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Dáil Éireann debate -
Wednesday, 23 Apr 1969

Vol. 239 No. 13

Criminal Justice Bill, 1967: Committee Stage (Resumed).

Debate resumed on amendment No. 4:
In subsection (3) (b), page 9, line 11, after "intimidation" to insert "by the use or threat of physical force". —(Deputy M.J. O'Higgins.)

With regard to Deputy O'Higgin's amendment I should like to say that on this issue there is not much difference between Deputy O'Higgins's view and my own. The draft, as it stands, means substantially what Deputy O'Higgins wants it to mean, so that the real question is whether any drafting amendment is necessary.

The Deputy makes the point that the word "intimidation" could be held to include certain types of canvassing for membership of an organisation. I agree with that—a threat of a boycott, for instance, is a form of intimidation in the ordinary meaning of the word. But, and this is the point, we are not speaking just of intimidation but of an offence involving intimidation. This, I think, makes all the difference.

Let us look at the wording of the Bill as it stands. First of all, it will be seen that the provision does not apply to cases where an offence has already been committed. It is concerned only with persons caught in the act, so to speak. Of course, one cannot speak with confidence of a person committing an offence until the court has found him guilty and so the section has to speak of the situation in which the man is doing something which the Garda reasonably believe to be an offence. This does not affect the point I am making which is that the provision relates to acts in progress and not to actions that are already completed. This is important because it limits the type of offence to which the provision can relate.

Secondly, the words used are "an offence involving the intimidation of another person". What I want to mention here is that it does not describe intimidation as an offence nor does it suggest that intimidation is an offence. In fact, intimidation, by itself alone, is not an offence at all. There must always be something more. Therefore we have to look at the section and see what the words could or might apply to.

What offences could it apply to? Assault might seem the obvious one but in fact assault is covered by another provision, namely, paragraph (d). The offences it applies to are very few.

There is a common law offence of intimidating witnesses in judicial proceedings. Presumably there will be no argument about the desirability of allowing an arrest of a person in that case, and especially when, as will be seen, the arrest is permissible only where it appears to be necessary to prevent a continuation of the offence.

There are some other offences that could be said to involve intimidation but that are more usually classed under the head "menaces". They either involve threats of personal violence —which the Deputy accepts as justifying arrest when the offender is caught in the act—or they involve threats by letter or the like, in which case the conditions required by subsection (3), as a preliminary to the arrest, could not possibly be satisfied. Besides, in practically all of these cases there is a power of arrest under other provisions of the law, for they are felonies carrying heavy penalties.

This leaves the only other offence that is of any significance under this head—and this is the one that matters in the present context. The relevant Act is the Conspiracy and Protection of Property Act, 1875, and the offence is the intimidation of a person or a member of his family with a view to compelling him to do something which he is legally entitled not to do, or with a view to compelling him not to do something that he is legally entitled to do.

This, then, is the provision that we have to look at and the point to be made about it is that the word "intimidation" in that provision has already been the subject of judicial interpretation. As a result of this, it is established and well accepted that "intimidation", in the context of the 1875 Act, is limited to the kind of intimidation that would justify a district justice in binding over the intimidator to keep the peace. Primarily, this means a threat of personal violence, which is what the Deputy's amendment speaks of, but it also could include a threat of damage to a person's property, and I think it is right that the provision should extend to this.

The net effect of what I have said is that, while I would not go so far as to agree that the word "intimidation" should be restricted to threats of personal violence, it is in fact already limited, under the Bill as it stands, to intimidation which involves either a threat of personal violence or a threat of damage to property. In fact, I expect that the Deputy would agree that it should extend to threats of damage to property, so that the net question is not one of substance but one of drafting. The legal advice I have is that it is quite unnecessary to state this and as I am sure Deputies will appreciate, there are sound and serious reasons why one should not indulge in what I might call over-elaborate drafting. Basically, the problem is that if you try to define every word you use, no harm may be done in the immediate context but great harm may be done to the construction of other sections or even other Acts of Parliament.

My legal advice is that it is better to leave it as it is and that it applies only to a very restricted number of cases.

As I understand the Minister's very learned contribution he agrees that what he wants to do is what I suggest he should do by means of my amendment but at the same time he thinks it would be better not to do what I suggest he should do. It seems to me to be cockeyed. The Minister concedes, as I understand it, that the intention of this subsection is that the power of arrest without warrant in relation to offences which involve intimidation should be exercised only if the intimidation which is observed by the Garda is intimidation of a sort which is likely to result in physical violence to a person or damage to property.

What I am suggesting to the Minister is that that should be made quite clear and that he should spell out in the subsection that the only cases of offences involving intimidation in which the power of arrest will be given to a garda are offences where the intimidation involved is by the use or threat of physical force, that means obviously either to a person or to property. This matter can be of considerable importance. The Minister has given a learned statement of the law as it exists at the moment. We are changing the law now. We are giving a power of arrest without warrant to garda officers in particular instances. The particular one we are concerned with here is where an offence involves intimidation.

I have a very clear recollection, and I think most Deputies in this House will have the same clear recollection, of time after time Government speakers standing up in this House and alleging that members of the NFA were guilty of, or were involved in, intimidation during the troubles in the agricultural world some months or some years ago. If an allegation of intimidation is made by a Government Minister against members of a vocational organisation, such as the NFA, is not that tantamount to saying to the Garda, in the context of this section: "So far as those boyos are concerned you have power to arrest them without warrant, and go ahead and arrest them without warrant." That is the kind of situation I am concerned with in this amendment. That is why I want to have it spelled out in this section that the power of arrest without warrant, so far as an offence involving intimidation is concerned, will exist only where it appears to the garda concerned that there is the use or threat of physical violence involved.

The word "intimidation" has two different meanings in the sense that the statutory word "intimidation" must have certain elements in it. Under the law as it stands there has to be a threat of physical violence, and so on. The word "intimidation" is used by the ordinary man in the street in a rather different sense from the legal definition of "intimidation" as we know it. I can give many instances. For instance, where people were told that, if they did not do a certain thing, or join a certain organisation, their milk would not be carried by the local contractor, or words to that effect, or a shopkeeper was told he would be boy-cotted unless he produced certain funds, that is the kind of thing which is regarded by the ordinary man in the street as intimidation. What I call the legal man's definition is a different matter.

The section provides:

A member of the Garda Síochána may arrest without warrant a person whom he finds doing anything which constitutes, or which the member reasonably believes to constitute, an offence, being—

(a) 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,

(b) an offence involving the intimidation of another person,

(c) an offence involving damage to property or involving drunkenness in a public place or disorderly conduct in a public place, or

(d) an offence involving a breach of the peace or any other conduct which, in the opinion of the member, is likely to lead to a breach of the peace,

if an arrest is, in the opinion of the member, necessary to protect human life, to prevent serious injury to any person or serious damage to property, to prevent the continuation of the offence or to restore or preserve the peace.

He must have this in mind to operate this section. As I have said, I am advised that, as the section stands, it is unnecessary to state what Deputy O'Higgins wants to state, and that the section, as drafted, has built into it in reality the conditions which Deputy O'Higgins has in mind.

Listening to Deputy O'Higgins making his point I did not think there was much in the amendment but, listening to the Minister's reply, I think he has made Deputy O'Higgins's case for him. I assume he was talking about the NFA when he talked about someone being told that, if he did not join a certain organisation or do something they wanted him to do, his milk would not be carried. According to what the Minister said, the man who said that should be arrested. According to the Minister, he leaves himself open to arrest. It is only a short step from that to the trade unionist who goes on strike and says: "We are not going to load a lorry," or something like that. According to what the Minister said, he leaves himself liable to arrest. That is the interpretation which the Minister appears to be putting on this, that that is intimidation.

I am sorry. I was explaining what intimidation means to the ordinary layman as distinct from intimidation as defined by law. That is what I was trying to explain.

What is the legal definition?

Do not forget that in this House I heard the Minister on more than one occasion, and some of his fellow Ministers, allege that that sort of thing was intimidation. Early on, many of us thought this Bill was in many ways aimed at a certain organisation. The Minister said it was not, and that it was a tightening up of the law. Now it appears to me that our first impression was right, and that the idea is that no one can open his mouth in this country or he can be charged with intimidation and can be arrested without a warrant. It appears to me that that is the argument the Minister is making.

There seems to be some confusion here. We are not dealing with the offence of intimidation. This is entirely different. What we are dealing with is the power of a garda where he is satisfied that an offence has been committed involving intimidation.

Which he reasonably believes.

An offence involving the intimidation of another person.

I agree that what the Deputy is saying is correct. That is much wider than if there was an offence of intimidation in respect of which a charge was being made.

I am trying to ease Deputy Tully's mind. It is not a question of creating the offence of intimidation. The Minister made that clear already.

It is calling intimidation something which is not an offence.

No, it is saying there has got to be an offence against the law which also involves intimidation and, further, which is of such a nature that it is necessary to arrest the offender in order to protect human life, or to prevent serious injury to any person, or serious damage to property.

What about (3) (b)?

That is what we are dealing with, but (3) (b) is linked with the concluding phrases of the subsection. First of all, there has to be an offence. Secondly, intimidation has to be involved, and it must be of such a nature that there is a danger to human life.

