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Dáil Éireann debate -
Wednesday, 10 Dec 1975

Vol. 286 No. 8

Private Members' Business. - Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."
Debate resumed on the following amendment:
To delete all words after "That" and substitute the following:—
"Dáil Éireann declines to give a second reading to the Bill on the grounds that it contains no provision for an all-Ireland Court, is unworkable and is inconsistent with Ireland's obligations under the European Convention of Human Rights, and is repugnant to the Constitution, in that it contravenes Articles 3 and 38."
—(Deputy G. Collins.)

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.

On a point of clarification, I think almost every speaker from this side of the House, or the vast majority of them, said they supported what this Bill hoped to achieve so I think the Minister is over-stating it a little when he says the net object of the Bill was over looked.

Possibly my mind would be coloured by this day's speakers. They were Deputy Haughey who omitted to endorse his colleague's acceptance of the objectives of the Bill, Deputy Blaney who likewise omitted to endorse the acceptance on that side of the House, by and large, of the objectives of the Bill and Deputy de Valera, although I think it was an oversight on Deputy de Valera's part. I would say that because of the general tone of his remarks. I think it is no harm again to state here that it is very largely common case— although there are exceptions—on both sides of this House that it is a scandal that the problem of the fugitive offender should remain with us. This is what the Bill is endeavouring to deal with. It is making the offences in respect of which those people have been fleeing crimes against our criminal law, triable in our courts and punishable, if conviction follows, in our prisons, triable in accordance with our legal code and customs and practices, before our judges and in accordance with our rules and, if this Bill passes, in accordance with this Act of this Oireachtas. That is what it sets out to do.

Again it would be flying in the face of the reality on this island if one were not to admit that the giving of evidence in respect of extra-territorial offences is going to present difficulties. It is more likely that these offences are going to be tried in courts of the Republic and it is probable that the vast bulk of the evidence will be available from witnesses from Northern Ireland. They may be civilians, they may be military, they may be police. We do not know yet what conventions will grow up with regard to the giving of such evidence, whether people will be prepared to travel to the courts in the south or whether they will be apprehensive of travelling to courts in the south. Some will, some will not, but we have to provide for the eventuality that some will not be willing to travel to the south. They may be apprehensive for their safety. If this Bill is to be effective and if these prosecutions are to be mounted and brought to a successful conclusion, it will be necessary that all persons with evidence pertinent to the case will be afforded an opportunity to make that evidence available to the courts. Consequently it may be necessary to provide for the taking of that evidence in Northern Ireland and section 11 provides the machinery to do this. It has generally been assumed by speakers on the other side, who are critical of section 11 and the machinery for taking evidence in Northern Ireland, that no witnesses will come down to the south to give evidence in the courts here and that, in effect, the only evidence that will be adduced in the Special Criminal Court in this jurisdiction will be the evidence of arrest by the Garda. That is an assumption, and possibly it is a valid assumption, but I do not think it can be taken as a strong or likely assumption. I see no reasons why members of the police especially in Northern Ireland would not come down to this jurisdiction to give evidence especially as they do so now in extradition applications.

Surely it is on that assumption that section 11 is in this Bill?

It is on the assumption that some will and some will not.

It is on the assumption that they will not.

It has to be assumed that some will not. The point I am making is that the case was consistently put by the Opposition that not one witness would come south.

Section 11 is the Minister's assumption.

I am anxious that the Minister would be allowed to reply in his own way without interruption. If there are relevant questions at the end the Chair will consider them.

I am making the point that some witnesses will come south and that some will not. On the assumption that some witnesses will not come south section 11 is in the Bill and we are agreed on that. I am going further to deal with an assumption that was consistently made by Opposition speakers, that no witnesses at all would come south. It was on the basis of that assumption that much of the criticism was mounted. Generally, the criticism was that the whole trial would take place in the North. Deputy O'Kennedy was not here for the entire debate. I was present and this argument was put forward.

The Minister is trying to defeat the wrong argument. He will not face the substantial argument which is for the witnesses who do not come south. That is why it is here and that is our case.

I am going on to talk about that. The point I am making is that the Opposition were exaggerating their own case by assuming that no witnesses at all would come south. In my opinion many witnesses will come south. Members of the RUC have come south to give evidence in our courts in extradition cases and I see no reason why they would not come south to give evidence in the prosecution of scheduled offences under this Bill. If they do not come south section 11 provides machinery for the taking of their evidence on commission.

