The first thing I should say is that this has been an interesting debate not so much for what was said but for the points of view put forward on both sides of the House. Having regard to the amount of discussion that has been had on this Bill in this House, outside the House and in the other House it was not surprising that the views put forward have all been adumbrated at one time or another. What was interesting about this debate was the different approach by the Opposition to it. It was so vastly different from the stridency, indeed the near hysteria, with which they approached this Bill when the motion to discharge it was before the House earlier this year and the same type of approach which characterised the debate in the Seanad, a violent stridency which has been completely absent on this occasion. This is something we must be glad for.
There were very unfortunate things said in the Seanad. If they do not represent a majority view of Fianna Fáil it is good to know that. We have heard all the other arguments before but nevertheless I propose to deal with them and answer them as best I can and in as much detail as possible.
I might start by referring to the changes in the substantive criminal law which are being made in this Bill. There are quite significant changes being made in it, changes which in my opinion improve the criminal law in those regards. It has been suggested that this is not the proper vehicle for making those changes, that they would be better introduced in a separate Bill. However, I was glad of the opportunity in this criminal law measure to introduce these changes because I believe they are desirable in themselves. In addition they are desirable in the context of this Bill. It is providing for extra-territoriality, not simple extra-territoriality but in the context of a reciprocal measure passed through the British Parliament. It is important, when there is reciprocity such as this, that the criminal codes should, as far as possible, march on all fours. That is another advantage in making these substantive changes in the criminal law.
The changes have been criticised on the ground that they are unduly harsh and that they are increasing in a draconian fashion the penalties for certain crimes. The query has been raised: "What is the need for this?" I hope to explain that the changes that are being made are not draconian; indeed they are not harsh, and I hope to show that there is good need for them.
Taking the first substantive change, that relating to the law of robbery contained in section 5 of the Bill. At present simple robbery is punishable with 14 years' imprisonment but, if the offender is armed with an offensive weapon or is in the company of one or more persons or if he uses personal violence, the offence is punishable with imprisonment for life. This is provided by section 23 of the Larceny Act, 1916. What the new section does is to make robbery punishable with imprisonment for life in all cases. The first reason I would advance as to why this is a good change is that the present distinctions are anomalous. A person who commits robbery when accompanied by another person is liable to life imprisonment; a person who robs a victim by threatening to kill him on the spot is liable to 14 years' imprisonment. These, of course, are the maximum sentences and it is for the court to decide what is the proper level at which a person will be punished in a particular case. Nevertheless, when the Legislature indicates a severe maximum it is an indication to the courts that the Legislature is of opinion that the offence is serious and deserves serious punishment.
That is the first reason for the change in the law of robbery, that the present distinctions are anomalous and the anomaly is that the person who commits robbery when accompanied by another person is liable to life imprisonment but if he is by himself and commits robbery with a threat to kill he gets only 14 years' imprisonment at maximum. Also, there is the fact that little robbery is committed nowadays that is not aggravated in one or other of the ways I have mentioned, that there is another person present or that personal violence is used or that the offender is armed with an offensive weapon. There is little robbery that is not accompanied by one of those conditions and, if it is, it becomes aggravated robbery and therefore punishable by life imprisonment.
Also, under the 1916 Act assault with intent to rob is punishable with life imprisonment in those cases where robbery itself is so punishable and in other cases it is punishable with five years' imprisonment.
Under this Bill we propose to change this law to make assault with intent to rob punishable in the same way as robbery, that is with a maximum of life imprisonment. This is in accordance with the general principle of these changes which is to simplify the law in the areas in which the changes are being made and because, of course, assault with intent to rob ordinarily amounts to attempted robbery which is punishable as for a successful robbery. So, in the case of the offence. I am sure the changes are designed to remove anomalies and to take account of the seriousness of the offence. I am sure every Deputy will agree that robbery should be marked with an indication of our concern that it be regarded by the courts as a most serious offence.
