Before moving the Adjournment of the debate — I had been speaking immediately after Deputy Woods — and at the beginning of my contribution I relied on my memory in referring to the Criminal Law (Jurisdiction) Act, 1976 which Deputy Woods was holding up to high praise here as being an adequate mechanism for joint suppression of terrorism. He said it had enjoyed the support of all sides and was an obviously fair system. My recollection was correct; that legislation was bitterly opposed by his party in 1975. The Second Stage was passed by the narrow margin of 69 votes to 67. Deputy Lynch led the Opposition to it as Leader of Fianna Fáil. He wanted the Dáil to decline to give a Second Reading to a Bill which Deputy Woods is praising on the basis that it is good enough for the suppression of terrorism and makes the measure before the House redundant. Deputy Lynch's objection was on the grounds, as he put it, that the Bill did not contain a provision for an all-Ireland court, was unworkable and inconsistent with Ireland's obligations under the European Convention on Human Rights and, if you do not mind, was repugant to the Constitution in that it contravened Articles 3 and 38. That information can be found at column 1706, Volume 285 of the Official Report of 20 November 1975.
I do not want to make a great point of it because it could have been a slip of Deputy Woods's recollection, but that was an acrimonious debate. I was the Taoiseach's Parliamentary Secretary and Government Whip at the time. I participated in the debate, out of as well as in order. The debate descended to the point when words like "West Briton", "Redmondite" and so on were flung around. Ostensibly, it was being conducted by the then Opposition, the present Opposition, on the basis that they had no sympathy with violence — we were inclined to accept it — and they had this and that nit to pick on the Bill. In other words, they wanted on the one hand to be able to say they were against violence as much as we but on the other hand they wanted to keep their place in the continuous relay of the race, running themselves at a certain remove from the lads. They put all the obstacles they could in the way of the Government, but 11 years later that Bill has got the plaudits of Deputy Woods because there is another Bill on which he can take the same attitude.
We are all against terrorism and I unreservedly accept that Deputy Woods means that, but just the same the tradition to which he belongs requires him to pick every nit he can find and every hole he can find over and above that which the duty of an Opposition spokesman requires. If he and his party were half as eloquent in and out of season in condemning violence and trying to give a lead to people to dissociate themselves, even emotionally, from people who commit violence and who tout for violence as they are in picking holes in the Government's flesh and blood in their efforts to do something about it, that party in general would be more impressive.
Before the Adjournment I told the legal story of extradition in cases of political offences and I told the House that the Supreme Court in a number of cases in the eighties cut the Gordian knot of the so-called obstacle in international law for extradition for political offences. Effectively, the court said:
Whether international law contains a general principle which forbids a State to extradite people charged with politically motivated offences or not there are certain offences of so barbarous a character, so cruel and inhuman, that they are not entitled to the dignity of such a description. They are not entitled to the association which the word ‘political' would give them. So whatever international law would say about political offences in the context of extradition, this offence will not get the benefit of it because it is too low to be called a political offence in any defensible understanding of the word.
It is not the first time in living memory that the Supreme Court has been left to do things which the legislature had left undone. The court took that bull by the horns, just as in the seventies it had to do in Mrs. McGee's case in regard to contraception what this House had been too holy to do earlier and remains too holy to do in this decade.
I recognise the court's argument and sympathise with it — I have an instinctive feeling for it as others have — but as I said before the Adjournment, I cannot believe it is a satisfactory position in the long run, legally speaking, because sooner or later the court will be up against and faced squarely with the problem of constructing a statutory definition of the concept of a legal offence. Parliament will not be fair and will not make sense unless it inserts some motive or some intention behind the offence.
You cannot necessarily conclude anything with certainty about the motive for a particular act of violence even though the circumstantial evidence might be compelling. If a bomb is put in the boot of a car and there is an anonymous telephone call to a police station, and the district has to be cleared and if before it is cleared the bomb goes off and murders unfortunate policemen, the evidence is compelling or as good as compelling that there was some kind of twisted political motive behind the offence. But in the case of a particular defendant who denies the offence and whom the law does not require to say anything about it, how can we fix on that defendant any conclusion about this state of mind or the motivation behind the offence? In the first place, he has not been convicted of committing the offence by definition because his extradition is sought into another jurisdiction where he can be put on trial. That person has not even been put on trial and the sheer physical authorship of the offence has not been brought home to him. Until it is, and even then until he perhaps says something in defence of himself by reference to his motives, one cannot with certainty say that it is a politically motivated offence.
I say with respect, as one must do when offering any critique of a judgment of a court, that I think in the long run that it will be an unsatisfactory situation for the State to have to reply on. Sooner or later the court will come up against the problem of how to observe objectively a set of facts, a bomb exploding or somebody found with his body riddled with bullets, and have to say that is a political offence. How can that be done unless one knows something of the state of mind which inspired it, and how can one know that until one has got to know the person whom one has succeeded in convicting of the offence?
