SEANAD IN COMMITTEE. - PUBLIC SAFETY (PUNISHMENT OF OFFENCES) TEMPORARY BILL, 1924—THIRD STAGE.
(1) Every person found guilty on indictment of any of the offences mentioned in Part I. of the Schedule to this Act may be sentenced to suffer penal servitude for life or such term of penal servitude as the judge may decide.
(2) Every person convicted by a court of summary jurisdiction of any of the offences mentioned in Part II. of the Schedule to this Act may be sentenced to suffer imprisonment with or without hard labour for a term not exceeding twelve months, and may in addition be sentenced to pay a fine not exceeding fifty pounds and, in default of payment of such fine within one month after conviction, to suffer imprisonment without hard labour for a further term not exceeding six months to be added to and commence on the expiration of the said previous term of imprisonment.
(3) Every person found guilty on indictment of any of the offences mentioned in Part II. of the Schedule to this Act may be sentenced,
(a) to suffer penal servitude for a term not exceeding five years and may in addition be sentenced to pay a fine not exceeding one hundred pounds and, in default of payment of such fine within one month after sentence, to suffer penal servitude for a further term not exceeding one year to be added to and commence on the expiration of the said previous term of penal servitude; or
(b) to suffer imprisonment with or without hard labour for a term not exceeding two years, and may in addition be sentenced to pay a fine not exceeding one hundred pounds, and, in default of payment of such fine within one month after sentence, to suffer imprisonment without hard labour for a further term not exceeding six months, to be added to and commence on the expiration of the first mentioned term of imprisonment.
(4) Every male person who shall be found guilty on indictment of the offence of robbery under arms as defined at No. 5 in Part II. of the Schedule to this Act, or of the offence of arson as defined at No. 6 in Part II. of the said Schedule shall (unless the Court is satisfied that there are special circumstances in the case which constitute a mitigation of the offence, or is of opinion that, owing to the state of health or advanced age of such person, corporal punishment could not be inflicted on him without permanent injury to his health), in addition to the punishment prescribed in the foregoing sub-sections, be sentenced to be once privately whipped subject to the following provisions:—
(a) in the case of a person whose age does not exceed eighteen years, the number of strokes at such whipping shall not exceed twenty and the instrument used shall be a birch rod;
(b) in the case of any other person, the number of strokes at such whipping shall not exceed twenty-five;
(c) in each case the court in its sentence shall specify the number of strokes to be inflicted and the instrument to be used;
(d) such whipping shall not take place after the expiration of six months from the passing of the sentence;
(e) such whipping to be inflicted on any person sentenced to penal servitude shall be inflicted on him before he is removed to a convict prison with a view to his undergoing his sentence of penal servitude.
(5) Where a person is, after the passing of this Act, convicted of an offence mentioned in Part II. of the Schedule to this Act which is punishable under any Act for the time being in force by any greater punishment than is authorised by this Section, such person may be sentenced to suffer any punishment authorised by this Section or any punishment authorised by such Act.
(6) The jurisdiction of a court of summary jurisdiction in respect of any of the offences mentioned in Part II. of the Schedule to this Act shall not be ousted by reason of the title to any corporeal or incorporeal hereditaments or any lands or premises being drawn into question.
(7) This Section shall not apply to any offence committed before the passing of the Public Safety (Emergency Powers) Act, 1923 (No. 28 of 1923).
I beg to move the deletion of Sub-section (2). The sub-section seems to me to be in conflict with the Constitution on a most important issue, the right of an accused person to trial by jury. Article 72 of the Constitution says:—
"No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a court of summary jurisdiction."
From the human or legal standpoint a minor offence, I take it, is one for which, on conviction, a minor punishment is liable to be inflicted. If a serious punishment is inflicted, or liable to be inflicted, the offence obviously ceases to be a minor one and becomes at once a major or serious offence. Under Sub-section (2) the whole or any of the offences mentioned in Part II. of the Schedule come within the category of minor offences triable by a court of summary jurisdiction. Is it seriously suggested that robbery under arms and arson are minor offences? Robbery under arms was always an indictable offence, and I think arson also was. If these offences are not minor offences then I respectfully submit that Sub-section (2) is ultra vires, having regard to Article 72 of the Constitution. The Minister will probably state that it is only in cases in which there are extenuating circumstances that either of these charges will be dealt with before a court of summary jurisdiction. That may be true. There may be instances in which offences of this kind may be of a minor character. But a District Justice is empowered under this sub-section to impose a penalty of 12 months' imprisonment with hard labour, with a further additional six months' imprisonment with hard labour.
Surely offences meriting such savage punishment could not be termed minor offences, unless words are to lose their meaning? By the common law every offence is triable by a jury and the right to have offences tried by summary jurisdiction is always created by express statutory enactment. Several of the offences in the Schedule were never made triable summarily by law and therefore they do not conform to Article 72 of the Constitution. If there is power to make all the offences in the Schedule minor offences, then I take it that it should be done in express terms. If that is the intention of the sub-section it should be so stated, and an amendment of some kind should be inserted boldly stating that the whole of the offences in this part of the Schedule are triable before a court of summary jurisdiction. Will the Government do this? If they do, where does the right of trial by jury go to? Does not Article 72 become merely a jumble of words without any meaning? To pursue this principle to its logical conclusion, in certain circumstances the offence of murder might by decree be made a minor offence triable by a court of summary jurisdiction. There are offences in the Schedule which undoubtedly might be tried summarily. If that is the case, surely these can be dealt with under the common law and we should not be driven to violating the Constitution, or at least seriously encroaching upon it, for the mere sake of dealing with special circumstances that may be said to exist. An honest desire to preserve order and to protect life and property should not in itself be sufficient to induce the Oireachtas to make scrap-paper of that Charter which is the sheet-anchor of our liberty. The Government will undoubtedly say that the end justifies the means in this particular case, but they would do well to beware of pursuing that doctrine too far. It is the pursuit of that doctrine which has brought upon this country more tears and suffering than any external oppression could have brought upon it. I earnestly commend to the Government very serious consideration of the position before they insist upon retaining the sub-section in the Bill.
When this Bill was receiving the Second Reading here it was pointed out that the offences set out in the Schedule would be major or minor offences according to the attendant circumstances, and that it was a question of degree. Senator O'Farrell quoted two offences in particular, robbery under arms, and arson, and asked if, by any stretch of the imagination, they could be considered minor offences. Reading the definitions one is inclined to say that they could be minor offences. The definition of arson is:—
"Unlawfully setting fire or attempting to set fire to any house, factory, barn, haggard, workshop, or other building, or any agricultural property, food supplies for man or beast, or any other property of any nature or kind, movable or immovable, public or private, including standing trees and crops."
