This amendment arises out of the suggestion made by Senator Kingsmill Moore here on the Committee Stage. The Senator, unfortunately, is not here, but I think he is satisfied with it. The words are practically his own.
Customs (Amendment) Bill, 1945—Report Stage.
Government amendment No. 1:—
In page 3, section 3, sub-section (3) (b) (iii), in line 38, before the word "prior" to insert the words "within a reasonable time".
Tá mé i sáinn i dtaobh brí na bhfocal atá i gceist san leasú seo. Ba mhaith liom fiathraí den Aire a bhfuil aon tuairim réasúnta cinnte aige i dtaobh brí na bhfocal.
Is baolach go gcuirfidh na focla seo an t-alt an-mhaith ar neimhní. Is cuimhneach go maith le Seanadóirí agus is cuimhneach go maith leis an Aire féin gurb é ceann de na toscaí is mó ba siocar le mí-shásamh imeasc an phobail tamall ó shoin nach raibh na breithiúin ar aon-intinn i dtaobh na bpionós agus i dtaobh méid na gcoir a bhíodh á bplé os a gcomhair. Dá chomhartha seo, ligeadh daoine saor sna cúirteanna agus cúiseanna troma cruthaithe ina n-aghaidh nó ligeadh amach iad ar phianósa a bhí róéadrom ar fad.
Mar atá an t-alt anois, fágtar an iomarca ar fad fa na dlíodóirí agus faoi na breithiúin. Bainfidh dlíodóirí agus bainfidh breithiúin ciallta eagsúla as na focla. Tá súil agam nach n-oibreoidh an scéal amach mar seo ach ní mór a admháil go bhfuil an chontúirt sin ann.
Amendment agreed to.
I move amendment No. 2:—
In page 6, Section 5, sub-section (2), line 37, to delete the word "shall" and to substitute instead the words "may in the discretion of the judge".
We discussed this for some time yesterday and I do not know whether the Minister is prepared to accept the amendment or not. If he is prepared to accept it there is no use in my wasting the time of the House; but if he is not, I will have to try to use a little blandishment.
I think the Senator had better try his blandishment, anyhow.
The Minister's main point yesterday, in dealing with this matter, was that the difficulty had never arisen before. Up to this, we have always been dealing with cases of imports, and never with cases, under the Customs Code, of prohibited exports, and there could only be a conveyance in the different sense of a conveyance used in exportation in the case that we are considering at the moment. The difficulty that I envisaged and explained to the Minister yesterday, in the case of somebody buying a horse. in Naas and carrying it up to Cavan, could not possibly arise in an import case. It appears to me that the effect of this sub-section, as it stands, is going to make the belongings of a person, who has nothing whatever to do with an infringement of the law, liable to forfeiture. Even though the district justice, before whom any proceedings under the Customs Act may come, feels that the man who, as in the example I have given, carried the horse from Naas to Cavan, is absolutely blameless and had no rhyme or reason to suspect that the horse was going to be exported, thus entailing an infringement of the law—even though the district justice is absolutely satisfied, beyond any possible manner of doubt, that that man is innocent, nevertheless, under the sub-section as it stands, the Revenue Commissioners can ask that that man's conveyance be forfeited, and the justice, then, has no discretion of any sort, kind or description.
I know that the Minister will make the argument against that, that the Revenue Commissioners would not do such a foolish thing, but I hold that it is a very bad principle for us to be enacting legislation here which has the effect of taking out of the Judiciary the power of decision as to whether a man is guilty or not guilty, and the effect of leaving the sub-section as it stands is to take out of the hands of the district justice the power of deciding whether the goods concerned belong to an innocent man or not, and to leave that innocent man to rely purely on the powers of remission that are contained in the Customs Code. Those powers of remission which are contained in the Customs Code are intended to refer to the case of a guilty man. They are intended to refer to the case of a guilty man who is pleading for leniency, and in such a case I am prepared to admit that the case of a person pleading for leniency, whether guilty or not, is a case that could fairly be met by the Revenue Commissioners, but I do go so far as to say—and I say it with all sincerity, and accepting completely the personal bona fides of each and every Revenue Commissioner and every person concerned in the matter—that the Revenue Commissioners are far too inclined to be grasping in the manner in which they want to take powers from the courts.