Needless to say, that difficulty is not peculiar to us. It can operate anywhere. Therefore, the only way to deal with this sort of thing is to take a short cut, to characterise certain categories of offence which typically tend to be politically motivated, but not to characterise whole categories of offences as ones which are automatically excluded from the political offence category for extradition purposes. I do not think there is any other way to do it. There may be one case in ten or in 100 in which we could extradite somebody wrongly or in which we will fail to extradite somebody who should been extradited, but the problem about motivation is insoluble unless the person who has been arrested admits the offence and says: "Yes, but I was a member of the IRA, or the UDA". I do not think it can be done in any other way. A person who is arrested may say: "Yes, it was I who shot so and so, who put a bomb in this or that place, but I believe in liberating the six north-eastern counties by force, that has been a political tenet of mine all my life and was at the time I committed the offence and, therefore, I come under the defence of the political offence umbrella". That, of course, might enable one to come to a conclusion about the motive behind the offence. It puts the accused person in the position that he has admitted the offence. In other words, he has owned up in order to benefit from the political offence exemption. One has to forego one's chance of defending oneself against the substance of the charge by admitting it. Needless to say, not many people are in that category, but one of the persons in those eighties cases was in that category and owned up and gave a political motive as the explanation. In the long run there probably is no other satisfactory way to deal with this thing than not to bother about the motivation by selecting categories of offence in which one can assume with a fair degree of probability — we are all fallible — certain things about the motives behind the committing of the offence. These would be deeds of an intolerably violent type and we could simply exclude them from the benefit of the political offence description. That is what the Minister has sought to do, and even if there were no such thing as the Anglo-Irish Agreement, the Hillsborough Accord, we could hold up our heads and fairly say that we were willing to cooperate and go along with other western European democracies in taking this line. Even if there never had been an Anglo-Irish Agreement, even if we had no special problem in the North, I think this is a defensible and reasonable way to go about the suppression of terrorism which is a notoriously and internationally practised evil. In general I support the measure.
There is of course another reason why I think that we ought to get away from the idea that in the case of an offence that was politically motivated the perpetrator should be entitled to some privilege, the privilege of non-extradition, which other offenders do not have. I simply cannot see that people who are charged with acts of inhuman savagery, cold blooded butchery, should enjoy a privilege which a common or garden embezzler, or a common or garden forger, or common or garden defrauder of his employer or someone he is doing business with, does not enjoy. I cannot see the justice of the system — and I believe the ordinary layman would see the point too — whereby if I embezzle in the North £1,000 from my employer, or if I forge some kind of an instrument in the North whereby I achieve some unfair or illegal advantage, or if I defraud somebody that I am in a business partnership with, I can be sent back over the Border but if I put a bomb in a supermarket or set fire to a disco, or if I go into a public house and rake it with machine gun fire, I am somehow entitled to a privilege which the embezzler or the forger does not have. I cannot see why my deed should be vested with the dignity of a political offence which privileges me in some way and may even lead to me not being prosecuted at all.
That is a fairly general reflection but I want to make a few more specific ones relating to the Constitution. One of them has been made in the Supreme Court in the most recent of these cases, when it said that it could not admit or allow the political offence privilege, whatever it is, to operate to the benefit of somebody who, by his own avowal, was dedicated to the overthrow of this Constitution by force and the objects of whose own organisation included the overthrow of this State by force. For a State to accord a privilege of this kind to somebody, the reason for whose claim of privilege is that he intends to subvert and destroy the whole State here, would be a piece of lunatic Quixotery. I will go further than the court has gone and say that to accord a privilege of this kind, over and above the sort of treatment which an ordinary or common or garden embezzler or someone accused of an indecent assault or something of that kind would have, to somebody who has murdered innocent people conflicts, and plainly conflicts, with several of the values which are explicitly established and guaranteed in our Constitution. One does not have to go any further than the preamble to the Constitution in which the Irish people are made to speak with their own voice:
We, the people of Éire,
This is what the people of Ireland say:
seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured,
How are we assuring the dignity and freedom of an individual if such an individual, on our own territory, according to Article 2 of this very same document, can with impunity, because of the operation of a rule like this, be blasted to pieces, his children and wife left sorrowing and the country demoralised and shamed by the photographs of heartbroken children in the paper every day? Is that assuring the dignity and freedom of the individual? How much will we give for a legal privilege which privileges someone accused of a deed like that far above the common or garden customer who embezzles or defrauds? The Irish people, out of their mouth, commit themselves to protecting the dignity and the freedom of the individual, and if they do not make sure that anything in the nature of a privilege is denied to people who commit the worst of crimes, they have made a joke of their own Constitution. Article 40 deals with personal rights. Article 40.3.1 declares that the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. Article 40.2 provides that:
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
Every citizen means virtually everyone in this island, as I was saying before lunch. Where is the vindication there if somebody accused of murdering not just one but a whole rake of people in one foul incident is privileged in a way that somebody whose crimes have been non-violent is not privileged? Where is the vindication of life there which is the primary personal right? Where is the righting of the injustice there?
