When this debate was adjourned I had been considering the question of the constitutionality of certain provisions of this Bill and, in particular, I was examining a key proposal which had not been considered at all by the Law Enforcement Commission established at the time of Sunningdale which recommended the setting up of a procedure of this sort. The key proposal to which I had made reference was the fact that under section 11 of this Bill, as confirmed in the explanatory memorandum and the speech introducing the Bill by the Minister, it is clear that it will only be the special courts—in practical terms the present Special Criminal Court—which will be the court which will apply this procedure and before which offences under sections 2 and 3 of the Bill will be tried. This matter was not considered by the Law Enforcement Commission—they made no recommendation as to what would be the appropriate court. Therefore they did not address themselves to the particular constitutional issue which I now want to discuss.
Article 38, section 3, of the Constitution, allows the establishment of special courts in particular circumstances: whenever the Government are satisfied that the ordinary courts are inadquate to secure the effective administration of justice and the preservation of public peace and order. I had argued that it is clear, on a reading of Article 38 together with Article 3, and from the whole context of the Constitution, that what is meant there is the administration of justice and the preservation of peace and order in the Twenty-six Counties.
Special courts after all, are a substantial inroad on the rights of the individual here and the scope of trial by jury and therefore they constitute a reduction of the full application of the rule of law. This inroad can only be made when the constitutional justification is present. It is clear from the law governing the present Special Criminal Court—namely the Offences Against the State Act, 1939—that the provision for special courts is something which must be triggered off by constitutional requirements and must be brought to an end at the first possible moment, as soon as the ordinary courts are adequate again for the administration of justice and the preservation of peace in relation to the particular offences. This is a very important safeguard and control.
Section 35 of the Offences Against the State Act, 1939, provides as follows:
(1) This Part of this Act shall not come into being or be enforced save as and when and for so long as is provided by the subsequent sub-sections of this section.
(2) If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as foresaid and ordering that this Part of this Act should come into force.
Subsection (3) provides that once the proclamation is published the section will come into effect immediately. Subsections (4) and (5) provide the two methods of bringing this position to an end. Firstly, if the Government are satisfied that the ordinary courts are once more adequate then they can make a declaration to that effect. Secondly, it is lawful for Dáil Éireann at any time to pass a resolution annulling the proclamation by virtue of which this part of this Act is then enforced. Then the proclamation shall be annulled and this part of the Act shall no longer be enforced and the special court provisions will lapse.
Section 36 is another very important provision in this context because it provides for the type of offences which can be tried before a special court— for the jurisdiction under law of the special court. Nowhere in this assessment of scheduled offences is there provision for the types of offences which are mentioned in sections 2 and 3 of this Bill, which would of course under the terms of the Bill be tried before the special court. Section 36, subsection (1) provides:
Whenever while this Part of this Act is in force the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.
It is clear that, once offences have been designated as scheduled offences, persons charged with scheduled offences will be tried automatically by the Special Criminal Court unless the Attorney General or the Director of Public Prosecutions re-directs them to the ordinary courts.
The types of offences which are scheduled at present under the two orders in existence are the Offences Against the State Act offences themselves, offences under the Explosive Substances Act, 1883, offences under the Firearms Acts 1935-71, offences under the Malicious Damage Act, 1861; and under the second order designating scheduled offences there are included offences under section 7 of the Conspiracy and Protection of Property Act of 1875.
Apart from the scheduling of offences to be tried by the Special Criminal Court it is also possible, within the terms of the 1939 Act, for the Attorney General to certify that "in his opinion" the ordinary courts are inadequate in relation to a particular offence. It is provided in sections 46 and 47. Under section 46, in the case of offences brought before the District Court, if the Attorney General requests and certifies in writing that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, he may request the District Justice to send such person in custody or on bail for trial by the Special Criminal Court on such charge. There is provision, whether it be a scheduled offence or a non-scheduled offence, where the Attorney General can request the district courts to send the person to the Special Criminal Court for trial. Under section 47 he may have the person charged originally in the special court on his certificate that, in his opinion, the ordinary courts are inadequate.