Going in on a man's land and setting fire to furze is arson within the meaning of the definition set out in Part 2 of the Schedule to this Bill. Robbery under arms is defined as "robbing, or attempting to rob, while armed with any offensive or apparently offensive weapon or instrument." There again there can be a question of degree. If a man with an ash plant threatened another man that he would use it on him if he did not give him money or property of some kind, in the strict interpretation of the definition that is robbery under arms. I wonder would Senator O'Farrell say that was a major offence which should be tried by indictment before a jury. I did consult with the Attorney-General on the arguments that were pressed here on the last occasion when, I regret to say, I was not able to be present myself, and I would be prepared to insert a new Sub-section (6) to that Section as follows:—
"A Court of Summary Jurisdiction shall not have jurisdiction in respect of any of the offences mentioned in Part 2 of the Schedule of this Act unless the court is of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily."
The Senator was rather over-emphatic on the point that serious penalties ought not to be imposed after summary trial. Speaking subject to correction I think that under the Companies' Act a fine as large as £500 can be imposed on summary conviction. Certainly with regard to certain offences against the Revenue very heavy penalties can be imposed on summary conviction. No matter how carefully you try to word your definitions you will find that within any one of the thirteen definitions set out in Part 2 of the Schedule there can be very widely different degrees of guilt, ranging from the most serious crimes down to minor offences. Each should be taken in its own setting and in its attendant circumstances. The form of trial will depend upon whether in the view of the State it is a serious offence which should be tried by indictment before a jury, or a minor offence that might well be disposed of by a District Justice. As I say, I am prepared to meet the views that have been urged here to the extent of adding the Sub-section I have read.
Might I say in view of the question raised by Senator O'Farrell on the Second Reading of the Bill, and which seemed to me a most pertinent and important issue, that it occurred to me, in view of the fact that this Schedule contains two such serious offences—I mean offences that might be serious having regard to their circumstances—as robbery under arms, and arson, that it would be extremely difficult to justify the inclusion of those offences in cases to be disposed of summarily, having regard to Article 72 of the Constitution. I suggested to the Attorney-General that the Government would be well advised to consider whether they should not insert some amendment that would make it clear that this jurisdiction in cases of offences of this character was only to be exercised summarily where on the facts the District Justice was of the opinion that it was a minor offence. The new Sub-Section the Minister has read out for the Seanad seems to me to cover the entire ground in so far as that objection is concerned. I am only expressing my own opinion on the matter for the guidance of the Seanad. It is for Senators to say how far it satisfies them. It certainly covers, I think, the entire ground, in so far as Senator O'Farrell's objection was based on the Constitutional point.
The proposal is "To insert the new Sub-section immediately before Sub-section 6."
Would that mean that there would be an appeal from the decision of the District Court that a particular case was a minor offence?
There would be an appeal in any case. The Courts of Justice Bill provides for an appeal from any conviction by the District Judge to the Circuit Court. That may be one of the questions raised there. To be quite frank with you, I think that is a question which the Circuit Judge would hardly entertain because he might say that the Act has left this to the discretion of the District Justice, and it is for him to say whether on the facts it is a case he ought to dispose of summarily. That would not interfere with the power of the Circuit Judge to review the merits of the case and quash the conviction if he thought fit.
When Senator O'Farrell raised this issue on the Second Reading there was sympathy with him. Many Senators felt that in carrying out what they conceived to be their duty for the last twelve months they have been passing a number of Acts containing provisions of which they did not particularly approve, but which, in view of the circumstances, they allowed to pass. I took occasion once or twice to draw attention to other points in connection with other Acts. Senator O'Farrell had a good deal of sympathy in the protest he made, and he may congratulate himself now on having substantially achieved his purpose. So far as I understand the amendment of the Minister, I think it does meet the case, and it is very unlikely, in view of all the circumstances, that any District Judge will have to deal with any question summarily that appears in any way to raise any of these constitutional points. I think a case of that sort will hardly ever arise. On the other hand, it may happen that some cases brought under these various clauses may be minor offences, perhaps more or less in the nature of jokes or freaks or performances of persons not well balanced in their minds, and the object of justice might be well served by dealing with such cases summarily. I think the Seanad could satisfactorily accept the Government's amendment.
In view of the expression of opinion you have given, that there is an appeal from these sentences, I beg to withdraw the amendment with the leave of the Seanad in view of the amendment agreed to by the Minister.
Amendment, by leave, withdrawn. New Sub-section agreed to.
I move to delete sub-section 4, section 1. The sub-section says: "Every male person who shall be found on indictment of the offence of robbery under arms, as defined at No. 5 in Part 5 of the Schedule to this Act." I think that No. 5 there should be No. 6.
I think it must be an error, because it goes on to describe arson as No. 6, whereas it is No. 7. I think the two items referred to should be Nos. 6 and 7, instead of 5 and 6.
The sub-section provides that a person found guilty on indictment of certain offences shall be sentenced to be flogged. I do not think that there is any necessity to go over the ground again which we went over on the last occasion. This is the third occasion within nine months that we had this matter before us. I am perfectly satisfied that this mandatory sentence of flogging is not good for the country, not good for the people who are to inflict the punishment, and it is not good for the people who get it. I move the deletion of the sub-section because I believe it is wrong. I believe that this horrible, degrading system of flogging is a relic of barbarism, and in a civilised community it should not be inflicted on any human being. It is all very well for some Senators to say that these people deserve it. Perhaps they do, but are you going to make them better by flogging? You are going to brutalise them, and make them enemies of civilisation. When we say our daily prayers we say: "Forgive them who trespass against us," but there is not much forgiveness in making one human being stand over another and flog him. It is not going to make a good citizen of him, and it is not going to be for the benefit of anybody.
I wish to support the amendment and to remark that I hope that the expressions of sympathy with animals that were being cruelly treated, which we heard a few weeks ago, will be given effect to by votes in favour of this amendment.
I spoke on a similar amendment on the last occasion, and I do not think that it is desirable to give my reasons again, except to say that I am of the same opinion. I doubt very much the wisdom of continuing in this Bill, which is in many respects a modification of the last Bill, these provisions regarding flogging. I would ask the Minister to give us his opinion as to why the Bill necessitates that continuance at present. I rise to re-affirm my opinion and to state that I think that better reasons than those given before when we were under abnormal conditions should be given for the continuance of mandatory flogging.
I have only to say that I agree with all that has been already said. I opposed this clause in the last Bill. I do not see that it has had any good effect since. We were told it would put everything in order and that if a few people were flogged it would settle it all. I cannot see that that effect has taken place, and I still oppose flogging.
