When we adjourned the debate on this Bill I was dealing with section 4, which, as I indicated, rewrites sections 2 and 3 of the Explosives Substances Act, 1883, to take account of present day circumstances, particularly to take account of the fact that the wording in that Act is no longer appropriate. It spoke of offences being committed by a British subject outside the British dominions. It has been necessary to rewrite the section in modern terms. In effect, the section now rewrites sections 2 and 3 of the 1883 Act, so that section 2 of that Act now states: that a person who is in the State or, being an Irish citizen, outside the State unlawfully and maliciously causes an explosion will be guilty of an offence and a person who in the State or, being an Irish citizen outside the State, unlawfully and maliciously does any act with the intention of causing an explosion or who has in his possession the means of causing an explosion shall be guilty of an offence, whether an explosion does or does not take place. The House will note that, as worded, it makes the offences in question, of causing or planning to cause explosions, extra-territorial offences not merely in regard to Northern Ireland but also to Great Britain. It was a desirable change to rewrite those old sections in modern language and to take account of the exigencies of present times.
Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage (Resumed).
What I have said in relation to section 3 applies equally to section 4. All the Minister can do is to rely on the integrity of our judges. That integrity I accept, but those judges are, however, as impotent as anybody else when it comes to deciding a case when evidence has been manufactured. That portion of the section which provides that an Irish citizen may be tried here for committing an offence outside the jurisdiction leaves that position open. Ultimately, people accept the law, accept the judicial process and accept the process whereby they may be tried, convicted, punished and imprisoned only where there is confidence in the police officers who investigate the case.
Where there is confidence in the integrity of those who prosecute a case and where there is confidence in the honesty of those who try the case, the people accept the law. In the case of an Irish citizen accused of having, for example, explosives in his possession with intent in Belfast or Birmingham, one of the three essential ingredients will be missing because, despite the integrity of those who prosecute in this State, from the Director of Public Prosecutions downwards, and despite the accepted honesty of our judges, those judges and State prosecutors must rely completely on the evidence of the Belfast or Birmingham police officers. Such officers will say that when they took, for example, "Paddy Murphy", into custody and examined him forensically they found traces of nitroglycerine on his finger nails. In those circumstances, where such a case will depend solely on the word of such a police officer, "Paddy Murphy" may be sentenced to 20 years in prison.
I object to giving persons in the security forces in Northern Ireland, with their known record, such a power. Even more objectionable than the power given to such a police officer is the position the Minister will be placing our judges in. Our judges can only act on the evidence they hear. I mean it as no disparagement of our judges, rather as a compliment to our Garda, when I say that our judges are not accustomed to dealing with cases involving policemen conspiring among themselves to suborn justice. Any legislation that has the ultimate effect, no matter how innocent its purpose, of weakening the respect and regard our citizens have for the honesty and integrity of the judiciary is bad legislation.
An example I shall give may show how offensive this section is. Some weeks ago we had the entire British Press screaming its collective indignation because Dr. Sheila Cassidy had been subjected to inhuman and degrading torture and ill-treatment in Chile. Ambassadors were recalled, envoys were sent forthwith to file complaints to the UN Sub-Commission dealing with human rights. Everything was done bar sending a gunboat to Chile. I should like to postulate the position as to what might have happened had Dr. Sheila Cassidy been an Irish citizen and this Bill had become law.
I suppose for starters the Minister would have said that rather than protest we should not go overboard about it. Supposing Dr. Cassidy was an Irish citizen and flew home to complain, accompanied by two Special Branch detectives who made signed statements to the Garda. If those gentlemen with their signed statements went to court and swore that Dr. Cassidy, an Irish citizen, had on a given date in Chile an explosive substance under her control with intent by means thereof to endanger life, and that they had arrested this lady in Chile and found gelignite in her handbag, the lady, instead of flying off to the UN to protest about her barbaric treatment would be standing in the dock in Green Street charged under section 4 (3) (b) of this Bill. She would be liable to a term of imprisonment not exceeding 20 years.
Can the Minister tell me how the three judges could decide such a case other than in accordance with the sworn evidence of the detectives from Chile? No matter what denials that lady might give in her own defence at Green Street the detectives from Chile would be able to produce finger-print evidence, or other forensic evidence, to substantiate their sworn evidence. That is what is possible under this section and that is the position of contempt the Minister is placing our judiciary in. The Minister will be striking the first blow at the laws of the State by demeaning, in the eyes of the public, the judges who have to administer such a law. If the Minister says that Chile is too far away to use as an example and that the reality of the Bill is concerned with Northern Ireland and Great Britain, my reply is that Chile is far away geographically only. The torture, inhuman and degrading treatment inflicted on Dr. Cassidy, British citizen in Chile, is similar to that which was meted out by forces of the British crown to our citizens in Northern Ireland. The only difference is that in Dr. Cassidy's case she was a British subject and, apparently, it is not proper to inflict such indignity on British subjects, though the British can inflict similar and worse in any part of the world they choose, whether it be Aden, Kenya, Cyprus or Ireland.
It would have been laughable had two Chilean Special Branch detectives travelled to Heathrow and so accused Dr. Cassidy on her arrival, because nobody would have believed the word of the Chilean officers in circumstances where it has been officially tolerated by the Chileans that their officers could so ill-treat a person. However, why should we give any more recognition to the word of a British or Northern Ireland Special Branch officer whose own antecedents were as bad if not worse? Their crimes against people of this country seemingly have been officially tolerated and condoned, if not encouraged, by the British Government.
Possibly the only other distinction that could be drawn between Chile and Northern Ireland—I mention it in case the Minister overlooks it—is that in Chile the first protestors on the scene against such inhuman treatment are the Socialist International group. Their voices are strangely muted when it comes to dealing with similar happenings in Northern Ireland. I have no doubt that this will change with the incoming president of that group whose accession to office is dependent upon and motivated by British support when he assumes office.
I should like to ask the Minister to deal with some technical matters arising out of this section. I should like him to confirm or otherwise my opinion that what section 4 does is to amend the Explosive Substances Act, 1883, and that quite apart from this piece of legislation that Act will now stand by itself as an updated part of our law and that offences can arise under it. In addition, I should like him to confirm or otherwise that section 2 will operate to make offences under the Explosive Substances Act, 1883, as amended and updated, offences that will come within the general provisions of this legislation.
That being so, I am in some difficulty about the actual wording. The new section 2 of the Explosive Substances Act, will speak about "a person who in the State, or being an Irish citizen outside the State unlawfully ...". That will become a scheduled offence under this legislation. Section 2, which makes it an offence under the provisions of this Bill, speaks about "where a person does in Northern Ireland an act that, if done in the State, would constitute an offence...". Is it not the case that double wording is involved here? The Explosive Substances Act will speak about "a person who in the State..." and this legislation will talk about "where a person does in Northern Ireland an act that, if done in the State, would constitute an offence...". Perhaps the Minister will elucidate that for me when he replies because it appears to me that there is some confusion of words, if not of facts.
I must confess to having mixed feelings about this section. I agree with Deputy Collins that the section is subject to the general criticism the rest of the Bill merits, namely, the general undesirability of making the operation of these provisions of our law subject to the good faith of persons outside our jurisdiction in whom, quite frankly, we have not got good faith. I should like the Minister to deal with this aspect of the section in his reply.
Will these provisions enable our authorities to initiate action in the Six-County area against persons who have been responsible for bombing outrages in this State? It is fairly widely believed that the explosions which were perpetrated in Dublin—two major explosions in Dublin city and the more recent explosion at Dublin airport— were caused maliciously by persons from outside the State, almost certainly from the Six-County area, who came into this State. Perhaps our security forces know more about this matter than they have had occasion to make public. It seems to me that under the provisions of section 4 our authorities would be able to seek to have the persons concerned prosecuted in the Six-County area and that is something all of us would welcome.
I should like the Minister to give us some positive information about the situation. Has he any knowledge of the persons or has he any information about the persons who are suspected of having perpetrated these atrocities? Does he have any indication whether the Northern security forces or the British have any information about these people? God knows, the British Government and their different agencies have this island of ours saturated with intelligence forces of one sort or another. Surely by now they must have a fairly clear idea of who was responsible for these atrocities? If they have, is the Minister aware of any such knowledge? If so, will he tell the House whether when this section becomes law we will be able to seek to have proceedings initiated?
As the Explosive Substances Act, 1833, will be part of our criminal law on its own merits, apart from this legislation, will the Minister state if it will be possible for us to initiate extradition proceedings under these amended sections of the Act, apart from the Bill now before the House?
On the section—I know Deputy Collins and my colleagues share this view—while we find it as repellent and objectionable on general principles as the other provisions in the Bill nevertheless we consider that the atrocity of indiscriminate bombing in public places is such an appalling development and is so brutal and inhumane that we would be prepared to let this section go without any great objection to it because of the nature of the offences with which it deals. This development of indiscriminately placing explosives in public places is one which nobody can countenance and is a particularly abhorrent development. Even though I have said we must be very careful in confronting particular situations not to throw overboard our whole system of protecting the rights of the individual, nevertheless in regard to this type of offence we would be prepared to go a long way with the Minister in seeking to have it stamped out, if that is possible in the present situation. I would be grateful to the Minister if he would speak to us about the situation in regard to the questions I have raised.
I am glad Deputy Haughey has expressed the universal abhorrence of the urban bombings, probably the most fiendish crime being committed in modern day terms. Having regard to all the fiendish crimes that have been committed, this is probably the worst, because of its callousness and the amount of harm it can inflict. Of course, we all share this abhorrence— I know Deputy Collins feels it too, but if it had been expressed in the course of his speech I might not have found it as lobsided as I did. It is really straining things to bring in the Chilean situation by way of analogy because one of the important distinctions is that the UK is a parliamentary democracy, whereas Chile is a military dictatorship.
I think it would ill become anybody in this Parliament, particularly the Opposition, to make that bald comparison and not make that distinction. The person to whom the Deputy referred does not have any redress against that military dictatorship as would a person living in a parliamentary democracy, both by taking that democracy before an international tribunal, like the European Court of Human Rights, or seeking—and getting—redress and compensation in the domestic courts, as has happened in the UK. In fairness, in order to have the argument balanced, I felt I must put that on record.
Deputy Haughey addressed himself to the section and I am grateful to him for it. The first point he raised was in regard to the wording. He asked if we were saying the same thing twice. We are not. I think I should deal with the Explosive Substances Act, 1883 which is being amended by this section. It covers "a person who in the State or (being an Irish citizen) outside the State", and so on. For example, if a person from here committed an offence in the UK and was detected here he would be guilty of an offence here without more ado, but if a person of French nationality committed an offence under this section in Northern Ireland he would be caught by virtue of section 2. This is the distinction between the two sections.
He asked whether extradition would arise in the context of a person in Northern Ireland guilty of having caused explosions down here. Such a person would be in exactly the same position as a person found down here charged with an offence up there. A person found up there alleged to have committed an offence of causing an explosion down here would be subject to extradition if the extradition process was in operation. It would be a matter for the authorities here whether to seek extradition. I imagine extradition would be sought and it would be a question then for him to plead that he was entitled to political exemption. If that person's appeal were successful, he could then fall to be prosecuted in the domestic courts in Northern Ireland by virtue of the corresponding Act. He would have to be prosecuted to a conviction on evidence supplied principally by the Garda Síochána—whatever evidence would be available to them by way of fingerprints, direct evidence or whatever it might be.
