I move: "That the Bill be now read a Second Time."
I want to recall at the very outset of the debate on this Bill what it proposes to do because its essential objective appears to have been lost sight of in the debates and comments made about it up to now. Broadly speaking this Bill makes certain criminal acts when committed in Northern Ireland offences against the law of the State and triable in the courts of the State. The offences concerned are broadly what can be termed terrorist offences and are all unquestionably of a very serious nature. They include murder, kidnapping, hijacking, various offences under the Explosive Substances Act and Firearms Acts—a horrifying catalogue. At the moment because of legal constraints perpetrators of these dreadful crimes can take refuge in the State and escape the consequences of their terrible acts.
It is wrong that criminals should escape the consequences of their deeds. It is detrimental to us to have such people at large in our society. In addition, it is a matter of grave scandal in Northern Ireland that fugitive offenders can find safe refuge in our jurisdiction. There is, I am satisfied, a strong feeling in this country that all the sanctions of the law should be visited on these people and that the law should, if necessary, be altered so that these sanctions can be made effective on them. People are disgusted and impatient with their philosophies and activities. There is in this island a great yearning for peace and one way we here in Parliament can respond is to show our abhorrence of violence in all its forms and to do something realistic to try and stop it. We may differ in our attitudes to the means proposed by this Bill to solve the problem of the fugitive criminal, but I hope those who speak on this Bill will, even if they do not approve of the scheme proposed, agree that those who murder in the North, bomb in the North, kneecap in the North are criminals and deserve to have the sanctions of the law visited on them. By doing so we can show to all the people of Northern Ireland that we are one with them in our detestation of terrorism.
The solution of the problem is a complex and difficult one and following the Sunningdale Agreement a commission of eminent judges and jurists from both jurisdictions was set up to devise a remedy that would take account of all the difficulties and that would be both feasible and effective. The possible solutions to the problem that had been thrown up and that were to be examined by this commission were the amendment of the existing extradition legislation so as to remove the political exemption; the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction; and the extension of the jurisdiction of domestic courts so that they could try offences committed outside their normal jurisdictions.
The Law Enforcement Commission agreed that the all-Ireland court method did not offer a practical immediate solution to the problem. The contrary has been and may continue to be argued. However, the plain fact is that this method is simply not on at present.
Much as we would like to see an all-Ireland court as an ultimate solution, we must look at the practicabilities of establishing such a court. First of all, the Constitution would have to be amended. Secondly, an all-Ireland court would have to be agreed on and accepted in the North of Ireland. There are no prospects of such an agreement being reached in the immediate future. Are we then to say that, as we cannot get agreement on what we think the best or the ideal solution, we will do nothing in the meantime to see to it that fugitive offenders are brought to justice and that we will continue to tolerate the present scandalous position?
The commission were evenly divided on the extradition method and consequently made no recommendations on that method. However, they were agreed that there were no legal objections to the exercise of extraterritorial jurisdiction by domestic courts, supplemented by a procedure for taking evidence outside the State or Northern Ireland, as the case might be. So we are left in the position of accepting the solution recommended by the commission or having no solution at all. In other words, either we adopt the extra-territorial jurisdiction method or we do nothing and continue to allow one part of our country to become a haven for people who commit the gravest crimes against the Irish people, Irish property and Irish interests.
To put it in a different way, do we act as a responsible Legislature in an independent and sovereign state or do we contend that, in spite of our independence and our sovreignty, we are unable to legislate in order to protect the Irish people, North and South? As the commission have shown, there are well-accepted principles in international law justifying the exercise of extra-territorial jurisdiction by domestic courts—principles that are acted upon by every state worthy of a place in the community of civilised nations. Indeed, these principles are at the very basis of the concept of the sovreignty of the independent state.
At an early stage the constitutionality of this Bill was impugned by Opposition spokesmen. So far, I have heard no cogent arguments for the view that the Bill infringes the Constitution. Our advice is strongly that the Bill is constitutional. If it were otherwise, the measure would not, of course, have been introduced. The Government, naturally, are anxious that the Bill, like any other piece of legislation passed by the Oireachtas, would stand up constitutionally. Because of the objectives of the Bill, it is important that its constitutionality be tested, if tested it is to be, as soon as possible, and the Government would see much merit in a reference to the Supreme Court prior to enactment, provided substantial arguments to justify the claim of unconstitutionality are adduced during this debate. However, the reference of a Bill to the Supreme Court is a matter exclusively for the President, after consultation with the Council of State.
I shall return to the constitutional aspect in a moment but I should like to deal first with the concept of extra-territoriality. There is nothing novel or extraordinary in this concept. It has already been adopted in our legal system. It is not prohibited in international law and has been a feature for a considerable time of the legal system of the civil law countries. In our own law there are plenty of precedents for the assumption of extra-territorial criminal jurisdiction. We have the Offences against the Person Act, 1861, the Foyle Fisheries Act, 1952, section 38 of the Extradition Act, 1965, the Air Navigation and Transport Act 1973, and the Geneva Conventions Act, 1962. It is, of course, true that in spite of these precedents and its long-standing acceptance in civil law countries and in international law, the concept of extra-territoriality in criminal law is a little known one in these islands, even among lawyers.
The claim in international law to jurisdiction over acts committed abroad either by one's own nationals or by any persons, irrespective of nationality, is quite different and distinct from a claim to exercise jurisdiction over areas and territories other than one's own. Indeed, if this were not so, the well-established notion of the international crime or of the criminality of acts committed outside one's own jurisdiction would have no place in international law. It should be noted that though our Constitution in Article 2 specifies the national territory as the whole island, Article 3, while preserving the right to exercise jurisdiction over the whole of that territory, goes on to declare that the laws enacted by our Parliament shall have the like area and extent of application as the laws of Saorstát-Éireann and the like extra-territorial effect. The language used in these two Articles is of prime importance in the context of constitutionality in the light of what the Bill seeks to do. There is nowhere in these Articles, read together, any restriction on the creation of extra-territorial jurisdiction over the activities of Irish citizens or non-Irish nationals abroad. Indeed, it would be extraordinary if there were.
