Dáil Éireann debate -
Wednesday, 11 Feb 1976

Vol. 287 No. 10

Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage (Resumed).

Question again proposed: "That section 11 stand part of the Bill."

Mr. Haughey:

Before the interval we were discussing section 11. I want to emphasise that this section is pivotal to the entire piece of legislation. Section 11 and the corresponding section in the United Kingdom Criminal Jurisdiction Act, 1975, will be essential to the operation of the whole system this legislation is going to create. For that reason alone, because it is fundamental to the whole machinery, it is important that we give this section meticulous, detailed and careful examination.

Perhaps it is in many respects the most important section in the entire legislation. The first thing we want to note about it is that in so far as persons who would be prosecuted in this jurisdiction are concerned, section 11 and our legislation is of minor importance. What is important are the corresponding provisions in the British legislation. They are enshrined in Schedule IV of the United Kingdom Criminal Jurisdiction Act, 1975. It is important for us to keep in mind that in so far as a person is accused in the Republic it is the British Act and the provisions of that Act that will govern the situation with regard to the taking of evidence on commission in Northern Ireland. It is clear that section 11 merely sets out the background under which this provision will come into operation but the manner in which it will operate is set out in the British Act, not in our legislation. If we want to look at the position of an accused going to Northern Ireland and being present at the taking of evidence on commission, it is the British Act we must study carefully in that connection.

One of the things that must be noted at the outset about section 11 is that this machinery which sections 11 and 12 deal with will only operate in so far as the Special Criminal Court is involved. If the Special Criminal Court goes out of existence then these powers cease to exist. To that extent it operates to make the Government or the Minister anxious to keep the Special Criminal Court in existence. We must take note of that fact.

The phrase has come into being that these provisions institutionalise the Special Criminal Court. Whatever about the validity of that phrase, we must recognise clearly that the Executive here, in so far as they want this sort of legislation at their disposal, will have a vested interest in keeping that court in existence because the machinery instituted under sections 11 and 12, and the corresponding sections of the British Act, will operate only in so far as the Special Criminal Court is there to operate them.

The Minister has a very difficult task in attempting to defend this piece of legislation and to make it appear acceptable to us in the House and to the general public. I think he would admit that it is a difficult task, that it is not a very palatable or attractive piece of legislation, and very often he has to rely on very tenuous arguments and has to strain logic and words a great deal from time to time to justify the different provisions. In that sort of situation he from time to time succumbs to the temptation to make a variety of allegations against us, the Opposition, rather than attempting to meet and to defeat the criticisms which we are putting forward in all sincerity and honesty.

I do not think it is enough for him to criticise or to impugn our motives in our opposition to particular sections of the Bill. This morning Deputy O'Malley referred to the fact that the Minister on his side has been using certain emotive phrases in regard to us on this side. We should, as a Legislature debating a very important measure, be above that sort of thing. We must discuss these proposals on their merits, their likely implications and effects. I confess I find it difficult not to be emotional about this type of legislation. I have very close ties, kinship and ties of other sorts all over Northern Ireland and many of us on this side and on the Government side find ourselves in the same kind of position. I hope we will try not to be emotional, that we will try to discuss on its merits the machinery the Minister wishes to construct in this Bill.

Some mornings ago I found myself listening to the radio and hearing the man who was responsible for recruiting mercenaries for Angola state clearly and positively on BBC Radio, in response to an interviewer's question, that it was recognised today that British soldiers who had served in the North were the most desirable and the best type of mercenary for this sort of work. That man made that positive and definite statement. It is difficult for us not to be emotional when we hear that sort of thing, when we realise that is the sort of situation that exists in the six North-Eastern counties of this land of ours.

I do not think it is very constructive of the Minister to open up those areas and I think the purpose of this legislation would be much better served if we all endeavoured to be as objective and impartial as we can about it.

I am concerned about the Bill as a whole but especially in regard to section 11—that the position of innocent accused persons be protected. It is fairly common ground among us all here that the provisions of this legislation in the main will operate or come into operation in regard to persons from a particular section of the community in Northern Ireland who flee from there into what they regard as the safety of the Republic of Ireland. I do not think it is likely now or in the future that members of Loyalist paramilitary organisations or people of such categories will to any extent seek asylum in the Republic, and therefore it is most unlikely that the provisions of this legislation will be used in their case.

Therefore, in these provisions we are dealing with persons from, for want of a better word, the Nationalist community who for one reason or another will feel compelled to come here to seek asylum and security. I think we will make an historic mistake if we assume that all the people who will do that will be terrorists, men of violence, people who will be guilty of terrorism and violence. On that basis, the Minister must open his mind to the fact that it is quite likely a greater or lesser number who will get caught up in the mechanisms of this legislation will be perfectly innocent people who will have fled Northern Ireland for perfectly valid legitimate reasons, persons who will have been driven out because of persecution, intimidation or brutality. We must accept that it is likely to happen and we must go on from there and say that if such persons get caught up in that way we must do everything in our power to ensure they will get a fair trial, that the dice will not be loaded against them.

There will be persons on the run, persons who will have had to leave their homes and flee into strange circumstances and conditions, and we have a very special onus on us, special responsibility, to make sure that in so far as the provisions of this legislation are applied to those people they will be scrupulously honest and fair. That would be only in keeping with the best of our traditions in this part of the country.

That is all we are seeking in our criticisms of section 11—that is our concern. We are not interested in protecting any criminals from the consequences of their crimes, but we want to see that just because a person is accused of something under this legislation it does not mean he will be presumed to be guilty until he has been proved to be innocent. We want this legislation to be so framed that, if an innocent person is caught up in its operation, it is almost certain that his innocence will be established and he will be acquitted.

Bearing all these considerations in mind and resisting any natural impulse to be emotional about this situation, I would like to look as calmly and objectively as I can at the provisions of section 11, or more particularly at the provisions of Schedule 4 of the British Act, because that is most important in this respect. I made this point earlier and I will come back to it again. This Bill derives from the report of the Law Enforcement Commission. It is important for us to look at exactly what that commission said in their report on this matter. The first thing I quote from the report is the following, dealing with witnesses. The commission said:

We have given long and anxious thought to the problem of witnesses.

Those are serious and weighty words —the commission gave long and anxious thought to the problem. That immediately establishes for us the fact that this is not a simple, straightforward matter. It is complex and difficult. The commission clearly recognised that fact. They went on then to examine different ways of dealing with the problem as they saw it, and they came down in favour of the process which is now enshrined in both pieces of legislation. However, we would be very wrong to think that the commission were completely happy about these proposals. I hope the Minister will not attempt to invoke, as he has done in other instances, the weight and distinction and the legal standing of this commission to endorse his proposals, because he cannot do that. What the commission said was:

We are therefore of the opinion that a more satisfactory and just method of taking evidence on commission is the one outlined in paragraph 22 (b). In the absence of a jury this should not create any very great difficulty.

Note that. The most they can say is that it should not—they do not say it will not—create any great difficulty, and they also used the words "any very great difficulty". Therefore the commission recognise that even the solution for which they opt is not necessarily one which is perfect, straightforward, and simple, and which does not involve any inherent dangers.

The machinery of this is going to be very cumbersome. It is something new, to which neither our judges nor our lawyers are accustomed, something of which they have no experience whatever. Indeed, none of us can visualise how exactly it is going to operate; but we can be certain it will be an awkward, cumbersome mechanism, and it is going to be time-consuming. I hope in that situation there will not be any temptation to cut administrative or legal corners. Cumbersome and time-consuming, and indeed wearisome as it is going to be, nevertheless the Minister and Executive must take a firm decision that if they are going to operate these provisions they will operate them in a mature, careful and considered manner and they are not going to succumb to any temptation to short-circuit procedures at, of course, the expense of the accused.

There are a number of aspects of the Bill about which I would be glad to hear from the Minister. First of all, the machinery it is proposed to establish deals, it seems, exclusively with the taking of evidence, that taking of evidence on commission, and the bringing of that evidence down here with a view to its production at the trial in the Irish courts. What is the position about documents and exhibits? Surely in criminal proceedings documents of one sort or another, exhibits of one sort or another, can be just as important as the evidence given by an individual. As far as I can see, neither our Bill nor the British Act make any reference whatsoever to the procuring or the presentation of documents or exhibits at the trial. It seems that these procedures are restricted exclusively to evidence by persons or individuals.

I also raise the question of what happens when an accused person decides not to go North to be present at the taking of the evidence on commission. That is a very likely possibility in many cases. It is not difficult to visualise an accused person not wishing to avail of the option which this legislation gives him of going North to hear the evidence, to be present at the taking of the evidence on commission. If the accused decides not to go, as far as one can see from the provisions, the taking of evidence on commission will go ahead notwithstanding. Will that fact be reported to the courts here? Will it be mandatory on anybody to bring that fact to the attention of the courts here? Admittedly the judges will know that the accused was not there—or will they? One would hope they will know.

Minister for Justice (Mr. Cooney):

They will be at the commission and see that he is not present.

Mr. Haughey:

Will they know whether the accused opted to go, or whether he was offered the option?

Mr. Cooney:

Yes, because they will have offered him the option at the trial court in this jurisdiction.

Mr. Haughey:

If that is so, will that fact be taken into account in the assessment of the case, and will it be a relevant fact? Will some implication be read into the fact that the accused chose not to go North? The Bill is completely silent on that whole area. It merely says that the court will explain to the accused his rights about going North, and then leaves it at that.

The report of the commission, coming down in favour of the provisions which have been adopted, mentioned in favour of this particular procedure that the court of trial would retain effective control of its own proceedings to this extent. It would decide whether evidence should be taken on commission and, when the transcript of evidence taken on commission was available, it would decide whether such evidence should be admitted. There is a very important point here. The Law Enforcement Commission saw that as a favourable factor in regard to this procedure, but I find that the Bill itself in dealing with that particular aspect is again very vague. It reads:

A statement of evidence of a witness taking in compliance with a letter of request under this section, and certified by the judge of the High Court of Justice in Northern Ireland who took it to be a true and accurate statement of the evidence so taken, shall, if all the members of the Court were present throughout the taking of the evidence, be admissible at the trial or appeal concerned as evidence of any facts stated therein of which evidence would be admissible at the trial or appeal.