This procedure has been criticised on a number of grounds. It has been criticised from the point of view of the judiciary from the south who will be going north to attend at the commission; on the grounds that the accused, if he goes there, will have to go in custody; on the grounds that in effect the trial will be taking place in the North and that it will be generally unsatisfactory. The section has also been criticised on the grounds that by reason of this the rights provided by the European Convention will be adversely affected or will be diminished. The rights provided by the European Convention are included in Articles 5 and 6. Notwithstanding the fact that this formed a substantial part of the Opposition motion very few speakers dealt with these Articles in any detail. The only speakers to deal with them from the Opposition side was Deputy Andrews and Deputy O'Connell from this side also dealt with them. Article 6 (3) states:

Everyone charged with a criminal offence has the following minimum rights...:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...

It has been suggested that this Bill in some way infringes those rights and this objection has been made in the context of section 11. Section 11 specifically provides for the accused to be represented by his counsel and solicitor from this jurisdiction. This right is reciprocated in the other legislation. The accused is entitled to defend himself in person or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. There is nothing in section 11 which diminishes those rights. At the hearing of evidence on commission an accused is entitled to be present and to defend himself in person if he so wishes.

Entitled to be present in the custody of the police. The Minister should quote all of the section.

I will come to that in a moment. The right that is guaranteed is to defend himself in person or through legal assistance of his own choosing. He is entitled to legal aid if the interests of justice so require. His rights in person or through his councel to examine and cross-examine are preserved in the Bill and his right to have evidence called is also preserved. I cannot see that there is any interference or diminution of the rights given by that Article by the provisions in the Bill.

Deputy O'Kennedy makes the point that the fact he has to travel in custody is cutting down of those rights and that that in some way inhibits the right to defend himself.

There is also the fact that he has to travel to be able to exercise those rights. To exercise those rights he has to surrender himself into the custody of the police in Northern Ireland. Therefore, the exercising of the rights can only follow his voluntary surrender into the custody of the police in Northern Ireland. That would seem to be a major qualification on the exercising of rights.

We have to debate this Bill in the context of Ireland in December, 1975.


Deputies have had an opportunity to contribute during the course of the debate on the Second Stage and they must now allow the Minister to continue without interruption.

If the Deputy permits me I will deal with all the points raised during the debate. We are debating this Bill in the context of December, 1975; in the context where we are trying to deal with serious crimes committed in Northern Ireland and it must be remembered that serious crimes are committed by serious criminals. These people have come south looking for refuge. They have been arrested here and charged before our courts for offences committed in Northern Ireland. Before our courts can convict these people our courts have to have evidence on which they can act. The Bill pays attention to the reality in this island by making provision for the taking of that evidence in the other jurisdiction because if that provision was not in the Bill it would be of no effect; it would be a useless measure. This provision must be in the Bill so that our courts can be presented with all the evidence relevant to the crime being tried.

Some of the evidence has to be obtained in Northern Ireland and the question then arises of the accused being afforded his right to be present at the taking of this evidence. This right is provided for; he is entitled to be present at the taking of the evidence. The question then arises of the actual physical bringing of the accused before the court in Northern Ireland. In the interest of justice, and in his interests, the accused should be present. Can anybody realistically say that to allow an accused to go to the North with a guarantee of immunity without being in custody does not mean that he is going immediately to abscond? Common sense demands that the accused leave this jurisdiction where he is on trial and go to the other jurisdiction where he has allegedly committed an offence in custody.

I do not think there is any objection to an accused being in custody in the course of his trial or in the course of the taking of evidence on commission, which strictly speaking is not part of the trial though it is connected with it. I submit that that is analogous to an accused coming in custody in a court in this jurisdiction——

It is not and the Minister knows it.

Of course, it is.

No courts here have jurisdiction to supervise the activities of the police——

This is the kernel of the Opposition objection—that the accused is being transferred into the custody of the police force of another jurisdiction. If he is to go in custody to hear evidence in another jurisdiction, the writ of our Garda does not run in that jurisdiction. The accused might try to escape or abscond, which would be undesirable until the trial would be completed and the man found guilty or innocent as the case might be: it would be important that the trial would be concluded, and there would be no sanction if he were to be in the custody of the Garda in Northern Ireland because their writ does not extend to that jurisdiction. So the custody of this person will be in the hands of the police in Northern Ireland.