Piracy on the high seas has, for example, long been an international offence that may be tried in the courts of any jurisdiction: the same is now the position in respect of air piracy in all those countries that have ratified, as we have, the 1970 Convention of The Hague for the Suppression of the Unlawful Seizure of Aircraft—set out in the Second Schedule to the Air Navigation and Transport Act, 1973. Although it was not necessary for the purposes of the Convention, section 11 of this Act, which creates the offence of unlawful seizure of aircraft, applies to an act committed on any aircraft where the act is that of an Irish citizen or of a person habitually resident in the State or the aircraft is an Irish-controlled aircraft. The Convention itself applies only if the place of take-off or the place of actual landing is situated outside the territory of the State of registration, and it is immaterial whether the aircraft is engaged on an international or a domestic flight. Accordingly, the Convention does not cover the hijacking of an aircraft flying between London and Edinburgh which actually lands in Belfast. However, section 11 of the 1973 Act does apply if, for instance, the actual hijacking is committed by an Irish citizen or a person habitually resident here.
Section 11 of the Air Navigation and Transport Act, 1973, is particularly relevant in the context of the present Bill because it is a modern provision enacted by this very Oireachtas and also because an offence under that section is one of the offences specified in the Schedule to the present Bill. Another example of an extra-territorial offence is murder committed abroad by an Irish citizen. This is because of section 9 of the Offences against the Person Act, 1861, as adapted in 1973. This provision will, by the way, be additional to the provision in the Bill making murder committed in Belfast an offence under our law, irrespective of the nationality of the offender. A further example of extra-territorial jurisdiction is to be found in section 3 of the Explosive Substances Act, 1883, which deals with preparatory acts and conspiracies to cause explosions and possession of explosives with intent. It is proposed in section 4 of the Bill to re-enact this section in modern form and in addition to extend the ambit of the substantive offence, under section 2 of the 1883 Act, of causing an explosion so as to cover explosions caused abroad by Irish citizens. I shall deal with section 4 of the Bill in more detail later on.
That territoriality has not been accepted as an absolute in our criminal law is clearly demonstrated in the enactments of the Oireachtas such as the Foyle Fisheries Act, 1952, section 38 of the Extradition Act, 1965, the Geneva Conventions Act, 1962 and section 11 of the Air Navigation and Transport Act, 1973, to all of which I have already referred and to which the Law Enforcement Commission refer in the footnote to paragraph 2 of their report. Except for the 1973 Act, every one of these statutes was enacted when the present Opposition were in office. As far as concerns the 1973 Act, the detailed proposals for the Bill of that Act were approved by the previous Government, and no objection was made to its provisions on constitutional grounds when the Bill of the Act was before this House or when it was before the Seanad.
Article 29 of the Constitution provides in section 3 that Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States. The Law Enforcement Commission in paragraph 20 of their report state in reference to the taking of extra-territorial jurisdiction that:
The jurisdiction can be justified in international law on several generally recognised principles.
If Articles 2 and 3 of the Constitution prevent us from assuming jurisdiction over acts committed outside the State, it is difficult to see how we could have ratified a number of international conventions that we have ratified—and implemented in our municipal law— such as the Geneva Red Cross Conventions of 1949, the European Convention on Extradition of 1957 and the Hague Convention on Unlawful Seizure of Aircraft of 1970.
Before leaving the question of extra-territorial jurisdiction and international law, I would ask those who oppose the Bill to ponder on the fact that we are here dealing with crimes committed in Ireland and against Irish people. The Bill does not propose that our courts should have jurisdiction over crimes committed in a country a thousand miles away. To treat Northern Ireland as part of a strange and distant state for present purposes is not only artificial but inconsistent with the history of co-operation between the two parts of Ireland which has been practised over the years in so many respects, and which we hope to see enlarged in the future.
This leads me to an objection that has been made to the Bill based on the wording of section 3 of Article 38 of the Constitution which it is claimed confines the jurisdiction of the Special Criminal Court to offences committed in the State. This section provides that special courts may be established by law where, in the words of the section, "it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order". The Offences Against the State Act, 1939, is such a law. The present Special Criminal Court is operating under that law.
If the effective administration of justice, which clearly includes the trial of offences created by the ordinary law, cannot be secured by means of the ordinary courts, and if these courts are inadequate to secure the preservation of public peace and order, special courts may be established. How in this part of the country can public peace and order and, still more, the effective administration of justice be secured if juries are to be intimidated where extra-territorial offences are being tried?
Under the Offences Against the State Act, 1939, the Government may, whenever they are satisfied as to the inadequacy of the ordinary courts, make the necessary proclamation for the establishment of the Special Criminal Court. This is specifically provided for in section 35 (2) of the 1939 Act, which is clearly a law within the meaning of Article 38.3 of the Constitution. To suggest that the public peace and order of this State is not being affected by the activities in Northern Ireland is nothing short of ludicrous. It is for the Government to determine the situation in regard to the inadequacy of the ordinary courts to secure the preservation of the public peace and order and they are clearly entitled to make this determination in accordance with the law establishing the Special Criminal Court.
This determination has been made in a Government proclamation signed on 26th May, 1972, by the then Taoiseach. This was followed by a Government instrument dated 30th May, 1972 establishing the Special Criminal Court. On the same day the Offences Against the State (Scheduled Offences) Order, 1972, was signed by the then Taoiseach. Amongst the scheduled offences listed in the Appendix to the 1972 Order are offences under the Explosive Substances Act, 1883, which in section 3 provides for an extra-territorial offence. Moreover, the Attorney General may, under sections 46, 47 and 48 of the 1939 Act, certify in respect of any non-scheduled offence that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of the public peace and order. Where the Attorney General so certifies, the trial takes place before the Special Criminal Court. Non-scheduled offences include, of course, a number of extra-territorial offences such as murder and the hijacking of aircraft. The Attorney General's certificate is a determination in accordance with the law establishing special criminal courts, i.e. the Offences Against the State Act 1939, for the trial of offences, and is thus clearly within the terms of section 3 of Article 38 of the Constitution. The functions of the Attorney General under the 1939 Act are, since the Prosecution of Offences Act, 1974 came into operation, now vested in the Director of Public Prosecutions.