There is no right of arrest without warrant unless the arrest is in the opinion of the garda necessary to protect human life——

I was carrying on. It must be necessary to protect human life, to prevent serious injury to any person, to prevent serious damage to property, or to prevent the continuation of the offence, or to restore or preserve the peace. All those have got to be satisfied before there can be a valid arrest without warrant. It seems to me that we are getting sidetracked into a definition of what intimidation may be. We are dealing with an offence which has the aggravating factor of intimidation in it, to such an extent that there is a danger to human life, to property, or to the preservation of the peace, and so on.

The "and so on" is important.

It is very important. It is the "and so on" which limits the powers of the Gardaí. It does not extend the powers. It restricts them because they have to be able to show that they acted to protect human life, or to protect property, or to prevent breaches of public order and so on. There was mention of milk contracts. That will not endanger human life or property, or lead to a breach of the peace.

No, but it might be a continuation of an inoffensive offence.

There is no such thing as an inoffensive offence. There has got to be an offensive offence in the first place which not only is an offence in itself but also involves intimidation. There is quite unnecessary confusion over this.

The Deputy has certainly not clarified it.

Possibly the Deputy was not listening.

Surely it would be essential to make some amendment to limit the interpretation that can be put on "intimidation" within the framework of this Bill? Deputy O'Higgins's suggestion is rational. I do not know what the offence of intimidation as such is, despite the fact that I have had many years' experience in criminal work. The feeling I have about this type of legislation is that there could be extensive abuse under it as a result of which arrest without warrant could be used even as a temporary device to get people away, in perfectly lawful situations, from what they are trying to do.

If the Minister is in earnest in saying that he wants the kind of thing that is suggested by Deputy O'Higgins, then we have reached a stage where, if that amendment is not satisfactory to him, we should be able to agree between ourselves on a limitation that could be put on the bald words in the statute. When Deputy Booth talks about the extension in the concept of the Act as referring to the endangering of life, damage to property and so on, that is, to my mind, only a very simple escape valve to justify the situation post hoc, not ad hoc.

I should like to make a suggestion by which all the matters that have been causing trouble may possibly be resolved. The Minister may not be able to answer this now, but I think it could be decided in this way: what instructions will be given by the head of the Garda Síochána to the officers and members of the Garda when this Bill is passed into law? They will be told: "Here is a section which authorises you to arrest under certain conditions." First of all, they have to have reasonable grounds for belief that an offence has been committed, and then that the offence involves intimidation. I get the impression from the Minister's statement that there are only two offences really that come within this. This is a matter that could be tested by reference to the instructions given regarding it.

There is one point on this general section which might not be strictly relevant but which I think is relevant indirectly. As far as I understand, there have to be four ingredients before a member of the Garda can make an arrest. First of all, he must reasonably believe that the matter constitutes an offence; there must then be an offence; there must also be the consideration that such an offence involves intimidation; and then he must be of the opinion that it is necessary to protect human life and so forth, as in the final words in the subsection.

The first part of the section says he must reasonably believe, and that can be tested in court; it is a safeguard that is very properly put in here. However, it is weakened to a very considerable extent by the fact that the words "in the opinion of the member is necessary to protect human life, to prevent serious injury to any person or serious damage to property, to prevent the continuation of the offence or to restore or preserve the peace." In order to allay rather considerable disturbed feelings about the section and the proposed extension of the powers of arrest that have been given by this Bill, I would suggest to the Minister that he might delete the words "in the opinion of the member" or that he should at least consider it between now and the next Stage of the Bill. As I say, there is a safeguard in the fact that a member of the Garda cannot arrest without reasonable belief. He would have to produce that reasonable belief in court, but that safeguard is largely nullified by the fact that his opinion cannot be tested. If he says "I was of the opinion" he cannot be cross-examined on that. That is final and conclusive. There was a legal case years ago in which a man was hanged as a consequence of a clause that was passed here in a hurry. The word "opinion" was incorporated and the man was hanged on that account.

The Minister should, as I have suggested, get the exact words of the instructions that would be given by the Commissioner to the Garda when the Bill becomes law, and also consider deleting the word "opinion."

Perhaps I should emphasise that it is established and well accepted that intimidation in the context of the 1875 Act is limited to the kind of intimidation that would justify a district justice in binding over the intimidator to the peace. This has been so judicially defined and primarily it means a threat of personal violence, which is what Deputy O'Higgins's amendment speaks of. It also includes a threat of damage to a person's property, and I think it is right that provision should extend to this.

The amendment would extend to that.

It does, as it is. There are a couple of important points that seem to be missed. One is that there is no question of arrest unless a charge can be brought.

That is not so.

I am telling the Deputy that this is so and that this is the law.

I am sure the Minister means what he says, but that is not what the section says. If the garda reasonably believes that even though there is, in fact, no offence——

Yes, but in every case the question of the arrest of a person is a process in the legal steps of charging that person. Another important point is that there is a serious objection, legally speaking, to spelling out something that does not need to be spelled out. If we spell this out here we will call in question the meaning in other Acts in which it is not defined. We have intimidation interpreted under the 1875 Act and the point made about changing the law is really misconceived. We are not changing the 1875 Act in which the word "intimidation" is used, without definition, but, as I said, it has been legally interpreted and is quite definite. As far as Deputy Costello's suggestion is concerned, I will have the wording re-examined. One of the best-known rules highlighted in the Garda code is that, so far as the criminal law is concerned, intimidation has been legally interpreted. I have given the House the quotation. The instruction that would go out would be even more specific after this section is passed. It would be limited in practice to one offence actually. That is the 1875 Act, the relevant portion of which I have read. There is possibly something in the suggestion Deputy Costello made in regard to his fears about the word "opinion". I will have that examined. Possibly if the words "reasonable belief" were substituted that might meet the Deputy's objection.

I am obliged to the Minister for agreeing to consider my suggestion that he should change the word "opinion". What he has said now will go some considerable distance to calm my fears in regard to paragraph (b) of section 3.

Deputy Costello is, as usual, approaching this in a most generous manner. The Minister's comments do not, however, go any great distance in solving my doubts about the section. I have no doubt the Minister is absolutely bona fide, as was Deputy Costello in making the suggestion, that an instruction to the Garda Síochána will in some way settle the fears or allay the doubts with regard to the wording of the subsection. No doubt Deputy Costello, in making the suggestion, and the Minister, in embracing it, both believe that an instruction properly worded will have the effect of ensuring that this section will remain on the rails from the point of view of enforcement, but I think both Deputy Costello and the Minister are overlooking the fact that an instruction can be changed at any time. It can be changed from day to day or week to week. I believe the only safe way to deal now with this matter is to spell out in the subsection what we mean and not leave it to the Minister of the day or the Garda Commissioner of the day to issue instructions as to the manner in which the particular subsection is to be implemented. For that reason I am not satisfied with the suggestion that we should pin our faith in regard to keeping this section on the rails on an instruction to be issued to the Garda Síochána. A number of Deputies, including Deputy Booth, and, I think, the Minister, have fallen into error in presupposing that before this power of arrest, without warrant, operates an offence must have been committed. Deputy Booth said that was a condition precedent to the operation of this section. That is not the position.

I amended it. The member of the Garda Síochána has got to believe.

Let us put out of our minds any idea that we are dealing here in every case with a person who has committed an offence. The section can operate where no offence —good, bad, or indifferent—has been committed because it is dependent on the reasonable belief of a member of the Garda Síochána.

That can apply just as well for a warrant.

Perhaps, but we are dealing here with the much more drastic step of arrest without warrant.

It is not more drastic.

This is a serious discussion.

Very serious.

Then let us get down to it. The first point to remember is that this section can be implemented where no offence—good, bad, or indifferent—has been committed. It can be operated where a garda reasonably believes—that is the phrase used in the section—that an offence has been committed. The garda may be entirely wrong in his belief. His belief may be entirely reasonable but, at the same time, he may be entirely wrong in that belief. I referred earlier to a certain kind of situation, the situation in which you have Government spokesmen standing up here and alleging intimidation against members of the NFA, or any other organisation. Is it not perfectly natural and reasonable to expect that members of the Garda Síochána throughout the country will have regard to what Government Ministers say in this House and, if they have to go into court and stand over their actions, will they not be in the position in which they would say: "I thought that there was an offence being committed because I heard Government Ministers quoted on television and radio——

——as saying that this was a scandalous situation and that all sorts of acts of intimidation were being committed all over the country?" Because of that the gardaí would be acting in a bona fide manner and in a perfectly reasonable belief and they would be entirely wrong.

And the court would tell them so.

The man would have been arrested before that.

As Deputy Costello says, the man would have been arrested before that. What use is it to him if the court then tells the gardaí that they were wrong in arresting him?

The gardaí would not do it.

I believe this is a reasonable fear and it is all the more reasonable in the light of the Minister's attitude; he agrees he wants this power to deal with cases where the intimidation concerned is intimidation which involves the use or the threat of physical force. It is for those cases the Minister wants this power incorporated in this Bill. That being so, why not spell that out? Why leave it in doubt? In my view, in any event, it will be in doubt unless we spell out what we have here.

