I move amendment No. 1:
In subsection (1), page 4, line 23, after "including" to insert ", except in section 28,".
Vol. 239 No. 12
I move amendment No. 1:
In subsection (1), page 4, line 23, after "including" to insert ", except in section 28,".
As amendments Nos. 1 and 13 are related, they may be taken together.
The amendment is, in effect, an amendment to section 28, which relates to meetings et cetera in the vicinity of Leinster House, and the other will be a consequential drafting amendment. I do not want to anticipate the discussion on section 28 which, as I said in my Second Reading speech, is a section that relates to this House itself and which therefore is of special concern to Members on all sides of the House. I therefore hope to hear the considered opinions of Members when we come to that section.
At the moment, however, we are concerned with one small point which I, at all events, regard only as a point of clarification. Section 28 is restricted in its effect to meetings which are, so to speak, directed at Leinster House. I do not think that a meeting in a building would have to be included. The words used in the section, of their very nature, would have affected only open-air meetings. However, some people seem to have been worried about this and, without prejudice to what may be decided when we come to discuss section 28, we can now agree to make it clear that indoor meetings are explicitly excluded from the section. This is the effect of the amendment we are now discussing.
The Minister obviously regards this as a small point, but in the minds of many people it was a point of considerable importance. The Minister is doing the right thing in moving this amendment exempting buildings from the application of section 28, and I should like to express the hope that the Minister's approach to this matter, which, as I say, in the eyes of many people was a matter of importance, will run through the remaining sections of the Bill. If the Minister approaches it in that way, we may be able to make some headway. It is a pity that a misunderstanding should have been created by the wording of section 28 taken in conjunction with the definition section, which defines "a public place" as "any place (including a building) to which the public have access" and that the kind of atmosphere created by that definition should have been there. The Minister is remedying the situation in regard to meetings and processions which, as he puts it, are directed at Leinster House, in that buildings are excluded. The position now will be that, if section 28 is accepted with the amendment and the definition of "a public place" in section 28 is accepted, at least we have reached the stage where it is clear that the only meetings or processions or demonstrations which are contemplated by the Bill will be those held within a certain distance of these buildings and held in the open air, and that is an improvement.
I am not quite clear on this. You, Sir, suggested taking amendment No. 13 to section 28 along with amendment No. 1. The Minister said he did not want to stultify discussion on section 28, but——
No. It would not involve discussion of section 28. It would involve discussion of amendment 13.
How can we take amendment No. 13 unless we also discuss section 28 along with amendment No. 1?
If the House does not wish to take them, there is no reason to do it.
You are not going to take amendment No. 13 now, only No. 1?
It is a matter for the House.
They do obviously hang together.
There is no point in taking it now and later on saying that this has already been taken, which would mean that there would be no discussion at all on section 28.
We are entitled to discuss section 28, but if any Deputy objects to taking them together then we need not take them together.
I think we should not.
If Deputy Tully does not wish the amendments to be taken together, they need not be taken.
On amendment No. 1, I want to sound a note here which may not be a popular one but in respect of which I have a deep sense of public duty and a deep conviction. This amendment is designed to exclude from the provision about meetings or processions deemed to be a challenge to public order any meeting held in a building. In my considered judgment there is an attempt being made at this time to use this country as a proving ground for communist riot tactics. You will observe that I say "to use this country". They have made no serious effort in the Republic towards that end, because the Government of the Republic, whether we agree with it politically or not, whether it be from the ranks of the Fianna Fáil Party, the Fine Gael Party or the Labour Party, stands on a rock of moral authority conferred upon it by a freely elected Parliament which chooses it and establishes it as the Government of Ireland.
But there is a situation obtaining in Northern Ireland where the Government has no real moral authority, as a result of which mob riot tactics for the purpose of undermining law are being tried out. If I know these gentlemen— and I think I do know them pretty well—and if in an effort to meet a genuine liberal opinion, and I use the word "liberal" in its highest sense, we exclude buildings from a proviso designed to prevent meetings organised to precipitate riot, we will suddenly find ourselves confronted with a situation in which a public meeting is summoned to a room designed to hold 100 persons and on that room, by careful pre-arrangement, there converges a mob of 1,000. What do we do with the 900 in the overflow? Are they an illegal meeting? Or can they say to the Garda Síochána: "We have come to attend a meeting in a building".
That is a "quare" one.
It is a "quare" one. It is astonishing how, on a small amendment like this, a great evil can grow. Because an unfortunate chief superintendent is faced on the instant with a decision—his instructions are that there is to be no open air public meeting in these circumstances—he says to the gentleman in the red beret, who is organising operations with a bullhorn in one hand and a pamphlet, "Thoughts of Mao", in the other: "I am sorry, Mr. So-and-So. You may not gather to the tune of 100 in the building and 900 in the public street because that is not a meeting in a building. It is a riot in the street." The gentleman in the red beret thereupon says: "All right. We are going to sit down. Whereupon the chief superintendent with a body of our neighbours, who are members of the Garda Síochána, proceeds to move them on. Now begins the dialectic. The Garda are challenged to move them. The Garda proceed to move them and, within 40 minutes, there are 5,000 people gathered in College Green to protest not for the primary purpose of the meeting which first was assembled in the small and inadequate building carefully chosen, but to protest against police brutality, and the gentleman with the red beret and the bullhorn is in the middle of the demonstration in College Green protesting against police brutality. You see, Sir, Mrs. Red Beret is in the Gallery already.
If there are any further interruptions from the Gallery I will ask that the Gallery be cleared.
See how interesting it is.
Now I was reared and brought up a radical liberal. I was brought up to claim my right to parade it in any town in Ireland, whether it was in the jurisdiction of the Republic or under the rigged Government of Stormont. I have repeatedly asserted that right and, when I was told by the RUC that it was by their grace and favour I was to proceed in open procession down the main street of Lisburn, I told them to go and take a running jump at themselves; I was walking down the main street of Lisburn by virtue of my constitutional right to walk in orderly procession in any town in Ireland and not to forget that they were the paid servants of the people and their only function was properly to regulate the traffic so that the procession at the head of which I was walking could proceed in an orderly and proper manner. I would say the same to any chief superintendent in the Republic.
But I want to ask you, A Cheann Comhairle, in order to meet the views of people who are actuated by the highest motives, are we to open the doors to the gentlemen who are concerned to undermine the authority of the constitutional Government of this country? What so many forget is that the day Red Beret blows his bullhorn, that is news. You are not news, a Cheann Comhairle; I am not news; the Minister is not news. The louder he roars and the more noise he makes, the more Telefís Éireann will concentrate their cameras upon him and the more his bullhorn will be carried into every home in Ireland. Are we going to facilitate him to carry the message into every home in Ireland that the members of the Garda Síochána, carrying out their orders, are engaged in police brutality? Or are we going to make it manifest and clear, right from the word go, that the police force of this State will be deployed in this Republic to protect the right of any person, peacefully and lawfully, to demonstrate anywhere? But also the whole forces of a legitimate Government are going to be implacably deployed to assert that mob law will never rule in Ireland?
I put it to the Minister to look at this amendment again. Will he be so good then as to tell me what will be his instruction to the Commissioner of the Garda Síochána if information is conveyed to him that a meeting is being summoned for a purpose prohibited on the ground that it is a danger to public order in a room designed to hold 100 people and that 1,000 people are being summoned to it so that 900 will be asked to move on and not assemble in the street and their instruction then is to follow Red Beret with his bullhorn to another site in Dublin, becoming the hard core thereby of a demonstration of 5,000, the bulk of whom will be wellintentioned, simple people, to protest against police brutality? I think this is what the Minister forgets; if there is to be an exemption in respect of meetings held in buildings from the general provisions of this Bill, then it ought to be made manifest at this stage that that does not permit the calling of meetings of 1,000 persons to an apartment designed to hold 100 and that what might be described as an overflow, but is in fact an organised riot in potentia, will not be tolerated on the ground that 900, or 1,000, cannot be made to fit in a building designed to hold 100 and that nobody believes that a building designed to hold 100 was hired in good faith by those who had summoned 1,000 to attend the meeting.
There is some misconception about what is involved here. Amendment No. 13 is directly linked to and consequential on amendment No. 1. Taken together they explicitly exclude buildings from the scope of section 28, the section dealing with meetings at or near Leinster House.
Within half a mile.
I want to assure Deputy Tully that this in no way inhibits any discussion on section 28 when we come to it.
The Ceann Comhairle has, in fact, given a different ruling; if amendment No. 13 is discussed with amendment No. 1 we cannot discuss section 28 when we come to it.
The Chair did not give any such ruling. What the Chair ruled was that, if amendment No. 13 were discussed now with amendment No. 1, it could not be discussed again on the section, but the section could be discussed.
But it will, of course, have been amended.
We are dealing now with amendment No. 1 and nothing but amendment No. 1.
If the House wants it that way.
The House agrees to discuss amendment No. 1 and that the discussion on amendment No. 13 will follow on section 28.
Very good. The second point I want to make, as far as Deputy Dillon's fears are concerned, is that this is not dealing with public meetings in general. This amendment is dealing only with the specific provisions in section 28 concerning meetings at or near Leinster House itself. While I would agree largely with what the Deputy has to say about public meetings in general, I want him to understand that this has the restricted interpretation of dealing with what the House thinks should be done as far as meetings in the vicinity of Leinster House under section 28 are concerned.
As far as I understand Deputy Dillon's point, if there was a meeting in a house and some 900 went out on the street, that would be a different proposition. Amendment No. 1 is concerned with section 28, namely, with the provisions that the Dáil feels should be laid down about meetings at Leinster House and within the confines of section 28. It was for that reason that I felt we should exclude meetings held indoors in buildings. There may be many different types of meetings that would not be directed at Leinster House that could come within section 28. We are thinking in the limited provisions about meetings held or directed at Leinster House under section 28. It is only in that connotation that we think this amendment should not affect public meetings in general.
