The Court of Criminal Appeal will be concerned with the law as such as to whether or not, in accordance with law, the jury was entitled to come to the conclusion that it did if they find the verdict was perverse having regard to the facts. Let us look at what the Minister is doing for the moment and take some cases, particularly in relation to the three stages of fitness to plead either at the commencement of the trial, during the trial, and then a verdict of what is called guilty but insane. In the first instance if the question comes up in an ordinary court of an accused person's fitness to plead, we should know, though the Minister's approach is confusing, that it is not the court that determines whether or not he is fit to plead. As soon as that question arises a jury of his peers must decide whether or not he is fit to plead. That is a fundamental protection. If they decide that he is not fit to plead, then the court orders that he be detained until such time as he would be fit to plead. It is a jury that decides nonetheless.
If the Special Criminal Court—not just the one in existence but even a military tribunal under this legislation —can now do what no other court in this land can do and have never been able to do, I ask the Minister what is going to happen if, hopefully at some stage, that court is disbanded. The person has been found by that court, not by a jury, to be unfit to plead and then he is held by order of the court. Could the Minister tell us in his reply what happens that person if the Special Criminal Court is disbanded within 12 months? Who will have the authority then? Under whose authority is he being held? Up to this it will be a jury who have decided it. They are not relating to his offence, they are relating to his capacity to plead to an offence. I will go so far as to say that they should be the ones who will decide when he is fit to come back before the court again to plead or not to plead as the case may be. The Minister might explain that in his reply.
Similarly, in the case of a person in respect of whom in the course of his trial it may appear he may not be fit to plead, the issue is tried, as the Minister has mentioned, by a jury. In this case if it were to happen before the Special Criminal Court or any Special Court it will be tried and determined by them. What is to happen to that person again in the event of those courts being disbanded? Who is going to deal with him? If it is at the moment a court that determines on the jury's verdict that this person should be detained until he is fit to plead and then the matter comes back before that court, who is going to deal with it in these circumstances if the court is being disbanded? We all hope we will reach that day. It is for us to determine—the common action against the kind of terrorism that made the Special Criminal Court necessary. But if we do not some time soon reach that day, then these courts could continue for quite a while. If they do not and are disbanded as we would hope, what is to happen to these people who have been so found unfit to plead by that Special Court? I would like the Minister to explain that.
I would also like him to explain the situation in the event of the normal decision of a person being found guilty but insane. That person is at the moment held at the pleasure of the Government. I suggest to the Minister in the first instance that it is leaving it open again to the special tribunals which were established for a limited, specific purpose, to find a person guilty but insane when up to this time only a jury could make such a verdict in respect of any accused person. The reason for all of this is a long-established principle that, irrespective of the ingredients of an offence with which a person is charged or how heinous or otherwise the offence might be, the only people who could determine his sanity, either before trial, which relates to his capacity to plead at that moment, or who can determine whether or not when he did the deed he was sufficiently aware of the consequences of his act to have a criminal liability have always been and should always be a jury. Under this "purely technical" Bill that is not going to be the case any more.
We are now in a position that, in fact, a special criminal court, or a special tribunal will be put in a position superior to the ordinary courts. The High Court, in its normal jurisdiction, and the Central Criminal Court, do not have this authority. The Special Criminal Court, if this Bill is passed, will have this authority and so also will a special tribunal.
I suspect that the Minister did not think that the Bill was not all that technical because one can find some tell-tale admissions that the Bill was a little more than technical in the Minister's speech. It is interesting to note that the provisions I have referred to are not being extended to the District Court as the other alternative verdicts are. Dealing with this matter the Minister, as reported at column 997 of the Official Report, 6th April, 1976 said:
But subsection (3) ensures that the powers under the Acts mentioned shall not be exercisable by the District Court.
Every other power in the Bill is being given to the District Court but why not the one I have dealt with?
In the District Court the issue of the sanity of the accused does not arise in practice—even in the higher courts it rarely arises except in cases of murder—and it would not, in the Government's opinion, be appropriate to include in the Bill a provision that would, in theory, give the District Court so great a power as that exercisable by the higher courts under the two Acts mentioned, involving as it does the possibility that the accused will be detained indefinitely in the State mental hospital.
The Minister recognises that this is a very significant power. It gives to any tribunal significant authority over the freedom, because that is what is involved, of any person appearing before it. The Minister has said that he does not think it would be appropriate to give that power to the District Court, being, I suppose, a court of summary jurisdiction, "involving as it does the possibility that the accused will be detained indefinitely in a State mental hospital". That is hardly just purely technical.
The way this Bill has been presented is sad and is cause for some disquiet. If the Minister can see that concern in respect of the District Court can he not see that a similar concern should exist in respect of special tribunals, not just the Special Criminal Court but any other special tribunal that might be established under the Offences Against the State Act? Such a tribunal may not have any people of judicial qualification at all. It is fine if we are talking of Ireland of today but it should be remembered that the powers that were abused in any State where an authoritarian Government were in power were powers that had been established in more democratic times but which were used to their advantage.