Once it is accepted that it is proper to legislate for extra-territorial jurisdiction in respect of offences committed in Northern Ireland, how can one argue that Article 38.3 of the Constitution makes it impossible to provide for the trial of those offences by the Special Criminal Court when exactly similar offences committed in the State may be tried by the court? Such an argument becomes even more difficult to sustain when it is remembered that extra-territorial offences under the Bill include ancillary offences committed on one side of the Border in respect of substantive offences committed on the other side. Finally, the reference in Article 38.3 to "the effective administration of justice" must mean the effective administration of justice in respect of all offences under the criminal law of the State, including the trial of extra-territorial offences.
It has been contended that in this Bill we are "institutionalising" the Special Criminal Court as a permanent feature of our law. This is not so. Unfortunately, the court has to be a feature of our law as long as the present situation continues. Moreover, special criminal courts have been specifically provided for in Article 38 of the Constitution and the need for them is greater now than at any time in the history of the State. That that is so is fully recognised both by the Government and by the Opposition. However, if circumstances become such that a court is no longer needed, the present court can be disestablished. If and when it is so disestablished, the provisions in this Bill, other than section 11, will continue in operation, and the ordinary courts will take over the trial of extra-territorial offences created by the Bill. In addition, the reforms in the law as to robbery, burglary, etc., which I shall deal with later will continue to have effect. I should point out, too, that even while the Special Criminal Court subsists, an offence under the Bill could come for trial before the ordinary criminal courts, though, of course, the commission procedure would not be available for such a trial.
The Criminal Law (Jurisdiction) Bill that is before this House is primarily designed to introduce extra-territoriality in the field of criminal law as between ourselves and Northern Ireland. The Bill proposes (1) to extend our criminal law and criminal jurisdiction so that they will cover a number of very serious offences committed in Northern Ireland by any person irrespective of his nationality and (2) to make the new jurisdiction operate effectively by supplementing the extra-territorial method with a satisfactory procedure that will contain adequate protection for accused persons. In addition to this, we are availing ourselves of this opportunity to propose several reforms in the ordinary substantive criminal law concerning explosives, firearms, robbery, burglarly and hijacking of vehicles. These are reforms that I, as Minister for Justice, would in any event have been recommending fairly soon as desirable law reforms in their own right, and I trust that they will be discussed on that basis.
I will now summarise the principal provisions of the Bill and in doing so I will deal with certain particular objections that have been raised to some of them in addition to the general question of extra-territorial jurisdiction to which I have already referred.
As many of the provisions in the Bill are necessarily complicated, the explanatory memorandum goes into a fair amount of detail, in particular in order to explain the reasons for the more complicated and technical provisions. For this reason I do not propose at this stage to go into great detail on each of the provisions, as no doubt the House will wish to examine the Bill section by section at the later stages.
Section 2 is the principal provision of the Bill. Its purpose is to secure that any act done in Northern Ireland that, if done in the State, would be one of the offences specified in the Schedule to the Bill will be an offence under the law of the State. The offender will be punishable as if he had done the act in the State. In other words, the offences will be made extra-territorial offences. This purpose is secured by subsection (1). The other subsections penalise participation in an offence by aiding and abetting, being accessory before the fact, etc. Some of those provisions are complicated, because the Bill has to provide for the case of being an accomplice in the State in respect of an offence committed in the North, that of being an accomplice in the North in respect of an offence committed in the North and that of being an accomplice in the North in respect of an offence committed in the State. The Bill has also to provide for the inchoate offences of attempting, conspiring and inciting.
Here I should mention a point that is important as regards the structure of section 2 and certain other provisions of the Bill. The point is that the Bill does not make any of the offences, if committed in Northern Ireland, felonies, even though some of the offences would be felonies if committed in the State. The division of offences into felonies and misdemeanours is an archaic distinction which I hope, will before long be abolished by other legislation. For the present, the fact that a particular offence is a felony has important consequences. One is that a person who knowingly assists a person guilty of felony to evade apprehension or prosecution is guilty of being accessory after the fact to the felony. Subsections (4) to (8) of section 2 penalise the giving of this kind of assistance to a person guilty of an extra-territorial offence. The subsections take account of the fact that the principal offence or the giving of assistance to the principal offender, or both, may have taken place either in the State or in Northern Ireland.
Section 3 makes it an offence for a person charged with or convicted of an offence under the law of Northern Ireland consisting of conduct of the kinds to which section 2 applies, whether committed in the State or in Northern Ireland, to escape from custody in Northern Ireland. The section also penalises a person for escaping from custody in Northern Ireland after having gone there in custody in order to be present at the taking of evidence on commission in the North for the purpose of his trial in the State under the procedure provided for by section 11. I shall refer to that procedure later. The maximum penalties for the offences of escaping will be seven years' imprisonment. To avoid any misunderstanding I should stress that the offence of escaping from custody in the North will apply only to where the escaper is in custody as a result of being charged with or convicted of an extra-territorial offence, whether committed in the North or here, or an offence ancillary to an extra-territorial offence. In other words, the escaper must have been in custody for the purpose of the proceedings in relation to the offence in question or while serving a sentence imposed on his conviction for that offence. The section does not apply to escape from internment and the Bill has nothing whatever to do with such an escape.
Sections 4 to 10 of the Bill make amendments to the substantive criminal law relating to certain acts involving violence or the possibility of violence. The offences in question are particularly important having regard to the present situation in Ireland. The community is offended by the level of violent crime and there is a widespread desire to see the law strengthened both as to the offences themselves and the penalties. All the offences except ordinary burglary under section 6 of the Bill are included in the Schedule to the Bill.
