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Seanad Éireann debate -
Wednesday, 16 Nov 1927

Vol. 10 No. 2

RESTAURANT AND LIBRARY COMMITTEES. - MOTION BY COLONEL MOORE.

Before I come to the motion standing in my name I would like to say that the motion as it is down is not mine.

CATHAOIRLEACH

Are you going to move it?

I am, but I would like to say why——

CATHAOIRLEACH

If it is not your motion you cannot move it.

I have accepted it, but with regret. Perhaps the Seanad would like to know that the Cathaoirleach ruled mine out. I wanted his ruling, and he gave it as his idea that the motion, as I originally drew it up, was not in order. The Cathaoirleach did not say so very definitely, but said it might not be in order, and therefore I was subject to him. What the Cathaoirleach said was that he considered the Executive may not be responsible to the Seanad; that the Seanad may have no control over the Executive; that it raises a very serious constitutional question; that it would be difficult to get documents and officials; and, moreover, that in this particular case there is nothing in dispute, that the facts are admitted. These questions now raised are of greater importance than the particular one I raised. They raise the whole question of the rights of the Seanad. I do not intend to go into that now. It would be wrong to do so, as people would not be prepared for it. But I suggest to the Cathaoirleach that the question is of such importance that it should be referred to the Constitutional Committee which was appointed for the purpose, so that it might be gone through at leisure, and some report of its investigations secured.

CATHAOIRLEACH

That does not arise. My letter to you was intended as an assistance to you. It was not intended as a ruling. I pointed out that there might be very serious questions of order raised as to the form in which your motion stood, and I thought that your purpose would be equally accomplished-by a change which I suggested, and which is now on the Orders of the Day. I gave no definite ruling, and therefore this procedure about referring it to the Committee does not arise.

Nevertheless, the matter is important.

CATHAOIRLEACH

I agree that it is important. I am quite sure that some day it will arise and have to be disposed of, but I did not think you were anxious to have this outside question raised on this particular motion.

No, because it would be impossible to do so. I only suggest now that it should go before the Constitutional Committee.

CATHAOIRLEACH

I cannot do that, for the reasons I have given. I can only do that when I have given a definite ruling on a constitutional question, and then my ruling, if challenged, goes to the Committee of Procedure.

May I move at some later period that it be referred to the Constitutional Committee?

CATHAOIRLEACH

I do not think so; I have given no ruling on the subject.

I have been washed out of it anyway.

CATHAOIRLEACH

Quite frankly, I was anxious to facilitate you in getting your motion disposed of.

I am not questioning that.

CATHAOIRLEACH

I thought perhaps you would see there was a more definite way of raising the question.

I move the motion on the Orders of the Day. It reads as follows:—

That, in view of the arrest and subsequent release under the provisions of the Public Safety Act, 1927 of Mr. Seán MacBride, of the decision of Mr. District Justice Johnson in the case of Brigadier-General Eamon Horan and of the arrest and subsequent release of Messrs. P. J. Tuohy and John Murphy, the Senate is of opinion that the action of the Executive in regard to these cases is deserving of censure.

I have no apology to offer for bringing this motion forward. I brought it forward here before, but, as there was not a Minister present then, on the suggestion of the Cathaoirleach I withdrew it until the Minister would be here. I think a statement the President made gives a lead for showing why this matter should be brought up. The President stated when the Public Safety Act was going through: "The ordinary peace-loving citizen, going about his business, need have no fear whatever at the passing of this Bill. There need be no fear in the mind of any man, as regards the operation of this measure—and there need be no fear— when you have the two Houses of the Oireachtas, except in the minds of the panicky and of those who are unfit to govern." That seems to have been a lecture delivered by the President, and one which I think ought not to have been delivered. This Presidential preaching takes some of the Olympian aloofness from the facts, and, as I am going to show, the facts do not appear to be as he stated. I may say that I do not think the public generally in any country regard the Government of the time as being above the possibility of doing anything wrong. The opposite is very often the case.

