought into a state such as that envisaged in this section.
This will bring about a situation where the very administration of law will be brought into ridicule and contempt and where an accused person will never really know when the case against him is over and it will put judges into the most invidious position possible. They will be frustrated and tied-up by this sloppy process if it is put across.
We move now to section 45 which is a most appalling power being sought by the Minister. Since the last war, there certainly has been no time when there was any kind of situation that would merit powers of this kind and these powers are contained in emergency provisions. I do not know why it is now considered necessary to put them into a Criminal Justice Bill that will be applicable generally in times of emergency and in times that are not in any way associated with emergency. I do not know what is sought by the following provision:
Where the Minister is satisfied with respect to a person undergoing a sentence of imprisonment, that the presence of a person in the prison is likely to be detrimental to the security of or to good order in the prison, he may, in writing
(a) certify that he is so satisfied, and
(b) direct the transfer of the person to military custody,
and thereupon the person shall be transferred for completion of his imprisonment to military custody.
Who will satisfy the Minister that the person undergoing a sentence of imprisonment is so behaving himself that his presence in the prison is detrimental to the security or good order of the prison? I take it will be the governor of the prison who will be instructed for the most part by prison officers and who will have to rely almost entirely on their evidence. We are all human and it might quite easily happen that a prison officer would take a dislike to some prisoner who might just be insisting on his rights, thereby causing irritation, but who is no danger to security or to good order. The officer may well report this to the governor and the governor will send it off to the Minister. The Minister, in turn, would direct the transfer of the person to military custody. Once a report comes from the governor of a prison to a Minister saying that a person within the prison is detrimental to security and good order therein, it is unlikely that a Minister will refuse to act on it. What are the implications here? The implications are insulting both to prison staffs and to those responsible for military custody.
It implies, on the one hand, that the governors of prisons and their officers are not capable of dealing with a person who is giving trouble. I have some knowledge of prisons and of prison officers and of the accommodation in prisons—accommodation is a nice word—to deal with people of this kind and they are not lacking in the firmness of officers; they are not lacking in rules governing such events nor are they lacking in accommodation, if it is necessary to provide such accommodation for such an offender, where he can kick his heels to his insolent heart's content without being any danger to security or good order.
The second implication is an insult to our military personnel because this undoubtedly carries with it the innuendo that if the recalcitrants cannot be dealt with in Mountjoy, Portlaoise or Limerick, the people in the Army will kick them around at such a rate that they will be brought to their senses and never forget it. The implication is that our Army men are stronger and will not hesitate to abuse the person of a prisoner who is certified as being detrimental to good order in the prison. We are living in 1969. We are living, I hope, in an era of great humanity. We are not living in the days when, if a slave proved incorrigible to the unreasonable master of a galley ship he would then have to be thrown to the lions in the amphitheatre. Our prisons are not ships wherein the galley slaves were whipped, nor, indeed, is it necessary. Our Army personnel responsible for the custody of prisoners are not of the mentality that casts prisoners to the lions in amphitheatres.
What do this Government think they are? How far have they strayed from the realm of reality, this Party recently called the Party of reality? Does reality mean that prisoners will be certified as a danger to the security and good order of a prison and that if so certified they are to be delivered over to Army personnel who, by implication, are tough enough and cruel enough to kick them around until they are no longer recalcitrant? This is what it all implies, and if this is the state to which this Government propose to bring the law of this country and the administration of the law and the custody of prisoners, then it is time they looked upon themselves as the Party not of reality but of power or necessity, however cruel.
The people will not stand for this. Not even a person most rigid in his insistence on the full rigour of the law would tolerate a situation where a person would be abused by such certification and, by implication, be physically abused after being so certified. If this provision is insisted upon in this House, we shall take it to the hustings; we shall take it to the protest positions in spite of the fact that the provisions of this Bill originally intended that all protests, all marches and all meetings should be banned at the behest of a Minister instructing an officer of the Garda Síochána. We will not have it and the people will not have it, because the whole theme with regard to prison, with regard to custody, is nowadays not a matter of punishment; it is a matter of prevention, of correction and guidance, and the introduction of a whole lot of educational and psychiatric aids. Is this Government's idea of a psychiatric aid the boot of a military policeman? This is probably what they want, but this is something they will not get.