The objection has been raised that this is undesirable because there will be no control over how those police will deal with the person in their custody, that their activities in that regard will be unsupervised. This is to ignore what is in the Bill, which very clearly and specifically sets out that an accused person in that situation will have immunity from all proceedings, civil or criminal. There is a total immunity guaranteed to an accused person in the custody of the police in the other jurisdiction. I cannot see, when that immunity is given and guaranteed, why there should be any apprehension or any worry about overseeing the activities of the police.

Should it happen that the police abuse their powers or exceed their powers, or that that immunity is not honoured in the spirit as well as in the letter of the law, then the remedy is available. It is in the hands of this Government, of the Executive of this State, who will no longer work this reciprocal measure because it is not being worked properly in accordance with the agreement set out in the two pieces of legislation. That is a sanction that will ensure that when a person is in custody for the purpose of going north for the taking of evidence on commission, the immunity he is given will be guaranteed and will be effective both in the spirit and in the letter.

It is not a question of immunity. It is a question of supervision and the conduct of the police force.

Acting Chairman

The Minister must be allowed to reply without interrupting.

I do not know how I can spell it out in words of one syllable. The question of the activities of the police and the supervision of the police must surely relate to what they will do to the accused. The implication of what the Deputy is saying is that they will behave in a way averse to the accused.

If by chance they do here, the courts here can guarantee that the accused has the right to apply to the courts——

Yes, and the courts here will have exactly the same rights. Should there be an abuse by the police in the other jurisdiction of a person attending for the taking of evidence on commission, or should there be any breach of the immunity which is guaranteed by the legislation, we have our remedy. The remedy is that we will no longer operate this procedure. That is an effective remedy because it is in the interests of the other jurisdiction to see that this legislation will work.

The courts cannot guarantee it in the normal way.

If there is an abuse by the police the first guarantee is the court itself. In regard to our police here, action would be taken and the police would be prosecuted. The reality of the situation is that Executive action deals with such an abuse. It ensures that the immunity given, the immunity guaranteed, will be implemented.

Here the police are amenable to the courts.

Acting Chairman

The Chair must again remind the Deputy to cease interrupting.

To the extent that the Minister misrepresents the situation here and elsewhere——

I do not. The position is clearly as I have stated it. Immunity is given and guaranteed and there is a sanction behind it to ensure that it will be honoured in the spirit and the letter. I submit that once that provision is there Article 6 of the European Convention on Human Rights is honoured both in the letter and the spirit and that there is no breach of the rights given by that convention to an accused person to defend himself and to examine and have examined witnesses on his behalf.

The other article brought into the debate as being impugned in this legislation is Article 5 which deals with the right of the person to be brought for trial speedily or to be released on bail. I will quote paragraph 3:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

I do not understand the arguments in regard to section 11 unless it is that the person has to surrender to bail. That is analogous in regard to bail in the case of attending a trial, and in my opinion there is clearly no breach of that article of the convention. It is honoured, and to suggest that it is not is wrong. I do not think the Opposition's heart was in that objection because of all the speakers put up to deal with the Bill, and a fair number of lawyers among them, the only speaker who dealt with this point was Deputy Andrews.

The other question raised in regard to section 11 had to do with the standing of our judges going to the North, that this would in some way denigrate their judicial standing, that in some way it would interfere with their autonomy and that they would not want to go. Indeed, one Deputy went so far as to suggest that they would be afraid to go. I must reject all those arguments as being unjust, unfair and inaccurate in regard to any member of our Bench. The whole tradition of our Judiciary is one of dedicated, loyal, impartial service, and I cannot imagine that their standing would be in any way demanded or diminished by their going north for the purpose of hearing evidence on commission, for the purpose of ensuring that justice will be done. They will be the people who will have seisin of the case, who will have to weigh the evidence and ensure that a just verdict is arrived at.

There is one simple question: have they been asked?

Please, Deputy. It would be impertinent and it would be rejected by the judges as a gross impertinence on the part of the Executive to discuss with them whether they would do their duty if the Legislature passed a law to that effect. I am surprised at Deputy O'Kennedy making such a point. I would regard it as a gross impertinence and an insult to the Judiciary to ask such questions with the implications that would be involved.

The Minister brought them in and the least he could do is to consult them. I would think it would be only courtesy.

(Cavan): Two members of the Judiciary were on the Law Enforcement Commission.

Deputy O'Kennedy must not be aware that the Law Enforcement Commission which recommended this procedure had as members very eminent judges and jurists.

You have not consulted the judges. You are trying to hide behind that fact.