There may be safeguards which are operated by particular Ministers. The Minister who is dealing with this Bill has, as I understand it, indicated to Deputy Costello that the safeguard which Deputy Costello suggested would be implemented in the direction given to the Garda. Please God, without wishing him any harm, we shall have a change of Minister because there will be a change of Government shortly. Possibly the next Minister will not take the same view as this Minister or possibly this Minister, if he were still there, would change his mind. Because of particular circumstances that might arise, you might have those kinds of safeguards, but surely the fundamental safeguard is to write into the Bill what we mean? There is even doubt as to what "intimidation" may mean.

The Minister's last contribution to the discussion seemed to me to revolve largely around the judicial interpretation of the meaning of "intimidation" under the 1875 Act. But, as far as this goes, we are not limited in the use of the word "intimidation" to the use or the threat of use of physical force. We can have verbal intimidation. We can have intimidation of the sort the Minister mentioned—a threat to withdraw services, threats of boycott, and so on. Let us take a simple example of a person making a political speech outside a church gate who might become somewhat abusive in his language. An offence might be committed in the choice of language he uses. A garda, listening to it, might feel that this is a bit inflammatory, that this is likely to intimidate the person who is listening to the speaker from acting one way rather than another way. As I see it, it is not stretching things too far to think that the garda, particularly if he were encouraged by speeches of Ministers in this House, might thereupon feel he was entitled to arrest the speaker without warrant.

We have to guard against these dangers. It is not the proper implementation—I am using that phrase in the sense of the implementation that is intended by the House—but it is improper implementation of a section, and again I am using the term "improper" in the sense of a mistake in the implementation of a section, that we have got to guard against. What counts ultimately, if this has to be interpreted, is not what I say, is not what the Minister says, is not what Deputy Booth says, is not what Deputy Collins says, is not what Deputy Costello or anybody else says, but it is what is written into the Bill.

I have one further suggestion to make which the Minister might perhaps consider. Delete paragraph (b)—an offence involving the intimidation of another person—and put in the particular offences he wants covered, that is, offences under the Conspiracy and Protection of Property Act, 1875. Then we would know where we are.

I should certainly accept that suggestion. I consider it a very sound one.

While I shall examine any suggestion, I am not too sure that this would be the answer. Indeed, I do not believe it would be the answer. Taking the section as a whole, all of what is said in subsection (3)—a person who is found by a member of the Garda Síochána doing anything which he reasonably believes to constitute an offence involving threatened danger to life, threatened danger of serious injury to a person or of serious damage to property or intimidation by any person or breach of the peace or involving drunkenness or disorder in a public place—all of that is subject to the condition that the garda must be of the opinion not only that the person is in the act of committing the offence but that an arrest is necessary to put an end to the danger to life, property and so on, as the case may be. So far as the section deals with offences endangering life, it is meant primarily to cover cases where the danger is incidental; the garda would have immediate or unqualified power of arrest under the section.

That is a very good summary of the section.

I want to add to that and to re-emphasise that what Deputy O'Higgins is speaking of—"intimidation"—is mentioned in this section and that it comes from and has been defined in the 1875 Act and is limited to the kind of intimidation that would justify a district justice's binding the intimidator to keep the peace.

We all know, and the Deputy knows, that in such a case there is violence or a threat of violence and that this is a prerequisite as far as intimidation is concerned before this power could be exercised by the garda. I should like to repeat, because it arises at various points in this Bill, that we cannot spell out everything and that to attempt to do so could affect similar words in other Acts. I think Deputy Costello and Deputy O'Higgins will appreciate this point which always arises and particularly in a Bill dealing with the criminal code. This is a serious problem at all times for draftsmen of legislation. But the Deputies will appreciate that here we have—as far as "intimidation" is concerned—a word from the 1875 Act that has already judicially been defined and therefore it has that advantage. It means a specific thing as far as the law is concerned.

As far as the 1875 Act is concerned, it means a definite thing. This is a 1969 Bill.

I know. It was not defined in the 1875 Act. The point I am making, as I am sure the Deputy will appreciate, is that here is a Bill in which a word is used which already has judicially been defined. Naturally, having already judicially been defined, the same definition, the same interpretation, will be applied to the words as used in this particular section. This is the purpose of having it there in this form. Again, let me repeat that in any of these arrests, where the power of arrest is exercised under this measure, as it is under the existing law, the arrest is a precedent to a charge and that a charge follows. In fact, if it did not, the arrestor, if I might put it that way, would be facing certain civil proceedings. That is the position.

In regard to the last suggestion made by Deputy Costello, it is my own off-the-cuff view, without studying the implications of it, that it would not suit the purpose of the section; but I will have it examined between this and the next Stage.

The Minister has made a point and it is necessary to examine it a little bit further. The Minister keeps making the point that, so far as the use of the word "intimidation" in the 1875 Act is concerned, it has been the subject of judicial interpretation. He assumes from that— possibly rightly, but I do not want to be taken as agreeing with him—that therefore the reference to intimidation in this subsection is going to be interpreted in precisely the same way. The Minister may be correct in that, but I want to query it. It seems to me that it is open to the court in interpreting this Act, when this Bill becomes law, and coming nearly 100 years after the 1875 Act and coming in different circumstances, to examine this entire section and to try to ascertain from an examination of the section what the Legislature intended when they wrote into the Act subsection (3) (b), that there can be arrest without warrant where a garda reasonably believes that a person is committing an offence involving the intimidation of another person.

It seems to me that one of the factors which a court might take into account is that the Government of the day, through the Minister for Justice, resisted four square any attempt to ensure that the use of the word "intimidation" in this subsection should be qualified by it being spelt into the subsection that the intimidation concerned must be intimidation by the use or threat of physical force. Certainly, I would not be prepared to bet that in those circumstances, and having regard to the allegations of intimidation made against the NFA some time ago from Government benches, that a court is going to decide that the word "intimidation" as used in this context means precisely the same thing as has been judicially decided in relation to the use of that word in the 1875 Act. It is very dangerous to allow this subsection to stand unaltered. It is dangerous not to write into the Bill what we mean. I cannot see why we should not write in what we mean when the position, as I understand it, is that what the Minister wants to achieve is what is stated in my amendment.

All I can say to the Deputy is that my interpretation of the word "intimidation" is also that of those who advised me and that it can be construed the way it has been judicially construed. It is, perhaps, somewhat unfortunate that we started talking about intimidation in a non-legal way and it is possibly confusing some people because there are many things regarded as intimidation by the ordinary man that would not or could not be the subject of a charge, as the word is judicially interpreted.

There might not be any charge, that is one of the dangers here. This is a question of arrest.

Again my answer is that arrest is only one step in the process of being charged. If he is arrested he must be charged.

No, he must not.

This is the position of the law as it stands and it is the position here. In fact, recently I read a report of a case in England which involved an Irishman who was arrested for alleged drunkenness and the police sergeant or inspector told him to get out of the barracks. He said he would do no such thing and insisted on his right to be charged. He was charged and subsequently took an action for wrongful arrest and was awarded damages.

We are talking about here, not England.

I am telling the Deputy that this, in my humble opinion, is the law, with all due respect to the legal galaxy we have over there.

The Minister does not appear to look at the BBC programme "Z Cars" in which alleged offenders are habitually brought in to the barracks, interrogated and kicked out again without a charge being made.

People are brought in sometimes and may, by mutual consent with the police officer concerned, go out. I am not talking about that kind of carry on. I am talking about the legal position and the legal position is that, if you arrest, you must charge.

Broadly, that is the position. I cannot put it any further to Deputy O'Higgins except to re-state that my best advice is that the word "intimidation" as used in this section must be interpreted in accordance with the way in which the same word has been interpreted under the 1875 Act and that is the purpose of using it here.

Amendment put.
The Committee divided: Tá, 38; Níl, 58.

  • Barry, Richard.
  • Burton, Philip.
  • Clinton, Mark A.
  • Collins, Seán.
  • Connor, Patrick.
  • Coogan, Fintan.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, John A.
  • Creed, Donal.
  • Crotty, Patrick J.
  • Desmond, Eileen.
  • Dockrell, Henry P.
  • Donnellan, John.
  • Dunne, Seán.
  • Dunne, Thomas.
  • Esmonde, Sir Anthony C.
  • Fitzpatrick, Thomas J. (Cavan).
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • McAuliffe, Patrick.
  • Murphy, Michael P.
  • O'Donnell, Patrick.
  • O'Hara, Thomas.
  • O'Higgins, Michael J.
  • O'Leary, Michael.
  • Pattison, Séamus.
  • Ryan, Richie.
  • Spring, Dan.
  • Sweetman, Gerard.
  • Timmins, Godfrey.
  • Tully, John.


