Amendments Nos. 12, 13, 15 and 16 are being debated together.
Criminal Law (Jurisdiction) Bill, 1975: Committee Stage (Resumed).
Debate resumed on amendment No. 12:
In subsection (2), lines 14 to 18, to delete paragraph (a) and substitute:
"(a) he has a right to be present at the taking of the evidence referred to in the order."
—(Senator E. Ryan.)
We were dealing last night with these amendments and in particular with subsection (2) (a) which it was proposed, according to amendment No. 12, to delete and substitute. Subsection (2) (a) as it stands is unsophisticated, indiscriminate and heavy-handed. There may be circumstances in which it would be necessary for a person in the situation envisaged to be in custody, but to say quite flatly that everybody who wants to be present at a trial, present at the taking of evidence, must be in custody, seems to be quite unnecessary.
The Minister in dealing with this amendment took the convenient example of a man accused of murder, and perhaps it is reasonable that somebody who is accused of a very vicious murder should be in custody.
The list of offences covered by this Bill is a very long one, and whereas some of the offences in the Schedule are very serious offences some of them are comparatively minor. Again, the particular circumstances, whether the person was on bail in this part of the country, or whether he was not on bail or in custody, all of these should be taken into consideration before an order should be made that he should be present in the custody of the police of Northern Ireland. There should be some discretion left to the court. The circumstances of each case should be considered by the court in question and it could then be decided whether or not it was necessary for the person in question to be in the custody of the police of Northern Ireland.
There are many objections to this subsection. The principle one is that it is so lacking in discrimination and that it makes the flat obligation that everybody going to hear the taking of evidence must be in custody. I agree that there might well be cases in which this would be appropriate, but I am suggesting that there would be many other cases in which it would be entirely inappropriate. Whereas the amendment has been put down, merely taking out the question of custody altogether, I think if the Minister on Report Stage came back with a more sophisticated way of dealing with the situation that might arise where custody might conceivably be necessary, then it could be looked at again. But to have it in the way in which it appears in the section at the moment is quite unnecessary and going much too far to deal with the kind of situation that might arise.
Just to remind Senators of the reasons for the section as drafted, it puts into effect the agreed recommendation contained in paragraph 26 of the Law Enforcement Commission Report. This was part of the agreed recommendations that were accepted by the two Governments. This section implements what that paragraph sets out and what was accepted by the two Governments. Consequently, it is necessary for the accused to be in the custody of the police of the other jurisdiction. There is a reciprocal provision in the UK Bill.
I think this is based on common sense. Unless these people, who were going to another jurisdiction for trial or for the hearing of evidence, were in custody, it would be inevitable that they would escape. That is the reason this has to stand.
Senator Lenihan's amendment, No. 15, contains a suggestion that the writ of the Garda Síochána would run in Northern Ireland. That, of course, raises immense constitutional and political implications, and it would have to be reciprocated in full. Would those who made the speeches here about collaboration and that sort of nonsense be prepared to allow the writ of the RUC to run in the Republic in similar circumstances? There is no point in saying that the police here will have mere physical custody in the other jurisdiction. They would have to have legal custody, so that escaping from that custody could carry a sanction.
The reality behind this section is, first of all, that it implements what was recommended by the Law Enforcement Commission and accepted by both Governments and, secondly, it is a common-sense provision to ensure that the accused in the scheduled cases envisaged by this Bill, which are all serious offences, when he does exercise his option to go, cannot escape without bringing a sanction on himself.
In the first place, although it is in the recommendation, I think the Minister not only should but must, if he feels it is the right thing to do, depart from the absolute letter of the law of the recommendations that have been made. Secondly, I cannot accept that everybody, as the Minister suggests, is going to escape the very moment he is given an opportunity to do so.
How do we decide in advance who will and who will not?
The courts decide in advance all the time by giving people bail. If a person is on bail down here and convinced of his own innocence and that he can show he is innocent and wants to go to the North to hear the evidence and make sure that he is properly defended, there is no basis for believing that he is going to escape the moment he is let out of whatever custody he is in the North. This merely illustrates the heavy-handed aspect of this section. It makes no provisions for different cases. It just accepts the suggestion that every person is going to escape the moment he is given an opportunity. That would not be the position and the section should not flatly accept that.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 13 not moved.
I move amendment No. 14:
In subsection (2) (d), line 29, to insert "interrogation or inhuman or degrading treatment" after "process,".
It is merely to include in line 29 that the person will not only be immune from intention of any kind of suit or legal process but will also be immune from interrogation or from inhuman or degrading treatment. This is following the suggestion which has already been dealt with at some length. One of the objections to having people in custody in Northern Ireland, one of the objections to having them in any position of peril there from that point of view, is because certain people in custody in Northern Ireland have been subject to interrogation, inhuman and degrading treatment, and of course, this is the subject of the proceedings which are going on before the Court of Human Rights. This is merely to try and ensure that they will be immune from something that is a very real danger, not something which is a figment of anybody's imagination but something that has happened repeatedly over the past four or five years and could happen again. This is to try and ensure, in so far as it is possible to do so, that they are immune from interrogation and protected from inhuman or degrading treatment.
The House can be assured that what is sought in this amendment will, in effect, be the position in practice, but it would be altogether inappropriate to have such an amendment in a statute. The position of the person in custody will not be at all analogous to a person arrested within the other jurisdication on a charge committed in the other jurisdiction. This is a person who will be going into that jurisdiction in custody on foot of reciprocating legislation and with a lot of attention and publicity on him. To think that the position would be analogous or to raise spectres because of what happened in the past to people arrested within another jurisdiction for crimes committed within that jurisdiction is altogether false.
Amendment, by leave, withdrawn.
Amendments Nos. 15 to 17, inclusive, not moved.
Question proposed: "That section 11 stand part of the Bill."
My attitude to this section is similar to my attitude to the Bill in general. I have felt from the very beginning that it was unnecessary, that we have been embarking on a very dangerous course by trying to push this Bill through in any shape or form and I have no hesitation in saying that many others as well as myself would have no confidence in or respect for those people in the Six Counties with whom we would be asked to associate and to co-operate in matters such as this.
We should firmly and realistically accept that the regime in the Six Counties is the British Government and that we are acting in conjunction with the British Government in this legislation we are trying to push through. Our ancient enemy is still there with her 50,000 troops and "Gestapo" back-up, and for anybody to suggest that we could agree with the British Government on measures such as these is ridiculous. They have been in our country, as I said on many occasions, for over 800 years and this old fight is still going on. The fundamental reason for most of our ills and troubles in the Six Counties over the last 50 years is the very fact that the British troops have remained there.
The Irish people, in 1918, in two successive elections declared by a majority of 75 per cent for a Thirty-two County Irish Republic. The British Government passed an Act to partition our country, took six of our counties and partitioned part of our province of Ulster and they have maintained their will there by force of arms ever since. There is no doubt that the so-called Government that existed there was kept there by British finance and by British troops, and in the Six Counties at present we have thousands and thousands of these British troops.
Are we now asking our Garda and our Army to associate themselves with men of the calibre of those people of whom we have got the various reports since 1969? Are we going to associate ourselves with the type of treatment that has been meted out to prisoners in the Six Counties at that time? We already have our case at the Court of Human Rights and I would be very interested to know what progress is being made there or who is trying to delay it or why is it that these findings have not been brought to light, because there certainly was plenty of evidence there to justify these cases being brought. I believe that witnesses went out there from the Six Counties, some of them from the British Army and appeared behind closed doors there. Is that the type of co-operation we would expect, with witnesses going from here to the Six Counties? Will those who will be giving evidence against our people up there appear with hoods or bags over their heads, and what right will an accused person have of identifying these witnesses, because I think one of the greatest things that——
The Senator can take it that no witnesses will be heard by our courts who are not visible to them.
I am glad to hear that, but that is the only the word of the Minister. This will be happening in the Six Counties, an area over which the Minister has no jurisdiction at present.
But it will be our courts, that is what the Senator does not understand.
I may not be well up in legal matters and probably the Minister has a point, but I am looking at it from a northern man's point of view. I am thinking of a person from our part of the Thirty-two Counties going up there in custody, not in the custody of our Garda or our Army but in the custody of the "Gestapo" in the Six Counties. They may be B-men or they may be from the UDR or the British army. It does not make any difference; they are all wearing the same uniform.
The Act says "police".
They are armed police and, indeed, the head of the whole "Gestapo" is Sir James Flanagan at present.
The UK Bill does not say "police".
They will be handed over into the custody of the British forces, let us say Her Majesty's forces in our country. They will have custody of our prisoner when he arrives at the Border. Our Garda or Army will escort the prisoner to the Border and hand him over to the British Army. Is that correct?
The RUC will meet them at the Border.
How will I distinguish between an RUC and a B-man?
There is no such thing as a B-man?
It is all right for Senator Halligan to talk like that, but I am trying to be as practical as I possibly can. The prisoner comes along and is handed over to the British police. "ER"—the British Queen—is on their caps. As far as I know, they are paid for by the British and kept there by the British. They are an armed police force.
Perhaps Senator Halligan may be national so far as getting rid of the link with sterling is concerned, but he is not displaying a great national outlook here. However, this is the position as I see it. The person is taken across from here into the Six Counties and our Army and Garda are put in the position that they have to patronise and meet these gentlemen—if you could give them that title—from the Six Counties. They have to meet these British agents who are there for the purpose of seeing that the British and the Queen's writ runs in our Six Counties. That is where their allegiance lies. Our prisoners are being handed over to people who have this record of which the world knows——
They are the people we want to become united with.
I do not want to become united with British soldiers. I want to become united with the other part of my province in the Six Counties.
But they are natives of Ulster.
I do not mind whether they are natives or not. We have natives of this country, too, who join the British Army. I am talking about the British forces. Once they put on the British uniform they are in the British forces.
I think Senator West was correct—if the 5 per cent had been 25 per cent it would have been a different story.