First of all, as Deputy O'Malley pointed out this morning, the judges of our courts who would be involved in the trial must be present at the taking of evidence of the commission. I suppose we would welcome that, but undoubtedly it will make the proceedings cumbersome, as I have said —the fact that we will have to get three judges up there present at the taking of evidence of the commission and so on. Apart from that there are no other stipulations in section 11 as to the admissibility of this evidence which has been taken on commission. Could it be rejected by the courts here even though the three judges, having gone up and having listened to the evidence being given on commission, were totally dissatisfied about the whole atmosphere of the thing and if they had doubts about the whole circumstances?

When the evidence as taken and certified by the Northern Ireland High Court judge would be sent down here, would it be open to the court here to reject it, or would it have to be taken into account? I do not think it is clear from section 11 that it could be thrown out by the court after their having been present at the taking of the evidence, even though they were completely dissatisfied about the whole situation. This is another thing in section 11 which is vague.

Another unsatisfactory aspect, of course, is that the judges of our courts who travel North to be present at these proceedings would not be empowered to ask questions themselves directly. They can only suggest to the presiding Northern Ireland High Court judge questions which he should ask, and that must leave a most unsatisfactory procedure from the point of view of these judges. We all know it is very difficult to conduct any sort of interview or examination at second hand. If you are only interviewing somebody for a job it is essential that you be able to ask the questions directly and that you can follow up one question with a natural follow-up. I cannot see how our judges in these circumstances can possibly get satisfaction if they are confined to questioning the accused or questioning the witness through the Northern Ireland presiding judge. It could be a very stilted, artificial performance, particularly as we know that in many cases these Northern prosecution witnesses are going to be very dodgy characters indeed. It is wrong for the Minister to try and suggest to us that this is going to be a very satisfactory procedure and is going to be almost the same as a witness coming directly before the trial court here and being cross examined by counsel and judges.

In regard to our courts, again we keep coming back to this unhappy factor in this whole legislation in so far as somebody is going from our jurisdiction. It is on the UK legislation that we have to rely for the protection of their position and the British Bill states:

4. (1) The accused shall have——

(a) a right to attend the examination of the witness, and

(b) a right to be represented by counsel or solicitor in the proceedings (whether or not the accused is present), and

(c) a right, if not represented by counsel or solicitor, to question the witness, and to make submissions or representations to the Commissioner.

It seems that the accused is himself given certain powers there. Do those powers apply to his counsel? It is certainly not clear from reading Schedule 4 whether the counsel or the solicitor representing the accused is able to put questions to the witness.

Mr. Cooney:

He has the right to be represented by counsel and it implies that.

Mr. Haughey:

Implies it. That is my point. It may be implied, but it is not made clear, particularly as it is made clear that the accused himself can put questions and make submissions. The fact that it is spelt out in his case would throw a doubt on the fact that it is also available to his counsel or solicitor to make these representations. If the accused can make submissions, representations and ask questions, can the visiting judges do the same? Can they make submissions or representations, or is their function solely confined to asking the Northern Ireland High Court Judge to put certain questions? These are all matters which are of fundamental importance and they are not spelt out clearly in either our legislation or the British legislation.

When the taking of the evidence on commission has concluded a statement of that evidence will be sent to the court here and will be produced here as evidence. Both pieces of legislation are very vague about this report. Will it be confined completely to the evidence given by the witness? Will it be a simple statement of that evidence and nothing more? Will there be any additional information? Will the Northern Ireland judge be able to say that in his opinion the witness was a scoundrel and that the Irish court should not give the slightest credence to anything he says? Will there be any additional information given in the report? Will the background be given? Will it be said that Mr. X, who was the witness giving the evidence in the court, was in fact a convicted criminal, was a former member of the UVF or any of these things?

Mr. Cooney:

It will not say that.

Mr. Haughey:

All that will come down will be a simple statement of the evidence given by Mr. X and nothing else.

Mr. Cooney:

If he is cross-examined about those things and he gives evidence as to them they will be part of his evidence.

Mr. Haughey:

We all know the facility for cross-examination will be restricted. If the accused does not go north, if he is not represented by counsel, I can see that the evidence taken on commission will very often be only a half or a quarter of the story.

Mr. Cooney:

If he does not go north and is not represented by a solicitor or counsel he cannot complain.

Mr. Haughey:

Of course, he can complain. He might not be able to go north. In trying to defend these indefensible provisions the Minister is forcing himself into a untenable situation. What the Minister has just said does not stand up. It is unworthy of him. He has cause for complaint and that is not swept away because he had a very good reason for not going north. These provisions spelled out in our legislation and the British legislation are very vague and imprecise on the very important fundamental matters and this is one of them. The statement which will come down here to our courts will be very bare and because it is so will give a very misleading impression of the situation. Do we not all know that when a witness comes before a court, particularly in a criminal prosecution, that it is the appearance of the witness, his behaviour, his conduct, the manner in which he stands up to cross-examination, his background, his relationship to the accused, are of vital importance in the conduct of a criminal crime? All we will get here is one simple statement of the evidence he gave before the commission and very often, I suggest, without cross-examination of any sort.

I see that grave difficulties will arise in the evolution of these procedures. It is all very well to think in simple terms of a letter going up to the Chief Justice in Northern Ireland who appoints a High Court judge. He sits, the evidence is given and that is the end of the matter. The High Court judge will have to make arrangements to facilitate the three judges from the Irish court, then, if the accused decides to travel and be represented by a solicitor and counsel the whole thing will become a mini-trial. It could be a long, drawn-out, protracted affair. The situation could arise where we would have more or less two trials. There would be a preliminary or a mini-trial taking place in Northern Ireland under the commission procedures and then a second trial down here.

Will the proceedings in Northern Ireland be public? As far as I can see from both pieces of legislation they will be in public. They will be fully reported on and everything done and said will be public knowledge. Will the Minister confirm if that is so? I cannot see anywhere in the legislation any provision whereby they can be held in camera. There may be somewhere in the general body of the law some provision which would enable this Northern Ireland High Court judge taking evidence on commission to have the whole affair conducted in camera. It would be very desirable that he would have such power because I can see very serious results emanating from the situation where this evidence in the North of Ireland would be taken in public.

Mr. Cooney:

Schedule 4, paragraph 2 (2).

Mr. Haughey:

It states:

The Commissioner shall arrange his sittings so as to facilitate the attendance of any such judge, and, subject to paragraph 2 (4) above, shall put to the witness any questions suggested to him under this paragraph.

Mr. Cooney:

It is Schedule 4, paragraph 2 (2) which states:

The judge so designated (hereinafter referred to as "the Commissioner") shall sit in private except at such times and on such occasions as he otherwise directs.

Mr. Haughey:

Does this mean that the whole proceedings shall be in private unless otherwise directed? It is significant that we have to go to the British Act to get that piece of information.

Mr. Cooney:

There is a parallel provision in section 12 of our Bill.

Mr. Haughey:

We have not come to that. It raised the important question as to whether or not the presiding Northern Ireland judge will be alerted to the dangers which could arise for witnesses if the hearings were in public. What about the question of a witness in these proceedings claiming that he does not wish to give evidence on the grounds of public interest? The British Act goes on to stipulate quite clearly that in the case of evidence being taken on commission in Northern Ireland the public interest shall be determined in accordance with the law of Northern Ireland. One can see the reason for that but one can also see that that provision could be used to the detriment of a person accused in this jurisdiction.

At least in our courts when the public interest is pleaded the court can look at all the circumstances and can decide, in the interest of the accused and in the interest of the overall situation, whether or not the claim for not giving evidence on the ground of the public interest, should be sustained or not. I come back to the point that the accused person may well be, and almost certainly will be in some circumstances, an innocent accused person; he could be seriously affected by this provision which says, in effect, that any particular witness called upon up there to give evidence on commission might refuse to do so on the grounds of the public interest, and that interest would be the Northern Ireland public interest and, perhaps, something which would not at all be fair or in the interest of the accused person.

As I said at the outset, this is a crucial section. It is a section that is of very real significance from the point of view of the accused. I think the way in which this section operates will largely decide the future of the whole legislation. With my colleagues on this side of the House, I cannot see it working effectively or satisfactorily. I would not be prepared to accept either section 11 or 12 or Schedule 4 of the British legislation unless the whole procedure was spelt out much more clearly and comprehensively and all the different circumstances and situations which might arise fully enumerated. Leaving aside for the moment the whole question of the safety of the person travelling to the North and the guarantees which the Minister purports to give in that connection—my colleagues have dealt with that very effectively and trenchantly—the sections themselves, as they are framed, are far too vague and imprecise and leave far too many fundamental matters up in the air.

In this connection, I have a very special regard for the situation of an accused who is innocent and who, by virtue of the unfortunate situation in which he finds himself, would come within the provisions of this Bill and would be caught up in its machinations. I am not satisfied that these sections do anything like enough to protect the interests of the accused person. Again, I want to plead with the Minister not to fall into the trap of presuming that all persons who are going to be brought within the provisions of this Bill are of necessity going to be guilty of terrorism.

Mr. Cooney:

Once a person is charged under this measure one must assume, and does assume that he is innocent until the evidence is adduced to prove him guilty. No innocent person need have any more fear under this Bill than he has in regard to any criminal legislation. I am satisfied that the mechanics provided in this Bill are adequate to ensure that the rights and liberties of an accused are honoured and that his position is in no way prejudiced. I would, therefore, have no apprehension about the position of an innocent or, indeed, a guilty person under this Bill. Their rights are exactly the same and their rights, in my opinion in the submission I have been making now, are fully vindicated by the procedures laid down in this Bill and in the reciprocating measure.

I agree with Deputy Haughey that this is a most important section and goes to the kernel of the operation of this Bill and the enforcement of the extra-territorial jurisdiction because, quite obviously, evidence will have to be produced from within another jurisdiction if the act complained of took place within that jurisdiction. The Law Enforcement Commission recognised that unless some procedure was devised to enable that evidence to be produced before the court it would not be possible to operate the extra-territorial method.

The Law Enforcement Commission, a commission of eminent jurists, suggested that the setting up of a commission procedure was the answer, because they recognised that witnesses might not want to travel south; they would be apprehensive for their own reasons, possibly apprehensive for their safety. I do not agree that they have reason to be apprehensive, but my feeling or my knowledge that they will be quite safe here will not remove their apprehension. This is a fact of life and we would be closing our eyes to it if we did not recognise the feelings of such a witness, irrespective of the guarantees we gave them here as to their safety should they come from the North of Ireland to a court in the South to give evidence.