Sections 6 and 7 of the Bill deal with the offences of burglary and aggravated burglary. It is difficult to make an exact comparison between the maximum penalties in the present law because the Bill completely changes the substantive law as to the offences. The present offences are contained in sections 24 to 27 of the Larceny Act, 1916. These provisions make elaborate distinctions between the offences and the penalties differ considerably. This is explained in some detail in paragraph 18 of the Explanatory Memorandum circulated with the Bill. For example, breaking and entering a church at any time and committing a felony in it is punishable with life imprisonment. That is technically known as the offence of sacrilege. Breaking and entering a dwelling house at night with certain other specified kinds of building at any time and committing a felony in it is punishable with 14 years' imprisonment. Immediately, one sees a rather anomalous distinction that if the offence is committed at night-time it could attract a maximum of life imprisonment but if in the day-time the maximum is 14 years' imprisonment. That is clearly anomalous. Entering a dwelling-house at night without breaking, or entering a dwelling-house or other specified building at any time, with intent to commit a felony in it is punishable with seven years' imprisonment. Again, that is anomalous and to a person hearing it for the first time it sounds a rather odd way to phrase the offence.
Under the Bill—again I am synopsising what the Bill says—burglary will consist of entering any kind of building as a trespasser with intent to steal or commit any of certain other offences in it and will be punishable with 14 years' imprisonment. If the offender has a firearm with him or a weapon of any sort, the offence will amount to aggravated burglary and will be punishable with life imprisonment. As a result of the changes that we are making in this area of the law some offences will attract a heavier maximum punishment than at present while others will attract a lighter maximum. I am satisfied that the changes which this Bill proposes in the substantive criminal law of the State are good ones, and that they are right in policy, because the law should be clear and as simple as possible and should get rid of unnecessary complications and because a reciprocal measure to this Bill has been passed by the other jurisdiction. The changes will put the offences on all fours to a great extent.
As regards firearms offences—and in the context of Ireland today I think no one can deny that firearms offences are extremely serious—the penalties for these offences at present are provided by the Firearms Acts, 1925 to 1971 and the maximum penalty for the offence of possessing a firearm with intent to endanger life or cause serious injury to property is 20 years under the 1925 Act. It becomes 14 years under the present Bill. The maximum penalty for the offence under section 26 of the 1964 Act of possessing a firearm while taking a vehicle is increased from five years to seven years and the limit of £500 on the amount of the fine is removed. The maximum penalty for the offence under section 27 of the Firearms Act, 1964, of using a firearm to resist arrest or aid escape is increased from 5 years' to 14 years' imprisonment and the limit on the amount of fine is also removed.
Again, one of the reasons for the changes here, apart from marking the seriousness of the offences in the context of present-day Ireland, is to ensure that there will be reciprocity between the two jurisdictions in regard to these offences because they are offences which are scheduled under this Bill.
Deputy Thornley dealt with this question and he put some questions to me about the maximum penalties proposed by the Bill for burglary, housebreaking and attempted robbery. Apparently, he thought that the Bill proposed to make large increases but I think he has misunderstood the Bill. I think he prefaced some of his remarks by saying that possibly he was misunderstanding it. In fact, he did so. As reported in column 858 of the Official Report for 3rd December he said that burglary becomes a felony punishable with imprisonment for life, which penalty, he said, would be ridiculous. In fact, burglary in the correct sense of the term, that is to say, breaking and entering a dwelling-house at night with intent to steal, is punishable with imprisonment for life under the present law and under the Bill this will be punishable with only 14 years' imprisonment. This is an example of the mistaken impression that has gone abroad in regard to what this Bill is doing. It is only when the burglar is armed or has an explosive with him that the offence will be punishable with life imprisonment. I think it is proper that we should mark our opposition to serious crimes of violence by ensuring that legislation passed in that area will provide severe maximum penalties.