On each of these occasions where it is intended to give the special courts jurisdiction to try offences it is essential that there be either a Government order specifying that the offence is a scheduled offence or else a finding "in the opinion" of the Attorney General that the ordinary courts are inadequate for the administration of justice and preservation of peace and order. It is very clear on the face of it that the preservation of peace and order and the administration of justice, as far as the courts established under the Constitution are concerned, relate to the Twenty-six Counties, relate to the jurisdiction which the courts have and which under Article 3, is intended they would have, pending the reintegration of the national territory.
I would find it very difficult, looking at the terms of section 11 of this Bill, to reconcile it with the language of the Constitution and the law enacted under the terms of the Constitution to give jurisdiction to the Special Criminal Court. There is a major constitutional impediment there and I look forward to the Minister's reply on this point.
Apart from the constitutional issue in its strict sense, I think that this provision that offences under sections 2 and 3 would be tried by the Special Criminal Court would be most undesirable, in that it would have the effect of institutionalising the Special Criminal Court as a permanent feature in our law. It is obvious that this Bill is part of a bilateral arrangement with the Westminster Parliament. There is a similar Bill going through the Westminster Parliament and it is intended that this bill will be permanent. There is no provision in it that it will come to an end at a certain time, or that there would be a way of terminating the operation either of the whole Bill or sections of it. In other words, it is intended to be permanent and it is permanent in the form in which its provisions are before us. As such it would purport to give a permanent jurisdiction to the special court to try offences under sections 2 and 3 of this Bill. This involves cases where the actual offence was committed in Northern Ireland or where a defendant escaped from lawful custody in Northern Ireland.
This effect would be highly undesirable because there could be a situation where the Government were of the opinion that the ordinary courts were perfectly adequate again to try all offences in the Twenty-six Counties and for the administration of justice and the preservation of peace and order there, so that the Government would normally have brought in a declaration to that effect and terminated Part 5 of the 1939 Act. However because there is this bilateral arrangement, because that is the method we adopted to cope with what I agree is a very real problem, we would not be in a position to bring an end to Part 5 of the Act to terminate the Special Criminal Court. This has a very real juridical importance, a very real importance for the rule of law in the Twenty-six Counties, for the administration of justice here.
Last year I carried out a study of the Special Criminal Court in my capacity as Reid professor in Trinity College. The lecture was reported in a booklet entitled The Special Criminal Court. I pointed out at the end of that booklet:
Finally, since the Special Criminal Court is a truly indigenous development and does not trace its roots to common law it must be scrutinised with care to ensure that it does not make any unjustifiable inroads on the right to trial by jury.
In the context of the booklet I called for an examination of allegations that persons not connected with any unlawful or subversive organisations had been sent for trial before the special court.
The argument is valid here also. We are not authorised by our own Constitution and we should not lightly consider institutionalising in permanent form the Special Criminal Court or any special court which abrogates the right to trial by jury. There would be very clear-cut opposition if a Bill was to come before this House—which in itself would require an amendment of the Constitution and a referendum —to abolish trial by jury for serious criminal offences. There would be an immediate and a very understandable resistance to that. Yet one of the effects of the provisions of section 11 of this Bill and the whole mechanism of the Bill would be necessarily to institutionalise in permanent form the Special Criminal Court despite the very clear requirements in the Constitution that it is only to be a temporary and extraordinary measure. The Constitution prohibits the establishment of a special court if the ordinary courts are adequate for the administration of justice and the preservation of peace and order. One undesirable consequence of adopting this Bill as it stands could be that there might be peace and order and the proper administration of justice here, but one would still have the existence of the Special Criminal Court in order that it might meet the special requirements established on a bilateral arrangement by the terms of this Bill.