I say all that even though I began by saying something which may seem inconsistent with the amount of feeling I have worked myself into, namely that I, like everybody else, essentially would have cold feet about not dealing with an offender myself and handing him into the hands of somebody else to deal with. I would far prefer we had a system of an all-Ireland jurisdiction, or if the system we created in 1976 worked well. But since it is not working and since we are open to the destructive reproach, quite unjustly and maliciously, that we afford a bolthole and a refuge for murderers, we have no option but to go some distance — and we are going quite a long distance as Deputy Woods is right to point out — to try to disarm those suspicions. We have a respectable vehicle for doing so by reason of the fact that the European Convention, springing from the Council of Europe of which we were one of the originating members, has found it possible to get this convention on its feet supported by the majority of civilised western European countries. It is disagreeable and I would far sooner we did not have to do this. I would far sooner we had a system which saved us this bitter necessity. But I do not see that we have, and so we must do it.
I have two reservations to make about it. I do not mean to make difficulties for the Minister, but having said so much I do not want to sit down without adding a couple of words of reservation about this measure. While I understand the Minister's point that the requirement of a prima facie case is not normal in European extradition arrangements, nevertheless there is a certain substance in the point of view which Deputy Woods articulated, and I had it in mind to say something of the kind myself. I can see the objections from the police point of view in being asked to present in every particular case a complete dossier of their own proofs to a foreign jurisdiction. I can see the objections of that kind and there may be other objections that I have not thought of but I do think the Minister would do well to look at this Bill to see whether he could go some distance towards meeting Deputy Woods' point and mine, namely, that we have not had a uniformly good experience with Northern Ireland courts and police procedures. I will not be any more inflammatory that that. I think we are entitled, before we operate this Act, to have as concrete assurances as the Minister can get — whether built into the Act or given to him on the side, but in some form that he can regard as adequate — that when the extradition of someone is sought from here it will be on grounds which will substantiate the successful bringing of a charge. There were two cases here in the last few years — and Deputy Woods mentioned one in particular — in which people, on warrants issued in the North, were brought before the courts here, sent back by the Supreme Court by the operation of the principle which I have just tried to explain, and then, subsequently, and in one of these cases after a very long delay, were acquitted by the Diplock court in Belfast because of the indequacy of evidence. You cannot expect a police authority to be able to guarantee that a certain volume of evidence will suffice for a conviction. No police force in the world can do that, but evidence which is no better evidence than what a police force expect to be able to extract by way of confession from a extradited person once they have him in their grip is not evidence on which I would willingly consent to or consent to at all, to extradite someone from this jurisdiction.
A point that Deputy Woods did not make is that one of these cases was that of an arrest which was effected by the Garda here only after a bitter gun battle in which, thank God, there were no fatalities but there might easily have been. It is not good enough to expect our police to expose themselves to death, which they do bravely and unhesitatingly and have done for 64 years, in order to apprehend someone to send him over the Border to a jurisdiction in which there is not enough evidence on hand to make a case against him stand up even before a one judge court, let alone a jury court.
I do not want to be inflammatory about it. I know the Minister has the problem of trying to reconcile his instincts, which I am sure are much the same as my own in this matter, with his praiseworthy efforts, which I support, to put some substance into the Anglo-Irish Agreement, but there will be an expression of dissatisfaction, of warning, of admonition from this Government if this Bill becomes law that we will not tolerate the operation of this system in such a way that the police here are exposed to physical risk in making an arrest in order to send someone over the Border who, when he gets there, cannot be convicted even in a single judge court. Needless to say, a similar thing applies if there could be any question of falling below acceptable standards of propriety in police behaviour in the North or in the judicial procedures there. I appreciate there have been visible improvements in these areas; they are too delicate for me to wish to tread with a firm step on, and I will say no more about them than that.
While what we are doing in this Bill is to delay the coming into force of the law until 1 June and subject it to the possibilities of resolutions in the Dáil and Seanad, the Minister might hint in whatever way the Government think diplomatically possible to the authorities on the far side of the Border that the Oireachtas which passed this Bill can just as easily suspend it again. While I have said what I have said about the need for a measure of this kind and how I support it, I would not support it if it turned out that people were being sent over the Border and were not treated there as well as they would be treated whether by police or by courts in our own jurisdiction. I do not want to go into more detail about that. I do not want to say anything wounding or offensive, and I have no reason or knowledge which would make me apprehend that it would be so. The House in passing this measure should emphasise that it reserves to itself the right to review how the thing works and that the same authority by which the Bill may now be made into law may just as easily unmake it in the future if the standards which we are entitled to demand and expect are not met.
