I move: "That the Bill be now read a Second Time."
An explanatory memorandum has been circulated with the Bill and I hope that it provides sufficient detail to be of assistance to Deputies. The Bill which has 16 sections, proposes to make a number of amendments in the criminal law. Some of those amendments relate directly or indirectly to the Offences Against the State Acts but even those that are not in terms related to those Acts are designed primarily to strengthen the law against those who actively participate in subversive activities and those who assist them.
It will be clear, of course, that some of these provisions could, in practice as well as in theory, apply to certain crimes unconnected with subversive activity—to take one obvious example, the provisions designed to enable a road block to be effectively operated could be put into effect in the aftermath of a bank robbery and of course a bank robbery might or might not be the work of a subversive group. However, the provisions that do not directly relate to the Offences Against the State Acts all deal with crimes or situations which are likely in practice to be frequently associated with subversive activities and I have thought it right to include in the Bill any desirable and justifiable amendment that falls into that category. On the other hand, I have left for another day the introduction of any amendment, however desirable in itself it might be, that seemed to be likely in practice to be related as much to the general run of crime as to subversive activities.
Section 1 of the Bill is the definitions section. The terms "governor" and "prison officer" are defined in the section to include Army personnel in any military establishment to which prisoners are transferred to military custody under the Prisons Act, 1972.
Section 2 provides for increased maximum penalties for a number of offences under the Offences Against the State Act, 1939. Details are given in the table in paragraph 3 of the explanatory memorandum. The Government are satisfied that the maximum penalties in the 1939 Act are totally inadequate in present circumstances. This applies not only to offences that are the subject of frequent prosecutions such as membership of an unlawful organisation but also to offences such as the obstruction by any form of intimidation of the carrying on of the Government of the State which are contrary to section 7 of the 1939 Act but some of which appear to be difficult in practice to prove so that prosecutions for them are infrequent. Infrequent though prosecutions for them may be, these are very serious offences and the maximum penalty for them should reflect that fact.
In providing for this, it is also desirable, as a matter of principle, to retain an appropriate internal relationship between the various offences specified in the 1939 Act. Accordingly, if a maximum penalty of 20 years is provided, as the Bill proposes, for an offence against section 7 of the 1939 Act—an offence referred to in the side note to the section as "obstruction of Government"—it would be inappropriate to have a lower maximum penalty for an offence under section 6 —an offence described in the side note as "usurpation of functions of Government", even though there have been few if any prosecutions for offences against section 6. It would be inappropriate because an offence under section 6 could not in principle be regarded as of a lesser order of importance than an offence under section 7.
I have mentioned the offence of membership of an unlawful organisation, the maximum penalty for which is two years, a maximum which the Bill proposes to raise to seven years. I am aware that the point has been made more than once in recent times that such a proposal is irrelevant in view of the fact that the courts seldom if ever impose the present maximum. I mention this point because it is one that calls for an answer. I am satisfied that there is an answer and a good one and it is this. The courts, when deciding on a penalty, have to take account of the fact that a particular maximum is prescribed by law and it is a fair assumption that they look on that maximum as something that ought to be reserved for the exceptional circumstances—what one might describe as the worst cases as shown by the evidence before them. If, however, the Oireachtas decides to increase that maximum substantially, the courts are then discharging their functions in a new framework and they can, and I have no doubt will, take account not only of the wider discretion allowed by the new law but also of the clear intentions of the Oireachtas as to the inherent seriousness of the crime.
Section 3 proposes that any person who incites or invites other persons to join an unlawful organisation will be guilty of an offence carrying a maximum penalty of ten years' imprisonment. This section is aimed at those who recruit people, usually impressionable young people, into unlawful organisations. The heartbreak and suffering that have been imposed on many Irish families and the insidious methods that have been used to intice immature youngsters to engage in subversive activities make it imperative to ensure that when those responsible are brought to justice adequate penalties are available.
The proposed offence under section 3 has been criticised on the ground that the conduct in question is already punishable because of the rule that incitement to commit an offence is itself already a common law offence. It is true that there is such a common law offence. It is a misdemeanour and, as such, punishable, in theory, with unlimited fine and imprisonment, but that fact does not make the section inappropriate. To rely on the common law rule in order to deal with the kinds of conduct covered by section 3 would be a very indirect and technical method of approach. By adopting that method one would be saying in effect, (1) that under section 21 of the Offences Against the State Act a person who is a member of an unlawful organisation is guilty of an offence, (2) that the accused incited a person to become, and therefore to be, a member and (3) that the accused is therefore guilty of the common law offence of incitement.