I have had some experience as a member of the Royal Commission on Prisons, and I have been strongly opposed to physical punishment as a rule, but there are crimes which are exceptionally barbarous and require barbarous punishment, and that is certainly sometimes of use when other things are useless. Take, for example, that wave of garotting which a great many years ago prevailed in London, and other crimes of that class. Nothing stopped the garotting, a most vile, cowardly attack upon individuals, until it was made by law punishable by flogging. That in a few weeks caused the garotting to cease. These criminals are more sensitive in their skins than in their consciences, and there are crimes which have occurred in this country which are not crimes characteristic of the country, but others such as raids upon offices kept by women and attacks upon inoffensive and benevolent men which no ordinary penalty would adequately meet or certainly end. Therefore, whilst I object to flogging in any case except a case of exceptional cruelty, I should say that cases of exceptional cruelty should be put down by any means, and as this has proved the only means successful in meeting those cases, I would support flogging where flogging is deserved.
I think some of the Senators are rather considering the effect of flogging on the individual than the deterrent influence of punishment like that. Of course, when one Senator, I think it was Senator Douglas, asked whether the present circumstances of the country justified a recourse to such a punishment as flogging, I think I need only refer to the Cobh outrage to show that there are inhuman wretches for whom no punishment could be too great. Therefore, I think you should consider more the effect on the public generally as a deterrent influence than the possibility that flogging may demoralise the criminal himself.
I think those who opposed this are not concerned only with the person flogged. They are concerned to a greater extent with those who have to inflict the flogging. The man who has to carry out that fearful task cannot fail to have his morale degraded. It makes him just like a soldier inured to bloodshed and war. He holds human life lightly, through sheer necessity. So also will this man engaged in this butchering task of taking the skin off human beings hold human life lightly afterwards. He must, unless he is more than human, be demoralised. Then there is a question of the deterrent effect. The Cobh outrage, I think, is one of the best examples of that. The punishment there would certainly be a greater one than that of flogging, and still it did not deter them from committing their awful deed. The flogging Bill, passed last August, has not prevented robbery under arms, the principal crime for which this Bill was conceived. It is not fear of the type of punishment to be inflicted that is going to prevent a person from committing a crime. One of the things that will prevent him is the knowledge that he will be caught. If he knows there is a chance that he will be caught and get five, ten, or twenty years penal servitude, that will be a greater deterrent than if he knows the chances are that he will not be caught, but that if he is caught he will be flogged. Senator Sigerson has said that flogging has purified London of one particular crime.
Similar arguments might be alleged against any other punishment. The galleys were a typical punishment of the past. One cannot say that they purified the countries that adopted them. Was it the institution of the galleys that made countries as lawful as they are to-day? All properly civilised countries are abolishing corporal punishment, which tends to degrade and demoralise. Punishment gives play to the elementary passions of man. These passions assert themselves in all cases where great wrongs are committed. But they do not tend to reform the criminal. If he survives he comes out again into society and it is natural that his hand will then be raised against every man. He will be degraded. He will have little or no chance to get on, and will feel that fearful ignominy to which he has been treated. If that is the effect, then this type of punishment does not justify itself, and apart from reforming a criminal it makes him twenty times worse. If I thought it necessary to inflict a greater punishment for this crime I should consider capital punishment preferable. There a criminal would cease to become a menace to society. But when you flog him you send him out a far worse man than he went in. Fear alone will never make a man good; fear alone will never prevent the commission of crime.
After all, we have to consider the horrible conditions under which this country has existed for the past five or six years. Education was very bad; in rural districts particularly there were little or no educative institutions and no harmless amusements to beguile the idle time of young men. Naturally when organisations of an irregular character came along there was a tendency for these people to jump to that career of arms and that sort of pastime. The degrading circumstances under which the civil war was fought tended to develop any barbarism that there has been, and we are amazed to find the amount of it there is in the Irish nature, after all. In these circumstances one would have to proceed along some other lines rather than mere corporal punishment lines. You cannot make a nation by flogging; you cannot civilise people by merely punishing them. There will be gradually, I hope and believe, a return to normal conditions, but it will not be hastened by merely providing the lash instead of providing employment for those who are idle. The devil always provides work for idle people, and provision should be made whereby idle people will obtain occupation and not be driven to obtaining a livelihood by the gun. The crime of arson, I think, has pretty well died out. It was certainly a crime that was closely associated with the war, both against the British and the civil war, and it was carried into other disputes also; but I think, on the whole, it has nearly died out, as it was only natural to expect it would when these conditions ceased.
But certainly the same arguments that might be advanced in connection with these crimes do not now obtain, because the reign of law is now restored to a very material and appreciable extent by the establishment of police barracks, by the functioning of the courts and the running of the writs of the courts, in most parts of the country at all events. For that reason I do not think that we should degrade ourselves unnecessarily by putting in force, even temporarily, such a Bill as this.
The punishment set forth in the Bill is degrading and brutalising, and I am convinced that it has no deterrent effect whatever. Criminal statistics go to show that of all the persons who are returned to penal servitude after one conviction the greater percentage is amongst people who have been flogged. I think that is fairly clear evidence that flogging itself is not a deterrent for the crimes that are attempted to be stopped under this Bill.
Senator Farren is a sentimentalist, and I always like to meet sentimentalists. Individually they are charming people. I doubt if Senator Farren would still be a sentimentalist if he had been Minister for Home Affairs in this country for the last two years. I feel that the view would force itself upon him that when you have retrogression, when you have a step back, as it were, towards barbarism, signal penalties are necessary to stigmatise particular crimes. This penalty has been called a relic of barbarism. We have other relics of barbarism, and we have been told by Senator O'Farrell that all up-to-date civilised countries are finding that they can do without these penalties. Very good. The countries that can afford to do without these kinds of penalties are right to do without them. They are only defensible on a basis of necessity; they are only defensible on the basis that the other normal sanctions of law are inadequate, and I submit that those considerations exist in this country at this time. I never said here, or elsewhere, when the Public Safety Bill of last year was under consideration, that the mere insertion of these penalties in a Bill, the mere writing of these words with ink on paper, would cause these crimes to disappear. I rather said that if they were to be at all checked, if they were to be kept within bounds, if the bonds of ordered society were to be held together at all, these penalties were necessary. Imprisonment for one reason or another as the sanction of law has not the effect nowadays that it had in more normal times. The kind of men who commit these two crimes have no particular fear of imprisonment. Senator O'Farrell said that fear alone will not make a man good; fear alone will not make a man obey the law. I agree.
But it was argued by other Senators that the certainty of arrest, the certainty of detection, was the real thing. Why would that be a deterrent? Presumably because of something following on detection. It would not be the mere fear of being found out, so that we ought all to be clear on that, that certain arguments which were used here with regard to these particular penalties might be used against any penalties at all. There was almost underlying certain of the arguments a suggestion that we should simply send for these men and remonstrate with them. The idea of punishment is either right or wrong, and without going too deeply into that, I take it to be my responsibility, I take it to be the responsibility of the Executive Council, to afford to citizens adequate protection for life and property, and to take such steps as may be deemed necessary to that end. This is one of the steps deemed necessary to that end. There are through the country men who will not be checked by fear of imprisonment, who perhaps will not be checked by fear of these penalties, but the number of men who will not be checked by fear of any penalty is not so great. Certain men will pause before making up their minds to go out and rob their neighbours with a gun, and will advert, to some extent at any rate, to the consequences if they are detected. As I asked before, I ask Senators now to form a mental picture of a man sitting at home, perhaps wanting to buy some luxury, not having the money, and turning over in his mind the half-formed project of going out to rob. Will he advert to the consequences of detection, and if he does will he be more deterred by the penalties embodied in this Bill, or by the normal sanctions of the law for such offences? I am not apologetic about these penalties. I defend them on the basis of existing conditions. If the country emerged out of these conditions to a more civilised, a more peaceful and a more law-abiding state of things, then these penalties would be inexcusable. They are not inexcusable when robbery with arms is almost routine in certain areas.