No sooner was this Public Safety Act passed than the President took away what he himself stated was to be one of the principal safeguards of the Act—the Oireachtas. He dissolved the Oireachtas and left the country without the safeguard he alluded to as one upon which the public might rest assured, and he left himself a perfectly clear road to do whatever he or the Ministry liked in the matter. At the time I noticed that all his English friends cheered and expressed great approval of his extraordinary cleverness. However, it did not turn out quite so clever as they imagined. I suppose they were expecting some benefits when he came back—financial agreements and otherwise—of which they had partaken before. That being the case, one would suppose that the Ministry, who are responsible in every case for the carrying out of this Act, which is not like the ordinary law, would give notice to the police of different sorts that they should exercise during the election period particular care not to encroach too much on the liberties of the people. That would seem to be an act of prudence, because during all elections certain things are said and done that would not be said or done at other times, and greater latitude is always given. In fact, in 1918 the English Government gave extraordinary latitude, considering the circumstances of the country at the time. Criticism of the Act centred— I am not going into it now—on the enormous power given to policemen to do practically what they liked with the liberties of the people. It was pointed out that that power was likely to be misused, as such power has nearly always been misused, and is likely to be misused again. What I am going to say it that it has been misused, and that the Executive Council are responsible. The powers given to these policemen are sometimes greater than the powers given to judges. They can order judges to do what they like, and to put people in prison. In former times the judges had a certain option, but now they have none. A policeman tells a judge to put a person in jail and there is an end to it; into jail he goes.

I will state as concisely as I can the circumstances of these cases, but, before I do so, I want to say that I have nothing whatever to say against the ordinary Gárdai—the men in uniform. I have no attack to make on them. As far as I know, and as far as I have heard, the uniformed Gárdai behaved very well throughout the whole business. That is generally acknowledged, even by the people who have suffered in these particular cases. To my mind the people who are responsible are the C.I.D., who very often are not in uniform and on these occasions were not in uniform. The persons concerned are Mr. Tuohy, Mr. Murphy, a former T.D., Brigadier-General Horan, late of the Free State Army, and several C.I.D. men in the Gárda. Mr. Tuohy is Secretary of the Fishermen's Association. It consists of fishermen, workers on the sea, and the committee is appointed by the members. It is not a private show, but a committee appointed by fishermen under the chairmanship of Professor Culverwell. The committee and secretary were openly appointed by the members. The Association has nothing to do with the Government and has never taken any money from the Government. It holds itself free to criticise the Government, and sometimes did so at public meetings. The Minister came to some of the meetings and discussed matters, and sometimes one of the officials came to discuss matters. The committee and the fishermen in the Association are of opinion that practically nothing of any value has come out of these meetings, that there has been a great deal of talk and a great deal of money spent without result. Mr. Tuohy, who is the secretary, went to Kerry during the general election to deal with, on behalf of the fishermen he represents, this state of affairs, and to let the people down there know that he did not consider their business was being done properly. I think it will be admitted by everyone that that was a perfectly reasonable and fair thing for anyone in his position to do. He was not a public official, but was appointed by the Fishermen's Association. He went down, and went to a meeting in, I think, Dingle, where he was hustled a bit. I will not say by whom. After the meeting I saw him in a hotel in Tralee in which I was staying. He had been shockingly beaten, beaten out of recognition. I saw him myself. His bed and coat were covered with blood, and his face had been sewn up. I did not know who he was, although I knew him well——

Beaten by whom?

Perhaps I have a reason for not saying that, but it may be inferred. That was the 3rd June, and on the 5th June, at Ballinskellig, the Minister for Fisheries made a speech. This was during the election.

As the Minister will notice, my motion does not refer altogether to the Public Safety Act. We will come to that later. The Minister for Fisheries made a statement two days after Tuohy had been beaten out of recognition. The report appeared in the local and Cork papers. I cannot say for certain if it was two days after, but the Minister for Fisheries knew what happened, or he must have known. This is what he said:

"A gentleman called Tuohy had gone about recently, belying my Department. All I will say is, he will remember it."

That was said two days after the secretary of the Fishermen's Association had been beaten, and was lying in bed and unable to attend election meetings or anything else. As I say, it is possible the Minister had not been informed of that, but he was informed very soon, as he could not be there without knowing or hearing of it. I have plenty of authority for that statement if anyone wishes to have it, although the Minister may have something else to say on it. A prosecution was instituted against Mr. Tuohy, and a counter-prosecution was instituted by him. For certain reasons both were withdrawn. A civil action was then taken by Mr. Tuohy against the police. I will say no more about that, except that the decision was given in Mr. Tuohy's favour. As I believe—I am not quite sure—an appeal was served. I will not go further into that question. Now the scene moves to Dublin from Kerry. The Minister sent a message to the chairman of the Fishermen's Association to say that while he, the chairman, would be given every courtesy, the Minister could have nothing whatever to do with the Association as long as Mr. Tuohy was secretary. He pursued Mr. Tuohy from Kerry to Dublin and tried to punish him and to drive him out of the Association because he told certain things, made statements in Kerry about fisheries and other matters and opposed the Minister. He pursued him to Dublin and tried to drive him out of his situation. To do him justice, Mr. Tuohy immediately offered to resign his position in the public interest, but the committee of the Association met, repudiated the methods of the Minister for Fisheries as being an attempt to dictate to them who they were to have as secretary, and they would not allow Mr. Tuohy to resign. Who was the most injured—Mr. Tuohy or the Minister? It can easily be seen. The reason the Minister did that was because he wished to have control.