  • Blaney, Neil T.
  • Boland, Kevin.
  • Booth, Lionel.
  • Boylan, Terence.
  • Brady, Philip.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Briscoe, Ben.
  • Browne, Patrick.
  • Burke, Patrick J.
  • Calleary, Phelim A.
  • Carter, Frank.
  • Childers, Erskine.
  • Colley, George.
  • Corry, Martin J.
  • Cotter, Edward.
  • Crinion, Brendan.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Dowling, Joe.
  • Fanning, John.
  • Faulkner, Pádraig.
  • Fitzpatrick, Thomas J. (Dublin South Central).
  • Flanagan, Seán.
  • Foley, Desmond.
  • French, Seán.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James M.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Healy, Augustine A.
  • Hillery, Patrick J.
  • Hilliard, Michael.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lenihan, Brian.
  • Lenihan, Patrick.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • Meaney, Tom.
  • Millar, Anthony G.
  • Molloy, Robert.
  • Mooney, Patrick.
  • Moore, Seán.
  • Moran, Michael.
  • Nolan, Thomas.
  • Norton, Patrick.
  • Ó Briain, Donnchadh.
  • Ó Ceallaigh, Seán.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Smith, Patrick.
  • Wyse, Pearse.
Tellers: Tá, Deputies L'Estrange and T. Dunne; Níl, Deputies Geoghegan and Mrs. Lynch.
Amendment declared negatived.

If the House agrees, we could discuss amendments Nos. 5, 6 and 6a together.

We will discuss them together but have separate decisions.

I move amendment No. 5:

To delete subsection (4).

The Minister's amendment, No. 6, obviously shows that he is not satisfied with subsection (4) as it stands. My recommendation to the Minister is that the right way to deal with this is to take it out of the Bill completely and not to try some patchwork operation on it. When I say that, may I say at the same time that the Minister's amendment is largely a distinction without a difference when compared with the existing subsection (4) of the Bill?

This is the subsection which gives a garda the power to arrest without warrant in certain circumstances which are set out in the subsection. These circumstances are (a) where a garda is satisfied that the person has committed an offence involving a breach of the peace or has engaged in conduct that was likely to lead to the commission of such an offence; (b) he has reasonable grounds for believing that the person is likely to engage in further conduct whereby the commission of an offence involving a serious breach of the peace may occur, and (c) it is not reasonably practicable to apply for a warrant.

Objection, and very serious objection, has been taken to this subsection by various persons and bodies. I referred to the subsection on Second Reading. There are various matters which must occur to one straight away about this subsection. Under the subsection as it stands there is no time limit whatever imposed on the operation of the subsection. A member of the Garda Síochána may, according to the subsection, arrest a person without warrant when he is satisfied that the person has committed an offence involving a breach of the peace.

According to that subsection, an offence involving a breach of the peace which was committed at any time, maybe five or ten years ago, comes within the ambit of the subsection. There is no time limit whatever and it not only depends on an offence involving a breach of the peace having been committed at some time but even if a member of the Garda Síochána is satisfied that a person has engaged in conduct that was likely to lead to the commission of such an offence, he may arrest that person without warrant.

This Bill proposes that if a Garda officer takes the view that at some time in the past a person engaged in conduct that was likely to lead to the commission of an offence involving a breach of the peace, the Garda officer should have power to arrest that person without warrant even though no offence involving a breach of the peace was in fact committed and even though the conduct complained of might have been engaged in 20 or 25 years ago.

Therefore, the first complaint one has to make about the subsection as it appears in the Bill is that it is suggested that this very drastic power of arrest without warrant should be given to the gardaí without any time limit even though the circumstances may have been completely altered from the time when the offence was committed and even if there was no offence or if the conduct engaged in did not lead to an offence.

I do not think there is any way of dealing with a subsection such as that other than scrapping it entirely. That is what I suggest should be done. It is necessary, also, to operate the power of arrest, that the garda should have reasonable grounds for believing that the person is likely to engage in further conduct whereby an offence involving a serious breach of the peace may be committed. It might be suggested that some safeguard exists in paragraph (b) but who is to contradict a garda who states that he has reasonable grounds for believing what is contained in the paragraph, namely, that the person at one time engaged in conduct likely to lead to the commission of an offence, or, even though there was no offence committed, engaged in conduct that was likely to lead to the commission of an offence. If he says: "I saw that person who interrupted a public meeting 20 years ago attending another meeting at which the theme under discussion was `Boland must go"' surely he can then say that the mere presence of the man at that meeting, when the conduct complained of in the past was interrupting a meeting, was likely to give rise to such an offence in the future.

Is this a serious argument or is the Deputy just being flippant?

I am not sure that I should leave it to Deputy Booth to judge what is or what is not a serious argument.

I am just asking the Deputy whether he is being serious.

First of all, I am sure the Deputy has read the subsection.

Secondly, I take it that he has read the objections to the subsection. Thirdly, I take it that he appreciates the fact that the Minister himself is obviously not satisfied with the subsection. That penny has not dropped yet, has it?

My amendment is a drafting amendment, as the Deputy knows.

It will drop if the Deputy looks at the list of amendments. He will see that the Minister himself is proposing that this subsection should be amended.

Not substantially.

Deputy Booth at least is in agreement with me on one thing. Before he came in I made that point. Deputy Booth asked me if the case I had suggested of a person being guilty of disorderly conduct, or interrupting a public meeting, was a serious one. Let me direct his attention to the Explanatory Memorandum that was issued with the Bill. If he looks at paragraph 44 on page 7 he will find that it reads:

Subsection (4) supplements subsection (3), as regards breaches of the peace. It relates to a situation where there is, at the time, no breach of the peace but where there has been one (or a threat of one) and there is a probability that there will be a further, and serious, one. The situation envisaged is one where it was known that persons who had already been involved in a fight or scuffle——

a fight or a scuffle such as can very readily take place at a public meeting where enthusiasm goes a little beyond bounds. Let me say, in case Deputy Booth takes me up on it, that this is not a quotation from the Explanatory Memorandum.

—would be likely to come across each other again at some particular time or place in the near future and to renew the fight on a serious scale.

Surely Deputy Booth will appreciate that the example I gave of disorder at a public meeting is by no means stretching my imagination when one finds in the Explanatory Memorandum issued by the Minister in connection with the Bill that that particular situation is envisaged, where two people had been engaged in a scuffle and that they may meet again at some particular time or place and renew the fight on a more serious scale.

For good or ill many of the scuffles that have taken place in this country have arisen because of differences of political opinion. I do not think it is stretching the imagination to say that this section can be operated in the way I have suggested, that if a person at any time in the past—remember the important thing here and the really serious complaint against this subsection as it stands is that there is no time limit as to when the conduct was engaged in—engaged in conduct which might, even though it did not, have led to a breach of the peace and is likely to do so again he may be arrested without warrant. I think this is not oversimplifying the meaning of the subsection.

The Minister's amendment, which we are discussing with mine, is a distinction without a difference. The Minister in his interjection claimed that his is merely a drafting amendment. I accept that. In other words the substance, the meaning, the purport of the subsection as drafted is not intended to be changed at all by the Minister's amendment and consequently the objections—and there have been very real objections voiced to this subsection outside this House as well as inside it—will remain.

It has been suggested, and it is not stretching the meaning of the section too far, that this is the kind of section which may lead to a person being taken involuntarily into protective custody depending on the particular view that a garda may take at the time. The only way to deal with this is to throw out the section in its entirety.

I wish to support the amendment and very largely for the reasons advanced by Deputy O'Higgins though I wish to add one or two further of my own.

I gather from the Explanatory Memorandum that the purpose of this section in this part of the Bill is in a sense to codify the existing powers of the Garda in reference to arresting with or without warrant. I would be inclined to agree that codification is, perhaps, not technically correct, but that it is the intention to collect in this part of the Bill, and specifically state, what are the powers of the Garda in relation to arrests with or without warrant, leaving certain other powers still extant, such as statutory powers of arrest in relation to drunken driving and matters of that kind.

In the Explanatory Memorandum this section is dealt with on page 5. It is stated:

This section deals with arrests without warrant by the Garda Síochána. The powers of arrest it proposes to give are to replace both their existing common law and also some (but not all) of their statutory powers. The intention is that the section should provide for all the Garda powers of arrest without warrant that are relevant to crime in general (including breaches of the peace and the like) or that are relevant to other provisions in the Bill (such as the provisions about offensive weapons), but it is not intended that these powers should supersede the powers of arrest given in particular statutes dealing with particular offences—for instance, drunken driving.

I think I am entitled to deduce from that, that what the Minister wants is to have in this Bill a complete category of the powers of the Garda to arrest without warrant. I also deduce—and I think I am correct in doing so—that the powers contained in the subsection we are now dealing with are new powers and that they do not exist at present. In other words, he is creating new powers of arrest without warrant and, in doing so, he has not given to the House, so far, any reason why it is necessary for the Garda to have these new powers. The only reference I can find on the Second Reading of this Bill is where he said:

... we have set out not just to replace the existing provision whereby a person may be arrested on suspicion of having committed a felony, but to provide a comprehensive set of general rules governing arrest without warrant, ...

We in this House are entitled to know what is the necessity for these new provisions for arrest without warrant. I do not know what justification the Minister has for putting in these powers. He made no case to justify their requirement. He has not said that the Garda in the handling of crowds, or in dealing with demonstrations, or in dealing with the problems which they have to deal with at processions and demonstrations and matters of that kind, which are so common at present, are unable to deal with those matters effectively without these powers.