When I mentioned section 27 earlier today, the Minister for Justice thought fit, out of the depths of his knowledge gleaned from excerpts in the White Paper, to say that a course of conduct tending to show such-and-such a thing in the trial of a person found authority in the case of The Attorney General v. Kirwan which followed the case of Makin v. Attorney General for New South Wales. I want to say now that whoever is responsible—and it must be the Minister—for these provisions and for the Explanatory Memorandum dealing with section 27, has not interpreted the judgment of Mr. Justice O'Byrne correctly nor has he interpreted correctly the phraseology of the extract from the case of Makin v. Attorney General for New South Wales.
Here again we have the theorist as against the practitioner, and with all due respect to the Minister, the practitioner is closer to reality. Principles are laid down in case law and while principles are fundamentally universal, they are nevertheless particularly applicable only in certain circumstances to certain cases. Every case, by its very nature and by reason of its difference of detail, calls for strict interpretation of each principle in relation to that case. Judges vary in their interpretations and it is an extremely dangerous thing for legislators to attempt to incorporate the principles of case law into statutory instruments such as this instrument purports to be and will eventually be, in some form or another.
When we come to the Committee Stage of this Bill, which I hope will not be for a long time yet, we will have to examine every section, every comma and every sentence with very great care. This is a Criminal Justice Bill and everything contained in this Bill will have to be examined with the care of a criminal case where facts and principles will have to be distinguished, where principles of case law will have to be examined and their merits weighed against the concept of incorporating them for universal application in legislation.
When we come to consider section 27 I would advise the Minister to bring into this House the two reports, excerpts from which he relies upon now, in order that the House may go through them. The Minister will then find out, as unmistakably as the fact that I am speaking at this moment, that the principles in these two courses of conduct have been misinterpreted. The Minister will find that the theorist's view of the law differs considerably from that of the practitioner and he will have to concede, by force of valid argument, that the practitioner is closer to knowing what is needed for the proper administration of justice, knows more of its working and is more conscious of the country's needs in that regard. Nobody can, in conscience, whittle away anybody's freedom or any part of it. He who assets must prove in criminal law with a certainty and with a proof beyond all reasonable doubt. On the civil side it is based on the balance of probabilities, but the principle of he who asserts must prove is never lost sight of on the civil side, with less particularity perhaps; but, on the criminal side, in view of all that is at stake, the particularity is of a very demanding character.
On section 57 I see that it is proposed that where a person, eligible for or in receipt of a pension, superannuation allowance, lump sum or gratuity payable out of public moneys, is dealt with under the Probation of Offenders Act, 1907, or convicted of an offence which involved fraud or dishonesty and resulted in loss of public moneys—
(a) the appropriate authorities may, if it so thinks fit, deduct a sum, not exceeding the loss of public moneys, from the pension, superannuation allowance, lump sum or gratuity, and (b) if such deduction is made, the appropriate authority may, if it so thinks fit, apply the whole or part of the sum deducted in making good the loss of public moneys.
There is a mighty departure. Even in proceedings where a person is proceeding to recover a debt or portion of a debt or an instalment by somebody indebted to him, the old age pension was always secure but the old age pension is not secure here. Imagine the case of an ill-clad, poorly-fed old age pensioner who—and I do not say they do it often but it could happen and even once would be enough to justify the exclusion of this provision— might be tempted to take a bottle of milk, a bit of meat or a loaf in any of our shops, particularly in supermarkets where goods are laid out nowadays so temptingly, and if as a result of being detected the poor unfortunate was dragged before the courts and explained his case to a humane district justice and said he was hungry, explained what his old age pension was per week and the rent paid for his single room, explained what fuel he had to buy after whatever Vincent de Paul supply he had was used up, explained all of the demands that were made on his old age pension, and if the humane district justice said "I find the facts proved but I apply the Probation Act," under the provisions of this section the State is then empowered to compute the cost of detecting his petty crime and of bringing this tragic offender before the court. Having computed it the State may say there must be deducted from the old age pension the amount of public moneys involved in this case. This may be an extreme example but I am sure there are examples less extreme, if one were to think of them.
It could also apply to the case of a man on unemployment assistance. He is receiving public moneys and if he, utterly frustrated at the sight of a harassed wife, hungry and/or ill-clad children succumbs to temptation also and he proves less easy to capture than, say, the old age pensioner and it costs something more to detect his little crime, if he is brought to justice and again by a humane presiding justice is given the benefit of the Probation Act, the State is again entitled to compute what amount was spent on State activity in detecting him and bringing him before the court and up to the time of the final decision of the court, and to deduct that from his unemployment assistance.