Therefore, on the constitutional issue I would say that on the face of it the use of the Special Criminal Court to try offences under section 2 and 3 of this Bill appears to me to be outside the range of Article 38, outside what is justified and authorised by the Constitution and that even if one could get past that apparent constitutional hurdle it would be most undesirable to institutionalise the Special Criminal Court in permanent form, as this Bill would do.
On the question of extra-territorial offences, I think I would share the Minister's reasoning in his introductory speech on the question of their constitutionality. There are a number of precedents both here and elsewhere for extending jurisdiction and that is not a major impediment. However, if the Bill is to be referred to the Supreme Court, it would be proper that this aspect would also be considered as part of the general referral to the Supreme Court. But I do not my self think that it is a major impediment.
Before considering the political context of this proposal I would like to raise what I consider to be one or two difficult problems with other sections of the Bill. I think that the wording of section 3 as it stands, relating to the escape from custody in Northern Ireland, could give rise to serious problems. It is clear that an attempt has been made to confine this section to a person who is charged with or convicted of an offence, and who is thereby serving a term of imprisonment in a prison or is remanded awaiting trial. But I think in the reality of the position in Northern Ireland this section could be open to abuse or at least bring us into a sort of grey area, because there are very many persons in Northern Ireland who have been either detained—possibly for a substantial period—and subsequently charged, or alternatively, charged with an offence and when the prosecution is unable to offer the proof detained under a detention order.
In those circumstances there are serious problems—and lawyers in Northern Ireland recognise this—of parallel proceedings. A person may be charged with an offence but also detained under a detention order, in that these two may run together. It would be much less desirable in those sort of circumstances that we would uphold and support a judicial system where in effect the person was detained without a trial and escaped from detention rather than from prison after conviction. The wording of this section does not take into account the various difficulties which would arise in practice if the section itself were to be implemented. I would welcome some further clarification from the Minister on that point.
The major criticism I would have of the proposals in this Bill to create extra-territorial offences and to provide that where a person was brought to trial in this jurisdiction for those offences the court could go on commission to the other jurisdiction and hear the evidence there are legal arguments. First of all there are the constitutional arguments I have already outlined about the use of the special court and the fact that I do not believe that this is authorised by the Constitution. But also this Bill operated in a very narrow context and offers support to the judicial administration in Northern Ireland in a very blanket form without any questions being asked, without any questions about the extent to which the rule of law prevails in Northern Ireland, without any questions of the extent to which human rights are safeguarded in Northern Ireland. This could have the undesirable consequence of undermining the administration of justice here in the South.
I think that we want to be very wary of lending our full support and official approval to the processes of law enforcement in Northern Ireland. I want to make this point in as responsible and as serious a way as I can, because it is a point that could be misunderstood. Various serious "non-political" studies which have taken place have shown that there are serious defects and at times a serious bias in the administration of justice in Northern Ireland. I should like to refer to a study on the operation of the courts in Northern Ireland called Justice in Northern Ireland: A Study in Social Confidence. This is a study carried out by Dr. Tom Hadden and Paddy Hillyard, who are both very well known to me. They are serious researchers. One is a lawyer; the other is a social scientist with a particular specialist knowledge in criminology. They carried out this study in 1973. They have subsequently, together with Kevin Boyle, brought out a more substantial work on law and the State in Northern Ireland, which I have not had the benefit of reading because it has just come out. But this study, I think, makes it clear that the administration of justice is not carried out, and has not been carried out, in an evenhanded way which could make us confident in linking in to the system of the administration of justice in Northern Ireland. I quote briefly from the conclusion of the study:
It is clear to us that the judicial system in Northern Ireland has never enjoyed the respect and confidence of the minority community. One indication of this was the fact that at no time during the civil rights campaign of the late 1960's was any case raised in the courts which required the judges to determine any of the many allegations of discrimination against Roman Catholics at the local government level. Some attempts were made to initiate proceedings but the problems of procedure and finance were never surmounted, and when an application for legal aid was turned down the attempt was abandoned. But an issue was eventually raised in courts in 1968 over the interpretation of the Special Powers Act the reluctance of the majority of the judges both in the Northern Ireland Court of Appeal and in the British House of Lords to interfere in executive decisions resulted in the rejection of the case. The result in these cases reinforced the initial lack of confidence among the minority of the judicial system.