Unfortunately, with regard to the explosions which have taken place down here, we do not have any evidence nor are we aware that there is evidence in the other jurisdiction which could lead to the conviction of the guilty persons. The fact that there is no evidence for crimes that have already taken place does not take from the desirability of having this law on the Statute Book. We hope that circumstances in the future of having to look for such evidence will not arise because we hope that such dastardly crimes will not be repeated. The fact that the legislation will be on the Statute Book may in itself be a deterrent.
Deputy Haughey referred—I just make a passing reference to this because I do not want to broaden this into a general debate—to the jurisdiction being saturated—I think that is the word he used—with intelligence people from the UK. That is not something of which I have any knowledge nor do I think that is the position. It introduces an emotive element into this area that we could well do without because the very heinousness of the crimes we are attempting to deal with already have raised emotions, feelings that could be damaging to the mutual interests of our two countries and our two peoples, because one of the cases which the amending section is intended to deal with is that of the urban bomber in Great Britain; the bombs that have been placed there and have exploded there have done much harm to the relationship between this country and the UK and have put quite some prejudice on the position of Irish people who live and work in Great Britain. It is very important that, when we are debating the Bill which gives us power to try here persons suspected of urban bombings in Great Britain, we should be seen to be adamant in our determination to ensure that such persons would not escape the law. We owe that to our exiles.
There are a couple of points I should like the Minister to clarify. In the section as it stands, amending the 1883 Act, there is mention of a person "who in the State or (being an Irish citizen) outside the State..." and the section talks about committing an offence or planning to do it, or having an explosive substance. What is the position in regard to a non-Irish citizen planning to cause an explosion within the State or having helped to cause it? That is clearly where it is a non-Irish citizen. What is the position in regard to natives of the Six Counties—are they and will they be regarded for the purposes of this Act as citizens of the State, as they are entitled to be, or may they opt out and claim they are citizens of Great Britain? One would be outside the Six Counties, anywhere, a non-Irish citizen, or a citizen of the Six Counties committing or causing or planning to be caused any of these things.
The question was raised of a non-Irish citizen causing or planning an explosion ouside the State. If he does that in Northern Ireland he would be committing an offence against our law by virtue of section 2. A person resident in Northern Ireland causing an explosion in this jurisdiction would also be caught by the new section 4 which amends section 2 of the 1883 Act, which section is replaced by section 4 of the Bill.
The new section 2 of the 1883 Act which is included in section 4. Sections 2 and 3 of that Act are replaced by section 4 of this Bill.
Yes. It provides:
A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously causes an explosion within the State...
Deputy Blaney asked whether, if that person is a resident of Northern Ireland and he commits an offence within the State——
While he is within the State.
His nationality does not matter. If he does it in Northern Ireland, he is caught by section 2 of the Bill.
Supposing he only plans it or causes it to be done from outside?
He is caught by section 2 as well both for the act and for its planning. Section 2 of this Bill makes it an offence to do in Northern Ireland any of the acts described by the Explosives Substances Act, 1883.
If a person in Northern Ireland arranges to have it done here?
Yes, that would be an offence under the 1883 Act by virtue of section 2 of this Bill.
The Minister says that these people are caught under section 2. It is not clear that they are. Section 2 says:
Where a person—
(a) in the State or in Northern Ireland, aids, abets, counsels or procures the commission of an offence
Where does it say if they plan or cause it to be done in Northern Ireland or the State and they are not citizens of either Northern Ireland or of the State?
Section 2, subsection 2 (b) says:
Where a person—
(b) in Northern Ireland, aids, abets, counsels or procures
A person there, of course, includes a person of any nationality. Those words cover the offence under the new section 3 (a) of the 1883 Act of doing an act with intent to cause or conspiring to cause, and also would cover new section 3 (b) of that Act—
makes or has in his possession or under his control an explosive substance with intent...
Those two sections read together would deal with a person who in Northern Ireland does any of these things and is a citizen neither of the United Kingdom and Colonies nor of the Republic. Whether a person was a citizen of the Republic or not would depend on an involved position, as to how far our citizenship laws cover persons in Northern Ireland. There is a lacuna there. But even if a person there claimed or showed that he was not a citizen of the Republic, by virtue of our citizenship laws, and that he was not a citizen of the United Kingdom and Colonies, he would be caught by subsection (2) of section 2 of the Bill read in conjunction with the new section 3 of the 1883 Act, which deals with the preliminaries to the offence, that is the intent which is covered by the words in subsection (2) of section 2 "aids, abets, counsels or procures".
This is not as clear to me as it appears to be to the Minister. There has been no application to the non-Irish citizen, North or South. Where such a person plans or causes to have an act carried out in the North or South, if he is a non-citizen of either I do not see where the reading of these two sections together——
Suppose we take, for example, a Swede. I do not mean anything detrimental to Sweden or any of its citizens. Assume there is a Swede in Northern Ireland and that he plans——
Not in Northern Ireland. I am talking about the Swede, say, in Italy or Sweden, not planning in the jurisdiction of any part of the South.
He is not covered by the Bill.
That is what I thought. Surely it is strange and this is the kernel of what I have been asking the Minister—that a non-citizen of either North or South, planning or causing or having a substance to cause an explosion, or even supplying it, is in no way caught by the Bill nor will he have been held to have committed any offence in so far as our law is concerned. If the law and jurisdiction in which he planned or conspired to cause an explosion here or in the Six Counties were to catch him, he could find a safe haven here under our jurisdiction, even if the plan had been carried out and an explosion had been caused here by that planning. Is there not a strange anomaly there?
What the Deputy says is true. This Bill does not make it an offence for aliens to conspire abroad to commit an offence here. We have not gone so far in this Bill. That would be broadening the concept of extra-territoriality to an unusual degree. I do not say that some circumstances would not justify it. We make this provision with regard to Irish citizens because we have a certain responsibility for the acts of Irish citizens committed anywhere abroad. To discharge that responsibility we extend our powers and obligations by this legislation. We do not take power to deal with aliens conspiring abroad. We do take power to deal with aliens if they conspire in Northern Ireland.
Another aspect of the same thing would be the position of an alien resident here but conspiring abroad to cause or do any of these things. He may come and go, but he is an alien, he does his planning and conspiring outside the island, outside our jurisdiction, outside the four shores of this country, but in relation to the offences specified here.
He would not be covered by the Bill, but I would find it difficult to conceive of him being able to do that without being guilty of the offence of conspiring here. Some part of his action would be probably related to his residence here. I cannot go any further than that. It would probably be a crime against our domestic law, but if he so comported himself that he did not do that there would be no offence committed by him. That is the present law and the Bill does not propose to change that.
There is the dubious possibility of his being amenable to some law or other. What is the position, as the Minister sees it, under our law and the supposed law of the alien who outside our jurisdiction plans any of these things which would constitute an offence if he were a citizen? What is his situation thereafter if he should come into our jurisdiction?
Then he becomes a person within the State under section 4C.
The present law would apply to that person if his actions abroad, coupled with his residence here, were such as to constitute the offence of conspiracy under our domestic law. Then he would be liable to sanctions here.
Maybe he is nonresident. Maybe he just comes here after the event. Is the free to come here after that?
Yes, he would be free to come here, because our laws do not make it an offence for aliens to conspire abroad, and an alien who would conspire——
To conspire against the State.
Our laws do not give us power to deal with him. They give us power to deal only with domestic crimes unless we take specific extra-territorial powers to deal with them. This Bill does not purport to deal with the general body of aliens. Consequently the alien, in the example adduced by Deputy Blaney, would not be guilty of any offence under our law as it presently stands.
It is not anything which would be an offence under this Bill. Nothing that such an alien might do is in any way punishable, or is he amenable to our law even if after the event he comes into the country and is within our jurisdiction?
He must commit an offence within the jurisdiction. It could be possible that the mere fact of his coming into the country could be part of the conspiracy and that that would render him amenable to our criminal code. Of course, it would be a very difficult matter of proof at that stage, but it could be possible that by coming in he would be furthering the conspiracy which he had been planning abroad. Apart from that, there would not be any way of dealing with him.
Surely there is something strangely lacking in what the Minister is attempting to do. It seems to be designed for a limited number of possibilities only. An alien may conspire abroad to carry out explosions and do all sorts of damage but, even though we know this, that person can walk in and out of the country. It seems an extraordinary situation.
If as a result of the conspiracy an explosion took place here and that person were to be found here, then he would be a party to the actual offence of causing the explosion and would be amenable to our laws. Generally the Bill is not designed to deal with such aliens. It is designed to deal with the problem as we have it in this island and in Great Britain, because this is where the bombing problem is happening. We are not under attack by virtue of a conspiracy anywhere else in the world. Should it so happen that that dreadful day will come, then we will certainly have to look at our extra-territorial legislation to take powers to deal with the situation. As I said the need for such legislation does not, happily, arise at the moment. We hope that it will not arise, but should it arise then we would have to take power to extend the extra-territoriality of our laws. With the spread of international terrorism and the facilities of modern travel and communications, it is not out of the question, but hopefully it will not arise for us here.
We are dealing with the problem of explosions in Northern Ireland and in Great Britain. In so far as they involve extra-territoriality, we take powers under this Bill to deal with them. We do not go farther than that in relation to aliens. We do go farther in relation to Irish citizens, because every country has a responsibility under international law for the acts of its citizens if those acts damage its position in the international family. To that extent we do take power over the acts of Irish citizens abroad, but we do not go so far as to take power over the acts of aliens.
I still find it extraordinary that this should be the situation. I find it more extraordinary that the Minister should indicate that such conspiracy has not taken place outside the islands of Great Britain and Ireland. We do not know whether such conspiracy has not already taken place outside Britain and Ireland in relation to explosions that may have occurred here.
In regard to residents or citizens of the Six Counties, the Minister says they are caught by the existing laws, or reciprocal laws, or a combination of both, in the Six Counties. What is the situation in regard to a Six-County resident or citizen claiming non-Irish citizenship—in other words, British citizenship—planning an explosion on this side of the Border and amenable to the laws of the Six Counties? Is he amenable to our laws if he comes across the Border thereafter? This would be a Six-County resident claiming British citizenship who would have conspired to cause an explosion on this side of the Border and who is amenable to the laws of the Six-County jurisdiction but crossing the Border afterwards.
He would clearly be caught by section 2 subsection (2) which provides:
Where a person—
(b) in Northern Ireland, aids, abets, counsels or procures the commission of an offence specified in the Schedule,—
One of the offences specified in the Schedule is the offences under section 3 of the 1883 Act of planning to cause an explosion or having an explosive in his possession. He would be caught by virtue of that section irrespective of the fact that he was not an Irish citizen and was claiming UK citizenship. If that person was detected in this jurisdiction he would be amenable to the laws of this jurisdiction.
The Deputy is quite right when he says we do not know if there are aliens conspiring abroad. It is something we cannot know. We have to assume it is not happening because there is no evidence of any aliens conspiring against us. If that situation changes, and I certainly hope it will not, we may have to look at our laws again.
In relation to section 5, would the House consider taking sections 6 and 7 at the same time?
I have no objection.
As far as the Chair is concerned that is all right. Sections 5, 6 and 7 will be discussed together.
I am glad the House thinks it appropriate that these three sections be taken together. There is no real reason in practical terms for amending sections 23, 24, 25, 26 and 27 of the Larceny Act in the manner in which it is proposed to do so and especially in this Bill. The primary reason for amending the law is if the existing law has proved itself defective in practice or, in the case of criminal law, has become difficult to operate. My experience and my information in relation to the provisions of the Larceny Act are that in respect of housebreaking, larceny, burglary, sacrilege and all such matters there is not the slightest difficulty in regard to prosecutions. Of course, the offence of sacrilege will now disappear from our Statute Book.