To reply on the doctrine of incitement could no doubt be adequate and appropriate in respect of many offences; but in the present instance we are concerned with a particular evil the essence of which is recruiting for unlawful organisations and it is clearly right to deal with it by a specific provision referring to the kinds of conduct aimed at and providing the appropriate penalty. This is what section 3 seeks to do, and it is important to note three points in respect of it. The first is that the offence is not to be limited to incitement to join the organisation but will extend to incitement to help the organisation by other activities which might not be easily identifiable as specific offences so that persons could be successfully prosecuted for incitement to commit them.
The second point is that the proposed offence will apply toinviting as well as inciting. This will widen its scope; for Professor Glanville Williams in his statement of the law in his book “Criminal Law: the General Part”, 2nd edition p. 612, writes: “An inciter is one who counsels, commands or advises the commission of a crime.” By bringing in inviting the Bill will forestall any defence such as: “I didn't advise him to join—I only suggested that he might like to join if he agreed with our objects and I made clear that it was up to him to decide.” The third point is that, by providing a higher penalty for bringing other people into an unlawful organisation than for being a member, the Bill will show clearly that the Legislature regards recruiting as even more serious than membership.
Section 4 relates to the closing of buildings used for the purposes of an unlawful organisation. It proposes to amend section 25 of the 1939 Act by increasing the initial period of operation of a closing order from three to 12 months and authorising an extension for a period or periods not exceeding 12 months but so that the total period of closure shall not exceed three years.
Section 5 proposes to replace section 29 of the 1939 Act and relates to the issue of search warrants. The new section empowers a member of the Garda Síochána not below the rank of superintendent to issue a search warrant to a member of the Garda Síochána not below the rank of sergeant in respect of any place in the circumstances outlined in the section. The member authorised may be accompanied by any member of the Garda Síochána or the Defence Forces. The new section provides for the issue of a warrant in respect of any evidence —section 29 only covered documentary evidence. Moreover, section 29 provided for the issue of the warrant to a member of the Garda Síochána not below the rank of inspector but the new section enables a warrant to be issued to a member not below the rank of sergeant. This latter change is proposed because the requirement that an inspector be in charge has caused substantial difficulties especially in circumstances where it was very important that several searches be carried out simultaneously.
There could be situations where unarmed gardaí executing such search warrants might need to seek assistance from the Defence Forces and, accordingly, provision is made to authorise members of the Defence Forces to accompany and assist gardaí to carry out searches under the section. A person who obstructs or attempts to obstruct a search or who refuses to give his name and address or gives a false or misleading name or address will be liable on conviction on indictment to five years' imprisonment.
Section 6 relates to escape from lawful custody. Subsection (1) proposes to make it an offence to aid a person to escape from lawful custody or to harbour such person after escape. A person on conviction on indictment of an offence under this subsection may be sentenced to ten years' imprisonment. Subsection (2) makes it unlawful to convey articles into or out of a prison contrary to any rules or regulations in force in relation to a prison and provides a penalty of up to five years' imprisonment. Subsection (3) empowers a prison officer in the interests of security to search any person while he is in prison or in the custody of the governor of a prison. The prison rules provide for such searching and the object of the section is to provide for it by statute.
The explanatory memorandum points out that the section—that is, section 6—does not deal with escape itself, but only aiding or harbouring. Escaping is a common law offence— as indeed are aiding and harbouring, at all events where aiding and harbouring are related to felonies—but escaping, of itself and unrelated to the use of force, is of no special relevance to subversive activities and any question of amending the law in regard to it will have to await another Bill.
As regards aiding and harbouring, the proposed penalty, strange though it may seem, is in theory a reduction since, by reson of general provisions or principles of the common law, such offences could carry life imprisonment at the moment though I must qualify that by saying that it is possible that some old statutory provisions might be interpreted as having modified the common law rule in some respects. Be that as it may, I need hardly say that it is not my intention in proposing this new section to seek to diminish the seriousness of these offences but quite the contrary. I am in no doubt that if a case were to come before the courts they would regard the maximum penalty of life imprisonment for such an offence as an anachronism that could not be regarded as a useful guideline. By providing for a statutory offence with a realistic maximum penalty, the Oireachtas will be providing an up-to-date guideline reflecting in a realistic and credible way the seriousness of these offences.
