Offences against the State Bill, 1939—Committee.
Section I ordered to stand part of the Bill.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
Paragraph (b) of this section states:
"A document which alleges, implies or suggests or is calculated to suggest that the Government functioning under the Constitution is not the lawful Government of the State or that there is in existence in the State"——
I should like the Minister to state what would be the position if somebody stated that a Government outside the State is the legitimate Government of the country. Does that paragraph give authority to anybody to say that the British Government, for instance, or that the Government of the Six Counties, is the legitimate Government of this country? It might be illegal to say that the Government purporting to act under the authority of the Second Dáil is the legal Government of the State or that it has any right to pretend to be the Government. That would be an instance of a Government which might be attempting to function in the State but the section does not provide that one can be indicted for saying that a Government functioning outside the State is the legitimate Government of the country. Could one say that the British Government or the Six Counties Government is the legitimate Government and thus escape the provisions of this Bill?
We are only dealing here with what happens within the State, and the fairest example I can give, I think, is the proclamations I read out here on the last day, which indicate that there is another body of people here claiming to be the Government of the State. I do not think anybody is going to say that the British Government or the Six Counties Government is the Government of this country. We are not dealing with that.
It is not what is the feeling of the people, but is this the conclusion: that one may allege, state or assert that a Government outside the State is the legitimate Government of the country, whereas one may not say that a pretended Government within the State is the legitimate Government without coming under the terms of this Bill? What is the meaning of including the words "in the State" there? The same would also apply to paragraph (c), which refers to an army or military forces, and again uses the words "in the State". I cannot understand why these words are introduced in both sub-sections. It appears to me that one may speak ad lib with regard to Governments and armies outside the State, but that you may come within the terms of this section if you say anything about a Government or any army functioning in the State.
I do not think the Senator is serious.
There is another point which I wish to raise in connection with Section 2. Paragraph (d) defines as a seditious document
"a document in which words, abbreviations, or symbols referable to a military body are used in referring to an unlawful organisation."
That seems to me to go very far indeed, and I am wondering whether that sub-section has any value at all or whether the previous sub-sections do not cover the ground quite sufficiently without introducing this sub-section (d). I should like to know what, as a matter of fact, the Government intend the people in general shall call the body known as the I.R.A. in future. If they are to be referred to in a newspaper—and, after all, that body may do things that make legitimate public news—how are the newspapers going to describe that body? Would it not be at least desirable if the sub-section is retained to put in after the words "military body" some such words as "unless preceded by the words ‘so-called'"; so that, at any rate, the newspaper would be able to speak of the "so-called I.R.A." I do not think it is even in the public interest that it should be impossible to describe such an organisation without getting so vague that nobody knows for sure what they are talking about.
Paragraph (c), of course, refers to title, and paragraph (d) is intended to cover anything else that might be left out. In other words, it is of an omnibus character. I shall give an example of that. I have had interviews with representatives of the various newspapers, and they have shown some concern with regard to that, but I have pointed out the difficulty of avoiding it. The example I had in mind was something that happened the other day, where an obituary notice appeared in the newspapers in the ordinary way, certified, I presume, by the relatives of the deceased, and a notice also appeared in another particular way, obviously for the particular propagandist purposes of another party. That notice referred to Volunteer So-and-so, "who died in the service of the Republic", or something like that. He was a member of the I.R.A., and that notice was obviously put there for propagandist purposes. It is cases of that kind that I have in mind, and I am afraid that we cannot get around the difficulty in any other way than the way we have it here. It is not that one objects to people saying, simply, "I.R.A."; it is where the words "I.R.A." may be used for the purpose of promoting these objects by the propagandist value that may be attached to describing themselves as volunteers and officers with military ranks. It is with the object of trying to cover things like that that this is intended.
Could not that be got over if the words "so-called" had to be put in before the name of a military organisation? There may be nothing in the point I am making, but it occurs to me that in the interests of the State it is not altogether desirable that newspapers, at certain times, should be prevented from making it clear what organisation it is that has done some thing of which the public might disapprove very much. The propaganda argument, in other words, may be turned the other way around, and the Government itself might wish it to be known that the people who have been guilty of such-and-such an act are, in fact, the people who call themselves the I.R.A. I should just like to know whether the Minister has considered that point or whether he will consider it.
I shall consider it before the Report Stage, but I have given it a good deal of consideration already. There is something more in it than that. A body may call itself the I.R.A. The I.R.A. in this country represents to a great majority of the people something that is very noble in the country, and objection must be taken to any other body usurping the title that belongs to them. In putting that case to the newspapers, I have tried to see if there were some way to meet their point of view, but I must confess that I have not found a way to do it. I do not want to hamper newspapers unduly, but the whole object here is to prevent such an organisation as that from advancing or strengthening its objects by a sort of propaganda that is undesirable. I shall consider the point between now and the Report Stage, but I am afraid I shall not be able to find a way to meet it.
In the same sentence, I should like the Minister to consider again the words "referable to a military body." Those words seem to me to be ambiguous. Does that mean symbols that have a military sound, or does it mean symbols that purport to refer to some existing military body?
Existing military body I should say.
In that case, does it even cover the ground of the I.R.A.? Are the symbols "I.R.A." referable to a military body? Does the Government consider that the organisation which at present calls itself the I.R.A. is properly described as a military body? Is a military body any body that purports to achieve its objects by force? Is that the way the Government looks at it?