The explanatory memorandum circulated with the Bill tries to convey the impression that there were technical concepts and technical difficulties associated with the prosecution of these types of offences under the 1916 Larceny Act. This is not so. In regard, say, to housebreaking it had to be proved that a break-in had taken place, that an entry had occurred and a legal formulation of what each of those two consisted of had developed as it will develop in relation to any section or part of law that comes before the courts frequently. There has been no difficulty in proving burglary, robbery or housebreaking cases where the facts warranted such prosecution and convictions. Where facts did not warrant such convictions they often proved sufficient to convict of lesser offences which may have been all that the accused person had committed in the first place.
The more general and overall objection to these three sections is that they are taken verbatim from the English Theft Act, 1968. There is nothing wrong with that as such but it seems ludicrous to take a few isolated sections of our existing legislation and replace them with a verbatim transcript of a few isolated sections of an English Act while at the same time ignoring that the entire of the Theft Act is based on a new concept that is still absent from our law. The Theft Act is based on a total repeal of the 1916 Larceny Act and involves an entirely new concept of what constitutes theft. If the Minister wished to amend the law in relation to burglary, robbery and housebreaking, the proper course for him to have adopted would have then been to bring in new legislation which would supplant totally the Larceny Act and, if necessary, use the new concepts devised in the Theft Act.
Which new concepts of the Theft Act?
The ones I have mentioned—theft instead of larceny, for instance.
What is the difference?
Perhaps the Minister will wait a minute. He is getting the worst of both worlds by taking isolated provisions from the Larceny Act and replacing them with isolated sections of the Theft Act. Some of the new provisions seem less stringent than the old ones. For example, subsection (2) of section 27 of the Larceny Act provided for a break-in with intent to commit any type of felony, whereas the substitute section, 23, would seem to limit the felony which he may intend to cause. The only sections of the Larceny Act which may occasionally give rise to trouble—and I am talking of trouble only from the point of view of prosecutions—are those sections dealing with receiving stolen property, something which can be exceedingly difficult to prove. It was to overcome these difficulties that the English Theft Act introduced the concept of handling stolen goods rather than receiving them. Curiously, this section of the Act is not being incorporated in our legislation.
I am convinced that the real reason for these amendments to our Larceny Act concerns the problems associated with extradition. Since the Theft Act came into force in England, and the great majority of extradition warrants coming to this country are for offences of this nature, there have been many problems because of the two Statutes being different. All the court here can do is look at the description on the warrant which comes from England and decide whether the factual material set out in the warrant constitute acts which, if committed here, would amount to criminal offences. In practice, what has been happening is that in cases of persons being wanted in England for theft under section 1 of the Theft Act such warrants were thrown out by the courts because they did not correspond with our law. The situation then developed whereby essential fraudulent warrants were sent from England which, instead of saying that so and so is wanted in England for dishonestly appropriating property belonging to another with the intention of depriving the other permanently of it, would say that such a person dishonestly appropriated property belonging to another by taking or carrying away the same property with the intention of permanently depriving the owner thereof. This was not an offence under English law but it was the type of warrant that the English authorities solemnly sent here. Then, the Irish courts had to construe such warrants as being equivalent to the offences of larceny under section 2 of our Larceny Act and the person concerned would be duly returned to England. I make no argument regarding the merits of such persons in any case but the fact remains that during the past two or three years a fraud has been perpetrated on the Irish courts.
This is a very serious charge. It is a charge which it is improper for the Deputy to make.
The Minister will have ample opportunity to deal with any charge I make and if I am wrong he can prove this to be so.
I wonder whether the script writer concerned realised how serious it is to put such matters into a script.
If the Deputy from Wexford who during the course of the debate on this Bill so far has graced the seats only for the past few minutes, has anything to say in regard to me, he will be given an opportunity of so saying.
I have been watching the Deputy read from a script.
This matter was alluded to by Mr. Justice Walsh in the Supreme Court in the Wyatt case in 1974 when he said:
...it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought. If it should transpire in any case, that the statements of facts set out in the charge were not supported by any evidence then, of course, a very serious situation would arise and the Courts would be obliged to examine such warrants in a completely different light, because to setout statements of fact on a warrant, for the purpose of giving the charge the appearance of corresponding to an offence under Irish Law, when these factual statements are not capable of being borne out by evidence, would be to practice a fraud upon the courts of this country.
He did not allege a fraud but the Deputy is alleging a fraud.
The justice said that certain practices would be a fraud.
It is very serious for the Deputy to allege fraud in a matter like this.
The British authorities are open to the accusation of practising a fraud on the courts of this country.
This is outrageous.
I think the Minister is now trying to get things back on the road as it were; and if he is to be congratulated at all, it is for making these efforts to remedy the situation. He has returned to some sort of grace but it would be better if he admitted what has been going on and said that this portion of the Bill was designed to cover the position. However, if one goes by the Explanatory Memorandum, instead of apologising, as I think he should, for what has happened, the Minister comes here with these sections as something that is advancing the criminal law. It does nothing of the sort. If he had wanted properly and effectively to get over the position in which the courts are not being treated as they should be, it would have been a simple matter to put a schedule of offences to the existing Extradition Act and have those offences deemed to correspond with certain offences in England. It might have been expecting too much to expect that it would happen in that way. I should like to hear the Minister deal with the case I have made and, if I am wrong, I shall be the first to admit it and to apologise.
It is an extremely serious matter for a Deputy, a spokesman of the Opposition, to make the allegation here that warrants being sent for execution under the extradition process are fraudulent and it is something I must reject and protest about.
I will leave the subject because it is not relevant to what we are debating despite Deputy Collins's effort to drag it in. The present position is that all law relating to the dishonest appropriation of property is old-fashioned. It is on the statute books since 1916. It needs to be updated, amended and codified possibly, and it needs to take account of the refinements that have been made in it by judicial decisions over the years. This is a very major piece of law reform, and it will necessarily take some time when our resources can be directed to it. The opportunity was taken in this Bill to reform that law in regard to a number of instances dealt with in sections 5, 6 and 7. Deputy Collins said the present laws do not give rise to any difficulties in these areas. I think he is mistaken in that. I recall personal experience in regard to seeing and being involved in prosecutions of offences under these sections. The law is most complicated and complex and has anomalies. Sections 6 and 7 replace the present offences of burglary, and the other offences under the 1916 Act which involve breaking and entering buildings, with a new and simplified offence of burglary and a new offence of aggravated burglary. The existing offences are extremely complicated. There are separate offences depending on the kind of building entered, whether the entry is or is not by breaking; whether entry takes place by day or by night. These make for unnecessary complications.
Amending of these three provisions by the introduction of the new sections in this Bill simplifies the law and makes it more readily understood to practitioners and others interested in discovering what it is and makes it simpler for both prosecuting and defending counsel. They will know that the law is clear and there will be an avoidance of the present position where justice may be evaded for lack of form in an indictment due to failure to comply with, or to acknowledge all these technical differences as to the type of building, whether it is day or night, whether it is breaking or entering Not frequently but not infrequently —and I speak as somebody who took full advantage of the complexity of the law—we have had persons escaping the consequences of their acts not on the merits of whether they were guilty or not but on technical faults in the prosecution of the case.
Anything that clears up that situation is to be desired and the amendments proposed here do clear up the situation. The fact that they are limited to these three areas does not take from the improvement they make or the advisability of making the change. I do not differ from Deputy Collins on this —it would be more desirable if we were to bring in a brand new Act relating to the dishonest appropriation of another person's property. That would be a major law reform and it will have to wait for another day. When we have the opportunity here of making changes to improve the present criminal law we should take advantage of it.
There is the further necessity that, because we are making these extra-territorial offences, we want as far as possible to have the law in both jurisdictions on all fours. Otherwise, we will have an anomalous situation in which something in one jurisdiction would not be an offence when committed extra-territorially but would be an offence within the other jurisdiction if committed domestically. We must be careful not to run into anomalies and that is one reason why the changes are being made here apart from their desirability in their own right.
Deputy Haughey welcomed, and I appreciate the welcome he gave to the amendment of the law relating to burglary involving force. He welcomed the new offence of aggravated burglary by pointing out that regrettably it is becoming more common and that it is important to have it clearly marked on our statute book as a serious offence carrying very heavy penalties. I make no apology for bringing in these limited reforms—any reform is good albeit limited—and they are necessary in this Bill.
Sections 5, 6 and 7 involve the repeal of sections 24 to 27 of the Larceny Act, 1916. I think the Minister has acknowledged that the case still stands that he is repealing only three sections or four sections and introducing these three sections here in their place. This is not a tidy way or the best way to do it. Would the Minister say if he sees these particular offences —he has not said so; I am not arguing that these are not the ones immediately in his mind—as being the kind of offences for which the powers given under this Bill are designed, as distinct from the other offences under the Larceny Act? He has more or less said that what he is doing here is bringing the law up to date as regards certain sections of the Larceny Act. That is not the full story.
I did not say it was. I said it was important that it be on all fours——
In relation to extra-territorial legislation.
I said that.
The only reason these amendments are being included in this Bill is for the purpose of extra-territorial jurisdiction. That is the main purpose. Having acknowledged that——
I had already admitted that.
I think the Minister has also been saying that he is tidying up the criminal law generally and bringing it up to date. He is doing the very opposite and making criminal law as untidy as it could possibly be because what he is doing in that sense is taking out three specific sections or areas that have hitherto been covered under the Larcency Act and putting them into what might be called this extra-territorial piece of legislation.
If there is no element of a person committing an offence outside the country in relation to something which would be an offence here, such as the ordinary case of robbery or burglary, the Minister must realise that he is now confusing the criminal-law to the extent that he is introducing those sections concerning these reprehensible offences into an area which is not appropriate to them. I imagine that the vast majority of robberies, or burglaries or aggravated burglaries will have nothing whatever to do with the extra-territoriality which is behind the principle of this Bill. The Minister, because some cases might have, has transferred whole sections of our criminal law into this legislation.
The Deputy should read sections 5, 6 and 7. Section 5 states and the wording is followed in sections 6 and 7:
The Larceny Act, 1916, is hereby amended by the substitution for section 23 of the following section:
There then follows the new section 23, followed by the new section 23A and the new section 23B. Therefore, the Larceny Act, 1916, is amended after the passage of this Bill irrespective of whether or not there is extra-territoriality. In so far as that is concerned two of those offences, section 23, robbery and section 23B, aggravated burglary, are included in the Schedule and are made extra-territorial offences. But our domestic law, which is the Larceny Act, 1916, is amended and stands by itself as amended.
The case made by Deputy Collins still stands. The Larceny Act, 1916, has long since been amended in England by the Theft Act. If the Minister wants to bring this up to date he should have taken a comprehensive look at it and amended the lot. Robbery and burglary are only aspects of larceny.
I acknowledged that when I was speaking.
I appreciate that the Minister did. But having done so he could still have included, having brought in an amending Bill to deal with all those matters and bring our law up to date, some of those offences in that new Bill in the Schedule to this Bill. Why did the Minister not do it that way?
