We were dealing with amendment 5 of section 12. This is the section which purports to give the Garda power of arrest without warrant. When I was speaking on this amendment last week I made the case to the Minister that, as it seemed to me, the power of arrest which the Minister is seeking to give the Garda here may, in fact, be exercised, if this section goes through unamended, even where no offence has been committed. The Minister corrected me on that and at the time I was inclined to accept his correction. However, on reading the section again I think the argument I presented to the Minister on that occasion was correct, and I want to take the point up with the Minister again on that account. Section 12 (4), which I am suggesting by my amendment should be deleted from the Bill and which the Minister wants to amend purely from a drafting point of view, provides:
A member of the Garda Síochána may arrest a person without warrant where——
a number of things are applicable, the first being:
(a) 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,
I argued on paragraph (a) of subsection (4) that it was possible that this power of arrest without warrant could be triggered off even though no offence had been committed, and it was pointed out that the distinction I made at the time was that there were two parts in this paragraph: first, you had the case where a person has committed an offence involving a breach of the peace —that that was one set of circumstances in which under this subsection arrest without warrant would be justified—and, secondly, you had a different set of circumstances where a person has engaged in conduct that was likely to lead to the commission of such an offence, that is, an offence involving a breach of the peace.
The Minister pointed out that engaging in conduct likely to lead to a breach of the peace was in itself an offence. I accepted that and I still do, but the whole of paragraph (a) is governed by the first few words, "where" a member of the Garda Síochána "is satisfied". The point I want to bring to the Minister's attention is that, while a garda may be satisfied in his own mind either that an offence has been committed or that conduct has been engaged in that was likely to lead to the commission of an offence involving a breach of the peace, the garda may be entirely wrong, and in that sense I think I am quite right in arguing that under this subsection as it stands we are seeking here to give the power of arrest without warrant to a garda even in cases where no offence may have been committed at all.
I want to give the Minister an example of the kind of thing I have in mind. I referred on an earlier amendment to the charges of intimidation which were made from the Government benches, indeed, by Ministerial spokesmen, against the NFA some years ago. It seems to me that if, for example, the Minister for Justice, with all the weight and authority of his position behind him, goes on record in this House or elsewhere to say that some individual or some organisation has been responsible for engaging in conduct likely to lead to a breach of the peace or that they have engaged in the commission of an offence involving a breach of the peace, it would be perfectly normal and natural for a member of the Garda Síochána to accept the word and the opinion of the Minister for Justice.
There the garda would be entitled to say that he was satisfied that a person had engaged in conduct that was likely to lead to the commission of an offence involving a breach of the peace, and the reason he would be satisfied was that he was accepting the diktat of the Minister for Justice. He is not required under this section to satisfy himself from personal, visual evidence. He is not required to be present and see a person engaging in conduct likely to lead to a breach of the peace. He is not required to be present and see the offence committed or attempted. If he claims to be satisfied—I suggest he can be satisfied on the hearsay evidence of a person in authority—then, if this subsection is passed it can become operative even though a Minister, or other person in authority, as the case may be, is simply making a political speech or giving an opinion, not as a lawyer but as a politician. Now that is a very important facet of this subsection against which this House must be on guard; it can be triggered off merely by an expression of opinion by a politician or a Minister of State acting in his political capacity.
Another important matter that has been dealt with only very briefly in relation to this subsection is the suggestion that has been made that this could bring into operation a system of protective or preventive custody. I gather the Minister has no very great regard for that argument because, in the booklet which he issued in reply to some of the critics of the Bill, the Minister says at page 6:
There are, however, more fundamental misconceptions in the text. The basic assumption in the criticism is that a power to make an arrest carries with it an arbitrary power to detain a person in custody (even in "protective custody"). This is certainly not the law. In a habeas corpus action, for instance, the question to be answered is not whether authority existed for taking a person into custody but what authority exists for keeping him in custody. A power of arrest is not, and could not be, a power to detain in “protective custody”—or “preventive custody” either.
Here the Minister is giving what seems to me to be a purely legalistic answer to a fear which is abroad amongst our people, a fear engendered by the wording of subsection (4) of section 12 of this Bill. I do not think that that fear is entirely ungrounded. I accept fully that it is not the Minister's purpose, or intention, in this subsection to set up a system of protective or preventive custody, but I think it is necessary that the Minister should examine very carefully what is being provided in this section. If we scrutinise the subsection carefully we see that the fears that have been expressed may not be entirely groundless. In paragraph (a) of subsection (4) the wording used is that a member of the Garda Síochána may arrest a person 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.
The last half dozen words were all-important. The subsection does not say that the conduct engaged in by the person must be conduct which would necessarily involve that person himself in the likelihood of committing a breach of the peace or of committing an offence involving a breach of the peace; if the person indulges in any conduct which may lead, however far-fetched it may be to the commission by others of a breach of the peace, that person is liable to arrest, and to arrest without warrant.
I want now to give the Minister and the House an example of how this could operate. Again, I do not think this is far-fetched. I remember occasions when from the front benches of the Fianna Fáil Government in this House the country was told that it was not the business of the Government to make people or causes popular: it could very well be that a person, because of the stand he takes on a political issue, may possibly inflame public opinion and find himself, although he is acting in a perfectly law-abiding, peaceful and honest manner, in a position in which his appearance at a particular time or on a particular occasion may give rise to conduct in others which is either rowdy or disorderly. Under the subsection as it stands, that person, whether he be a politician or anyone else, is liable to be taken into custody, to be arrested without warrant, on a member of the Garda Síochána forming the view that his appearance—he has done nothing other than appear—on the particular occasion was likely to lead to the commission of an offence by others involving a breach of the peace.
What is that except a system of protective or preventive custody? Surely that is what is involved in this subsection as it stands? I should like to hear the Minister arguing against it. I am quite prepared to accept that neither he nor any member of the Government intend that that should be so, but there it is. That is what the Minister wants this House to write into our criminal legislation and that is exactly the kind of thing about which fears are being expressed.
I have said on more than one occasion that, so far as the Bill as a whole is concerned, the best thing the Minister can do is to withdraw it, to purge it of objectionable sections such as this, and to come back to the House with a new Bill which will find a ready acceptance, because there are some worthwhile provisions in the Bill. So far, however, as this particular subsection is concerned, no matter how the Minister may endeavour to amend it, the fears it has provoked will continue and the only way in which the Minister can deal with the situation now is by getting rid of this subsection entirely. I do not think it is unreasonable to ask him to do that. The whole country knows that within a matter of months, if not weeks, we will have a general election.