I am sorry the Minister is not here. I asked that he should be warned, as his name was going to be brought forward. Otherwise I would not like to bring his name up in public. The Minister wanted to get control of the Fishermen's Association, and to stop any criticism that was going on, as it is generally acknowledged all over the country that the most inefficient department in the Government is that under his control. Later on Mr. Tuohy went to Kerry again for the September election. The President stated that only panicky people would object to this Public Safety Act, but I think Mr. Tuohy, who objects very much, and who has reason to do so, cannot be numbered amongst the panicky people, or he would not have gone to Kerry again. He addressed several meetings, one being at a place called Knocknagoshel. During that meeting various things happened, to some of which I think I ought to refer. Before the meeting Superintendent McNulty drove up with a large batch of police. They met one of the officials of Fianna Fáil, and took away all the documents he had. These were election documents, documents regarding personation. This was admitted by McNulty himself, so that there is no dispute about it. They seized and took away all these documents. That is an act of provocation of the grossest sort at an election. They next seized upon a motor car-belonging to the Rev. Father Galvin. Afterwards, in extenuation, the Superintendent said he seized upon it for some legal purpose. I do not know about that. Supposing that were so, why does he seize the car at the moment of an election meeting, and why does he drive it through the meeting? If that is not an act of provocation I do not know what is. Throughout the meeting Supt. McNulty interrupted every way he could and caused a disturbance. It was a small meeting. Some people say there were forty or fifty people present. The police differ. Some say there were 200 or 300 people present. It is generally admitted that no one caused any disturbance except the people I speak of. Their conduct is described as a running stream of interruptions and heckling.

There was another meeting at Castleisland, and the same lot of C.I.D. continued the same sort of interruptions there. Superintendent McNulty is also accused, whether rightly or wrongly I cannot say, of producing a revolver. He is accused of doing so anyway, and during the second meeting Mr. Tuohy said that he (McNulty) had produced a revolver. After the meeting Horan, Murphy and Tuohy were arrested. They were brought before a magistrate and, as there was no option, they had to be sent to jail. The solicitor who was defending these three men said:

"We are ready to pursue this question. We want it settled now on the spot. There was nothing more to discover than that. We want it settled, and we will show that it is not my clients who have been in the wrong, but the police."

Superintendent McNulty refused, and got the batch of them sent to jail, because it was impossible to do anything else, as the Justice said that he had no discretion in the matter. Sometime afterwards two of the prisoners, Murphy, an ex-T.D., and Tuohy, after being kept in jail—I do not know how long exactly, but it was stated by one person to be five or six days—were released. Horan was prosecuted after being in jail for some time, and the case came before Mr. Johnson, District Justice. I have related the charges that were made against the police, although there were a good many more acts of provocation. I think I have mentioned enough. This is what District Justice Johnson said:

"The evidence was extremely unsatisfactory. The Guards differed in an extraordinary way in several material instances, collateral to the essentials of the case. Two witnesses only heard the statements that the Guards should get the same fate as the Black and Tans, and that there were men there prepared to give it to them. Another witness whose evidence was remarkable for the number of things he did not hear, heard the finish of the sentence ‘that he was prepared to take to the hills.' The witness who heard this finish heard practically none of the interesting remarks referred to by other witnesses, such as ‘Leahy from Knocknagoshel,' on the reference to Mr. McNulty and the Public Safety Act. One witness said that the wind was blowing strongly, and it was difficult to hear; another witness said the evening was dead calm and he heard everything. There were two civilian witnesses for the prosecution. One of them had admittedly been driving the Guards through the country without having his tax paid. His evidence was not worth very much. The other witness, O'Connor, seemed to be the only independent witness in the case. His evidence differed materially from all the other witnesses as to what was said.

The acoustic properties of the atmosphere in Knocknagoshel that evening seem to have been very variable. No two people heard the same amount, and words that some people heard were inaudible to others. There was no evidence that any of the people for whom the remarks were intended ever heard them. On this point he held that the prosecution had failed, and further, the nature of the evidence was so contradictory, so open to grave doubt, that he would not be justified in deeming it sufficient to send the accused forward for trial, and consequently refused information."