It is surely silly to suggest that men of that eminence would not have adverted to this point which is raised as an objection and which, of course, is no objection because if it had merit it would have been considered by the commission and if it had merit it would be fatal to the whole procedure proposed. I think it is an unworthy point. Our judges will be present in a judicial capacity and by reason of their right to have questions put, by reason of their being present to hear the examination and the cross-examination and observe the demeanour of the witnesses they will be in a special position to assess the evidence that will be given in the other jurisdiction.

You can make a solemn observation of the nature that it is not worthy.

Acting Chairman

The Minister must be allowed to speak without interruption. The Deputy is continually interrupting the Minister.

It goes to the root of this Bill. It is a casual dismissal to say it is an unworthy point. It does not meet the argument and the Minister knows it.

Acting Chairman

The Minister, without interruption.

The whole Bill depends on it.

It was the question of the person going north and the question of the hearing of the evidence which was being criticised in the context that our Judiciary——

(Cavan): Would Deputy O'Kennedy be satisfied with the Bill if the judges did go north?

Before a Bill of that nature is introduced, which is dependent on their going north, they should have been consulted.

The point is that the Opposition are clutching at straws to try to beat this Bill. It is a straw.

It is not a straw.

The Minister should hold a public inquiry.

If they do not go, your whole Bill collapses. At least you should have consulted them beforehand.

I have made the point —Deputy O'Kennedy is not prepared to take it—that before this legislation was drafted the procedure was considered by a commission composed of eminent judges and jurists who recommended the procedure that is being adopted in this Bill and, as I say, it would be an impertinence to do what he suggests.

The Bill has been criticised—Deputy de Valera made this criticism—on the grounds that the State would be, in effect, acting as an agent for another State in the prosecution of its offences. That, again, is a misconception of the nature of extra-territoriality. This Bill is creating offences against our law and when our courts are trying those offences they are trying them on behalf of this sovereign State and not as an agent for any other State. Again, the fact that that argument was put forward shows a misconception and misunderstanding of the nature of extra-territoriality.

I am satisfied that section 11 will work and I am satisfied that section 11 will ensure that justice will be done and will be seen to be done. I am satisfied that the immunities guaranted to an accused person going north will be honoured and that we can ensure that they will be honoured. I am satisfied that the position of the Judiciary in regard to this procedure is being safeguarded and that their status will not be in any way impeached or impaired.

You are easily satisfied.

I am satisfied that a fair trial will result.

You are easily satisfied.

I listened patiently to all the Opposition speakers and I listened patiently to a lot of statements and misrepresentations of the Bill, deliberate and ignorant, and I held my peace.

More ignorant than deliberate.

That is a matter of assessment. The order of debate requires that people keep their peace while other speakers are on their feet. Deputy O'Kennedy had his opportunity over two days and it is my opportunity now to reply and if he does not like what I am saying he can come in again on the section.

I simply asked a question. I only hope the Minister would not look at my question like what I had to take from the Minister for Posts and Telegraphs. I am only asking questions.

As to the alternative that is being proposed by the Opposition, they have all, with some notable exceptions, the exceptions being Deputies Blaney and Haughey and possibly Deputy de Valera—they have all, with those exceptions, indicated that they want to see the problem of the fugitive offender tackled but they have rejected this Bill on the grounds that it is not the way to tackle it and they have suggested that the way to tackle it is via an all-Ireland court, that if we had a court with judges on it from north and south and if we had a situation where the police would be amenable to some sort of all-Ireland institution and that there would be a common law enforcement area, one legal code, in effect, throughout the island—that this would be an ideal way to tackle this problem. I have already said that I agree that that would be an ideal way to tackle the problem but I have equally said that I cannot see such a way coming about and that those who advocate it were under an obligation to indicate how they thought it could come about and when it was likely to come about. Of course, it is completely pie-in-the-sky.

The Sunningdale Agreement which provided for the power sharing arrangement also provided for a Council of Ireland, a harmless institution, with no executive function and no powers but even that all-Ireland institution, that harmless all-Ireland institution, was so unacceptable to the majority in the North that they brought down the power sharing executive and that was one of the main causes for the bringing down of that power sharing executive.

What is the meaning of that word "harmless"? Is this one meant to be harmfull, or something?

Harmless in the sense that it had no powers. From their point of view, they were afraid it might lead to a united Ireland. If that institution, which I considered to be a harmless but a desirable one, was such that it caused the majority in the North to, in effect, rebel, what hope is there of obtaining a court of the type mentioned by Deputy O'Kennedy and other speakers? What hope is there of obtaining an all-Ireland court that would have a high political dimension? I cannot see any hope whatever and it is unrealistic to suggest it.