I am sorry to press the Minister in this matter. I think he has missed my point altogether. I do not believe Communist inspired demonstrations are bona fide. I believe they are trying out riot tactics in the Six Counties because they believe the Government is not morally equipped to control. Now, the Minister is excluding meetings held in buildings from the provision, prohibiting meetings directed against Leinster House. The point I want to impress on the Minister is this. A Communistorganised group in this city summons a meeting to a room designed to hold 100 persons but, in fact, they call up 1,000 persons. Now, they pack the room but there is an overflow from the room of 900 people outside. The chief superintendent who is on duty comes up and says to the overflow: “You cannot meet here. This violates the provisions designed to protect Leinster House from demonstrations directed against it”. They say, in effect: “Under amendment No. 1 of the Criminal Justice Bill, a meeting in a building is excluded from that prohibition under which you propose to move and we have come here for a meeting in a building. But the meeting has assumed such a proportion that the building will not accommodate it”. The chief superintendent has to take a decision there and then. What is he to do? Is he required by his instructions to allow the meeting—which is permitted in a building—to develop into a meeting of 900 people outside the building? While he is trying to reach a prudent resolution of that dilemma, a gentleman with a red beret and a bullhorn comes up to attack, abuse and insult him and possibly golf balls with studded nails in them begin to fly from the back of the crowd against the gardaí. Eventually, the chief superintendent decides: “I shall act before this situation gets out of control.” The 900 gentlemen proceed to sit down and say: “We are attending the meeting on the road but we are just the overflow from the meeting being held in the room” whereupon the chief superintendent says to the gardaí: “Clear the street: we have to pull these fellows back and to let the traffic pass”. Red beret and his bullhorn at once adjourn to another site and start a demonstration against police brutality because, he says, the gardaí are depriving him of a right which Dáil Éireann, deliberately, by amendment, reserved for them to attend a meeting in a room or in a building in the vicinity of Leinster House. By this exclusion, we are putting on the gardaí, I think, possibly an impossible task.
The Minister is an experienced legal practitioner. Can an overflow from a meeting in a building be described as a meeting in a building within the terms of this Bill as amended, if we pass amendment No. 1? I think an overflow meeting is part of a meeting in the building. You cannot take a chalk line and draw it across the threshold of the door of any building and say: "Anybody on one side of that chalk line is at a meeting within the building but anyone whose heel is across the chalk line is outside the building and therefore does not enjoy the exemption conferred by amendment No. 1 of the Criminal Justice Bill." That is a reductio ad absurdum. What I am putting to the Minister and to the House is that I believe the international Communist Party are trying out tactics in this country and one of the first tactics they will try out is to ask: “What is an overflow meeting? Is it exempt? We shall certainly claim it is and, if the chief superintendent on duty denies that claim, within half an hour we shall have a demonstration going in the city centre to protest against police brutality. We shall have Telefís Éireann there and we shall have the story told in every kitchen in Ireland that the Garda Síochána are brutes, savages and beat the people up.”
The undoubted fact is that, as a result of the deplorable situation in the Six Counties, Ireland will be used as a proving ground for riot tactics. I should like the Minister to face that problem and to answer me as if he were advising a client. Does an overflow from a meeting in a building constitute part of that meeting or does it not? That is the question the chief superintendent will have to resolve when faced with the carefully organised dilemma which will confront him in an event such as I have envisaged for the House.
I will say only a few words on this. I find myself in an unusual position because, as I have said, I think the Minister is doing the right thing in bringing in this amendment but, on the other hand, the arguments put forward by Deputy Dillon are extremely weighty and forceful and obviously should not be lightly disregarded. As I see the position here, we have to be very careful about the entire Bill. Deputy Dillon will agree that there is nothing about which the Communist elements to which he referred can make more capital than if this House introduces legislation which they regard as provocative and as interfering with long established personal rights and liberties.
With the definition of "public place" in section 2 which not merely captures a public place in the ordinary meaning of that term or indeed in the meaning given to it by previous legislation of this House, such as the various Road Traffic Acts but which could be extended so as to include a person's private house, one of the dangers about the Bill as drafted is that the question of provocation would be capable of being raised in a way in which the Minister, the Government or any Deputy in this House would find it very hard to resist.
There you would have a complaint being made that the personal liberty of the individual was simply being trodden on by the Legislature, and we have to guard against that. In addition to that, the amendment relates not to the general provisions of the Bill but only to the provisions contained in section 28. The provisions contained in that section relate to public meetings, processions or demonstrations held within half a mile of Leinster House which are calculated to influence or to affect the deliberations of the Members of the House of the Oireachtas.
On the one hand, you have the case put by Deputy Dillon with very great force and clarity, and I think he has made a case which the Minister must answer. To my mind, the answer to it is that the Bill should mean what it states, and that if the proposed exemption of buildings from the definition of "public place" means what it says, it must be interpreted as meaning that buildings are exempt — that public meetings held in a building are exempt and that the provision does not exempt the type of overflow Deputy Dillon referred to. That is simply my own view of it.
I think Deputy Dillon is quite right in seeking the Minister's view, but the point I wish to make is that in the long run the Minister's view, Deputy Dillon's view or my view does not matter. What matters is what we put into the Bill and that is what the courts must have regard to when they come to interpret the Act if they have to interpret it. Once the point has been raised, as it has been by Deputy Dillon, the Minister must watch the position carefully. I think he is right, for the reasons given, to exclude buildings but he must make it crystal clear what he means by doing that in the context of the case made by Deputy Dillon.
That can be done if the Minister has another look at the wording of the amendment. It could be made quite clear by means of the Minister's amendment that what are being exempted are meetings within the actual confines of a building. While preserving the terms of the amendment the Minister wants to make, the Garda authorities could be put in a position of having to deal with the kind of case Deputy Dillon has referred to; but we have also got to take into account that the section the Minister is amending deals not merely with public meetings held in a building but also with demonstrations which are held in a public place.
A demonstration under section 28 may be by one or two people. A demonstration by a single individual is captured by the terms of section 28. There is every reason to guard against demonstrations even by a single individual within a short distance of Leinster House when either House is sitting if that demonstration is calculated to intimidate or to influence or to affect the deliberations of Members, but a demonstration held by one individual in a building other than Leinster House obviously cannot affect in any intimidatory way the deliberations or the decisions of Members of either House. When you get down to a demonstration of that sort, consisting of a single individual or a handful of individuals holding their demonstration possibly in a private house, possibly in the vicinity of Leinster House, which cannot be capable of affecting deliberations here, I see no reason why that should be brought within section 28.
Therefore, we have to do here a kind of balancing act. On the one hand, we have to avoid being tagged with the label of repressive legislation of a provocative sort which would be very much grist to the mill of the people Deputy Dillon spoke about. On the other hand, we obviously have to be careful that loopholes are not left in the Bill to enable the kind of riot trouble to which Deputy Dillon referred to be sparked off on the pretext that because there is an overflow meeting that kind of demonstration is to be exempt from the provisions of section 28. As I say, the Minister must give his views on this and must look again at the amendment he is proposing to the definition section to see if the possibility to which Deputy Dillon referred cannot be dealt with by means of the amendment. Personally I think it can be dealt with if it is made clear by means of the amendment that the exemption relates only to those actually in a building.
We are getting fouled up in an awful lot of words over this amendment. I am as much opposed to mob rule as anybody in this House and I do not care whether the mob rule is that of Communism or Fascism—there is just as much chance of the one as there is of the other— but I do not believe that as things stand at present there is the remotest possibility of the numbers referred to by Deputy Dillon in his example being interested in creating a mob to do those things in this city. One of the dangers in the method by which this is being discussed here is that while the amendment was put in for the purpose of lessening the restrictions it does appear from most of the discussion that some Deputies at least are anxious to make it more restrictive. I believe we should not, except with very good reason, restrict the right of people if they want to demonstrate. Peaceful demonstrations should not be interfered with in any way. We have had examples outside the gates of this House of, in the main, peaceful demonstrations although admittedly some pretty noisy ones. I do not think they did any damage. The only damage that was done was when somebody was stupid enough to order their arrest. From the students, to the NFA and to whatever they were from time to time, they were peaceful until somebody arrested them.
I believe that the Minister having introduced the Bill and having had a look at it decided after the Second Reading that he would relax it in one place and that was in regard to the question of holding meetings inside a building. The Minister is right in this. If he is going to impose a restriction it is ridiculous to suggest that a peaceful meeting in one of the hotels around here should, for one reason or another, be precluded from being held under this Bill. I have a suspicion that a lot of sections of the Special Powers Act under a different heading are being introduced in portions of this Bill. I do not want to see that happening and I do not think this House wants to see that happening. My suggestion to the Minister is that a meeting within a building is exactly that—a meeting within a building—and if people congregate outside they are not part of that meeting. I am a layman and I cannot give a legal interpretation of this but either they are inside at the meeting or they are not. I would prefer if the restrictions were not put down at all. If there are going to be restrictions let us have them within a building and do not try to tie it up with words by which, eventually, it will be almost impossible to operate it.
I want to approach this question in an agnostic frame of mind for a moment. Why is the amendment being introduced? That is what I want to know first of all to enable myself to see if it is proper or not. There is a lot to be said for the view which Deputy Tully has put forward that we should let anybody who likes demonstrate outside the House but there is the other point of view which is largely taken from British practice that you should not have the Houses of Parliament subjected to demonstrations of mobs outside it. That idea emanated from the British House of Commons, that there should not be any processions or demonstrations outside or near Westminster. It may be that it is a proper thing to prevent processions and demonstrations which may adversely affect people coming to the Dáil to do their duty. That may be a good thing. It is arguable.