We are trying to combine certainty of detection with stringency of punishment. The statistics of crime detection, in the city and country, are quite good. The new Detective Branch of the Metropolitan Police is increasing in efficiency week by week, and the monthly reports of the Commissioner of the Metropolitan Police are a credit to the Force, and similarly with the Civic Guard. But these crimes exist, and exist on a large scale, and from the signs of the times I will say they will continue to exist and even to grow, if you dispense with the penalties embodied in this sub-section. We can promise no miracles. The passing of this Bill as it stands will not cause crimes to disappear like snow in the morning sun, but the passing of the Bill as it stands, and this sub-section as it stands, will put into our hands a power which we consider necessary to grapple with the evil, which beyond question exists. If we need greater powers, if we need, as Senator O'Farrell suggests, the death penalty, we will come to the Dáil and Seanad and suggest the death penalty.
Perhaps the Minister might meet us by making this punishment optional.
It is practically optional, as the Senator will realise if he reads the sub-section fully:—
"Every male person who shall be found guilty on indictment of the offence of robbery under arms as defined at No. 5 in Part II. of the Schedule to this Act, or of the offence of arson as defined at No. 6 in Part II. of the said Schedule shall (unless the court is satisfied that there are special circumstances in the case which constitute a mitigation of the offence, or is of opinion that owing to the state of health or advanced age of such person corporal punishment could not be inflicted on him without permanent injury to his health), in addition to the punishment prescribed in the foregoing sub-sections, be sentenced to be," etc.
"Unless the Court is satisfied that there are special circumstances in the case which constitute a mitigation of the offence." We submit that in existing conditions these penalties are necessary for the offence in the abstract. If there are concrete facts or circumstances in connection with particular cases which cause the court to be of opinion that these constitute a mitigation of the offence in some way, then there is that way out. There is that loophole for the court to take advantage of, but, I say we cannot take a less stern view of the circumstances than that in the abstract the man who robs his neighbour with a gun should be flogged.
The Minister has said that it is necessary that this Bill should be passed owing to the conditions prevailing in the country. In reply I say there is no necessity in the world for producing this Bill. Under the existing law there is the power to inflict this punishment, and the putting of this Bill on the Statute Book is a direct order, if I might say so, to the Justices to inflict this punishment. What is the necessity of a special Coercion Act being introduced, giving explicit direction to the Justices that they shall inflict flogging? Of course the wording of the Section would leave it, in a sense, optional.
I must confess that I do not like this idea of flogging, although I voted for the original flogging Bill; but I voted for it very much against the grain. The Minister, I think, and I say so with great deference—I do not pretend to anything like his experience; in fact I have no experience whatever—rather stresses the difficulty of the situation in which he finds himself. We all admit the extraordinary courage, firmness and ability with which he has dealt with the difficult situation so far. I cannot help thinking that the time is nearly arriving when we might dispense with some of our methods of endeavouring to repress this social warfare.
There is no doubt at all about it, nobody can deny it, that this flogging is a most barbarous proceeding. We know perfectly well, very much to our sorrow and very much to our amazement, that there are in this country people whose existence we never suspected before, but who unquestionably are the worst kind of barbarians. No punishment is strong enough for ruffians of the character who have gone over this country for a number of months past, and done the most hideous things. Every member of the Seanad knows what has been happening. He knows of those brutal attacks on old, defenceless people for the purpose of robbery; he knows of this brutal intimidation of girls and women for the purpose of robbery, and he knows the brutal acts of arson committed in different parts of the country, and all those horrible things. I do not know that we are improving our position in any way by condoning barbarism ourselves. I say, and I always believed it, that this flogging treatment is a hideous, barbarous resource, and I do not know that the time has not come when we might relax it to some extent. I do not, at all events, like voting a second time for a flogging Bill. It seems to me the proper way out of this difficulty does not lie so much with the Government. The Government are doing their best in the face of great difficulties, but the real solution of this difficulty lies, after all, with the public themselves. If the public will set their faces against barbarism from one end of the country to the other; if they will shake off the widespread intimidation under which they apparently linger, if they will support the Government, and see that law and order are maintained in the country by doing what they can by bringing malefactors and robbers of all kinds to justice, I say that is the proper way of dealing with the question.
I do not think that putting these penalties into Acts of Parliament does any substantial good. I admit that the Government is faced with very great difficulties and is doing its best to find its way out of those difficulties. It has succeeded wonderfully well so far with its limited resources, and I have absolutely no doubt whatever that it will succeed in carrying out its policy. But I would ask the Minister to go slow in this matter. He has his flogging penalty in certain conditions under the existing law. I am not inclined to extend it. I believe that the remedy for these troubles lies in the public spirit of the country, and once the people show that they are determined to put down barbarism, I think barbarism will very speedily come to an end.
On a previous occasion I supported a similar Section in another Bill, and I see no reason for the removal of this. The mover of the amendment points out to us what I did not appreciate before, that the power to flog is basic in our laws already. That being so, I cannot see the reason for opposing this particular Section, which is a deterrent to men whom I am sure the opponents of the Section acknowledge to be criminals of a most serious type. I cannot see why they would not apply themselves to remedying the existing law rather than trying to defeat a Section in a Bill which some of us are satisfied will have an excellent deterrent effect. I shall certainly support the Section.
It is a little difficult for women to vote for this Section. It is more difficult for them to vote for it than it is for men. But I voted for it on the last occasion, and I found that the first ruffians on whom the penalty of flogging was inflicted were those who entered a business house where only the housekeeper and the servant slept on the premises. They beat the housekeeper until she was unconscious. They put a revolver into her mouth and she knew no more of what happened. She was four days in hospital before she recovered consciousness. The men who did that were the first to get the punishment of flogging. No matter what I felt at the time on account of the vote that I had given, I afterwards felt that my vote was justified when I read of this terrible thing which had happened. I feel now that the Government would hardly ask for this penalty if they did not know that crimes such as I have referred to are still amongst us. I also feel that if gentlemen cease committing these crimes there will be no flogging. Therefore I will vote for this.
The Seanad divided: Tá, 13; Níl, 22.
- J.G. Douglas.