To replace the law relating to theft or larceny and other dishonesty would be a major reform of the law. It would require considerable research. Considerable resources in manpower and time would have to be given to it, which, quite frankly, we did not have. It would be my ambition to be able to promote a totally amended Larceny Act or Theft Act but this would take a lot of study, analysis and research. It would not be enough, in my opinion, to copy entirely the Theft Act 1968, from the United Kingdom because certain deficiencies have manifested themselves in its working. We would have to do research on how it has operated in that jurisdiction. We would have to see if this research would be applicable to our jurisdiction. We would have to look at our case law since then. Deputy O'Kennedy will appreciate that it would be a major piece of law reform. It does not give me any pleasure to say that we have not had the resources to do that. Possibly the Law Reform Commission might be an appropriate body to deal with this. Their programme has not been settled yet and I do not know if this will be part of their brief or whether criminal law will come within their ambit at all. We are left with the second best. I concede that.
I do not agree that it is the second best. It is more likely the third best. There is a section in the Larceny Act, 1916, section 29, which could, on the Minister's presentation of the need for this Bill, have appeared here too. This section states that every person who utters, knowing the contents thereof, any letter or writing demanding of any person with menaces and without any reasonable or proper cause any property or valuable thing shall be guilty of felony and on conviction thereof liable to penal servitude for life. That section is probably as relevant to extra-territoriality as those the Minister has dealt with—robbery and aggravated burglary. The Minister has better knowledge of the pressures under which people may be operating, North or South, and the intimidation which may be applied North or South by unlawful organisations.
I am using this as an illustration of what the Minister is doing. He is taking particular sections and introducing them into this legislation. When the Larceny Act, 1916, was introduced, no matter how much out of date it is now it was the result of a very detailed analysis of the criminal law as it then stood. It was appropriate to its time. It was comprehensive and has stood the test of time reasonably well.
I believe it was merely a consolidating Act. It brought together existing criminal law. There was nothing novel about it.
I did not say that.
I thought the Deputy said it was the result of a lot of research.
Research of a kind went into it. It is not for the Minister or me to say what research went into it. There was a certain type of research which enabled a comprehensive Bill to be presented. Why has the Minister not found it necessary to make any reference to section 29 of the Larceny Act, 1916?
The genesis of the list of offences in the Schedule is to be found in the Law Enforcement Commission Report. The Schedule follows the offences indicated by the Law Commission as being the offences which should be made extra-territorial. As the Deputy will have seen from reading it, they are all serious offences being committed by terrorists at the present time. The offence in section 29 of the Larceny Act, 1916, to which he refers, is the offence known in every-day language as blackmail. It might possibly have been a desirable offence to include in the Schedule but it was not one of those recommended by the Law Enforcement Commission.
I am not aware that it is a common terrorist offence in so far as threatening would be concerned. The menaces part of it would be the serious element and that is covered in some cases by the offence of robbery, which is a scheduled offence. The offence of robbery, as redefined, involves the use of force. Likewise, in the unlawful seizure of vehicles there is probably the use of force there. This is covered under section 10. The menaces element of section 29, the blackmailing section, is included in sections 5 and 10. The reason why blackmail, as such, is not included in the schedule of offences is that it was not one of the offences recommended by the Law Enforcement Commission. Where it is a serious offence in the terrorist sense, it is covered by sections 5 and 10.
Section 5 relates to a new definition of robbery and says that a person is guilty of robbery if he steals. In addition, to constitute the offence he must, immediately before or at the time of doing so, steal. In order to do so he must use force on any person or put or seek to put any person in fear of being then and there subjected to force. First of all, he must steal and then he must use force or put a person in fear of force. That is robbery, which is certainly different from demanding money with menaces or blackmail, as the Minister calls it, and it is certainly not related to what is covered in section 29 of the Larceny Act; neither is it covered in section 10 which deals with and is confined to unlawful seizure of vehicles.
I merely used these two sections to show that the idea of menaces or a person imposing his will on another person by force was covered and that the ordinary blackmailing offence, which is what section 29 deals with, is not what one would normally call a terrorist type of offence. However, let me say in passing that I welcome this indication by the Opposition that the number of extra-territorial offences should be extended.
I am not saying that, and I know when the Minister smiles as he says it, he does not believe it himself. I am simply saying on the basis of the case presented by the Minister that if he wants to be consistent he should have gone even further. We reject this; we have made that very clear, but in an effort to be consistent, which the Minister is not being, we are saying that if a person under section 29 as it stands receives a demand for money by threat in a letter—and I would have thought that would be a fairly common occurrence in present circumstances—such an offence is not covered in this provision which relates only to physical robbery, burglary or aggravated burglary. The Minister has fallen into the trap of taking just a few sections of the Larceny Act and amending them, the few he thinks that are related to this extra-territorial jurisdiction which is being conferred, and he has left others. In doing that he has confused the position in the criminal law generally and he may have excluded something that he should have included. Let me come back to the definition of section 5:
A person is guilty of robbery if he steals, and immediately before or at the time of doing so and in order to do so——
Those two ingredients must be there; it must happen immediately before the time of doing so and in order to do so.
——he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
What definition of stealing are we concerned with here? What precisely is meant by using force? Would it be a physical assault in the terms of the normal definition of assault? Applying physical force could simply involve putting your hand on or pushing a person who does not wish that you should do so. Would that be force in the sense of this provision?
We all may have a certain notion of what robbery involves, and maybe that is why the Larceny Act did not define it precisely. This statutory definition the Minister is now putting in here may go much too far and may include things which in the normal concept of robbery should not be included in this Bill.
I think that if we can, in this Bill, catch people who are guilty of the offence of stealing by force we should do so, and that if we can do so in a simple section, that is what should be desired. That is what, I submit to the House, this section does. "Stealing" would, of course, have the definition in the Larceny Act, 1916. There would have to be no claim of right, and all the other ingredients of the offence of larceny under the 1916 Act. The only way to define force is to get an English dictionary, but it will be for the courts to decide whether force was used or not. Force would not require any legal definition. It would be a matter for the court to decide if force was used and if the stealing amounted to stealing under the Larceny Act, and if so, an offence would be committed.
Before the Deputy goes on to say that the definition of stealing in the Theft Act, 1968, differs from the definition in the Larceny Act, 1916, let me say that the 1968 definition is so wide that it automatically embraces the definition in the 1916 Act. I cannot conceive of any situation where a 1916 "stealing" definition would not fall within the 1968 definition. But under section 5, the new section of the Larceny Act, 1916, stealing will have the meaning given to it by the Larceny Act, 1916.
It might have been tidier if the Minister had indicated with reference to the Larceny Act that "steal" will have the definition that is given to it in the Larceny Act, 1916.
It could not have any other meaning, because the Larceny Act, 1916, has this new section in it; it will be part of the Act.
We will take that point and go on to the next point about which I am more concerned, and I think the Minister is too. The Minister has introduced into this criminal law of ours a provision which can mean that a person who would catch or push a person and in the course of that take 50p or £1 out of his pocket is liable on conviction to imprisonment for life. It cannot all be left to the courts to decide. I am not putting a definition on force, but it is the application of physical activity to a person against his will. If I were to push or pull the Minister that would be force.
And if the Deputy were to steal from me at the same time, I would say that was robbery.
Yes, that is robbery. If I take £2 or £3 out of the Minister's pocket, that is an offence punishable by life imprisonment.
Does the Deputy really think the court would give him life for that?
My point is that the Minister has introduced these sections into the Bill because his mind is coloured by the territorial aspect. He is thinking in terms of IRA men or bank robbers operating with guns. I am not condoning what might be done, but he is bringing about a situation where youngsters who engage in robbery under section 5 are liable to penal servitude for life.
They could also get the Probation Act. We have to assume that the court will apply common sense to the crime before it.
I would like to ask the Minister if he would accept the principle that the maximum penalty under the Bill here is an indication of the gravity of the offence and an indication of the attitude which we legislators have to that offence. Otherwise why should there be a maximum penalty of seven, ten or 12 years? When we say here "liable to penal servitude for life" we thereby indicate—because this is the greatest penalty of the criminal law at the moment—that, in our view, this is amongst the most heinous offences known to the criminal law. It is fine for the Minister to say the courts, in applying their common sense, will not impose that penalty. We should not have to rely on the courts to apply their common sense and goodwill.
We have to in every case. We cannot prescribe in advance for every offence.
I should like to know what the experience in England has been. The Minister did not tell us that. Having regard to the meaning of words in the normal sense, and the legal interpretation which will be put on those words, the Minister's new interpretation of "robbery" is far too wide. It is not for us to amend the section. We have gone beyond hoping that the Minister will amend it. If we were talking in terms of the application of physical force with a weapon, or otherwise, we might be more ad idem. The Minister is talking in terms of force broadly and generally. Force has a very broad meaning.
This extension of the definition of "robbery" this new definition, is far too wide. It will apply to people who have no intention of robbing banks for IRA purposes. It could apply to young boys from delinquent backgrounds for whom we all have a special responsibility. I am not condoning what they do, but it might be well for us to condemn ourselves for allowing social circumstances to arise which lead to delinquency. Under this section they will be guilty of an offence which is punishable by penal servitude for life.
The Minister depends on the common sense of judges. I do, too. I have that much in common with him. The Minister is aware that there have been some examples of some judicial decisions which might have been influenced more by bias, be it political or otherwise, than by common sense. We do not have to go back too far. The Minister may be aware of some decisions which were not based on common sense.
That is why we have an appellate system.
This obliges people to go through a second run. I will defend fiercely the record of the Judiciary generally but an individual judge might go a bit off the rails for one good reason or another. This can happen in the nature of things. This section will enable him to do some very strange things. We are not discharging our responsibility by introducing such a wide-ranging definition of "robbery" which will be punishable by life imprisonment. We could not impose a heavier sentence. The Minister must be very concerned with that. He put in the section because he is concerned about IRA men robbing banks, and so on. The Minister knows our position on the Bill generally. We would do everything we could to ensure that no IRA men, or others, rob banks. Perhaps we would deal with them more effectively than the Minister, but we will not go into that argument.
It is IRA men in Northern Ireland we are talking about here.
Wherever. That is why we introduced our amendments which were more workable and more appropriate. To get at those people, the Minister has extended the net far too wide. He must be aware of that. He calls it a tidying up of the criminal law. I think it is a monstrous and basic change in the criminal law and I hope it will not be used against some citizen who may be guilty of what we previously called larceny.
Simple robbery was the old offence—which was a contradiction in terms.
Under section 23 of the 1916 Act, the provision in relation to simple robbery was: "Every person who being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person——"
The Deputy is reading out aggravated robbery. That is punishable with life under the old Act, section 23 (2).
I am reading subsection (1).
Sorry. It is the other way around. Subsection (2) deals with simple robbery. The Deputy is reading out aggravated robbery.
If the Minister would listen for a moment, we might clear it up. Deputy Esmonde had the other copy of the Act. I had some difficulty in getting this.
It had gone back to the Library.
I thought Deputy Esmonde would stay with the Minister for a while. He seemed to be developing some zeal for this debate but he has left the House.
He ran out of wind.
On the side the section says "Robbery". Section 23 (1) provides:
Every person who—(a) being armed with any offensive weapon or instrument or being together with one other person or more, robs or assaults with intent to rob, any person;——
There are two ingredients: an offensive weapon and at least two people are involved—
——(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses any personal violence to any person; shall be guilty of felony and on conviction thereof liable to penal servitude for life, and, in addition, if a male, to be once privately whipped.
It goes on to provide:
Every person who robs any person shall be guilty of felony and on conviction thereof liable to penal servitude for any term not exceeding fourteen years.
"Robbery" as defined there involves an offensive weapon or being involved with someone else.
Subsection (2) does not involve a weapon.