Section 4 modernises and extends the scope of the two offences under sections 2 and 3 of the Explosive Substances Act, 1883. The offences under section 2 is that of causing an explosion, and the offences under section 3 consists— to state it shortly—of planning to cause an explosion. So far as Irish law is concerned the offences under section 2 —that of causing an explosion— applies, as with offences generally, to any person, whether an Irish citizen or not, who causes an explosion in the State. The position as to the planning offence under section 3 is more complicated. Section 3, in its present form, is inappropriate for the State, because —having been enacted in 1883—it is expressed to apply to things done by any person in the British dominions, and to things done by British subjects elsewhere, for the purpose of causing an explosion in the United Kingdom.
Section 4 of the Bill proposes to replace sections 2 and 3 of the 1883 Act with two new sections. The new section 2 of that Act will still apply to any person, whether an Irish citizen or not, who causes an explosion in the State, but it will also apply to any Irish citizen who causes an explosion outside the State. The new section 3 will apply to the same kinds of preparatory acts as at present but it will apply to such acts if done by any person in the State, or by an Irish citizen outside the State, for the purpose of causing an explosion anywhere. I am glad to be able to tell the House that section 7 of the British Criminal Jurisdiction Act, 1975—the Act parallel to this Bill —makes similar amendments to the 1883 Act as it applies to Britain, except that the offences, instead of applying to explosions caused, or planned to be caused, anywhere in the world, will apply only to explosions caused, or planned to be caused in the United Kingdom or in this State. Since the British law will apply to explosions in the State, we have no ground for complaining that it will not apply to explosions in other countries, but, so far as Irish law is concerned, it is the Government's view that the offences under the two sections of the 1883 Act should apply wherever the explosion takes place, or is to take place, as the case may be. The Government have taken this view because of the seriousness of any offence involving the use of explosives and in particular having regard to the proposed condition that, in the case of offences outside the State, the offender will have to be an Irish citizen.
Section 5 replaces the offences of robbery and aggravated robbery under the Larceny Act, 1916 with a new and simpler offence of robbery. The change will not be great, but in future there will be the advantage that the definition of robbery will be found in the statute instead of depending on case law. To state it shortly, the offence will consist of stealing coupled with the use of force or a threat to use force. There will be a single offence of robbery, punishable with imprisonment for life, instead of an offence of simple robbery punishable with 14 years' imprisonment and offences of aggravated robbery punishable with imprisonment for life. The present distinctions make for unnecessary complication. Under the new law there will also be the advantage that the offence will be similar to the offence of robbery under the reformed theft law of Northern Ireland and England.
Sections 6 and 7 replace the present offence of burglary and the other offences under the Larceny Act, 1916 involving breaking and entering buildings with a simplified offence of burglary, punishable with 14 years' imprisonment, and a new offence of aggravated burglary, punishable with life imprisonment. The existing offences are extremely complicated. For instance, there are separate offences depending on the kind of building entered, whether the entry is or is not by breaking, whether the offence takes place by day or by night and so on. The maximum penalties vary between imprisonment for seven years and imprisonment for life. Section 6 of the Bill creates the new offence of burglary. This will consist of entering a building of any kind as a trespasser with the intention of stealing or committing any of certain other offences in it. The offence will also apply to stealing or committing any of these offences in the building after having entered it as a trespasser. Section 7 creates the offence of aggravated burglary, consisting of burglary when having with one a firearm or imitation firearm, a weapon of offence or an explosive. I have mentioned that the maximum penalty for ordinary burglary will be 14 years' imprisonment and that for aggravated burglary will be life imprisonment. The effect of the Bill will be that in some cases the offender will be punishable more severely than for similar conduct under the present law and in other cases less severely. Aggravated burglary is included in the Schedule to the Bill, but ordinary burglary is not.
Sections 8 and 9 are intended to strengthen the law as to possession of firearms by creating two new offences. Section 8 makes it an offence for a person to have a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that his purpose is not a lawful one; but a person will, of course, not be guilty if his purpose is, in fact, lawful. The maximum penalty will be five years' imprisonment. Section 9 makes it an offence for a person to have a firearm or imitation firearm with him with intent to commit an indictable offence or to resist or prevent the arrest of himself or another person. The maximum penalty will be ten years' imprisonment. The offences are included in the Schedule.
Section 10 creates a new offence of unlawful seizure of a vehicle by force or a threat of force by any other form of intimidation. The offence will extend to any other kind of interference with the control of a vehicle and to compelling or inducing some other person to use a vehicle for an unlawful purpose. The Maximum penalty will be 15 years' imprisonment. Nobody who bears in mind the many cases in which vehicles have been seized in Ireland in recent years, and the uses to which the vehicles have been put, is likely to deny the need to create this offence and to make it punishable with so high a maximum penalty. The offence is similar to that of unlawful seizure of aircraft under section 11 of the Air Navigation and Transport Act, 1973, but the maximum penalty for the latter is imprisonment for life. The British Act corresponding to the present Bill has created an offence similar to that under section 10. The offence under section 10 is included in the Schedule to the Bill.
Sections 11 to 13 establish a procedure by which the courts in each part of Ireland trying extra-territorial offences committed in the other part will be able to obtain evidence on commission in the other part for the purpose of the trial. The sections carry out the recommendations of the Law Enforcement Commission in this respect. This procedure will be an innovation, for in general all the evidence at a criminal trial must be given orally before the court, though, as pointed out in a recent Supreme Court decision, a statute may provide otherwise. I shall be referring to this decision later on. The proposal that the courts in each part of Ireland should be able to try offences committed in the other part involves a problem as to evidence. This is the question of how the relevant facts can be proved when, on the one hand, some or all of the witnesses are likely to be in the part where the offence was committed and not in the part where the court is sitting and, on the other hand, a court has no power to compel a witness outside its jurisdiction to come before it to give evidence. The solution proposed is that the court of trial should be able to issue a letter of request to the Chief Justice in the other part of the country for the taking of the necessary evidence on commission by a judge of the High Court in that part. It will be a necessary requirement that the evidence should be taken in the presence of the member or members of the court of trial. The accused will have the right to be present and legally represented at the taking of the evidence and also the right to cross-examine the witnesses. If he decides to be present, he will naturally have to be kept in custody while in the jurisdiction where the evidence is to be taken, as otherwise he could not be compelled to return for the completion of the trial. But while in custody he will be immune from any proceedings—including arrest or detention or questioning— in respect of any other matter, civil or criminal, in the jurisdiction where the evidence is taken.