This is a specific case in which they are trying to take from the courts the power to decide whether a man is guilty or not. If he is innocent, his goods should not be forfeited, and, if he is guilty, then they should be forfeited, but the Revenue Commissioners are trying to take that power of decision to themselves, instead of leaving it in the place in which it is proposed to be left by the Constitution and by the natural justice of any civilised people. If that sub-section is passed in its existing form, it is going to be the first time, so far as I know, at any rate, that that power is being deliberately taken out of the hands of the courts, and I think that that would be a precedent that the Minister would be very sorry to accept. I think that the powers of the Revenue Commissioners will be amply provided for under the amended section—amply provided for. There can be no possibility that a conveyance will not be forfeited where it is proved that it has been or is being used in a guilty manner. That, I think, is what the Minister wants to do—to get at the wrongdoer—and with the discretion that is there vested in the judge, then that can be done. Without that, no matter how innocent a man is, he must go pleading, as a guilty man, to the Revenue Commissioners for leniency. I think that that is not the position in which the Oireachtas should ever put an innocent person.
I regret that I was unable to be present when the Committee Stage of the Bill was before this House, because I would have said many things in connection with the legal procedure set out in the Bill, concerning the trial of offenders against the Customs law, but I must now confine myself to the amendment that has just been proposed by Senator Sweetman, and I cordially support it. This sub-section, as it stands, would empower the Revenue Commissioners to seize a Great Northern Railway train—with engine, carriages and its whole equipment—because it was made use of for the purpose of exportation of goods or the conveyance of goods contrary to this Act. That, I say, is a most drastic and most extraordinary provision in any piece of legislation. The sub-section itself is rather drastic, because it gives power of forfeiture in the case of all ships, boats, carriages, or other conveyances, together with all horses and other animals and things made use of in the exportation or conveyance of any goods which are, by virtue of sub-section (1) of the section, liable to be forfeited. Now, that is a most sweeping sub-section. Under it, everything connected with the conveyance or exportation of any goods is drawn into the Revenue Commissioners' net. The Revenue Commissioners could seize a ship or a railway train, it seems to me. I do not know if that is correct, but at all events, it would appear that that power is claimed under this sub-section.
I do not deny that in certain cases it would be just and proper that conveyances used for the transport of goods, contrary to the purposes of the Act, should be forfeited, but I myself think that the use of the word "shall" is rather drastic. I would much prefer to see simply the word "may" alone in the sub-section. In fact, I would prefer to see the word "may" in the amendment to the sub-section which has been moved by Senator Sweetman, because he puts in a proviso that forfeiture is in the discretion of the judge. At all events, I think that the word "shall" is too drastic, and I feel that, while desperate diseases require desperate remedies, one does not try desperate remedies on healthy people, and, therefore, we ought not give powers for the forfeiture of the property of people who in a great number of cases, are absolutely innocent of any complicity in the breaking of the law. This sub-section makes it mandatory, by reason of the inclusion of the word "shall" therein, that the goods of people who are innocent of all complicity in the breaking of the law, shall be forfeited, merely because their conveyances had been used for the purpose of exporting goods, the exportation of which is forbidden by this section.
I should like to point out also that under existing law railway companies and steamship companies are public carriers. They are bound to accept for conveyance goods handed to them for delivery, and they cannot, as a condition of accepting such goods, require conclusive proof that these goods are not intended for exportation contrary to law. Therefore, with one branch of the existing law requiring public companies to carry all goods tendered to them for transport, this section makes it mandatory on the Revenue Commissioners to forfeit the property of public carriers. For that reason I strongly support the amendment.