For some time over the last three years we have been listening to the high emotional appeals of the Government on law and order. They would do better to talk about peace and order, not forgetting that our Garda force are known as the Garda Síochána, the guardians of peace, not of law and order. This law and order thing which has been used by many other governments with terrible consequences, has been trotted out here very often and it is the justification, in the public mind, for the need to go further and further each time. Those who question can be presented as people who are against the fundamental democracy or security of our State. We discharge our responsibilities here within the authority which the framework of the law is going to give to future generations and institutions. I have never seen a Bill that has the effrontery of this little Bill. It has been described as a "small technical little Bill" although it could have terrible consequences in the future.
The people who are languishing in criminal hospitals in many countries have been put through the due process of law in those states. Most of them are there for nothing other than the fact that they are living under the type of administration that holds they are insane. We read about such cases very often and we are pained by this. People who may have done nothing more than express their opposition to the regime, have questioned the regime, if they are to be found guilty cannot be found guilty for questioning the regime but they have been made to suffer long terms of imprisonment or detention, pending the pleasure of the state, for insanity.
On the last occasion the Minister, when this point was mentioned, replied that such states do not have habeas corpus. Habeas corpus is on the basis that one questions the facts on which a person is being held, as to whether or not it is in accordance with the law. We enjoy the fresh air of freedom at present here but if we keep eating away little by little—this is no small bite; this Bill is a big chunk—we will do great damage. Taking it in conjunction with a Bill that is at present before the Supreme Court we find that the pattern of legislation introduced by the Government is cause for concern. It is ironic that the Minister who seemed to be such a fierce defender of these fundamental liberties has now introduced, under the guise of a purely technical Bill, a Bill which could have such far reaching consequences.
So far Deputy Esmonde is the only Member from the Government side to speak on this Bill and that is significant. It is significant that when this type of Bill comes before this House, the Minister, plus one, speaks on the Bill. On one occasion Deputy Dr. O'Connell opposed the Minister, except with his vote. I do not think there will be a flood from the Government side to support the Bill. Reading over Deputy Esmonde's vindication of this Bill one finds some interesting phrases. Deputy Esmonde, a lawyer of some considerable experience, must know that this is a very definite departure. To justify this power being given to the Special Criminal Court to determine a person's sanity he called the Special Criminal Court a "mini-jury of judges". Did anybody ever hear such a description of a special tribunal from a lawyer? They are no such thing and were not intended to be. They were appointed specifically as a special court because our ordinary courts could not function under the Offences Against the State legislation and because it was found that juries could be intimidated. Judges, whether we liked it or not at the time, were the ones appointed under the legislation not as a "mini-jury of judges" but as a special tribunal of judges.
Deputy Esmonde is trying to convey the impression that if a jury normally have this function why should not this mini-jury of judges have it. A judge's function in these matters can never be that of a jury or mini-jury. Whatever about a mini-jury of judges it is rather frightening to think of a mini-jury of military officers discharging some of these functions. I have nothing against military juries when required, but if they are ever established again their powers will have been greatly extended by what has been described as a purely technical Bill.
I have given the Minister three examples that I regard as being points of major principle. Can the Minister tell me if he regards those as being points of major principle? Deputy Esmonde said also that if a court is to try the facts of a case it should have the same powers as a jury in deciding facts. By extension one of the facts he is relating this power to is as to whether or not a person is sane. Previously, no judge has had these powers and at this stage a judge should not have them either. There are scheduled offences under the Offences Against the State legislation to be referred to the Special Criminal Court under the procedure laid down in that Act. Deputy de Valera described these offences as offences of organised violence. It is fair that the Special Criminal Court should deal with those.
But whether a man is or is not sane is not a scheduled offence. It is for a jury to decide whether or not a man is sane at the time he commits an offence or at the time of his trial. That has always been the rule. It has now been referred to the Special Criminal Court for decision, as if a man's sanity or insanity were on a par with whether or not he committed some of these terrible offences which are included in the Schedule. A man's sanity or insanity is a different matter altogether. It has always been the case that the question of a man's sanity or insanity has been decided by a jury on evidence offered to them by competent medical experts. It does not demand any special examination to understand that implication and that principle. The jury comes to a decision on the basis of the evidence offered to them not the judge. That is the law now, and I see no reason for it to be changed. The Minister has not given us a reason why it should be changed.
The Minister has made no reference to the Offences Against the State legislation in introducing this Bill. The Minister knows that we know that the Special Criminal Court operates under that legislation. The Minister knows that we know that the purpose of this Bill is almost exclusively to extend the powers of the Special Criminal Court. The Minister is not fooling anybody when he introduces a Bill that has no reference to amending the Offences Against the State legislation. His introductory speech on the explanatory memorandum makes no reference to the Offences Against the State legislation, which is at the centre of what is being discussed here. Our spokesman for Justice asked was that because the Minister would find himself in a contradictory position by introducing considerable amendments to legislation which he fiercely opposed. It would be better for the Minister to overcome his sensitivity than introduce a Bill that makes no reference to the fundamental purpose of what is being done by the Government. That is reprehensible because the Minister has acknowledged that the only other question involved, that of alternative verdicts in the District Court, has never been in issue. This is the only other issue involved in this legislation. Nobody that I can ascertain has ever suggested that District Courts should have this power. It has never been an obstruction in the District Court that an alternative verdict could not be brought in when a person was charged with one offence and was found guilty of a lesser offence. It has never been suggested that this is a matter of urgency. If the Minister has had any representations in this regard I would like to hear of them. That proposal is, in my view, only a guise.