I do not know what the Minister means. I am not trying to create divisions and so on in so far as our people in Ulster are concerned, the nine counties of Ulster. I freely admit that there are the best of Irishmen there of all shades of opinion.
This action of the Minister and of the Coalition Government in trying to ram through this Bill is of no benefit whatever to the settlement of the trouble that exists in our country. It will have the opposite effect. In the Twenty-six Counties we call ourselves a sovereign independent republic. We are right in that. We have a system whereby our Government are elected by democratic choice through the ballot box. That democratic method has been in use since the State was founded and it has been adhered to right down the line. We are a sovereign State and because we are we should be able to keep our own house in order and take care of our own affairs.
We have never conceded at any time that the Six Counties cut off from our country was part of Britain. We do not concede it now. We believe that the Thirty-two Counties, Ireland as it was made by God, is our nation. That is the end and the aim we have been aiming at by peaceful means down the years to ensure our country would be united. This would have happened long ago but for the presence of British troops on our soil. The fact that 50,000 or 60,000 of them are there, the fact that the police are armed, the fact that they have the various para-military organisations with thousands of guns is an indication that the British writ does not run freely, even in the Six Counties, and that British power is maintained there through force. This is probably the dying kick of the Great British Empire. They are trying to hold on to the last piece of the so-called Empire.
Imperial history is a little wide of the section.
Imperial history is something I will not indulge in but the British man still looks on the Six Counties as part of the Empire.
The Senator has been talking in rather general terms and the Chair was waiting in hopes that the Senator would relate these remarks to the particular section. The quicker he does so the better.
I was trying to relate the fact that we, a country unfree, with six of our counties still held by force of arms, are now collaborating with the British Government in this Bill. Various consultations have taken place between our Government and the British Government on this matter. None of us on this side condones murder or any of the crimes specified in the Bill but none of us, I am sure, would freely agree to our Army or Garda being associated with British troops in the Six Counties and being associated with the terrible atrocities committed by British armed forces against our people. That is the most objectionable part of this Bill. It is obnoxious and it stinks as far as the Irish people are concerned. We, an independent nation, went along with the British behind backs and prepared agreement with them while six of our counties are held by force of arms. It is fundamentally wrong. The foundation is not correct and this Bill is unworkable. It will never see the light of day.
Section 11 refers to the taking of evidence in the Six Counties. In the past the method employed there was that British Army personnel, unidentifiable, and referred to by numbers or a hood placed over their heads gave evidence. The Minister may say that when a prisoner from here goes up there he will be able to see the witnesses in the witness box. That is just the Minister's word. He has no authority to ensure that the witness will appear in person. Somebody will be taken in with a bag over his head and he can accuse the prisoner of what he likes and the prisoner will not be able to say: "That is not the person".
That will not happen.
How is the Minister so positive this will not happen, seeing that hundreds of people were thrown into Long Kesh and left there for four or five years even though they did not commit any crime?
Because the court trying this case will be our Special Court. It is a rule of our courts and of our evidence that the witness cannot be disguised.
I am in full agreement with that, but the evidence will be taken in the Six Counties and the Minister will not have any jurisdiction there.
It will be our court that will be taking the evidence in the Six Counties.
It might help if Senator Dolan yielded to the Minister for a few minutes. Since we are in Committee he will be able to speak again.
I do not mind.
There is a difficulty here in that the Minister is interrupting Senator Dolan in an attempt to bring forward the debate.
I was trying to ascertain how the Minister could be so positive that what he says will happen will happen in another jurisdiction over which we have no control. What will happen is that a prisoner will be taken across the Border and he cannot be accompanied by our Army or gardaí.
Would the Senator like the Minister to deal with that specific point and then the Senator can resume his contribution?
I can deal with the point but it will not make the slightest difference to Senator Dolan because he does not want to hear it or believe it. The court trying the case would be a court of this jurisdiction, a court of the Republic of Ireland. Part of the evidence will be taken in Northern Ireland by a commission on behalf of this court and the members of the court will be present during the taking of the evidence on commission. It is part of our law that witnesses do not give evidence while hooded or disguised. Witnesses must be visible to the court and to the accused. The normal procedures in our courts will pertain during the taking of evidence on commission. I can assure the Senator that that is what the position is now and will be at the taking of evidence on commission. Should there be any attempt to introduce witnesses who are hooded their evidence will be disregarded and the commission will not take evidence from such people. It would be in ease of the accused if such a ploy was attempted because that evidence would be disregarded. It would be inadmissable. The thing is so basic that I am at a loss to explain it.
I am thankful to the Minister, but I find it difficult to agree with him or to think that this would happen, especially in view of the evidence we have of what has taken place in the recent past in the Six Counties. Evidence has been given in the Six Counties by people with hoods over their heads.
So far as we are aware those instances have been in connection with the detention or internment procedures in Northern Ireland. In this Bill we are talking about our courts conducting a criminal trial in accordance with our laws.
That may be but in doing that we have to associate with British agents in the Six Counties, with people who are maintaining a British way of life and British laws there they are paid by the British Treasury to ensure that our people are held in subjection. I have not much regard for the decisions given in many of their courts. Twelve months ago we had the case of the young man shot while haymaking and we know of the decision given by Mr. Justice McDermott. There have been instances where people appeared hooded and where people were thrown into Long Kesh as a result of that evidence. It was not done by our courts but those acts were carried out by those people we are now asked to associate with.
It is wrong to ask the Army and the gardaí to associate with B-men, the RUC and British Army personnel, be they hooded, or numbered, or in any form. We are an independent sovereign State and we should be fit to look after our own affairs. The British have been accusing us of harbouring people here from the Six Counties for a number of years. Why do they not arrest those people doing these deeds in the Six Counties? They have enough army personnel but they are not fit to do it. They know they are aliens here and the Irish people are not in favour of the British being here. That is why they have had to maintain their troops here for hundreds of years. They are trying to govern against the will of the people. The only sensible solution is for the British to realise that they must fold their tents and quietly steal away. In going they should pay the debts they owe and we would be able to carry on the social services.
We are now in the EEC and the people of the Six Counties should realise that their interests lie more with us than with England, even from the agricultural point of view. Since Britain's decision to enter the Common Market things have changed immensely. The best and only solution is for the British to clear out. Irishmen would then take care of their own destiny. This section will create divisions. It will place our Army and gardai in an unenviable position. Men who have served the country loyally since the State was founded are now being asked to associate with these people. This Bill will never see the light of day, irrespective of what the Minister may think. Britain is trying to shove over on us the responsibility for something they are unable to do themselves despite all the Gestapo troops they have in the Six Counties. I am not in favour of this section or of any section in the Bill.
Senator Dolan and I would agree on at least one thing, that the basis of this Bill is a political rather than a legal one. Section 11 is one of the substantive sections of the Bill, setting up the machinery for the taking of evidence in Northern Ireland.
As I said on Second Reading, the Bill, and this machinery, puts me in a very difficult position. I sympathise with the Minister and the Government that something should be done about this problem of fugitive offenders from Northern Ireland in the south or vice versa, but I cannot see that this machinery will achieve what it is hoping to achieve. It is too complex and its chances of working are slim. We should have attempted to do something different from this and, perhaps, more radical.
Since this whole argument is really a political one, one has to think about the present and possible future political structures in the North. It seems that there are likely to be major changes in these structures within the next year to 18 months. In fact, it seems that Senator Dolan may have his wish; he may find the British packing their tents and sliding off into the night. However, far from making the situation better, at least in the short term, it may mean that the situation will get progressively worse.
That is the sort of context in which we should look at this legislation, and think about the complicated system of taking evidence, such as in this section, and the machinery set up in the following sections. I do not think we can get away from the politics. There is a good deal of justification for the argument which has been put forward from this side of the House that this was originally part of the Sunningdale Agreement and when the rest of Sunningdale fell was there any point in putting through this section of it? In the present context that argument has a good deal of validity because I feel we are coming to a stage in which Britain is going to change its status vis-à-vis Northern Ireland. It may be gradual, but I think it is actually happening at the moment. In fact, we may be faced with some sort of establishment of an independent State in Northern Ireland, an independent entity whether it is a State or how it works with its own parliament, and with certain powers of negotiation with Dublin and Westminster.
It is hard to see if this is going to happen, but the present climate in the North shows that this is now more of a political possibility than it was some years ago. Both communities in the North see some advantages in this, but there are great difficulties. Senator Dolan has done railing and ranting against the British Administration in the North but we may find him in a year or 18 months' time doing it against a Northern administration. One of the great problems in the situation is that there is no guarantee that a purely Ulster administration will treat the minority in a fairer way than the minority are treated now. It is one of the great problems we have to grapple with. I would have liked to have seen a much more radical piece of legislation which, essentially, changed our definition of political offence so that it did not——
I am afraid the Senator is going very wide in a debate on a particular section. This section is concerned with the question of custody during commission proceedings in Northern Ireland and, while the Senator is entitled to place this problem in the general context, it cannot be all context and no discussion of the section.
I agree and I am not going to follow this line of argument very deeply, but want to put the context in which I see the discussion taking place.
It is difficult to effect this legislation, particularly legislation as complicated as this, when one does not know what the future Northern administration is going to be. The Convention is taking place and we are here passing legislation which may come into effect when there is a different form of administration in the North. This affects the whole question.
This legislation has been described as provocative. I do not think that is the right word, but it is certainly very complex. It means tooing and froing across the Border, taking evidence in the North for a crime committed in the North when a trial is going to take place in the South. In a setup such as that, if one was going to approve of it, one would have to be very sure of the sort of Administration one was dealing with in Northern Ireland. We are not sure what that is likely to be in a year's time, and I think there will be a major change. On the political grounds one has got to know what sort of administration one is dealing with before one puts legislation as complicated as this on the Statute Book and, secondly, the fact that even with benevolent Administration machinery such as is described in this section is so complex that it is unlikely to work.