I should like once again to urge the Minister to reconsider this section. As he pointed out to me yesterday, under Section 3 sub-section (7) a person may be charged with the offence of being "knowingly" concerned on or about a particular date, with certain goods. I told him that I had no objection whatever to that sub-section for the reason that the word "knowingly" was in it. As far as I am concerned I should not mind the forfeiture of a ship, carriage or other conveyance if the persons owning them had knowingly engaged in this traffic, but you will find no such provision in the section under discussion. I would suggest to the Minister that he might let the amendment into the Bill, not necessarily with his approval; then when the Bill goes back to the Dáil, as it must, as he has already accepted one amendment, he will have an opportunity of reconsidering this section. Possibly he may agree to insert the word "may" or to introduce somewhere in the section the same principle as is contained in Section 3 (7), by inserting the word "knowingly". I can see that in certain cases the Minister might not be prepared to insert this word "knowingly", but surely when it is a question of carrying goods for somebody else, it should be put beyond question that the person who had accepted the goods had reason to believe they were intended for export. I am afraid this Bill is extraordinarily like one or two other Acts of which we have experience, that in order to catch a certain number of guilty persons, the Minister is determined to involve a number of innocent persons and leave it to the commissioners to decide whether they will proceed against them or not. In a number of cases it is extraordinarily difficult for an innocent person to prove that he is not guilty where that onus is put upon him. Under this particular section, the Revenue Commissioners have only to prove that a particular ship or conveyance was used for a particular purpose and it shall then be forfeited. The Minister must see that is going unnecessarily far.
I think I have reiterated, ad nauseam as some members of the House might think, the fact that no new principle under our law, which in this case is also the British law which we have taken over here, is introduced in this Bill. Senator Ryan is a very old friend of mine and I am very happy to see him in this House, but I think his eloquence is used, as is also that of Senator Sweetman, in a very bad cause in this instance. However, I am very glad to hear his voice here. These eloquent Senators, if I may so respectfully refer to them, and Senator Douglas are using their eloquence to condemn a principle which has been in the law at any rate ever since the Customs Consolidation Acts were passed. We have operated that law for more than 20 years now, and since I became a member of the other House I never heard any complaints that it was tyrannical or drastic.
You never had to operate them in the case of the export of goods before.
No.
That is the whole difference.
That is true. But what the Senator complained of, the likelihood of the forfeiture of a Great Northern Railway train, cannot take place without the courts being brought into operation nor can a ship be forfeited without the same procedure because, as I am advised, this section must be read and construed with another section of the Customs Consolidation Act of 1876. It must be read in connection with Section 207 of that Act. The lawyers will forgive me if I remind them of that fact that, perhaps, is not immediately before their minds. This is a quotation from Section 207 of the Customs Consolidation Act of 1876. It provides that
"whenever any seizure shall be made unless in the presence of the offender, master or owner as forfeited, under the Customs Acts... the seizing officer shall give notice in writing of such seizure and of the ground thereof to the master or owner of the things seized."
The next stage is the condemnation. The section provides that
"all seizures made under the Customs Acts...shall be deemed and taken to be condemned, and may be sold or otherwise be disposed of as the Commissioners of Customs may direct, unless the person from whom such seizures shall have been made ...shall within one calendar month give notice that he claims the things so seized."
On such notice being given the State must take proceedings in the courts for the forfeiture and condemnation of the goods. Section 208 provides that all seizures under the Customs Acts shall be disposed of in such a manner as the Revenue Commissioners direct. I think that that meets Senator Ryan's points.
I am afraid not.
I do not accept that as the law.
Senator Ryan is a greater authority on law than I am, but I am satisfied that I am well advised in this matter, with all respect.
The Minister is quite correct—perhaps I must not say more than that—that the Revenue Commissioners would have to go to court, but on that section the justice has no option. He is only using the district justice as a rubber stamp. That is my point.
I can prove that that is not so.
This Section 5 appears to be a self-contained section. It does not state, as far as I can see, that it must be construed with reference to Section 207 of the other Act. It is self-contained. You do not refer to anything else except this section.
It is with temerity that I interfere now——
Section 14 blows him up on that.
Is it not so, that the section is not conclusive in itself? There is a reference in sub-section (3) to forfeiture under Section 207 of the Act of 1876.
Does Section 14 (3) not bring it in under the Act of 1876?
No.
I am sorry. I am not learned counsel.
Section 14 (3) says: "This Act shall be construed as one with the Customs Acts." Is Senator Ryan satisfied?
I cannot say I am because I do not know what the Customs Acts are?
Do not tell us that. You give your own case away if you tell us that.