With regard to that point, I should like to draw the Minister's attention to lines 39 and 40 on the previous page. It seems to me that that would be very ambiguous in interpretation. It says that the expression "treasonable document" includes a document which relates directly or indirectly to the commission of treason. Reading that in the ordinary way, does not that apply to a newspaper which reported the actual commission of some act of treason? Suppose an act of treason took place which attracted public attention. The newspaper which reports that the next day would certainly be "relating", directly or indirectly, to the commission of treason. I know that is not the meaning of the clause, but it seems to be dangerously ambiguous.
Question put and agreed to.
Sections 3, 4 and 5 agreed to.
Question proposed:
That Section 6 stand part of the Bill.
I do not know if this is the proper place to raise the matter, but has the Minister considered the illegal use of wireless as a means of spreading and proclaiming sedition? I cannot see anywhere in the Bill that a party setting up an illegal wireless station would be committing an offence. No doubt it is so, but perhaps the Minister would enlighten the House on that point.
There are, of course, certain powers under the Telegraph Act, but they would not, I imagine, be sufficient to deal with what the Senator has in mind. We have the question of the unlawful use of wireless under consideration, but we did not think that this was the appropriate Bill in which to deal with it.
There is a law prohibiting a certain use of wireless, but in the case of somebody using wireless for treasonable purposes, I should like to know what sort of Bill the Minister has in mind. Would it be a Bill having as its substance the dealing with illegal transmission by wireless, or a Bill having special relation to the use of wireless transmitting for treasonable purposes? At the present moment, I think there are legal powers to control illegal transmission, but surely what we have in mind is, particularly, the use of the wireless for treasonable purposes, and it seems to me that, as this Bill deals in a very comprehensive way with every foreseeable type of treasonable activity, this would be the appropriate Bill.
I should like to consider it further. The matter has arisen recently and the Department of Posts and Telegraphs and the Department of Justice have been examining it. We were not prepared at the time to include it in this Bill as the proper and most effective way of dealing with it, but perhaps we might make provision between now and Report Stage. There is, however, a view that publication might include wireless. I should not like to say straight off that that is so, but it might be held to be.
I suggest that the Minister might consider it before Report Stage, because it is a means of disseminating treasonable words and incitement to treason. If it is done by a document, it is clearly an offence; if it is done at a public meeting, or through an organisation, it is an offence; but I do not see any offence, if it is done through a wireless station. It is then only an offence against some Post Office regulation concerning the monopoly of wireless, but that would not cover treasonable practices.
I will deal with it on Report Stage.
Question put and agreed to.
Sections 7, 8 and 9 agreed to.
SECTION 10.
(5) Nothing in this section shall render unlawful the setting up in type, printing, publishing, sending through the post, distributing, selling, offering for sale, or having possession of a document or a copy of a document which is published at the request or by permission of the Government or is published in the course or as part of a fair report of the proceedings in either House of the Oireachtas or in a court of justice or before any other court or tribunal lawfully exercising jurisdiction.
I move amendment No. 1:
In sub-section (5) after the word "jurisdiction," in line 49, to add the words "or the proceedings of any corporation, county council or other lawfully constituted public body or such public meetings as have not been specifically prohibited under this Act.
As the law stands, there are certain other bodies established by law, such as corporations, county councils, urban councils, boards of health, and bodies of that nature, and a fair and accurate report of their proceedings so far has always carried with it a qualified privilege. There is another instance of the existence of qualified privilege, that is, in the fair and accurate reporting of a public meeting which has been properly convened under the Public Meetings Act, by notice given to the public, either through the medium of the Press, or through some other form of publicity. This Bill as it stands purports to take away that privilege from the reporting of such proceedings, and my amendment is designed to cover such a situation and to enable newspapers still to carry on giving a fair and accurate report of meetings of public bodies, except, of course, in the case of public meetings specifically banned under this Bill, as they have been able to do heretofore.
If the section is allowed to pass without amendment certain hardships will result. There will be a hardship on the Press. As we are well aware, occasionally at meetings even of public bodies, public representatives make wild and unguarded statements, and they sometimes go even further and make statements which might be considered seditious, or, at least, liable to cause a breach of the peace, So far as I can recollect, it has never been the policy of newspapers in this country wantonly to give publicity to such incidents, but sometimes they are reported for two reasons. They may be reported by mistake; they may fail to catch the eye of the vigilant sub-editor and get into the Press in that way; and, secondly, they may be reported deliberately as being in the public interest. If I may give an example, the members of the various public bodies are elected by popular vote, and if they make use of seditious or treasonable utterances at a meeting of their body, surely it is in the interest of the people who were responsible for electing them to that body to know that that is the type of conduct they indulge in.
Secondly, this section as it stands throws the onus on both the reporters and the editors of newspapers to become keepers of the consciences of public representatives. Surely that is expecting a lot of hard-working journalists who have, as the Minister and most of the members of the House, I am sure, are well aware, when it is a question of reporting the proceedings of a council, a House of the Oireachtas or a public meeting, usually to work at high pressure, take their notes as rapidly and as accurately as they can and transcribe them at speed. In turn, the sub-editor in the newspaper office has to get them ready for publication, again with his eye on the clock. Surely this section is throwing a rather onerous duty on journalists if you are going to make them responsible for censoring the utterances of every public representative throughout the country, whether he be a member of a corporation or county council or whether he is just an ordinary politician standing up on a platform at an election. I think that it is asking a lot of the journalists' profession. I think that it is against the public interests, even if the journalists succeed in doing this onerous task, that the public should be kept in the dark whenever a public man or a politician gives utterance to sentiments that would be an offence under this Act. I trust the Minister will see his way to accept this amendment, if not in the form in which I have drafted it, in such reamended form as he and his advisers may deem fit.