That is the position as I see it. We should have waited and, instead of introducing this complex legislation, we should have done something simpler and more sweeping when we were in a position to make a judgement on the future administration in Northern Ireland. That is one of the great problems. I sympathise with the Minister. He is making a genuine attempt in this section and similar sections to tackle an extremely difficult problem. I do not think this attempt is going to succeed because the machinery we have here is too complex. He is working in a context which was decided by the Commission sitting after Sunningdale. My view is that the wrong decision was made by that Commission, that they should have at an appropriate time in the future when we were sure of——
I am afraid the Senator is now indulging on matter that is more appropriate to Second Stage and, in fact, was decided by this House on Second Stage. The Committee Stage debate must take place within the framework of the decision of the House on Second Stage. We cannot on individual sections of the Bill have a discussion as to alternative methods of tackling the whole problem.
I wish to explain my ambivalent view of the legislation and of the sections. The Bill is extremely complex and unlikely to work. It is a commendable attempt but I do not think it will achieve what it is setting out to achieve. Therefore I have this very ambivalent view of the whole exercise.
This section probably qualifies as being the most objectionable section in the Bill, although there would be several sections which would would be vieing with it for that position. In any event it is a fundamentally objectionable section and we consider that it should be opposed even if the Minister wished to continue with some of the other sections in the Bill.
It should be opposed because the Minister has said on a number of occasions that the trial will be a trial in this part of the country, that it will be a trial presided over by our own judges and so on. But, in fact, the situation will be that most of the proceedings—call them what you like—would almost certainly take place in Northern Ireland. All the witnesses in the kind of case envisaged would be heard in Northern Ireland and there would be little or nothing left for our own judges to do down here. Therefore you have a situation where the administration of justice in this case would be carried out in Northern Ireland, presided over by a commissioner of that jurisdiction. The administration of justice in the North being subject to grave reservations at the moment and the kind of evidence that would be produced there being certainly subject to very severe reservations means that the trial of a person accused in these circumstances would be a very inadequate one and almost certainly would do less than justice to the accused person.
One of the matters in this section which we have dealt with before and which I have to repeat again is that the accused can only be present in circumstances that fall far short of what justice demands and fall far short of what the Convention on Human Rights demands, because if he can only be present in circumstances where he would be in custody this would not be in accordance with the Convention and would not be in accordance with what have been the ordinary rights of the individual according to our law in the past. From that point of view this section is fundamentally objectionable.
Apart from the fact that this section reeks of injustice, of features which, according to our law in the past, are objectionable, quite simply it will not work and I do not believe that any serious case will ever be brought under this section. Perhaps some token case will be taken merely to use the machinery. Neither do I believe that the Minister is of the opinion that this will work.
This Bill is a gesture. I can understand the Government thinking that they should make some kind of gesture, but unfortunately it is a very dangerous gesture. The Government and their supporters in the Seanad have on many occasions, when dealing with objectionable features of this Bill, referred to the continuing violence in the North. Naturally, all of us are appalled by the violence that is continuing there. All of us are of the opinion that something should be done. But the feeling that something should be done does not justify doing something which will precipitate further injustice and which will probably not work in any event. It will only make the situation worse than it is at present. So therefore the argument that something must be done is not a good argument for doing something that will in itself create further injustice and which is not a credible solution.
This section is a compromise but it is a compromise which pleases nobody. Not merely does it not please the Opposition here but it does not please many of the Government's own supporters. It certainly does not please the Nationalists in the North of Ireland and it does not even please the Unionists in the North of Ireland. Therefore, it is difficult to understand why the Government are going on with this Bill and this section in particular. If I may quote very briefly from the Hansard Reports of the House of Commons of 19th June, 1975, where Mr. James Molyneaux, Antrim South, not an outstanding Nationalist, speaking on the Criminal Jurisdiction Bill, as reported at column 1712, says:
I doubt very much whether any of my right hon. and hon. friends, or any section of the House, will display any great degree of enthusiasm for this measure.
He goes on to say:
The Sunningdale wreck is now submerged apart from the section of the hulk with which we are now concerned.
That is a way of summing it up which would be difficult to improve on. The Sunningdale ship basically would have been entirely acceptable but we are left with the most controversial and the most unacceptable part of the measures emanating from Sunningdale. This section would have to be considered seriously if we had a successful Sunningdale administration in the North, but it is inconceivable—and I use that word with great deliberation—that in present circumstances the Government should want to go on with this Bill and in particular with this section.
The situation in the North is becoming worse. It looks as though it will be worse before it will be better. One wonders whether it will ever be better. It is certainly becoming worse at the moment and until the position clarifies, until we know what kind of administration we are to have in the North, it is inconceivable that we should be talking about this kind of a measure and this kind of a section and about taking evidence in these circumstances in Northern Ireland under an administration whom we cannot but have the gravest reservations about at present and which will probably become worse for some time to come. The Bill is entirely inappropriate at present.
Perhaps it is all right for the Minister to press on with this section because he will know exactly what the Government's plans are and will know that the timetable is such that it will not become operable for some considerable time, perhaps, not for some months. In these circumstances, perhaps, it is all right to go through the motion of putting this kind of section into operation but we in the Opposition do not know what the timetable is. We have to take the Government at their word. We have to assume that this Bill will be pressed through with all expedition and that it may be in operation in a very short time. In the circumstances that it may be in operation in a month or two, this Bill and this section in particular, are quite unacceptable and quite inappropriate. So without any question we would have to oppose this section.
I consider this section to be the most obnoxious and distasteful section in the entire Bill. Its success depends almost entirely on the complete co-operation and trust of the security forces in the Six Counties, be they British Army, RUC or UDR. If we had the same trust in them as we have in our own security forces or, indeed, as we could have in the police force in Britain, this section would not be so objectionable. Everyone in this House must admit that we cannot at any stage guarantee that the security forces in the Six Counties at any future date would be such that they could have our respect or support.
In asking this House to accept this section, the Government are demonstrating their faith in and their respect for the judicial system that exists in the Six Counties. For this section to operate, and, like others who have spoken, it is my opinion that it will not be capable of being operated properly, it will depend in many cases on evidence taken not in a courthouse in the Republic but in a court in Belfast, Derry, Armagh or somewhere else. If a case continues for any great length it will cause some very serious problems. When the Criminal Jurisdiction Bill was being discussed last month in the British House of Commons, Sir Peter Rawlinson had this to say as reported in Hansard for the 19th June, column 1709:
...and just think what would happen if after a murder by bombing of certain people in the United Kingdom the perpetrators got away to the Republic of Ireland and were prosecuted by the Irish Authorities. Such prosecutions rest upon the evidence of many people. There is always a great deal of forensic, scientific and police evidence. Such trials take weeks and sometimes months. One trial this year at the Central Criminal Court lasted many months, others are taking place and there are more to come. Are all the police officers, scientific witnesses, bystanders and other witnesses to be taken across to Dublin to give their evidence? I hope that they might agree to, but it is difficult and it would not be possible to prove murder or manslaughter unless that evidence were given over there.
It may be said that this evidence could be taken on commission. Is it possible to take that kind of evidence on commission? Is it to be read at the trial? The witnesses are not seen at the trial and cannot be challenged, and there is not the same atmosphere. Thus, it is a tremendous problem, and no one who has considered the Bill can ignore these difficulties.
That is the opinion of a Member of the British House of Commons who welcomed enthusiastically the legislation there and the legislation introduced here. He, nevertheless, pointed out the tremendous difficulties that will arise. It is clear to me that section 11 of this Bill is just not on. I can visualise, if this Government are still in office in the new year, that the Minister will be bringing in amending legislation to correct or try to correct the mistakes he is making here. Should a serious trial be held in this city on a charge of murder for example, in the Six Counties, a charge which is hotly disputed by the accused, and if the future of the accused depends on evidence taken on commission in the Six Counties, there could be public consternation on this side of the Border.
The Minister and his supporters dismiss all this by asking Fianna Fáil if we want murderers to go free, if we want kneecappers to go free. We certainly do not want murderers or kneecappers to go free or, indeed, anyone who commits any of the crimes outlined in the Schedule of this Bill. But what we are concerned about is that innocent people could suffer unjustly under this section of the Bill, could suffer as a result of perjured evidence, not evidence given in the courts of the Irish Republic, but given at a caucus court somewhere in the Six Counties.
It is not so long ago that a young couple were brutally murdered very near the Border in my own county. The parents of one of them were neighbours of mine. I attended the removal of his remains and I recall the sorrow and the bitterness that were engendered as a result of his foul murder. The case was eventually heard in the Central Criminal Court in Dublin. An RUC man had given what I considered to be very fair evidence and the accused had signed a statement admitting his guilt. However, by the time the case was heard here in Dublin six, eight or ten witnesses were brought from Derry who, under oath, swore that the accused was in a certain place in Derry city on the night of the murder and, accordingly, could not possibly have been guilty of the crime. The judges in the Special Criminal Court had no option but to accept the evidence given at that trial, although I expect that they would have had very grave doubts about it. I had great difficulty in persuading people that the trial was not what they alleged it was—a fix. People close to the scene were bitter that this man was acquitted. They thought that the fault lay with the judges and I had great difficulty in explaining to them that it was as a result of what I considered to be perjured evidence of a large number of witnesses that the accused escaped justice.
While it is a serious matter that a guilty person should escape justice it is much more serious for an innocent person to be punished for a crime that he or she did not commit. If this Bill is put into operation section 11 provides the opportunity, provides many opportunities in the future, for the rendering of perjured evidence. One might say that in any court in this land there is an opportunity for perjury. That is so but in this case there is a vast difference because the defendant may not be present when the evidence is given. The defendant through fear or otherwise may opt to stay within the confines of the Republic rather than risk danger to himself by crossing the Border.