- J.C. Dowdall.
- M. Duffy.
- Sir T. Esmonde.
- T. Farren.
- Mrs. Stopford Green.
- C.J. Irwin.
- J.C. Love.
- E. MacEvoy.
- W. Molloy.
- Colonel Moore.
- J. T. O'Farrell.
- W. O'Sullivan.
- W. Barrington.
- T.W. Bennett.
- R.A. Butler.
- Mrs. Costello.
- J.C. Counihan.
- P. de Loughry.
- Countess of Desart.
- Sir Nugent Everard.
- Earl of Granard.
- Sir J. Griffith.
- H.S. Guinness.
- A. Jameson.
- Sir John Keane.
- P.W. Kenny.
- T. Linehan.
- Earl of Mayo.
- G. Nesbitt.
- B. O'Rourke.
- Mrs. Wyse Power.
- Dr. Sigerson.
- Earl of Wicklow.
- W. B. Yeats.
Amendment declared lost.
I think that the numbers "5" and "6" would now require to be changed to "6" and "7."
Yes, the numbering is wrong there now.
Amendment—"To substitute for ‘5' and ‘6,' in the Sub-section. ‘6' and ‘7'"—put and agreed to.
The next amendment is a Government amendment and is as follows:—
Immediately before Sub-section (6) in Section 1, to insert a new Sub-section, as follows:—"A court of summary jurisdiction shall not have jurisdiction in respect of any of the offences mentioned in Part II. of the Schedule of this Act unless the court is of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily."
Amendment put and agreed to.
Section, as amended, ordered to stand part of the Bill.
Sections 2 and 3 ordered to stand part of the Bill.
Every person who shall be charged before a District Justice with having in his possession or on his premises with his knowledge or conveying in any manner anything which may reasonably be suspected of being stolen or unlawfully obtained, and shall not give an account to the satisfaction of such District Justice of the manner in which he came by the same, shall be guilty of an offence under this Act, and shall be liable to a punishment not exceeding twelve months' imprisonment with or without hard labour.
I beg to move:— To insert a new Sub-section (2) as follows:—
"(2) For the purposes of this Section, every accused person, and his or her wife or husband, shall be competent to give evidence, but shall not be compelled to do so."
Under this section a person may be called upon to prove that certain property in his possession was not obtained by legal means. It is the reverse of what is understood as being the law at the present time. Now, a man is looked on as innocent until he is proved guilty. In this case he is held to be guilty unless he proves himself innocent.
It is not really the case. Under the existing law, when a person is found in possession of stolen property, the onus is upon him to account for where he got it.
I take it that it would be proved it was stolen property before he would be called upon to say where he got it. The Minister might be challenged to prove that he did not steal a pair of shoes. Probably he would find it very hard to do so. He might not have kept the receipt, and nobody might remember that he paid for the shoes in the ordinary legal way. He would then be in considerable difficulty in proving how he got them. At all events I take it that he would like to have an opportunity of giving evidence on his own behalf. If there is power in this Section so that a person called upon to prove his innocence would have the right to give evidence on his own behalf, and not to make a mere statement, then, of course, my amendment is met. I want to be assured that when a man is charged in circumstances like these, to prove that he is not guilty, or to prove that he is innocent, he shall have the right to give evidence on his own behalf. I would like to know from the Minister how many cases, if any, of this kind have been tried under the former Public Safety Act? Has this Section in the other Act been utilised to any extent, and with what result? Have the people involved been allowed to give evidence on their own behalf? If so, has it been treated as evidence or as a mere statement? It is a very serious Section, as it involves an imprisonment of twelve months. When you proceed to inflicting punishment of that kind care should be taken to give the accused the ordinary rights of accused persons.
I am sorry that the Senator seems to think that my shoes might reasonably be suspected of having been stolen, according to the wording of lines 40 and 41 of the Section. There have been cases under the Section corresponding to this in the previous Act, but not very many. I am not exactly sure what happened. I take it that action was only taken where there was something amounting to a moral certainty that the property was stolen, and that the statement made by the accused person was examined and found to be unsound. It is a principle in law that neither an accused person nor his wife is a competent witness. Most lawyers with whom I have discussed the question consider that is an advantage to the prisoner, and that its removal would be the reverse. The prisoner under this Section will be entitled to make a statement, not on oath. I put it to the Senator that a statement so made will carry as much weight, or in a particular set of circumstances, as little weight as if it were made on oath. I mean that if the weight of the evidence is counter to it the fact that it is a sworn statement is not going to make a material difference one way or the other. Apart from that fact, there is nothing in the nature of the particular charge in this Section to justify a departure from the ordinary rule of law. If it is the view of the Senator that a change is desirable in the law of evidence it would be more convenient if it were made in the law as a whole rather than with reference to a particular Act. I think in England a prisoner who stands charged is entitled to give evidence in his own defence, but I think people who have knowledge of the operations, of the law, both here and in England, are of opinion that the present state of the law here is rather an advantage to the prisoner; that he gains nothing, but loses in fact by being put in a position that he can give evidence. If a prisoner can give evidence and refrains from doing so it is always naturally interpreted against him if he did not go into the box.
It reads here that the accused person has to give an account to the satisfaction of the District Justice. Does not that involve a statement?
Not necessarily. The position that has to be dealt with is the finding of an individual in possession of property that has been stolen. Any account that will be given by the person in whose possession that property was would involve outside persons, and these outside persons would always be available to the accused, and brought up to state that they sold it to him or so on. The Section as it stands does not involve that he should be examined on oath or examined at all. It simply provides that if he did not give a reasonable explanation of how the stolen property came into his possession, the Justice should be at liberty to convict him.
To whom is he to give a reasonable explanation?
To the District Justice. He has to give it at the time he is brought up in Court at the time the charge is made.
Do I take it that under this Section it is not necessary for the police to prove that the goods have been stolen, or that they have been unlawfully obtained?
Apparently not, unless such evidence as will satisfy the Justice that there is a reason for believing it. Undoubtedly the change in the law in England by which a prisoner is eligible to give evidence for himself has resulted in an enormous increase in the percentage of convictions.
That might be desirable here.
I have always thought so.
Is not the main objection to this Section the fact that the person may be suspected of having goods that are suspected of having been stolen? The proof that the goods were stolen lies on the accusers, and the man should not be liable to be sentenced to twelve months' imprisonment on the suspicion of having goods that were reasonably suspected of having been stolen. The objection, therefore, is that before a person could be sentenced to imprisonment with hard labour, somebody should prove that the goods in his possession were stolen.
The amendment should in that case be that every person charged before a District Justice with having with his knowledge on his person or premises or conveying in any manner anything which the District Justice is satisfied has been stolen, etc. That is the amendment that would be required to meet your point.