The procedure, so far as it depends on the law of the State, is set out in sections 11 to 13. Section 11 applies to trials in the State and provides for the issue of the letter of request for the taking of evidence in Northern Ireland; section 12 provides for the taking of evidence in the State in response to a request by a court in Northern Ireland; and section 13 is ancillary. I need not at this point go into all the details of the procedure, but I shall mention certain points briefly and then deal with objections that have been raised against the procedure proposed.
First, in the case of a trial in the State, the procedure will be available only to the Special Criminal Court and to a court hearing an appeal from that court. It will not be available for jury trials.
Second, at a trial in the State the court will be bound to issue the letter of request, if either party so requests, unless the court is satisfied that it is not in the interests of justice to do so. The court might refuse to do so, for example, if it considered that the request was made frivolously or merely in order to delay the proceedings. The court will also be able to issue the letter of request of its own motion. On an appeal, the appellate court will be able to do so on request by a party or of its own motion. This is in accordance with the rule that it is a matter for the discretion of an appellate court whether to receive evidence for the purpose of an appeal.
Third, where a court in the State issues a letter of request, it will be obliged to inform the accused of his right to be present at the taking of the evidence in Northern Ireland and of his position if he exercises the right. In particular, he will be told that he will have to be kept in custody while in Northern Ireland. He will be told also of the rights that he will enjoy at the taking of the evidence and of his immunity from other proceedings in Northern Ireland. It is particularly important, in considering the procedure, to bear in mind that an accused person who exercises his right to be present at the taking of evidence on commission is guaranteed immunity from any other proceedings and is guaranteed that, on the conclusion of the commission, he will be returned to the State. His rights at the taking of the evidence include, of course, the right to be represented by his lawyers from the State and their right to cross-examine, and so on.
Fourth, the commissioner—that is to say, the High Court judge who is to take the evidence on commission—will have the same power to compel a person to attend as a witness and to produce documents as the power that a court has in the case of a witness at a trial, and a witness giving evidence on commission will enjoy all the privileges and immunities of a witness at a trial. These include the privilege of refusing to answer an incriminating question and immunity from being sued in respect of anything said when giving evidence.
I should mention here that the provisions of the new British Act as to the taking of evidence on commission are similar in effect to those of the present Bill.
Objections have been taken on several grounds to the procedure for the taking of evidence on commission. The objections have been taken partly in the debates in the Seanad and partly in discussion outside the Oireachtas. In some cases the objections, I think, must have resulted from a misreading, or misunderstanding, of the Bill; in others I can only suppose that the objectors have been simply out to oppose the Bill for purely political reasons and have seized on any arguments they can think of, however tenuous, in support of their objections. I shall try to deal with the objections that have been taken, being as fair to them as the absence of substance in them permits.
First it has been claimed that a person on trial in the State will not get a fair trial if part of the evidence in his case is taken on commission in Northern Ireland. The argument seems to be that the accused may be convicted on evidence given on commission by witnesses whom he has not had an opportunity to cross-examine. It is quite true that one of the fundamental requirements of a fair trial is that the accused should have a right to cross-examine the witnesses against him. This was made clear by the then Chief Justice Ó Dalaigh in giving the judgment of the Supreme Court in the case to which I referred earlier. The case is In the Matter of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970, and in the Matter of the Courts (Supplemental Provisions) Act, 1961, and in the Matter of Pádraic Haughey. It is reported in [1971] Irish Reports at page 217 and the relevant section of the Supreme Court's decision begins at page 256. On page 261 the Chief Justice said:
As to the disallowance of cross-examination, an accused person has a right to cross-examine every witness for the prosecution, subject, in respect of any question asked, to the Court's power of disallowance on the ground of irrelevancy.
However, in fact both the Bill and the British Act expressly provide that an accused shall have the right to be present at the taking of evidence on commission and the right to cross-examine the witnesses. The latter right of course means that the accused's counsel or solicitor may cross-examine the witness on his behalf and that the accused, if unrepresented, may himself do so. The provisions are in section 11 (2) of the Bill and paragraph 4 (1) of Schedule 4 to the British Act.
Second, it is said that the right of the accused to be present at the taking of the evidence on commission in Northern Ireland and to cross-examine the witnesses for the prosecution will in practice be useless to him. The reason alleged is that the accused will be afraid to go in custody to Northern Ireland because of what he may suffer at the hands of the authorities there. But, as I have already mentioned, the accused while in custody there will be immune from any other proceedings—civil or criminal— in Northern Ireland. This is guaranteed by the British Act in paragraph 4 (2) of Schedule 4.
Some critics have affected to disbelieve the guarantee on the ground that the authorities in Northern Ireland cannot be trusted to carry out the British Government's undertakings but will take advantage of the accused's return to Northern Ireland in order to ill-treat him. But this argument is not only dishonest but also ridiculous. There is no reason whatever to doubt that the authorities in the North will abide by the requirements of their legislation or to suppose that they will do anything but keep the accused properly in custody for the purpose of the commission. I do not believe that anybody would seriously question this, and I feel sure that the reason why some people have pretended to do so is that they know that there is no valid reason for objecting to the procedure agreed on with the British authorities and are desperately trying to fill the gap in their case by ritual abuse of those authorities. Quite apart from anything else, it will obviously be in the interests of the authorities in Northern Ireland that persons who are tried here for offences committed in the North, should, if guilty, be convicted, and it would not help the case for the prosecution if the accused, when he again appeared before the court here for the resumed trial, were in a position to complain to the court as to the way in which he was treated when in Northern Ireland for the purpose of the commission. Moreover, any Government here would obviously make the strongest representations to the British authorities in the event of any abuse in respect of the procedure under the legislation. Indeed, the legislation would cease to be operated if the abuses persisted.