A person could possibly receive a life sentence on the evidence of witnesses whom he has not seen, on the evidence of witnesses who may not be challenged. This section could at a future date encourage and stimulate illegal activity on this side of the Border. It could be the means of driving young people into the IRA who, under normal circumstances, would not have any association with them. We have demonstrated clearly that we do not have respect for the security forces in the Six Counties. We have done that by continuing our case at Strasbourg before the European Commission on Human Rights. This case, charging the British security forces with torture and gross injustice, was initiated by Fianna Fáil and continued by the Coalition Government. In itself that is a clear indication that we have, at least, doubts of the manner in which the security forces do their work across the Border.
Sir Peter Rawlinson, in the course of a speech in the British House of Commons, expressed his indignation that the Government in Dublin should have the audacity to continue these charges against the British Government when he said, and I quote:
There are two matters which bedevil the relationship between the United Kingdom and the Republic of Ireland. The first I have spoken of many times before, and that is the persistence with which the Republic puts the Irish State case to the European Commission on Human Rights. I would not mind if individuals did that, but the fact that the Republic of Ireland and its Ministers have persisted in that course involving allegations against British Ministers— ...The senior officers of one State and Ministers of the State are saying to another State "This is what you have done and you must take the responsibility". At the same time they are saying "Let us negotiate"——
If our Government had complete faith in the administration of justice in the Six Counties, I do not believe they would have continued this case. Therefore it would appear to me that even this Government has not that confidence or faith in so-called British justice.
Fr. Denis Faul, in his booklet "The Triangle of Death" states, in page 4:
It can be asserted that the British Government and the British Army/ RUC look upon sectarian assassinations as a useful political weapon to crush the legitimate political aspirations of the Catholic community and their complaints about internment, brutality and torture by the army and the RUC. By disguising and covering up murders which are sectarian assassinations, the Government and the RUC hope to conceal from the eyes of the world the fact that there is a second campaign of violence in Northern Ireland which has continued on after the IRA ceasefire, namely the assassination of Catholics, now over 200 of them, completely innocent people killed because they were Catholics, sectarian assassinations.
His first sentence was that it can be asserted that the British Government and the British Army/RUC look upon these sectarian assassinations as a useful political weapon. That is a statement from one of the best-known clergymen in this country. He is a man who is very closely in touch with the situation in the Six Counties. Anyone who has read his pamphlet will no doubt agree that Fr. Faul's confidence in the administrators of justice in the Six Counties is non-existent. He is a man who has lived within the "triangle of death" in Dungannon for many years. He has seen, at first hand, the actions of the security forces in that area. He makes it clear that he believes they should not be trusted.
Yet in section 11 the National Coalition Government ask us to place our confidence in that very Administration about which Fr. Faul has written. It is not sufficient to dismiss or sidestep this issue by asking us if we want murderers to go free. The people who ask that question know the answer; we certainly do not. In section 11 our concern is not what will happen to the guilty but what could happen to the innocent. I submit that occasions could arise, and I am convinced that occasions will arise, when the innocent could suffer if in the years to come we find demonstrations outside courthouses in the Irish Republic protesting against the accepting of evidence from faceless men. Let us put clearly on the record of the House that we are saying that the responsibility for such demonstrations will rest entirely on the shoulders of the present Minister for Justice and his National Coalition Government. I have no doubt that the evidence of faceless people, written on a sheet of paper, will not be accepted by the Irish people.
I find it very difficult to understand how the supporters of this Government would accept, in any way, the proposals contained in section 11—that a man can be tried for murder or arson in the city of Dublin, that the court is handed a sheet of paper, signed by a judge in the Six Counties, saying that Corporal So-and-So of the UDR stated at a caucus gathering in the city of Belfast that he saw the accused doing whatever he was charged with. When that accused stands before the Special Criminal Court in this city, with his life possibly at stake, the man on whose evidence his life may depend may be attending a meeting of a Loyalist para-military group somewhere in Belfast.
That is the type of objectionable procedure of which we are afraid. Under the terms of this section this can and will happen. The day will come when many people who today vote that section 11 of this Bill be passed will hang their heads in shame that they handed over machinery of this kind to a certain section in the Six Counties. It is a few weeks ago only that the Loyalist para-military groups openly boasted that they draw their recruits from the ranks of the UDR. I noticed early last week that The Irish Times had an article on very similar lines.
I am completely and absolutely opposed to this section. Mr. James Kilfedder, speaking on the Criminal Jurisdiction Bill in the British House of Commons on the 19th of June, 1975, at column 1728, had this to say:
The fact that it is complicated was confirmed by the Lord Chancellor in a speech in another place. Worse still, it is cumbersome, bearing in mind that the trial judges, the counsel and all the other staff, together with the defendant or defendants, must travel into the Irish Republic or, vice-versa, from the Republic into Northern Ireland. All that entourage will have to be protected by the Security Forces in Northern Ireland and Eire throughout the period of taking evidence on commission, which could last some time. That will further tax the security forces in Northern Ireland, who are already overburdened, and I feel that the trial judges may be the subject of attacks by terrorists in Northern Ireland.
It is extraordinary, therefore, that we should have before us this piece of legislation, with all its difficulties legal and otherwise, when all that the situation requires is that the Irish Republic should extradite the wanted men who at the moment are living happily in the Republic.
In the course of his speech Mr. Kilfedder spotlighted a very important point—that the trial judges may be the subject of attack by terrorists in the Six Counties. I wonder what will happen if, on the passing of this Bill, there is an arrest, on average, once a week, if the defendant who is being charged with committing an offence under the Schedule of this Bill in the Six Counties, or all defendants, opt to be tried in the Republic; if all the witnesses refuse to travel to the Republic to give evidence; if, in accordance with section 11, a letter of request is issued to the Lord Chief Justice of the Six Counties for taking of the evidence in the Six Counties, in all cases, considering that this section lays down that all the members of the Special Court must be in attendance at the taking of evidence on commission in the Six Counties. I wonder how many judges of the Special Court will be needed? How long will cases be allowed to continue? It is obvious that if the provision of this section is to be followed it will be a very slow procedure. Paragraph (a) of subsection 4 provides for the accused to be delivered "...when and so often as may be necessary..." because of the possibility that he may be returned to the State if there are substantial intervals in the taking of the evidence.
It appears to me that one case there could take up much more time than a similar case here. If there happens to be a preponderance of arrests what will happen? I have no doubt that once the Authorities in the Six Counties know this legislation has become law, the telephones between Belfast and Dublin will be buzzing every few hours; the security forces in the Six Counties will be enjoying the unusual situation of the Dublin Government doing their dirty work. Having failed, over the last six years, to smash violence in the Six Counties, they have managed to persuade this Government to do it for them. I have no doubt that, when this legislation becomes law, they will see to it that our security forces are taxed to the extreme. I would forecast that, because of section 11 of this Bill, within the next 12 months another dozen judges will have to be appointed in this country to do John Bull's work.
Business suspended at 12.30 p.m. and resumed at 2.30 p.m.
Before lunch I was pointing out that in order to operate section 11 of this Bill the wholehearted co-operation of the RUC is essential. Mr. Merlyn Rees, when he introduced the Criminal Jurisdiction Bill in the British House of Commons, had this to say in column 1701 of Issue No. 1003 of the Weekly Hansard of the British House of Commons Parliamentary Debates, and I quote:
The effectiveness of the scheme depends to a large extent on co-operation between the RUC and the Garda Síochána, and the Irish Government have agreed to provide every assistance to help the RUC in its investigations. Similarly, cross-border co-operation is essential when mounting prosecutions and both Her Majesty's Government and the Government of the Republic have pledged that they will work closely together.
So even the British agree that co-operation between the RUC and the Garda Síochána is not alone necessary but absolutely essential. When one considers the record of the RUC in the past I feel that I cannot be blamed for expressing the strongest possible reservations about what the conduct of at least some members of the RUC might be like in the future. It is probably wrong and unfair of me to condemn the RUC as a body. I would accept that in the ranks there are many decent and honourable people. But I will also accept there are within the ranks of the RUC men whose complete loyalty lies with the Loyalist groups in the Six Counties, and because of their activities in places such as Derry Bogside in the past I do not agree that this Government should introduce a section such as the one we are now discussing, the success of which depends almost entirely on the goodwill, the generosity, the integrity and, indeed, the honour of certain members of the RUC.
That is why I charge this Government with collaborating not alone with the British but collaborating with a police force whose reputation throughout the world in 1969 was anything but good. Yesterday I was asked to define the word "collaboration" and there can be some very interesting interpretations of it. In Webster's International Dictionary we see that "collaboration" is defined as "the act of working together", "united labour", and that is the only interpretation that Webster gives us. In the Oxford English Dictionary to collaborate is defined as "working in conjunction with another or others", "to co-operate". But in the Concise Oxford Dictionary we get an interesting definition of the word "collaborate". In this edition it says it means "working in combination at a literary or artistic production" but also that it means "to co-operate treacherously with the enemy". Of the three definitions I have just quoted I believe the most appropriate on this occasion is the quotation from the Concise Oxford Dictionary, "to co-operate treacherously with the enemy". While we may not regard, and possible should not regard, the British Government as our enemy, there is no doubt but that on numerous occasions during the last six or seven years the RUC, the UDR and the British Army could be described as our enemy.
I have already mentioned what could happen in the case of certain trials if British soldiers called at a lonely farmstead and for no reason whatsoever attempted to take a member of that household into custody, and if the member of the household in an attempt to defend himself struck one of the soldiers and escaped across the Border, then he might be charged under the Schedule of this Bill with escaping while in custody and with attempting to cause grievous bodly harm. In accordance with the terms of section 11, he would be brought before the Special Criminal Court in the city of Dublin, a sheet of paper would be handed into the court signed by a judge in Belfast outlining the evidence given by those British soldiers who attempted to arrest him the first day, and his entire future would depend on a document handed into the Dublin court which was prepared at a special committee in Belfast.
The Senator is now tending to repeat some remarks made before lunch and I trust he will not dwell on them.