Fair and accurate reports are privileged, except where the matter is blasphemous or obscene, but they must be of the proceedings at a lawful meeting for a lawful purpose. I do not see any reason to confer privilege on the reporting of seditious or treasonable matter at meetings of public bodies. I am not impressed by the Senator's argument as to the very great trouble that would be imposed on newspapers in excising seditious or treasonable matter that may take place at those meetings. I regard it as one of the most serious and most dangerous ways of promoting sedition or treason that public bodies, by means of resolutions and, perhaps, sometimes by talk, should broadcast treason and sedition. I am not for a moment reflecting on public bodies, but we cannot shut our eyes to the fact that sometimes we see very wild statements by public bodies. If those wild statements, by people of some responsibility, whether great or little, were reported in the newspapers it might have a very bad effect. I went as far as I could have gone in the Dáil in conceding to Deputy Costello there to allow documents of that sort to be reported in courts of law. I could not accept the amendment proposed by the Senator. I think it would be a most dangerous thing to accept it.
I am not suggesting to the Minister that my amendment should give a free hand to public bodies to give utterance to seditious and treasonable sentiments. There is adequate provision in other parts of the Bill for dealing with such public bodies, if they offend in that matter. I would merely like to impress on the Minister that, no matter how careful the people responsible for the publication of newspapers are—and you can only expect them to exercise every reasonable care, which is what they have been doing already—there are still circumstances in which utterances made at a meeting of a public body may get past. When such a thing happens in good faith and through error or mistake, newspapers should not be held as the keepers of the conscience of public representatives. I would not for one moment suggest that public bodies should be given privilege in uttering seditious or treasonable propaganda of any kind.
Mr. Hayes
Am I right in assuming that this section does not apply at all to the reporting of proceedings? It merely applies to documents. The three matters mentioned in sub-paragraphs (a), (b) and (c) are an incriminating document, a treasonable document or a seditious document. There is nothing in this particular section under which proceedings could be taken against a newspaper for the publication of the proceedings of a corporation?
The Senator is quite right.
Mr. Hayes
Therefore, this particular section, at any rate, does not give the power to proceed against a newspaper for reporting something said at a corporation or county council which would be deemed to be seditious or treasonable. It is rather that the newspaper should not carry a letter or a document read which was itself a treasonable document. Is that so?
Of course, the report itself would become a treasonable document. As Senator Crosbie knows, we have to keep our eyes open every day with regard to libel and other things.
And we are sometimes caught.
Mr. Hayes
Amendment put and declared lost.
Question proposed: "That Section 10 stand part of the Bill."
I would like to ask the Minister if he has taken into consideration the position that might arise with regard to foreign newspapers circulating in this country, that is, papers printed outside the area for which this Bill proposes to legislate. It would be possible that the Irish newspapers would be prohibited from publishing certain things and, at the same time, foreign newspapers coming from England or the Six Counties or anywhere else could have black headlines in regard to those matters, and might, thereby, be in a position to carry on unfair competition against the Irish newspapers here. I would like the Minister to consider that.
That particular question was brought to my notice by the Irish newspaper representatives, yesterday, I think it was. I will have the matter considered. Of course, at present, the position with regard to papers circulating in this country from outside would be that you could go against the distributor, which might be in some instances rather harsh. It is very hard to expect a distributor to examine every newspaper, but that would be the method by which we would have to deal with it at present. Between now and the Report Stage I will have the matter considered to see if there might be some other method devised by which outside papers circulating in this country would be prevented from gaining an unfair advantage for commercial purposes and otherwise over Irish papers here.
Is there no power at present to prohibit the importation of papers of that kind?
I think the Minister might run up there against the difficulty that I raised earlier. I refer to the trials that are going on in England. As we all know they are reported in the English newspapers. Are the distributors of those newspapers here to be prosecuted because there is a reference in the report of the trials to a particular organisation?
Those difficulties are in mind.
Section 10 agreed to.
SECTION 11.
I move amendment No. 2.
To delete sub-section (3) and substitute therefor the following sub-section:—
(3) In any prosecution under this section the burden of proof,
(a) that the document was not in the possession of the person charged by virtue of his position as an officer of the State, or in the course of his duties as such officer, or
(b) that he knew that the said document was in his possession or on any lands or premises owned by him or occupied by him or under his control, and
(c) that he did know the nature or contents of the said document,
shall lie on the State, and unless and until the contrary is proved it shall be presumed that the person charged has not committed an offence under this section.
The sub-section that I am proposing to delete is a fairly drastic one. It puts the burden upon an accused person of knowing everything that comes to him through the post, that is pushed into his letter-box, that is handed to him in the street or that is pushed into the pocket of his overcoat hanging on a rack in a hotel lounge. It puts him in the position of proving that he did not know the contents of the document. That I submit, is changing the whole trend of the criminal law. You are, practically speaking, asking the accused person to prove on oath that he did not know the contents of the document. Under the ordinary law, an accused person pleads that he is not guilty. Now you are asking him to go up on the table and prove on oath that he is not guilty. That is what it amounts to, because he will be the only person able to give evidence. I suggest to the Minister that that is a very serious proceeding.
The object of the amendment is to put the section in line with the ordinary criminal law. I ask the Minister to consider the position carefully. A man picks up a document or a document is handed to him. In fact, it may be shoved into his pocket in the street. He does not read the document; he knows nothing about it. He is picked up by somebody afterwards, and he is asked to prove that he did not know what was in the document, although, as I have said, it was shoved into his pocket perhaps, and he did not read it. How is he to prove that he did not know what was in the document? Surely, under this sub-section you are putting the onus of proof on the wrong person.