It does not. The maximum is 14 years and that was in the days when there was not the same social awareness of the causes of crime in particular environments. The Minister is now making it life imprisonment.
But 14 years is an awful punishment for the example of the offence the Deputy gave where he pushed me——
It might be.
Let me finish. He pushed me and took £2 out of my pocket. These are maximum sentences.
Why make it life imprisonment?
To mark the seriousness of the crime of robbery. "Robbery" is defined as doing something with force, as stealing with force. The seriousness of that crime has to be marked by imposing a high maximum sentence, the highest the law can lay down. Deputy O'Kennedy knows very well that that does not say that it is the penalty to be applied universally. The penalty to be applied can be at any level within that maximum. This is to give the courts power to punish a heinous offence as it deserves to be punished. There can be trivial robberies, even though it sounds a contradiction in terms. A trivial robbery where there is a minimum amount of force and only a small amount of property stolen will be dealt with by the courts accordingly by imposing a suitable punishment. The punishment must always fit the crime. We must always hope that is what the courts will provide.
Under the old law there were two offences and, to my way of thinking, that was unsatisfactory. We had to wait until 1965 in the case of Smith v. Desmond before the law was clarified in regard to this offence. That was an unsatisfactory position. The Bill is now repeating in statutory form the clarified legal position. Under the old unclear law there were these two offences, one carrying life imprisonment, and the other bearing the title “simple robbery” and carrying a maximum penalty of 14 years. If Deputy O'Kennedy's argument is logical that the maximum penalty denotes the seriousness of the crime, and that we are out of all proportion here, I would submit to him that that argument applies equally to the old offence of simple robbery and that a maximum of 14 years denotes an extremely serious offence and could equally apply to his argument about pushing me.
How the liberal spots have worn off.
Licence and liberalism are two different things. The Deputy should get that distinction clear in his mind. Nor does being of a liberal frame of mind mean that one condones crime or one has to be soft about crime. On the contrary. The essence of liberalism is freedom, freedom from criminals and freedom from their effects on society. I am determined, so far as I can in my post, to ensure that this society will be free from criminals and that the law will be strong against them.
So am I.
But I am not in any way responsible for the situation which has bred these criminals, particularly subversive criminals, and brought them into our midst. However, we will not broaden the debate.
It might be no harm to do that because the Minister is, in fact, broadening the debate when dealing with this.
Deputy O'Kennedy's argument is that because there is a very serious maximum penalty provided here the section is somehow inappropriate for dealing with lesser offences. I would point out to him that what we are doing here is done throughout the entire criminal code. A maximum penalty is provided and it is then for the court to assess the seriousness of the crime within that maximum. That is all we are doing.
The Minister said this marks the seriousness of the offence. Of course, a penalty of this nature does just that. I would like to think that at a time when there is a growing awareness of what I might call the "seeds of criminality" and the social causes of it—that is what we are talking about here; we are talking about pure criminal law—we would take account of that and the penalties we would impose in legislation would take account of the background.
What the Deputy is saying is that we should impose penalties suitable for particular offences. We cannot do that.
No, but the maximum penalty we would impose would have regard to that. One cannot introduce an amendment to the criminal law, as the Minister is doing now, in its normal sense. Let us leave out the bank robbers and the IRA and the para-military groups and so on. The Minister should not be here introducing substantial amendments to the criminal law without having regard to the advances that have been made in the whole area of criminality and the social studies of the background of habitual delinquents. The Minister is, in fact, now closing his mind to all of that in relation to this particular section dealing with the definition of robbery because his mind is coloured by one thing only and that is IRA men with guns.
The Deputy's mind is obviously not coloured by that.
No. That is why I am saying these particular sections do not belong here at all. The Minister thinks they are appropriate because the Law Reform Committee said so and the Minister has left out others. I am just showing the inconsistency. The Minister has left out extortion by letters or otherwise. Now the old section 23 does not define robbery at all. The Minister does.
That is why it was defective and we had to wait until 1965 for a leading case to define it.
Maybe there was some common sense in that. Maybe they recognised that in defining the offence and putting a maximum penalty, as the Minister is doing, they would be going beyond the bounds of reason, as the Minister is doing. We could argue this all night. There were three different penalties in that section: five years for a person who assaults any person with intent to rob.
I think five years was too low a maximum in that case because that is the offence of mugging and that is a very serious offence.
The Minister says it covers the offence of mugging but assault could be a great deal less than that. There is a penalty of 14 years for a person who does what is now regarded as robbery and life for aggravated robbery. The Minister has dumped the whole lot together. I will not argue this at any great length but I do not want my position to be misrepresented, as the Minister is prone to misrepresent it. A young fellow who pushes someone and takes £1 in the process will be guilty under our law, as amended by the Minister, of an offence which will render him liable to imprisonment for 14 years.
He was liable to 14 years before the law was changed.
And the Minister thinks this is an advance?
If the Deputy is seriously suggesting that a person who pushes another will be liable to life imprisonment he is daft. He must think our courts are staffed with madmen.
That is the way it is now. This is the only section they can be charged under. What would they be charged with?
Of course, they will be charged under this section.
And liable to imprisonment for life.
I just want to ask a simple question. Is robbery carrying a life penalty under subsection (2) solely related to robbery as outlined in subsection (1) of section 23?
Yes. It has to come within that legal definition.
All the arguments made on section 5 can be repeated on both this section and section 7 and the Minister's response will be the same.
Deputy Haughey appreciated the importance of section 7.
In relation to both section 6 and section 7, we are dealing with aggravated burglary, which is more clearly defined, and people being in possession of firearms and matters of that sort. I do not want the Minister to misrepresent our position. These are rather different from the example I quoted earlier——
I am glad to hear that because Deputy O'Kennedy has just said that the same arguments apply here as applied to the earlier section.
The Minister is adept at misquoting.
It would appear that the Minister is proposing here that we go backwards in penal legislation. The type of offence proposed by the new section 27 (a) (i) with regard to firearms is identical in phraseology with section 4 of the Explosive Substances Act of 1883. That section provides that if a person has explosives in his possession or under his control in such circumstances as to give rise to reasonable suspicion that he does not have them in his possession or under his control for a lawful object, and so on, he shall be guilty of an offence. The essential difference is that under the old Act a person had to have the explosive substance knowingly in his possession. The absence of the word "knowingly" in the proposed new section means a person can be convicted for having ammunition in his possession without knowing it was ammunition and he can be sentenced to five years' imprisonment. Somebody could give me a small box, the size of a cigarette packet, and ask me to hold it for him. If I leave it in my briefcase or in my room and forget about it and never look at the contents, and if a few weeks later my room or bag is searched, under this section I could be convicted and sentenced to five years although I had no knowledge of the contents of the package. Is that not so?
The fact is the word "knowingly" is not in the section. Am I wrong in thinking that the Minister said the case I made is not so?
It would not be an offence under the section.
If that is not so, I have misinterpreted the section.
The Deputy is saying that because the word "knowingly" is not in the section it creates an absolute offence and intent does not arise or mens rea does not matter, but of course it does. The fact that the word “knowingly” is not there does not create an absolute offence. In this section there still has to be mens rea. This section was criticised in that it transfers and shifts the burden of proof. I dealt with this when replying to the Second Stage debate because Deputy O'Connell raised it. He said that the effect of this section would be that a person accused of an offence under the section of possessing a firearm or ammunition would be guilty until proved innocent. That is wrong. The section says:
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 that a person is guilty until he proves his innocence. The memorandum states:
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. 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.
There are two burdens of proof, the evidential and the persuasive. The persuasive burden of proof means an accused must prove that the matter is such on a balance of probabilities. There are many enactments similar to section 8—those that provide that a person is guilty of an offence if he does such-and-such without reasonable excuse, or without the leave of some authority. Those enactments cast an evidential burden on an accused person, but not a persuasive one. It is common enough for a person to have to discharge an evidential burden. If he does so, the full burden falls back on the prosecution.
I presume from that, that if he fails to prove the purpose for which he had the firearms was lawful, the purpose would be, ipso facto, unlawful. The maximum penalty there is five years.
He does not have to prove it was lawful, but he has to produce some evidence to show that it was lawful.
On the balance of probabilities the court can decide whether he has established it.
He has only to adduce some evidence fit for consideration. He has not to discharge any burden of proving that it was lawful. He has no persuasive burden to discharge there.
The court will then decide whether he has produced the evidence to show it was lawful. Is that right?
If he adduces some evidence to show it is lawful the court does not make a decision on it. The burden then shifts back to the prosecution to show that that could not be so.
But if it does, and if it discharges that burden——
He will be guilty of an offence.
Fair enough. A man had firearms in his possession unlawfully and for that he is guilty of an offence and liable to imprisonment for a term not exceeding five years. Would the Minister contrast what he has done here with what has been done under section 5? I should have thought the Minister had some zeal in dealing with people who carried firearms unlawfully. He seems to have his priorities reversed when he said that:
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....
In other words, he is in unlawful possession of firearms. I would have thought that such a person is, to say the least of it, a greater danger to society than the person who may knock somebody over for the purpose of robbing his pockets. The Minister may have his own views on this but he does not appear to take a very serious view of a person carrying firearms unlawfully——
Not "carrying", that is in the next section.
——in his possession or under his control. "Control" has been defined as physical possession. It seems to be inconsistent, judging by the Minister's standards, if the term of imprisonment is a measure of our attitude to how heinous the offence is. He seems to have turned the public attitude upside down. The public, I am sure, would be more concerned about dealing with people carrying firearms unlawfully, or in possession of firearms or explosives unlawfully, than they would be about people who are guilty of what is called "robbery" under this Bill.
The Deputy used loose language when he talked about "firearms unlawfully". We have two distinct offences here under sections 8 and 9. Section 8 deals with possession of firearms in suspicious circumstances. The next section deals with carrying firearms with criminal intent. There is a world of difference of criminality between the two. For the former, the maximum penalty is five years, which, in comparison with life imprisonment, is not a terribly serious punishment but taken by itself it is enough to enable the court to impose a very serious punishment for the offence of having something in suspicious circumstances. We might have our suspicions of what the suspicious circumstances might be, but are we entitled to visit our suspicions on the person to the point of imposing an ultra-draconian penalty by virtue of our suspicions?
In my view, the two sections make a proper distinction. The first, "possession of firearms in suspicious circumstances", is marked with a maximum of five years, because there must be an element of doubt which the word "suspicious" implies. The second section is much more serious, "carrying a firearm with criminal intent".
Where is the word "suspicious" in this Bill? The Minister used it a number of times.
It is in the margin of section 8, a summary of the kernel of the type of the offence.
It is not in the section itself.
No, but that is what it is in layman's language.
It is not in the section.
The word "suspicious" is not in the section but the side note is expressing the section in layman's language.
It is the section that will be interpreted by the courts, as the Minister knows.
I am aware of that. The Deputy is making the point that the maximum is not high enough.
It is not. I am saying that by comparison with the maximum in section 5. The Minister has got it all wrong. I am not saying it is not high enough here.
Section 5 deals with the possession of firearms in suspicious circumstances. In layman's language that is what it is and what it will amount to. In my view the maximum is adequate for that bearing in mind that the offence under the next section is a more serious one. A person will be convicted under the next section if he is shown to have had a firearm with intent to commit an indictable offence or to resist or prevent arrest of himself or another. In such circumstances he will be guilty of an offence carrying a maximum penalty of ten years. That marks the seriousness of that offence and it can be distinguised from the preceding one where there is this element of circumstances of suspicion and where there is no active use being made of the firearm.