Let us assume that it is a good thing and that something like section 28 is desirable, that it is desirable that there should not be demonstrations outside the Houses of Parliament and that Deputies should not be interfered with coming into the House. But, why exempt buildings within half a mile? What is bothering me is what is the necessity for this amendment. There can be a greater nuisance from the tops of the houses opposite this House than from the street. Every roof in Kildare Street or Molesworth Street can under this section be the subject of exemption. You can have the greatest collection of communists, fascists, ratepayers, farmers or any other group spread over some of the roofs in Kildare Street kicking up a frightful row, doing all sorts of depredations and making all sorts of noises and effectively intimidating some Deputies or Senators. Therefore, what is the point?
I can see Deputy O'Higgins's point that you can have a nice private house and a nice private meeting in which you can let off steam about Deputies and politicians and express all the rubbish that we listen to every day about politicians but if this Bill is put through there is no doubt that a building includes the roof and you can have noisier assemblies on the roofs of Kildare Street within a few yards of Leinster House than you can have on the street. Is that intended?
In regard to Deputy Dillon's point about whether or not an overflow is a meeting I would not express any opinion except to refer to a ruling in a leading case on trade union law taken some years ago in Cork in reference to Fergusons, the hairdressers, who had a trade dispute and who were picketed outside the premises. An action was brought in the High Court which did not succeed to restrain them from picketing outside on the grounds that the picket was on private property. The basis of this was that if you own a premises adjoining a public thoroughfare you own a certain distance on to the public thoroughfare subject to the right of the public to pass. This may be adding something to Deputy Dillon's point that in Kildare Street anybody outside on the footpath is in the building. There is something therefore in Deputy Dillon's point of view.
What is the necessity for this amendment? Is it merely to placate some of these people who seem to be annoying the Minister over these proposals, or is there anything in Deputy O'Higgins's point that it is all right to have private meetings in private houses even though they may be near Leinster House? Like Deputy Tully I want to make my declaration of faith. I am against anything within reason that prevents the right of the public to free speech and free assembly. It is a bad thing from the point of view of principle and we should not erode those principles and constitutional rights unless the public interest imperatively demands it. While there may be something to be said for preventing demonstrations within a certain distance of Parliament I am not too satisfied that this amendment is required.
Again, without going into the rights or wrongs of section 28 and the justification for it, largely, in my view, I think the answer to Deputy Dillon's point—I shall give my views in regard to Deputy Costello's argument in a moment—is in the section itself and, without discussing the section, perhaps Deputies who have not recently looked at section 28 (1) should recall that it provides that "any public meeting or procession in or through a public place or, demonstration in a public place by one person or by two or more persons which is (i) at or within one-half of a mile from any building in which a House of the Oireachtas is sitting, and (ii) calculated to influence or affect the deliberations of such House of the Oireachtas, or the views or actions of any member thereof" shall be unlawful.
Without discussing what may be adopted in section 28 (1), as it stands, in my view, it would cover the overflow to which Deputy Dillon refers. If, as he said, people made a pretext of having a meeting in their house as he has described and, had it deliberately overflow for the effect of having a public meeting or demonstration, that would, immediately they got on the public street, be caught under subsection (1) to which I have referred. They would become demonstrators or form part of a public meeting or part of a procession in a public place "calculated to influence or affect the deliberations of such House of the Oireachtas..."
In reference to Deputy Costello's argument let me say that the reasons why this amendment was put were twofold. There were those who took the view in representations I received from them that this section as it stands visá-vis Leinster House is too broad and that in the interpretation of what would be—and I quote from the subsection—“calculated to influence or affect the deliberations of such House of the Oireachtas or the views or actions of any member thereof”, you might have grave difficulty with the Garda authorities inasmuch as you could have, to give an example, a half-dozen people getting together for the purpose of promoting some Act of Parliament or repealing it, or for some purpose of that kind, and that they would find themselves caught within the provisions of this section.
From a practical point of view, what I am sure Deputies will be concerned with when we come to section 28, is to consider what should be done to keep Parliament immune from demonstrations or interference with the Members in attending Parliament or efforts to affect their views. I felt that in view of the danger of people finding themselves, perhaps unwittingly, in some room or at some indoor meeting within half-a-mile of Leinster House, it would be better to remove that uncertainty. I accept the point made by Deputy O'Higgins that it is most unlikely that a person or a few people inside a room for what I would call a private meeting in a private house or in some private building, would interfere with the deliberations of this House or Members attending it. That, I suggest, is the way we must think in this connection.
I know quite well what Deputy Dillon and some others have in mind and I largely share their views. Public meetings are another matter. We are dealing here with one specific point, meetings in the vicinity of Leinster House. Deputy Costello made the point that a man or two could get up on a roof. I suppose that is so, but I assume that all the people who have buildings in the vicinity of Leinster House are not lunatics and will not allow "queers" on top of their buildings and will very quickly have them removed.
The roofs are not too safe, in most cases.
Outside the risk to the individual owner I do not anticipate that there would be a real threat to the fundamental purpose for which we have inserted section 28 and what Deputies may suggest should be in the section when we come to it. Deputy Costello made a point about what I suppose we would call in dealing with the licensing laws—the curtilage of the premises, how far the ownership goes into the street in a publicly-dedicated highway. I shall have a look at that. I do not think that within the ambit of this section when "public place" is used—and this I have no doubt has been an expression taken from other statutes—that a public street or a footpath could be claimed to be—and this I think is Deputy Costello's point— private property. Anyhow, before we come to section 28 I shall have a look at the points made by Deputy Dillon and Deputy Costello. So far as I am now advised I am satisfied that an overflow would be caught under this section. If I find anything to change that view, I shall have another look at it.
I have already warned visitors to the Gallery that if there are any interruptions the Gallery will be cleared.
My proud boast is that I have been described as a Fascist beast by the Communist Party in about seven different countries of Europe and elsewhere. My highest title to credit is that they hate me and they fear me because they know that I will drag them into the open light of day, the one thing in which they cannot survive in any free community. I propose to make no further reference to that most eloquent vindication of the argument I seek to make. I want to remind the House that there is no Deputy in the House who has led more demonstrations through the towns of this country than I have. I have led demonstrations of 10,000 and 15,000 people through the streets of Dungannon, through the streets of Lurgan, through the streets of Derry, through the streets of Maghera as I have led them through the streets of Raphoe, Donegal, Monaghan, Cavan, Dublin and elsewhere and I have done it not by leave or licence of any police force in the Republic or in the Six Counties. I have required the police force both in the Republic and in Northern Ireland to make suitable arrangements for the free passage of the orderly demonstrations that I was leading, they having been provided with due notice of our intention lawfully to demonstrate for the things in which we believe.
I want to put to the Minister an aspect of the situation which, I think, in some measure exists and if I may say so, without appearing to be jealous in any way of my distinguished colleague and ex-Leader, Deputy John A. Costello, it fascinated me to see two lawyers, the moment they spoke to one another expressing empathy which the Minister withholds from me. Of course, when Deputy John A. Costello speaks in this House it is natural that his words should receive special attention because they always deserve it.
I am not so anxiously concerned with the interpretation that the courts will put on this Act. I am very well aware that it is not what we mean to say; it is in fact what we say in the language of the statutory legislation which comes from the Oireachtas that the courts will take cognizance of. It has not infrequently happened that the courts have not understood what we meant to say and we had to amend an Act that we had already passed. What I am thinking of is the chief superintendent of the Garda Síochána standing in the street suddenly confronted with the question: "Do I move them or are they protected by amendment No. 1 of the Criminal Justice Bill?"
Supposing that the officer in the Gallery today who heard interruptions had to ask himself: "What does the Ceann Comhairle mean me to do? If I put them out the Ceann Comhairle might complain to the Commissioner of the Garda Síochána that the garda acted unofficially and, if I do not, the Ceann Comhairle might complain that the garda did not do his job." Fortunately, however, the Ceann Comhairle was here present to say: "Remove those who are disturbing our proceedings." Whereupon, the officers of the Garda Síochána and the officials of the House knew what their duty was and they carried it out. I am trying to ensure that we will not help those who want to discredit the gardaí by leaving an ambiguity so that the gardaí may have to take a snap decision and the snap decision will be this: "Shall we lift these fellows off the street?" The moment they attempt to do it the man with the red beret and the whiskers whom we have just seen starts an attack on the person of a garda. The garda may then have to act with greater emphasis and force to clear the thoroughfare in accordance with the provisions of the Criminal Justice Act whatever that may be once the Act is passed by this House.
In an hour, a carefully pre-arranged meeting is held somewhere else to protest against police brutality and to shout "Fascist beasts". In tomorrow's papers, we shall see that the poor lady who shouted "Fascist beasts" from the Gallery will receive far more publicity than the group of pedestrian Deputies who are here trying to formulate a useful statute law. The reason is that the Committee Stage of a Bill is not news. Look at the Press Gallery. If they had heard that a lady would be shouting "Fascist beasts", the whole Gallery would be full but we now have present only two distinguished gentlemen.
The rest must have gone out to see the lady.
Very likely. She is news. She is probably giving an interview now on the steps of Leinster House. These people will now go to some other place to denounce police brutality. Will the unfortunate members of the Garda Síochána who are only waiting for their turn of duty to come to an end and who are hoping they will not be kept on overtime to make news when they return to their hearths and homes? Not at all; they are only public servants doing their duty and we are only Deputies trying to legislate for the benefit of the people. We are not news but the bully with his red beret is news.