First of all, the State finds a document. All that the person on whom the incriminating document is found—or on whose premises it is found—asked to do is to account for it. There is nothing novel about this sub-section. If the Senator looks up Taylor's Treatise on Evidence, 12th edition, volume 1, pages 261-2, he will get numerous instances to prove that what I have stated is the present position. Take this case, for example. An individual is found on the street with house-breaking tools in his possession. Are the police not to be entitled to ask him what he has those tools for? As a matter of fact, you have that position at present, that they are entitled to ask him what he has the house-breaking tools for. The same position applies under the bankruptcy laws. Numerous instances could be quoted from the Official Secrets Act and from other Acts. Take the homely example of the man who is asked if he has a licence for his dog. Are the police not to ask him for it and not to prosecute? Instead, must they go around the country trying to get veterinary surgeons to prove that this dog is of a certain age? All that people are asked to do in this case is simply what they are being asked to do in numerous other cases. If an incriminating document is found on a person he must account for it. If a motor car is going along the street is a policeman not to be entitled to hold it up and ask the driver whether the car is licensed or not? Is a policeman not to be entitled to ask him to produce his licence?
There is no analogy between that case and the terms of this sub-section.
But how on earth can the State prove it? If an incriminating document is found on an individual, how, in the name of goodness, can any member of the police force prove how the document got there if the person on whom it is found is not going to explain?
If the accused person is able to prove that he did not put the incriminating document in his pocket and does not know how it came there, will that be sufficient to exonerate him? I submit to the Minister that there is no analogy whatever between the case of the individual found with house-breaking tools on him and what the State is providing for in this sub-section. Here you are asking the accused person to prove that he did not know what was in the document: that he did not know that it was a seditious document. You are putting the onus on him to prove that. The Minister says that all an accused person is asked to do is to account for the presence of the document on him. If an accused person had only to account for the document, that might easily be done, but under the sub-section you are requiring him to prove "that he did not know that the said document was in his possession or on any lands or premises owned or occupied by him or under his control... and that he did not know the nature or contents of the said document." If the State cannot prove the charge against him, how is he going to exonerate himself? Surely the onus ought to be on the State. The Minister cannot get out of it by saying that the State cannot prove it. The Minister has met the amendment by a good deal of specious reasoning. He mentioned the case of the unlicensed dog, and asked if the police were to travel round the country seeking for veterinary surgeons to ascertain from them whether the dog was of a certain age. In that case there is a dog there, anyhow.
Suppose the Senator put his overcoat on a rack in a hotel lounge and a document was shoved into the pocket of it; if a Guard came along and found it would he be able to prove that he did not know the contents of it? Suppose it was a proclamation by the I.R.A., would he be able to prove that he did not know the contents of it?
That is what you are asking an accused person to do here, that he did not know the contents of an incriminating document shoved into his pocket somewhere or other. The Minister certainly has made no argument in favour of the retention of the sub-section in the Bill. On the Second Reading of the Bill, the Minister said that this was not special legislation: that it is going to become part of the ordinary legislation. That is where I see the serious danger in this subsection—that you are going to impinge on the trend and course of the present criminal law. The Minister, I submit, has made no case for the sub-section.
Suppose a seditious document is found in a person's pocket and he says that he does not know what is in it. In such a case, the accused person will go into court and give evidence on his own behalf. If the jury accepts his explanation as a good one he can be acquitted. Is the State to be always in the position, with regard to documents of this kind, that it must go and look for all the possible defences that an accused person might have?
The Minister's argument to this is that the section has no value whatever.
No value whatever. The Minister argues that, if a man comes in and says that he did not know what was in a document, that is sufficient evidence to get his discharge.
There must be some limit to what the Senator puts into one's mouth. I did not say anything of the kind. I said that if a treasonable or a seditious document is found in the pocket of an individual, and if he is brought up and charged and has a perfectly good defence, he can give evidence on his own behalf. If the jury accept his explanation that he did not know the document was in his possession, or know of its contents, they can discharge him.
He is going to be put on oath to prove how he got the document. It may have been handed to him or it may have been shoved into his pocket. But he is going to be put on oath, and the Minister suggests that his explanation is going to be accepted, whether it is true or false.
I said nothing of the kind. I said he could give evidence on his own behalf. If the jury accepts his story, he can be acquitted.
Question put: "That sub-section 3 of Section 11 stand."
The Committee divided: Tá, 32; Níl, 5.
Tá
- Byrne, Christopher M.
- Colbert, Michael.
- Concannon, Helena.
- Conlon, Martin.
- Corkery, Daniel.
- Counihan, John J.
- Crosbie, James.
- Farnan, Robert P.
- Fitzgerald, Desmond.
- Goulding, Seán.
- Hawkins, Frederick.
- Hayes, Michael.
- Hayes, Seán.
- Healy, Denis D.
- Honan, Thomas V.
- Johnston, James.
- Johnston, Joseph.
- Keane, Sir John.
- Kennedy, Margaret L.
- Keohane, Patrick T.
- MacCabe, Dominick.
- MacDermot, Frank.
- Mac Fhionnlaoich, Peadar (Cú Uladh).
- McGee, James T.
- Moore, Maurice G.
- O'Donovan, Seán.
- Parkinson, James J.
- Nic Phiarais, Maighread M.
- Quirke, William.
- Robinson, David L.
- Rowlette, Robert J.
- Stafford, Matthew.
Níl
- Campbell, Seán P.
- Hogan, Patrick.
- Lynch, Eamonn.
- Madden, David J.
- Tunney, James.
Tellers:—Tá: Senators Quirke and O'Donovan; Níl: Senators Campbell and Hogan.