The House should not be asked to give new powers of arrest without warrant without a complete case being made to justify the insertion in this Bill of these new proposals. So far as I have been able to ascertain, the Minister has made no case for these provisions which would allow the House to judge and the country to determine what the reason is for the insertion of these clauses, other than what we all know happens when Departments are making proposals for legislation. It is said: "Let us put it in. It may be no use. We may never use it, but it is better if we have it." I can find no other reason than that. These things are commonly suggested for insertion when Departments are giving instructions about the drafting of Bills.

I want to know from the Minister why these powers of arrest without warrant are now being inserted in the Bill. What is the justification? He has not told us why these new provisions are wanted. This is a very drastic power. Arrest without warrant down through the centuries was considered in criminal law a drastic power to give constabularies or police authorities. If we are to do our duty in this House we cannot give any credence to these proposals unless the Minister can give us the reason why the Garda want them, and when they were not able to keep the peace or do their duty because they had not got these powers. I strongly suggest to the Minister that apart from the reasons given by Deputy O'Higgins with which I agree, in spite of what Deputy Booth said—I think they are powerful reasons which could be taken into account— the real reason why I object is that no case has been made to the Dáil or the country justifying the insertion in this Bill of completely new powers.

There are many other provisions of a drastic character in this Bill which have caused comment from various bodies. There is no doubt that these new powers of arrest have caused perturbation among certain bodies who have taken upon themselves the voluntary task or duty of looking after the civil and constitutional rights and privileges of individual citizens. The Minister probably will not agree. He has gone to the extent of producing at public expense a pamphlet dealing with the Criminal Justice Bill and some of its critics. I am not objecting to that. The Minister was probably right in doing it if he wanted to make his case —whether he made a good case is another matter.

This is a matter which we must take into account in this House in considering proposals of this kind. There has been created in the country a very widespread feeling of disquiet about the Bill. It has been objected to by many bodies. In the pamphlet the Minister referred to some of his critics. He mentioned some and dealt with them. He dealt with the Irish Association of Civil Liberties and the Citizens for Civil Liberties. He dealt mostly with those two bodies, but there were others. There were the Incorporated Law Society and the Bar Council. Recently a religious body took the unprecedented step of passing resolutions with regard to this proposed legislation. I would suggest to the Minister that there is undoubtedly in existence in this country at present a strong public opinion against this Bill. The Minister may disagree with the view put forward by these people. He is entitled to. He is entitled to answer his critics, just as they have the right to make the criticisms. I would go so far as to say he is bound to answer them so far as he can do so.

The point I am making is that even if the Minister is right in everything he says in this pamphlet and in other documents circulated in connection with the Bill, and in his speech on Second Reading, he is bound, and we are bound as representatives of the public, to take account of this strong public feeling against the provisions in the Bill. I am sure the Minister is convinced that these provisions are correct. Nevertheless, it is wrong for us, as representatives of the people in Parliament, to force something upon the people which is contrary to strong public opinion, and strong public opinion obviously prevails in bodies and amongst persons of repute that we are going too far in this Bill. I think it is wrong for a Government, and it is certainly wrong for a Parliament, to run ahead in advance of public opinion, not merely without public opinion having been prepared for it but also without there being such a degree of necessity from the point of view of the public right.

We should not go forward, in the face of such strong feeling among the public, with proposals which in themselves may be good and may be desirable but which are not essential at present. This country has done without these specific provisions; the British people have done without them and many other peoples have done without them. There has not been any suggestion that the gardaí cannot keep the peace and maintain public order and security without them. Perhaps a strong case could be made for these provisions of arrest without warrant, but no case has been made for them. In view of public uneasiness and disturbed feelings among people who genuinely hold these opinions the Minister would be well advised, and he would add to his reputation, if he said: "These things are required. I believe they are good, but in the face of public opinion, even though they are good, I do not think the country is ripe for them at the present time" and he should withdraw the Bill.

We are still forgetting a very valid point which the Minister made in reply to his critics at page 6 of this booklet to which Deputy Costello has referred, that the arrest is not the beginning and end; the arrest is only the first step in a process of charging a person with an offence. It seems to me that the Minister in his proposed amendment has clarified the position, but it does not appear to have changed the main principle. The main principle is set out in the Explanatory Memorandum quite clearly to the effect that under the existing law this matter could be dealt with by a member of the Garda if he had a warrant, but the only difference proposed really is that he now may proceed without a warrant where it is not reasonably practicable to apply for it.

The Minister's critics have got themselves worked up and got public opinion worked up to such an extent that everybody believes that this is now a most evil attempt by the Government to introduce widespread powers of arrest without warrant. That is not a fact. Supposing a situation arises such as Deputy O'Higgins has suggested and that a garda acts wrongly and irresponsibly, the case has to come to court and any garda who is caught out in this game of making arbitrary and unreasonable arrests will find himself in trouble with his superiors and may even find himself in trouble with the civil courts in a case for damages for wrongful arrest.

What good is that? I do not agree with the Deputy that the case must come to court but, even if it does, what good does that do the person who is hawked off to jail?

As in any case of wrongful arrest, he will have his action for damages if he has, in fact, been wrongfully arrested.

He may be wrongfully arrested under a warrant just as easily as without a warrant.

I do not see the relevance of that.

The Deputy is trying to make out that it is more fearful and more objectionable to be arrested without a warrant than with a warrant. I should not like to be arrested at all, but whether the garda has a warrant or has not a warrant would not make me appreciate his action any more or any less. What we are trying to deal with here is a situation where there is an element of emergency, where there is likely to be a breach of the peace and where it is not reasonably practical for a garda to leave the scene and try to get a warrant. However, if he acts irresponsibly he knows he will get "the works" himself. I trust the gardaí, and even if I did not trust them they have enough of an eye on promotion to know that is not the way to get it. We know members of the Garda are very reluctant to take action unless they know they have everything on their side. They will not take any risks, so I think the Deputy is working himself into a quite unnecessary state of agitation which really pivots on the whole question: may the garda arrest with a warrant or without a warrant? That is the beginning and end of it——

——unless the Deputy is going to say that the Explanatory Memorandum and the Minister's statement are wrong and that the member of the Garda Síochána would not be able to get a warrant for the arrest of a person in precisely the same circumstances. I believe that, as the law now stands, a member of the Garda could go and get a warrant and arrest a man in those precise circumstances.

Why not?

For something that happened 20 years ago?

That is utterly incorrect. There is no question of 20 years.

That is what the section says.

That is not so and the Deputy well knows it.

What time limit is on the section?

It is a question of hours rather than weeks. It is only if he cannot get a warrant——

If it was a matter of weeks or months, it would be perfectly practicable to apply for a warrant. That is your absolute time limit and the garda has to answer in court for his action.

I am surprised that Deputy O'Higgins and even more surprised that Deputy John A. Costello should have regarded this as a matter purely between the individual and the garda, full stop. It is the individual and the garda at the start and then the court. Apparently I have much greater respect for the courts than Deputy O'Higgins, and I do not know why. I believe that the courts are our final protection in this.

I believe this House is, and what we are doing here today is removing protection from the citizens.

We are not removing any protection at all. How can you say you are protecting the citizen by insisting on the issue of a warrant in a case of emergency? That is no protection for the citizen.

I am not talking about an emergency. I am talking about something that happened 20 years ago.

If a garda intends to arrest Deputy Booth for a breach of the peace and he cannot get him without a warrant, then he will get him with a warrant. I do not know whether that will be any great protection to Deputy O'Higgins. If the garda insists, then he will do it, and we are not taking away any protection. We are, in fact, giving additional protection in that, in a moment of emergency in which it is not reasonably practicable to apply for a warrant, a member of the Garda Síochána can act at once and take a trouble-maker into custody in order to preserve the peace. It is as simple as that. All these highfalutin reasons in defence of a principle not at risk merely confuse the issue.

I will not put a tooth in it: this is a bad section. It is an offensive section. No whitewash and no blandishments by Deputy Booth can alter the fact that this is something for which no case has yet been made.

Does the Deputy know what the law is at the moment?

I do. I practise it and I do a damn sight more in the criminal courts than the Deputy. I know exactly what the law is and I know the danger Irish people will run if we give powers of this nature not only to this Government but to any Government.

Power is not given to the Government.

Why is it necessary all of a sudden to have this kind of extension in the case of arrest without warrant? Let no one tell me that there is really no difference between arrest without warrant and arrest having got a warrant. The circumstances are completely different and perfectly well Deputy Booth knows that the person who is hijacked, who can be hijacked under this section on the caprice of a police officer——

In contempt of the court?

In contempt of the court is subsequent to this. This is done on the spot. It can be done for the worst possible motives. When one finds a Government seeking power for which there is no justification in our society one is immediately suspicious. There is no suggestion that up to this our police have not been able to act effectively to control breaches of the peace, demonstrations and everything else. Our police have been eminently successful in preserving law and order.

People are naturally growing sick of the repetitive invasion of liberties and rights. This is more of it. This is more of the dictatorship, whether it be in local government, in criminal justice or in the many other spheres of activity. This is fundamentally a bad section. I go further than Deputy Costello; I think the motive behind it is questionable and virtually dishonest. It is no good saying there is limitation of time. Where is the limitation? Where does the section stop the writ running? Where does the section protect the person who may be involved in something 12 months earlier and who goes to a meeting and finds himself in a Black Maria on his way to the local jail?