That was the District Justice's opinion of the prosecutions brought by a batch of C.I.D. men.

Now all these fishermen have got votes, and these methods of beating one man and putting others in prison for the time being had the desired effect, as they were not able to continue electioneering—a very satisfactory method for candidates on the other side. I will quote President Cosgrave again. He says:

"The ordinary peace-loving citizen going about his business need have no fear whatever at the passing of this Bill. There is no fear in the mind of any man as regards the operation of this measure, and there need be no fear, when you have two Houses of the Oireachtas, except in the minds of the panicky and of those who are unused to government and unfit to govern." If President Cosgrave knew anything whatever about Brigadier - General Horan he would not say that he was panicky.

I pass away now from these points, but I think I have shown what the behaviour of the police was, and for it the Ministers made themselves directly responsible, because they can order men to prison whenever they like. The Minister for Justice had no responsibility for most of those things because he was not in office at the time, but I suggest to him that, while considering the Civic Guards to be satisfactory people, he should investigate the condition of the C.I.D., and see what could be done to reorganise that force, which is rapidly losing the respect of the people. Many of them may be all right, but some apparently are not.

Now I come to the case of Seán MacBride. This is a statement I have received:—

"On the morning of August 24th (which, curiously enough, was the date of the by-election in County Dublin) Seán MacBride was arrested without warrant at his home by Sergeant O'Driscoll and some twelve plain clothes policemen brandishing revolvers."

I am not sure about the brandishing of revolvers, as that might be a partisan statement.

"He was verbally charged with the murder of Mr. O'Higgins," our late Vice-President, whom we all regret.

The statement goes on to say:

"Seán MacBride was able to establish by direct evidence and documents that prior to and at the date of the murder he was out of Ireland. The only result of this was that Superintendent Ennis formally rearrested him at the police station and changed the charge to one of suspicion of murder under the Public Safety Act. On the 25th August Seán MacBride was tried before District Justice Little, who refused to remand him under the Public Safety Act for a crime which was prior to the existence of the Act, and, in court, Superintendent Ennis changed the charge back to the murder charge under the 1848 Act, and obtained a remand in custody for eight days. That was the third time that the charge was altered. In Mountjoy, Seán MacBride was submitted to several identification parades, but he was not identified, and Superintendent Ennis again shifted the charge back to the Public Safety Act one of suspicion, and on the 31st August he was again brought before Judge Little, who acquitted him and declared it would be against his conscience as a magistrate to remand Seán MacBride under the Public Safety Act. On leaving court he was immediately rearrested by Superintendent Ennis, who charged him under the old Act with the murder. Again on the following day he was brought before Judge Little and charged under the '48 Act, and again remanded for eight days to Mountjoy. In the meantime the Free State Attorney-General obtained from Judge Hanna in the High Court an order of certiorari to quash Judge Little's acquittal of Seán MacBride, and a mandamus to oblige him to do what in open court he had said his conscience as a magistrate would not allow him to do. Thus for the sixth time the charge against Seán MacBride was changed, and he was remanded by Judge Little for seven days under the Public Safety Act, on the suspicion of Superintendent Ennis that he had been engaged in the murder of Mr. O'Higgins. On the 13th September, the day before the expiration of the last remand, the Governor of Mountjoy informed Seán MacBride that he had received an order of internment for him for two months, signed by Richard Mulcahy, Minister for Local Government and Public Health, and that the charge was changed from suspicion of murder to suspicion of conspiracy."

I do not think it is necessary to elaborate this record of perverted ingenuity and a determination to get the man into prison, right or wrong, trimming the sails to catch every wind of legal or illegal opinion. And then General Mulcahy, well schooled in the art of coercion and accustomed to this sort of procedure, comes along at the end to end the comedy by a two months' order for jail. Now comes what Judge Hanna had to say about the matter. This is a statement which he made before the Minister for Local Government stepped in at all. He said:

"This clause (Section 3) purported to be a discharge of the obligation thrown upon the Oireachtas by Article 50. The question arose: Was it a sufficient compliance, in law, with Article 50 to insert in an Act of Parliament, in vague and general terms, a clause such as this—a drag-net—without specifying either any article of the Constitution which was to be amended, or part of an article, or whether, in fact, any amendment had been made by it or not? The Constitution was a sacred charter, not to be lightly or equivocally tampered with; but this Clause 3 left the subjects of the State, who had rights under the Constitution, and who had rights to exercise against amendments of the Constitution, in the dark as to what was really being done with the Constitution, instead of enlightening them as to any change in their status. An omnibus amendment of this kind was, in his judgment, contrary to the spirit of Article 50, if not to the letter. The rights of the people were not to be obscured by the facile pen of the draftsmen. The matter, perhaps, had not been fully argued before him, but, having regard to the wording of Article 50, that the amendment could be made ‘by way of ordinary legislation,' he was of opinion that this clause inserted must be held to fall under that phrase, ‘ordinary legislation.' It was with great hesitation that he had come to the conclusion that Section 3 of the Act did comply with the provisions of the Constitution as to amendment, but he had no hesitation in adding to his judgment this: that this was a precedent that should not be followed."

In spite of that warning from the Judge, the Minister for Local Government handed over Seán MacBride, who, it is quite clear, knew nothing about the matter, and sends him to prison. So far as I can see, the dark shade of party politics was behind all these arrests and beatings, and they show clearly that politicians have used them for their own purposes, and, in some cases, the police have been their agents. Did the Minister for Fisheries know about the beating of Mr. Tuohy when he said he would remember it? It happened in his constituency when he was electioneering. He must have known it soon after it was published in the local papers. Why did he not condemn it? Why did he not report the misuse of the Public Safety Act and inform the other members of the Ministry?

CATHAOIRLEACH

I do not think that you ought to labour this further. You are imputing to the Minister for Fisheries knowledge of a transaction which took place prior to the passing of the Public Safety Act, and it had nothing to do with the administration of that Act.

Part of my resolution does not deal with the Act.

CATHAOIRLEACH

Your whole resolution condemns the Government in consequence of their action towards certain individuals under the Public Safety Act.

Some of them are under that and some are not.

CATHAOIRLEACH

There is an additional reason. You are really, more or less, springing matters in reference to which you make rather serious suggestions against the intentions of a Minister in his absence.

He was warned. I asked the Clerk to warn him.

CATHAOIRLEACH

He was not entitled to anticipate, on a motion framed such as yours, that you were going to go into matters which occurred before the passing of the Act.

May I ask if this is a proper venue to listen to reflections on the police force? Can the Seanad listen to these complaints?

CATHAOIRLEACH

I do not think there has been anything said by the Senator up to the present that is out of order.

As the Minister for Justice is here, might I ask what is the date on which the Public Safety Act became law?

It was not circulated until last week.

The whole of this question concerning the law and the way it has been administered seems to me to prostitute justice in this country. In West Africa among the negroes there are what are called "Ju-ju-men," witch doctors, whose duty it is to go about the country smelling out criminals whenever they are told to do so, and they have their own enemies and friends. They bring people up for punishment before the whole tribe whether they are guilty or not. They work on suspicion. That is exactly the case of the Ministery in regard to C.I.D., they get them to go smelling around the country arresting people on suspicion. They plant them in prison whether they are proved innocent or not. That is degrading justice to the level of its administration by the natives of Central Africa.

CATHAOIRLEACH

Does any Senator second the motion?

I see that the Minister for Justice is here, and I think it is desirable that he should be given an opportunity to reply, an opportunity which cannot be afforded unless this motion is seconded. I therefore second the motion, although I see the futility of introducing a motion such as this and the difficulty of assessing the merits or demerits of the cases in question. The Senator who moved the motion has read out what I presume were the considered remarks of the District Justice in regard to certain actions of members of the C.I.D., and I think that that calls for some notice. One would like to know whether the Government have taken any disciplinary action in any of the cases in which irregularity or improper conduct on the part of police were proved before the Court. Recent incidents in the force would seem to show that there was some looseness somewhere. My experience of the Civic Guard has been that they are an exceedingly efficient and, in the main, a popular force, but that does not exclude the possibility of there being certain black sheep amongst them. Simply because we may be dealing with an illegal organisation, or an organisation which is out for the overthrow of the State, is not in itself sufficient justification for us to condone illegal or irregular acts on the part of the forces of the State. That would be a case of making the ends justify the means. That policy has been adopted in Ireland in recent years with calamitous results, and it is time that we resorted to purely legal methods. Surely our legislative penal code is sufficiently extreme to punish all evil-doers while keeping strictly within the spirit of the law.

A SENATOR

They did not get the murderers of Mr. O'Higgins.