There are, I am sure, many other cases of a like nature. I do not know for the life of me what the necessity is for this provision for deductions from pensions in certain cases. It might be answered that this section applies only to people in the public service or in the service of local authorities who might make away with a little or more of public funds available to them in their offices. It is a harsh section whichever way it works, and in my view it can work either way. The loss of public money is confined to the matter specified in the Superannuation and Pensions Act, 1963, but the provision is nevertheless, capable of great hardship, abuse and cruelty.
This Bill was ordered by Dáil Éireann to be printed on 27th June, 1967. That date is significant because at that time fortunately we did not have the grave state of unrest in this country that we are experiencing at the moment, but we did have a very vigorous protesting farming community. So that, at that time the only matters affecting the Government by way of what they might choose to call at that time public disorder was the protest of the farmers by way of marches, sitting down in Merrion Street, and sleeping there. Ministers for Agriculture would not see them and a Taoiseach, prior to by-elections, invited them in.
The House would do well to note, in that context and atmosphere of 1967, that section 53, the side note to which reads "Unlawful encouraging or advocating," provides that:
(1) A person who encourages or advocates the attainment of any particular object, lawful or unlawful, by criminal means shall be guilty of an offence.
(2) A person who encourages or advocates the non-payment of—
(a) money due to the Central Fund or any other public fund,
(b) rates payable to a local authority, or
(c) rents of dwellings so payable, shall be guilty of an offence.
(3) A person who is guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and such imprisonment, or
(b) on conviction on indictment, to a fine not exceeding two hundred pounds, or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.
The House will note carefully the kind of things mentioned here in relation to refusal to pay money due to the Central Fund or any other public fund, rates payable to a local authority or rents of dwellings so payable.
We remember that at that time it was strongly considered, and was brought into operation, partially, by the NFA, that a widespread campaign for the non-payment of rates should be operated until such time as their complaints were remedied or even listened to. Here is a vindictive section, conceived at that time, containing specific provisions to make such forms of protest on behalf of the farming community criminal offences. They were there from 22nd June, 1967, until 22nd June, 1968, and, indeed, until the Fianna Fáil Ard Fheis. In fact, they still stand.
In his Second Reading speech, the Minister gave certain undertakings about amendments. It is, nevertheless, up to the moment I am speaking, a Bill good in spots and very, very wicked in others. It is like the nursery rhyme about the little girl with the curl in the middle of her forehead: when she was good, she was very, very good but when she was bad she was horrid. The provisions with regard to courses of conduct, with regard to the onus of proof, with regard to the transfer from civil to military custody, with regard to penal provisions designed especially for farmers, with regard to provisions to deal with people who meet and march in protest, are the offspring of a power-hungry Government, inseminated with hate— hate for anybody who opposes them, hate for anybody who expresses a point of view, hate for any person or group of persons or for anything that comes in the way of their being enthroned forever.
Any movement that threatened to gain momentum, that threatened to disturb Fianna Fáil out of this complacent mood, is anathema and has to be put down, has to be destroyed. This Bill was the subject, the Minister said when defending it, of ill-informed criticism. He went to West Cork on one occasion and delivered a solemn lecture defending this Bill and all its provisions: anybody who dared to say anything about it was ill-informed or misguided or ill-advised or, was moved by motives that could not be described as patriotic. The Minister for Local Government went to the Minister's 30-year celebration in Castlebar and told the people that there was nothing in the Bill of which Fianna Fáil should be ashamed.
In a matter of days, the Minister for Justice came into the Mansion House and there promised to drop certain offending sections. It is a matter of great credit to the rank and file of Fianna Fáil who, through their delegates at the Ard Fheis, succeeded in making these people realise that this power-hungry march over all established principles of justice, honesty and fair play, would have to stop and would have to be retarded in some way. The Government should have realised that, because this Bill had been a matter for discussion throughout the country in the course of the recent referendum campaign. It played, I have no doubt, a big part in the massive defeat of the Government, the lesson which the Government failed to learn until the delegates to their own Ard Fheis stamped their feet on the floor of the Mansion House. The delegates were successful in that respect. It is a pity they were not in others.
At the outset of my speech I said I agreed with Deputy Dillon that this Bill should have come in two parts—two measures, one the good, codifying part, the other the new proposals such as those to deal with flick knives with which I have already dealt. These, I hasten to reaffirm, I approve of fully. However, this Bill, with provisions that tend to curtail man's freedom, that intend to turn our courts into tittering areas of burlesque, that will make prosecutors sloppy and careless in the preparation of their material, that throws to the wind the well-established principle of onus of proof, all in all, goes to show that this great Party of reality is in the last analysis and on close examination the Party of cruel, bloody expediency.
