As the section stood originally in the Dáil a person might be convicted of treason on the uncorroborated evidence of one witness. By the former law a person could not be convicted of treason on the evidence of one witness. When the Bill was going through the Dáil we amended sub-section 5 to read: "No person shall be convicted under this section of treason or of felony on the uncorroborated evidence of one witness." When that was being done we overlooked the fact that this is consequential.
GOVERNMENT AMENDMENTS.
Amendment No. 1.—In Section 1, sub-section (4), page 2, line 49, to delete the words "and upon the like evidence."
Perhaps the Minister might explain what particular reason there was, and what was the meaning of that—that every person charged under this section with treason shall be tried in the same manner as if such person stood charged with murder. I would like to know the meaning of that.
AN CATHAOIRLEACH
It refers to the form of the sentence or judgement that is delivered.
And also to the fact that counsel could be assigned to him, and that a plea of guilty would not be taken. Counsel would be assigned for his defence, just as in the case of murder.
AN CATHAOIRLEACH
But this is after he is convicted. Counsel would not be of much use to him then.
That deals only with minor sentences. "If such person is found guilty."
AN CATHAOIRLEACH
The words referred to would not be of much help to him then.
The former part of the section would give him the right to have counsel assigned to him.
Amendment put, and agreed to.
AN CATHAOIRLEACH
The following Government amendments are consequential, and may be taken now:
Section 2, page 3, line 6. To delete the words "the Dublin Metropolitan Police or."
Section 9, sub-section (2) (b), page 5, lines 57 and 58. To delete the words "the Dublin Metropolitan Police or."
Section 10, sub-section (1), page 6, lines 2 and 3. To delete the words "the Dublin Metropolitan Police."
Section 10, sub-section (2), page 6, lines 10 and 12. To delete the words "the Dublin Metropolitan Police or."
Amendments put, and agreed to.
One of my amendments on the Committee Stage dealt with Section 3. It read:—
"Before the word ‘assists' in line 24, to insert the words ‘with knowledge of the illegal object.'"
I think the Minister referred that for consideration.
My own impression was that the Senator withdrew that, overwhelmed by my arguments against it, but it really raises the same point as the previous one, the difficulty of proving knowledge.
AN CATHAOIRLEACH
I think this is a different case, because the mere fact that he takes part in an actual or pretended courtmartial would in itself be sufficient. I think it is quite a different case.
It was paragraph (b) of Section 3 that the Senator wanted altered by the insertion of the words "with knowledge of the illegal object."
Yes, it was paragraph (b). It would commence "with knowledge of the illegal object."
AN CATHAOIRLEACH
You might put in there "subject to the proviso," whatever the proviso would be—say, subject to the proviso in clause so and so. Insert there the proviso.
I moved, in Committee, that in Section 3, paragraph (e), line 39, that the word "lawful" be inserted before the word "orders" and the Minister accepted that the last time.
AN CATHAOIRLEACH
I think you are putting it a little too strongly. All he said about this at any rate was that he would actually consider it. I think he was favourable to this.
Yes, that was accepted in Committee Stage.
Yes, I think that was passed the last time at the Committee Stage.
AN CATHAOIRLEACH
Yes, but the Bill has not been reprinted since. My recollection is that the Minister was favourable to it.
There is no mistake about that.
AN CATHAOIRLEACH
I find our Assistant Clerk has kept a note of the matters agreed to. They were two. One has been already dealt with, Clause 1, sub-Clause (2); that is, levying war against the State. That was accepted by the Minister, and this one that you are now on, was also accepted; that the word "lawful" be inserted before the word "orders" in line 39 of Section 3 (e). You are quite right in that. These are the only two that were accepted. The others were to be considered.
There was a matter under Section 2 that Senator Haughton raised in Committee. He asked me to agree:
To add at the end of the section the words "Provided that no person shall be convicted under this section who satisfies the court that he did not know that the information he is charged with withholding related to an act amounting in law to an offence under this Act."
I have considered that, and I am not prepared to accept the amendment or anything similar to it. What that would amount to would be that if a person could plead ignorance of the Treason Act he would be excluded under that section.
AN CATHAOIRLEACH
The position is quite different under this section, for the section begins with the words "Every person who, knowing," etc., so that I think that is not a reasonable demand.
I am satisfied.
I would like to say that I have had advice, and I am informed that the word "knowing" in the first line governs the words "any act is intended, or proposed to be, or is being or has been committed," and that it would not govern the words "the commission of which by virtue of this Act would be treason." That is something that has to be assumed— knowledge of this Act, and what is prohibited by it.