Question declared carried.
I move amendment No. 3:—
In page 7, to add at the end of Section 11 a new sub-section as follows:—
(5) Where the proprietor or the editor or other chief officer of a newspaper or other periodical publication receives a document which appears to him to be a treasonable document, a seditious document, or an incriminating document and such document is not published in such newspaper or periodical publication, the following provisions shall have effect, that is to say:—
(a) if such proprietor, editor, or chief officer is requested by a member of the Gárda Síochána to deliver up such document to such member, such proprietor, editor, or chief officer may, in lieu of so delivering up such document, destroy such document and every (if any) copy thereof in his possession in the presence and to the satisfaction of such member;
(b) if such proprietor, editor, or chief officer destroys under the next preceding paragraph of this sub-section such document and every (if any) copy thereof in his possession or of his own motion destroys such document within 24 hours after receiving it and without having made any copy of it or permitted any such copy to be made, such destruction shall be a good defence to any charge against such proprietor, editor, or chief officer of an offence under any sub-section of this section in respect of such document and no civil or criminal action or other proceeding shall lie against such proprietor, editor, or chief officer on account of such destruction.
This amendment, as Senators will observe, deals with the possibility of a newspaper receiving a treasonable document innocently and not recognising it as such. To make allowance for the secrecy code of newspapers, if you like, I think it is only reasonable that the amendment should be adopted.
Amendment put and agreed to.
Section 11 as amended ordered to stand part of the Bill.
SECTION 12.
(1) The Government may, whenever it so thinks proper, make by order regulations for all or any of the following purposes, that is to say:—
(a) requiring printers and publishers to keep registers or other records of the documents printed or published by them and providing for the inspection by members of the Gárda Síochána of such registers and records;
(b) requiring the exhibition on all printed matters of the place at which such matter was printed, the name and address of the printer by whom it was printed, and the name and address of the person for whom or on whose instructions it was printed;
(c) providing for matters incidental or ancillary to all or any of the matters aforesaid.
I move amendment No. 4:—
In sub-section (1) (a), to delete all words from and including the word "keep" in line 23 to and including the word "records" in line 26, and substitute therefor the words "provide facilities for the inspection of their premises by members of the Gárda Síochána, not below the rank of Superintendent, holding a special warrant from the Minister or from such other authority not below the rank of Assistant Commissioner as the Minister shall nominate.
Sub-section 1 of Section 12 requires printers and publishers to keep registers or other records of the documents printed or published by them. The amendment in my name probably seems rather drastic to the House and to the Minister but, primarily, I should like enlightenment from the Minister on exactly what he requires printers and publishers to do under sub-section (1), paragraph (a). What exactly does he mean by "records and registers"? Do registers and records in this sub-section, in the case of a newspaper, merely refer to the newspaper files or the newspaper publication? If that is the case, his intentions are met by the existing practice, whereby every newspaper keeps a file of all its publications. These files are available on demand, not alone to members of the Gárda Síochána or to other officers of the State, but also to the general public. Does the Minister require special records and special registers to be kept? If so, that opens up a very different situation. Does he expect every newspaper office to keep the original of every letter addressed to the editor? In that case I can see the time when even a provincial newspaper would require premises at least as large as Leinster House to keep all the letters from "mother of seven" and "father of ten" that are occasionally addressed to the editor on one subject or another. What does he mean by "the inspection by members of the Gárda Síochána of such registers and records"? As I say, as far as newspaper files are concerned, they are already open, not only to the police forces, but also to the members of the general public. I do not want to push this amendment unduly if it is not acceptable to the Minister, but I should like him to give the House some light on the matter.
I am afraid that I must admit that the provisions of the section appear a bit wide, as the section at present stands. The power to make regulations would give the impression to the House, as it did in the Dáil, that you can make all the regulations you like and impose considerable hardship and difficulties on newspaper proprietors and their staffs. All that it was intended the regulations should cover was that they should keep a record for, say about one month, of newspapers in which these documents were published. I feel that it would be much more satisfactory if I could come to the House here with the actual regulations that are intended to be made incorporated in the Bill, and then Senators would see what the exact position is. I feel that at present this section is unnecessarily wide and is somewhat vague. If Senator Crosbie will withdraw his amendment I shall bring in an amendment on the Report Stage or perhaps re-draft the whole section and incorporate in the new section the exact regulations which it is proposed to formulate to deal with this matter. There will not be any hardships imposed on newspapers. The most we ask is that copies of the issue of the newspaper in which these documents are published should be kept for one month after they are published.
That meets my point, and I shall withdraw the amendment. I would suggest to the Minister that in addition to producing regulations which might be made, it might be well for future purposes if, on the Report Stage of the Bill, he would define the words "registers and records."
I shall try to have set out exactly what is required.
Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.
I move amendment No. 5:—
To delete sub-section (5) and substitute therefor the following sub-section:—
(5) In any prosecution under this section the burden of proof that any act was unauthorised shall lie on the State.