Would the Minister give the House a practical example? The Minister has imported the layman's term for "suspicious circumstances" but I should like to know what the Minister means when he says a person can be found guilty of an offence under this section for possession of firearms in suspicious circumstances.
It would be very dangerous for me to try to describe to the House a particular crime. I could mislead people and the example I take might not be accurate. It would be highly dangerous for me to embark on such speculation.
It is not speculation. I have asked the Minister to give an example. The Minister has used layman's terminology and for that reason I have asked him to give an example of what he means by "suspicious circumstances".
I am not going to speculate because our courts have to decide every case. I am not going to give my opinion.
A person with a submachine gun or a revolver in his car at the back of a bank, a car from which he has emerged, would that be an example of "firearms in suspicious circumstances"?
I would be inclined to say it would.
Such an offence qualifies for a penalty of five years maximum.
I do not know what other offences the individual concerned might be charged with.
At this stage he has not gone near the bank; his car is at the back of the bank. I am not saying that five years is not enough; in some circumstances it could be too much and in other circumstances it could be too little. However, there is a terrible inconsistency in this Bill which can make a maximum of five years in a case such as the one I have described.
He could also be carrying a firearm with criminal intent which would attract a maximum of ten years.
That is physically carrying. I would be a lot more afraid of a gentleman like that than I would be of a young fellow who would physically attack me and take a couple of pounds out of my pocket.
The Deputy would be right.
And the Minister is making the offence punishable by a maximum of life imprisonment and the other five or ten years, as the case might be.
I am leaving it to the courts.
Why is there this discrepancy in the maxima the Minister has introduced?
I do not agree that there is a discrepancy. The offence of robbery can be a most serious offence and it permits of all grades, from the simple example given by the Deputy to a most serious assault, a shooting and a near murder. It can mean every grade in between those and we must provide for the worst grade in the penalty we provide.
In the case of near murder, if a person nearly dies, it would not be robbery we would be talking about.
We might. It would depend on the facts of the case, and what the Director of Public Prosecutions felt the facts would sustain by way of an indictment. Nevertheless, we have to provide for all grades of robbery from the simplest to the most complicated, the most heinous and the most serious. Consequently, the maximum punishment we provide must be appropriate to the most heinous. Here we are dealing with a specific offence of having something under suspicious circumstances. Nothing was done and there was no proof that anything would be done; something that is distasteful because a firearm is involved. We provide a maximum penalty which we think is appropriate to that.
I am not saying that this one is wrong but there is no consistency in the maxima the Minister has introduced for the guidance of the courts.
Would the Minister give the House a brief statement on the purposes of this section?
This is to deal with the contemporary crime of what is colloquially known as hi-jacking of vehicles. This section makes such an offence a serious one because these vehicles are being taken for the commission of very serious criminal offences. In many cases they are being stolen for bombings or bank robberies. If vehicles were not stolen, many of these horrible bombings would not take place. The taking of a vehicle by force is, in contemporary terms, a very serious crime.
As the Minister has indicated, this is an unwelcome characteristic of our time and has been used, unfortunately, to cause death and destruction. There has been an increasing tendency in the normal criminal development to unlawfully seize vehicles and it is appropriate that such a section should be introduced. Its introduction is timely. Perhaps, in so far as the criminal law should reflect the capacity of the legislators to deal with the development of crime in any generation, it would be as well if this section was included in a major amending Bill, which this Bill is not. When the Minister and his advisors have the time and the facilities to do so they might consider incorporating it in a Bill which would deal with the criminal law of larceny in its broadest sense in a comprehensive way which this Bill does not do. Perhaps on that occasion he will have our support. We support the purpose of this section.
It seems to me that section 11 and some of the subsequent sections constitute the administrative machinery whereby evidence in relation to offences under sections 2 and 3 may be taken in Northern Ireland or in this jurisdiction. We have tried to be very realistic about this Bill and the Minister knows that even though he has not admitted it——
That certainly is cheek.
In the Seanad many amendments were put down by my party. Unfortunately we saw the Minister's reaction to the amendments——
Senator Lenihan said the Bill was beyond amendment.
In this House we have tried to be even more realistic bearing in mind the attitude of the Minister to reasoned amendments in the Seanad. We put down only three amendments in this House, two of which were debated and were very narrowly defeated. There is one further amendment to come. Having regard to the Minister's attitude in the Seanad and to our two amendments which were voted on, there seems little point in trying to help him change his mind in relation to any of the details in the Bill. In discussing this part of the Bill I am very conscious of the Minister's attitude and of the views he expressed in this House with regard to what I said on earlier sections. However, there are a few aspects that must be referred to.
In section 11 (2) (d) it is provided that the accused while in custody in Northern Ireland for the purpose of taking evidence shall be immune from detention and any kind of suit or legal process in certain circumstances. One of the matters that considerably disturbs our party is the fact that nowhere in the Bill is there protection for the accused from interrogation while he is in Northern Ireland. Not merely is there no protection for the accused from interrogation or sustained questioning while in Northern Ireland, there is no protection from such interrogation given to him by any of the provisions of the corresponding English Act, namely, the Criminal Jurisdiction Act, 1975, and the relevant provisions contained in Part I of Schedule IV. These sorts of rights should be explicitly spelled out not merely in our own legislation but, even more importantly, in the sections that should correspond in the British Act. If we are to have a system, as the Minister seems determined to have, of sending an accused person to Northern Ireland, or at least by statute providing for his attendance there, it seems to us that he must be given statutory immunity from questioning and interrogation.
The reference in section 11 (2) (d) to immunity from detention must refer to the type of detention that was in Northern Ireland until recently. It is clear that the accused if he is in Northern Ireland will remain there in RUC or Special Branch custody. The Minister must be aware that it is in relation to persons in police custody in Northern Ireland, and during their interrogation and continued questioning while in such custody, that the greatest number of complaints have arisen about the Northern Ireland security forces. Here I am not merely talking about physical brutality. I am concerned that under the provisions of this Bill any person in Northern Ireland can be subjected to continuous interrogation by those people in respect of whom the Strasbourg judgement is soon apparently to be in the hands of the Government, if they have not got it already——
They have it now.
On this side of the House we are reasonably confident that if they have not got it they know full well what is in it—they have known since before Christmas. The Minister may consider that this fear is unreal but I do not think it is. It seems to me to be more unreal to have a steadfast belief in the bona fides of the Northern Ireland security forces —it has been indicated that the Minister and people in his party have such a belief.
In this context one matter that disturbs me, and which relates specifically to my fear that persons in such custody in Northern Ireland may be so interrogated, is a comparison between a section of this Bill and the corresponding section of the English Act. In this section it is provided that at the conclusion of the taking of evidence the accused shall be brought by the Garda Síochána as soon as may be to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland. The corresponding provisions of the English Act would appear to be paragraph 4 (5) of Schedule IV. There is no provision that the accused person is to be delivered out of the custody of the RUC to the Garda Síochána as soon as may be. It merely states that at the conclusion of the proceedings he is to be delivered back.
The Minister cannot have it both ways. Either the words "as soon as may be" in this draft Bill mean something or they do not. If they mean something in our Bill, we are entitled to wonder why they are absent from the English Act. If the Minister takes the view that these words are meaningless he should say so because then the protection supposed to be given to an accused person by our Bill is meaningless. We are entitled to assume there was considerable corelation between the two Governments in the phraseology of the English Act and our Bill. Obviously there must have been because they both provide for dual procedures. That being the case, and it also being the case that we in this jurisdiction are aware of what has happened to persons in police custody in Northern Ireland, we are entitled to ask the significance of the absence of this phrase from the English statute.
The Minister is very involved in this matter because of his commitment to accused persons, and he cannot wash his hands of it and say it is a matter for the British to enact their own legislation. It is very much a matter of reciprocal procedures. If the Minister wants the House to approve of the Bill he must satisfy the House absolutely—and the citizens—on this matter.
We have debated this point on many occasions both in the Seanad, where the Bill was initiated, and here. We have had it at great length on the amendments tabled by the Opposition and it would be futile now to repeat all the arguments adduced and answered already. Immunity from legal process is granted by our Bill and the British Act: there is already immunity, and that includes the matter of interrogation. If there is any breach of that immunity there is a remedy in the hands of the person whose immunity has been breached.
For its working this Bill depends on co-operation and good faith on both sides. Should this not be forthcoming there is the sanction behind this Bill that it will cease to be worked. I have no doubt that that sanction will be effective and that immunities given in both measures will be honoured in the spirit and the letter. On the question of returning an accused at the end of adjourned proceedings, either party can apply to the commission in the North. The interpretation of both measures must be the same.
I am satisfied that the fears and apprehensions of the Opposition with regard to the safety of accused persons going North are not well founded because there is now a sanction in our hands to ensure those immunities will be respected through this reciprocal legislation. That sanction will be effective. We have debated this at considerable length and I have made that point already.
The Minister says this area has been debated at length but I do not think every point has been brought out. The Minister said that the Opposition were being reasonable in regard to other sections of the Bill, but this does not mean that we accept the Bill in principle. We may accept sections 4 to 10 from the point of view of the law but this does not mean we have changed our position so that we would accept the implications of section 11 any more than that we have changed from our belief that this Bill is not the practical way to deal with this problem.
I mention this because the Minister referred to what Senator Lenihan said in the Seanad, that the Bill is beyond amendment. What the Senator said is correct in relation to the principle of the Bill as distinct from the reasonable amendment we put forward in favour of a court covering both areas. The question Deputy Collins has been dealing with, and which I should like to go into a little further in relation to the immunities which the Minister guarantees, is that we do not see where the guarantee arises in the first instance. The Minister said earlier that if section 11 (2) (d) does not protect a defendant or a witness who has had voluntarily to surrender to another jurisdiction, protect him from anything that could occur to him while in another custody, there are sanctions that can be invoked. The difficulty the Minister has here is that that immunity would have to be breached before he could take any action.
When we were discussing an amendment earlier, I understood the Minister to say that the sanction in the event of any breach would be that co-operation would cease. The weakness I see in this is that in effect there must be a victim, a casualty, before the Minister could take any action. The Minister said earlier that if the other authorities were not fulfilling the letter of the law the Government here would suspend the operation of the Act.
How could this be done? This is a Bill which when signed by the President has written into it the requirement that in the event of a prosecution being brought and a book of evidence being forwarded to the Attorney General, if it is approved by him and the Garda, it must go ahead. I do not want to put the Minister into a difficult position but can the Government suddenly stop the operation of an Act of this kind? Would I be more correct in suggesting that if the Minister were not satisfied it would then be necessary for him to come into this House and ask to have this Bill suspended, in the event of his advisors being satisfied that the letter of the law in relation to the immunity whilst in another custody was not being properly fulfilled? These questions are particularly relevant to section 11.
There is nothing in the Bill which directs the mechanics for the working of it. The Bill declares that certain acts done in Northern Ireland are offences against our law and they are liable to be prosecuted in the normal way. Any offence against our law will be prosecuted through submissions filed by the gardaí, with the Director of Public Prosecutions, who will then decide. If we have the unlikely situation presented by the Opposition that there had been an abuse of the immunities granted by the other jurisdiction, the law officer of the Government would advise the Government of what had been taking place and there would be a number of options open to us. We could say: "We are not going to prosecute for this offence because it is all part of a reciprocal arrangement which has been breached. Have you a satisfactory explanation?", and go through the whole process as to what did happen. If satisfied then that the position justified it we would refuse to proceed with the prosecution, and if necessary would come in here to repeal the act.