I feel this cannot be tolerated, that this provision in section 11 is so obnoxious that when the Irish people realise its implications they will give the Minister for Justice and his National Coalition Government the answer they deserve. It is not enough to say we want to stop murders. We certainly want to stop murders, but we cannot, must not, and should not have a situation where evidence of this kind from faceless men shall be accepted in any court in this land. This is not a strange situation, and if any Irish citizen is brought before any court in this land, then in order to prove that citizen guilty the witnesses must be brought into court, must give their evidence in front of the defendant, in front of the Press and the public and be confronted, if necessary, by the defendant or his solicitors. That is the law as it applies to every citizen in the Republic for crimes or alleged crimes committed within the Republic.
In section 11 of this Bill we are giving an unusual concession. We are giving the concession that witnesses whose evidence may condemn a defendant to life imprisonment are not obliged to attend a court at all, that a written document compiled in a part of our island over which we, unfortunately, have no control, will suffice to condemn that defendant. If that same defendant were charged with an offence committed in Dublin city, the court case would not be allowed to go on unless the witnesses stepped into the witness box and gave their evidence in front of the defendant.
I cannot understand the logic in the argument that witnesses from the Six Counties can be excused from giving evidence in the Dublin court. If the British Government and the authorities in the Six Counties are really sincere in ensuring that justice is done and if those witnesses are 100 per cent convinced that their evidence is correct, is there any reason why they should not travel to this city and give the evidence in person? I believe this worthless document, the sheet of paper which may condemn an innocent person, should be completely unacceptable, and I would very much question whether this procedure would be constitutional. I do not see why this Government should do Britain's dirty work for her and in this section they are co-operating with them in a manner which to me is despicable, and I have no doubt that in the first serious case of this kind that will be tried, the Irish people will realise the folly of the actions of the Minister for Justice and his National Coalition Government.
We cannot on this side of the House accept that this section should remain part of Irish legislation. The basic point—there are numerous other objections that have been raised to this section—is that it does not provide for the accused to get a fair trial. The absolute basic requirement for any criminal trial in any country is that the evidence should be given in the presence of the accused. No matter what gloss the Minister may care to put on it, this section does not give a fair chance to the accused to hear the evidence.
We are told in the section that the accused has an option to travel into Northern Ireland in order to hear the evidence that is given against him in a criminal case. I think the Minister must realise, being, as he is undoubtedly, a man of common sense, that no accused in practice will accept this option. I am not interested in hearing people repeat, as they have repeated at frequent intervals over the past weeks we have been debating this Bill, that we are dealing with murderers, kneecappers and so on. The basic fact is that, no matter what the charge is, an accused is considered to be innocent until he is found guilty. We are not dealing, in other words, in this section with murderers, kneecappers and so on; we are dealing with people who are accused of these offences, who may or may not be guilty. Whatever the offence with which they are charged, they are entitled to a fair trial. This section does not give them a fair trial.
The Minister constantly deals with this matter as if it were a simple case of delivering an accused into the custody of the Garda Síochána. Even in that event it is doubtful whether an accused on bail would be particularly anxious to give up his bail and deliver himself into the custody of the Garda Síochána. At least his life and limbs would be safe. He would be free from all the difficulties, to put it mildly, which we know are faced by those who are in the custody of the various branches of the security services in Northern Ireland.
It is no use telling us that these things will not happen. The Minister knows as well as everyone here that these things do happen and happen with a consistency which is more than chance and which leads us to believe that there is a pattern of conduct in the affairs or the security services in Northern Ireland which makes it highly probable that any accused who allows himself to be delivered into their hands would be faced with real risks of the kind which he certainly would not be willing to face.
One of the problems with this section is that, while in subsection (2) it is laid down that the Special Criminal Court will inform the accused that he has certain rights, we have no real safeguard and no genuine reason to believe that these safeguards will be applied. For example at paragraph (a) of subsection (2) the accused is to be told by the court that:
he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence...
Further on lines 32 to 35 of the same section state:
if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.
When I raised this issue with the Minister earlier I did not get a satisfactory answer from him. In fact, the corresponding British Bill under which these matters will be operated in Northern Ireland does not contain any such statement.
The British Bill, as has been pointed out by some speakers before me— I regret I was unable to be here earlier but I was unavoidably absent in Strasbourg—has now passed through the British House of Commons. I would be glad if the Minister, in order that we should not be talking about two different items, would agree or disagree if I say it went through the House of Commons unchanged.
The Bill we are dealing with is the one which passed through the House of Lords. The Minister makes no comment so I take it that the Bill which has finally passed through the British Parliament is the one in the Oireachtas Library and the one we have discussed from time to time.
Whereas our Bill says that the accused is to be delivered into the custody of the police of Northern Ireland the corresponding British Bill, which after all is the one which will directly affect the accused once he has crossed the Border, merely says that he shall be kept in custody. There is no reference to say whether it is the police, the British Army, the UDR or anyone else. There is no such safeguard. The Minister, I have no doubt, will say that the intention is that he should be kept in the custody of the RUC. Perhaps, he will say that he has been assured that he will be kept in the custody of the RUC; that he will take a severe attitude if he is not in the custody of the RUC. Why, when he was preparing this legislation in co-operation, or whatever word he likes to use, with the corresponding British authorities, Ministers and civil servants did he not at least secure the elementary requirement that the words of the British Bill and our Bill should be the same?
Our Bill specifically says that the accused is to be present in the custody of the police of Northern Ireland. In section 12, which deals with Northern Ireland people accused who may come over the Border while evidence is given here in respect of a case arising in Northern Ireland, we say that while he is here he will be kept in the custody of the Garda Síochána. Since we make this point why does the British Bill not do so? It is no use saying that this is the intention. Legislation is drafted in order to make intentions plain. I suspect there is some reason why, the simple words, "in the custody of the police in Northern Ireland or Royal Ulster Constabulary", or whatever phrase may be required, are not included in the British legislation.
There is a clear discrepancy in our Bill and I do not think we should be willing to pass the Bill, and, in particular, this section, until we are satisfied that the corresponding British legislation is the same as ours. I cannot understand why the Minister comes with this Bill without taking the elementary and simple step of ensuring that when our Special Criminal Court under subsection (2) of this section informs the accused that he has a right to be present in the custody of the police of Northern Ireland that that is in fact what will take place.
According to line 35 the court orders that the accused should be delivered into the custody of the police of Northern Ireland. That means that when the Garda Síochána travel to the border with the accused they will deliver him into the custody of the RUC because they have no authority to do anything else. What happens five minutes after that is a matter over which, inevitably, we have no control, and I accept we have no control. However, the Minister has control to the extent that he could say to the British Government, to the British Minister or whoever is responsible for this, that he cannot allow our Bill to become law until there are equal rights given to the accused in the British legislation and in our own legislation. It is a simple and elementary point. So much of these Bills is identical, the Schedules of offences are absolutely the same and in other respects these Bills match each other line for line, but we have this obvious and deliberate omission in the British Bill. There are others that I will come to.
It seems that the Minister, to put it mildly, is negligent in not ensuring that when an Irish court tells the accused he has certain rights when he travels into Northern Ireland that these rights are safeguarded in the parallel, and he used that word, British legislation. It is not parallel. It veers off at an angle in certain respects and in each case where it veers off, where it is different from our legislation, it is at the expense of the accused. There is no case in which there is a discrepancy between the wording of the British and Irish Bills where it is to the advantage of the accused. In each case where there is a discrepancy it is to the disadvantage and the possible detriment of an accused.
The second point I also raised with the Minister, that in paragraph (b) of subsection (2) of this section the accused is to be told by the Special Criminal Court that at the taking of the evidence in Northern Ireland:
he has a right to be represented by the counsel and solicitor (or the solicitor only) representing him in the court or by another counsel and solicitor—
This is laid down specifically in our own Bill just as it is laid down in section 12 in relation to an accused who travels from Northern Ireland in order to hear the evidence given here. In the British Bill all that is said is that he may be represented by counsel or solicitor in the proceedings. At the very least, this is ambiguous. In fact I do not think there is any ambiguity. It is clear that it does not cover the same ground as paragraph (b) here and it does not give an accused the right to be represented by the specific counsel and solicitor who are appearing for him in the court across the Border.
The Minister says that in this case this will be the practice in Northern Ireland. He told me that it was not necessary to put it in the Bill. If it is not necessary to put it in the Bill why did he put it in his own Bill? There must be a reason for this. It was put in this Bill because, to put it at its very least, it is necessary to clear out the possible ambiguity. It is necessary to put it in to give the accused that right. I suspect that if it were not in this Bill the accused would not have that right. I suspect that because it is not in the British Bill the accused will not have that right in Northern Ireland. There is no use telling us that administrative practice in Northern Ireland will be such that these things will be remedied.
I say to the Minister candidly, with the saving word that this does not make me a supporter of murderers or kneecappers and so on, that I have no faith whatever in the impartial administration of justice in Northern Ireland. We should be realistic about this. There is no one who could stand up in this House and say that they are convinced that the administration of justice in Northern Ireland is carried out in a way which is totally impartial with regard to the rights of an accused, or with regard to those who will be accused, as between one section of the community and another.
I have no faith in the fair administration of these matters in Northern Ireland. They may sometimes be administered fairly, but certainly all experience shows conclusively that on other occasions they are not administered fairly. That being so it is not good enough for the Minister to say that, although this matter is not dealt with in the British Bill, nonetheless under administrative practice the counsel and solicitor of the accused in the court in the Republic will be allowed travel to hear the evidence in Northern Ireland. It ought to be in the Bill and if it is not in the British Bill the Minister should make it clear that we cannot go ahead with carrying out the terms of our Bill until it is in the British Bill.
I have not read the Hansard debates that have been quoted at some length but I read the newspaper references to the House of Commons debates on this British Bill. It appears from what some of the Unionist Members of the British Parliament said that they considered it possible that amendments would be necessary in the light of amendments made in our Bill here. The Minister should make it clear to his British colleagues that matters such as this must be specifically laid down in the British legislation so that we are not dependent for the safeguarding of the rights of an accused on the goodwill or the impartial administration of those responsible for such matters in Northern Ireland. It ought at any time be laid down in the Bill. It is laid down in the Minister's own Bill presumably because he and the parliamentary draftsman thought it necessary. It is far more necessary in the atmosphere and circumstances that obtain in Northern Ireland that these matters should be spelt out without any ambiguity whatever.