Third, there has been a great deal of nonsense talked about the position of the trial judges at the taking of evidence on commission in Northern Ireland. As already mentioned, that evidence will be admissible at the trial only if the judges of the court have been present throughout the time when it was taken. In order to avoid any misunderstanding I should point out that the taking of the evidence on commission is not part of the trial, though it is connected with the trial. The evidence taken on commission cannot be taken into account for the purpose of the trial unless it is read out when the trial resumes, and the court will have the same power or duty to forbid the reading of any evidence as it has to exclude oral evidence tendered at a trial. This will apply, for example, to evidence of a confession improperly obtained.
The requirement that the judges shall have been present at the taking of the evidence is included for the protection of the accused. The judges will see and hear the witnesses giving evidence. When I say that the judges will see the witnesses giving evidence, I am not forgetting the extraordinary suggestion made in the Seanad that our judges might be invited to listen to evidence being given by hooded witnesses and might listen to it. Scarcely less staggering is the suggestion, also made in the Seanad, that, if a witness gives evidence in the North that the accused committed an offence, the judges will have to convict the accused on the mere word of the witness even though they may doubt whether the witness has told the truth. I should have thought that everybody would have known that a person cannot be convicted of any offence unless the court or jury, as the case may be, is satisfied beyond reasonable doubt that he is guilty. In this connection I should mention that, while this Bill was being debated in the Seanad, the British Bill was amended, as a result of a suggestion made by me in order to meet objections made in the Seanad, so as to provide expressly that the commissioner will have to comply with a request by the visiting judges to put a particular question or questions to a witness, unless of course the question has to be excluded on the ground of privilege. The relevant provision is in paragraph 3 (2) of Schedule 4 to the British Act. Section 12 (4) of our Bill is similar. I do not doubt that the effect would have been the same if the British Bill had been passed in its original form, but I am grateful to the British authorities for meeting my wish that the matter should be made abundantly clear.
Fourth, objection was taken in the Seanad to the procedure for the taking of evidence on commission on the ground that the European Convention on Human Rights, 1950, was being infringed. Article 6 of the convention was specifically mentioned. This article provides for the right of an accused person to a fair trial. The article provides that the accused person is entitled to defend himself in person or through legal assistance and that he is also entitled to examine or have examined witnesses against him—an entitlement that is not limited to the examination of such witnesses at the actual trial. These rights are fully protected by the Bill and they have been established in the Supreme Court decision to which I have referred.
The right to early trial or to release pending trial enshrined in section 3 of Article 5 of the convention is not in any way adversely affected by the provisions in the Bill in regard to the taking of evidence on commission. It was argued in the Seanad that the Bill infringes the right to bail because a person who elects to go to the North to attend at the taking of the evidence on commission has to be in custody. There is no substance in this argument. A person who is returned for trial must always surrender to his bail in order to come for trial. There is no difference between surrendering to one's bail at the court of trial and surrendering to it at any place where evidence is being taken for the purposes of the trial. Of course, if the accused person does not wish to go to Northern Ireland, he is perfectly free not to do so, and instead have himself represented by his own legal advisers. The argument that the European Convention on Human Rights prevents the taking abroad of evidence on commission for criminal trials overlooks one important factor. The Council of Europe has in another convention—namely, that on Mutual Assistance in Criminal Matters 1959 —specifically provided for the taking abroad of evidence on commission for criminal trials. The European Convention on Mutual Assistance has been ratified by nine members of the Council of Europe and of these eight have ratified the Convention on Human Rights. As the Law Enforcement Commission have pointed out, the taking of evidence on commission is used in other countries in criminal cases and is no novelty in our law or in the law of Northern Ireland in so far as civil cases are concerned. As far as criminal trials are concerned, the law is quite clearly and succinctly stated in the Supreme Court decision in the Committee of Public Accounts Case to which I have referred. At page 261 of the report in the 1971 Irish Reports, the then Chief Justice Ó Dálaigh states:
In a criminal trial, evidence must be given orally; a statute may authorise otherwise....
Fifth, it has been said that the provisions for the taking of evidence on commission in Northern Ireland will be unworkable because of difficulty as regards the identification of the accused if he is not present at the taking of the evidence. The argument, as I understand it, is that, since the witness will be giving his evidence in the absence of the accused, the result will be that, when the witness's evidence is read at the trial, there will be nothing to show that the accused in court is the same person as the offender about whom the witness has given evidence. This, I suggest, is one of the kinds of argument that people think up when they are casting about to find objections to a proposal and that other people repeat without properly examining it, simply because it seems to reinforce their objections. It is in fact fallacious. For not all the evidence at a criminal trial is given by eye-witnesses of the offence, nor is identity necessarily proved by visual identification.
For example, one witness may prove that somebody committed an offence, say a robbery, without being able to identify the robber; a second witness may prove the hijacking of a car used in committing the offence or in escaping afterwards; a third may prove that finger prints were found on the car; a fourth may identify the finger prints as those of the accused and so on. In other cases there may be no dispute as to the identity of the person involved in an offence but the accused may claim that he was acting in selfdefence or that what happened was an accident. Moreover, it may be the defence that want a witness's evidence to be taken on commission. They may hope that the witness will say that he saw the offence being committed and that he will describe the offender in a way inconsistent with his being the accused. Again, the defence may wish to call a witness to prove an alibi for the accused. Even where the prosecution call an eye-witness to the offence he may be able to identify the accused as the offender because he knows him personally. Even if the procedure proposed may be ineffectual in some particular cases because of the difficulty of linking the witness's evidence with the accused, this is not an argument why the procedure should not be available for cases in which it will be useful.