You would come in to repeal the Act?
That might have to be done. It might have to be taken that far.
It is important to get that on the record.
That is the sanction that would be available but let me add also for the record that I do not anticipate that this sanction would have to be availed of.
I said at the beginning that the Minister believes what he believes. The Opposition do not necessarily believe what the Minister believes. From the Opposition point of view, if the Minister is to be called on to stand over the immunity which he says he has in the Bill, we have to know exactly what the Minister's position would be. If necessary, if there is an abuse of this, if it is put into operation, then the Minister is prepared to come into the House.
The Minister by replying to Deputy Collins's contribution would appear to have indicated that he did not want too fulsome a discussion on this section, on the basis that we had discussed at length many of the principles enshrined in it.
I do not mind fulsomeness.
The Minister would appear to be looking for some form of curtailment of the section.
I am more realistic than that.
I am glad the Minister is being realistic, because this is one of the most important sections in the Bill. As with the other sections, we are treating it with our usual analysis and expedition, as has been our practice throughout the whole discourse. We have not attempted to obstruct the passage of the Bill itself, but the machinery of the Dáil provides that there be adequate and reasonable discussion on important sections of the Bill. Our bona fides in relation to the general discussions on this Bill can be seen by the speedy manner in which sections 4, 5, 6, 7, 8, 9 and 10 were dealt with. These were clearly subject to the expressions made by various speakers on this side of the House in relation to sections 2 and 3 of the Bill. The sections I have just mentioned were given speedy passage.
In addition to the reply to Deputies Collins and Brugha, the Minister might deal with the question of witnesses and what provisions are made in this section relative to the proper care and custody of witnesses who may be going to the North giving evidence in the cause of an accused. I accept that the next section, 12, does deal to some extent with that problem, but not wholly. It has been suggested that the witness might in some way be under suspicion and might have been involved in the alleged crime with the accused, and he is a pertinent witness to that accused's case. What is his position when he goes north, for instance if he can give the accused an alibi in relation to the crime of which he is being accused?
The Deputy might clarify that point.
When I have concluded——
I think there is a misunderstanding. The Deputy puts the witness going north to give evidence for the accused. Is this an accused who had been arrested here for an extra-territorial offence here?
His trial takes place here. That accused does not have to go north. That accused gives his evidence to the courts here.
That is in reply to one question, but what is the position in relation to the taking of evidence in Northern Ireland for a criminal trial in the State? What is the position of an accused? Does the accused not have to go north in that case?
And does the witness not have to go north in that case?
Not a witness. If a witness is in this jurisdiction he gives his evidence in this jurisdiction. He does not have to go north. The position is that witnesses who are resident in the North and are unwilling to come south to give evidence may give evidence on commission, as provided for in section 11, and the accused only goes north for the purpose of the taking of the evidence of those witnesses. In a case of a witness who is prepared to come south or who is living in the South the question of giving evidence in the North does not arise.
In relation to the operability of the section itself, I refer the Minister to the statement that the accused be delivered when and so often as may be necessary to the custody of the police in Northern Ireland. How long, how often, and is there to be a limitation as to the number of times on which the accused is to be carted back and forth across the Border? How long does this exercise continue, and does the Minister think this is a particularly cumbersome form of transaction?
Another matter which may arise is the question of natural justice, the entitlement of a person to be tried in his or her own courts. Section 11 (2) (b) would appear to be abandoning that very important principle. There are provisions in the Bill for the attendance of a solicitor or barrister or legal representative of the accused in his absence, but I always feel that the accused person must look at the demeanour of his accusors. It is an important principle and we feel that in relation to the people applying the law in the North of Ireland—the RUC and the British army—it would be very important that an accused would be in the presence of his accusors. When the Minister states that the operation of this section generally will depend on co-operation and good faith on both sides, we on this side of the House unreservedly support the element that it will certainly operate in good faith as far as this side of the Border is concerned but can we depend on the good faith of the people on the other side of the Border?
We do not operate there.
This is the tragedy of the Minister's argument. This is where we have been endeavouring to point out that the Bill cannot operate. We know the history of the Strasbourg case. We read in our evening papers that the Minister has now this torture case before him and his Government, that the torture case is upheld by the European Convention on Human Rights, and that the charges laid against the United Kingdom Government were correct in every detail, according to the latest information in this evening's newspapers. This shows up the nonsense of the Minister's argument. If good faith is found to be wanting on the other side, the Bill does not operate.
I do not know whether the legislative process should be used and abused in that fashion. The Minister might reply to this. If the torture case publicly becomes a reality, is upheld, and the charges in it have been well founded against the British Government, surely good faith cannot apply there, and we cannot hope for good faith in the future, if it has been found wanting in the present and in the past. If there is one breach of good faith in the future when this Bill becomes an Act, is the Minister saying that he will come into this House and apologise for wasting the time of the House producing this Bill which the Leader of our party has said might be found to be unconstitutional? If we are talking about good faith let us talk about the principles of natural justice, which will be found wanting anyway. The Minister says our fear's are not well founded. Of course they are extremely well founded. They are founded on the fears we have of the operability, of those people in the North whom we are suspicious of, reasonably suspicious and with well-founded suspicions. The Minister asks us to take the operation of the Bill in the North in good faith.
I mentioned on Second Reading the matter referred to by Deputy Andrews, the question of extending immunity to witnesses. The Minister took me very cavalierly and painted a picture of idealised——
Land of hope and glory.
A picture of judicial perfection, which of course exists only in the mind of the Minister himself——
——or on television or in a text book. Has the Minister considered the situation where evidence is being taken on commission in the North of Ireland, and the accused has plenty of witnesses who for very good reasons do not want to go there because they could be involved in other crimes apart from the one with which the accused is charged, who are afraid to put a foot above the Border? Why are they not entitled to go up and give an alibi to the accused, in his absence, or in his presence? Why are they not allowed to go up and give evidence the same as witnesses in any other court in the world? What objection has the Minister to extending immunity to witnesses as well as to the accused?
Perhaps I could clear the matter.
I know what the Minister is going to say. He is going to say that evidence can be taken down here. I know that. I am not a fool.
Of course, that is where the trial is taking place.
Does the Minister not know well that under the Criminal Procedure Act—take a crime in the North—you have a couple of RUC men to give evidence about identification, about the presence or the whereabouts of the accused, and, assuming that the accused has two witnesses who can give an alibi for him, is that not the end of the case if the evidence is accepted by the court and by the Commission and by the judges?
Of course it is.
It is the end, so why cannot the accused get the opportunity of ending the case there and then? I have been in courts as well as the Minister. He should know as a practitioner, that very often cases can finish at the preliminary stage. As he knows well, witnesses can give evidence to contradict.
If he is a witness for the defence he cannot give evidence at the preliminary stage.
There is nothing to stop him. The Minister knows well that under the Criminal Procedure Act, 1967, the defence can call witnesses at any time and have their depositions taken in the District Court. Is that not so?
Under the Criminal Procedure Act, yes.
If that is so, why not extend that concession to this Bill? I cannot see why it should not be allowed.
Deputy Brosnan has presented a scenario of an accused person.
It is not a scenario at all.
Deputy Brosnan has posed a situation of an accused person who cannot have his own witnesses coming in and giving evidence for him because they are afraid to give evidence in the North. The accused person he is speaking about is being charged in our courts in the Republic with an extra-territorial offence. It is in those courts that the witnesses for the accused will give evidence and that the witnesses for the prosecution will give evidence. Therefore, there is no need whatever for any witness on behalf of the defence, to travel North to give evidence. His evidence will be taken in the courts where the trial will take place, namely, the courts of this jurisdiction. If witnesses from the North want to come South to give evidence, they may do so. The only reason we are providing for the taking of evidence on commission in Northern Ireland is that some witnesses may be too apprehensive to come South to give evidence as regards the nature of the crime; but what Deputy Brosnan is afraid of just does not arise. There is no question of witnesses not being able to go North to give evidence, because they will be available to give evidence here. The court is being held in the South, and the question of going North does not arise.
Again I am asking the Minister to consider the preliminary stages where evidence is being taken in the North on commission, and where prima facie evidence of identification, of the crime and so on is given by prosecution witnesses. If the defence have witnesses they should be allowed to bring that evidence at that stage in the North. What objections has the Minister to that? They may be apprehensive about going north for various reasons. They may be involved in other matters up there.
On the mechanics of this matter there are a number of questions I should like to ask the Minister for clarification. Subsection (1) says:
For the purposes of the trial by a special court established under Article 38.3.1º of the Constitution of an offence under section 2 or 3 or of any appeal in relation to the trial, the court of trial shall, at the request of the prosecution or the accused unless it is satisfied that it is not in the interests of justice to do so, and may of its own motion, and any appellate court may at such a request or of its own motion, by order provide for the issue of a letter of request to the Lord Chief Justice of Northern Ireland for the taking, in the presence of the members of the court making the order, of evidence in Northern Ireland by a judge of the High Court of Justice in Northern Ireland from a witness specified in the order.
In the case of a defence request to the court, and perhaps also in the case of a person requesting another court, it is qualified by the words at the end of line 4:
...unless it is satisfied that it is not in the interests of justice to do so...
What circumstances is the Minister trying to cover there? What eventuality does he foresee whereby it would not be in the interests of justice that the request of the defence and, presumably, of the prosecution be complied with? What is the purpose of that qualification? Perhaps the Minister would indicate whether he would prefer to answer each of my questions as I ask them or to answer all together.
Perhaps the Deputy would let us have them all together.
The second question arises generally from the provisions of this section. Can the Minister tell us what machinery is to be made available to ensure that a witness, whether requested by letter or ordered by a court here to give evidence, gives that evidence to the proper body in the Six Counties?
It is stated in subsection (1) of section 11 that the taking of evidence on commission will be in the presence of members of the court making the order. That can be coupled with subsection (3) (a) where thereafter a statement of evidence will be regarded as admissible only if, according to my understanding, all the evidence has been taken in the presence of all the members of the court. Is this a proper interpretation of the provision? Must all members of the court which made the letter of request be present for the taking of all the evidence in order that such evidence may be admissible as evidence when it comes back to their court? I should like to know, too, whether in this or any other section there is provision whereby a witness giving evidence on commission in the Six Counties, on foot of a letter of request from our court, will be immune from being taken into custody or proceeded against in any way by the authorities in the Six Counties for other offences unconnected with, or connected with, but particularly unconnected with, the case in question? Deputy Brosnan may have had this in mind when he was speaking. Is the Minister satisfied that there is such a safeguard and, if so, is he satisfied that it will be adhered to in a jurisdiction over which we have no control?
The other question I put to the Minister relates to subsection (4) (a) where it is provided that an accused will be brought to a convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland. What is meant by a convenient point? Is it the physical marking of the Border but, if not, what right will the police of the Six Counties have to cross the Border to receive the accused from the custody of the Garda Síochána or, alternatively, what right will the Garda Síochána have to cross the Border while still retaining the accused in custody before handing him over to the police of the Six Counties?
Also, what is the purpose of providing in that same section for a person being taken into custody not more than 24 hours before the time of delivery to the other forces? One might ask what is the purpose of this time limit in regard to somebody who is on bail and who, contrary to that bail, is being taken into custody. Why not provide for an arrangement whereby the accused, in the most unlikely event of his wishing to go into the custody of the Six-County authorities, would not require to have his bail suspended to be taken into the custody of the Garda Síochána for an hour, never mind 24 hours? For whose convenience and for what purpose is this 24-hour provision being made? These are questions I should like the Minister to answer.