Deputy Thornley said that housebreaking and committing a felony is punishable at present with seven years' imprisonment. The maximum is 14 years. He said also that the maximum penalty for attempted robbery is five years, but this is not so. The attempt is punishable in theory by unlimited imprisonment but in practice it has the same maximum as for the completed offence. Therefore, the present law is complicated both as regards the components of the offences and the various punishments provided for them. It is not surprising that Deputy Thornley and other commentators outside the House misunderstood the present legal position regarding these offences. I have demonstrated to the House that the changes are not draconian but are reasonable because, first, they tidy up the present legal position and, secondly, they introduce maximum penalties which are of sufficient gravity so as to signal to the courts that the legislators of this land regard these as extremely serious offences, thereby allowing the courts to act accordingly having regard to the circumstances of each case. Of course, we cannot direct the courts on what punishments to apply. That is their constitutional prerogative. These explanations may seem technical but it is important that the misunderstandings that are abroad with regard to the changes in our substantive criminal law be removed. The changes are severe but the offences are extremely serious, involving firearms, robbery and all these other heinous crimes.
Deputy O'Connell asked me to clarify a point in relation to section 8. When he was speaking in this debate he suggested, as reported at column 796/7 of the Official Report for 3rd December, that the effect of the section would be that persons accused of offences under that section of possessing firearms or ammunition in suspicious circumstances would be guilty until proved innocent. This is a misconception and is not what the section says. The section reads:
A person who has a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that he has not got it in his possession or under his control for a lawful purpose shall, unless he has it in his possession or under his control for a lawful purpose, be guilty of an offence...
This does not mean, as the Deputy thought, that an accused is guilty until he proves his innocence. The Deputy quoted two sentences from paragraph 20 of the explanatory memorandum as purporting to show in his view that the Bill would have this effect. These read:
The essence of the offence will thus be the suspicious circumstances in which the person in question has the firearm or ammunition. Where the defence is that the accused's purpose was lawful, the new section casts an evidential burden on the accused of proving this.
Unfortunately Deputy O'Connell did not read the next few sentences which explain what an evidential burden of proof means. It is a technical matter relating to the law of evidence and I quote:
That is to say, if the prosecution proves the possession or control and the suspicious circumstances, and the accused's defence is that his purpose was lawful, it will be for him to give, adduce or elicit sufficient evidence to raise an issue fit for consideration as to the lawfulness of his purpose. If he fails to do so, he will be guilty of the offence. If he succeeds in doing so, the prosecution will have the usual burden of proving beyond reasonable doubt that his purpose was not a lawful one.
Under the section the prosecution has the normal duty of proving the possession and control of the firearm in question and also proving that it was in the possession in such circumstances as to give rise to a reasonable inference that it was not in his possession for a lawful purpose. That is the burden the prosecution must discharge and it is a serious burden. If they discharge it there is an evidential burden on the accused, not to prove himself innocent but to provide some ground to show that the possession which the prosecution has proved was not in fact unlawful. Deputy O'Connell has confused evidential and persuasive burdens of proof, but this does not surprise me since it is a rather intricate legal concept which causes confusion even among lawyers. A persuasive burden of proof means that the accused must prove the matter in question on a balance of probabilities. Section 8 is similar to the many enactments which provide that a person is guilty of an offence if he does something without reasonable excuse or without the leave of some authority. Such types of offences are common in our criminal law code. These enactments put an evidential burden on the defence but not a persuasive one.
It is wrong to suggest that the wording of the offence in question relating to the possession of firearms in unlawful or suspicious circumstances shifts the burden of proof. For the reasons I have stated it does not do so.
The other line of opposition to the Bill relates to a number of aspects— its constitutionality, the procedure for taking evidence on commission, the effect it will have on our police and their role, the effect it will have on our judiciary, the taking of prosecutions and the allegations that it contravenes the European Convention on Human Rights. I propose to deal with all of these contentions, not necessarily in that order.