The Deputy appears to be unaware of even the six months limitation.

Where is the limitation?

Is the Deputy aware that there is a six months limitation?

We are not dealing with the six months limitation.

We have put the Minister on the spot. This is a bad section. The Minister got hammered by his own colleagues at the ÁrdFheis.

Three amendments are being discussed together. Our reason for imposing a limitation of 24 hours is the same as that advanced by other speakers in this debate. The Minister refers to the six months limitation. Surely this is new law. This will be written into the law, if this is passed, and therefore the whole question of limitation, if there is no limitation put in here, will arise immediately. I am sure the Minister would be the first to agree that if somebody is accused of doing something in breach of this measure, when it becomes law, it would be most unreasonable that such a person attending a perfectly peaceful meeting at a later stage should be arrested simply because a garda, to use the wording in the section, has reasonable grounds for believing that he is "likely to engage in further conduct whereby the commission of an offence involving a serious breach of the peace may occur". In what way can he have reasonable grounds? The previous subsection provides that a member of the Garda Síochána may arrest without warrant where—

he is satisfied that the person has committed an offence involving a breach of the peace or has engaged in conduct that was likely to lead to the commission of such an offence,

This whole section is based on surmise and the unfortunate part of it is that it puts the gardaí in a very awkward position because they will be given powers, to use the Minister's words, in which they will use discretion. But it depends on who has the discretion. The incidents that have occurred not so far away over the last few days show clearly what can happen if discretion is exercised by different people in different ways. It is perfectly reasonable, I think, to suggest a 24-hour limit. If the offence occurs within 24 hours it is likely to be a continuation of what the garda thought he saw previously. If it does not then it cannot be held against the person and he should not be involved at all.

I want to deal with some of the points raised by Deputy Booth. In describing some of his arguments as nonsense I was not trying to be rude; I was merely expressing my view that the argument he was making was not in accordance with the section and it is the section we have to deal with here. The point has been made, quite validly, by Deputy Collins and by other speakers, including myself, that there is no time limit imposed in this section. The Minister, by way of interjection, referred to the time limit of six months in the case of summary offences. That is quite irrelevant to the complaint being made. We are not talking about the case in which an offence is committed and a garda brings a prosecution within six months. The complaint is in relation to paragraph (a) of subsection (4). If the Minister and Deputy Booth study that paragraph they will see that the exercise of these powers of arrest, without warrant, does not depend on an offence actually having been committed at all. Consequently this question of six months is simply not relevant to the argument at all. It is set out here quite clearly that, if a garda is satisfied either that a person has committed an offence involving a breach of the peace or that he has engaged in conduct likely to lead to the commission of such an offence, he can arrest. It is not necessary that an offence should have been committed at all.

Mr. O'Malley

It is necessary.

Go bhfoiridh Dia orainn. Would Deputy O'Malley like to explain how, when a section says in effect that it is not necessary that an offence should have been committed but merely that conduct has been engaged in?

Mr. O'Malley

I would ask Deputy O'Higgins to read the subsection. If a garda is satisfied that a person has committed an offence involving either a breach of the peace or conduct that is likely to lead to a breach of the peace. The offence must involve one of these.

Deputy O'Higgins is in possession.

I appreciate the point Deputy O'Malley is making but, with respect, I think he is wrong. It is a question of parsing this. It is not if a person has committed an offence involving a breach of the peace or has committed an offence involving conduct likely to lead to a breach of the peace. There are two separate things here. The first is that he has committed an offence which involves a breach of the peace; that is one set of circumstances. There is another and entirely different set of circumstances, a set of circumstances where no offence was committed but where conduct had been engaged in which was likely to lead to the commission of an offence——

——and that is an offence.

Yes, it is, in itself.

It is, even under existing law. To be engaged in conduct likely to lead to a breach of the peace is an offence at law.

Possibly that is so. I accept the Minister's interpretation of that. However, so far as the subsection here goes, there need not have been an offence involving a breach of the peace—will the Minister accept that? Deputy O'Malley would not have heard the Minister, because he only nodded. There need not be an offence involving a breach of the peace: that is quite clear. These powers of arrest without warrant may be triggered into action if conduct had been engaged in that was likely to lead to the commission of an offence involving a breach of the peace—or likely at any time in the past. There is no question of any time limit there. If the action is triggered by an offence involving a breach of the peace, there is no time limit as to when that offence might have been committed. That is the major complaint against this section.

Deputy Booth thinks the whole thing is very simple. He has confidence in the courts. He has confidence in the gardaí. He thinks no garda will be foolish enough to get himself into trouble. He thinks that, if a garda invokes this section wrongfully, or it is found afterwards by the courts that he acted wrongly, the garda will suffer a black mark and possibly fail to get promotion on that account. With great respect to Deputy Booth, I think that that is simply not relevant to the argument here. Our concern is the powers we shall give. There is no question, to my mind, of a garda getting into trouble because what we are doing here is giving him the protection of this section. Is it not a question of saying that the garda, if he had time to do it, would have been able to get a warrant? It might be that a warrant would have been refused on the set of circumstances which the garda presents in seeking to issue a warrant. Here, however, we are putting the garda in a position that he may take a hasty, spur of the moment, decision and we are giving him protection if he does that. What can a court say to him, if it ever goes into court? I disagree with Deputy Booth and I disagree with the Minister that this must necessarily end up in court. I know the Minister has expressed a point of view—he expressed it in his reply to critics; he expressed it on an earlier section here —that an arrest is simply a step which must necessarily end up before the courts. That may be the ordinary practice. That may be what is intended but that is not what is in this section.

It does not have to be in the section. It is the invariable practice and the Deputy knows it.

Practices can be changed. We are changing practices in this Bill.

It is, in fact, the law.

If the Minister can satisfy me and the House that that is the law, then he wins that point in the argument, but he certainly does not win the argument under this section. Certainly, he does not command the confidence of the public in this section. Certainly, he does not command the confidence of the Press in this section. Certainly, he does not command the confidence of the various bodies which have taken the trouble to examine this Bill and have given their views in regard to this section. Only today, one of our daily newspapers commented editorially with regard to this Bill. I think it would be worth the while of the Minister and Deputy Booth to listen to what it has to say and to apply it in the context of the discussion we are having on this section. I shall not read all of it but it does say, in relation to the disturbances here yesterday:

As might have been expected, the Criminal Justice Bill has not escaped the attention of that large section of the community who are campaigning for civil liberty in the North. About a dozen young people in the public gallery who were quick to seize their opportunity were directed to leave after they had demonstrated against the introduction of legislation "such as the people in Derry are fighting against on the street."

Then the editorial comment goes on as follows:

There is just enough truth in the accusation that parts of the Bill resemble the coercive Public Order Act in the North to deepen the doubts that are already felt in regard to its more obnoxious clauses.

It continued:

The activities of the British Army in the North, for instance, will inevitably focus attention on the provision in the Bill under which civil prisoners may be transferred to military custody. This is a proposal which we have already criticised editorially and it has also come under fire from the Presbyterian Church, the Incorporated Law Society and other organisations whose views must be respected.

Then, it concludes as follows:

No matter how many amendments may be made to the Criminal Justice Bill during its consideration by the Oireachtas, the fact remains that basically the liberty of the subject will be curtailed to some degree when it reaches the Statute Book. Considering that the 26 Counties of Ireland, at any rate, can claim to be one of the most peaceful and lawabiding States in the world it could be expected that any legislation dealing with the individual should be liberalising rather than repressive, the deletion of offences from the penal code rather than the defining of new ones.

Will the Deputy give the reference, please?

It might embarrass Deputies opposite.

It might embarrass the Irish Times.

In fact, I am quoting from today's issue of the Irish Press.

That surprises nobody. The editor is the Deputy's pal.

We can hear that silence.

I do not have any shares in it.

He did not even get his facts right. They were not students. Members of Sinn Féin and the other subversives like Feeney of Grille were there.

This is what the second editorial in the Irish Press of today has to say in regard to this Criminal Justice Bill.

I do not pay any attention because we do not legislate through the Press.

It was only because of my desire to save the Minister and Deputy Booth any embarrassment or pain that I did not immediately jump in to give the source of my quotation but let me confess that I guessed I might be pressed.

Of all the papers the Deputy must think it is the one that carries the most weight here. Other papers had editorials, too.

I feel to some extent flattered that the views expressed in the editorial columns of the Irish Press should tally so closely with the arguments being put up by this side of the House.

I should have thought that it would have been more of an embarrassment to the Deputy.

This is simply another straw in the wind. Let us deal with the situation seriously. This is one of the obnoxious sections in the Bill, one of the sections which the Minister should get rid of. He should purge the Bill of sections such as this. There are some good things in this Bill but the Bill has been soured by including sections such as this. So long as the Minister and the Government, simply by counting heads in this House, insist on provisions such as the one we are discussing here, subsection (4) section 12, there is going to be no ready acceptance of the Bill by the people. That is apparent and I would urge the Minister to reconsider his whole approach to this. I accept without question that, even though the Minister only inherited this Bill, he believes the various provisions he is recommending are good and worthwhile provisions, but the point is that the Minister has not been able to convince the people of that.