The failure of the civil rights leaders to pursue or obtain a legal remedy is in our view to be attributed to two major factors. First there was the pre-existing lack of confidence in the prospects of winning any case in the courts. This was due largely to the fact that so many judicial appointments had been made from those who openly supported the Unionist regime. Second there was the unsatisfactory performance of a legal system in response to those issues which were raised. Neither the lawyers nor the judges in Northern Ireland had been trained to deal directly with the broad issues of social and legal justice raised in the civil rights campaign. The current British tradition of relying on highly precise and technical points of procedure and of erring on the side of caution in apportioning blame was highly inappropriate. This would seem to us to be a compelling argument for the enactment of a strong Bill of Rights for Northern Ireland.
I just want to refer to one other brief passage at the conclusion of this report:
Since the introduction of internment without trial in August, 1971 the Northern Ireland judges have taken a more direct approach to their responsibilities as guarantors of justice and civil liberties. But this welcome trend has been effectively cancelled out by the superimposition of "executive justice" on the decisions of the courts. The numerous cases in which the security forces have used their powers under the Special Powers Act to rearrest person acquitted or ordered to be released by the courts, and the failure to pursue cases arising out of alleged misconduct by members of the security forces with the same vigour as those against suspected terrorists, have been extremely potent factors in the continuing lack of confidence among the minority community in the judicial system as a whole.
We cannot consider a Bill of this sort, which would require extensive and full-co-operation between the judicial authorities and the police authorities here and in the North, in isolation from the very serious criticism which had been made of the administration of justice and the rule of law in Northern Ireland.
It is relevant to remember that at present when an application for extradition is made when a warrant issues from Northern Ireland and is sent down here to be backed by an assistant commissioner, and when the accused comes before the District Court, an order is made for his extradition and he makes application under section 50 of the 1955 Act, the allegation that is made in general and which is accepted at present by the High Court judge who determines the matter is that "the rule of law has broken down in Northern Ireland and that the person is involved in an armed revolt against the administration there". It is variations on that formula, that the rule of law has broken down and that the particular individual is concerned in an armed revolt against the forces of law and order in Northern Ireland which result in a judicial ruling that the offence is a political offence or connected with a political offence.
I will have some comments to make on the approach of the Law Enforcement Commission to this question of extradition. Indeed, on reading the arguments of both sides on the question of extradition, I would find myself much more persuaded by the arguments put forward by what might be called the British side. I thought the arguments were stronger in favour of having a certain derogation in relation to specified offences from this principle of not extraditing for political offences or offences connected with a political offence. However, that does not take from the point that, at present in our High Court, the argument based on a breakdown of the rule of law in Northern Ireland is accepted on its face by the judges here.
Therefore, the most serious criticism of the legal aspects of this procedure is that it is a very limited and blinkered approach to the whole Northern problem. It appears to suggest that one can isolate the question of law enforcement; that one can have full co-operation and respect for the administration of justice and the police forces in in Northern Ireland despite the many serious criticisms made by international jurists, by researchers in Northern Ireland itself, by independent commentators and indeed made by ourselves as a country when we brought Britain to the European Commission and Court of Human Rights for the allegations of improper treatment of prisoners held in custody in Northern Ireland. I do not think it is possible to divorce this narrow question of law enforcement from either the broader juridical context or the political context.
The political aspect has been dealt with at some length by several Senators who have contributed already and who have pointed out that the recommendations of the Law Enforcement Commission, and in particular the proposals contained in this Bill, were part of a general overall political package agreed at Sunningdale on 6th-9th December, 1973. I do not think it is politically wise to separate this narrow aspect of the package and then to introduce into it a new concept that the Special Criminal Court would be used as the court for the purposes of this particular mechanism recommended by the Law Enforcement Commission; nor do I think it is having very happy or desirable consequences in Ireland in April of 1975 in either the North or the South of this island.