What induced me to put down this series of amendments is the statement made by the Minister on the Second Reading of this Bill, to the effect that this is not a drastic measure and that it has become a piece of ordinary legislation; that is to say, that it is not going to be considered as special legislation or dealing with special emergencies or special crises, but dealing with ordinary situations as they arise. It seems to me that it is an infringement on the ordinary rights of the citizen to allow the State to put upon him burdens which, up to the present at any rate, he has not been asked to bear, in respect of accounting for his actions. The State enjoys certain privileges that even the average citizen does not enjoy. In the case of bringing charges, the State can go back much further than the ordinary citizen. For instance, I can very well imagine a case—I do not know whether the Minister will regard this as a rather ridiculous suggestion—but I can quite well imagine the case of a young man being out on a Sunday on some expedition, for amusement or some such thing, coming home late at night, cycling and getting a puncture on the road, and then arriving home very late at the dead of night and stealing into bed so as not to arouse the household. I can quite imagine something happening coincidentally with that and, six months afterwards, that young man being asked to account for where he was on such a night. Most of us would find it very hard to say definitely, not alone where we were, but what we were doing, on the 17th of last November. That, therefore, is putting a very serious obligation on the citizen to prove that he did not do something on such-and-such an occasion. The State can take him back for a long period and say to him: "Prove to us that you did not do such a thing on such an occasion." That is the effect of this. He has no evidence to call; he has no corroboration to offer. All he has is his own statement as to his recollection of what he was doing on the occasion concerned. None of us can remember very well what we were doing after a period of six months and surely that is a very serious obligation to put on the citizen. It is changing the whole trend of criminal law to say that the person who is charged is guilty until he is proved innocent, instead of what has hitherto obtained, that he is innocent until he is proved guilty.
I may have read this section rather hurriedly, but I do not agree with the Senator's interpretation of it. Sub-section (3) says:—
If any person is present at or takes part in or gives instruction to or trains or drills an assembly of persons who, without or otherwise than in accordance with an authorisation granted by a Minister of State under this section, practise or train or drill themselves,
and so on. I presume that the State would have to prove that the person was there, and the last clause, I understand, is that if the person were there and charged with it, it is up to him to prove that he was authorised so to do, and if he was authorised, I presume he would have a document or something of that kind to that effect. With regard to the question of his having to bring forward proof, that would be only if he said that he was there, as proved in court, and that he was there, covered by an authorisation from the responsible authority. I think it would be a simple matter but, of course, I may have misunderstood it.
What Senator Fitzgerald says is quite correct. I submit, with all respect, that Senator Hogan's argument is entirely irrelevant. This is dealing with unauthorised military exercises. The State finds a person engaged in those activities, and it is then for that person to prove that he was authorised to do so. If Senator Hogan's amendment were carried it would mean that you would put every Minister of State into the box to say that he had not authorised these things.
Surely if Ministers of State give an authorisation in a matter of this kind they would have records of that authorisation. They would have these records and it would be quite an easy matter for them to prove it, and not put the onus of proof on the person concerned.
It seems to me to be the other way about. The Ministers would have to prove that they had not authorised.
There is nothing novel about this. It is almost part of the common law. You have it in the case of persons found in the possession of firearms and so on. There is nothing novel in it, and it is no exception.
Is the amendment being pressed?
I wish to be recorded as dissenting from the sub-section.
Question—"That sub-section 5 stand part of Section 13"—put and declared carried, Senator Hogan dissenting.
There is a point to which I should like to call attention in connection with Section 13. It is only a matter of drafting. Under the definitions, the word "organisations," includes "associations." Therefore, it seems to me that there was no necessity for the word "associations" as well as "organisations." However, it is only a drafting point to which I wish to draw attention.
Section 13 put and agreed to.
SECTION 14.
Question proposed: "That Section 14 stand part of the Bill."
Section 14 refers in the margin to secret societies in Army or police, and then in the section itself it talks of secret societies which include, amongst their members, members of the military or police. The two things seem to me to be quite different. Naturally, of course, the section itself is what counts, but I think it is conceivable that a secret society might exist which had amongst its members a person who was not a member of the military or the police, but who might subsequently become one without the organisation knowing that he had done so, and the section does not say what the organisation existed for. I should have thought that this matter would have been much better dealt with from the other end, that is to say, to make the police and soldiers give an undertaking that they will not join any secret society, and punish them if they do.
There are secret societies so recognised in the public mind, and there are also societies that have secrets, such as, for instance, political parties. They are societies with secrets; they come to decisions behind closed doors and agree amongst themselves not to disclose what they talk about. I see some Senators smiling but, after all, we all know that decisions are come to at meetings of parties and that they agree not to divulge the secrets. That would seem to make them into a secret organisation, according to this. Sub-section 2 says:
In this section the expression "secret society" means an association, society or other body, the members of which are required by the regulations thereof to take or enter into, or do in fact take or enter into, an oath, affirmation, declaration or agreement, not to disclose the proceedings or some part of the proceedings.
There is no oath, necessarily, or no affirmation; they merely agree amongst themselves that they will not disclose their proceedings. Now, I do not suppose for a moment that a member of the Civic Guards could ever be successfully disguised as a T.D.—his intelligence and innocent countenance would give him away at once—but there might be other organisations.
Why not include Senators?
There are no Parties in the Seanad. There might be other organisations in which there might be agents provocateurs, or members of the police force who were stool-pigeons, decoys, or something of the kind, sent to get information, and by reason of the fact that they became members, this organisation, which was not necessarily a secret society at all, might be pilloried. I think the word "agreement" spoils the definition of a secret society. If there is an oath, an affirmation or a declaration, the average person would feel that it was a secret society, but the use of the word "agreement" seems to me to be going too far. That is my principal objection to this section.
I think the Senator slightly misunderstands when he says that a man may belong to a secret society, or to a society with secrets, and afterwards become a member of the Army or police. I do not think that is covered here, because in each of these sub-sections there is the positive act of forming.
My argument is in respect of the meaning of "maintain."
The Senator is basing it entirely on that word?
How does one maintain a secret society? Does mere membership of a secret society constitute the act of maintaining it?