I want to ensure that by this legislation we will not put the gardaí in an impossible position and make them the ready victims of those who wish to misrepresent them and to slander them. We are discussing an amendment designed to clarify a section of a Bill which all of us intend discussing on its merits when it is clarified but, already, in the Gallery we have people shouting "Fascist beasts" because we are trying to clarify the meaning of a section the merits of which we have not even begun to discuss. We are not dealing with a body of people who want to listen to reason. We are dealing with a body of people who are concerned with propaganda and who are interested only in rioting.
We have not actually begun to discuss in this House whether section 28 should ever be incorporated in the Bill at all but we have been discussing for the past 1½ hours how to frame section 28 so that when we come to discuss it we will know what we are discussing and I have been trying to make a case and I think I am in a specially strong position to make it, that the House, as Deputy John A. Costello and Deputy James Tully have said, should be concerned most carefully that while protecting the right of every citizen lawfully, to demonstrate in any part of Ireland, we do not create for the Garda Síochána in the Republic the situation in which the kind of people who seek to interrupt our proceedings here today would be able to summon meetings to denounce them for brutality with the guarantee if and when they do their voices will be carried into every kitchen, every parlour and every drawingroom in Ireland while those who argue for individual liberty, freedom and dignity will be passed over as unworthy of notice because they are not news. Do not close your eyes to the fact that we are passing through this phenomenal phase of human experience that what happens in the Gallery of Dáil Éireann means more to the popular methods of mass communication than what is proceeding on the floor of the Parliament of Ireland.
That is a phenomenon we have got to try to live with but it should not deter us from continuing to do our duty and that is to protect the 144 of us who have been chosen by our own people, to protect the fundamental freedom of our people but at the same time to arm the legitimate Government of Ireland to maintain the law and to defend the institutions of State without apprehension that in any crucial situation they will have to fight anarchy with one hand tied behind their backs.
It must be repeated that what perhaps all of us in this House are trying to protect is the right of peaceful demonstration, the right to hold a peaceful meeting. My only regret about what happened in the Gallery is that they got a few tips from people talking here and I am quite sure some of them might now be outside trying to find drain pipes to climb up on the roof of this House.
They will not find that easy.
The only trouble about that type of person is of course as Deputy Dillon says they get far too much publicity. Perhaps commenting on them here has added to that and maybe that is the wrong thing to do. As far as we are concerned I think all of us are simply trying to protect the right of peaceful demonstration and the right of peaceful meeting. I do not think we have any doubt about what the general public in the Republic think of the charges of police brutality. They were made here before on a number of occasions following demonstrations in this city and the general public were not prepared to accept them. I know there are guards who lose their temper. They would not be human if they did not but the 99.99 per cent of them in fact behave with remarkable restraint.
I believe there is no danger here whatever of the situation arising where a big body of people could claim they were treated brutally by the gardaí. For that reason, and particularly as the Minister has agreed with the point I made that people attending a meeting inside a building, are covered and that people attending a meeting outside the building are not covered by the amendment and if that will stand up in law—I assume it will or the Minister would not have said it—then I think this settles the problem as far as this amendment is concerned.
Perhaps it is a good thing what happened here in the Gallery this evening because somebody must have sponsored those people who came in here. If somebody did so then we should find out who did. All of us from time to time have taken responsibility for people coming into the Gallery and if somebody is so irresponsible as to allow people who are obviously, as those people were, from the moment they came into the Gallery, waiting for the opportunity to get their names and possibly their photographs in the papers then that person should be warned he should not do it and these people should not be allowed in again. If what happened here this afternoon has that result then perhaps it has been a good thing rather than a bad thing.
I do not want to delay the House any further on this amendment. As I say, what we are concerned with here is purely and simply a particular area depending on the distance from this particular building. If meetings are held, whether outdoor or indoor, a half a mile and one foot from this building they will be perfectly legitimate even though they may be designed for the purpose of influencing Members of the House. We are concerned only with the area within half a mile of this House. We are concerned with the question of influencing Members. There is a broad distinction, whether the Minister intended making it or not, between demonstrations held in the open within half a mile of this House and more likely to affect and influence the deliberations of Members and meetings or demonstrations held inside buildings and not in the open and consequently much less likely to affect or influence Deputies. By making the amendment and consequently giving somewhat more liberty to the section the Minister to my mind is giving less cause for complaint to those who would find the provisions provocative and charge against them that they are interfering with individual liberties and for that reason I adhere to what I said in the beginning that the Minister is doing the right thing in bringing in this amendment.
I should like to ask the Minister on this section if he has got in mind any particular timetable as regards bringing the Bill, when it becomes an Act, into operation or does he have in mind that there are any particular provisions of it that he will bring into force before other provisions?
At the moment, no. I have not really considered that aspect of it.
I am not objecting to the section. The only reason I am raising this is that generally speaking it is preferable to be definite and clear cut about those things. I would prefer the Bill to be so framed that it, or parts of it, would come into operation, on a particular day. There may be difficulties about that. If there are, then the provision in section 3 is understandable. I simply wanted to find out if that is so.
I should explain that we have got to look at this in view of the abolition of things like felony and so on and in view of all the old legislation that has been repealed we might find a necessity for some transitional period. It is for this reason that this section is there. Otherwise the Bill would, like all Bills, become law when signed by the President. However, it may be necessary in view of the vast amount of legal deadwood that is being cut off to include this section.
I do not know whether this is the ordinary wording of these sections but the way this is worded is:
This Act shall come into force on such day or days as may be fixed therefor by any order or orders of the Minister, either generally or with reference to any particular purpose or provision,...
I can understand "with reference to any particular provision" because there we are dealing with the provisions of the Act but I do not quite understand the reference to "any particular purpose". It would seem to imply that the Minister may have a designed purpose about which the House knows nothing or will know nothing.
I can assure the Deputy and the House that there is nothing sinister in this. I am advised that this is standard wording for a reform measure like this where one cannot say just now what particular sections might have to come into force before others. I am told that this is standard wording and the only reason for this section is that all this old legislation is going and, in view of the replacement of all the old definitions of offences and misdemeanours, we might find it necessary to take it in phases.
I move amendment No. 2:
In subsection (1), page 5, line 25, after "shall" to insert "be guilty of an offence and shall".
This amendment is designed for the purpose of being definite and specific in what we mean to do. Section 6 (1) provides:
Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be tried, indicted, and punished as a principal offender.
It seems to me that the wording of that section as it stands is a little bit odd. It might be taken only as a threat that aiding and abetting might be regarded as an offence. I am suggesting that the obvious purpose of this section is that aiding and abetting, counselling or procuring shall be an offence. I suggest, therefore, that we should be definite about it and that we should say that any person who aids or abets, counsels or procures shall be guilty of an offence and shall be liable to be tried, indicted, and punished as a principal offender. In other words, we should declare that aiding and abetting et cetera is an offence.
I should like to support Deputy M.J. O'Higgins on this matter. I think it would clarify the position. Part of the purpose of this Bill is to bring the law up to date and to get rid of old practices that have gone out of date and have become unnecessarily cumbersome. I applaud the Minister and the Department for the work they have done in that connection.
I had, in the course of my deliberately limited criminal practice, occasionally to appear in Green Street. I once had a case of abortion. It seemed peculiar to me that my client, who was a doctor, and had assisted at the abortion, was in the same position as the lady, who was the victim of the abortion and was charged with the same offence. I found it a little bit odd. I think the purpose of Deputy O'Higgins's amendment is to make it a separate offence and that if one person is charged with an abortion, and another person with assisting, it is not exactly the same and that one must address the jury in entirely different ways. The Minister would be well advised to make the position clear. I think there is nothing sinister here but this should be a separate offence, a statutory offence, rather than putting it in the old way that has been so long in criminal practice.
This is a common law offence, as Deputies opposite know. I have had this amendment examined by the draftsman who is quite satisfied that it is unnecessary, that there is no need to create the offence. The section deals with the mode of trial. The draftsman's view is supported, I think, by the fact that when they made the corresponding change in England they did not deem it necessary to create this offence. They accepted that it was there. This is really a drafting matter and I would suggest to the Deputy that it is not necessary.
I agree with what the Minister has said and I agree with his advisers that it is not necessary. My point and that of Deputy O'Higgins is that it is desirable. It is an old practice and here you are clearing up old wood and putting in new material. This is the time to make it a statutory offence. It would be much more definitive and much clearer. It is not necessary but it is desirable.
Will the Deputy leave it to me to consider its desirability?
From that point of view, I shall have another look at it. As the Deputy knows, it is an offence in common law and when they were doing this in England they did not make it a statutory offence. However, it may be a desirable thing to do and I shall look into the matter and see what can be done about it.
Amendments Nos. 2 (a), 12 (a) and 12 (b) seem to be cognate and may be discussed together.
I move amendment No. 2 (a):
In subsection (2), lines 36 and 37, to delete "(the onus of proving which shall lie on such other person)".
Section 6 (2) (b) says:
any other person who, knowing or believing that the offender has committed the offence or some other offence (being an offence to which there attaches a penalty of five years' imprisonment or a more severe penalty), does, without reasonable excuse (the onus of proving which shall lie on such other person), any act with intent to impede the offender's apprehension or prosecution——
such other person shall be guilty of an offence.
Would the Minister explain what exactly is meant by this subsection? It seems to me to suggest that if a person does not do what is known in this country as a Carey act he will in fact have committed an offence. That is something I should like the Minister to explain before I proceed to the other amendments. There may be a perfectly good explanation which I do not understand. Perhaps the Minister will give it to us?
It is provided in this section that a person who tries to impede the apprehension or prosecution of a person believed to have committed a serious offence is guilty of an offence, and that offence will have to be proved in all cases by the prosecution. Deputy Tully has referred in addition to the provision in the section which says in effect that even if a person has done this thing he will not be convicted if he can produce a reasonable excuse. Obviously it is up to him to produce a reasonable excuse. It would be impossible for the prosecution to produce a reasonable excuse. How could they? He might have a reasonable excuse which only he would know about. That is the reason I cannot accept this amendment.