There is also the point that, even assuming that their apprehensions were completely removed to their satisfaction, there would be no power to compel their attendance at a court here, because the subpoena that would be issued by a court here would not run in the other jurisdiction. Possibly reciprocating legislation to cure that could be provided for, but, this would not be a satisfactory solution. I think the less unsatisfactory of two unsatisfactory solutions is the one proposed by the commission.

The commission recognised that it is a novel procedure within our criminal code. It is not a novel procedure on the Continent of Europe, because there is a convention providing for the taking of evidence on commission in criminal cases; nor is it a novel procedure in our civil code. It is being extended in this instance to our criminal code. The advantages of it are spelt out by the Law Enforcement Commission in pages 18, 19 and 20 of its report, and Deputy Haughey quoted some of them. These are advantages which are in ease of a defendant and go to ensure that there is a fair procedure and a fair trial.

First of all, it provides for the presence of the accused. Such presence is not provided for in the European convention to which I have referred. The presence of the accused with immunities is being provided for here, if he does not want to go in person with solicitor and counsel. Deputy Haughey raised the question of the situation of an accused who will not go himself and is not defended by a solicitor and counsel: is he not then seriously prejudiced, in that evidence on commission will be taken in his absence? I do not know that he would be entitled to plead prejudice when he himself is the author of the situation which he alleges is causing him prejudice. Such a plea would set the whole machinery at naught. If the accused could say: "I will not go North; neither will I send counsel nor a solicitor. I will, therefore, plead to the court that I would not get a fair trial", that would be giving him power to vitiate the whole proceedings. If he is the author of the situation which he claims is to his prejudice or detriment, I do not think he can complain about that prejudice or detriment.

That is not the end of the story. Going north will be the three trial judges from this jurisdiction. Their position is that they will be present and they will hear the witness give evidence. They will hear him being cross-examined by prosecuting counsel.

Traditionally, in the absence of professional representation on behalf of an accused person, trial judges intervene to clear up any point which would normally be cleared up by way of cross-examination, or to open the case more from the evidence adduced by the prosecution, where there is no defending counsel to do this. Of course, the three judges can do this at the commission proceeding. We have to bear in mind that the commission proceeding is not part of the trial. It is connected with the trial, but it is not part of the trial.

Mr. O'Kennedy:

Can the Minister indicate precisely where the provision is in the Bill for the three judges to do just that, even under the disability of having to ask questions through another person? Can he point out to me the exact section in our Bill which guarantees and ensures that the judges can do that?

Mr. Cooney:

We are talking about a situation where the commission is taking place in Northern Ireland. That is the relevant one, from our point of view. The person is leaving this jurisdiction. I think that is what Deputy Haughey had in mind. It is contained in Schedule 4, paragraph 3, under the heading "Attendance of members of court". Subparagraph (1) reads:

Any judge of the court who issued the letter of request shall be entitled to attend the examination of the witness, and shall have a right to suggest to the Commissioners questions to be put to the witness.

Paragraph (2) reads:

The Commissioner shall arrange his sittings so as to facilitate the attendance of any such judge—

There has to be mutual agreement on the day and place and time

—and, subject to paragraph 2 (4) above, shall put to the witness any questions suggested to him under this paragraph.

There is no undue legal language in that drafting. It is good plain English. On my reading of that, the visiting judges are entitled, as of right, to have any questions put to witnesses they want put. They do not put them directly themselves because it is not part of the trial. This is something we will have to bear in mind. It is not part of the trial because they have no jurisdiction within that jurisdiction. The person with jurisdiction is the commissioner. They are there as observers. I suppose that would be the proper way to describe them. They are more than observers because they have a right to intervene, but not directly because they have no jurisdiction outside the jurisdiction of this territory.

In recognition of that it is provided that the questions shall be put by the commissioner, all the questions they deem relevant or they want to put, subject to his right to rule that a matter should be excluded in the public interest. The visiting judges have a full right to put all questions. I have no doubt they will do that in exercise of their role, and in anticipation of having to come back and consider the case in the light of all the evidence. If the accused even deliberately choses—and I use the word deliberately in the context of trying to obstruct the proceedings—not to go and not to send solicitor and counsel, his absence can be compensated for by this procedure. Even if it were not to be compensated for by this procedure, I do not think he could rely on his absence, or on the absence of solicitor and counsel, as an objection to vitiate the proceedings.

The question of the exclusion in the public interest has to be decided by the person to whom the evidence is being given, that is, the commissioner. A similar provision is made when evidence is being taken on commission down here. The presiding judge down here, acting as the commissioner, will be the person to rule on the matters to be excluded. This ruling will be made in the presence of the visiting members of the trial court. It could be that in their own wisdom they might decide: "It has to be excluded on the grounds of public interest." We accept that. The fact that it is being excluded may cause a fatal gap, a fatal defect, a fatal flaw, in the prosecuting case and the case collapses. That is one consequence of an exclusion of evidence in the public interest, or an exclusion under the other headings on which the commissioner may exclude it.

The rights of the accused are protected. He can be there in person with immunity. He can be represented by solicitor and counsel. I do not think Deputy Haughey was serious when he asked whether solicitor and counsel have a right to take part in the proceedings. A right to be represented by counsel and solicitor cannot mean anything else other than that they will have the right to carry out the normal duties of advocates in a judicial tribunal.

Mr. Haughey:

On the Minister's own admission it is not part of the trial. This is a new artificially created procedure. There are no precedents.

Mr. Cooney:

The accused will have a right to be represented by counsel and solicitor in the proceedings. What can that mean unless it means——

Mr. O'Kennedy:

Just to be there to hear.

Mr. Cooney:

To be mute? I do not think Deputy Haughey does himself justice in suggesting that.

Mr. O'Kennedy:

That is what the judges are doing. They can pass notes to the presiding judge saying: "Please ask a question".

Mr. Cooney:

The judges can suggest questions verbally or in writing.

Mr. Haughey:

Is it the Minister's contention that counsel can ask questions and the visiting judges cannot?

Mr. Cooney:

The visiting judges cannot ask questions directly to a witness. They ask them through the commissioner for the reasons I stated. It is not part of their court. The person in charge is the commissioner. They ask questions through him. The point Deputy Haughey was worried about was whether the accused's counsel and solicitor could ask questions, or whether they just had to sit there mute. I am saying to him that there is no doubt whatever but that the right to be represented by counsel or solicitor can only mean—having regard to the ordinary meaning of language and the whole scheme of operation of our courts—the normal right to be represented by counsel or solicitor and that is the right to examine and cross-examine. I have not the slightest doubt about that.

Mr. Haughey:

On a point of information, there are contradictions here. It spells out specifically that the accused can ask questions. It spells out specifically that the judges can ask questions indirectly. It does not say solicitor or counsel can do so. There is an implication in the law that, if you confer powers on one person, and you do not spell them out in the case of another person, he has not got those powers. That is a well-known rule of interpretation. Even taking the Minister's own interpretation of the provision, why do the judges have to ask their questions secondhand? According to the Minister, counsel will be able to ask them directly. What is the raison d'être for that?

Mr. Cooney:

It has to do with the nature of a commission. The judges are there. They have directed the setting up of a commission. The commissioner is there on their behalf to take the evidence. Normally in the taking of evidence on commission, the judge who directed the commission is not present and the commissioner is there on his behalf to take the evidence. In this situation, the commissioner is there on behalf of the court to take the evidence. He is the person in charge of the proceedings. The judges are there only by virtue of the special power to that effect written into this legislation as an extra safeguard in ease of the accused. The normal commission procedure would not make any provision at all for the presence of the trial judges.

Mr. O'Kennedy:

The Minister understands that there is no such thing as the normal commission procedure in our criminal law. If a witness cannot attend court for a criminal prosecution, commission evidence is not taken. He should not try to confuse the issue.

Mr. Cooney:

When I speak of the normal commission procedure obviously I mean in civil cases. This is an analogous procedure in the criminal code. In the normal commission procedure which, in the context of this jurisdiction necessarily is in civil procedure, because there is none in criminal procedure——

Mr. O'Kennedy:

For good reasons.

Mr. Cooney:

In normal commission procedure the commissioner is representing the judge and the judge is not present. In this procedure we are providing for the judges to be present while the commissioner is taking evidence for them. The commissioner is the person with jurisdiction. He gets his jurisdiction by virtue of his standing as a judge of the High Court in that jurisdiction and he is a person who has the jurisdiction and the powers to carry on this commission and take the evidence. The visiting judges do not have any such jurisdiction because they are from another jurisdiction and, as far as that jurisdiction is concerned, they are three laymen, so the proper procedure is (a) recognition of their status as laymen essentially at that point and (b) as there is a commissioner in charge the proper procedure is that they ask their questions through the commissioner. I do not see that this takes from the rights of the accused or inhibits his position or should make the visiting judges shy about asking questions. On the contrary I have every confidence that anything they want to ask they will ask and anything they want to find out they will find out.

Mr. Haughey:

The Minister has deflected. I was asking him to contrast the judges——

Mr. Cooney:

I will come to that. I was dealing with the nature of the commission and what is involved in it. The commission is set up for the taking of evidence and normally at a commission—we are talking of normal procedure——

Mr. O'Kennedy:

Of course and this is an essential difference. There is no such thing in our law as a criminal commission.

Mr. Cooney:

We are agreed on that.

Mr. O'Kennedy:

Why does the Minister keep using the word "normal" all the time? It is very abnormal.

Mr. Cooney:

Because we are using the same mechanisms. We are setting up something which is a new procedure but essentially has the same mechanísms and applying that on the criminal side just as the mechanisms have been applied up to now on the civil side. That is a normal procedure. Because it is done on the criminal side that does not make it invalid.

Mr. O'Kennedy:

It is abnormal.

Mr. Cooney:

It is new. I do not say it is abnormal. In this new procedure in regard to taking evidence by commission the commissioner is representing the court. That is his function and evidence given on commission will be given in the same way as it would be given before his principals, the court, that is by direct examination and cross-examination, and it is for this reason I say that the counsel or solicitors there before the commissioner will ask their questions directly of the witnesses. They are there on behalf of the parties and the phrase "right to be represented by counsel or solicitor" means only one thing, namely, the right to have counsel act on a person's behalf in the normal way that applies when he acts as an advocate. I am satisfied Deputy Haughey's apprehensions are not well founded and the phrase "right to be represented by counsel" means exactly what it says.

Deputy Haughey was worried about the mechanics involved in setting up the commission. I do not see any difficulty in that in this day and age with the ease there is of communication. It might occasionally be difficult but by and large we communicate with each other easily.