I think it is fairly well known that about one year ago, as the result of certain grave irregularities which occurred, I think, on the part of the C.I.D., an inquiry was held, and certain disciplinary action was decided on. When it was proposed that the disciplinary action should be put into operation, the Executive Council were faced with the threatened resignations of certain very high functionaries in the Civil Guards, and, rather than accept these resignations, disciplinary measures were not enforced. I think that that is a serious state of affairs, and is not in the interests of the Civic Guards, public safety, or public order, and, no matter what political happenings may sway the hour, there should be some regard for the proper conduct and, above all, the legal conduct of those entrusted with the enforcement of public order. Those who have been loudest and most eloquent in their defence of the Constitution in moments of panic, passion, and excitement, are the people who are most ready to make the greatest inroads in the Constitution, and seem to justify anything that would be in the nature of a strike-back against some organisation, imaginary or real. I do not want to go into the merits of the cases brought forward by Senator Moore, as I am not sufficiently informed, but I am impressed with the statement which he quoted of District Justice Johnson. We all, of course, read the statement made by Mr. Justice Hanna in regard to the Act. I think that the Minister for Justice should make some statement as to whether disciplinary action was taken in cases such as those quoted, in which the Justice commented adversely on the Civic Guards, or rather the C.I.D., as a section of the Guards, regarding the veracity of their evidence and their general conduct. Therein lies the kernel of the situation, namely, whether the Ministry is alive to the grave necessity of keeping in order people who are entrusted with the safety of the public and the enforcement of public order.

I would like to deal first of all with the remarks made by Senator Moore in regard to the Kerry case. I will deal with the cases of Tuohy and Murphy first. There was a meeting at Knocknagoshel on this particular night. Senator Moore has gone into the facts, though they appear to me to be somewhat irrelevant to his motion. He brought certain charges against the Superintendent. His statement had not the merit of being logical, because he said that he would make no charge against uniformed members of the Civic Guards, and proceeded then to devote the rest of his speech to charges directed against the uniformed members of the Civic Guards.

Superintendent MacNulty is a uniformed man.

He was not in uniform then.

He is a uniformed man.

I spoke of those who were not in uniform.

I am sorry if I have mistaken the Senator's meaning. He said that the putting on of a uniform changes a man's disposition, that he is very good if he is in uniform, but when he takes it off you cannot trust him. I understand that that is Senator Moore's attitude.

Now as regards the meeting at Knocknagoshel. The Superintendent went to seize a car belonging to a clergyman. He had a warrant for the seizure of the car, and he went there to execute that warrant. He delayed until it was very late at night and when he thought there was no possibility of a meeting taking place. At some time about a quarter past ten, when the thing could be done quietly and unprovocatively, he seized the car. Then he found that a meeting was taking place, and attacks were made on him and the Guards from the platform. I do not intend to go into that matter very much further, but I would simply say that, so far as the Public Safety Act was concerned, it really had nothing to do with the matter. These men were arrested on certain charges, were brought before the magistrate, and, through a misapprehension, were remanded for seven days under the Public Safety Act. I have a paper here which sets out the charges brought against them. The paper is called "The Kerryman." I cannot vouch for the accuracy of the report, but I think it may be taken as being accurate. It says:—

"The Superintendent who was in charge of the case said that these men were engaged in common consipracy, which was an offence under the Public Safety Act. One made a personal attack on General O'Duffy, and another a pointed attack on the Guards."

These are not offences which come under the Public Safety Act. It was asked by the District Justice of the defending solicitor as to whether he had anything to say upon the law, and the defending solicitor said that he knew that, under the section, the Justice had no discretion in the matter but to remand the men in custody. The matter not being argued before the District Justice, the men were remanded in custody. The matter then came to Dublin, where it was immediately noticed that a mistake had been made in remanding these men under the Public Safety Act, and Tuohy and Murphy were immediately released. Were the Executive Council wrong in releasing them? A mistake had been made in law. Now the charge, I take it, is made against the Executive Council that, having discovered that a mistake was made, they, at the first possible moment, remedied it. In remedying it, were they right or wrong?

CATHAOIRLEACH

Do I understand you to say the mistake was also shared in by the District Justice and accused's own solicitor?