If this Bill is steamrolled through the House in its present form with subsection (4) of section 12 in it, and with the other objectionable provisions in it, it is going to be done by the majority vote of this House but it will clearly be without the majority wishes of the people. I do not think that legislation, particularly criminal legislation, legislation dealing with individual rights and liberties, that is born in that kind of controversy and which is steamrolled through against the wishes of the majority of the people is going to find any acceptance by the people. As sure as I am standing here, if this Bill is steamrolled through the House there is going to be a major surgical operation performed on it after the next general election.

I would like, first, to get my own amendment on the records. It is obvious that Deputy O'Higgins has swallowed, hook, line and sinker, the booklet issued by the Association of Civil Liberties notwithstanding all the misrepresentations and errors of fact that they have set out in that document on this section. Therefore, it becomes necessary for me to deal with the matter point by point but first, in reply to those who ask "What is the necessity for this section?" the necessity is very simply stated. The necessity is that the police have found themselves unable to intervene in the situation set out in paragraph 44 of the Explanatory Memorandum. They know that a serious row is blowing up or about to blow up but their powers are inadequate because under existing law the earlier row had stopped and under existing law they cannot then interfere. It is to prevent the situation of leaving the police powerless, where a row has already taken place, and there is a danger of the same parties continuing this row in the immediate future, that these powers have been requested.

Before I come to the amendment which is really clarifying this section and spelling out the principles in clearer words, let us see what we have in subsection (4) instead of the misrepresentations made unwittingly by some people inside this House and I have no doubt made deliberately in some other instances. It says that a member of the Garda Síochána may arrest without warrant where (1) "he is satisfied the person has committed an offence involving a breach of the peace"—mark you, he has already committed an overt act, breaking the peace —"or has engaged in conduct that was likely to lead to the commission" of a breach of the peace. This, under existing law, is an offence. In my time, and I am sure in Deputy Fitzpatrick's time, many a time and oft we had to defend people who were charged with this specific offence, that they did not get as far as the actual blows but they were on the very verge of it when they were prevented and it is an offence under the law. Therefore, under this first leg of this subsection—and we are talking about arrest without warrant— the garda must be satisfied that the person has committed an offence involving actual breach of the peace, or has committed the offence of engaging in conduct likely to lead to a breach of the peace. In other words, he must have already committed an offence. Secondly, he has reasonable grounds for believing the person is likely to engage in further conduct whereby the commission of an offence involving a serious breach of the peace may occur. They must have these two things; the individual has already committed an offence and, secondly, the garda must be satisfied that there is a grave danger of his committing a further offence.

Thirdly, the section says that "it is not reasonably practicable to apply for a warrant". How anybody can seriously suggest, particularly legally trained men—unless they have their tongues in their cheeks—that a time lapse of God knows how long might apply under these provisions is beyond my comprehension. Remember, he can only use his powers of arrest under this subsection without a warrant if—and this overrides these two other provisions—it is not reasonably practicable to apply for a warrant. When a man like Deputy O'Higgins suggests that he might have applied for a warrant and that when the warrant was refused he proceeds to arrest, I am simply flabbergasted. Deputy O'Higgins knows that, if a garda applied for a warrant under the section and was refused a warrant and proceeded to arrest a man, he would be paying damages for the rest of his life. I could not imagine——

(Cavan): He did not suggest that.

——a better case for false arrest than that. He must get a warrant if he possibly can because this is the meaning of the section. Unless there is an unreasonable delay he must go and get the warrant and if, having been refused, he arrests under this section—apart from the question of being dismissed from the force—he is certainly leaving himself open, if he is a mark for damages, to paying for the remainder of his life damages to the person he has arrested. A garda officer under this section cannot arrest without a warrant if it is reasonably practicable to apply for a warrant. The whole purpose of the section, the purpose for which it is designed, is to enable the garda when blood is hot and when offences have been committed by a breach of the peace or fighting and the parties are liable to become involved immediately again, to have this power of arrest without warrant. It is not a question of waiting until they meet going to Mass the following Sunday morning or expecting them to cross each other's paths in five or six hours but it is a question of the danger of those who are involved in a breach of the peace clashing again without time for the garda to apply for a warrant. If the suggestion is made seriously—I cannot accept that it is because I know the intelligence of some of those who make it, particularly Deputy O'Higgins, who spoke on this issue that there is no time limit, I must point out that time is the essence at the end of this subsection—whether the garda had time to go to the nearest commissioner and get a warrant or otherwise. If he had time he is in trouble if he operates without a warrant.

Let me come to the amendment. Deputy O'Higgins is correct in assuming that this amendment is essentially a drafting amendment designed to spell out more fully what is already implicit in the subsection as it stands in the Bill. This subsection—I refer to the text as it stands in the Bill—has been seriously misinterpreted and I regret to say seriously misinterpreted by Deputy O'Higgins again today. I stated this in my opening speech on the Second Reading and tried to give a brief explanation as to why this is so. When Deputy O'Higgins spoke he quoted my statement and said he could not quite follow it. I noticed that in his quotation from my speech he stopped short exactly where the explanation began. The essence of the criticism made of this section is that in so far as it refers to the past offence committed by the man arrested—that is to say, paragraph (a) of this subsection—it sets out no time limit so that according to the critics an alleged offence might have been committed 20 years earlier. The same point has been made by Deputy O'Higgins today.

The second leg of the criticism is that paragraph (b) in referring to the likelihood that there may be a further breach of the peace involves preventive detention. The critics further refer to the Explanatory Memorandum which said that what the subsection envisages is a situation where people have been involved in a row and a renewal of the row in the near future is envisaged. They say there is nothing in the subsection about the near future. Might I now point out, with all due respect to those who have embarked on this type of criticism, that they have failed to appreciate the very meaning of an arrest in the context of the criminal law? An arrest in the context in which we are speaking is a means, not the only possible means, but a means of securing the attendance of a person at court. A person cannot be brought before a court simply on the basis that a garda suspects, however strongly, that he may be about to become involved in a row. He can be brought only for the purpose of enabling the court to adjudicate on what he has already done.

That was the position but will that be the position?

That is the position.

Will it be the position?

And it will be the position. In other words, the proceedings before the court must relate to paragraph (a) of the subsection because there is nothing in paragraph (b) to provide a basis for proceedings. This immediately sets a limit of six months because we are speaking only of summary offences. If indictable offences were in question there would be other powers of arrest on which the gardaí could rely——

That is six months in the future but not six months in the past.

Six months is the limit from the time of commission of an alleged offence. I am pointing out that that is the general law of the land. It also applies to these summary offences because, if it were a serious offence, there are other powers of arrest which the gardaí could use. However, there is no conceivable set of circumstances in which an arrest could lawfully be made under the subsection on the basis of something that had happened even as recently as six months earlier. The reason is that as well as satisfying the conditions of paragraphs (a) and (b) the arresting garda must satisfy condition (c), namely, that he may arrest without warrant only if it is not practicable to apply for a warrant. If the incident in relation to which the court proceedings occur took place six months or one month, or even a week previously, the arresting garda would, to say the least, have quite a task on his hands in satisfying the court that it was not practicable to apply for a warrant. Likewise, if the expected resumption of the row was not something envisaged in the near future the garda obviously would have an opportunity to apply for a warrant and an arrest without a warrant would be illegal.

Those who talk about time limits should realise that, paradoxically as it may seem to those who do not have occasion to apply the principle of practical situations——

With respect, I think the Minister should circulate this if he is going to read it.

I am reading, and interpolating as I go along, from my notes, as I am quite entitled to do. I know that the truth is bitter to the Deputy. I know he wants to maintain the smokescreen that he and his Party have been hanging around this particular section. We must get the truth through despite the stonewalling efforts of the Deputy who again misrepresents, even today, what is in this section.

In practice the setting of a time limit would establish a presumption that anything inside that limit is acceptable. If people were asked to set a time limit in subsection (4) I doubt that many would suggest anything less than one week. Those who have spoken of 20-year periods, including the Deputy, would presumably accept a week. After all, it is quite a reduction. In fact, under the section as drafted, it is clear that the time limit is likely to be expressed as a matter of hours rather than days and reference to months and years is quite absurd because there is the provision of subsection (c) in all instances, that in order to exercise his powers under this subsection of arrest without warrant it must not be reasonably practicable for the garda to get a warrant.

I am not willing, therefore, to set a time limit for the reasons I have given. It would give an entirely wrong idea of the very limited scope of the subsection as it stands and would have the opposite effect to that claimed for it. However, I have said more than once that I am willing to make modifications in the text if they can be made without damaging the purpose of the provision and if they serve to reassure people who may be misled. In fact, the amendment I am moving is an example of this. It spells out more specifically what is clearly implicit—because it is part of the general law of the land— that an arrest under the subsection is permissible only when made with a view to bringing a charge for an offence under paragraph (a). The opportunity is being taken to reverse the order of paragraphs (b) and (c). This is purely a matter of drafting and presentation.