The Deputy's first question relates to the issuing of the letter of request—that a court must issue it unless it is satisfied that it is not in the interests of justice to do so. This is to give the court power to refuse in any case where it considers that the application is, for example, frivolous or is purely a delaying tactic or that it is not a bona fide request to provide for the taking of evidence material to the case. The court would have to have that reserve power. It would be a matter for our judges to decide the merits of an application. If they considered an application not to be frivolous or not to be merely a delaying tactic they would have to grant it but the provision is a safeguard so that the courts can ensure the power will not be abused.
Can the Minister say whether this provision is intended to be solely and simply a safeguard against frivolous or delaying tactics? Surely the court at that stage is unlikely to be in possession of the facts that will enable it to reach such a decision. We are talking here of the preliminary stages of a case.
At the start of a case it would be most unlikely that the court would be in a position to make a decision as to whether an application was frivolous or was being used as a delaying tactic. Consequently, the court would not be entitled to refuse the application, but I can envisage a situation in which a court which had been caught once would not be caught a second time.
As a case went on and the court became seised of all the ramifications of it, the court might be able to identify an application made later in the case as one coming within the category of frivolity or delaying tactics. We cannot anticipate here at what stage that would become apparent to the court. We must rely on the good sense of the court to recognise it when it happens. I have no doubt that should there be any doubt in the court's mind about it the benefit would be given to the person making the application and he would get his letter of request. The section says "unless the court is satisfied that it is not in the interests of justice to do so"—and it would not satisfy itself for light reasons; there would have to be strong and compelling reasons before a court would refuse to grant the letter—the request would be granted. I could not envisage that situation arising immediately. The court would have to have some evidence or information in order to make up its mind and become satisfied.
If the Minister envisages the situation which that case covers or qualifies why not state that it would be for frivolous reasons or for the obvious reason of merely delaying tactics? Why should those two not be put in rather than saying that the court is satisfied in a global sort of way that it would be in the interests or not in the interests of justice to do so?
I think the better phrase is "in the interests of justice" because there might be a hypothetical situation based on some reason other than frivolity or a desire to delay. I cannot think what it might be now, but some other situation could present itself which might not be covered by either of those two but which, in the interests of justice, the court would have to take into account. I think the broad phrase "in the interests of justice" is best, bearing in mind that the court must do justice as between the State and the accused. In the interests of justice in that context the court makes up its mind rather than on a direction from us here that only in two instances, frivolity or delay, could it make such a decision. There may be other situations and we must leave it to the court to decide at the time.
The Deputy next asked what power would there be to compel witnesses to attend in the North. Courts in the North will have power to compel attendance of a witness living within their jurisdiction. A subpoena will be issued which will compel attendance of the person to whom it is directed. Failure to comply with it would attract the penalty normally attracted by failing to meet a subpoena. Likewise, if the letter of request is sent to this jurisdiction to hold the commission here the commissioners would issue a subpoena against the witness here. The courts within the jurisdiction where the commission is taking place will have their ordinary, inherent powers and powers under the particular Act to compel the attendance of witnesses. The power in Northern Ireland is contained in the British Bill, in Schedule IV, paragraph 2, subparagraph (3).
The Minister did not give us the British Bill.
I left copies in the Library. I had not sufficient to circulate it to everybody.
While it is feasible under the laws of the Six Counties to bring witnesses before the commission, what assurance has the Minister that in all cases without prejudice to any accused that power will be invoked by the authorities in the Six Counties particularly if it is a witness who is being called at the request of the defence in relation to a charge which the authorities in the Six Counties may have raised in the first place and on which we would have acted?
We are dealing now with the situation where the commission is being held in Northern Ireland. There are two categories of witnesses to be called before that commission, witnesses for the prosecution or witnesses for the defence. Witnesses for the prosecution will invariably be people resident there who do not want to come south. Presumably, if they are subpoenaed they will attend. They may be members of the security forces or civilians but presumably they will be anxious to see justice done and if there is evidence to assist towards that they will be anxious to give it. If they do not answer their subpoena they are subject to the sanctions of the law and to grave penalties. If they persist in refusing to attend or remain mute of malice or persist in failing to give evidence then it is likely that the prosecution will fail if their evidence is critical, or the prosecution will be at risk. There will be a certain gap in the prosecution case.
Likewise, in the case of a witness for the defence. I think it is unreal to expect, bearing in mind the circumstances in which a trial might be taking place, that such a person would not be prepared to come south. I imagine such a witness would be prepared to come here, but in the unlikely event of a defence witness not wanting to come south that person would be liable to be summoned to give evidence before the commission or, again, he would be subject to the same penalties for failure to do so. It would be for the court here then to decide whether lack of his evidence prevented the court from coming to a decision on the merits of the case. The court would have to take into account how valuable that evidence would be. Counsel for the defendant would indicate what the witness was going to say; this would be a normal procedure. If the like were to happen in a domestic trial here in the ordinary way and a defendent said: "I wanted John Brown to give evidence for me but he skipped to England. The case cannot go on without him; his evidence is vital to me," it is then for the court to decide whether John Brown's evidence is, in fact, vital or whether it is a ploy by a defendant to try to make the absence of a witness a reason for his acquittal. The same criterion would have to apply in this case, that if a witness for the defence failed to answer his subpoena, it would be a matter for the court to decide whether it was a ploy to keep him out of the way and not have his evidence and then say that his evidence was essential to disproving the prosecution's case or whether it was a scheme to confuse the issue. All the law can do is provide for the subpoena process and for the witnesses to be prosecuted if they fail to give evidence. If prosecution witnesses fail to give evidence that would probably —almost certainly—be fatal to the prosecution case. If defence witnesses fail to give evidence, it may or may not be vital depending on the view the court takes of its importance and all the circumstances in which the person is missing and refuses to attend.
There is power to compel witnesses to attend to give evidence before the commission whether the commission is in the North or in the South. There is power to subpoena them and punish them if they fail to answer the subpoena. If they still persist in their refusal the consequences I have indicated would follow in relation to that particular trial.
There could be two categories of defence witnesses: one would be the reluctant witness, antagonistic to the accused but who, if he were to come before the court, would blow apart the prosecution case made by his authorities in the first place. What assurance is there that such a person will be sought by the authorities in the Six Counties and brought before a court if necessary? The second category is the willing witness for the defence who may not wish to show his face or be associated with the accused in giving evidence for his defence because of his fear that as a result he may find other charges laid against him? In other words, he is not available to the authorities in the Six Counties who may be seeking him. That brings us to the immunity of witnesses. Can a willing witness for the defence, without a subpoena from the authorities in the Six Counties, offer himself to the commission to give evidence? What is the position of such a willing witness for the defence if he should fear that by coming before the commission he will be arrested, apprehended, or charged?
We are dealing with the witness who is resident in Northern Ireland. His evidence would come to be taken on commission only if he were unwilling to come to the South to give evidence. If he is apprehended, for the reasons the Deputy has suggested, that by showing himself as a defence witness he is identifying himself with a certain cause or showing himself to have knowledge of a certain incident, I imagine that if he wanted to give his evidence he would be anxious to give it in the South. His first option would be to give his evidence in the South because that is where the trial would be taking place. There would be no question of his having to give his evidence on commission. The evidence will normally be taken in the South unless a witness wants it otherwise. It is inconceivable that that type of witness would want it otherwise than in the South.
There is power given in the Bill to the court to prohibit publication of the names and addresses of witnesses. That power is there to ensure the protection of witnesses. Therefore the type of willing witness the Deputy refers to has two safeguards. Firstly, he does not have to give his evidence in the North and consequently does not have to show himself in the North. He gives his evidence in the South. Secondly, he can ask for prohibition of publication of his name and address.
The other type of witness the Deputy referred to is a witness resident in the North who would be reluctant to give evidence. I presume what the Deputy has in mind is that he would be a witness of Loyalist loyalties who could exonerate a Republican defendant and that he is not anxious to come of his own volition to give evidence. The Deputy is worried about how bona fide would be the efforts to get him and subpoena him. I am satisfied that they would have to be bona fide because his availability and whereabouts would be known to the defence. They would be in a position to make this exact information available to the court. The commissioner would then be in a position to direct a subpoena very specifically and would be in a position to ask very direct and awkward questions if the subpoena was not served, why it was not and, if it was what efforts were made to enforce it. I am satisfied there will be enough knowledge on the part of the defendent, who knew of the availability of this man and wanted him, to ensure that he would be available. It would be an odd situation that the defendent or his counsel would summon a witness who was reluctant to come and about whose evidence they would not be exactly sure. Assuming we had that situation and that for good reasons of their own they wanted him, they would be able to direct the attention of the summoning authority to his whereabouts, and if there was anything suspicious about his non-appearance they would be able to cause a fuss about it.
This matter would be critical from the defence point of view and one which would be opened and pleaded before the trial judges. They would be able to take that situation into account. The question of immunity does not really arise. If a witness is living in Northern Ireland and he chooses to give evidence before the commission in Northern Ireland he has opted to give evidence there and is obviously moving around freely and without constraint. Therefore he is not worried about his immunity.
The other situation is a witness living in the South who might be apprehensive about going to the North. As I already explained to Deputy Brosnan, he does not have to go North because the trial is taking place here and hopefully it will be the exception where evidence is taken on commission. Hopefully the main evidence will be taken before the court down here. Therefore, if a witness is living down here and for his own reasons, good or bad, he cannot go North or does not want to go North, he does not have to do so. He can give his evidence down here, so the question of immunity does not arise. It is his right as a citizen down here.
The Deputy asked if all members of the court have to be present. They have.
There are many further permutations on what may or may not happen so far as the mechanics of the witness business are concerned.
There are not many. The Deputy has teased out most of them.
While the Minister has indicated various combinations of circumstances I do not think he has fully outlined all the various combinations of circumstances which may arise. In regard to a willing defence witness the Minister says that, if he is resident in the Six Counties and does not wish for his own reasons to appear before the commission there, he has the alternative of coming South. He may have the same reasons for not coming before the court in the South as he would have for being reluctant to go before the commission in the North. Where does the accused person stand in relation to this witness who is apprehensive of coming before our courts or the commission in the North where the same sort of reasons would apply on both sides of the Border?
Assuming there is such a person, he is a resident of the other jurisdiction and is unwilling to be subpoenaed——
He could be resident on the other side of the Border. He may be wanted by the authorities on both sides of the Border. How can his evidence be got?
I am afraid that, if he is not willing to come to court to give evidence on behalf of the defendant, who presumably would be his friend, his acquaintance or associate, then the defendant will have to suffer on without his evidence. The law cannot go any further than to provide the mechanism for the summoning of a witness and for his punishment if he disobeys that summons and, in that event, allowing the court to take into account his absence and the effect of the absence of his evidence on the case for the defence. At that stage it would be a matter for the court to decide if he was bona fide absent and, as a result of his being bona fide absent, if the defendant was seriously prejudiced in his defence. In that situation the court would probably acquit. On the other hand, the court would be at liberty to say that he is absent through malice, that his absence makes no difference and that they are not satisfied that any evidence he could give would be relevant to the case. The court would have to make an adjudication in his absence. At the moment it happens in criminal trials that a witness for the defence cannot be found, refuses to turn up or absconds and the court has to deal with the case in his absence.
It is all very well to say that it is just too bad for the accused if circumstances obtain which prohibit the attendance of a witness who may be vital to his case. This person may be wanted by both the police here and in the Six Counties, and no immunity provided for him. It is very easy to say that that is just too bad for the accused person.