Lastly, the provisions of section 12 by which evidence can be taken here for the purpose of trials in Northern Ireland have been criticised on the ground that it will be offensive and provocative to our people here that we should co-operate with the authorities in Northern Ireland in this way. In particular, it has been suggested that our judges have so low an opinion of the state of justice in Northern Ireland that they would be embarrassed at being asked to take evidence on commission for use in Northern courts. I hope no more will be heard of this argument and I mention it only to protest at the slur that is cast on our judges by imputing to them any such opinions.
There are two general considerations that I would ask any Members who are still disposed to object to the procedure for taking evidence on commission to examine before deciding to maintain their opposition to these provisions. The first consideration—on which I have touched already in relation to evidence of identification—is that the procedure will be available for the defence as well as for the prosecution. If the defence are anxious to put before the court the evidence of a person who cannot or will not cross the Border to give evidence at the trial, are we really willing to deprive them of the means of getting evidence which these provisions alone can provide? The second consideration relates to the idea of an all-Ireland court.
We have been told that the scheme of the Bill and the British Act by which the courts of each part of Ireland should have jurisdiction to try offences committed in the other part is all wrong and that instead an all-Ireland court should be set up to deal with them. Yet, even if it were feasible for such a court to be set up, just the same difficulties would arise as to obtaining the evidence necessary to prove an offence in a case where a witness was unwilling to go to the part of Ireland where the accused was being tried, say, the State, and the accused was unwilling to follow the court when it went to the North to hear the evidence. In fact, so far as I can see, provisions similar to those contained in the Bill would be necessary with an all-Ireland court method, except that there would be no commissioner. In particular, it would be necessary for the accused, if he wished to be present at the taking of evidence in the North, to be taken to the North and kept in custody there and the criticism that police or army evidence in the North is unsatisfactory would apply equally to the all-Ireland court system. I should be glad to hear how the advocates of an all-Ireland court method would deal with these difficulties otherwise than by provision on the lines of sections 11 to 13 of the Bill.
Section 14 is a very important provision. It enables a person charged in the State with an extra-territorial offence committed in Northern Ireland to opt for trial in Northern Ireland for the corresponding offence under the law there instead of being tried in the State for the offence charged. It will be a condition that there should be a warrant in force in Northern Ireland for his arrest for the offence under the law there. The right of option is an essential part of the scheme proposed by the Law Enforcement Commission. If the accused opts for trial in the North, he will naturally have to go there in custody. After that it will be for the Northern courts to decide whether he should be kept in custody pending his trial or released on bail. A person accused in Northern Ireland of an extra-territorial offence committed in the State will have a corresponding right of option under the British Act to be tried in the State. I need mention only a few matters in respect of the procedure. Subsection (1) provides that both the District Court and the court of trial shall inform the accused of his right of option. If he exercises the option, the court will make an order for his delivery in custody to the police of Northern Ireland.
In addition, the accused will be able to exercise the option before the High Court. If after having exercised the option, the accused escapes from custody, whether in the State or in Northern Ireland, and is found in the State, he will be brought before a judge or justice of any court, who, if satisfied as to the facts, will make a fresh order for the accused to be taken in custody to Northern Ireland. The judge or justice will be able, though not compelled, to act on a certificate by the appropriate authority in Northern Ireland that the accused escaped from custody there. If the accused is subject to other criminal proceedings in the State, his delivery to Northern Ireland will be postponed to the conclusion of the proceedings and of his sentence, if any.
Section 15 is a declaratory provision to make it clear that a person acquitted or convicted of an offence under the law of Northern Ireland may rely on his acquittal or conviction as a bar to being tried in the State for the corresponding extra-territorial offence under the Bill. This is obviously required by natural justice.
Section 16 provides that barristers and solicitors practising in Northern Ireland shall have a right of audience before our courts in proceedings in connection with an extra-territorial offence or with the taking of evidence on commission in the State for the purpose of trials in Northern Ireland. Barristers and solicitors practising in the State will have a right of audience before a commissioner taking evidence in Northern Ireland for the purpose of a trial in the State, but they will not have a right of audience at a trial in Northern Ireland. Notwithstanding the absence, for the present at any rate, of reciprocity as regards the right of audience at trials, the Government here believe that it is right in principle that persons charged in the State with offences committed in Northern Ireland should be able to be defended by barristers or solicitors practising in Northern Ireland. I should mention that in the North solicitors have not a right of audience at trials on indictment whereas here solicitors have a right of audience in all courts.
Section 17 empowers a court before which proceedings for an extra-territorial offence are being held to prohibit the publication of the name and address of a witness except to the court, the parties to the proceedings and other persons concerned. The power will be exercisable in respect of witnesses before the court and also in respect of the maker of any oral or written statement tendered to the court, for example, the maker of a deposition, and of any person whose evidence is to be taken on commission in Northern Ireland. A commissioner taking evidence in the State for the purpose of a trial in Northern Ireland will have a similar power under section 12 (2) (d) of the Bill. These powers might have to be exercised for the protection of the witness concerned.
Section 19 confers powers of arrest without warrant in connection with an extra-territorial offence. These powers correspond to the present common law powers of arrest in respect of felonies, and they are given by the Bill because the offences in question are not being made felonies. If, as I hope, provision is made by legislation here abolishing the distinctions between felonies and misdemeanours in the case of offences generally, these are the powers which I should expect to see conferred by the legislation in consequence of the abolition.