Just one simple question: did you ask them? You said this is the ideal. Did you actually canvass any representative——

It would be as unrealistic to ask for an all-Ireland court as it would be to ask Deputy O'Kennedy to join Fine Gael or Labour. It would be as unrealistic as that. To come in here in the context of Ireland in 1975 and seriously to suggest that an all-Ireland court is feasible or would be got for the asking is fatuous to an extreme degree.

Legislation is being drafted for the bullyboys of the Shankill and their veto and their veto only.

You have all joined Deputy Blaney. It is that simple.

If it is the ideal, as you have now said, surely you should try to persuade us.

Let me read Deputy Lynch's reference to the all-Ireland court—Volume 285, column 1718 of the Official Report of the 20th November, 1975:

I realise and accept the difficulties involved in establishing an all-Ireland court and making it acceptable to all the people who live on this island. Before I conclude I hope to give an indication of how the institution might be made more acceptable. I do not think I need answer the Minister's challenge that those who support an all-Ireland court should spell out how it could be justified....

I think Deputy Lynch and every other speaker on that side of the House who advocated an all-Ireland court had a duty to answer my challenge to spell out how an all-Ireland court could be constructed, how it could be brought into operation. It is fatuous in the extreme to think that an arrangement could be made with the other part of this island that would provide for an all-Ireland institution with such wide powers as to enforce the criminal law north and south and would have police under one jurisdiction. For goodness sake, as far as the people in the North would be concerned, it would be unity by another method. They have made their position clear. They do not want that and we cannot force them to have it.

The Minister did not ask them.

There are silly questions one can ask but I cannot conceive a sillier or more pointless question to ask the people in the North than: "Will you join us in an all-Ireland court?" Even if the magic wand could be waved and an all-Ireland court could be produced in the morning, there would be serious practical difficulties of moving it from jurisdiction to jurisdiction, of hearing witnesses who did not want to come into the jurisdiction where it was sitting. Would it be an itinerant court moving up and down as the witness decided that he or she would not go north or south as the case might be? It would also have to make up its mind on the evidence adduced to it by the police and/or the British Army in the North, the same evidence that was traduced here as being so totally unacceptable in principle that our court should not even have to listen to it. I do not know what evidence could be adduced to an all-Ireland court, if not that—it is the same type of evidence. If it is valid for an all-Ireland court to hear and act on it, I do not see why it would not be valid for our courts to hear and act on it.

The judges could ask questions directly.

I trust the common sense of our judges and in spite of Deputy O'Kennedy I have confidence in the skill of the advocates at our Bar to ensure that any evidence adduced will be carefully examined and cross-examined and I trust the expertise and skill of our judges to be able to assess it.

Much play has been made of the unacceptability of the police force in Northern Ireland. I would respectfully suggest that this unacceptability is somewhat grey—not white or black. I quote from The Irish Times of the 9th December, where the Deputy Leader of the SDLP is reported as saying:

We will support the police as agents of the responsible authority in impartially seeking out any criminal and we would expect the whole community to do likewise ... What we will not do and cannot do is to give unequivocal and blanket support to security forces for which we have no responsibility.

Quite clearly, there is an encouragement to the people to support the police in the investigation of crime. It follows from that that people should support the police investigating crimes and seeking out criminals and that the police do so with the support of the minority— because Mr. Hume speaks for the minority—and that the evidence produced as a result of their investigations should be listened to very carefully. I submit that this is a grey area and to suggest that the all-Ireland court is a feasible proposition is to ask for pie-in-the-sky.

Deputy Haughey alleged that the Bill was to placate the unionists. That is something I reject. I am sure his colleagues in Fianna Fáil would reject it too. We are all agreed that the object of the Bill is to deal with the fugitive offender, although the people on the other side do not like the method. We are all agreed that the object of the Bill it not to placate the Unionists but to deal with the fugitive offender who comes down here having committed terrible acts against the people of Northern Ireland. I do not propose to distinguish whether the victims live on the Falls Road or the Shankill Road. So far as I am concerned they are fellow-Irishmen and are entitled to any support and help we in the South can give them.