Yes. As everybody who has been in court knows mistakes are made in law. As soon as that mistake was acquiesced in by the defendant's solicitor, and also by the District Justice, the case not being argued before him, what did the Executive Council do? They released this man. There was a more serious charge against Horan. He was put on trial on that charge, and he was acquitted. Therefore, it has to be taken that he was innocent of that charge, for a man is innocent until he is proved guilty, and not having been proved guilty he must be taken as having been proved innocent. I hope no words of mine will be taken as being intended to convey that Horan did use the words he was charged with having used. Horan was charged with inciting men to give the same fate to the Civic Guards as had been given to the Black and Tans. He was put on trial for that. After a week had expired he was brought before the magistrate and remanded on bail. The case came on. Senator Colonel Moore has read out the remarks which the District Justice made. The Justice had to be satisfied that there was a prima facie case made against the man. The public meeting at which the remarks were used was a noisy meeting obviously, and different reports were given by different persons, as very often would happen in connection with a meeting of that kind. The District Justice was not satisfied, and he accordingly dismissed the case. Senator Colonel Moore has read out the judgment. I would like to quote from the "Independent" newspaper, which I am sure is accurate, the remarks which were made by Mr. Brown, the defending solicitor:

Mr. Brown said, after the Justice had given judgment, he wished it to be clearly understood that his conduct of the case was not to be construed as an attack on the Civic Guards. After all, the Guards were men of their own race, and his client (Mr. Horan) instructed him to say that he never at any time meant to attack the Civic Guards, and that as far as he was concerned he had the deepest respect for the Guards. The solicitor went on to say that from his own experience he knew the Guards were a body who always performed their duties fairly and straightforwardly, and whatever he had said in the course of the case was not to be taken as an attack on them.

There is an expression of opinion from the man who was charged and the solicitor who defended him as to the Guards, those men whom you have heard Senator Colonel Moore attack. What abuse has there been of the Public Safety Act in that case? A mistake made in law was rectified immediately by us. If to rectify a mistake immediately it has been made is the action of a Ju-ju man, then Senator Moore may call us Ju-ju men as long as he wishes. I will now take the case of Seán MacBride. He was charged with conspiracy to murder Mr. Kevin O'Higgins. An order was made under the Public Safety Act. It was as a matter of fact made by General Mulcahy, but I think it ought to be said that a general election was on at the time. The order could be made by any member of the Executive Council, but, of course, most of the members of the Executive Council were at that time in their own constituencies fighting their election battles, and General Mulcahy happened to be the Minister who was on the spot. The case was inquired into by the Civic Guards. They made their investigations and, when these were completed, Seán MacBride was released. I think Senator Colonel Moore unconsciously left Senators under the impression that Seán MacBride had been kept in prison for the whole two months under that order. That was not so. He was kept in prison for five weeks, and as soon as the investigations had been completed by the police he was released. I want, at the risk of digressing, to explain to Senator Colonel Moore that he has entirely misunderstood the nature of the Public Safety Act. Under the Act men are sent to prison because there is suspicion in the minds of the police that they have been guilty of one of the offences set out in the Schedule of that Act. The Senator seems to think there is something novel and extraordinary in a man being arrested or put into prison on the suspicion of the police, or the suspicion of other persons. That certainly has been done in England as far back as the reign of Philip and Mary. When it came into force in this country I do not know. Whenever the police arrest a man they arrest him on suspicion. They have not completed their inquiries when they make the arrest. They bring him before a magistrate, who remands him on suspicion, and he may remand him for a considerable period of time upon suspicion. Then, if there is a prima facie case made out, the magistrate, on suspicion, sends him forward for trial.

Everything is done upon suspicion, because there can be nothing else but suspicion until the case is absolutely proved in court. Guilt or suspicion of guilt exist as two possible alternatives. You never can treat with a man except on suspicion until he is actually found guilty by a jury. What I would like to be borne in mind is that this section of the Public Safety Act simply deals with the method of procedure. It does not create any new offence. The new method of procedure is closely modelled on the old method. The old method is that the magistrate makes a remand, whereas this new method of procedure is that there is a compulsory remand of the prisoner, and the person charged is treated as a prisoner on remand for a period not exceeding two months. That is all this section amounts to. It is designed to frustrate the efforts of criminal conspiracy, a conspiracy which unfortunately has borne terrible fruit recently. When you are dealing with a conspiracy of this kind it is necessary to have greater powers than if you were dealing with a single criminal. Members of organised bodies who plan murder are very much harder to deal with than the ordinary criminal, or the ordinary couple of criminals who join together to commit crimes for personal ends, and it is because of that greater difficulty extra powers of procedure are contained in the Public Safety Act.

The Minister takes great credit for having released these prisoners. He said that was a splendid proof of the capability and justice of the Ministry, but he did not take upon himself to deny that these C.I.D. men really did these things. The Justice who tried the case said that the statements of the Guards were absolutely untrue and not to be believed. The defending solicitor in his remarks, which were quoted by the Minister, distinguished between the ordinary members of the Civic Guards and the C.I.D., and rightly so. The quotations read by the Minister did not apply to the C.I.D.