The law Enforcement Commission, consider four possible ways of solving the problem of the fugitive political offender. If the Minister is to rely at all on the recommendations of the Law Enforcement Commission, then he must surely give reasons, which do not relate to the urgency of getting an agreement as part of the Sunningdale package, for rejecting the other proposals of the Law Enforcement Commission and, in particular, the proposal for the all-Ireland court method. The Law Enforcement Commission considered four proposals:
(a) a common law enforcement area in which jurisdiction is exercised by an all-Ireland court—the all-Ireland court method;
(b) the extradition method;
(c) the conferring of additional extra-territorial jurisdiction upon the courts of each jurisdiction—the extra-territorial method; and
(d) the exercise in each jurisdiction of extra-territorial jurisdiction by special courts consisting of three judges, at least one of whom will be a judge of the other jurisdiction— the mixed courts method.
The Law Enforcement Commission dealt first with the all-Ireland court method in chapter 2 of the report. They explained that they dealt with this method very briefly because they were agreed that it was not practicable to deal urgently with the problem by this means. What they meant was that in the context of a political package an overall package, which included provisions for a joint police authority, against the background of the existence of a power-sharing Executive, and which included provisions for a Council of Ireland the political exigency was that there must as a matter of urgency be an agreed solution to this problem of the fugitive political terrorist. Since the Law Enforcement Commission were urged to think in terms of weeks rather than of months, and to bring in their report as soon as possible, they did not give much consideration to this particular proposal. However, they gave it sufficient consideration to see that it had certain advantages. I should like to quote briefly from that part:
It was clear to the Commission that the method possessed certain advantages: for example, the court's ability to sit anywhere in the island and its jurisdiction over the whole island would solve problems with regard to attendance of witnesses. Moreover, full uniformity in the law to be administered has many attractions. However, the setting up of such a court would require amendment of the Constitution of Ireland. This could be brought about only by a referendum, which would be attended by inevitable delays and by uncertainty as to the result.
Several things have changed since the Law Enforcement Commission made that comment. The immediate urgency of reinforcing the political package of Sunningdale is no longer there. A considerable amount of time has passed in the interim in any case. Secondly, the major Opposition party in the South have indicated their preference for the all-Ireland court method, that they are in favour of the establishment of an all-Ireland court together with provisions for the safeguarding of human rights in the whole law enforcement area.
In the political sphere it is clear that it is not possible to contemplate serious political changes of this sort unless there is an indication of support from the Opposition. It would be worse to try to change the law in this area and lose a referendum when the matter went to the people than not to have tried at all. So there would be some justification for not considering this method if it was clear that there was opposition from the Fianna Fáil Party. The contrary is very clear and I would say that the Government must have been able to ascertain this privately rather than in the full glare of publicity when this Bill was introduced into the Dáil and then removed to be given its Second Reading in this House.
Most of the factors which conditioned the Law Enforcement Commission in their approach to the all-Ireland court method are changed. The time factor is changed and the attitude of the Opposition Party in the South is clarified and is in favour of this approach and therefore holding the necessary referendum would not necessitate a great risk. The people of Ireland would, in fact, welcome an opportunity of establishing a proper respect for the rule of law and respect for human rights throughout the whole island. So the only opposition at a political level that one could envisage is the opposition of the loyalist and, in particular, the more extreme loyalist voices in Northern Ireland.