I should not think that membership meant maintaining. This section was taken from the Treasonable Offences Act. Senators, I am sure, will appreciate the difficulty of getting certain definitions. It is very hard to get a definition of "secret society" and to provide against all the possibilities, and still have an effective section to deal with what is really intended to be dealt with. If the Senator thinks there is any point in it, I will have it re-examined. I have no objection to doing it, but a similar section has been in operation for some time, and it has not resulted in any of the things about which the Senator seems to be alarmed.
Are there regulations in existence in the Army at present prohibiting membership of secret societies?
There used to be, anyway.
Prohibiting membership of any secret society for any object whatever?
Question put and agreed to.
SECTION 15.
Amendment No. 6 not moved.
Question proposed: "That Section 15 stand part of the Bill."
I want to raise a point with regard to sub-section (1). It speaks of planning, contriving, promoting or assisting a breach of the peace. In The Irish Justice of the Peace, by O'Connor, it is laid down:—
"To determine what constitutes a breach of the peace, no general rule can be laid down. Each case must be determined upon its own facts."
How does one contrive something about which there is no plan laid down? How can one promote it? Something has to take place before anybody can decide whether it is a breach of the peace or not. The thing that is being contrived does not exist until there is a subsequent declaration that it did, in fact, turn out to be a breach of the peace. I can understand punishing people, even if their intentions were of the best, for having committed a breach of the peace, but to punish them for contriving to do something of which they were perfectly innocent and which subsequently turned out to be a breach of the peace, is somewhat different.
A breach of the peace is one of those things which we all recognise, but which we all find very difficult to describe or define. The same applies to the elephant. Everyone knows what it is, but everybody will find difficulty in exactly describing it. We are in the position that the Attorney General must examine each particular case on its merits and see whether or not it constitutes a breach of the peace, in his opinion. I certainly could not venture to define a breach of the peace, although, as I say, we all know what it is.
With regard to knowing what it is, I might remind the Minister that Lord Shaw of Dunfermline and Lord Shannon, who was Lord Chancellor, well known as Ignatius O'Brien, decided that the Howth gun-running, which consisted of shooting down the civilian population, with everybody firing guns, was not a breach of the peace. When the Minister says that we all know what it is, I think there might be a diversity of opinion. It is not, however, what a breach of the peace is, but contriving a breach of the peace, that I mind.
I must protest against the statement by the Senator that the Howth gun-running consisted of shooting down innocent people. If he says that the resistance to the Howth gun-running consisted of shooting down innocent people, I agree, but when he says that it consisted of shooting down innocent people, I have to protest.
I am speaking of the military. There was shooting. Gun-running does not shoot anybody. It is the firing of guns that shoots people, and guns were fired on that occasion.
We had better abstain from historical analysis.
Question put and agreed to.
Sections 16 to 20 inclusive agreed to.
Question proposed: That Section 21 stand part of the Bill.
With regard to sub-section (2), if the High Court fails to make a declaration of legality, and the property which had been taken was the sort of property that made profits, and the organisation from whom the property was taken lost, would they have any redress? Could they sue for damages or return?
I am afraid that would not be covered. You are bound to return any property, if there was any profit, but I do not see how a profit could accrue if the property were in State hands, having been seized. So far as I see there is no provision made for what the Senator is raising.
Question put and agreed to.
SECTION 22.
Question proposed: That Section 22 stand part of the Bill.
I was not able to accept an amendment by Senator Hogan to a previous section, but the wording of this section appears to me to be more harsh and more likely to lead to injustice than any of the previous sections to which there were amendments on the paper. The idea of the section is that if an incriminating document, relating to an illegal organisation, is found on land owned by, or under the control of, a particular person, that person is proved to be a member of such organisation. That seems to me to be going very far. I understand what the Minister wants to accomplish, and I find it difficult to see how the thing could be amended, but we all know that in a house in which there are three brothers, for example, the eldest may be the person who owns or occupies the premises, and under whose control the premises and lands are, and it may be that the youngest brother is a member of the organisation. The fact that an incrimmating document, belonging to the organisation, is found on the land, or on the premises, is taken to be evidence that the owner of the premises is a member of that organisation seems to me to be rather extreme. He might have the greatest possible difficulty in proving he was not, because, if I understand the section aright, the mere production of a document found in a room under his control, or on land under his control, is sufficient to prove membership, which is sufficient to prove a crime under this Bill. The onus is placed upon him then of proving he is not a member. That, I think, is certainly a reversal of the ordinary law. Looking at the matter realistically, in the circumstances we all know of, it seems to me to be going very far and to place a father, or uncle, or a brother in a very difficult position, from which he would find the greatest possible difficulty in extricating himself.
On this section, I am doubtful as to the grammar in line 6—"shall, without more, be evidence"—does not sound to me, as an ordinary piece of prose, to be good English. It may have some legal meaning. Without more what?
Without more evidence, obviously.
I appreciate Senator Hayes's point, but this is not exceptional. There are other cases which come to mind. We all know when illicit spirits are placed on lands or premises the owner is automatically prosecuted unless people are found there at a particular still. But, as the Senator knows, in cases of this sort somebody usually takes responsibility for the documents found on the premises. We see it happening in another country at the present time. I would be anxious, if it were possible, to meet the point in some way, but I am afraid it is impossible. I do not know how it can be met.
Would it be any help to consider inserting the words "prima facie evidence”?
Yes, I think I could accept that.
I must confess I sympathise with the Minister. I did make an effort to get an amendment to this and did not succeed. I thought of prima facie evidence. It seems to me that, if it is prima facie evidence, it is evidence.
It puts the onus on him to prove that he did not know.