What is really being done in this Bill is to extend the powers of the Special Criminal Court beyond any power enjoyed by any existing tribunal. The Minister should have the honesty to tell us when introducing the Bill that this is what is involved instead of saying it is a purely technical matter involving no point of principle. If the Minister can give me one case of substantial persuasion from any source saying that the District Court should have had the power to bring in alternative verdicts that he is introducing in this Bill, I will hold my peace on it. None of us has ever been made aware of such representations and I am quite sure that there were none.
That is the only section of this Bill which does not deal with the Offences Against the State Act. This Bill deals with the Offences Against the State Act and the tribunals that can be established under that Act. It deals with the extension of the powers of those tribunals beyond what the courts at the moment enjoy. It is a matter far from being technical. It is a matter of the most fundamental principle. The Minister unfortunately cannot withdraw the phrases contained in his first two sentences. As long as they remain on the record they will take away a little of the credit and respect which many feel towards the Minister. That kind of statement will not stand very much to his credit.
The office that the Minister holds is a very serious and responsible one which will test the determination and character of any man. There are problems in ensuring the security of the State. The Minister has our full support in that. I know the Minister is under heavy pressures but the pressure should never be such as to force the Minister to bring something in under the guise of something other than what it essentially is.
In relation to insanity there is a view that it generally arises in relation to murder cases at the moment. There is a view that where a person is found guilty but insane, the verdict should not be "guilty but insane" but should be more or less like what they have in Scotland—facts proved but not guilty because of insanity— because of the contradiction in terms between being guilty and insane. It is a contradiction in terms to say that a person is guilty but insane. Therefore, it would appear to be more correct to have the verdict: facts proved but not guilty because of insanity.
In introducing legislation which the Minister describes as being fairly technical I would have expected him to have taken the opportunity of this occasion to amend that position. There are many people who have been found "guilty but insane" but who were not guilty in any sense of that word on the basis of the medical evidence before the court, people who committed a deed for which they had no criminal responsibility. If the Minister had been interested in introducing progressive legislation one would have expected him to have made provision for the more proper verdict of "facts proved but not guilty because of insanity" a verdict which would exonerate the accused from the criminal responsibility of the act he committed. A man can hardly be guilty of committing a crime if he does not understand the nature of what he is doing and does not have the criminal intent to carry out the act. This Bill gives us an opportunity to review legislation in this whole area.
When he was dealing so freely with this Bill the Minister might also have considered the consequences that result from the Lunatics (Ireland) Act and the Trial of Lunatics Act in order to clarify now the three stages involved in a person coming before the court but who is held by a jury to be unfit to plead. If that person comes back to court in, say, two years' time, it is for the jury alone to decide whether he is unfit to plead. Consequently it should be only for a jury to decide whether a person is fit to plead. The Minister would be only consistent in introducing such a provision. However, if there is to be no jury to make the determination one way or another, it is obvious that there is no need to have determination by a jury in the second instance.
In the type of case we are considering there should always be a jury who would give their verdict on the basis of the medical evidence before them, remembering that they are not trying the nature and extent of the charge concerned but are trying merely the capacity of the accused to face the charge—an entirely different matter. Similarly, if the question arose during the course of a trial, the person's capacity to return for trial a year or two later should be determined by a jury. That is another aspect of the matter that the Minister might have considered in preparing the legislation. There are some people who, because they were found guilty but insane are detained at the pleasure of the State. In such cases, too, there should be determination at some stage following the trial as to whether the person was then fit to be readmitted to society. It is not the intention of the law to punish such a person but he is committed because of being found unsuitable mentally to take his place in society.
Far from wishing to cut down on the rights involved in such cases I have concentrated exclusively on the issues of insanity because the consequences of the legislation in this area can be very far reaching. The Minister should be protecting the people concerned. I do not think for a moment that the Minister would misrepresent what I am saying but lest there be misrepresentation from anywhere, let me make it clear that I am not making any imputation in so far as the Special Criminal Court is concerned, either as constituted presently or at any time in the past; but I am saying that if no other person has this right of determination in the cases we are discussing, this court should not have that determination either. No judge has this power at present and I cannot see any reason for the Minister making provision for such power in this Bill. I see a real danger in all this, perhaps not now—although I am not convinced that there is no immediate danger involved—but I fear for the future because I do not know what the future holds and daily I see an increasing rate of disturbing signs under the guise of our determination to defend law and order. I accept that that is a real determination but what is being done goes a little beyond what is necessary.