It is an accepted legal principle that a person who is claiming to come within an exceptional category should prove that he is within that category. If there is an exception and he is within it, and particularly in the criminal law, the onus is on him to prove it. Speaking from memory, I think that before the Criminal Law (Amendment) Act was enacted there was a statutory defence in cases of carnal knowledge that the accused did not know, or had not reasonable grounds for knowing, that the girl was under 16 years. I am speaking from memory but I think that was in the law. The onus shifted to the accused to prove that he was within the exception. Such provisions have been running through all the law. If there is an exception the accused must bring himself within the exception. In this instance a reasonable excuse can only be proved by the accused person, by himself or herself.
Does it not assume that in the event of a person being charged, no matter what the evidence against him is, even though the evidence which the prosecution have is not good, unless he can prove according to this subsection that he did not commit the offence, that he is not involved, he is deemed to be guilty.
I always thought, again speaking as a layman, that a person was deemed to be innocent until proved guilty. As I read it—again I may be misreading it —it appears that what the Minister is saying is that an accused person, because he cannot prove his innocence, even though the proof of guilt is not very strong—it is only an allegation— must be guilty of the offence.
It is not a matter of proving innocence.
I should like to support Deputy Tully in what he says. We always knew—and we were fed on it when we were students as being a great principle of law—that a person was innocent until he was found guilty. I see throughout our statutory law here an effort made to erode that great principle on every possible occasion. This is another. The reason which the Minister gave is a practical reason from the point of view of the prosecutor. It relieves him of the very great burden of establishing the guilt of a person. Therefore it is in ease of the prosecution that it is put in.
I should like the Minister to explain to me how there can be any excuse, reasonable or otherwise, for any person impeding an offender's apprehension. What excuse can he have? You may do it but what excuse can you have for doing it? I do not see the point of the section at all. It seems to be rubbish: "a reasonable excuse for doing an act with intent to impede another person's apprehension or prosecution". If a person is guilty of an offence and the authorities are seeking to arrest him, what possible excuse could any citizen have for impeding them? It seems to me to be rubbish. Apart altogether from the point of view of proving it, what excuse, reasonable or otherwise, could a citizen have for doing an act which would impede or prevent the arrest of a person who is an offender?
I do not agree with Deputy Tully or Deputy Costello. Maybe it is a matter for speculation, but it does seem to me that it is at least possible that a person who knows that another has committed an offence may be under some physical or moral pressure from that offender. It could well be that the offender still had his gun in his pocket or in his hand. If the offender says: "If you let the Garda know I am here, or if you do not hide me under the stairs, I will shoot you or I will do something to your wife or family" that, to my mind, would be a reasonable excuse for someone covering up—if he felt he was in peril of his own life.
He is not impeding; he is not within the section at all.
By hiding the offender he would be impeding his apprehension. The other person involved does not have to apprehend the offender himself.
Is he acting with intent to impede?
All he has to do is something to impede the offender's apprehension or prosecution. There is no question of the other person referred to being guilty until he is proved innocent. The actual offence is the doing of an act with intent, as set out in the section.
Deputy Booth should read the section because that is not what it says.
I am perfectly happy to leave it as it is. It says, any person who does an act with intent to impede apprehension or prosecution. That is the offence: doing an act. That person is innocent until he is proved guilty. Even if he is proved guilty he still has a way out, if he can prove—and the onus of proof is rightly on him—that he had no alternative but to do that act, that he was under some sort of pressure. That can happen, to my mind. So the actual offence is not affected by this presumption of innocence. The presumption of innocence is still there. The prosecution in that case would have to prove the commission of an act but, having proved the commission of an act with intent to do what is prohibited, even then the accused has a way out if, in his turn, he can prove he had no alternative but to commit this offence. I think we are confusing the issue if we see the onus of proof being on the accused as an infringement of that sacred principle on which I was brought up too. It is not. This is a way out. It has nothing to do with the offence. The onus of proving that the accused had a way out very correctly, to my mind, rests with the accused.
May I make a suggestion that would meet both Deputy Booth's point of view and I think Deputy Tully's? If you delete the words that Deputy Tully wants to delete and put in the one word "voluntarily" the section would then read:
...any other person who voluntarily does ... any act with intent to impede the offender's apprehension or prosecution.
Yes, that would be very much the same thing.
Deputy Costello may have overlooked that with the repeal of the old law a gap will be created and that that is the reason for this section. For instance, there is the offence of being an accessory after the fact to a felony, that is to say, an offence committed by a person who knowing another to have committed a felony, aids him to escape apprehension and prosecution. That is being repealed and replaced. It is the first of several instances in the Bill where the abolition of a felony as such would leave a gap in the law unless statutory provision were made. This is the basis of the section in question.
Accessory after the fact in the existing law requires actual knowledge. Here belief or suspicion comes in.
Deputy O'Higgins made a contention about the onus of proof on the Second Stage of the Bill. I think he is in error. There is no question in the subsection of making an accused prove his innocence.
I am talking about the phrase in the first line of this sub-paragraph. It says: "Any other person who, knowing or believing." The only point I am making to the Minister on what he read out there himself is that accessory after the fact requires actual knowledge rather than mere suspicion or belief.
It is a question of proof. It is a question of whether the court, from all the surrounding circumstances, would accept that the case was made.
The point is that in the one case you have proof or what is deemed to be proof of knowledge, that I have knowledge of suchand-such a person committing an offence. Here a court is entitled to decide whether or not I believed, even though I might be wrong in my belief.
The sub-paragraph says:
Any other person who, knowing or believing that the offender has committed the offence or some other offence (being an offence to which there attaches a penalty of five years imprisonment...
That is going back to what would have been a felony in the old days. The provision continues:
...does, without reasonable excuse (the onus of proving which shall lie on such other person), any act with intent to impede the offender's apprehension or prosecution.
Then he would be guilty of this offence. There may be circumstances such as described by Deputy Booth where he did the act by compulsion. One could visualise other circumstances. For instance, it could be a man's wife who was involved—that the person who had committed the offence was being hidden by her or a relative or some person who was indebted to the criminal in some way. One can imagine reasons, other than the reason of fear in respect of themselves or their families, why someone would aid or abet a criminal. While the onus of proof is on the State, there is this exception by way of special defence which is available to the person charged with aiding and abetting and who has this reasonable excuse. Deputy Costello suggested that the insertion of the word "voluntarily" would have certain effects and that it would meet the wishes of the House. I cannot give an ad hoc decision on that proposition. I would want to examine its implications. However, this exception is there and the reasons can be such that nobody but the person involved would know of. This is the purpose of the exception. It is up to the person concerned to avail of the escape clause. However, I shall look at the suggestion put forward by Deputy Costello.
The problem is that a number of legal people who are used to dealing with this in the courts can view it from certain angles. I am glad to say it has not been viewed from the same angle——
Why is the Deputy glad about it?
Because otherwise the Deputy would agree with the Minister and he did not. Is that not a good reason? What I cannot understand or cannot accept is that, according to the reading of the subsection, if somebody, who knows or believes that an offender has committed an offence "does, without reasonable excuse ... any act with intent to impede the offender's apprehension or prosecution", unless he is able to prove himself that the excuse is reasonable, then he is guilty of a serious offence. If somebody commits a serious offence and an innocent bystander gets involved, the innocent bystander will be guilty of another serious offence if he is not able to prove to the satisfaction of the court that that is so.
The innocent bystander would not be doing any specific act to prevent apprehension.
Deputy Booth goes out to his garden, digs it up and plants it. He has not been in the garden for quite some time, but Deputy Booth's neighbour has killed somebody and buried him in it a few days before that. By digging the garden he gives the guilty person a perfect alibi. Nobody will ever think of looking there and, if they do, they come to Deputy Booth and ask: "Did you cover it up?" Deputy Booth will have to say he does not know, but he will have to prove to the satisfaction of the court that he was not trying to aid and abet his neighbour in committing an offence. This is a very serious situation. I do not want to hold up the discussion. The Minister said he will have another look at the matter. I would be prepared to accept the amendment suggested by Deputy Costello. Perhaps the Minister can suggest a better one, but I would not be prepared to accept the section as it is now.
I think Deputy Tully is quite right in this, but I think it goes even further than Deputy Tully thinks. Not only has the individual concerned to indulge in the exercise of providing a reasonable excuse but he has to prove that the excuse is reasonable.
This is not, to quote Deputy Tully, a question of doing a Carey act. It is not a matter of informing on someone. It is a matter of positively impeding the police. I want to make the distinction because the Deputy seems to have in mind the idea that this places an onus on everybody to inform on everybody else. That is not so. Section 6 (2) (b)——
We can come to that later.
any other person who, knowing or believing that the offender has committed the offence or some other offence (being an offence to which there attaches a penalty of five years imprisonment or a more severe penalty), does, without reasonable excuse (the onus of proving which shall lie on such other person), any act with intent to impede the offender's apprehension or prosecution,
such other person shall be guilty of an offence.
This is where a positive, overt act is done by some individual to prevent the apprehension of somebody.
It is alleged that it is a positive act. It may not be.
I am saying what the position is under the section. As in everything else, it is a question of fact for the court; it is a question of whether or not the alleged facts are proved or disproved. Sin cheist eile, as we say. This is the position here. If it would be simpler to adopt Deputy John A. Costello's suggestion I shall have that suggestion examined, but the intention is as I have stated.