I think we in Dublin have been groaning under the tyranny of this Section all my lifetime and all Senator Farren's lifetime. It merely constitutes an extension to the country of a provision of the Metropolitan Police Act by which persons in the possession of property reasonably suspected of having been stolen might be called upon to account for it. It is an extension to the Civic Guard area of a provision which was part and parcel of the Metropolitan Police Act.
Amendment put and declared lost.
Section put and agreed to.
Question: "That Sections 5 and 6 stand part of the Bill"—put and agreed to.
"If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any Bank or similar institution is, or represents, or is directly or indirectly derived from
(a) any stolen property or funds; or
(b) the proceeds of the sale, letting, or working of, or otherwise dealing with any lands by a person unlawfully in possession thereof or acting without the authority of the person lawfully entitled to the possession thereof; or
(c) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
the District Justice shall by order prohibit any transfer of or other dealing with such sum of money or any part thereof.
(2) Whenever an order is made by a District Justice under this Section prohibiting the dealing with any sum of money, the Minister for Finance shall give public notice by advertisement or otherwise of such prohibition and unless within a time to be limited by such notice (not being less than one month) or such extended time as the Minister for Finance shall allow some person proves to the satisfaction of the Minister for Finance that such sum of money belongs to him and is not and does not represent and is not directly or indirectly derived from
(a) any stolen property or funds; or
(b) the proceeds of the sale, letting, or working of, or otherwise dealing with any lands by a person unlawfully in possession thereof or acting without the authority of the person lawfully entitled to the possession thereof; or
(c) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
the Minister for Finance shall certify in writing that such sum of money is forfeited to the Minister for Finance.
(3) If within such time or extended time as is mentioned in the foregoing sub-section any person proves to the satisfaction of the Minister for Finance the matters mentioned in the foregoing sub-section, the Minister for Finance shall certify in writing that the order made by the District Justice under this Section in respect of such sum of money may be discharged, and upon production of such certificate to a District Justice such District Justice shall discharge such order.
(4) A certificate given by the Minister for Finance under this Section certifying the forfeiture of any sum of money shall operate to vest in the Minister for Finance, as from the time of the production of such certificate to the Bank or institution in whose books the sum of money aforesaid is standing, the whole of such sum of money.
(5) All money forfeited to the Minister for Finance under this Section shall, after payment thereout of the costs and expenses incurred in the recovery thereof, be applied by the Minister for Finance in recouping the person from whom such money was directly or indirectly stolen or the fund to which such money directly or indirectly belongs.
(6) Section 11 of the Public Safety (Emergency Powers) Act, 1923 (No. 28 of 1923), shall be deemed to have continued as from the expiration of that Act, and shall continue for the duration of this Act, in force so far as may be necessary
(a) to continue in full force and effect every order made by a District Justice under the said Section 11 previous to the expiration of that Act, and
(b) to validate all such steps as shall have been taken since such expiration, and to authorise such steps to be hereafter taken, by the Minister for Finance or any other person under or in pursuance of or consequent upon any such order which that Minister or person could have taken or could take under the said Section 11 if that Act had not expired.”
I beg to move:—
Section 7, Sub-section (1), page 6, line 13. To delete the word "shall" and to substitute therefor the words "may (after hearing any representations made by or on behalf of the person to whose credit the sum of money stands)."
My reason for moving this amendment is to prevent possible and probable injustice being done to innocent people rather than to suggest that the guilty should be allowed to escape. To my mind it is preferable that several guilty people should escape than to convict one innocent person of an offence which he did not commit. This Section as it stands makes no provision whatsoever for a person who may have money to his credit in a bank getting any opportunity of proving whether it is his legal property or not. It leaves him liable, without getting any such opportunity, to an order being made prohibiting him from having the use of or transferring the money, and in the case of an innocent person, I hold that it is possible that mistakes may be made in this matter. Every other day we learn from the debates in the Dáil of Ministers admitting that mistakes are occurring in Government Departments. I hold that the carrying out of this particular Section is liable to cause mistakes to occur.
This Section only ties up his power of dealing with the money.
It is that tying up of the money in the case of a person who is not really guilty that I object to. It is to prevent such injustice being done that I introduced this amendment. I do not know that it is the best way to prevent the said injustice, but to my mind this, or something equivalent, needs to be put in to prevent a person's legal property being held up probably for a lengthy period, but at the very least for a month. If a man in a small business has his banking account held up for a month, he is driven out of business. That is a good thing in the case of a person who has come by the money in an unjust manner. There is nothing here to safeguard a person who is innocent and who will not get an opportunity of proving whether he is the owner of the money in dispute or not before the money is held up in the bank. For that reason I would ask the Minister to accept this amendment or to amend this Section to safeguard innocent persons from being put under an injustice.
I would like to know what is the exact meaning of sub-section (c): "Any public funds or funds which ought to be in the custody or under the control of a Minister or a Government department." Does not that leave a very wide discretion as to what funds might be considered by some people to be property under the control of Government departments?
Senator Duffy pleads that the order of the District Justice shall be permissive and not mandatory, but if one reads the first two lines one cannot see that anything else is open to the District Justice than to make a mandatory order because he has to be reasonably satisfied that there is reasonable ground for suspecting that money standing to the credit of these individuals has been improperly come by. If he has formed that opinion on the evidence placed before him by the Executive Officer, I cannot see how he can make any other order than a mandatory order that these funds shall be impounded.
I think Senator Duffy's point is the question of delay. I cannot see how you can accept the amendment without weakening the Section. If you suspect that money has been improperly obtained you must hold it up at once, whereas if you wait until the case is heard, the accused will take other steps. I am not convinced that the amendment should be passed.
Senator Douglas has stated very clearly the objection to accepting the amendment. I acquit the Senator moving the amendment of any desire to prevent the Section from being effective, but acceptance of the amendment would mean that. The Section is intended to provide for the making on behalf of the State of ex-parte applications to a District Justice in connection with sums of money in banks, illegally obtained. The proposed amendment would defeat the objects of the Section. Any representation persons to whose credit the money stands may desire to make, they may make. The amendment is inconsistent with the idea of ex-parte applications.
In cases of the kind contemplated, any notice to persons involved would give them an opportunity to withdraw the money. The order is a stop order pending further investigation. Take it that we have reason to believe that there is a large sum to the credit of some person, who a year or six months ago was a man of straw, and it is in his name in a particular bank. The only course is to go straight to some District Justice and say: "Here is a set of facts, and we are asking for a stop order on that particular account." That being given, the individual has a month in which to prove to the State that he had a windfall from his uncle who died in America and left him £5,000, or something like that. Action will only be taken when there is a strong presumption of guilt. Undoubtedly the problem exists on a fairly large scale in the country, and this is the best effort we have been able to make to provide machinery to deal with it. I can assure the Senator it would not be used only where presumption of guilt would be extremely strong.
Would the Minister elucidate the meaning of the words "any public fund or funds" in Sub-section (c)?