Deputy Haughey also suggested that the Bill could lead to vindictive prosecutions and that the evidence would be gathered by a hostile police force who would come down here in a biased way and that it would not be quite proper and we would have to act on their evidence. Again, this is a misconception of the nature of the Bill. This Bill is creating offences against our law which will be prosecuted and tried in our courts by our personnel and in accordance with our procedures. The Director of Public Prosecutions is charged with bringing prosecutions before the courts. This independent public official would have the duty of assessing the evidence in any particular case coming before him as to whether a prosecution should be mounted or not. It is wrong to suggest that if a whimsical case was invented and papers sent down a prosecution would automatically follow. The case will be considered by the Director of Public Prosecutions in the normal way he would consider any file coming before him for decision on whether a prosecution should be effected or not.

Deputy O'Kennedy and Deputy O'Malley made a lot of play on the adaptation order made in relation to the Offences Against the Person Act, 1861. For the benefit of the House the 1861 Act provides for murder as an extra-territorial offence but it was not adapted as part of our legislation following the setting up of the State. That was cured when an adaptation order was made in 1973 and murder was thereby made an extra-territorial offence under our law in the same way that this Bill is creating extra-territorial offences, including murder. A lot of play was made by Deputy O'Kennedy and Deputy O'Malley that this adaptation order was announced in 1973 as something major and dramatic and that it was going to cure the problem. One of the speakers, I think it was Deputy O'Kennedy, said that the Order has been a failure because it has not prevented murders being committed in the North nor has it led to any person being arrested down here.

I did not say that. Quote me in full.

At Column 566, Volume 286 of the Official Report of the 2nd December, 1975, Mr. O'Kennedy said:

I mentioned on the last occasion that when the Offences against the Person 1861 Order was introduced here almost two years ago we were told that it was a matter of great urgency ...

I said that.

The Deputy continued.

In fact, since that time not one single person has been charged under that order. Was that window-dressing then? Did we believe it then? Is this window-dressing now? Do we believe it now? Window-dressing is not enough, particularly if those who look in the window do not like what they see there. You do not just make it a little more attractive for them. You may have to reconstruct the entire shop premises and ask them to take a different view of the whole business.

I said that and the Minister was not quoting me earlier.

I accept that in that quotation all Deputy O'Kennedy said was that not one single person had been charged under that order. I apologise that it——

It is just as well I was here. I said it was introduced in an emergency.

I apologise to the Deputy. He need not make a meal of it.

It is about as accurate as some of the other things the Minister said.

Acting Chairman

The Minister is in possession. He must be allowed continue.

I will find which of the speakers on the other side said it. It may have been Deputy O'Malley. I apologise as apparently it was not Deputy O'Kennedy. All that Deputy O'Kennedy said was that nobody had been arrested under it and that it was only so much window-dressing.

I said it was introduced as a matter of urgency then and, in fact, it has not proved to be successful. If the Minister wants to summarise that is about as fair a summary as he will get of the words I used.

Deputy O'Kennedy said: "... was introduced here almost two years ago we were told that it was a matter of great urgency, a matter of great need and that it was important for a number of reasons. In fact, since that time not one single person has been charged under that order". It is still an important matter that murder would be an extra-territorial offence. The fact that no charges have been made under it and the fact that murder still continues to be committed in the North does not invalidate the making of that order. There are many Acts on our Statute book creating offences in respect of which prosecutions have not been taken because the crimes have not been committed. We recently passed a Genocide Act. If it were to be argued that the 1861 order was ineffective because no arrests had been made it would be equally valid to say that the Genocide Act should not be passed because genocidal acts are still taking place but nobody is being prosecuted. If a law is necessary in its own right it does not invalidate it because no prosecution has been taken on foot of it. Much play was made by the Opposition——

Could the Minister use words other than "much play was made"?

Acting Chairman

The Minister is in possession. Interruptions must cease.

Much play was made by the Opposition in the course of this debate on their attitude to law and order. What struck me about their words in that area was their defensiveness, the need that speaker after speaker had to stand up here and proclaim the devotion of himself and his colleagues to the enforcement of law and order.


This defensiveness surprises me because there is no need for it. I want to be the first in this House to say to the Opposition that their devotion to law and order is well known and they do not have to come into the House to be defensive about it. Their leader did something that nobody else has ever done in the State to enforce law and order and to maintain law and order. He prosecuted his Ministers in the criminal courts of this land. The Opposition have no need whatever to be defensive on this subject.

Let the Minister tell us what he almost did to his leader one night in December, 1972.

December is not the Minister's best month.


Acting Chairman

Interruptions must cease.

I am only telling the Opposition that there is no need to be defensive. I concede they have a good record on law and order.

It is far better than that of the Minister or any of his colleagues.