The Customs Acts are not defined in this measure. I think they should have been and that Senator Ryan is right.
We have had cases of that kind more than once, to my mind. I came across one case where trains were used, and I am sorry to say, successfully used. In one case, wagon loads of onions were exported illegally——
A good many tons of cattle went through during the economic war anyway.
——and these wagons filled with goods which were illegally exported, or attempted to be exported illegally, were slipped off just before the customs examination took place, and slipped on again just after the train had been examined. I think it might be a very useful provision, if we had that power, to help us in a shortage of wagons. It might be a way of helping out our services, but the fact is that we cannot use that power without going to the courts—and the courts have not their hands tied in the way Senator Sweetman suggests——
The courts, I know, are not tied. Has the Minister been advised on the section?
All I can say is that the power is there in relation to ships and lorries, and the power has not been used. For the last five years, since I became Minister for Finance, I have had appeals made to me or to the Revenue Commissioners against the seizure of lorries. There have been seizures, admittedly, but where seizures were made, they were fully in accordance with the law, and I think the power is necessary to meet the problem we are up against. I have replied to the strong arguments made against using that power by saying that it is used only in accordance with law, which means that the cases must be submitted to the courts.
But, what is your objection to leaving the decision to the courts rather than to the Revenue Commissioners, or I should have said, what is the Minister's objection?
I think it is for the sake of the citizens concerned, and I think that anybody knows, who might have an interest in persons in whose cases there might be a doubt about the guilt, they would get much softer handling from the Revenue Commissioners than anywhere else.
The Minister is not asking me to accept that, is he?
I do, seriously. In cases I have seen, the Revenue Commissioners have exercised great discretion in such matters. In some cases they have been much milder than I would have been if I were a judge. I would have been much more severe in some circumstances.
That is not the same.
I take it that the amendment is not being pressed?
I am not going to withdraw it, Sir. I think it is a matter of principle and I will press it.
Amendment declared negatived.
SECTION 9.
I move amendment No. 3:—
In page 7, Section 9, to add to the section a new sub-section as follows:—
(3) Any judge of the Circuit Court may, in his discretion, on an appeal under this section, direct that the complainant pay the costs incurred by the respondent in connection with such appeal (including any costs incurred by him on any reference to the Supreme Court as provided by the next following section).
We discussed this question, also, at great length yesterday, and I have examined it a little bit further since. Quite simply the position is this: with all respect to the Minister, I do not think his advisers will go farther than to say that there is a possible element of doubt as to whether my view is not the correct one. The Minister will recall what happened in the Brennan case and the Gethins case. Reference was made in the latter case, in a minority judgment only, which meant that the previous decision had affected his opinion, but I would suggest to the Minister that I think that what he wants is to secure that the defendant gets his costs under the circumstances in question, and I do not think it can do any harm to have a specific proviso inserted in the Bill. Probably, the Parliamentary draftsman might not like my exact wording, but I do not think that it can do any possible harm to put it in the Bill, and if this doubt does exist, I think it will be much safer to include it. If the Minister does not like my wording, I would be happy to agree to any other form of wording that would meet the point.
I am not anxious that a person who is not guilty of an offence should be penalised—not at all. I am quite prepared to meet the Senator and the House on the point, if the House so desires, and if the Seanad would be satisfied to accept deletion of that part of the amendment after the words "in connection with such appeal."
I do not think that I can bring in that part because I see that it would be making a Circuit Court judge superior to the Supreme Court.
If the Seanad accepts the principle, Senator Sweetman will be satisfied?
I am quite satisfied.
Subject to what the draftsman says?
Quite.
Amendment agreed to.
Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.
Question proposed: "That the Bill do now pass."
Senator Douglas asked a question on the first day, when we were considering the Second Stage, and I would like to reply to it. He asked if we could give him the title of the British Act in relation to the illegal export of goods.
I thank the Minister.
The title of the British Act is Import, Export (Customs Power) Defence Act, 1939. It is a temporary measure and there have been various Orders in Council made relating to the defence portions of the Act.
I am very much obliged to the Minister.
They include also provisions for putting the onus of proof on the individual charged.
Question—"That the Bill do now pass"—put and agreed to.