This is why I do not find the measure before us a satisfactory one. It requests the Seanad to give recognition and co-operation to the present administration of justice and police forces in Northern Ireland at no price at all; there is no quid pro quo of the protection of human rights in Northern Ireland. As must be clear from the extracts I quoted from the study made by Tom Hadden and Paddy Hilliard, this is a most one-sided, shortsighted and unsatisfactory approach. The political package which would have to be worked out is one which has a quid pro quo; so that we have an all-Ireland court method for the enforcement of law, for the upholding of the rule of law, for the trial of people who commit serious offences against persons and against property, but that we also have the full operation of the rule of law in its positive sense, in a sense that there is the protection of human rights throughout the area of this island.
There was a burden on the Government when the rest of the Sunningdale agreement collapsed to begin again and to build up this type of package, the package that would have the necessary quid pro quo of a guarantee of full protection of human rights in Northern Ireland and review by the all-Ireland court, because the idea of having a law enforcement area and the protection of fundamental rights throughout that area presumed that there would have to be a final court to interpret and review and uphold human rights within the area. I regard the assessment of the Law Enforcement Commission of the impracticability of the all-Ireland court method as a very superficial one in the present context in which we find ourselves, and I would urge the Minister to reconsider this position and to reconsider proposals along the lines of that option.
Looking at the extradition method, it is worth putting on the record of this House that, having examined the detailed arguments on both sides of the case for using the normal extradition method by designating certain types of offences which would not benefit from the classification of being political offences or connected with political offences so that persons could be extradited for them, I would express the personal opinion that the arguments put forward by the British team on the Law Enforcement Commission were much stronger and much better argued than the Irish arguments. However, when the four Irish members of the Law Enforcement Commission are united in opposition to this possibility it is not a political reality to consider that proposal.
The third option was the extra-territorial method, and it is the second model of this extra-territorial method which has been chosen. This would allow for a commission to hear evidence in the other jurisdiction, that is in Northern Ireland, in relation to persons on trial here for offences committed in Northern Ireland. It is that variation of the extra-territorial method which the Minister has chosen. As I have said previously, he has however introduced a totally new factor by deciding that it will be the special court which will be the court which will try such offences.
This extra-territorial procedure imposes an enormous responsibility on the members of my profession, the Bar. I was trying to think what it would be like to be briefed in a case of somebody who was charged with committing a serious offence in Northern Ireland, such as murder, escaping from lawful custody in Northern Ireland or one of the other offences in the Schedule to this Bill, where witnesses were not prepared to travel and it was necessary to go North. It is hard to consider that in practice without immediately envisaging a police cortege going North, the accused in one police car, the legal representatives in another one and judges of the court in a third car; then at the Border a transfer of the accused to the authorities of Northern Ireland, a transfer of the police protection aspect—if there is a police protection aspect—to the police authorities in Northern Ireland. It is very difficult to make this point explicitly but it could undermine the independence of the Bar. It certainly would not be a desirable procedure from the point of view of the legal profession, although I have no doubt at all that the members of my profession would be prepared to cooperate if this was the method chosen.
From a practical level it has these undesirable consequences so, it is worth trying to assess the number of cases of this sort that would be likely to occur. On this point we have some guidance from the Law Enforcement Commission. It is pointed out in the footnote on page 9 of the report that:
From 1st April, 1971 to date——
That would be April, 1974
——warrants for 33 persons suspected of politically motivated crimes of violence have been forwarded from Northern Ireland to the Republic of Ireland in respect of offences in the schedule appended to this Report.
So, in a space of three years—from April, 1971, to April, 1974—there were 33 warrants or requests for the extradition of persons to Northern Ireland, which is an average of more than ten a year and presumably this would continue to be the rough estimate of the number of cases to be expected. In a practical sense that procedure could give rise to very real difficulties for members of the legal profession in safeguarding their own independence, not to speak of the potential risk to them in their personal capacity.
I should now like to adopt a completely different approach to the Bill, to consider a completely different aspect of it and I should even like to go so far as to put on my mortar board as paid professor of criminal law in Trinity College because the points which I am going to make for the next few minutes are narrow but important points relating to criminal law which criticise some extremely badly conceived amendments to the criminal law which are purported to be made in this Bill.