Mr. O'Kennedy:

The Minister could have fooled me.

Mr. Haughey:

What about the——

Mr. Cooney:

I would not see any difficulty in the court here sending its letter of request and the various registrars asking to have a commission arranged at a time and place suitable to all the parties. If that did not suit there would be no difficulty in having the sitting adjourned. That is normal judicial practice. Sittings are arranged to suit the convenience of the courts or the convenience of the parties and I do not see any difficulty in the mechanics of setting up a commission.

It was envisaged this would be a cumbersome, tedious procedure. It will be a new procedure. I do not think we should assume it will be either cumbersome or tedious. We will have to wait and see how it works in practice. It obviously will not be as simple as if the entire trial took place in Green Street. There will be a certain amount of administrative work involved in setting up the commission and a certain amount of inconvenience involved in travelling. There is no doubt about that. There are many desirable things troublesome to set up but they are nevertheless well worth setting up.

I indicated to Deputy Haughey that the proceedings will be in private unless the commissioner otherwise directs. He also raised the question of the furnishing of documents and exhibits. These will be admissible in the normal way as evidence. That is provided for in section 12 and in Schedule 4 of the British Act.

Mr. Haughey:

I am thinking about things like fingerprints and weapons.

Mr. Cooney:

They will have to be furnished in the normal way. These things have to be introduced by witnesses, by a ballistics expert in the case of weapons and a technical expert in the case of fingerprints. They will produce the relevant documents or items.

Mr. Haughey:

But there is no specific provision for that.

Mr. Cooney:

Let me refer the Deputy to Schedule 4, paragraph 2 (3) (b):

If the witness—

being in attendance as a witness refuses to take an oath legally required by the Commisisoner to be taken, or to produce any documen or thing in his power or control...

Mr. Haughey:

This applies only to producing things to the commissioner. What about getting fingerprints or weapons down from Northern Ireland for the trial here?

Mr. Cooney:

The commissioner takes the evidence on behalf of the court here and then sends that evidence down to the court here. It may be a written statement or a physical object. Physical objects will be part of the evidence and will be transmitted by the commissioner to the court here. The question of the admissibility of evidence will be for the court here. It will decide in accordance with our rules of evidence whether or not a particular piece of evidence is admissible. The question of admissibility will not be ruled on during the commission because our judges will be there really as observers. That is the word I have used for want of a better one.

Mr. O'Kennedy:

The Minister should use the best word he can find.

Mr. Cooney:

They will be there as observers with the right to intervene and ask questions. They will not be ruling on the admissibility of evidence at that stage. They will do that when they come back to their own court and the evidence the commissioners has taken is produced to them. The Deputy may ask how can they rule on evidence they have already heard given. Should it not have been ruled out before it was given? This problem arises quite regularly in non-jury courts where the court has sometimes to hear the evidence before deciding on its admissibility or otherwise. Frequently the court rules the evidence inadmissible and it no longer has regard to that evidence in coming to its decision, so there would be nothing unusual in the court ruling out, when it comes to sit again in this jurisdiction, something it had heard before the commission.

Mr. Brosnan:

If the trial is held in the North admissibility will be decided in accordance with British law and it is different in many respects from our law.

Mr. Cooney:

I do not know in how many respects the rules of evidence differ but, if the trial is held in the North, it will be the law of evidence relating to that jurisdiction which will prevail. At the moment we are discussing trials being held here.

Deputy Haughey raised another point in regard to the form the evidence on commission will have. It will come down verbatim.

If their examination and cross-examination raises matters of the type mentioned by Deputy Haughey, the antecedents of the witnesses, associations, and so on, all that information will be on the transcripts submitted to our courts. There will not be any comments by the commissioner because he has no function to comment. It is his job to preside over the taking of the evidence. The full transcript will be available to our courts. Anything the parties want to adduce in examination or cross-examination will appear on the transcript and it will fall on our courts to assess that material when considering the entire case.

I agree that this is a new procedure in this jurisdiction but it is not new in civil law countries and it is not new in this jurisdiction in civil cases. This is the first time we are providing for the taking of evidence on commission in criminal cases. I submit that the procedure being provided is very concerned to ensure that there will be nothing prejudicial about the procedure to the interest of the accused. His presence is guaranteed. His immunity if he decides to be present is guaranteed. He can have a solicitor or counsel whether or not he goes, with full rights to cross-examine. Provision is also made for the attendance of the trial judges. It cannot take place unless the trial judges are present. This is also and further in ease of the accused. The entire proceedings are devised to ensure that the evidence on commission will not bear hardly on the accused and that it will be fair. I do not agree it will be cumbersome or difficult. Like any new procedure, there will probably be teething troubles; but with goodwill in both jurisdictions we will get over them. There is nothing on the face of it that suggests to me that this is unworkable. I am confident it will work and, in this way, end the scandal we all agree needs to be ended.

Mr. Blaney:

This section provides that the statement of evidence on commission will be submitted by the commissioners to the trial court here. Is it true that such transcript or statement will be valid and admissible evidence only if it has been taken before and in the presence of our trial judge?

Mr. Cooney:

Yes. The Deputy asked this question the last day.

Mr. Blaney:

Does that mean that in all cases there will be more than one such judge?

Mr. Cooney:

Yes, if it is before the Special Court. Whatever is the legal requirement for the Special Court, that number will have to be present at the commission.

Mr. Blaney:

If for any reason any one of these judges should not be present, does this negative entirely the transcript or statement?

Mr. Haughey:

Yes, it is not admissible.

Mr. Cooney:

It would vitiate the whole procedure.

Mr. Blaney:

If this should happen, would there be a second trial? Would he have to go through the whole thing again?

Mr. Cooney:

If the trial judges were not present the commission would not take place. Therefore, there would be no question of it taking place a second time, because it would not have taken place at all.

Mr. Blaney:

Does that mean that it would not take place until they are available?

Mr. Cooney:

Yes.

Mr. O'Kennedy:

When replying to Deputy Haughey the Minister constantly gave the impression that this was little less than normal. He used the words "the normal exclusion in that regard" when he was referring to the exclusion of the judges from asking questions of the witness at the commission. I want to put it on record that there is no such thing as "a normal exclusion" of a judge in his right to ask questions in any procedure we have here at the moment. In a very nice, low-key, persuasive voice the Minister has told us what we have been doing in civil law, where there is a difference between neighbours about a right of way or something like that, and telling us that we are transferring that into the criminal law. Making such an analogy is, in my view jumping so many hurdles at the same time that the Minister is likely to land himself in a very deep ditch. There is no such analogy. Our criminal law knows no procedure whereby a man who is on trial for his liberty can have evidence given against him on commission.

Mr. Cooney:

This is a new procedure.

Mr. O'Kennedy:

Not only are we introducing a new procedure but we are introducing a new procedure in our criminal law for our trials where the evidence can be taken on commission in areas over which we have, to say the least of it, less control. Therefore, this is a little more than new; to say the least of it, it is rather a dangerous novelty.

Mr. Cooney:

A very eminent Law Enforcement Commission recommended it.

Mr. O'Kennedy:

They also recommended that if there was not such urgency the Minister should have a good look at the all-Ireland Court procedure. That was two years ago.

Mr. Cooney:

I am talking about section 11.

Mr. O'Kennedy:

If the Minister wants to quote that commission I will quote them too. They said——

Mr. Cooney:

That is a different matter.

Mr. O'Kennedy:

It is not a different matter. If the Minister wants to quote the commission, let us all do so.

Mr. Cooney:

I am quoting them in regard to this particular method.

Mr. O'Kennedy:

I am quoting them in regard to what would be better. The Minister was very casual about this. He said he was satisfied that the individual's rights would be guaranteed and compared this with the provisions in the European Convention for the taking of evidence on commission. Let me point out one basic difference. There is no provision in the European Convention whereby a person has to surrender himself into custody.

Mr. Cooney:

I never said there was.

Mr. O'Kennedy:

That is a very major difference. Do not talk as if this procedure is already in vogue in Europe, because it is anything but.

Mr. Cooney:

I said the procedure of taking evidence on commission is in vogue in Europe.

Mr. O'Kennedy:

Yes, but where an accused person to be present at the taking of that evidence has to surrender himself into custody——

Mr. Cooney:

Does the Deputy think the accused should not be present?

Mr. O'Kennedy:

Has anything I said in the course of this debate given the Minister the impression that I do not think the accused should be present?

Mr. Cooney:

The Deputy is arguing that there is something wrong in providing for his presence.

Mr. O'Kennedy:

No.

Mr. Cooney:

We are agreed on that.

Mr. O'Kennedy:

No, we are not agreed on that. What we are not agreed on is this: the Minister is obliging a man to go into custody to be present.

Mr. Cooney:

Yes.

Mr. O'Kennedy:

I can see no precedent for that anywhere.

Mr. Cooney:

There is no precedent anywhere.

Mr. O'Kennedy:

The Minister is saying that he is protecting and ensuring that man's rights and he must surrender himself into the custody of the police in Northern Ireland. Section 11 (4) (b) says that a man

shall, on his return to the State upon the conclusion or any adjournment of the taking of the evidence to which the order relates, be taken into the custody of the Garda Síochána, and—

(i) if he is required pursuant to an order of any court to be kept in custody, be returned as soon as may be to that custody, and

(i) if he is on bail, be thereupon released.

If a man who is free on bail here wants to exercise his rights, he has to go into the custody of the RUC. When he comes back down here, the court having decided in their wisdom that he was a fit subject for bail, he goes free again on bail. Under the Bill he gets a preparatory run in custody before he goes to the North even though he is already on bail. If a man is released on bail here why should he have to go into the custody of the RUC to give his evidence on commission up there?

Mr. Blaney:

For his protection, no doubt.

Mr. Cooney:

A person on bail here is remanded on bail pending his trial. If, for instance his trial comes off on 1st March, on that date he surrenders his bail and goes into custody during the taking of the evidence against him. If the case does not conclude on 1st March he may be remanded in custody for the resumed hearing on 2nd March, or the court may release him on bail to return the following morning. However, he surrenders his bail and goes into custody for the purpose of attending at his trial. I say that by analogy under the Bill he is surrendering his bail to go into custody for the taking of evidence on commission, which is part of the trial procedure. That is an analogous situation.

Mr. O'Kennedy:

It is not.