Another problem facing an accused who considered going North of the Border to hear the evidence in a case such as this is the wording of paragraph (d) of subsection (2). Here again he is being told by the Special Criminal Court the rights that they hope he will have when he goes into Northern Ireland. The paragraph reads:
...he will be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid,
As has already been pointed out by other speakers—and there was an amendment dealing with this matter— there is nothing that prevents him being interrogated not merely in relation to other matters with which he might be involved. These are people who, rightly or wrongly, are accused of offences which they carried out as members of——
That amendment was not moved.
That is all the more reason for discussing it now.
It was discussed but not moved.
I take the Minister's point, if it is taken together with several others. Under the technicalities of Standing Orders it was not moved but it was discussed. I should like to say something on this general topic now. There is nothing which prevents an accused being interrogated in relation to any matter. Such an accused is necessarily alleged to be a member of some illegal organisation—the IRA or some similar para-military organisation.
Therefore, there would be an incentive for the police, or whoever had the custody of him, to examine him on a variety of matters in which they felt he might have been involved at different times. It would obviously be an ideal opportunity for them to do this. There is nothing in the Bill that says he cannot be severely interrogated in respect of the matter with which he is at present charged. He is charged with some particular offence laid down in the Schedule to this Bill. He travels across the Border into Northern Ireland and is held there while the evidence is being given and, according to the wording of this section, he can clearly be examined not merely about other offences, but cross-examined and interrogated with regard to the facts of the specific charge. This seems to be wrong. There is no protection for him. We know only too well the nature of much of the interrogation which takes place in the various branches of the security forces in Northern Ireland.
The Minister, I would imagine, has been directly or indirectly associated with the proceedings in Strasbourg with regard to such matters. This would prevent any accused travelling to Northern Ireland. There is nothing in our Bill, and naturally in the British Bill, which in any way restrains the nature of the interrogation which could take place.
A policeman, or any member of the security forces, who had such a person in his custody and who refrained from interrogating him while in his custody would be failing in his duty. His superior officers would think he had considerably failed in his duty if he failed to take advantage of such a heaven-sent opportunity. There is nothing in this legislation which in any way restrains that. I cannot see why there would be any problem in this regard. I would have thought that a prohibition of interrogation would be easily put in. The fact that the Minister did not put it in—I have already expressed my regrets that I was not able to be here but I assume he refused to accept amendment No. 14 which attempted to deal with this matter— indicates that not only is it deliberately excluded in this Bill but the Minister has deliberately refused to change his decision on this matter. It is the intention of the Minister, and his colleagues in Britain and Northern Ireland, that it should be possible to interrogate an accused when he travels across the Border for a hearing of the evidence.
There are other problems and I should be glad to hear the Minister's views on them. They appear to arise under subsection (3) of this section. Can the Special Criminal Court exclude a statement which in their view has been wrongly admitted? I take it that they can. I take it that if evidence is given, resisted perhaps by counsel for the defence but admitted by the Northern Ireland judge who is taking the evidence, it is then open to the court here to ignore this and overrule that decision and not to consider that particular section of the typescript as part of the evidence. I would be glad to know if that is so. If it is so, it raises further issues. It makes to some extent the Special Criminal Court a kind of appeal court.
It comes back to the point I made on the Second Stage that while this procedure may be called a commission it smacks very much of court with all the constitutional implications that would appear to be involved in that. I should like the Minister to confirm what seems to be the case, that if the Northern Ireland judge accepts evidence, that he is prepared to receive evidence which the court may decide should not have been taken, that they can decide to rule this out. There is the contrary case where a member of the British Defence Forces, or police, might give evidence and where counsel for the accused would attempt to get further evidence, perhaps admissions, of a nature which would be of value to the defence of the accused. On grounds of privilege, which is the privilege of Northern Ireland and not of the Republic, the judge of the High Court in Northern Ireland might reject this evidence. So evidence has not being given, therefore, which probably would have been received in this part of Ireland but under the different rules that apply in Northern Ireland and which are specifically stated in this Bill to be those which will be applied, it is excluded. Here the court can do nothing about it and it seems yet another case where the trial of an accused could be less than satisfactory.
For these and many more reasons it seems that section 11 is one we cannot accept. It is unworkable. Even those on the Unionist side who spoke in the British House of Commons on a similar British version of this Bill appear to have been fairly firmly of the opinion that this whole procedure was unworkable.
Workable or not it is intolerable that it should be envisaged that an accused, who is considered innocent until he is convicted, should be put in the position where there is a strong probability that all the evidence would be given in his absence and that all he will see will be a typescript. The judges will, of course, be there listening to the evidence, although they have no control over the giving of the evidence, but the accused will be absent. How can one possibly have any kind of a fair trial that anyone can stand over under these circumstances? This section and the Bill in general will do nothing to deal with the serious ill the Minister has attempted to cure. It is likely, if applied at all, to have very serious effects on the respect of the population, North and South, for the rule of law and the administration of criminal justice. The Minister should withdraw this Bill, in particular this section. He has refused to make any changes in it, even changes which are necessary in order to remedy the defects in the corresponding British legislation. As a result it ends up, as it was started, a totally unworkable procedure and quite contrary to fair play with regard to the accused.
We have had a repetition of what I call the whole series of unreal arguments which have been advanced by the Opposition since the debate on the Bill started. They were unreal arguments for the sake of giving a colour of credibility to the Opposition when we all know that the real opposition to this Bill is motivated by a distaste on the part of the Fianna Fáil Party at seeing an IRA man tried in our courts for something done in Northern Ireland. Fianna Fáil have just not faced up to that fact. As a result, to hide what is the basic opposition to this Bill we have this series of unreal arguments. Senator Yeats said that it will not give fair trial because an accused will be absent while evidence is being taken against him. That is not what is in the Bill. The Bill provides for the presence of the accused. That is all the Bill can do. The Bill cannot force the accused to be present. It is entirely up to the accused whether he is there or not. If the accused exercises his option and does not attend is it logical then to say that the Bill prevents him from having a fair trial when the remedy is in his own hands?
I should like to refer again to this question of immunity and this painting of spectres of an accused, in the course of a trial being conducted by a court of this jurisdiction, being brought across for the purpose of taking evidence on commission. It is presented as a realistic scenario that that accused will, from the moment he puts foot across the Border, be subjected to all sorts of deep interrogation. Of course that will not and cannot happen. It is unreal to suggest that it could happen or that it is even likely to happen. Immunity is written into this Bill.
Immunity from charge.
Immunity from legal process and if interrogation is part of the legal process that is also immune. Any abuse of the legal process would be dealt with very quickly. Again, it is an unreal argument to try to hide the real reason why Fianna Fáil are opposed to this Bill. They do not want to see IRA men charged in our courts for something they did in Northern Ireland. There is some residual feeling that maybe that is not as bad as if they did it down here, that there may be justification for it. That is the real reason for the opposition to it.
There have been complaints because the methods of drafting, and the choice of language, are not on all fours in both Bills. I am satisfied that the rights given and that the regime which will pertain under these Bills will be exactly similar. That is what matters, not the mere words in the statutes.
This section provides for a new procedure, the taking of evidence on commission, in this way. It may be cumbersome; it may be clumsy; it is unusual; it is novel. But we have to try it if we are going to tackle the evil that all of us profess we want to see tackled and defeated. It does not help at all to have blood-curdling speeches made here which will have only one effect, that is, that where there might be a likelihood of witnesses coming South to give evidence they would be deterred by reason of the tone of the debate here. We have had blood-curdling speeches particularly by Senator McGlinchey and Senator Dolan, suggesting that there would be people on the streets here if certain witnesses from the North came down to give evidence. It is better that they would come down here to give evidence and that the all-Ireland dimension so desired by Fianna Fáil would be recognised in fact.
It is much more desirable, too, that the procedure of the court having to take evidence on commission should be avoided so far as possible. But where it is not possible to avoid it we have to provide some way of taking this evidence on commission. Again, this is evidence on commission; and it is unreal of Senator Yeats to suggest that the person presiding at the commission is doing so as a judge. That is his rank, but he is there as a commissioner. This is specifically spelled out in the Bill, that he is there as a commissioner. It is unreal to suggest that he will be in some way acting as a judge on behalf of the courts here, and that when the courts here decide on the admissibility of evidence they will, in effect, be a court of appeal. Nowhere is that suggested nor is it a reasonable interpretation. Again, it is straining at arguments to try and justify opposition to this Bill.
I hope this procedure will work and be successful. If it is it will be of critical importance in doing what we all profess we want to do: to end the scandal of the fugitive offender.
I should like to deal with some of the specific replies, if that is the right word, the Minister has given us. I would ask the Minister to forget about attributing motives. He suggests that our opposition is due to the fact that we do not want IRA people to be tried and so on, but I would ask him to forget about these statements which satisfy his political soul. It does not seem to me to bear much relation to the position in which he is, as a Minister, in defending his own legislation.
First, the Minister says the accused has an option. The Bill says he can go to Northern Ireland. Therefore he has the option of hearing the evidence and it is his own fault if he does not accept this. I would put it to the Minister that, although an accused might have an option but reject it, the Minister should not envisage this situation. It is such a basic requirement of any criminal trial that the accused should hear the evidence, see those who are giving evidence, their demeanour and so on, that the Minister should not consider having legislation that could violate these requirements. Even in the case where an accused might have a genuine option of travelling North—I would say that if the Minister wants to do this at all he should insist that the accused must travel North under suitable safeguards, which unfortunately are not at present in the Bill—the Minister should not envisage a trial being held in respect of which the evidence is given in the absence of the accused.