I have given the Opposition that example. For goodness sake, there is no need for them to be defensive. Let us remember that this Bill, which hopefully will be an Act shortly, is brought in to end a scandal in this land. It is a scandal for two reasons. It is permitting people to take refuge here from the consequences of serious crimes. It is a scandal in its own right that people should not be made amenable to the courts of justice.

Could the Minister define "here"?

I am afraid I do not follow the Deputy's question.

What does the Minister mean by saying that it is permitting people to take refuge here?

In this jurisdiction. I do not mean this House. It enables people to take refuge in this jurisdiction from the consequences of their crimes committed in Northern Ireland. I say that is a scandal in its own right because persons guilty of serious crime should be made amenable to justice. In addition, it is a serious scandal because it is allowing criminal elements to come into our society. It is bad for our society that that should be. We do not want these people in our society. They are rotten apples in the barrel.

It is also a scandal because, unwittingly, and through no fault of ours, for serious legal and constitutional reasons, we can be seen by some people in the North as collaborating with these criminals, as providing a place of refuge for them. We owe it to the people in the North, who have suffered so much at the hands of these people, to ensure that these criminals are brought to justice. That is what this Bill seeks to do.

It bears repeating again what the offences are that this Bill is dealing with. They are murder, manslaughter, the common law offence of arson, kidnapping, false imprisonment, offences under the Malicious Damages Act, offences under the Offences against the Person Act, offences under the Explosive Substances Act, causing explosions likely to endanger life, robbery and burglary, possession of firearms and the unlawful seizure of aircraft and vehicles. Terrorist offences are the offences which this Bill sets out to deal with.

I suggest to the House that the Bill is constitutional. None of the arguments adduced have stood up. In fact, some of them have been significantly changed. I have no doubt that the Bill is constitutional and when it comes to be tested, whether that be soon or later, I am confident it will stand up. I am confident that the Bill is not in breach of the European Convention on Human Rights. I am confident, too, that this Bill will be workable. It is devising new, novel procedures. It is devising some procedures which are unique but that is not to say that they will be unworkable because we have not experienced them before. I have no doubt they can be made to work because they are devised by man and it is up to man to make them work. If in the course of the operation of this Bill snags become apparent and difficulties come to the surface, these can be attended to and these can be removed. To say that because the Bill is unworkable or that there is a pie-in-the-sky alternative we should not proceed to deal with this problem is unfair and unjust to the people in the North, whom we have a duty to help, assist and save from the excesses of the criminals that this Bill seeks to bring before the courts and convict for their crimes.

It is right to say that the consequence of this principle of extra-territoriality is that, having tried the people in our courts, if they are convicted they will have to serve their terms of imprisonment in our jails. There is no question of this being a backdoor extradition method by which these people will be handed over to the other jurisdiction. We will have this burden of keeping them in custody here.

No argument has been put forward to sustain the opposition to this Bill on logical or reasonable grounds. It is constitutional, it does not breach the European Convention on Human Rights and I am firmly of opinion that it is workable. Should there be operational difficulties, we will deal with those when they arise. At least let us get it into operation; let us see it work. The alternative of an all-Ireland court is quite unrealistic because the problem that we have here and now demands a solution here and now. We have waited long enough. If we were to wait for an all-Ireland court it might mean 50 or 60 years, whereas the problem is immediate and urgent. We have the opportunity in this Bill of giving an earnest to the people in the North that we want to see violence ended and that anything we can do we are prepared to do.

I reject the suggestion that this is in some way a sell-out. This was the phrase of Deputy de Valera when this matter was brought before the House earlier this year. I reject any suggestion of a sell-out or that there is something wrong or distasteful or something about the mechanics proposed by this Bill that is in some way traitorous to the minority in the North. This Bill is in ease of the minority in the North; it attacks criminals and nobody else. To criticise the Bill because it is attacking criminals puts one on the side of the criminals.


Let me finish. I said that this Bill is in ease of the minority and is designed to attack criminals. Some people would say that the Bill is treacherous. The Opposition do not say the Bill is treacherous. They just say it is unworkable. Some people say that the Bill represents a treachery or a sell-out. I say it does not. It is not a sell-out or a betrayal of the minority. It is designed to attack criminals and I am sure it is common case between all sides in this House that criminals must be attacked and made answerable for their crimes.