I am referring to sections 5, 6 and 7 of the Bill. Section 5 purports to amend the Larceny Act, 1916, and to substitute the definition of the offence of robbery which is taken word for word from the definition of the parallel offence of robbery in the Theft Act, 1968, in England. The effect would be to simplify the definition of robbery as follows:
(1) A person is guilty of robbery if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery or of an assault with attempt to rob, shall be liable on conviction on indictment to imprisonment for life.
This is identical to the section of the Theft Act, 1968, relating to robbery except for one very important point. It adopts verbatim the section but it does not adopt the definition section of the English Act. In other words, you have a quite different meaning of "to steal" under the provision which amends the Larceny Act, 1916, from the words "to steal" as used in what appeared to be the identical provision of the English Theft Act. The result of this method of amendment is not the result which the Minister desired in the Bill and which he stated in the explanatory memorandum. The present section follows faithfully the language of the English and Northern Ireland legislation and the intention was "that the law will be the same in all three jurisdictions". But the law will not be the same in all three jurisdictions because there is a very distinct difference between the definition of "to steal" under the Larceny Act, 1916, which would still govern the section here and the definition of "to steal" under the Theft Act, 1968.
I had hoped to have brought with me a textbook which would illustrate the difference but I think the point is well made by showing that section 1 of the Larceny Act, 1916, provides that:
A person steals who, without the consent of the owner, fraudently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking permanently deprive the owner thereof."
The English Act, on the contrary, introduced a new and quite different definition of stealing which relates to "dishonestly appropriating the property of another". You do not have to have the intent at the time the act is committed, and you do not have to have this technical factor of "asportation" or "taking and carrying away". Therefore I could conceive of several examples of what would constitute robbery under the English Theft Act definition of robbery which would not necessarily be robbery under the Irish new definition of robbery which is still referring back to the definition section in the Larceny Act of 1916.
The same sort of reasoning applies to the definitions of burglary and aggravated burglary. In the definition of burglary under section 6 it is word for word from the section of the Theft Act. A person, in order to be guilty of burglary, must enter a building or part of a building as a trespasser or, having entered it, "he steals or attempts to steal anything in the building ... or inflicts or attempts to inflict on any person therein any grevious bodily harm." In cases where the type of burglary involves going in with intent to steal then you have the same problem that you have in the case of robbery: that intent to steal is a quite different concept under the Larceny Act, 1916, than it is under the Theft Act and there is a much broader and more flexible definition of theft and stealing under the Theft Act, 1968.
This has particular importance in that section 7 defines aggravated burglary again by reference to burglary and therefore by reference to a possible necessity to prove an intent to steal; but it is aggravated if a person who commits the burglary has at the time with him any firearm or imitation firearm, any weapon of offence, or any explosives. It is provided in the Schedule to the Bill that that would be a scheduled offence which, if committed in Northern Ireland, could be tried before the special court under the terms of the Bill.
I should like to make the point very seriously to the Minister that this is not the place to make very fundamental amendments to our criminal law. I would be the first person to say —particularly in relation to the whole field of larceny—that we very badly need amendments to the Larceny Act, 1916. We need a new modern code, and there is a great merit in adopting the same or a similar approach to what has been adopted in Britain and Northern Ireland. But I think this is the worst possible way of going about it. First of all the Minister has adopted the identical sections of the Acts in Britain and Northern Ireland but not the definition section, so the offences do not mean the same and are not identical but are substantially different. Secondly, for those who are trying either to teach or learn or practise criminal law it is very complicated if you have to look for major changes of definitions of the most common offences in a Bill where you do not at all expect it, the Criminal Jurisdiction Bill, which has to do with extra-territoriality. Then, when you find the definitions of the offences themselves you still have to refer back to the 1916 Act for the meaning of the concepts used in these definitions.