The Minister says there is no reason why an accused should not travel North, that he is given the option and, so, why should he not avail of it. Does the Minister not know perfectly well the situation that exists in Northern Ireland, that it is not a simple matter of the Garda Síochána or discussions between polite civil servants? Does he not know that there have been hundreds of complaints against the behaviour of members of the security forces in Northern Ireland. The number has been in the region of 1,300 in the past few years. Approximately eight of these have been successfully prosecuted. There is a pattern of conduct among security forces in Northern Ireland which ensures that no accused in these circumstances will put himself into the hands of these people.
The Minister should have regard not merely to what will happen to the accused but to the legitimate and natural fears that an accused would suffer from if offered this possibility. The Minister must know well that the ordinary accused faced with a charge of this nature, with the background that he is likely to have, will simply not be in a position to travel North. He will not do it. There is, therefore, no option. There is no use in the Minister glossing this over in a casual way.
The Minister made an astonishing statement. With reference to paragraph (d) of subsection (2) he said that the words "legal process" include interrogation. I cannot understand how he can stand over this proposition. A policeman bringing an accused by bus to some local prison is not entitled to embark on a casual cross-examination, much less the intensive interrogation that we know takes place in Northern Ireland. It is ludicrous to suggest that any interrogation involves some sort of legal process. Of course it does not. If the Minister intends the words "legal process" to include interrogation, he should put this into the definition section but "legal process" does not include a process of interrogation. A legal process consists of the various processes concerned with courts of law. A policeman or a member of defence forces who sits with an accused in a basement and starts examining him about certain matters is not indulging in a legal process. It is not good enough for the Minister to attempt to stand over that statement.
With regard to the considerable discrepancies on important matters between the British Bill that has been passed in the House of Commons and this Bill, the Minister says: "There may be differences but all that matters is that the working will be the same." How do we know that the working will be the same? He says our fears are theoretical. Why should they be theoretical? Why is the Minister putting these things into his own legislation? Did he not spend months discussing these matters with his English colleagues and perhaps with his Northern Ireland colleagues? They worked out the phraseology of these Bills with great care. They worked out the Schedules to these Bills with great care. In the vast majority of cases the egal effect of the wording is identical. Yet there are four or five cases where quite clearly there are greater rights for the protection of the accused in the Minister's Bill than are in the British Bill.
It is not good enough to say that this means nothing. The British are a careful people. They do not do things by accident. If their Bill is on all fours with this Bill, identical in most cases, and yet different from it in certain salient points, all relating to the defence of the rights of an accused, I am not prepared to concede that that is by accident. There is a reason for it. There is something going on. If it is necessary for the Minister to put these matters in regard to the nature of the custody, the position of the counsel and solicitor and other matters of this kind into his own Bill on the advice of the parliamentary draftsman, then it is equally necessary for them to be inserted in the British Bill.
Even if it is only a matter of the administration of the law in the Twenty-six Counties it would be bad parliamentary practice for the Minister to say: "After all, the Garda, the Attorney General's Office and so on will deal with these matters in a fair way, although they may not be in the Bill." I do not think either Houses of the Oireachtas would stand for that but far less can one tolerate such a statement when it relates to the administration of justice in Northern Ireland which is notoriously not in all ases impartial.
The Minister says it is desirable that witnesses should cross the Border to give evidence here. But of course he knows they will not come. He knows that it is the invariable practice of the witnesses from the police and security forces in Northern Ireland not to cross the Border because they have instructions from their officials not to come, one of the main reasons being this matter of privilege, that they can claim certain privileges in Northern Ireland courts that they would not be allowed to claim here. The commission that originally sat to consider these proposals made it clear that such people would not cross the Border. There is not much point in the Minister expressing the hope that they will. He knows, and we know, that they will not. Evidence in cases under section 11 will be given in Northern Ireland.
The Minister repeated again that the commissioner is not a judge; that he is only a commissioner. But it is provided in the Minister's Bill that the commissioner, where he is an Irish commissioner in sitting in the Republic, can exclude evidence.
In section 12, subsection (6) paragraph (a) it is stated clearly that questions of the exclusion of any oral evidence or the withholding of any document or thing on the ground of public interest shall be determined by the commissioner in accordance with the law of the State. These are matters which are not part of the duties of the commissioner. In these and in other respects the commissioner is given considerable powers which go far beyond those of a commissioner and come very close to those of a judge. It is clear—and I should be glad if the Minister would correct me if I am wrong in this—that the commissioner sitting in Northern Ireland, although he may be called a commissioner, could admit evidence which our own court might decide should be excluded and also that he could exclude evidence which if given in the Republic our own court might deem ought to be admitted. The commissioner has considerable powers with regard to the admission and exclusion of evidence, powers of a nature which an ordinary commissioner does not have. It is clear that, if certain evidence is admitted by the commissioner, our own court must have the right to decide at a later stage, having considered the typescript, whether to exclude it.
The Minister has called this person who is hearing the evidence the commissioner, but merely calling him a commissioner does not make him one. He has very considerable powers. When he is taking the evidence in the presence of the judges of the Special Criminal Court he is in complete control of his court. He can question the witnesses and so on, whereas our own judges have no such powers. They cannot decide any of these matters with regard to the admission of evidence, exclusion of evidence and so on but all these are in the hands of the High Court judge who is acting as commissioner. In other words, his powers in many respects are far more those of a judge than they are of a commissioner.
I wish to make a few observations in view of the fact that the Minister seemed to think that I was making blood-curdling speeches on this matter. Anything I have said on this Bill so far stemmed from my deep concern for what might flow from the results of the passage of such an obnoxious Bill. In section 11 we will be asking our Garda and our Army to associate themselves with the RUC, the UDA, the Green Jackets, the British Army and every type of British force in the Six Counties. We know already that their record of persecution and punishment inflicted on prisoners while in custody in the past has been substantiated and verified. Those are serious charges, charges that are well known. They have been made against the forces of Her Majesty's Army who are in our country trying to maintain British law against the wishes of the Irish people. If there is anything blood curdling in that, I do not apologise for it. These forces are unwanted guests in our country and the sooner they get out and pay compensation for the damage they have done, the better. Then there would be no need for this Bill.
It seems to me that the Bill itself, particularly this section, must have been examined and re-examined by the Minister and by his colleagues in the British Government. They must have spent weeks and maybe months in its preparation. It is significant that since it was introduced there does not seem to have been one single syllable of it amended. This would lead me to believe that the Minister's hands are already tied by the British Government, that he cannot alter one line of it, that he is bound by some agreement made behind the backs of the Irish people.
Regarding the taking of evidence in the Six Counties, it is all right for the Minister to say that the accused has the right to go into the Six Counties. He may have but remember he will be escorted by our forces as far as the Border but immediately he is transferred to the custody of some of these British agents I have referred to. None of their records is clear or is such that would lead any prisoner to consider himself safe in their hands. It is within their power to say that the prisoner tried to escape and when they move a few hundred yards from the Border, he may be shot.
It is all right for the Minister to say that he has positive proof that this will not happen but we have had examples of British justice in the past. They will always be ready to argue with us over cases such as the one I referred to this morning, where Judge McDermott let them off the hook although they had shot a poor innocent country boy who was out making hay. These are some of the arguments that any sensible person would put forward against expecting an accused here to travel into the Six Counties and voluntarily give himself up to people who already have hundreds of our people in Long Kesh without any trial or charge but simply on some flimsy excuse such as their fathers or grandfathers having an Irish name. Many of them have died in these concentration camps. These are probably unpalatable facts so far as some people are concerned but they are an account of what has been happening during the past four or five years. Those forces have come in here and are trying to hold down our people with about 60,000 troops and various types of police forces all of whom are armed. That is the type of a State that is the Six Counties.
How could any Minister expect any prisoner to consider himself safe in going voluntarily to such a jurisdi tion where he would have meted out to him the type of justice that has been meted out to their many prisoners and to the many people who have not been found guilty of any offence?
Therefore, I respectfully submit, that so far as section 11 is concerned, this is no way to handle this matter. It would provide that a prisoner would have no rights whatever. It is all right saying he could avail of them but that is no use because he cannot avail of them and he cannot be sure of coming back alive from that jurisdiction. That eventually will mean that an accused will not travel to the Six Counties. It has been mentioned also that the British Army Forces may come here to give evidence. We know this will not happen. The British Government will get over that very easily by saying that the Army are privileged people— probably some of the British detectives and some of their top secret men here in disguise, the type of people in Belfast who were involved in the Four Square Laundry episode. These British agents are everywhere, not alone in uniform but in civvies. But it is ridiculous to expect that they will come here voluntarily — these individuals who could not appear even in the Six Counties, in what they call British territory, without having bags over their heads.
We are to have, then, a situation in which an accused will be put on trial and evidence will be taken while he will not be represented. I am not a lawyer but I thought it was a more or less fundamental part of any evidence in a court that any witness or any accused in a witness box would be allowed at least to look at the face of the person who was accusing him or the person who was giving evidence against him. This principle cannot be adhered to in this respect so far as I can see.
If there had been, as I said earlier, an all-Ireland dimension, if that important part of the Sunningdale Agreement had been in existence, if there had been an all-Ireland court—but in this Bill we, a sovereign State, are going too far by collaborating with another State. The words co and laborare mean to work together. It means we would be working together with the British forces to ensure that they would hold jurisdiction over our Six Counties.
How are we to know what rank or what status this gentleman who is to be known as a commissioner is to hold in the Six Counties? He may be a Littlejohn for that matter. He may be one of the greatest British agents who ever appeared in any age. He may be sent there as an innocent commissioner to see what is happening. He will not be a judge, according to the Minister but he will be acting as a judge and our judges and solicitors will go up there and will have to sit there, tongue in cheek. They will have to sit there and look on at this spectacle and listen to this so-called commissioner or judge or whoever he may be, cross-examine witnesses if they appear and listen to other people giving evidence against a prisoner who is not in the dock. This British commissioner may say to the people taking down the evidence: "You are not to include that." Our judges will have to sit there and do nothing about it. That is the type of evidence that will be taken. That is the type of report that will be coming back to us from the British Government and delivered to the Minister for Justice, with instructions to act on it immediately.