Mr. Hayes
That is the same as the section stands at present, except that it puts more words into it.
I do not know how the case stands technically, but the impression on my mind is that if you have the words "prima facie evidence” it suggests that the evidence could be rather more easily rebutted than if the words “prima facie” were not there.
I will have the matter reconsidered between now and Report Stage.
Question put and agreed to.
Sections 23 to 27, inclusive, agreed to.
SECTION 28.
(1) A member of the Gárda Síochána may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
(2) Any member of the Gárda Síochana may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.
I move amendment No. 7:—
In sub-section (1), page 16, line 21, and also in sub-section (2), page 16, line 33, after the word "Síochána" to insert in brackets the words "(if he is not in uniform, on production of his identification card if demanded)"
As Senators will see, this amendment is intended to protect the public against what might be called bogus policemen or people going round posing as policemen. It is to ensure that that cannot happen. I may add that this amendment was suggested by Senator Miss Kennedy and I think it is a very good amendment.
How is a member of the public to know what an identification card looks like. Is there a familiar form of identification card?
There is; it is signed by the commissioner.
Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 to 36, inclusive, agreed to.
SECTION 37.
Question proposed: "That Section 37 stand part of the Bill."
On Section 37, which deals with the constitution of Special Criminal Courts, I do not know whether the Minister would care to say what he has in his mind, but I find it difficult to understand the intention. The kind of court we would all prefer is a court of judges, that is, persons who have the tenure and the status and the independence of judges. Failing that, it is rather difficult to see how you are going to get any court. You can get a military court. Is there any particular scheme in mind as to whether there will be a mixed court? Presumably on account of the appeal to the ordinary courts on points of law, any special court provided under this particular part of the Bill must have a lawyer on it. Without wishing to be harsh. I think I myself would rather be tried by three officers than by three barristers who were expecting something from a particular Government. First, I would rather be tried by judges if I could get them. If judges are not available I see great difficulty in the selection of legal persons who have not got the status of judges and who have not got the qualities, naturally, of soldiers in a particular set of difficult and dangerous circumstances. I do not quite know what particular kind of court can be formed under this particular section. It seems to me to offer very great difficulties. I do not know if we could get any enlightenment as to the type of court proposed.
I wish I could enlighten the Senator, but I am afraid I am in a difficulty in this matter. I have not got so far as approaching anybody or taking any steps to set up a special criminal court. Naturally, that would be rather premature until this Bill becomes law. Then, when and if the occasion demands it, I would like, as the Senator desires, to have judges on the courts and will try, if possible, to do that. If it is to be a mixed court then I would be anxious to get a lawyer of good standing who would be capable of dealing with the legal point of view, but, as the Senator knows, when times become difficult and when there is a threat to people who become members of that court, you are forced back on the alternative of appointing men who are military men. If it is at all possible, it would be the desire of the Government to get judges in the first instance. If that fails, then we will try to constitute the court as a mixed court with some legal man of standing on it. Of course, in any case, there would have to be a legal man on the court or attached to the court, but, as I say, if there was a serious situation, the Senator understands my difficulties or the difficulties of anybody else, in getting men other than military men to deal with it.
Question put and agreed to.
Sections 38 to 56, inclusive, agreed to.
SECTION 57.
(3) Any person who is detained under this Part of this Act may apply in writing to the Government to have his said detention considered by the commission, and upon such application being so made the following provisions shall have effect, that is to say:—
(a) the Government shall forthwith refer the matter of such person's detention to the commission;
I move amendment No. 8:—
To delete sub-section (3) from line 26 to line 33, inclusive, and substitute therefor the following:—
(3) The following provisions shall apply to any persons who are detained under this section of this Act:—
(a) The Government shall within seven days after the arrest of a person under this section refer the matter of such person's detention to the commission.
This is the section which deals with the cases of persons interned. The obligation is being put on the internees themselves to make application to the Government, in writing, to be brought before the commission to be set up to inquire into detentions. I am sure the Minister recollects how indignantly people treated the forms which were presented to them by other Governments asking them to make formal application themselves to be brought before the commissions that sat in those days. That procedure failed in the time of the Anglo-Irish War and subsequently, and, I suggest, it is likely to fail now. I think it is only right that there should be a limit to the period of detention until the internees are brought before the commission to have their position examined. They should not be put to what may seem to them, as it seemed to other people at other times, the degradation of asking to be brought before this commission. The amendment asks that, within seven days after his arrest, the Government should refer the matter of such person's detention to the commission.
I am not accepting the amendment. I think there is no difficulty in the case of anyone who wants to go before the commission making an application. I thought the case the Senator would be making was that what he proposes would apply to illiterate people who did not understand the regulations. That case has not been made. I cannot see any reason why any person, who wants to have his case brought before the commission, cannot apply to have it done. When the application is made it will be considered.
Amendment, by leave, withdrawn.
Section 57 put and declared carried.
I want to be recorded as dissenting from the passing of this section.
Title agreed to.
Bill reported with amendments.
So far as I can see, the Bill, as it now stands, does not give the Government any power at all to deal with the organisation in this country—even openly—of outrages to be committed in another country. Have the Government deliberately left themselves without the power to deal with such activities or have they power under other legislation to deal with them.
We propose to deal with the position here in our own country—with the organisations here. That is all.
Surely we must recognise that we may have organisations here which propose no outrages here but do so in another country. We, surely, as responsible people——
The Deputy is not in order in raising that matter now.
I was wondering if there was any power in the Bill to deal with people here who organise the commission of outrages outside. That is, strictly speaking, treason here. I do not see any machinery here for it.
Report Stage ordered for Wednesday, 31st May.