Mr. Cooney:

It is a good and a close analogy. The individual is surrendering his freedom for the purpose of going into custody to attend at a proceeding connected with his trial but, apart from that, he is going out of this jurisdiction. It would be a very unreal situation for a person on trial for a serious charge to be told to attend in another jurisdiction on a certain date. The risk of absconding would be abnormally high.

Mr. Blaney:

That is crazy.

Mr. Cooney:

It would be closing our eyes to reality to say that all a person would have to do would be to turn up to face a serious charge.

Mr. Blaney:

He could have absconded the day before his trial.

Mr. Cooney:

If he wanted to abscond he could do so but if he goes into custody and absconds from custody he is then committing an offence under this Bill. It is unrealistic in the context of the situation in Ireland at present to suggest that a person should go to the North for the taking of evidence on commission otherwise than in custody.

Mr. O'Kennedy:

If he is on bail he could abscond. The fact that a court sees fit to allow him out on bail means that he can clear out of here if he wants to.

Mr. Cooney:

If he does not answer the bail he can be arrested in this jurisdiction.

Mr. O'Kennedy:

But he could go anyway. The court considers all of this before granting bail. The court does not give bail in anticipation of the fact that a person will skip it. The court gives bail more or less on the understanding that a person will face his trial. There is a total imbalance if a man who is freed by court order here, even on bail, has to surrender himself into custody to exercise these rights, as the Minister calls them, in the North of Ireland. He must surrender himself into the custody of the RUC against whom we still have charges under investigation at the Court of Human Rights at Strasbourg. It is possible that they have been determined by now and rumour has it that our case has been successful.

The Minister has used casual, calm and persuasive phrases such as, "the normal exclusion in that regard" or, "the normal procedures for taking evidence on commission" but they are wrongly applied in this case. The Minister is not only being inaccurate but is throwing a cloud of confusion across the trail when he talks in terms of the "normal exclusions". I take it the Minister will accept that our judge who sits as an observer—that is the expression used by the Minister for want of a better word and I have invited him to use the best word he can find to describe the function of our judges—is under a disability. He is under a disability that he has not experience in his normal judicial function here and this legislation is imposing that disability.

The Minister has told us that the accused can ask questions, his counsel or solicitor can ask questions, and that is correct; but the only person under the disability is the judge who under our law on all such occasions can ask questions. In fact, he is the person who can tell counsel when to stop while he continues to ask questions. However, under those procedures he has to sit as an "observer" and he cannot ask any questions. The Minister has called that "a normal process".

Mr. Cooney:

He can ask questions.

Mr. O'Kennedy:

He transfers a piece of paper or whispers a word to the presiding judge asking him to put a question to a witness but that is not normal.

Mr. Cooney:

Is that not power to ask questions?

Mr. O'Kennedy:

If the Minister can assume that to be the same thing as asking questions it is no wonder he can infer that the provisions of this Bill are quite normal, because he is ignoring reality when he says that. It is one thing to ask the Minister a question but if I have to ask Deputy Haughey to ask the Minister a question and convey the answer to me that is a different thing altogether.

Mr. Cooney:

The Deputy should not be so daft. If the Deputy asks Deputy Haughey to put a question to me and I answer, the Deputy will have heard my answer so there is no need for him to ask Deputy Haughey for the answer.

Mr. O'Kennedy:

But I would have to continue to put my questions through Deputy Haughey. I would prefer, like the judge, to put my questions myself. Our three judges will sit as observers, watch the procedure, pass notes to the presiding judge, or whisper questions to him, but they certainly will not ask openly.

Mr. Cooney:

Why would they not ask the questions openly?

Mr. O'Kennedy:

Does the Minister mean that our judges will ask the presiding judge openly to put a question to the witness?

Mr. Cooney:

Yes.

Mr. Haughey:

It will look ridiculous, apart from anything else.

Mr. Cooney:

It is a regular occurrence when there are three or four people presiding, that one person asks the questions.

Mr. O'Kennedy:

I hope our judges will not have too many questions to ask because if we are going to have that kind of procedure it will make this less like a judicial tribunal than anything else. Apparently, if our judges ask a question the presiding judge shall put it but the section states that the commissioner shall arrange his sittings so as to facilitate the attendance of any such judge and, subject to paragraph 2 (4), shall put to the witness any question suggested to him under that paragraph. It is likely that the questions suggested by our judges to the presiding judge may not be put to the witness. The presiding judge may say: "I am sorry but in my view, your lordships from the South, that question should not be put because in accordance with the law in Northern Ireland I decide that it will not be put." Our three judges can say nothing except "Sorry".

Mr. Cooney:

I imagine that would be the exceptional reaction. As I have already explained to Deputy Haughey, if a matter is excluded on the grounds of public interest, that is within the right of the commissioner taking the evidence, but our judges must then ask themselves if that exclusion leaves a fatal gap in the prosecution's case. If it does, it is a fatal gap and no harm is being done to anyone.

Mr. O'Kennedy:

They can be told that it is a fatal gap but our judges are being subjected to enough indignity in this procedure without subjecting them to that also. They may decide whether or not it is a fatal gap but if they decide, because they are the judges appointed by us under our Constitution, that such a question should be put, I believe that question should be put. However, the law of Northern Ireland may determine that it cannot, that somebody else will decide it for them and this creates the fatal gap.

The Minister said that it was "a fact of life" that witnesses would be apprehensive about coming down here. Is it not equally a fact of life that our judges who will have to go to Northern Ireland because the people there will not come down will be apprehensive about going? Will the Minister let me have his comment on that?

Mr. Cooney:

I am not going to comment on that.

Mr. O'Kennedy:

Why not? If it is a fact of life that witnesses coming down here will be apprehensive, it is only fair to suggest that the judges who will be obliged to go to Northern Ireland will be equally apprehensive.

Mr. Cooney:

Deputy Blaney may be apprehensive about going through the North when he is going home.

Perhaps people who have to go North on business are apprehensive. It is part of the reality of life in this island that people are apprehensive about going North and equally that they are apprehensive about coming down here.

Mr. O'Kennedy:

We have got to the point where all of them will be apprehensive. We are acknowledging the fears of the witnesses from the North, we are taking account of them and we are organising this abnormal procedure with some of the "normal exclusions" the Minister has referred to——

Mr. Cooney:

Does the Deputy think the position would be improved if there was no provision for the judges to attend?

Mr. O'Kennedy:

The Minister knows what I think about this——

Mr. Cooney:

The Deputy should be consistent in his arguments.

Mr. O'Kennedy:

If we point out all the imperfections in this legislation, does it not strengthen our case that we should not be dealing with this legislation? We are not trying to suggest that this is a great piece of legislation that will work; from the beginning we made it clear that we think it is unworkable and undesirable.

Mr. Cooney:

Perhaps we could vote on it and get it over?

Mr. O'Kennedy:

Very shortly. My only function at this stage is to get some matters clearly on the record so that we can show the gaps in what the Minister is suggesting is normal and reasonable. I think the gaps have been shown very clearly. The Minister said that in this sense the judges would be sitting "as three laymen"——

Mr. Cooney:

That would be their status in the court. They would not have judicial status outside this jurisdiction.

Mr. O'Kennedy:

If that is the position the Minister might as well send three laymen. The judges have a judicial function and they cannot divest themselves of that function. They cannot suddenly become laymen. The Minister has spoken about guarantees. Does he acknowledge that under this legislation we cannot and do not give any guarantees to the accused person that he will not be charged, ill treated or otherwise while in Northern Ireland? In this legislation we do not give the accused person who is going to Northern Ireland to be present at the taking of evidence on commission any guarantee that he will not be charged for offences before he went there, that he will not be ill treated——

Mr. Cooney:

The immunity guarantee is given by the United Kingdom. We cannot give guarantees within another jurisdiction. We give that guarantee to a person coming down here.

Mr. O'Kennedy:

We state that the court making the order "shall inform him" that while he is in custody in Northern Ireland he will be immune from detention. However, they cannot do one solitary thing——

Mr. Cooney:

We had this at great length on the Opposition amendments about immunity. May I make again the distinction——

Mr. G. Collins:

It was on Deputy O'Connell's amendment——

Mr. Cooney:

And the amendment dealing with the Convention on Human Rights.

Mr. G. Collins:

The Minister also had it from a member of his own political grouping.

Mr. Cooney:

We had it on the amendments at great length. Again, I want to make the distinction between the granting of immunity and the guaranteeing of immunity. Immunity can be granted only by the Government of the jurisdiction where the person may be at a particular time. The guaranteeing of that immunity in the context of this Bill is the sanction and the background that the reciprocal legislation will no longer be in force. That is the guarantee behind the granting of immunity which can be given only by the Government with jurisdiction over the territory where the person may be at a particular time. We do not grant immunity in the other jurisdiction. It is granted by the UK Government and we guarantee it by the sanction of not working the reciprocal legislation.

Mr. Haughey:

We will send a gunboat if they do not behave.

Mr. Cooney:

That shows the——

Mr. Haughey:

——chauvinistic?

Mr. Cooney:

No. It is not quite an inferiority complex but something of that kind. The Deputy has not often been accused of that but I think it is something of that kind. I am quite satisfied to rely on the sanction implicit in the need that this legislation be reciprocal.

Mr. O'Kennedy:

The Minister knows that we do not like this Bill but we might be more in agreement with it if he would consider writing in a provision on the following lines: "The provisions of this Bill shall only have effect as long as guarantees which are not in this Bill are honoured and that this Bill shall cease to have effect if...". Would the Minister consider writing in something of this kind?

Mr. Cooney:

I have already indicated to Deputy Brugha and publicly that I could foresee a situation if the guarantees were not honoured that I would come in here to repeal it.

Mr. O'Kennedy:

We have the Minister's word for that and, because he is an honourable man, that is a fine thing. The Minister said this legislation will only work as long as they do what they promised. It would be quite proper to insert a section on the lines I have set out. I have not thought out the amendment but if the Minister would like to give me some time I will come up with one for him. It would ensure that the informal guarantee he has got will be written as a formal guarantee in the Bill.

Mr. Cooney:

I have not got an informal guarantee. It is implicit in the arrangement.

Mr. O'Kennedy:

Would the Minister like us to write in explicitly that implicit arrangement? What the Minister wants us to do is to rely on his word, on a airy-fairy impression——

Mr. Cooney:

What we are relying on is the sovereignty of this Parliament.

Mr. O'Kennedy:

If we are relying on that, this Parliament should be seen to be in control.