Section 7 proposes to give power to the Garda in relation to persons in custody under section 30 of the 1939 Act or near the Emergency Powers Act, 1976, to do all or any of the things that are specified at subsection (1). The Garda already have some of these powers in relation to persons taken into custody under the 1939 Act and the additional powers are being proposed so as to enable palm prints to be taken and clothing and so on to be examined scientifically. Obstruction of the Garda when exercising powers under this section will be an offence carrying a maximum penalty of five years' imprisonment.
Section 8 relates to situations in which the Garda require vehicles to halt, as for example, at road check points when they suspect that offences of the kind specified in the section have been, are being or are about to be committed. The Garda at present have no general power of search of vehicles without warrant. They already have power under section 109 of the Road Traffic Act, 1961, to require a driver to stop a vehicle. The Bill proposes to give them powers of search whenever they are investigating any of the offences specified, which by the way, with a few exceptions, are all, under existing law, offences in respect of which the gardaí have powers of arrest without warrant. If either before or after the search the gardaí suspect that any occupant of the vehicle is concerned in an offence to which the section applies or that there is evidence of such an offence in the vehicle or on anybody in the vehicle, then, under this proposed section of the Bill, they can search all or any of those persons. The Garda are also being given power in this section of the Bill to place barriers in front of vehicles to force them to stop whenever the Garda are operating pursuant to the provisions of this section.
There is a need for these Garda powers. Many serious crimes that have been perpetrated in recent years have necessitated the mounting of widespread road check-points by the Garda, with the assistance of the Army, in an effort to apprehend the culprits. On occasions too, check-points have been mounted where the gardaí had reason to fear that some particularly serious offence would be attempted.
The public have co-operated exceptionally well on these occasions and indeed the readiness with which all but a very small minority have co-operated is, I think, evidence that the public recognises very fully that these road-blocks, inconvenient though they be, are necessary for the protection of the public and that the vast majority or people would unhesitatingly agree that it is right that the Garda should have a clear right to insist on checking a car in such circumstances.
As I have said, the exercise of these powers is being restricted to situations where the Garda are investigating offences of the kind set out in the section. It is proposed in section 15 to give the Defence Forces like powers when a specific request for their assistance is made by a Garda superintendent.
While I have said that the Garda have no general right to search cars, I would like—in case any situation in which the Garda have to mount road-blocks should arise before this Bill is enacted—to make it quite clear that this is not to be taken as meaning that the Garda are powerless against any criminal who might feel like insisting on what he regarded as his legal right to refuse to open a car boot. The fact of the matter is that public acceptance of the need for such action is so near to being unanimous that the person who refuses to co-operate is virtually asking to be treated as a suspect and, of course, when the Garda have reasonable grounds for suspicion, they have a number of powers which they can call on.
Section 9 provides a power for members of the Garda, the prison staff or the Defence Forces to seize anything found by them in the course of searches which they believe to be evidence of an offence or suspected offence. The section also provides that anything seized can be retained for a reasonable time and, if proceedings are introduced, until the conclusion of the proceedings where it is required for use in evidence. Thereafter the Police Property Act, 1897, will apply. The 1897 Act makes provision for the disposal of property that has come into the possession of the Garda in connection with a criminal charge. An application to the District Court may be made either by the Garda or by a claimant of the property and the court may make an order for its disposal. The Bill proposes that this will also be the case in relation to anything that is seized under section 9.
Section 10 of the Bill prohibits unauthorised possession by a prisoner or by a visitor to a prisoner while the visitor is in the precincts of the prison and so on, of photographs, sketches or such like of a prison, Garda station or courthouse and it provides a maximum penalty for an offence of five years imprisonment.
Section 11 provides for the offences of kidnapping, false imprisonment and hi-jacking of vehicles to be felonies and for a penalty of life imprisonment for a person guilty of kidnapping or guilty of false imprisonment.
In section 12 we are dealing with the serious problem posed by bomb hoaxes. These hoax calls are numerous. They not only cause serious inconvenience to the business and social life of the country but cause serious economic loss both directly and because they involve, in many cases, the deployment of Garda resources to investigate them. Deputies will be aware that the streets of central Dublin have had to be cordoned off and cleared on many occasions in recent times, sometimes as often as three times a day. Anyone who makes such hoax call will under the Bill's proposals be liable on conviction to go to prison for five years.