I find that these words are inserted to cover a case, say of rates or revenue office moneys taken, and those moneys must be regarded as moneys which ought to be in the custody or control of the Minister for Finance. If cash is taken from a Post Office it is regarded as the property of the Postmaster-General, or as being under the proper legal custody of the Postmaster-General. Public funds of any nature would be in charge of one or other Minister.
I would like to ask whether the case the Minister has made would not be fully met by leaving out the words "or funds," which seem to be open to a certain amount of objection.
Perhaps the Senator would elaborate his argument a little, as I am not sure of the difficulty he is in.
As I understand it, this sub-section is meant to deal with any public funds which everybody agrees ought to be under the control of Ministers, but the insertion of the words "or funds" gives rise to a question of opinion. Supposing I am a trustee for certain charities and a Minister says "These ought to be under the control of a Minister and we will put them under such control." The words seem to me to be open to that construction.
It is not strictly accurate to say that public funds would be in charge of a Minister of State. If rates, for instance, are seized and taken, that would be a public fund which is not under the direct custody of a particular Minister. Take the case of rate collectors being held up and their moneys taken. The distinction there is between private property and property or funds of a public nature. Rates would be funds of a public nature though not actually State funds. Any State fund would naturally fall under the head of one or other Department of State and would be the responsibility of one or other Minister. I think the distinction there between public funds and funds which ought to be in the custody or under the control of a Minister, or a Government Department is, perhaps, a necessary one in view of the fact that there are certain public funds that are not State funds.
It seems to me that the Minister and myself are absolutely at one as to the object to be gained. The only question is how to gain it. If he would add after the word "or funds" the words "other than private funds," it would meet my case, or else eliminate the words "or funds" altogether and leave it at "public funds."
The Minister has pointed out that there are certain public funds that neither are, nor ought to be, under the control of a Minister, or the Government, such as rates, and, therefore, unless you draw a distinction, and provide for such public funds as rates, this Sub-section will not cover the whole ground. You have first of all to say "any public funds," whether in charge of a Minister or not. That would cover the question of rates, which are not in the charge of a Minister. Having covered the ground as regards these funds, you go on to add "or other funds," which are peculiarly a matter for the custody of a Minister.
Would not a comma be required after "public funds"?
Yes, I have put one in my own copy already. If the word "other" was put in after "or" would that meet your point? "Any public funds or other funds."
I think you would have to add "or other than private funds."
I do not know exactly what is meant by "private."
Take charity funds, for instance.
Well, do you not see they ought not to be in the possession of a Minister or a Government Department. The second branch only deals with funds which ought to be in the custody of a Minister or a Government Department. If there are funds which ought not legally to be in such custody they are not covered by this sub-section.
In view of what the Minister has said, and the fact that he has, to a certain extent, admitted the weakness of the Section and the impossibility of providing in any better manner for it, I withdraw my amendment.
I think the last Sub-section, if I may venture to criticise it, is awkwardly expressed, and perhaps before the Bill passes into law it might be altered a little. I think its phraseology could be improved.
Amendment, by leave, withdrawn.
I move: In Section 7, sub-section (2), to delete in line 20 the words "Minister for Finance" and to substitute therefor the words "District Justice." The discussion on the previous amendment, I think, makes the case for this amendment. The Minister for Finance can, by an ex-parte statement, secure an order from the District Justice impounding funds lodged to the credit of any particular person or persons. Under the next sub-section the person concerned, who has had no chance of making any attempt to prevent the issue of that order, has to go to the Minister for Finance and convince him that these funds are his legal property. Ministers are not people that are easily convinced, as a rule. One would almost as soon go to the Minister for Finance and hope to convince him as to try to convince the Minister for Home Affairs. Ministers have been coming here for the last fifteen months, and I do not think I have met one of them who admitted that he was convinced by any single argument advanced from any quarter of the House. That is the type of man that the unfortunate person has to go to and convince that this money which was impounded on the statement of the Minister himself is his property. Unless he is able to convince the Minister, after the lapse of a certain time the money is confiscated. I think it is an extraordinary thing for any Minister to set himself up as the judge in a case of this kind. My three amendments stand or fall all together, and the effect of this amendment is that if the Minister secures the first move by getting the money impounded, then it shall be for the District Justice who made that order to say what time, in the first place, shall be given within which the person concerned must prove the ownership of the money, and that it is to the satisfaction of the District Justice he must prove the ownership, and not to the satisfaction of the Minister.
I think it is extraordinary for a Minister to constitute himself the judge, no matter what the circumstances. The order cannot be rescinded except by authority from the Minister for Finance that he is satisfied, from the statements made and the evidence adduced by the claimant of the money, that this money does belong to him. The evidence that would convince a District Justice, a judge or a jury, might make absolutely no impression on a Minister, because he went, in the first instance, with a prejudice in his mind, a moral certainty that the money did not belong to the person in whose name it was lodged. Therefore, the unfortunate person is up against a very difficult task at the very beginning. He has to remove that prejudice from the mind of the Minister. Juries are always asked to discard from their minds everything they have heard or read about a trial. It would be very difficult to get the Minister to discard everything from his mind, because he is a crown prosecutor, so to speak. He is a prosecutor in the case, and the prisoner in the dock might as well try to convince a crown prosecutor that he was innocent, instead of the judge and the jury before whom he would be charged. It is a very big principle of law, and one which I think this House would be well advised not to endorse, because if you make provisions of this kind in one case you are setting a very dangerous precedent that future Governments can enlarge upon, and which can be utilised for the setting aside of the ordinary machinery of the law. I do hope that the Seanad will agree with me that this amendment should be passed.
I am not certain that the appeal as provided in this Section gives, at any rate, an adequate possibility of an appeal in the case of a dispute between the person and the Ministry of Finance, but I have doubts as to the wisdom of changing the words "Minister for Finance" to "District Justice," because I think that in many cases an ordinary man would much prefer to go to a trained man in the Ministry and argue the case of the ownership of money or property rather than go publicly to the District Justice, be represented, and prove the case. If a man had a windfall of £5,000, he would prefer privately to prove it than to go to the courts publicly and prove that he had received this legacy. He might find that fees to solicitors, doctors, and others would go up immediately. I think at the same time that while it is not fair to force a man immediately to go into the open, going into all personal details before a judge, yet in the case of his being unable to satisfy officials in the Ministry, for that is what I take it it means, rather than the Minister personally, it would be only right that some principle should be introduced into the Bill by which he would have an appeal. After all, in matters of income tax and super-tax there is an appeal from the officials. A man can go further than the judgment of the official in the matter.
I support the amendment. It seems to be eminently reasonable that when a District Justice is appealed to to return money, as he is a judge in which the country is supposed to repose confidence, he ought to have authority to release the money impounded. I think the argument of Senator O'Farrell is a very deep and cogent one, and I have pleasure in supporting it.
Might I point out that I do not know whether Senator O'Farrell realises that the assumption in this case is that the District Justice has already held that this money is probably the proceeds of stolen property.