I beg your pardon—these are the very men referred to. Otherwise, the remarks would be meaningless.

I do not agree. The solicitor was speaking of the Gárdaí in general. They were not attacked, but the C.I.D. men were, or at least the C.I.D. men in this particular case. I dare say there are C.I.D. men who are all right. The Minister made a statement about the legal position but I find he is in exact opposition to Mr. Justice Hanna. Am I to take the view of the Minister or that of Mr. Justice Hanna?

CATHAOIRLEACH

I think that when the decision of a judge is brought into a discussion of this kind, and when he is not here to answer for himself or explain his decision, we should be very careful what we say about it. A complete mistake has arisen, and the Senator shares in it, as to the effect of Mr. Justice Hanna's statement. The judge never attacked either the policy or merits of the Public Safety Act. All he did was to suggest that the third section, which, instead of setting out the respects in which the Constitution was amended, simply states that in so far as in this Act is inconsistent with the Constitution it has to be taken as repealing the Constitution. He said that was an unsatisfactory way of amending the Constitution, but it was on that point alone he criticised the Act. Speaking for myself, I entirely agree with him. I think it was a very vague and unsatisfactory way of amending the Constitution. The judge goes on to say that still they were within their powers in doing so. It was the legal way of accomplishing their purpose. I do not think he said it was a very appropriate way, but they were lawfully entitled to do it in the way they did. He never attacked nor suggested an attack on the policy or merits of the Act itself. I mention that in common fairness to the judge, because his observations have been completely misrepresented.

I did not say he made an attack. I read his statement verbatim.

CATHAOIRLEACH

That does not touch the policy or merits of the Act.

I did not suggest that.

I think Mr. Justice Hanna did make some references with regard to the creating of new offences.

CATHAOIRLEACH

But he did not complain of it. He said he did not find fault with it. I intervened to avoid the impression that has been created that Mr. Justice Hanna denounced the Public Safety Act. He never did.

I did not say that. I read out from the report exactly what he said. He added: "This is not a precedent which should be followed."

CATHAOIRLEACH

You are speaking now as if that applied to the whole Act. The judge was referring to altering the Constitution by general references instead of specifying the alterations that are being made. That is the precedent the judge is speaking of. That is only a question of drafting, and has nothing to do with the principles of the Act.

The Minister said that practically no charge was made and no new crime was brought in.

Mr. Justice Hanna said:

In the ordinary sense of criminal law it was no offence to be suspected of crime. The words "offence" and "crime" both implied mens ria and guilty intent. An innocent person might be suspected by a superintendent of the Guard of having been concerned in the commission of an offence. In his judgment the operation of Section 16 was to create a new artificial or statutory offence of being a suspect. It might result in imprisonment for a long period, though no charge was made, though there was no trial nor any opportunity of making a defence. It was called preventive justice, but a person was equally punishable for being suspect of an offence of which he might be innocent.

I will just let it stand at that. With regard to another plea put forward by the Minister, that it was nothing unusual to have a man put in prison pending inquiries, that is quite different from the Public Safety Act, which lays down that if a policeman comes before a magistrate and asks him to send a man to prison the magistrate, although the prisoner may show that he could not possibly have committed the crime, is bound to send him to jail. That does not settle the matter. Even if the judge acquits him the man has to take an oath that he never committed the offence. Even that does not settle it. He still has to go to prison unless he gets two reputable persons to swear that he could not have committed the offence. I think everybody understands what these policemen did. I agree with the seconder of the motion that the Minister should go into the question. He is not long in office, and I am in no way making accusations against him.

One thing struck me in listening to the speeches of Senator Colonel Moore and the Minister, and it was the personal point arising in the case of a young man who was five weeks under suspicion for the murder of the late Minister for Justice. Everybody knows the immense feeling that that act stirred in the country, and everybody must realise what that young man and his people must have suffered during these five weeks. At the end of the five weeks the Minister told us that investigations were completed and the young man was released. Under the ordinary law the young man would have been acquitted, and his fair name at least would have been left. I put it now to the Minister that in the future a more kindly spirit should prevail, and that people against whom there is not enough of evidence to prove their guilt should hardly be arrested under this Act, for apparently, if you take the case we have been listening to, an acquittal does not come. It is just a release, and the terrible strain of the accusation remains on the life of that young man as long as he lives. That is all I have to say, and I say it with the best and kindest of intentions towards the Minister and everybody else.

Motion put and declared lost.
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