If the House approves of this amendment I think it would be desirable for purposes of consistency to introduce another somewhat similar amendment to subsection (5) because that subsection, too, has implicit in it the idea that the arrested person must have committed a specific offence with which he can be charged. I mention this matter so that an amendment on the Report Stage may be in order. It is quite obvious—I suppose I cannot repeat this too often—that a person cannot be prosecuted unless the police can allege an offence as a basis for a charge and he cannot be arrested unless the police can charge him. That is the legal meaning of arrest.

We cannot read this section or, indeed, any other section of this Bill except in the broad context of the rest of the criminal law. These people who have tried to misrepresent what is in this particular section have their full answer in the point made by Deputy John A. Costello when he said that, even if this is so, even if this misrepresentation has gone on, even if what I am saying is perfectly right in every particular, again we should get away from this because certain sections, rightly or wrongly, are dubious or dissatisfied with it. Surely the basis of this whole business is this: Are we to get away from these necessary provisions because some people have been sold the idea that this section of the Bill contains something that is not, in fact, there at all? Are we to go on this phoney basis that some people were told that people could be held under this subsection in protective custody for all time? Are we to approach this Bill on this completely erroneous basis which has been put forward by some of the critics of the Bill? It is quite clear that some of the critics of the Bill are not legal experts in the sense that they do not know what the existing law is or that otherwise they have been misled and I agree that many people have been misled about what is in the Bill.

The essence of subsection (4) is that it is a power that is necessary for a garda where a row has started. It gives him the power to stop that row escalating. This is the purpose of this section. It gives the power that is essential for the preservation of public order. It is a power under which a person cannot be arrested without a warrant if a warrant is immediately available. It is a power that can be used only in the very limited circumstances of where blood is up and where a breach of the peace has already been committed with a grave danger of the row turning into something where, perhaps, skulls might be cracked.

That is what is in this particular section and not what these outside critics are saying. I am sure that all reasonable Deputies, if they understand this, will fully support the limited power that is being given here for an arrest without warrant in the circumstances which I have described.

The Minister has made a great argument for our amendment because he has repeated, again and again, the question of this being necessary to prevent a breach of the peace occurring while blood is up. Perhaps the Minister knows of cases where the blood stays up for a long time but, generally, when one talks of something like that, it means that a row or an argument has occurred and that within a number of hours the people meet again under the circumstances which caused the row.

If that is so, surely our amendment which says "within the previous 24 hours" should be sufficient because the Minister has repeatedly mentioned the fact that this was not a question of months or weeks or even of days. He is talking about hours and if he is prepared to accept that point I am very much in favour of giving the gardaí whatever authority they require to keep law and order. I am not a legal expert but I will have to explain to those whom I represent what, in effect, is meant by this.

I am not in favour of giving gardaí or anybody else the right to arrest somebody just because they do not like the colour of the tie he is wearing or for some such reason. It appears to me that this is the sort of power that the Minister is anxious to give in the Bill and what he says about those both inside and outside the House who are criticising the Bill does not alter the fact that the Minister himself says he requires the authority only for the purpose of preventing a recurrence, where a breach of the peace has been threatened or has occurred and where, while the blood is up, another row may start. We have an amendment down which says that this must be within 24 hours of the original occurrence and I would suggest that that being so, there is no reason why the Minister should not accept our amendment.

(Cavan): There is no doubt that this Bill has given rise to considerable public concern and disquiet and that a great many people are genuinely worried about certain sections of the Bill and this section 12 is one of them.

It is a measure which was not rushed through the Department of Justice. It is a measure which must have got a considerable amount of consideration from the Department, from the former Minister for Justice, from the Government and from the present Minister for Justice. I say that because this Bill was printed by an Order of this House which was given as far back as the 22nd June, 1967.

I hope the Deputy does not intend discussing the whole Bill on this amendment.

(Cavan): No, Sir, I do not. The Bill was printed as a result of a Motion passed by this House on the 22nd June, 1967. It appeared about 12 months later and the Committee Stage is now being taken almost 12 months later again.

Notwithstanding all that delay, and considering it has been necessary for the Minister to recast subsection (4) of section 12 and to withdraw completely sections 30 and 31, it appears to me that the public criticism of this Bill is well founded. It is not reasonable for the Minister to say that the people who criticised section 12 and who say that they are worried about it, are doing so lightly. They are not doing so lightly and the Minister and the Government have so conceded by introducing this amendment to try to retract entirely subsection (4).

Section 12, with which we are dealing, confers power of arrest without warrant. I wish to join with the other speakers who have said that there is a dangerous trend in legislation in recent years to give too much unnecessary power to the Government and to the gardaí. When the Road Traffic Bill was going through this House it contained a section enabling the Garda Síochána to arrest without warrant for dangerous parking. In my opinion the power of arrest without warrant should only be conferred for grave reasons and where it is absolutely necessary to deal with an emergency. It is obvious that unless there is an existing emergency which can only be dealt with by immediate arrest the power to arrest without warrant should never be conferred. The power of arrest without warrant would, I submit, be necessary if a serious offence is being committed and would be likely to continue if the criminal engaged in it were not immediately arrested. It would also be reasonable to confer the power of arrest without warrant if an offence had been committed and if the person who committed the offence were likely to escape if he were not arrested there and then. Those are the type of cases in which power to arrest without warrant is necessary and in which it should be conferred.

Let us look at subsection (4) of section 12 as redrafted by the Minister. It will now read:

A member of the Garda Síochána may arrest a person without warrant where—

he is satisfied that the person has committed an offence involving either a breach of the peace or conduct that was likely to lead to a breach of the peace,

I want to say that I believe that under that section the breach of the peace or the conduct likely to lead to the breach of the peace could have been committed 20 years ago. That is my interpretation. I know the Minister has another interpretation. He says that it must have been committed within the previous six months. For the purpose of this argument let us concede that the Minister's interpretation is correct, but I do not agree that it is, and suppose that the breach of the peace or the conduct calculated to lead to a breach of the peace has been committed five months ago or five months and 29 days ago. What is the urgency? Where is the emergency? Has the thing not gone stale?

The Minister goes on to say under the redrafted subsection in paragraph (c):

...he has reasonable grounds for believing that, if the person is not promptly charged with the offence aforesaid, the person is likely to engage in further conduct whereby the commission of an offence involving a serious breach of the peace may occur.

That subsection (c) is open to the construction that, if the garda believes that this breach of the peace is likely to take place in six months or less or more, he may effect the arrest without warrant. I know the Minister has a different interpretation of the section.

If the person is not promptly charged. That is the meaning of those words.

(Cavan): The Minister has another interpretation. He said in his statement a few minutes ago that it means if the person is going to commit the offence in the immediate future. In section 44 of his Explanatory Memorandum he says “in the near future”. I want to ask the Minister, in dealing with a serious matter like this, what is the objection to writing “the immediate future” or “the near future” into the subsection? What is the objection to that? This is open to argument.

We lawyers—and the Minister is a lawyer—are accused very often of indulging in tedious and expensive arguments in the courts to define sections of Acts of Parliament. That sometimes happens but, if it does, it happens because doubtful, sloppy sections of Acts of Parliament are churned out of this House and sent on to the executive authority to implement, and then there is an argument about them. Why not write into this subsection now "in the immediate future" or "in the near future" and do not leave it open to argument? The civil servants and the parliamentary draftsman and the Minister, because he must take responsibility for this, seem to like to leave things as loose as possible.

It has been suggested from the other side of the House that the arrest is only the beginning of this and that it must end up in court. A person could be detained in prison for at least seven days without any real court case taking place because he could be brought before a peace commissioner and, if the Garda authorities asked for a remand in custody, a remand in custody would be granted as a matter of form. That person would have been deprived of his liberty for seven days. I think, but I speak subject to correction, that the man might never be charged with any offence. He could be arrested under this subsection, as amended; he could be brought to a Garda station, and he could be detained there for whatever the statutory number of hours is—12 or 24. He must be charged within a certain time but he could be detained for a certain time and released without a charge.

(Cavan): Perhaps the Minister is correct and, if he is, he wins that round, as Deputy O'Higgins says, but he certainly could be brought before a peace commissioner and remanded in custody.

He could not be remanded in custody before a peace commissioner without being charged.

(Cavan): I did not say he could. They are two different things. I said he certainly could be charged, brought before a peace commissioner and remanded in custody for seven days. Of that there is no doubt. I believe that he could be detained in custody for the statutory number of hours and released without any charge being preferred against him. I hope that, if that is not so, the Minister will be able to put it beyond doubt because that would be an outrageous situation.

Even if the Minister is able to convince the House that that proposition is not well founded, it is equally objectionable that a person should be arrested under this very doubtful subsection and charged and then brought before a peace commissioner and remanded for seven days before he is brought before a court. I believe that this subsection, as it stands, is a subsection that could very well be used by a member of the Garda Síochána if he wanted to cover up a wrongful arrest. It could be used in defence of an arrest which was in fact wrongful, and which otherwise could not be justified. That could arise where a person who had been guilty of a breach of the peace, or conduct leading to a breach of the peace, in the past, was arrested by a member of the Garda on the spur of the moment, and in the heat of the moment, for some other offence which had nothing at all got to do with it, and if the garda were then driven to justify this wrongful arrest he could invoke subsection (4). I am not saying that would happen frequently or that there are many such members of the Force, but it could happen.

Progress reported; Committee to sit again.