The Minister would be well advised to consider Deputy Costello's suggestion very seriously. Deputy Tully has advanced some of the reasons why this kind of subsection is likely to tie people into all sorts of knots. I referred to that myself on the Second Stage. There is the danger that we are providing here for instant guilt. A person is charged. The set of circumstances out of which the charge arises, if unexplained, might obviously not only justify the court in thinking an offence had been committed but go even further than that. You have a set of circumstances. You have a charge. In effect, under this section, unless the person who is accused can himself prove that he has an excuse and can himself prove that the excuse is reasonable, without any definition of what reasonable is, he will be convicted. He must be convicted because, as the section stands, we will be declaring that he is guilty of an offence, and that is all about it. It would be a case of instant guilt.
I cannot for a moment agree with Deputy O'Higgins.
Cannot or will not?
The prosecution has, first of all, to deal with subsection 2 (a) in that a person has, first, to be convicted of an offence to which a penalty of five years imprisonment, or more, attaches.
No. He has not to be convicted of an offence.
It has to be proved.
He is the offender, not the person convicted.
What has got to be proved by the prosecution is that some other person has committed an offence. Then the prosecution has got to go on and prove that some other person knows and believes that the offender has committed that first offence, otherwise there is no question of a prosecution.
It is not knows and believes; it is knowing or believing.
Quite so, and the prosecution has got to prove that this other person either knew or believed that the offender had committed the offence. There is no presumption of guilt there. The prosecution must prove.
If they think or believe he is guilty, that is all that is required.
It is not a question of thinking. You have to prove to the court.
Deputy Tully thinks that if prosecuting counsel or a Garda officer says: "I allege that such and such happened" the court will accept it. Courts are not as gullible as that. The courts will say that you must first of all prove that an offence was committed, to which attaches a penalty of five years, or more, and, secondly, you have to prove to the court that the second person knew before the court knew or believed the offender had committed the offence. That will be quite an onus of proof on the prosecution. Thirdly, it must be proved that the person did some overt act, not just covering up but some overt act——
It could be an act of default.
No. One has got to do an act.
An act of default.
Holding one's tongue.
It is an act with the intention of impeding the offender's apprehension or prosecution: it will be up to the prosecution to prove that he had knowledge or believed that an offence had been committed and, furthermore, that this other person did some act and that that act was done with the intention of impending the offender's apprehension or prosecution. In all these cases the onus of proof is on the prosecution and it is only when it comes to the defence that the onus of proof on the defence comes in. A person may say: "I know that John Willie committed this very serious offence" or "I believed he had" and, by that time, the court knows darned well that John Willie had committed the offence, but the other person says: "I did this act and I did it with the intent of preventing the Garda arresting him, but I was under some sort of obligation"——
Deputy Booth is, of course, over-simplifying it.
I am stating the facts.
There is no doubt at all but that he will get locked up.
He will get locked up because you must not knowingly impede the forces of law and order. I am in favour of such a provision because I do not think anybody should do that; but cases can arise in which, for moral or physical reasons, a person may be under pressure of some kind and, being under pressure, may have some excuse for doing these things. The prosecution in each case has got to prove that he knew or believed that he did the act, that he had the guilty intention of doing the act, and that is quite a burden of proof on the prosecution. The burden on the accused is to defend himself by producing some good reason for doing something which was criminally wrong. I do not see anything in this. Even without the particular phrase, the onus of proof would lie on him anyway and I think it is only right to write it in clearly so that people should be fully informed.
To come back to Deputy Booth's garden. Deputy Booth, in all innocence, destroys evidence which would prove that there had been a grave in the garden.
In all innocence. I had no intent.
Allow me to finish. The Garda come along and dig up the garden and find the body. They say that Deputy Booth must have known the body was there. He could not have dug up the garden without knowing there was a grave there and he deliberately destroyed evidence and prevented or attempted to prevent the person who was responsible being caught. Deputy Booth, of course, was entirely innocent. How is he going to prove that, in fact, he did not know——
I do not have to prove that.
You do. The onus of proof is on the accused.
No. The prosecution has to prove that I knew there was a body there.
They could reasonably say there would be something strange about a situation in which a person; who would normally be used to going in and out of the garden, would not know.
Deputy Booth would say res ipso loquitor.
Res ipso loquitor does not arise here.
Deputy Tully has made a case that certain facts would be taken as speaking for themselves. If Deputy Booth were in the unfortunate position that the facts, as taken as speaking for themselves, are against him——
Is Deputy Tully in possession?
Yes. The position is simply that the Minister has now said he will have another look at it. That satisfies me. It does not, however, remove the body from Deputy Booth's garden without proving that he knew something about it.
It is embarrassing——
The Leas-Cheann Comhairle mentioned that a number of amendments were being taken together. I did not take a note of them.
Amendments Nos. 12 (a) and 12 (b) in Deputy Tully's name.
To be taken with amendment No. 2 (a)?
Yes, because it is a question, again, of onus of proof.
Is the Minister satisfied that having a look at this one will necessitate having a look at section 12. as well?
It is section 22 is it not—amendments Nos. 12 (a) and 12 (b)?
Amendments Nos. 12 (a) and 12 (b) relate to section 22.
I think, subject to Deputy Tully's agreement, they should be dealt with separately. Under section 22, we must consider also the provisions for arrest without warrant to which amendment No. 12 (b) refers.
Is it agreed that we should take amendments Nos. 12 (a) and 12 (b)?
Yes, I think that is so.
For the record, I want to make it quite clear that I cannot at all accept the interpretation of Deputy O'Higgins in relation to this question of instant guilt. I do not intend to repeat everything that Deputy Booth has stated. I would point out, however, that, if the defendant sits back and says nothing, the charge must still be proved to the hilt. To come back to Deputy Tully's body, they would have to prove that he knew it was there and was put there, and so on. There is no question of instant guilt. All these matters must be proved and accepted by the court before any question of this exception by way of reasonable excuse by the accused would arise.
Thinking over the word "voluntarily", suggested by Deputy Costello, I am inclined to think it might be more restrictive than the section now is. Take, for instance, the case I gave of a man's wife or close relative, or somebody like that. Under the section as it stands, they can give an excuse—let it be reasonable or otherwise: we could argue it. I am inclined to think this suggestion will prove restrictive. However, I shall have a look at the matter between now and the next Stage.
My worry is— I thought Deputy Booth would refer to it—that circumstantial evidence could be accepted and a person could be made to prove that he was not guilty simply because there was circumstantial evidence to suggest that he was.
No, I do not think——
I think Deputy Tully misunderstands this point and that when he reflects on what I have said he will agree that in each and every case it must be proved that the person impeded the officers of the law.
Deputy Booth impeded the officers of the law by taking them up the garden path.
I want to ask the Minister some questions as regards subsections (5) and (6). Subsection (5) provides that, subject to subsection (6), no proceedings shall be instituted for an offence under subsection (2)—the one we have been talking about—except by or with the consent of the Attorney General. Subsection (6) provides, notwithstanding that the consent of the Attorney General is necessary, under subsection (5) for the institution of proceedings, that will not prevent a number of things. It will not prevent arrest; it will not prevent the issue of a warrant for the arrest of a person for an offence and it will not prevent the remand either in custody or on bail of a person charged with such an offence. It seems to me that the consent of the Attorney General to the proceedings should surely be capable of being secured if a person has been arrested and before he is remanded in custody. I just want the Minister to have a look at that. I can understand that the requirement regarding the Attorney General's consent should not necessarily prevent the arrest of a person but, once a person has been arrested, if he is being brought before a court, it seems to me it should be possible to obtain the consent of the Attorney General to the proceedings before the matter is dealt with, certainly on the basis of a remand in custody.
It reflects the fact that an arrest is a step in the legal process. Were it not for this section, a person could not be arrested even if, for instance, he were caught escaping from the country.
I accept that. I am not objecting to an arrest in that instance. It seems there could be a situation where a person is arrested and brought before a court and he is then remanded by the court's decision. All I am saying is that, once he has been arrested and brought before a court, it should be possible to get the consent of the Attorney General at that stage.
The Deputy is possibly right. I will have a look at it.
I move amendment No. 3:
In subsection (1), page 6, after line 55 to add the following:—
"‘Consideration' in this section shall not include the return to the owner of money or other property belonging to him."
I have put down this amendment to pinpoint a particular problem to which I referred during the Second Stage debate. The Minister may correct me if I am wrong, but the position, as I understand it, is that the return of a person's property out of which he has been defrauded is at present considered to be a reward under existing law.
It seems to me it is regarded as being a reward in the context of compounding a felony. This provision in section 7, it appears to me, is being brought in to replace the offence of compounding a felony. We have in subsection (1) (b) a provision that any person who, knowing or believing that the offence or some other offence (being an offence to which there attaches a penalty of five years imprisonment or a more severe penalty) has been committed, and that he has information— this is where Deputy James Tully might be interested—which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration, such other person shall be guilty of an offence.
I want to inquire from the Minister if "consideration" is on a par with "reward" as we know it at the moment. Does "consideration" also include the return of a person's property? The problem that exists at the moment, and which I think would exist under section 7 as drafted, is that, if a person is defrauded out of some property and wants to get it back, he probably is not concerned with the question of punishing the person who has defrauded him. He would be quite happy with getting his money back.
As I see it, at the moment and under section 7 he will not be in a position to go to the defrauder and say: "Give me my money back and I will forget about it". If he does that he is committing an offence under section 7, because if the return of his property is to be regarded as "consideration", then he is putting himself in the position where he is agreeing not to prosecute, to put it bluntly, or not to give information on which a prosecution may be laid provided he gets his money back.
I want to inquire from the Minister, one, if I am right in my reading of the section and with regard to what I think the effect of the section would be in those cases, and two, if I am right, if it would not be worth while considering some kind of a provision such as I suggest in my amendment. I find myself very often greatly in sympathy with people who are put in a position that the only reasonable way in which they can be compensated for the loss they have suffered is by keeping quiet—by agreeing "We will call it a day if you give me back my £100" or whatever the amount in question is.