I now turn to section 13 of the Bill. The incidence of assaults by prisoners on prison officers, assaults by prisoners on other prisoners, rioting and wilful damage to prisons and prison property has been on the increase. The prisoners concerned, who are usually serving lengthy sentences, are aware that, when they are prosecuted, the courts have tended to impose sentences which are concurrent with the sentences they are already serving, with the result that the sentence really means nothing. This section of the Bill proposes that a sentence consecutive on the sentence being served be imposed in every case of this kind with the proviso that consecutive sentences passed by the District Court shall not in the aggregate exceed 12 months. As the House will appreciate, the proviso is included for one reason only, namely, as a safeguard against the risk that the provision might otherwise involve giving a greater jurisdiction to the District Court than the Constitution would permit.
Section 14, which relates to definition of "documents", is dealt with fully in the explanatory memorandum and I do not think I need go into further detail on it here.
Section 15 proposes to confer on the Defence Forces certain limited powers of arrest and search in situations where they are on duty in uniform and only in response to a request by a Garda superintendent. The members of the Defence Forces are being given exactly similar powers to the powers the Garda have —no more and no less—in relation to the offences set out in section 8 of the Bill and only those offences and only, too, when those members are operating following a request by a Garda superintendent and during the period specified in that request. The giving of these powers to the Army will enable the Garda and the Army to deploy their resources to the maximum advantage and to initiate the most rapid and effective response possible to every situation calling for action by them when investigation of any of the listed offences may so require.
The Government are conscious that the giving of these powers is a new departure but felt that in an emergency situation it is incumbent on the State to maximise its resources in tackling the emergency. It seemed, therefore, only right and proper that a large uniformed and disciplined force already in the service of the State should be utilised more fully by extending its powers to enable it actively to assist the police where and when the police find it necessary to seek its assistance rather than stand passively by as is largely the case now. Deputies will note that the primacy of the police as the law enforcement agency of the State is preserved in that the Army powers can only come into being on foot of a police requisition and then only for the period specified in such requisition. It is envisaged that, generally speaking, there will be no widespread change in the present mode of operating and that the extra powers will be utilised only to meet a special exigency and then only in relation to a particular spot at a particular time. Deputies will note, too, that the powers proposed to be conferred are strictly limited to the class of offences described in section 8.
The final section of the Bill is section 16. Subsection (1) gives the short title. Subsection (2) is a transitional provision the effect of which is that the increased penalties being provided in sections 2 and 11 of the Bill will not apply in relation to offences committed before the Bill becomes law and that section 13 (1) declaring the offences of kidnapping, false imprisonment and hi-jacking of vehicles to be felonies will not apply to such offences committed before the passing of the Bill.
There has been some controversy in regard to the total package proposed by the Government, in particular recently, in connection with section 3. Some sectors of the media are apprehensive that they will be inhibited in the practice of their profession. I invite attention again to the wording of that section which seeks to make it an offence to invite or incite people to join, support or assist unlawful organisations. I submit that no law-abiding citizen, whatever his calling in life, need fear this section. Nobody need fear it unless he sets out deliberately to act in contravention of it. His democratic rights are not impeded by it.
Rightly and happily it will never be a decision for me as Minister for Justice or for any other holder of the office to say if there has been a breach by any citizen of this section. Our democracy provides two safeguards against executive interference in this matter. Firstly, whether a prosecution should be mounted is a matter for an independent public official, the Director of Public Prosecutions, who is independent in law and in practice. The second safeguard is that a court of law will have to be satisfied beyond reasonable doubt that the action complained of constitutes a breach of the law. Our courts, too, are independent in law and in practice. If, after this process, a citizen, no matter what his calling or rank in society, is found guilty of a breach of a law, especially one designed to combat terrorism, then I can have no sympathy for him.
We are fortunate to enjoy the freedoms of a democratic society. It is the intention of the Government to preserve those freedoms. This is the fundamental responsibility of the Government. It is a responsibility which cannot be shrugged off or given less than full attention or given to any one else to discharge. Furthermore the Government, unlike their critics, other than the Opposition, are answerable to the electorate for the manner in which they discharge their responsibility. I said it in the Upper House in the debate on the motion and I say it again here: we will be quite happy to face the Irish electorate on this legislative package.
I commend the Bill to the House.