Mr. Cooney:

In a sovereign Parliament it is not necessary to write into a Bill the fact of that sovereignty. It is implicit in the whole legislative process.

Mr. O'Kennedy:

The Minister knows that one underlines sovereignty simply by writing in provisions in a Bill that will guarantee it is answerable to us only. It is obvious the Minister does not take kindly to my suggestion.

Mr. Cooney:

No.

Mr. O'Kennedy:

So much for the sovereignty of this Parliament. Apparently it is just the word of the Minister. The Minister knows that in criminal trials something one witness has said gives rise to a point of confirmation with another witness: witness A is brought back and questioned about some point made by witness B. In Northern Ireland on commission we have witness A, and in our court here witness B gives evidence. What happens then if the same need arises to question witness A? Does the whole thing go back to Northern Ireland?

Mr. Cooney:

If the court decides in the interests of justice that that has to be done, then it has to be done.

Mr. O'Kennedy:

It is quite a regular thing in our courts and it is quite likely to happen under this Bill. Does the Minister see now why we say this is unworkable?

Mr. Cooney:

I do not. I said there might be inconvenience but I am prepared to put up with it to see that justice is done.

Mr. O'Kennedy:

You could have one of the judges here adjourning the case half way through to go back to the North to have questions put to witness A. There will be to-ing and fro-ing between here and Belfast. We believe seriously this is unworkable.

There is one last thing I want to go into, the matter of identification. A person may be charged here with having caused an explosion in the North and the very fact that he is in the South would indicate that he may not be the same man, that he was not near the place. There would be people giving evidence in the North identifying him. He may not go up to give evidence on commission. Does the Minister not realise how ludicrous that is, that you would have evidence given in the North that so-and-so was the person who was seen running from the scene of an explosion or planting a bomb? The person so identified is not even there. The Minister knows from his legal experience that you cannot identify somebody without pointing to him in court and saying "That is the man I saw running away". Is the Minister allowing that procedure to be turned upside down?

Mr. Cooney:

Failure to identify an accused can be to his profit.

Mr. O'Kennedy:

But the Minister will agree the way I suggested is the best way.

Mr. Cooney:

It is not always necessary or possible to have visual indentification. Identification can be proved in other ways, but assuming this is the only way, assuming the accused is well advised and he does not go north and, therefore, cannot be identified, then the prosecution case has failed and this is in case of the accused.

Mr. Brosnan:

The Minister spoke about failure of the commissioner to admit a question. He said that if one of our judges wanted to ask such a question and it was ruled out of order that could prove fatal to the prosecution. Could it not also prove fatal to the defence? When the evidence is transmitted to our court, is it not natural that the same judge would ask the same question and that he would want the answer? What will happen then? Will the whole thing be sent back to Northern Ireland?

Mr. Cooney:

If the question has been excluded, it does not appear in the transcript and the transcript does not go back. The judges here exclude that evidence.

Mr. Brosnan:

The whole thing must go back again and the commissioner will again rule it out.

Mr. Cooney:

If it has been ruled out by the commissioner, it will not appear in the transcript.

Mr. Brosnan:

It could be of vital value to the defence.

Mr. Cooney:

If a question appears in the transcript which is inadmissible, it would be disregarded. If, having heard the question, the commissioner disregards it and says it is not permissible, the judges would put it out of their minds.

Mr. Brosnan:

The Minister is not answering my question. The question I posed is that if one of the judges wanted the commissioner to ask a question the commissioner could refuse to ask it on the grounds that it was inadmissible. The transcript arrives down here and the same judge again would be anxious to get the same information—it could be fatal to the defence as well as to the prosecution.

Mr. Blaney:

This section is one of the most objectionable in the entire Bill. The provision in relation to the commission is specifically designed to cater for one type only of offender and ignores the fact that there may be other offenders brought into the net as well. I have learned very little from the Minister or anybody else in regard to this matter of the commission. Those who make allegations against persons in our jurisdiction may be apprehensive about coming down to our courts to give evidence to back up their allegations to the point of arresting those whom they accuse in their jurisdiction, we go to great lengths which are extraordinary, unworkable and probably unconstitutional, infringing in many cases a basic right of our people, the right that a person should be presumed to be innocent until proved guilty. Our legislation should provide that if there is any question of doubt it should fall on the side of the accused rather than of the prosecution. But here we are importing into our Statute Book a provision that is totally uncalled for. There is no reason why those who would make the accusations and allegations, and set the law in motion down here to pick up someone accused of an offence in the Six Counties, cannot come into our courts in safety to give evidence in regard to the charges. I am sure the Minister is not prepared to say there is any foundation for such fears or apprehensions by the accusers.

Does the Minister agree that there is no reason for fear or apprehension on the part of the accusers coming South to back up the case that will have been laid against a person in the custody of the authorities here? I take it from his silence that the Minister agrees there is no reason whatsoever why the accusers may not in safety come south to give the evidence and the facts of the accusation. Nevertheless, because of those needless fears on the part of the accusers from the Six Counties, we proceed to incorporate in this Bill a very elaborate, and what the Minister describes as a novel procedure, in order to facilitate those accusers to press home their case in their own jurisdiction. At the same time we deny the accused something which has been regarded as the right of an accused down the years in all our laws and laws elsewhere; the right to be present at his own trial.

The Minister's answer to that has repeatedly been that the provision is made within this proposed legislation, or in the British legislation that corresponds to this Bill, that immunity will be granted to the accused and that this immunity is sufficient to enable him, without fear or apprehension, to go from the South to the North and hand himself into the custody of his accusers. As a result of that, while in custody, he can appear, be at his trial, and participate in it. This is ensuring his right. It is not, and the Minister knows it. There will be every reason why a person accused by the authorities in the Six Counties, picked up on their warrant, as it were, down here, will not surrender himself into their custody or will not be prepared to go into the jurisdiction, either in custody or otherwise, of the Six Counties, or hand himself through the Garda into the hands of his accusers and the authorities in the Six Counties. He has good reason not to.

The accused person, therefore, is not given the right that the Minister holds this immunity gives him. No amount of immunity written into British law or guaranteed by the word of the Minister—doubtless given in all good faith—no number of assurances given in this House by our Minister for Justice and no number of laws passing through Westminister are going to induce an accused person to go into the custody of the RUC, into the hands of those who accuse him, in order that he may be present at this sham. That is all it can be. It is not part of the trial, although it is the basis of the procedure that will convict, or otherwise, a particular person. It is in that jurisdiction that the evidence will be produced, that the witnesses will be produced in order to back up what the accusers, the authorities in the Six Counties, will have laid against the person whom we hold. We are not only asking him to go, we are saying to him "that is your right. Your right is being guaranteed, your right as an accused person is being protected, because in the British legislation there is immunity from any other charges while you are in custody in the Six Counties for the purpose of evidence being given on commission against or for you. Therefore your right as an accused person is being protected".

But it is being protected in circumstances wherein the accused person, having fled the Six Counties for whatever may be the many and varied reasons in these recent years, knows he has not got his rights. He knows he cannot get those rights unless he endangers himself physically by allowing himself to be handed into the custody of his accusers, those who may have hounded him out of the Six Counties in the first instance. All this is being done merely to facilitate the prosecution and the following up of the charges made by the 6-county authorities because they, the accusers, are afraid to come into our jurisdiction. If they want their prosecution to succeed, if they want assistance on this side of the Border to ensure that their prosecution does succeed, surely they should be prepared to come into our jurisdiction, where they know as well as the Minister and I know they may come without any fear for their safety. Certainly we will not start talking about the degree of safety of the accusers coming down to press home their charges here in our courts as against the safety of an accused going North to be present at his own trial or the taking of evidence in relation to his own trial.

There can be no doubt in anybody's mind that the danger of the accused going north in the custody of his accusers is far more real, and truly real, as distinct from the unfounded fears that are being expressed and the apprehensions the Minister feels the accusers and their witnesses would have in coming down here. Despite that imbalance between the degree of credence we can give to the fears the accusers and the witnesses for the prosecution may have in coming south and those of the accused in regard to his rights, and having those rights protected by being enabled to go in custody to the commission in the north, we fall over ourselves by providing this strange paraphernalia in order to allay the unfounded and ungrounded fears of the authorities in the Six Counties and their prosecution witnesses in regard to coming south. At the same time we ignore completely the well-established and sacrosanct rights of an accused person to be given every facility to be present at his own trial and the taking of evidence against him.

We throw all that overboard merely because we want to pander to the authorities in the Six Counties or in Westminster, I do not know which, pander to them on the basis of groundless fears, fears that we know are without any basis, fears of their coming south to give evidence in our courts. The only fears they would have would be that if they came south and gave bogus evidence they would not get away with it here as they are capable of getting away with it in their own courts. Is this the real fear? Is this the real stopper on people who want to bring prosecutions in our jurisdiction? They are not prepared to come in and be subjected to a full cross-examination by the officers of our courts or by those representing the accused in our courts.

There are, as the Minister knows, no other grounds for being afraid. Compare that with the very real fears of the accused in having to go north and being denied what has been regarded over the years as his rights. His rights are being trampled on needlessly and we are being told that it is all being done because of the facts of life, as the Minister said. The facts of life are that the dangers are above, whereas they do not exist here to anything like that degree in so far as the prosecution or the accusers coming from the North and their witnesses would be concerned, and the Minister knows this. The authorities in the Six Counties are well aware of this. Why must we then deny the accused his rights on this spurious basis that the prosecution cannot come south because of fear? There is no danger to them and they know it, the Minister knows it, and everybody else knows it. So why are we doing this? Why are we pandering to them? Why are we setting up a most spurious paraphernalia to deal with a situation that is not based on the truth or the reality of the situation in any respect whatsoever?

The Minister has said—I was glad to hear him being challenged—that this procedure in this section not only concerns us, but that it is in general use in Europe. Deputy O'Kennedy highlighted this and the Minister retracted it. It is not paralleled by anything in Europe in the manner that we propose to do it. Therefore, it is novel here and this novelty is being introduced at the expense of the rights of accused persons, rights that have been regarded down through the years as theirs and which still are theirs. All our domestic laws and all laws relating to any and every situation, respect the rights of the individual.