AN CATHAOIRLEACH
In other words, these words "the commission of which by virtue of this Act would be treason" should be in brackets.
Yes, sir.
AN CATHAOIRLEACH
I think that is right.
In connection with Section 3, I had some proposals which the Minister agreed to think over. He did not promise to accept them. I proposed to change the section, and to break it up into two sections, parts (a) and (b)—(a) the inciting any member of the military force, and (b) inciting any person in the Civil Service. I suggest that these should be two different sub-sections.
The verdict is unfavourable there. I think the section as it stands is really better. It gives a very wide discretion to the court in regard to all the offences covered by the section. A fine of from one penny up to £500, or from £500 down to one penny, could be imposed, or penal servitude from three years to twenty years, and imprisonment with or without hard labour from two years down to one day. It leaves complete discretion to the court as to the amount of fine or imprisonment that would be imposed. The amendment would really have the effect of making more, rather than less, severe the punishment in the case of the offences he classifies as trifling. For this reason—I do not know whether he has adverted to it or not—under the amendment the judge is deprived of the discretion given to him in the original section, and he is confined to imposing a sentence of hard labour for a term not exceeding two years.
I think Senator O'Farrell raised that question.
In any case, I do not think the amendment is called for.
AN CATHAOIRLEACH
Do you wish to move the amendment now, Senator?
I do. From the little I know about the law, I think the custom is to divide the different offences into different classes, differentiating between the more serious and the minor ones as regards penalties. I think it is quite contrary to legislation generally to give to a judge power that used to be given in Mahommedan countries to Pashas and Bashi-Bazouks. A man might be brought up for begging in the street, and have his head cut off for that offence, and he might also have only his toe cut off—just as the Minister talks of inflicting little penalties. I do not think a judge should have the power to do anything he likes. It is contrary to the law generally. The law, as I understand, lays down the maximum punishment for serious crimes, and the maximum penalties for minor crimes. I do not see why we should go back to the Turkish regime. I think we ought to confine a judge to what he ought to do.
AN CATHAOIRLEACH
What is the amendment? Have you it written out?
It is the same amendment that I brought up before in Committee:—
Before Section 4 to insert a new Section 4 as follows:—
"Every person who commits any of the following acts, that is to say (a) incites any member of the military or police forces lawfully maintained by the Government of Saorstát Eireann to absent himself from or to refuse, neglect or omit to perform any of his duties or to commit any other act in dereliction of his duties, or (b) incites any person in the Civil Service (other than a police force of the Government of Saorstát Eireann) to refuse, neglect, or omit to perform his duties, shall be guilty of felony and on conviction thereof shall be liable to suffer imprisonment for any term not exceeding two years hard labour."
I would like to add to that "the fine already laid down."
AN CATHAOIRLEACH
How does that differ from the section in the Bill?
It is exactly the same, except that it proposed to delete in Section 3 all after the word "officer" in line 40 to the end of the section, and then to start two sub-sections dealing with the particular matter that has been cut out.
AN CATHAOIRLEACH
Where do you propose the provisions should come in with regard to mutiny and desertion?
The first part is to remain exactly the same, that is down to the word "officer" in line 40.
Amendment not seconded.
AN CATHAOIRLEACH
What is the next one you have a note of, Senator?
In Section 5 to delete in lines 4-5 the words "powers and functions," and to substitute therefor the words "legislative and executive powers." The Minister agreed to think over that, to see if some other words than the ones I suggested could be put in. I pointed out that the powers and functions of the Oireachtas are practically universal. They can do anything they like. They cover the Shannon scheme, and all this sort of thing. I suggested the words "legislative and executive powers," but I admit these are not good words, and the Minister said he might be able to think out some better words than were in the original proposal.
I am not in favour of any change in the existing wording.
Amendment not seconded.
AN CATHAOIRLEACH
There are no amendments to Sections 6, 7, 8 and 9.
I wish, in Section 10, sub-section (2), page 6, line 13, to delete the words " as the case may require."
This is consequential on the passing of the Police Forces Amalgamation Act.
Amendment agreed to.
AN CATHAOIRLEACH
That disposes of the Report Stage.
On a point of order, would it not be better to adjourn the Report Stage, because I think technically we cannot make amendments on the Fifth Stage?
AN CATHAOIRLEACH
To adjourn the Report Stage for that one purpose only?
Yes.
AN CATHAOIRLEACH
You understand, Mr. O'Higgins, that the only matter left over is as to whether you would accept that suggestion about harbouring?
I will be ready with my amendment to-morrow.