I move amendment No. 2.
To add a new subsection as follows:
( ) Where a member of the Garda Síochána had demanded of any person his name and address and an account of his recent movements under subsection (1) of this section, such person shall have the right to request the presence of his legal adviser, and such person shall not be obliged to give the information requested until he has consulted his legal adviser.
This amendment inevitably had to be drafted in a hurry. If the principle is acceptable to the House it might be improved by redrafting on Report Stage. The purpose of the amendment is to write in some procedural protection for the individual in this section which gives power to a member of the Garda Síochána to seek information from the individual. Section 2 states:
Where a member of the Garda Síochána
(a) has reasonable grounds for believing that an offence which is for the time being a scheduled offence for the purposes of Part V of the Act of 1939 is being or was committed at any place,
(b) has reasonable grounds for believing that any person whom he finds at or near the place at the time of the commission of the offence or soon afterwards knows, or knew at that time, of its commission, and
(c) informs the person of his belief as aforesaid,
the member may demand of the person his name and address and an account of his recent movements and, if the person fails or refuses to give the information or gives information that is false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.
The problem here, as with many other sections of the Bill, is that it raises a conflict between the protection of the individual and the interests of maintaining law and order as has been described by the Minister and also the securing of convictions of persons.
The Constitution, under Article 40, guarantees that a person shall not be deprived of his liberty save in accordance with law. I agree with a statement of a very well-known American constitutional judge, Mr. Justice Frankfurter, in a case in 1943 when he said: "The history of liberty has largely been the history of observance of procedural safeguards". These procedural safeguards are conspicuous by their absence in this Bill. It is necessary to ensure that in the political climate in which this Bill is being debated, and with the very real tension in the country, we do not neglect the vital question of writing in procedural safeguards to protect the individual.
I should like to make one comment, and I make it in the absence of the Senator concerned, that is I was very saddened that Senator Alexis FitzGerald did not see the necessity of processing this Bill even in the very short time we have and of looking at the sections with even more vigilance because of the very short time and the responsibility on Senators to make sure that the safeguards are written in. I propose to explain the reason behind this amendment and to try to convince Senators that the amendment, although not perfectly drafted—I am prepared to amend the draft—is necessary and compares with the sort of protection of another jurisdiction which in this area has very similar laws and a very similar desire to protect individual liberty as we have.
The question of the liberty of the individual in Article 40 of the Constitution that no person should be deprived of his liberty save in accordance with law gives rise to what is meant by "in accordance with law". I want to look first at the way in which a similar provision of the American Constitution —that:
No person shall be deprived of his life, liberty or property save by due process of law.
—has been interpreted to give the sort of protection which this amendment would try to introduce into this Bill.
The requirements of due process are that the person will get a fair hearing. Here I must disagree very strongly with some of the comments made by Senator Nash when he spoke about the fact that in civil law systems a person is very often forced to answer questions and explain his position.
The civil law systems work under an inquisitorial system. They do not have, as we have here and in the United States, an accusatory system. You cannot compare them in the way in which Senator Nash did and forget that in the civil law system there are other built-in protections of individual liberty. You cannot take the fact that questions may be asked of the accused under the inquisitorial system and try to introduce it into the accusatorial system. It was a very weak argument on Senator Nash's part and one with which we need not concern ourselves. We are trying to maintain in this country the accusatory system to balance the conflicts of society and, at the same time, protect the individual. The requirements therefore of due process and the essentials of fair procedure are that there be a fair accusatory system; that there be jurisdiction over the defendant; that there is some connection between the defendant and the legal unit, that is, that he be in some cases physically present, or domiciled, in some cases citizenship and so on. He should be given reasonable notice of the proceedings in order that he may prepare his defence. He should be given a hearing. Some sort of trial is essential. He must have a fair tribunal, an unbiased judge and a fair jury. There should be no trial by newspaper or by the media. A prosecutor must act within reasonable limits in prosecuting. He must present the prosecution case fairly and not in such an emotional manner as to distort the trial.
I now come to the relevant part of the essence of due process of these criteria, which is that in recent cases in the United States there has been the extension of the meaning of due process to include the right to legal assistance. This was established in earlier cases, in Gideon and Wainright in 1963. It was also established that a person has a right to counsel when they are being interrogated in a police station. It was established in a case the following year, Escubedo v. Illinois, in 1964. I should like to quote from the case of Miranda v. the State of Arizona in 1966, where the question of the rights and position of the individual when faced with the process of law was considered. It was considered by the chief justice of the court at that time, Chief Justice Warren. I am quoting from theCases on Constitutional Law, by Freund, Sutherland, Howe and Browne, at page 1417. Quoting from the judgment of the Supreme Court, Chief Justice Warren said:
Over 70 years ago our predecessors on this court eloquently stated the maximNemo tenitur se ipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system and, until the expulsion of the Stuarts from the British throne in 1688 and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner when voluntarily and freely made have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner and to entrap him into fatal contradictions which is so painfully evidenced in many of these earlier cases made the system so odious as to give rise for a demand——