On an ex parte statement.
Yes. He has already held that, and, therefore, it might seem to put the person in an unfair position if Senator O'Farrell's only remedy was to go back to the District Justice to try and get him to alter his view. I think whatever form this Section takes it is defective in not allowing an appeal either through a review by the District Justice or a review by the Minister for Justice. I think it is probably an oversight, for in the previous Section, Section 6, which deals with the recovery of property actually stolen, an appeal is allowed from every order of the District Justice, and under this Section an order of the District Justice might be dealing with thousands of pounds. Whether the review is to be made by him or the Minister for Justice, I think in either case if the decision is against the man he ought to have power of appeal. I think probably that was intended, but I do not think it is conferred by the Bill.
I want to draw the attention of the Senators to the fact that this Section is distinct from Sections 4, 5, and 6, and deals with money in bank representing stolen property or funds. It deals with money as distinct from chattel property. We more or less admit and accept in Section 4 the principle that it is a reasonable thing to ask the man to account for property which was reasonably suspected of being stolen, and that principle was embodied in the Metropolitan Police Act, and has, in fact, been in operation in Dublin for a great many years. Under this temporary Bill it is extended to the country. Section 7 is different. It deals with money in banks, on a very strong presumption that it was wrongfully and illegally come by, but no matter how strong the presumption it falls short of proof. We may be aware of cases of men of straw, men in very poor and humble circumstances a year ago, and who have blossomed out into a remarkable condition of affluence, and we may have theories and suspicions as to how that came about. We may know people like that who have now large balances in the bank. Very good. The proposal is that by applying to the District Justice we can get a stop order on that account, and that then the onus will lie with such persons to satisfy the State, as it were, to satisfy the Executive Minister, the Minister for Finance, that the property is really, properly, and legally his. But all the time it is a question of rebutting a presumption. As to whether it is a wise thing to try and bring the matter into Court and to ask Judges or Justices to say that a man's property may be taken from him on anything short of absolute proof that it is not his, is a question that I would like Senators to consider, and particularly the Senator moving the amendment. This is a temporary Bill to meet a very abnormal, a very exceptional condition of affairs, when, as I say, this particular problem does exist in fairly large proportions.
We hold the view that it is better that it should be, if you wish an act of confiscation, confiscation after a primâ facie case has been made, confiscation in the absence of evidence rebutting successfully that primâ facie case, but if it is an act of confiscation I think it is better that it should be the act of the Executive than the act of a court. The Section provides that there must be a resort to the court for the stop order. Before that order is given, a good primâ facie case must be established. In the words of the Section, the District Justice must be reasonably satisfied that these funds were wrongfully come by, whether as cash or being derived from the sale or letting of stolen property. But is it wise to say that in the last resort a Court must take that man's property from him? Is it wise to establish a precedent? We are talking here about precedents which must be enlarged disastrously. I think it is not wise to create and foster in the public minds that idea of a Court acting on anything short of complete proof, and evidently these are cases in which complete proof will not be forthcoming, only a strong presumption, a strong primâ facie case, that is not rebutted. It is somewhat different even from the cases of property we have dealt with in Section 4. It is reasonable to ask a man to account for a particular piece of property—a table, a chair, or a gilt mirror. He must have been given it, or borrowed it, or bought it from someone. The matter of the cash in bank is a much more difficult problem, and we think in a temporary measure, not exactly an emergency measure, to meet the wholly abnormal and exceptional situation, if there is to be confiscation at all—and in the last analysis this Section is justifying and legalising confiscation in a certain state of circumstances—that it ought to be an act of State rather than a Court decision, because from the nature of the case the proofs on which a Court could and should act cannot be forthcoming.
The Minister, in the case he has stated, makes it necessary for the Seanad to balance two things against each other. One is the right of the Executive to confiscate, as the Minister puts it quite clearly. The Executive, no doubt, would not ask the Seanad to give them that right unless they thought it was for the good of the State. On the other hand, such a right which can be exercised, not through a court of law, is most undoubtedly a very serious encroachment on the right of the subject. It takes a great deal of thought on the part of anyone giving a vote on such a question as that, to know whether the Seanad would be right in giving up the clear rights of the ordinary citizen into the hands of an Executive Government, without any right of appeal to the law. I do not know that the Minister has stated a case showing a sufficiently great State need for the Seanad to vote for the Section as it stands. There may be some funds that may be used wrongly. There may be some great State necessity. But I should think that to ask the Seanad to give up the rights of the ordinary citizen in such a way would at least make it necessary for the Government to give us some stronger and more definite assurance. If we are to vote for this Section it will only be to support a claim of the Government that it is required for the safety of the State. Without such a statement as that this is a Section that I could not vote for.
I am inclined to agree on this point with the last speaker. The only thing that occurs to me is that if we insert the amendment we have not dealt with the question you raised, Sir, that the appeal will be to the District Judge who has previously adjudicated upon the essence of the case. If we are going to carry out the views expressed by Senator Jameson, and desired by the mover of the amendment, we ought to insert a form of words that will give an appeal to the Circuit Judge or some person of that kind.
I was going to suggest to the Government whether it would not be well worth their while to consider accepting these amendments to Section 7, provided there is inserted in the Section, sub-section (5) of Section 6, words which give an appeal to the owner of the money, the man in possession of the money, or to the Minister, whoever is aggrieved by the decision of the District Justice. My reason for suggesting that is that Section 6 deals just as much with money as does Section 7. It deals with lands, of course, but also with money supposed to have been stolen, and the power of the District Justice to make an Order there in reference to stolen money is subject to appeal. The appeal may be taken either by the person against whom he decides or by the Minister for Finance, if he decides in favour of the person holding the money. If Senator O'Farrell's amendment were inserted in Section 7, and if there was also inserted sub-section (5) of Section 6, giving the right of appeal to the Minister for Finance, as well as to the person in the case where the District Justice decides against the person, I think that the two Sections would correspond with one another, and all the objections raised here would be met.
It would be well if this matter was considered carefully for the Report Stage, including your suggestion, Sir. I am not quite sure that your suggestion might not in a great many cases make it a longer process to get the money returned. I for one am particularly desirous, if we allow an appeal, that we should not make it more difficult, in case of a previous error, to get the money back almost at once, which I think would occur with the Bill as it stands at present. Otherwise I largely agree with Senator Jameson.
I would undertake to give very careful consideration to this matter in the interval between this Stage and the Report Stage. When the Official Report of to-day's proceedings is published I will see that this point is carefully examined with a view to putting forward some amendments at any rate to meet the arguments advanced.
These amendments of yours, Senator O'Farrell, will stand over to be considered on the Report Stage. That applies to all of them.
Consideration of amendment, and of following amendments, deferred to Report Stage.
Remaining Sections put and agreed to.
Bill, as amended, ordered to be reported.