This particular set-up has been brought about at the request, no doubt, of the authorities in Westminster who do not themselves understand the situation. They cannot possibly appreciate what they are doing in these circumstances. They do not seem to have come to a realisation that there are no real dangers to persons coming here from the Six Counties to give evidence in furtherance of allegations and accusations as a result of which we would have the accused person before our courts. If the rights of the accused could be fully covered and fully protected, then the Minister could argue his case with some strength and some conviction. We are merely pretending to give protection and, indeed, we are making a very hollow pretence that the provisions we have here in this section are the answer to the protection of the normal rights of an accused person. Far from it.

It will be suggested to us—and, indeed, in this debate we have had it asserted on many occasions—that the accused will go into the custody of the RUC. Why into the custody of the RUC? We must remember that the RUC will be the actual accusers in certain circumstances. Why should we apprehend and arrest at the behest of the RUC a person allegedly guilty of an offence in the Six Counties? Having done so and having accepted the groundless fears of the RUC about coming south, we then say: "We will set up the commission and hand into your custody for your care and gentle consideration for the duration of the taking of the evidence on commission the person whom you accuse of doing such and such." We say to that accused: "Your rights are protected. Everything is in order. There is a guarantee in the British legislation that, while you are in the protective custody of the RUC, your accusers in this particular case, you will not be proceeded against on any civil or other charge." We do not and cannot guarantee any of those things, even those things in the British legislation. The British legislation gives no guarantee that an accused person will not be assaulted, molested, subjected to interrogation or to torture of any nature during his time there. That is not guaranteed nor is the accused guaranteed any immunity from any such operations by his jailers while he is in the Six Counties.

The British legislation is silent on that and we here, in so far as the Minister and his Government and this legislation are concerned, are likewise silent. The Minister in extenuation of that silence will indicate, and has indicated to the House, that we cannot guarantee these things because they are outside our jurisdiction. Since we cannot guarantee that any of these things will not happen while the accused is in the custody of the RUC, or in jail in the Six Counties, we cannot give immunity of any kind whatsoever to the accused nor are we giving him the protection necessary to induce him in his own best interest to go to the commission and hear the evidence being given in his case. We are merely making a pretence that we are securing his rights and we are not taking any effective steps to protect those rights. We are wiping out, as a result of our omission in this regard, the time-worn right of an accused person on the basis that his accusers are afraid to come into our jurisdiction to give evidence for the prosecution. Surely that should stop the Minister in his tracks. This is an absolutely useless and hollow procedure —protecting the accused's rights when he goes into the Six Counties—because it is being done for non-valid reasons, to satisfy fears which are totally groundless. The Minister keeps on, almost parrot-like, repeating that the accused is immune from this, that and the other. We cannot guarantee, even so far as the British law goes, that that immunity will be effective nor do we make any effort whatsoever to protect the accused against the much more likely happenings that will befall him if he is foolish enough to allow himself to be handed into the custody of his accusers in the Six Counties.

The Minister does all this in a very soft sort of way. Listening to him one would get the impression that everything was fine. When he is pushed back to the point that none of the arguments he has advanced for doing things in this unorthodox and biased way in so far as the interests of the accused are concerned holds, he takes refuge in time-worn argument that if they do not perform according to the reciprocal understanding and arrangement we are making we will stop operating. We fall over backwards to provide that paraphernalia for those type of proceedings. Even if an accused is handed over by us into the custody of the RUC in the Six Counties at some convenient point, and then disappears or he attempts to escape and is shot at and maybe killed, it will be no good to say that it will not happen again because we will not operate it any more. If the boys inside do not play ball, we will take the ball away. We will not have any further game.

None of those assurances is of any worth whatsoever. Neither is the implied threat that if the game is not played properly in the North we will cease to participate in the game. It is no use to tell the first person picked up under this legislation that if he is shot at, beaten up, interrogated, abused, bumped off or disappears it will not happen to anybody else because we will not operate the game any further. There is no protection given to the rights of the accused to be present at the taking of the evidence against him as provided in this sham section that we have here. No amount of repetition will alter the fact that an accused person has no assurances nor are we capable of giving him any real assurances that so far as he is concerned this legislation will operate to protect him. The best we can do is to fall back on the line that if they do not play the game, if the accused person goes up and they do not carry everything out according to the reciprocal arrangements and laws that we are putting through here we will not operate them in future. The Minister knows that is no use.

The rights of an accused person are being denied and a peculiar novelty is being provided. All of the time of the Minister, his Department and this House is being taken up in providing such novel paraphernalia which is useless to protect the rights of an accused person, and is being done because his accusers are afraid to come, according to the Minister, to the South to give evidence, when we know they may do so in complete safety. Despite this, we lean over to the point where we wipe out the rights of the accused person in order to provide circumstances wherein, in the comfort and security of their own surroundings, the accusers and their witnesses, touts and otherwise, may give their evidence before a commission of the Six Counties in their own jurisdiction. It does not matter about the accused or his rights. Let us get this job done. The British want us to do it, the Six-County authorities want us to do it and they in return will do something for us. Does the Minister really believe that? Does he believe this will be a two-way traffic? Does he believe that because there are parallel and reciprocal laws being passed by the British Government that has any real meaning? Can the Minister see the lack of parallel in the two situations?

Surely the Minister will agree that there is no parallel whatever to be drawn between the Six-County judicial set-up and their police set-up as against the set-up we have in the South? Surely the Minister will be the first person to acknowledge that we are not comparing like with like, that we are not dealing with two similar sets of circumstances, that we are not dealing with two similar institutions, the police force in the North vis-á-vis the Garda or the courts in the Six Counties vis-á-vis the courts down here? Surely it must be clear to the Minister that those who come across the Border from the North and perpetrate acts which would be offences under sections 2 or 3 or their parallel and hop back over again are Loyalists or people of Loyalist affiliation or they may be associated with the occupation forces, the SAS?

We can be sure that when any act is performed on this side of the Border and those who have done so hop back to the Six Counties, being of loyalist outlook, they will not be pursued diligently. They will not be followed up, investigated and brought to book in all cases where it is possible. Does the Minister believe that the RUC and the authorities in the Six Counties will with the same diligence seek out and bring before their courts those who do deeds on our side of the Border similar to those we are providing for in relation to the Six Counties and the perpetrators of which are in our jurisdiction? The Minister knows as well as I do that we from our knowledge over the years of the lack of a proper balance in the RUC and in the courts of the Six Counties are fully aware that there is not a fair deal for all in the Six Counties either in the enforcement of the law by the police force or in the follow-through in the courts there. That being so, why should we say we are prepared to accept the biased and prejudiced manner in which the reciprocal laws will be carried out in the Six Counties, that we will do our share and it does not matter whether they do theirs or not? We know very well from past experience that they will not. We are prepared to agree to the paraphernalia whereby the rights of the accused are completely relegated to the background. No matter how the Minister may gloss over it, he cannot ignore the fact that the accused person is now, for the first time under the laws of this land, being denied what has been regarded as his right down the years and that is, to be present at the taking of the evidence at his own trial. He has not got that right here, and the Minister knows it.

The Minister must, for all time, be answerable for the putting through of this legislation and he must and will be answerable for any unfortunate accused who may be misled into having himself delivered into the custody of the RUC and, as a result, being assaulted, beaten up, interrogated or allowed to escape and being shot perhaps in doing so.

Deputy O'Kennedy dealt concisely and clearly with the situation where an accused person is allowed out on bail. That person must take the unprecedented step of surrendering his bail, going into custody here in our jurisdiction for anything up to 24 hours and then having himself delivered at a convenient point to his accusers, the RUC, despite the fact that he was bailworthy here before the court or the trial court as the case may be.

The Minister thinks there is nothing strange about that. I wonder does he swallow this as easily as he appears to. The Minister has long experience in the practice of law and I am sure that if he were not in the position he now occupies, and certainly if he were in Opposition, we would be hearing very forcibly from him about how abnormal this procedure is. I am sure he would add good reasons to those already reported by his colleagues in law who are on this side of the House and who have given their views here this evening. The Minister acts strangely for a man with his knowledge of the law and who on previous occasions upheld what some people might describe as the niceties of the law but which he would have described as principles. He is ignoring one of these principles here.

I journey north frequently, as I must. Despite what seems to be the intimidatory delays caused by the occupational forces, of whom we seem to have become particularly fond in recent times, in going north to my constituency and county I go through the Six Counties. However, when many of my acquaintances and friends from south of the Border have to go to Donegal, 99 times out of 100, no matter how I prevail upon them, they will insist on going the long way round by Sligo. If those are genuine fears that these people have in merely passing through on the main thoroughfare, how much more real are the fears of a person accused by the authorities in the Six Counties of carrying out some illegal acts there?

I have been trying to find out from the Minister why the accused must be in custody. Deputy O'Kennedy pursued this, but the Minister sidetracked the issue. He has not answered why the accused person must be handed into custody. He attempted to answer it by saying the accused might abscond. Deputy O'Kennedy rightly replied that since he was on bail here up to the time of his delivery into RUC custody, he might have absconded at any time. He could have gone across the Border and disappeared in the Six Counties. The only reason I have heard the Minister give for the custody operation in respect of an accused person going up to hear evidence given on commission in his own case is so that he will not abscond while he is there.

I would ask the Minister to think again about that. Perhaps there is something he has left out which would be vital to the answer, but certainly what he has said is no answer. I am asking the question again. Why must an accused person go into the custody of the RUC, his accusers, while attending the giving of evidence on commission in the Six Counties, should he choose to go there? Has the Minister an answer to that?

Mr. Cooney:

I have.

Mr. Blaney:

Why?

Mr. Cooney:

For the reason I have already given. The likelihood is that he would abscond and the trial could not be proceeded with in his absence. Deputy Blaney says that is no answer because if he is on bail in the South he can abscond. That is not a good counter reply. In the South, his bail is conditioned by very heavy sureties. If he were to abscond his bailsman would forfeit the bail. In addition he would be liable to be rearrested when found. If he were to go North not in custody and if he were to abscond, he would not be liable to rearrest for that offence. If he were to go to ground— and one can imagine that he would find places in the North to go to ground successfully—he would be able to evade justice.

Mr. Blaney:

Surely the Minister is not trying to make us believe that a person on bail here, accused of an offence of the nature we are talking about here, will not abscond purely and simply on the basis that his bondsman would be called in. Assuming that to some degree that was a deferrent to absconding——

Mr. Cooney:

It is a deterrent at the moment.