Subsections (4) and (5) of section 20 make certain provisions as to extradition between the State and the neighbouring jurisdictions. The provisions are mostly consequential on the extension by the Bill of the criminal law of the State to things done in Northern Ireland. Subsection (4) (a) ensures that a person acquitted or convicted in the State of an extra-territorial offence shall not be extradited to Northern Ireland for an offence under their law consisting of the same acts. Subsection (4) (b) makes it impossible for the authorities in Northern Ireland to claim that a person should be extradited to Northern Ireland for an offence committed in the State solely on the ground that this is an extra-territorial offence under the law of Northern Ireland as a result of the corresponding British Act. Subsection (5) ensures that a person extradited to the State for an ordinary offence shall not be tried in the State for an extra-territorial offence committed before his extradition unless either of two conditions is satisfied. One is that a warrant has been issued in Northern Ireland for the offence in question, in which case he will have the right under section 14 to opt for trial there. The other condition is that a period of at least seven days has elapsed during which he has been free to leave the State after the conclusion of the proceedings for the offence for which he was extradited to the State, and any other criminal proceedings pending against him, and the conclusion of any sentence passed on him, or he has returned to the State after leaving it.
Subsection (6) of section 20 ensures that a person convicted of an offence under section 2 consisting of murder committed in Northern Ireland shall not be liable to the death penalty even in a case where he would have been liable to that penalty had the offence been committed in the State. Instead, he will be sentenced to life imprisonment. Capital punishment for murder has been abolished in Northern Ireland, and it does not seem to the Government right that it should be possible even in theory for a person to be liable to the death penalty in the State for a murder committed in Northern Ireland.
Subsections (4) and (6) of section 21 alter the maximum sentences for three offences relating to firearms so as to bring those sentences into line with those in force for the similar offences under the law of Northern Ireland. In one case the maximum sentence is reduced, in the other two it is increased. The changes are considered by the Government to be desirable in themselves and also because the offences are included in the Schedule to the Bill.
This then is the Bill that is now before you. The Bill does not provide another form of extradition for those who have escaped that process. The Bill does not provide for the handing back of fugitive offenders against their will. The Bill does not provide for trials in the courts of another jurisdiction. It provides for trials in our jurisdiction under our Constitution and in accordance with our laws and procedures. It does not provide for trials in the absence of the accused. He is entitled as of right to be present at all stages of the trial and, where he goes temporarily to the other jurisdiction to be present at the taking of evidence on commission, he is guaranteed immunity there. What the Bill does is to make certain offences, when committed in Northern Ireland, offences against the law of our State, triable in our courts and on conviction punishable under our law and in our territory.
I regret that the solution the Bill proposes has produced such vehement and at times hysterical reaction. It has been criticised as divisive but quite frankly I have been puzzled by this criticism and it leads me to ask whom is it dividing? I cannot conceive that there would be any difference of opinion between any sections of our people down here on the need to bring to justice people who have perpetrated serious crimes in Northern Ireland. Does any person touched by civilisation, not to mention Christianity, condone the blowing to pieces of a fellow-human being merely because of the colour of the uniform he is wearing or the restaurant he is dining in? On a lesser scale of horror surely there is no difference of opinion down here that it is absolutely wrong to blow up the residence or business premises of a fellow-Irishman merely because he is a unionist by political inclination and that the person guilty of such an outrage deserves to be punished? I submit that failure to do what we can to bring such criminals to justice could with justification be pointed to as condoning their actions. I cannot agree that this Bill is divisive. Most certainly it cannot be alleged that the Bill divides the people of the South from the people of the North. On the contrary it should bring them closer together as an earnest of the concern of the people in the South for their brothers in the North. Again can it be alleged that it divides people in the North from each other? It may be said that these people are already divided politically but there is no doubt that they are united in one thing and that is their detestation of terrorism. This Bill is not going to interfere with that unity.
Another criticism that was made is that the Bill is untimely, but this too is a criticism that has been unsupported by a reasoned argument. If it is offered in this debate, I should like to be told exactly why the Bill is considered untimely. Terrorism is current and deadly and it requires a deterrent now.
Another criticism that has been made is that the Bill is repressive. Like so many of the criticisms, this criticism is made in the form of an allegation unsupported by argument. A criticism is, of course, only as strong as the argument that supports it. Every piece of legislation in the criminal law field must of necessity be repressive in so far as it seeks to repress crime. I submit that this Bill is neither draconian nor oppressive. The Bill seeks to close a gap that at present enables people to escape the consequences of their crimes. Such legislation must surely be welcomed by all who want to see an end put to these criminal acts.
It may be argued that the objection is not to the principle in the Bill but to the method it proposes. However, as I said at the outset, this argument imposes on those who raise it the duty, because of the urgency and the seriousness of the problem now facing us, to propound another solution that is immediately available to us. Let us pass this Bill into law and operate it with a determination to make it succeed so that it will become an important weapon in ridding this island of the scourge that has brought so much unhappiness to so many people. I would go so far as to say that those who criticise the Bill and condemn it run a serious risk of placing themselves on the side of the terrorists unless they can show convincingly and well-high conclusively that there is an alternative remedy immediately, and I emphasise immediately, available.
The solution in this Bill is not new and, as I have demonstrated, has good and ample precedent. In fact, it is a solution that was considered some years ago. The Bill offends no legal principle and is as recommended to us by a commission of eminent judges and lawyers. It is a particularly vital piece of legislation in the context of our relationship with our fellow-Irishmen in the North.
Before I conclude, I should like on my own behalf and on behalf of the Government to express sincere gratitude to the members of the Law Enforcement Commission for their valuable report. These men were given a difficult and complicated task and they performed their duties with distinction and with great despatch. I cannot urge too strongly that their report be studied carefully and that those who object so strongly to what is proposed in this legislation should read before they speak.
The agreed recommendations of the Commission are being implemented both in the Bill before this House and in the legislation which has recently been enacted by the British Parliament. The British Act makes the offences with which we are concerned, when committed in this State, offences against the law of Northern Ireland, thereby dealing, for the protection of the citizens of this State, with the converse of the situation being dealt with in our Bill.
When both pieces of legislation are in operation, no terrorist whether his hue be green or orange will be able to find refuge from the consequences of his crime in any part of this island by pleading political motivation for his dastardly acts. It is the fervent hope of the Government that such a situation will contribute substantially to the ending of the terror and the violence— an objective devoutly desired by every right-thinking Irishman, whether he lives North or South of the Border or on a foreign shore.
I commend this Bill to Deputies.