First let me draw the attention of the House to the amendment which was moved asking Dáil Éireann to decline to give a Second Reading to the Bill on the grounds that it contains no provision for an all-Ireland court, is unworkable, is inconsistent with Ireland's obligations under the European Convention on Human Rights and is repugnant to the Constitution in that it contravenes Articles 3 and 38. Presumably that is the essence of the Opposition's case against the Bill. To take first their claim that the Bill is repugnant to the Constitution, this was an argument that was advanced against the Bill from the time it was published. This argument was pursued in the Seanad and has been pursued in this House but there have been significant and serious differences in the details advanced by the Opposition in support of that argument. They began by arguing that it was inconsistent with Article 3 for the State to take powers to legislate extra-territorially, that this sovereign Parliament was not entitled to create extra-territorial offences and that pending the reintegration of the national territory this Parliament was confined to legislating for this territory only. At this stage it is now common case between both sides of the House that this Parliament is entitled to legislate extra-territorially. There has been a misunderstanding of the nature of extra-territoriality. This concept does not claim jurisdiction over other territory but it claims the right to legislate for actions in other territories of nationals and non-nationals and it does so on foot of a well-settled principle of international law. A sovereign state is entitled to do this in accordance with a number of principles, the best known of which is the protective principle for the protection of its own territory, citizens or interests.
Therefore, the Opposition's argument falls. Speaking in this House on December 3rd and as reported at column 876 of the Official Report Deputy Colley said:
Of course there is precedent for deeming an offence committed outside the jurisdiction to be an offence committed inside the jurisdiction and for its being treated accordingly. We could not dispute that nor would we attempt to do so.
That concedes clearly that extra-territoriality is feasible under our Constitution. It does not infringe it in any way. There was confusion on the part of the Opposition regarding the nature of extra-territoriality. Deputy Lynch sought to rely on the wording of Article 3, on a simplistic reading of the Article in which it refers to the fact that pending the reintegration of the national territory the area of jurisdiction of the Parliament extended only to the area of Saorstát Éireann. That is an incorrect statement of the law. It was conclusively demonstrated by the Attorney General in his reply and is now accepted by Deputy Colley.
Deputy O'Malley referred to a recent judgement of the High Court in the matter of an application for an order of certiorari by Brendan Devine and in the matter of the Courts of Justice Acts, 1924-71, and in the matter of the Constitution and other matters. He sought not to deny the principle of extra-territoriality or the right of the State to pass legislation having extra-territorial effect but rather to rely on this case as saying that the State could only pass such legislation in regard to its own subjects and he equated its own subjects with its own citizens. He sought to rely on the judgement to support that contention. I have read the judgment and I cannot see it as supporting that contention. In the course of his judgement, the judge quite specifically said that the submission that a district justice had no jurisdiction because the alleged offences consisted of acts committed in a foreign jurisdiction failed. The prosecution further argued that the peace commissioner who issued the summonses on which they were convicted had no jurisdiction to do so when the alleged offences were committed outside the jurisdiction. He said there was no substance in this contention since it was admitted that the prosecutors resided within the area of the jurisdiction of the peace commissioner and this fact was sufficient to give jurisdiction to the commissioner to issue the summonses under the District Court Rules, 1948.
In the course of his judgement, the judge, Mr. Justice McMahon said:
In my opinion Article 3 cannot be construed in this manner.
—that was to suggest that it prevented the Legislature from passing extra-territorial legislation. He further stated:
No reason has been suggested for limiting the powers of the State by reference to the extent to which Saorstát Éireann had exercised power to make laws having extra-territorial effect.
In my opinion Article 3 of the Constitution in providing that the laws enacted by Parliament shall have the like extra-territorial effect as the laws of Saorstát Éireann means the like extra-territorial effect as the laws of Saorstát Éireann were capable of having. Under Article 3 laws having a purely domestic import do not extend to Northern Ireland, but laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland.
Clearly that shows that the court was of the opinion that the Legislature can legislate extra-territorially for Northern Ireland. Deputy O'Malley sought to rely on the use of the words "can bind those who are subjects of the State in regard to their conduct in Northern Ireland" as limiting extra-territorial legislation to take effect only on the subjects or citizens of the jurisdiction passing that legislation. It is wrong to interpret the judgment in that way and in my opinion that was not the intention of the judge. It is quite clear that the judge did not hold that there was no power to affect the acts of non-nationals, his reference to subjects being a phrase used in a judgment he had quoted earlier.