I am satisfied that the Bill should be passed and become law at the earliest opportunity. I accept the Opposition's statement, with the omissions I have already mentioned, that they agree with the objective of the Bill. Some of the statements made in the Seanad would cause one to have doubts as to whether acceptance by the Opposition of the objectives of the Bill is total among their ranks because wild speeches were made in the Seanad by people who are members of the Fianna Fáil Party.

And members of the Labour Party.

One member of the Labour Party did not like the Bill.

And some in this House.

The point I am making is that this Bill is in ease of the minority in the North. I would be charitable enough to accept at its face value the Opposition's view that they are in favour of the objectives of the Bill.

We do not want your charity.

But I would put a big question mark when the only alternative they can suggest is an alternative that is not available.


Take off your three-line whip and see what happens.

May I be allowed to raise some points of clarification? These were raised in the course of my contribution to the debate. First, has the Minister given any thought to the problem of identification of an accused who will not be present? Secondly, has he given any thought to the arrangement for bringing defence witnesses to give evidence on behalf of the accused? These and many other matters were raised and the Minister did not refer to them in his reply.

The question of identification will depend on the circumstances of each case. As the Deputy knows, there are various ways of proving identity of an accused. It may be proved through a description, through fingerprints, through an admission or through visual identification. What the Deputy has in mind is that there might be a situation where an accused will refuse to go North and that evidence of identity could not therefore be offered. In such a case the prosecution case would obviously fail.

The Minister is satisfied on that?

It will be a matter for the judge hearing the case to decide if the prosecution fails to identify the defendant. I can conceive of cases where it has not been possible to identify defendants. It happens from time to time particularly in motoring cases where the defendant is not proved to have been the driver. It is not a common feature but it is not infrequent in our criminal courts. There could be a situation where identity would not be proved to the satisfaction of the trial judges and the prosecution would fail.

Would the Minister express the view that if the person cannot be identified——


No, I said there are many ways of identifying an accused, fingerprints, visual evidence at second or third hand, admission or it may be——

The best way is visual.

This is a matter for the trial judge. The Deputy is anticipating what may happen at a trial. There may be cases where the evidence of identity is insufficient to sustain the charge. In that case the prosecution will be dismissed. That is what courts are all about. The Deputy asked what happens about witnesses——

Defence witnesses —what arrangements or what guarantees are there that they can be brought to give evidence on behalf of the accused for the taking of evidence on commission?

Defence witnesses will have the choice of giving evidence either at the trial in the South or on commission in the North. It is a matter for them to choose which they want to do.

Can the Minister ensure that they will attend or can he give a guarantee that they will have the same——

As regards defence witnesses, if they are living in the North, the court in the South has no jurisdiction to compel their attendance at the court in the South but if they are living in the North and a defendant wants them summoned to attend at the commission, they can be compelled to attend at the commission.

Acting Chairman

To the question : "That the Bill be now read a Second Time" an amendment has been moved to delete certain words and substitute others. I am putting the question: "That the words proposed to be deleted stand." I think the question is carried.

Thank you very much. Out the door with them— general election.

Acting Chairman

Sorry—yes, that is right. That is in order.

I think we had better have a vote on it.

The Dáil divided: Tá, 69; Níl, 67.

  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Bermingham, Joseph.
  • Bruton, John.
  • Burke, Dick.
  • Burke, Joan T.
  • Bruke, Liam.
  • Byrne, Hugh.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Dockrell, Henry P.
  • Dockrell, Maurice.
  • O'Sullivan, John L.
  • Pattison, Seamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom. (Cavan).
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Kelly, John.
  • Kenny, Enda.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McDonald, Charles B.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Donnell, Tom.
  • Taylor, Frank.
  • Thornley, David.
  • Timmins, Godfrey.
  • Total, Brendan.
  • Tully, James.
  • White, James.


  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Blaney, Neil T.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Breslin, Cormac.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Callanan, John.
  • Calleary, Seán.
  • Carter, Frank.
  • Colley, George.
  • Collins, Gerard.
  • Connolly, Gerard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Daly, Brendan.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom. (Dublin Central).
  • Flanagan, Seán.
  • French, Seán.
  • Gallagher, Denis.
  • Geoghegan-Quinn, Máire.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael P.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Leonard, James.
  • Loughnane, William.
  • Lynch, Celia.
  • Lynch, Jack.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Nolan, Thomas.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Power, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Browne.
Question declared carried.

Since the motion is carried, the Bill in accordance with the revised Standing Orders is forthwith declared read a Second Time. The relevant Standing Order is 89 (2).

Committee Stage ordered for first sitting day after the Christmas recess.