It is very difficult to blame a person in that position if he agrees. On the other hand, the present position of the law, as I understand it, is that if such a person agrees, that agreement is to be regarded as reward—as accepting a reward—and the person puts himself in jeopardy of prosecution as an accessory. The same principle is being incorporated in section 7. It replaces something that is being done away with under existing law.
If the Minister does not consider that he can accept the amendment as it stands, I should like him at least to consider whether something can be done on these lines so as to exempt, at least from the full penalties of the law, a person who is merely trying to get back his property and who finds that the only way to get it back is to make a deal.
It is a very interesting proposition and a very tempting one if there are only two individuals involved—the person who is defrauded and the person who defrauded him. It is a relatively simple matter and it might be relatively better if no prosecution were taken, because there is the possibility of the defrauder being rehabilitated. If the injured party does not agree to a deal, it means that the case goes to court and the person who has got hold of the money or the property might succeed in passing it on to a third party or to the local bookie. In such circumstances the lives of two persons and their families are messed up. There is, however, the problem of where more than two persons are involved, where five or six people may have been relieved of property, where one person made a deal and is willing to pocket his money without taking a prosecution, letting the others who have been defrauded go down the drain. The person who defrauded those people might try to collect from other people before the court hearing takes place. Such circumstances take the taste out of the amendment, as I see it. The Minister may have some ideas on it which might meet both sides.
Deputies Booth and O'Malley and the Minister will appreciate that very often there is a third person involved. What happens is that the unfortunate person who has been defrauded goes to see his solicitor and the solicitor, knowing the law about compounding a felony, appreciates that the right thing for that person to do is to go to the police. However, the client says: "I am not interested in the police. I do not want to see this man in jail. I am interested in getting my money back." The solicitor is then faced with the prospect of writing a letter to the defrauder and he has to be extremely careful about the letter he writes. If he puts a foot wrong in the letter then the solicitor, in addition to the client, is putting himself in the position of compounding a felony. Perhaps I should not give away trade secrets as to how the letter should be written, but it is a problem as the Minister will appreciate.
Deputy O'Higgins forgets that under section 49, which I hope we will also pass, there is provision for a court to award compensation——
I am aware of that.
——to provide for the restoration of property and so on. The section to which the Deputy refers may be put somewhat in a false light if we assume that all that is involved is £50 or £100. We are dealing with serious offences here which are liable to a penalty of five years or more. We could say that even the theft of sixpence is a crime against the community but when we get up to the big stuff carrying heavy penalties we have to make it clear to the people that they must play their part in guarding the community against people who are doing this sort of thing. The idea that each offence is an isolated offence is something I cannot accept. A person who has defrauded another person once to a considerable extent is very liable to do it again and if he defrauds a person once and then makes his peace with that person and says "I am sorry, I still have the money and I will give it back on condition you say nothing" he will be terribly liable to do it again. We have to make it perfectly clear that any person who knows that an offence has been committed against him must not compound a felony by allowing the person to go unpunished. I know there is the danger and the temptation to which Deputy O'Higgins refers of the person saying "I will get back my money if I make a bargain quickly" but I do not think we should allow people to yield to that temptation.
It is all right until we are in that position.
I agree with Deputy Tully. It is much easier to pontificate for other people. That is why we have to put into the Act "You shall not do this". There should be no question of having an option as to whether you take Deputy O'Higgins's comparatively easy way out. I admit it has its difficulties, the easy way of getting money, but if a person has committed a very serious offence, which is not only against one person but which really is against the whole community, that person must not accept any consideration for covering up for him.
First, may I say that Deputy O'Higgins is right in his interpretation in regard to the words "for a reward". What he refers to would amount to a consideration. As I stated on the Second Reading, the points made by Deputy O'Higgins are ones with which I have a good deal of sympathy. I tried to have this matter examined objectively because my own experience had been the same as that of Deputy O'Higgins and I appreciate the difficulties which have been referred to. Broadly speaking, there is a lot to be said for dealing with the small case between the two people Deputy Tully mentioned, without going through all the panoply of the law and that it could be disposed of in that way but, unfortunately, having examined the matter, there is another difficulty and indeed quite a serious one. The argument made by Deputy O'Higgins — and which I would have made from my own experience—is quite valid in regard to a certain type of case but there are other types of cases that would raise serious difficulties and up to now I have not found the answer to this problem.
For instance, take the case of a large supermarket in which pilfering has been going on over a period. This may have been the work not alone of just one individual but possibly of two or three and even of some members of the public as well. Then you find some member of the staff being caught red handed, in flagrante delicto, and the employer says to him—we have seen something of this—“Our losses are so much over this period; you will pay back every penny of that amount”, whereas in fact that person might not have been responsible for one-twentieth of the losses.
I have been reliably informed that this form of blackmail, if I might call it such, has in fact been exercised in cases where pilferings or misappropriations have occurred and one individual, having been caught, has been made responsible by certain employers, under the threat of going to the Garda, for making good all the losses claimed over that period or over a longer period. The person caught is compelled to make good these losses or defalcations, or whatever it may be, under pain of prosecution.
That is the problem. On the one hand, it is accepted as far as I am concerned that there is a strong case for allowing the humanitarian employer to act, in some of the cases suggested by some Deputies, in accordance with what his instincts would tell him was right to do, and he would save the employee from what might have been a small temporary lapse and deal with him justly. On the other hand, we have the danger of a certain form of blackmail being used of the kind to which I have referred. As I said, candidly, I do not know the answer to this. At all events, I would ask Deputy O'Higgins to withdraw his amendment at this stage—the drafting could be improved if we decided to accept the principle that is involved. I would welcome suggestions from Deputies as to how the danger to which I referred could be got over. I am sympathetic to the basic idea behind the amendment but I am frightened by the type of case to which I have referred and if Deputies can help me in framing an amendment that would meet our wishes on this section I will have it considered.
I am not pressing this amendment. As I explained I put it down to have it discussed and in order to see if there is a solution. If the Minister is going to consider the matter further I will not press the amendment.
Subsection (1) of this section deals with the question of compounding an offence for which the penalty is five years imprisonment or more. Subsection (4) states that "the compounding of an offence other than treason shall not be an offence otherwise than under this section." That would appear to me—I may perhaps misunderstand what is intended— to leave a gap in the law inasmuch as it is an offence to accept consideration for not disclosing information relating to an offence that carries a penalty of five years or more. It would appear not to be against the law, not to be an offence, to accept consideration for not disclosing information about an offence that carries, for example, three years imprisonment. I do not know whether my reading of the situation is correct and that that is, in fact, what the law is and is intended to be under this Bill when enacted. There may be some good reason for it but, on the face of it, it seems strange that it is not an offence to compound an offence carrying less than five years imprisonment.
Arising out of this section, there is another point which occurred to me when Deputy O'Higgins suggested his amendment and it is something analogous to that. It is the problem that arises under the present law where there is a civil wrong—a breach of contract or a tort which is also a crime. Under the present law it is not possible to take civil proceedings in respect of that wrong until the criminal case has been disposed of. This generally arises in relation to hire purchase contracts where a car, being the subject of hire purchase, is dealt with by the hirer in such a way that it amounts to larceny. The owner of the car or other goods is unable to avail of his civil remedies against the defaulter until the State have had recourse to their criminal remedy against him. That often takes several months, quite understandably. On the expiration of the criminal proceedings the value of the civil rights of the party who has been injured may well have been entirely lost because the defendant may no longer be a mark or have any assets and the goods themselves may have utterly depreciated. Perhaps the Minister will be able to let the House have some information on those two points which I think are relevant to this section.
Unless the Minister wishes to deal with Deputy O'Malley's points at once, I should like to say something on this. I wonder am I a criminal in this context. When Deputy O'Malley has lived as long as I have he will probably have shared my experiences, which I do not doubt the Minister has had and which possibly Deputy O'Higgins has had. Imagine an old friend comes to you and says: "I got my young lad a job and, to put it plainly, there is a sum of £335 that he cannot account for. Here he is with me. I brought him to you for advice." My advice has consistently been to say: "The only remedy for a wrong is to put it right. You must take the risk of the consequences. You cannot sweep it under the carpet." We gather a few friends and we raise the sum required and go to the employer or whoever it is and state openly what has happened. We put the sum on the table and say: "The just man falls seven times a day. This young lad has gone wrong. We recognise that the wrong he has done to you must be put right. Here is the material with which to put it right. Will you let him quit and make a new start?" Is that, in the view of my colleagues in the Dáil, a crime? What would they do? Would they go to the police and ask them to prosecute him? That is one story.
There is also the story of the old and respected person who has had a long life of honest service and takes to drink. We all know such people. He becomes a dipsomaniac and suddenly does what he would never have done if he were not sick. He turns to you because you are his friend and tells you his problem, that he betrayed his trust and knows he has no defence except that he drank it and that it will be found out next Saturday. What do you do? Does the Dáil require me to call the police, or am I to be permitted to say: "The first thing is to put right what you have done wrong. The second is to go to the man you have injured and make a full disclosure. You have sacrificed your right to expect his trust in future and you must do the best you can." That is the advice I would give.
I would be very grateful to the employer of an old and trusted servant if he said: "Let us set 40 years of faithful service against one lapse because you are a sick man. Let us get you into St. Patrick's for a while and have you dried out and straightened out. Perhaps you will put the whole thing behind you." Is that to become a criminal offence? Does any of us think that is a criminal offence because, if so, I have done it several times, and I think with uniform success; but, even if it was not always successful, the person to whom I spoke on behalf of the delinquent was never asked by me to give a reference. I am not suggesting that Deputy Booth is unsympathetic. He knows the situation.