It is well settled in international law that sovereign nations have power when legislating extra-territorially to deal with acts not merely of their own citizens or subjects but with the acts of any person. I mention that to clear up that point. Deputy O'Malley raised this as an argument against the constitutionality of the Bill because the extra-territorial powers taken in the Bill apply to offences committed by any person, not just citizens of the State. Significantly, he put forward that gloss to support his argument, a gloss as to the status of the person affected by the extra-territorial legislation. He did not put forward the argument that was originally advanced in the Seanad and by his own leader that there was no power by virtue of the Constitution to pass extra-territorial legislation. It is now common case between all sides that there is such power and the argument in relation to the constitutionality of the Bill must go by the board.
It was further argued that the Bill is unconstitutional in that it seeks to institutionalise the Special Criminal Court in that it give that court jurisdiction over extra-territorial offences. Of course it does not institutionalise that court because the Act has a life of its own independent of the existence of the special court. Although the commission procedure provided for in section 11 can only apply when a trial is before the Special Criminal Court, should the happy day come when that court can be disestablished the Act will continue to have a life of its own.
The other leg of the argument relating to the Special Criminal Court is based on the wording of Article 38 of the Constitution which set up the court. It said:
Special courts may be established by law for the trial of offences in cases where 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.
It was argued by the Leader of the Opposition at column 1721 of the Official Report dated 20th November that:
Our Constitution never contemplated that while Ireland remained partitioned special criminal courts would be established in the south to secure the effective administration of justice in Northern Ireland.
Of course this again shows a misunderstanding of the legal position relative to Article 38 and relative to this Bill. Article 38 provides that special courts can come into being when the ordinary courts are inadequate to secure the effective administration of justice. In the context of this Bill the effective administration of justice must mean the effective administration of the law as proposed by this Bill albeit as regards extra-territorial offences and it does not take from the powers at all that the justice which is being administered involves the punishing of an offence committed extra-territorially. There is no inconsistency there and the special court clearly has power to deal with such offences.
The other criterion for the setting up of the court is the preservation of public peace and order. It can hardly be argued that that criterion is in any way breached by providing for extra-territorial offences or the punishment of people whose offences have inhibited the preservation of public peace and order. The argument that the special court cannot deal with extra-territorial offences because the trial of such offences would not be the effective administration of justice falls down. Once the Legislature is entitled to create an extra-territorial offence that is an offence against the laws of this State and, therefore, triable in the courts of this State including the Special Criminal Court.
So the constitutional arguments, in my opinion, have been rebutted and I would refer again to the intervention of the Attorney General. They have been rebutted, in my opinion, conclusively but, of course, that is not to say that a person who might be arraigned under this Act is going to agree with my view or the view of anybody in this House on the constitutionality of the Bill and it is very likely the Bill will be attacked again on constitutional grounds and that its constitutionality will have to be decided. It may have to wait until it is decided in that way or, as was mentioned in the course of the debate, the President may exercise his prerogative after consultation with the Council of State and have the Bill adjudicated on in advance. That is the President's prerogative and it would be impertinent for anybody in this House to intervene and advise as to whether that prerogative should be exercised or not but I would say that it would clear the air once and for all conclusively on this question of constitutionality if a reference were to be made and it would possibly obviate the delays that would ensue if the reference to the Supreme Court came after the Bill was in operation and the reference was as a result of the party to a trial pursuing the matter in the High Court and the Supreme Court.
Section 11 of the Bill, the section which provides for the taking of evidence on commission, was strongly attacked by many Deputies opposite and on a number of grounds. It is an unusual procedure, indeed in the criminal code in this jurisdication it is a unique procedure, but it is not necessarily a wrong or invalid or indeed a bad procedure because it is unique. We have to look at it in the context of the time we live in and in the context of what this Bill seeks to do. It is no harm to recall what this Bill seeks to do because it is my experience of this debate and of the debate in the Seanad that the net object of the Bill was inclined to be overlooked and forgotten. We have the scandal in this island of people coming into our jurisdiction accused of the most serious crimes in another part of the island and escaping the consequences of their crimes, escaping being tried even for their crimes.