Mr. Blaney:

While he is on bail I take it there will be no absolute knowledge that he never goes outside the jurisdiction even to cross the Border to buy a pound of butter. He may or may not come and go across the Border while on bail. So long as he shows up on the day appointed for his trial or hearing, everything is in order. If he goes across the Border for the taking of evidence, he is a free agent having chosen to do so in his own interest. If he does not show up in our court to answer bail, will not the same visitation take place to the bondsman as if he had absconded without going North to give evidence on commission? It is the same thing. His bail is forfeit whether he disappears one day after he is allowed out on bail or while in the Six Counties on this mission. To say he is put into custody in order that he will not abscond is ludicrous. Why should he disappear when he is going North to hear the evidence and to take what should be his right despite any fears or dangers he may encounter? The Minister says he must surrender himself anything up to 24 hours before going into the custody of the Garda Síochána, who will hand him over at a convenient point to the RUC, who will keep him in custody for the duration of the proceedings.

If the man is daft enough to take the Minister up on the assurances which are so unsure in this legislation, or on the assurances of a British Government who we know from past experience have not got a great deal of creditworthiness in their assurances given to our people, and if he opts to go up although he is on bail here, why would he then abscond up there? Why go up there? Why go through that procedure and then disappear up there when he could have disappeared any other day without anything being known about it? He would not be missed until the case was called again.

If he goes North and he is not there the next day, he is immediately suspected of having absconded, and the likelihood of his becoming involved is greater than if he had quietly disappeared in his own time and in his own way on this side of the Border? The whole thing is so unreal as not to make any sense. It is so unreal that it does no credit to the Minister, to the Department, or to the Government. Pushing it through this House on a vote will do no credit to Parliament or to the reputation of this House. Nor will it add any lustre to the enactments on the Statute Book of this State. All of this is being done, and for what reasons I do not know. We have not been given the reasons. The Minister is still not forthcoming on the specific question I asked him. He has not given an answer which makes sense or satisfies me.

Leaving out all the unwieldy and perhaps unworkable, unconstitutional, unorthodox and repugnant matters which will become part of our law as a result of this section, how can the Minister, how can this House, how can any Irish Parliament deny the time honoured rights of an accused, merely to facilitate the chicken-hearted accusers from the Six-County jurisdiction who would point the finger at persons on this side of the Border to put into operation the paraphernalia which will have us do the dirty work for them. We are doing it for the chicken-hearted people who make those accusations and who, because of their chicken-hearted lily-liveredness, are not prepared to come into our jurisdiction. They have expressed to somebody or other, we must assume, fears and apprehensions that they will be molested, insulted, beaten up, kidnapped, interrogated, shot, or whatever the case may be. We are led to believe all these things are genuine fears and, therefore, we must bow the knee and make provisions of the most amazing character for these weak kneed, lily-livered, chicken-hearted people who will make their accusations but are not prepared to face up to the reality of the situation and come into our courts to back them up. Therefore, we of necessity have to throw overboard the established rights of all accused down the years and down the ages, rights we had come to consider sacrosanct. That is what the Minister is doing and no amount of explanation can get away from that sad fact.

Question put.

The Committee divi ded: Tá, 70; Níl, 63.

Tá

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

Níl

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

Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Healy.

Question declared carried.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill."

Mr. G. Collins:

Section 12 (9) provides that at the conclusion of the taking of evidence in this jurisdiction the accused will 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 words that the Garda Síochána must "deliver the accused to Northern Ireland as soon as may be" should be underlined. The corresponding provision in the British Act appears to be paragraph 4 (5) of Schedule 4, on page 16. In that Act there is no provision that the accused person is to be delivered from the RUC to the Garda Síochána as soon as may be. It merely states that at the conclusion of proceedings he is to be delivered back. During the course of the Second Stage debate reference was made to the absence of these words from the British legislation. Perhaps the Minister might comment on that.

Mr. Cooney:

The meaning is identical although the actual phraseology used is not. I am quite satisfied that the British Act provides that on conclusion of the proceedings the accused has to be handed back into the custody of the Garda Síochána of this jurisdiction and I do not think there is anything sinister to be read into the absence of the words "as soon as may be". I am satisfied that, as drafted, it means that the accused must be handed back immediately.

Mr. G. Collins:

Would the Minister comment on section 12 (7), because my understanding is that contempt of court is now an offence which is not triable summarily. A recent decision of Mr. Justice Parke indicates that is the position. There seems to be conflicting views about this section. The Minister might deal with it.

Mr. Cooney:

I am aware of the decision in question. I cannot go so far as to say that it now represents the definitive state of the law in that area. That would be going perhaps too far. It was found in essence that before there could be a conviction for contempt there would have to be a separate criminal proceeding, because there was a criminal sanction involved and that automatically required a criminal proceeding before the sanction could be applied. Should that turn out to be the definitive legal proceeding after all the judicial processes relating thereto have been exhausted, then the wording of this section might have to be looked at again or else it would fall, in relation to subsection (7) (d).

Mr. Haughey:

Section 12 is the corollary of section 11, which enables the Northern authorities to send down here and seek to have evidence taken on commission here which would be available to them for the prosecution of a trial in the North of Ireland. From that point of view it is of some significance to us in this jurisdiction in that if the situation were to arise where the persons who have perpetrated crimes in this State are subsequently brought to trial in the North of Ireland these provisions will be invoked to assist that prosecution.

We must ask ourselves whether this section will ever be availed of or whether it will be an empty formula. On another occasion I asked the Minister if he had any knowledge about the situation in regard to the bombings that were perpetrated in this State almost certainly by persons from outside the State. That question arises specifically on this section because if such persons are to be apprehended in the North of Ireland undoubtedly the provisions of this section will be brought into play to enable evidence to be garnered against them. I do not know what the present situation is but I should like to know if the authorities in Northern Ireland are, in fact, prosecuting their inquiries in regard to these outrages. Do they visualise any prosecutions likely to materialise as a result of their inquiries and if so is it likely that the provisions of this section will ever be invoked?

That is relevant and many people would be interested to know what the present position is. Other countries have gone to considerable lengths to try to make sure that persons who committed atrocities on their people were pursued to the ends of the earth and brought to justice. I am not one to advocate the pursuance of vengeance at any time but in the light of the barrage of criticism directed at us in the Republic about the situation in the North some effort should be made by the authorities there to bring those people to justice. I asked the Minister before about this and I was inclined to confine my question to him and to know whether he had any information about the progress of such inquiries. Now that we are dealing with this section which is directly related to this sort of situation the Minister might go a little further and tell us whether he is satisfied that the Northern authorities are doing all in their power to pursue their inquiries or whether there are any initiatives he can take in the matter so that if we must have these very unorthodox procedures incorporated in our legal system at least they might be availed of in that context.

I should like to avail of this opportunity to advert to some reports of what I said here in connection with the explosives section yesterday. I recognise that I may not have expressed myself clearly or that what I said may have been quite fairly misunderstood. The newspaper reports would seem to indicate that I merely confined myself to condemning the outrages arising from the use of explosives in our jurisdiction. Of course, as the Minister knows, I condemned totally as abhorrent this new form of terrorism which has, unfortunately, come to our country. Throughout the world this use of indiscriminate bombing has killed, maimed and injured unsuspecting members of the general public. I should like to make it clear that I was not confining my condemnation to those offences which occurred in our jurisdiction; my condemnation of them, the condemnation of every right-thinking person, applies to all of Ireland and to anywhere else in the world where they may occur.

Mr. Cooney:

That was the meaning I took from what Deputy Haughey said but possibly, because of the necessarily abbreviated way these lengthy proceedings have to be reported sometimes a wrong impression can unwittingly arise. With regard to the outrages which have been committed here, I should like to say that this Bill, when it becomes an Act, will not apply retrospectively. Even if those persons could be apprehended in the other jurisdiction they could not be dealt with under this Bill. With regard to that specific point, police files are never closed as long as a crime remains unsolved. There is always an interest in acquiring evidence to try to apprehend the guilty persons. I am satisfied that every effort was made by the two forces in co-operation to try to identify and secure sufficient evidence to charge the people responsible for the terrible outrages here. I hope that, as far as we are concerned, section 12 will be an empty formula and that the need for it will not arise. It would follow from that that outrages would not have been committed here and that there would be no fugitive offenders in Northern Ireland as a result of committing crimes under the provisions of the other Act corresponding to sections 2 and 3 of our Bill. The way things are at present the reality of the situation is that the traffic is more likely to be weighted in the other direction.

Mr. O'Kennedy:

Is it not conceiving that the evidence for the defence which will be taken on commission in the South and which will be ruled as admissible evidence by our commissioner or judge could be ruled as inadmissible by the court of trial in Northern Ireland, having regard to the different rules of evidence?

Mr. Cooney:

I do not think our commissioner would be entitled to rule on it other than in the narrow area of the public interest. The admissibility, generally, would be a matter for the trial court.

Mr. O'Kennedy:

It could be against the interests of a defendant when what would be ruled as admissible here could be ruled as inadmissible in the North of Ireland and to that extent it is one other example of the difficulties and problems that can arise in practice in relation to this. In so far as this envisages a judge coming down to sit as an observer on our taking of evidence on commission, the Minister will see immediately the contradiction that is involved in that if a judge sits here as an observer surely the witnesses we were dealing with under section 11 could be expected to come down and give evidence here. Section 12, for its effectiveness, depends on the fact that a judge will come down from the North of Ireland to sit?

Mr. Cooney:

Yes.

Mr. O'Kennedy:

Does the Minister not recognise that he may, to quote the Minister, "as a fact of life" have the same apprehensions about coming to the South as some of the witnesses would have?

Mr. Cooney:

He may have but I have no doubt that he will come down to discharge his duty. The positions of the witness and the judge are not analogous. Both are human beings and may suffer the same apprehensions. However, there are certain constraints that compel us to do things in the course of duty to which other people are not subject. That would be the difference between a judge and an ordinary witness. I do not want to reopen section 11. We will have to wait to see who will or will not come down. It could be that most witnesses will come here and, hopefully, that will be the case.

The other point Deputy O'Kennedy made was in relation to the admissibility of evidence. The trial will be a North of Ireland trial and when the evidence taken here on commission goes to the North it will be judged in the light of their rules of evidence.

Mr. O'Kennedy:

The Minister has summed it up: we will have to wait to see.

Question put.

The Committee divided: Tá, 70; Níl, 62.

Tá

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

Níl

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

Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Healy.

Question declared carried.

Mr. O'Kennedy:

On a point of order, have the Coalition Members to go back to the European Parliament now to look after——

An Ceann Comhairle:

That is not a point of order.

Progress reported; Committee to sit again.