I have had it myself.
You accept the fact that the unfortunate fellow has fallen flat on his face, must carry the ball and chain around with him until he gets a new job and justifies some subsequent employer testifying to his excellence in his subsequent employment and must go looking for a job without a reference.
The most awkward thing is the position of the employer, not the adviser.
I take it Deputy Booth and myself are the kind of people who do not want to break the law. Therefore, as far as I can see, in the strict letter of this measure we would be compounding a felony inasmuch as we directed a delinquent to collect from his friends the amount that had gone agley, to put it on the table of the aggrieved person and to say: "I confess my fault. My friends have helped me to repair the damage I have done you. In consideration of that, will you agree not to prosecute me?" Does the House think I should have said to the delinquent: "You have apprised me of your crime" and reached for the telephone to call the Garda? I confess to the House that, if that is the law, I have broken it repeatedly, and I intend to go on doing in the future what I have done in the past.
It is a relatively small matter. It is a felony of the old term. It will carry a five year term of imprisonment under the proposal.
I do not wish to press the case too hard because I am perfectly certain that both the Minister and Deputy O'Higgins had these things in mind. I know how difficult it is to draft a law for the hard case, and to do so is bad law. At the same time, I would direct myself principally to the younger Deputies, who see things in black and white and are mainly concerned with making things crystal clear and unambiguous. But they sometimes forget that human life is not so simple and there may arise a case under which a good person, for all sorts of reasons, will find himself in trouble.
There cannot be any question of one saying to persons who are in trouble: "Forget about it; you got away with it, so say nothing." One must say to them: "Your first duty is to put right what you have done wrong and your second duty is to go openly, face the consequences of this action, and, if the person you have injured is prepared to take a charitable and understanding view, I shall do everything I can to persuade him to do so. But there is no use pretending that I can ask him to give you a reference as being an honest and trustworthy person because that is something which would involve him in doing as great a wrong as you have already done. I shall not seek to set the criminal law in motion in view of the fact that you have recognised your offence and that there is an extenuating circumstance and that your friends or yourself are now in a position to repair the wrong that you have done."
I do not think that any responsible Deputy in this House wants to make that advice a criminal offence. As I have said, I recognise the Minister's sympathetic approach to the problems that this section may create but, perhaps, when he is looking into the particular technical problem that is raised by Deputy O'Higgins's amendment, he will also bear in mind the wider question of either the young person in trouble or the old and trusted servant who has broken down, usually through drink, and who has destroyed a long and honourable career. One hopeless lapse of this character, as any experienced person knows, is a symptom of sickness rather than a criminal tendency on the part of the person concerned.
As I understand it, Deputy O'Malley is, in effect, asking: "Why do we not prohibit acceptance of a reward for silence in respect of less serious offences?" Of course, the answer is that there was never an offence of compounding a misdemeanour. The provision arises out of the abolition of felony and it is not considered necessary to extend it to lesser offences. Deputy O'Malley spoke also of hire purchase contracts and so on. These are questions for the civil law and not for the criminal law with which we are dealing in this Bill.
I have great sympathy for the type of case that Deputy Dillon has mentioned and it is that type of case that we had in mind when we were discussing the matter on the Second Stage and again here on this occasion.
If I can find a formula that covers this type of case without leaving wide open the danger of the blackmail to which I have referred, I shall be very glad to do so. I must say that up to now I have not been able to put my finger on a way of doing this. The idea behind what has been said here by Deputies Dillon, O'Higgins and Tully has my full sympathy and if any of us can find a way of meeting the difficulty to which I have referred, I shall have it examined and I shall listen to any suggestions which Deputies may have as to how we might deal with the odd lapse or the minor or exceptional case and, at the same time, rule out the danger of this pernicious practice that I am told exists.
I move amendment No. 3a:
In subsection (1), line 46, before "he may" to insert "within the previous seven days".
Section 12 (1) says that:
Where a member of the Garda Síochána, with reasonable cause, suspects that an offence to which there attaches a penalty of five years imprisonment or a more severe penalty, has been committed, he may arrest without warrant a person whom he, with reasonable cause, suspects to be guilty of the offence.
In my amendment, I suggested that the words "within the previous seven days" be inserted. As it stands, this section is far too wide. It appears that a garda can arrest anybody without warrant at any time. This is something which I do not consider to be desirable. There should be a limit to arrest without warrant. If a garda meets somebody whom he believes has committed an offence and if he knows the full circumstances, seven days seems to be a reasonable time. I see no reason why he should not be entitled to arrest that person but I do not think it reasonable that a garda can at any time arrest without warrant somebody on the street whom he suspects of having committed a crime. All that is necessary is that the garda suspects the person of committing an offence and therefore that puts the warrant in his hand. It is as good as a warrant. I feel that this is not something which should be written into the law in this Bill.
I think Deputy Tully misunderstands the position. The provision to which he refers is as nearly as possible the same as the existing law. The existing law allows arrest without a warrant on reasonable suspicion that a felony has been committed. The amendment restricts that to where the offence is committed within the preceding seven days, if I understand correctly what the Deputy suggests. The question of when the offence is committed is not really the important factor. What is important is when the gardaí obtain evidence to justify a charge. For instance, this could be a murder charge and they might be collecting evidence for quite a while. It could be a charge of robbery or larceny or some other charge like that.
The gardaí investigation might be going on for weeks or even months and it might quite suddenly lead to a detection. In such a case immediate arrest would, of course, be vital to prevent the escape of the offender who now knows he is detected or knows, as they say, that "he is on his heels".
The Deputy will appreciate that if this seven days limitation was inserted it would, from a practical point of view, rule out the operation of the provision in many cases. The gardaí may have their suspicions but it may take them weeks to get the necessary evidence to enable them to make an arrest. Of course, the Deputy possibly was not aware of the fact that under existing law a person could be arrested by a garda on the mere suspicion of a felony. In view of that the Deputy will appreciate I could not accept this amendment which would be a major restriction on the existing powers of the gardaí in this connection.
I quite appreciate the position as far as the Minister has explained it but the whole point of the amendment is that investigations may proceed in the case of serious crime over a long period and it would be extraordinary, except in detective thrillers, to find a person coming up with a clue and somebody being able to put a finger on the person they think is guilty and making an immediate arrest. If they are following a trail over a long period, as the Minister has suggested, there is ample time to have a warrant prepared and the person should be apprised under that warrant.
Even if he had one foot on the mail boat?
If he has one foot on the mail boat the gardaí can find a reason for arresting him for having done or not having done something and I think Deputy Dillon knows of those circumstances also. However, to continue the situation where the gardaí have the right to arrest and they could have the warrant prepared if they felt it was necessary to do so, I do not think is the thing because it leaves everybody liable to arrest if the gardaí feel any suspicion.
Even Deputy Booth might be arrested suddenly and I would like to give him at least seven days break.
The gardaí must have reasonable cause for suspicion.
I have very little connection with the law or legal matters but in my time I have seen numerous cases where people were arrested and people claimed there was reasonable cause for suspecting them. I have known one or two people who very nearly got themselves hanged and there seemed to be reasonable cause but it transpired that they were not guilty and were not the persons involved. For that reason I feel the amendment would give protection. However, if the Minister feels strongly about it I will not press the amendment.
There are a couple of things the Deputy said which suggest that he does not appear to understand the legal requirements as they exist. The gardaí cannot get a warrant "on spec" nor can they get a warrant in advance. They can get a warrant only when they are able to swear information and to produce certain evidence. They may have their suspicions and they may suspect a certain person over a period. They may have been collecting their evidence and they may have a very good idea who the person is who did the job but it takes quite a while to get the evidence. It may be that, as Deputy Dillon mentioned, the person might have one foot on the boat—or, as is more likely nowadays, he might have one foot on the plane, which is a faster method of operation—and it may be only while he is on the way out that the gardaí get a final nail to put in that person's coffin.
That is what happens in practice.
The Deputy will appreciate that at present the gardaí have these powers of arresting on suspicion of felony without limitation as to time and that with the abolition of felony it is essential that the powers to be given in replacement should not be limited to cases where the offence was committed within the preceding seven days.
Just one final thing. Does this power of arrest apply to political offences or is there a different Act dealing with them?
It applies only to ordinary criminal offences. I should add, however, that whatever politics the man has, if he commits a crime which is the equivalent of a felony, he is caught under this Bill.
I move amendment No. 4:
In subsection (3) (b) page 9, line 11, after "intimidation" to insert "by the use or threat of physical force".
This amendment has to do with the word "intimidation" in subsection (3) of section 12. It is provided in this subsection that the police may arrest without warrant a person whom they find doing anything which constitutes or which the member of the gardaí reasonably believes to constitute an offence. The offences are set out. The first is an offence whereby, in the opinion of the member, human life is endangered or a risk of serious injury to any person or of serious damage to property is caused. The second is an offence involving the intimidation of another person.
I mentioned in the course of the Second Reading discussion that particularly having regard to the allegations of intimidation made against members of the NFA at the time of the farming difficulties some years ago it is of particular importance that there should be something tighter than the definition "intimidation". We shall not have time to discuss this at length this evening. I am suggesting in this amendment that the word "intimidation" should be qualified by inserting the words "by the use or threat of physical force". It will be appreciated that one could possibly by a stretch of the imagination regard such matters as canvassing a person to change his point of view with regard to a particular matter on the basis that if that person does not change his point of view support of some sort would be withheld, as intimidation. I am sure that is not intended. I imagine that what is intended is intimidation, where the actual use or threat of physical force comes into the picture. I suggest that that should be spelt out in the subsection and that it should be made quite clear that it is intimidation of that sort, which after all is intimidation which has immediate effects, that should give rise to the right to arrest without warrant.