I should like to make one final point on this narrow criminal law issue. I do not think that the present wording of the sections in the Bill would meet even the problem which has arisen in our general extradition law in practice and which indeed arose in the High Court yesterday in relation to an application for extradition on a charge of forgery. I should like to refer to the problem of corresponding offences under the Larceny Act dealt with in The State (Furlong) v. Kelly, 1971 Irish Reports, where the question arose as to whether a warrant which was sent over from England disclosed an offence under Irish law. The warrant was that a person had entered certain office premises in England as a trespasser and had stolen therein certain property contrary to section 9 of the English Theft Act, 1968. The warrant was sent to Ireland to be endorsed and the question was whether there was an equivalent offence under Irish law. The order of the District Justice was quashed in this case and the question was examined by the Chief Justice at the time, Ó Dálaigh, who said at page 141 of the report:
Where, as in the present case, the offence specified in the warrant does not arise under a pre-Treaty statute which has been continued in force in Ireland, the District Court is put on inquiry by s. 47, sub-s. 2, of the Act of 1965——
This is the Extradition Act
—— The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the "corresponding offence") is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limit of the inquiry the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements, A+B+C+D, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as A+B+C+D+ E), then there is no corresponding Irish offence to satisfy the requirements of s. 47, sub-s. 2, of the Act of 1965 for the simple reason that, ex hypothesi, conduct A+B+C+ D falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.
When the Act of 1965 was passed our statute criminal law was, in very large measure, the same as that of the countries to which Part III of that Act applies and, accordingly, no difficulty arose in saying whether or not there was a corresponding offence under the law of the State. The mere statement of the offence in most cases made a perfect equation. However, the enactment of the Theft Act, 1968, has created difficulties which could not have been foreseen in the year 1965. It is now idle to speculate whether, if the Theft Act had been in force in 1965, the Oireachtas would have preferred to specify in a schedule nominatim the offences in respect of which extradition was to be granted. Until some such simple formula is law the District Court and, on a habeas corpus application, the High Court and, on appeal, this Court must prepare themselves for the difficulties of determining what offence (if any) is the corresponding offence under the law of the State.
I would submit that the Minister's attempt in this Bill to provide a corresponding offence of robbery, burglary and aggravated burglary by borrowing the wording of the sections of the Theft Act in England and Northern Ireland does not achieve this object because he has not borrowed the definition section which is crucial. A situation could arise where extradition still failed because, although it would be robbery under English law, because of the broader definition of "to steal" it would not be an offence under Irish law because the intent did not exist at the time of the taking or because there had not been asportation. The District Justice would have great difficulty in deciding on the facts described or what was contained in the warrant whether the offence in the English warrant was an offence under these Irish provisions.
There are a number of other minor points which could be made on this Bill but which I think are more appropriate for the Committee Stage. Perhaps I could summarise the major problems I have regarding this Bill and which dispose me to vote against it on Second Reading. They are first: the serious constitutional problem in using the special court, a matter which was not considered by the Law Enforcement Commission and which appears to be contrary to the wording and intent of Article 38 of the Constitution. Secondly, the fact that this would have the most undesirable effect of institutionalising in permanent form the Special Criminal Court and thereby creating an undesirable inroad on trial by jury in the Twenty-six Counties. Thirdly, cumulative effect of the other arguments that this Bill is being considered in isolation from the whole broader situation in Northern Ireland and in particular the broader juridical situation and that the rule of law is not operating in the way it should be.
The fact that there is serious disquiet in relation to treatment of persons in custody is evidenced by the well-publicised actions before the European Commission on Human Rights. There is no written guarantee of human rights in Northern Ireland. This should be the price extracted at a political level for a proper and broadly based approach to this problem which should be resolved by adoption of the first option considered by the Law Enforcement Commission. I am in favour of the establishment of a law enforcement area where human rights are fully protected and the setting up of an all-Ireland court to enforce the rule of law in that area and to interpret the provisions relating to human rights throughout that area. It is this sort of framework which I believe would meet with broad political approval in the Twenty-six counties that the Government should be considering and should be proposing to this House.