This section is meaningless, as is the rest of the Bill. There is no need for it. It is pure nonsense so far as we are concerned as a sovereign State. The British have in the past blamed us for harbouring IRA men. They have never admitted that they have thousands of troops in the North and that these deeds are happening up there. Why do they not come along with their great British agents, their British air force and their British espionage and arrest the people in the North who are causing the trouble? Why do they not bring to justice the hundreds of people who have been implicated in murders in the Six Counties? None of those people have been brought to trial. That is the test instead of handing the problem over to a small nation like ours while they hold six of our counties against our will. They are asking us, with our meagre forces, to ensure that our Garda and our Army will become involved in this problem so as to create a situation here that will cause strife in our own part of the country.
I want to say from the beginning that I do not condone atrocities, murders or any of the crimes that are listed in this Bill. Far from it. Indeed we in Fianna Fáil in the past have had to take unpopular decisions regarding the maintenance of law and order within this part of the country. Perhaps the Minister and some of his colleagues were not the first to step up the stairs to vote for these measures. Yet, now, because the British say this must be done they will trot up the stairs into the Division Lobbies. This is a treacherous piece of legislation. It will do no good so far as the efforts and the aspirations of the Irish people are concerned. We want the ultimate unity of this country. We want unity with our brethren in the Six Counties and not unity that would be to the advantage of the British Empire that is dwindling away.
We are all in the EEC now. The people in the Six Counties are wise enough to realise that what suits them on many fronts is what suits us in this part of the country and in particular on the agricultural front. They know well that hobnobbing with the British Minister for Agriculture will not suit the farmers of the Six Counties. There has been some talk regarding a federal system for the country. This is nothing new. It was pointed out by Eamon de Valera years ago that we would at all times be very glad to recognise an all-Ireland status and have a federal situation here for the time being to try and get the two parts of the country together. I say to the Minister to forget this piece of obnoxious legislation because it is of no use to the Irish people.
It appears to me that the arguments I have been listening to since morning are rather contradictory. This morning Senator McGlinchey complained that we were collaborating with the British and he alleged that as a result of that collaboration we had got some words put into this Bill that did not appear when it was introduced in the other House. Now we have Senator Yeats complaining that we do not collaborate sufficiently with the British. His grounds for this complaint are that there is a difference between the Bill here and the Bill in England. I wonder which of the two Senators is enunciating Fianna Fáil policy.
We also heard Senator Yeats say that it is impossible for a man to get a fair trial if he is not present where the evidence is being taken. There may be some validity in this argument but, as the Minister has pointed out, the man has an absolute right to go North where the evidence is being taken.
I would not go along with Senator Yeats' suggestion that it should be embodied in this Bill that a man would be compelled to go to the North. I can well imagine the crocodile tears that would be shed on the other side of the House if what Senator Yeats suggested was put into this Bill. I can imagine Senator McGlinchey coming in with the sad story of what might happen. Senator Dolan would be convinced that the accused would be shot before he had gone a few yards across the Border. The best that can be done is that a man is free to go North if that suits him. If it does not suit him, then he is free to stay here and have the evidence taken.
It is very easy to make arguments from two different points of view but one must settle for some type of a concrete argument in the long run. Senator Dolan took umbrage at the Minister's reference to blood-curdling speeches. Certainly some of the speeches were disturbing. It is easy to suggest that the British should get out. This would be a fine solution if it worked, but unfortunately there is no evidence that it would work.
I should like to refer to a couple of matters mentioned by Senator Whyte which relate to me. He referred to a statement I made that it might be preferable to make it compulsory for an accused to travel North in order to hear evidence. He should remember that when I suggested this I said it might be made compulsory provided there were adequate safeguards for an accused in such a case. In particular I had in mind that he could be sent North in accordance with the suggestions set out in Senator Lenihan's amendment No. 15, which asks the Minister to agree that he could go North in the custody of the Garda Síochána. Under these circumstances no accused could reasonable claim to fear for his life, limb or well-being. He would be safeguarded far beyond any safeguards laid down in this section. Under those circumstances, in order to ensure that in all cases the accused would hear the evidence, it might be legitimate to suggest that he ought be made go. That was the point I was making.
Senator Whyte says again, as the Minister has said, that after all the accused, if he feels like going, can go. The trouble is that the accused will not go if he is afraid to go. In practice the position will be that an accused under this Bill will be afraid to travel and his fears may well be legitimate. Whether they are legitimate or not they will exist. For whatever reason, the facts that will arise under this Bill are that an accused, as a normal rule, will not travel to give the evidence and therefore will be tried without having heard any of the evidence given against him. That is the burden of the case I make.
The third matter Senator Whyte mentioned was the alleged discrepancy between what Senator McGlinchey and I were saying. Of course, there is no such discrepancy. Senator McGlinchey was complaining about collaboration between the Minister and the British authorities in the preparation of this Bill. On the other hand, I was taking the Minister as I found him. What I was saying to him was: since you have been collaborating, co-operating, whichever is the preferred word, with the British authorities over the past nine months, year or more, meeting them, writing to them, talking to them, discussing these matters with them at length—since he has done it—whether he should have done it is another matter I have not dealt with but with which Senator McGlinchey did; they are two separate issues—he should have done it properly. Having gone through this prolonged process of discussions with the British authorities he should have ensured that on these basic matters, all relating to the safeguarding of the legitimate rights of an accused, the rights given to the accused were the same in the British Bill and in his Bill.
We are of course forced to vote against this section. But before we come to the end of the discussion on this section—and I agree that it is inevitable that it may to some extent be repetitive —I have three simple questions I should like the Minister to answer. I do not think he has made any effort so far to do so. First of all, how can he be sure that an accused who travels to hear the evidence across the Border will be in the custody of the Royal Ulster Constabulary? The British Bill does not say so. I would point out to the Minister that it is not even in one particular line of the British Bill, that perhaps through some accident these words do not appear. The matter is made absolutely clear throughout the British Bill. In subsection (3) of section 12 of the Minister's Bill it is provided that, in the parallel case where evidence is taken here in respect of a trial taking place in Northern Ireland, at the conclusion of the taking of evidence "the accused should have been brought by the Garda Síochána as soon as may be to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland". The British equivalent, the so-called parallel Bill the Minister has been discussing with the British over these months and years, says the accused is delivered to the Border. We say he is brought by the Garda Síochána, in a comparable case, where the evidence is taken here. The British merely say he is delivered to the Border. Where we say in subsection (1) of section 13:
While an accused person is in the State in exercise of his right under section 12 to be present at the taking of evidence under that section and until his removal from the State at the conclusion or any adjournment of the taking of the evidence, he shall at all times be kept in the custody of the Garda Síochána or in a prison.
The British Bill merely says, in similar circumstances, that he shall be kept in custody.
It is quite clear that this is not an accident. The wording of the British Bill is quite deliberately made different from ours. It deliberately provides, not through any accident, for there to be flexibility about this—he could be in the custody of the Royal Ulster Constabulary, of the various regiments of the British Army, perhaps of the UDR; the matter is left open. It is not left open in our Bill. Quite clearly, he has to be in the custody of the Garda Síochána or else held in a prison.
The Minister says, in spite of this clear discrepancy—and I think one is entitled to assume that the parliamentary draftsman in England is quite as skilful and as careful in his wording as is his counterpart here, and that the precise wording I have quoted is absolutely deliberate. In the light of that, how can the Minister say with such certainty that the accused will be held by the Royal Ulster Constabulary? The only matter about which he can be certain is that he will be delivered to the Royal Ulster Constabulary, because that is the instruction given by the court to the Garda Síochána. He has no knowledge of what happens after that, nor has anybody else. He says that this is a theoretical consideration, this is "tilting at windmills"; that, after all, these things will not happen; they are only produced out of thin air by the, presumably, ill-disposed members of Fianna Fáil. I put it to the Minister that that is not good enough; all he needs to do is to write a little note to whatever Secretary of State in the British Government deals with this matter and say to him: The question of the discrepancy has been raised in the Senate; it is felt by Members of the Irish Parliament that it would be better if the wording was the same in both our Bills and that, therefore, your Bill should include the phrase "that the accused shall be in the custody of the Royal Ulster Constabulary or in a prison" to comply with the wording in our Bill. I take it he would then make the change. Why will not the Minister do this? In spite of what the British legislation says why does the Minister say—and quite deliberately it says something different to his legislaton— he is so happy and certain that everything will transpire as he thinks; that we are merely raising theoretical considerations without any substance? They are not theoretical considerations, and have very considerable substance. The Minister is creating a situation where, in spite of having been assured by an Irish court that this will not happen, an accused who is being tried in our jurisdiction, by an Irish court, can be put, in Northern Ireland, in the custody of the army, the UDR, or any other body to whom the Administration there chooses to deliver him.
The Minister has an absolute, simple duty he ought to have carried out before now, and should certainly carry out now—to see that the British legislation complies with his. With all respect, I think the Minister has been negligent in this respect. It is fair to say, until I drew his attention to these matters—and there are other discrepancies with which I shall be dealing on later sections all at the expense of the accused—I do not think he was even aware of them.
It seems to me that what has happened is that, as a result of this lengthy co-operation between him and his British colleagues, the British Bill was produced, his own Bill was produced and, apparently, these matters—which are at the expense of the accused in each case—simply escaped his attention. They have now been brought to his attention and are not theoretical considerations. I would ask him why, therefore, he does not propose to ensure that the accused is in fact in the custody of the RUC, or in a prison in Northern Ireland and not in that of the various military regiments or UDR forces that exist up there.
A third question I would like to ask is whether he really is serious in saying that "legal process" referred to in paragraph (d) of subsection (2) of section 11 does in fact include interrogation. The Minister says this is a sort of theoretical windmill at which we, on the Fianna Fáil benches are tilting. Does he really think— knowing police work in all countries, that when they have a plum delivered into their hands, a person who may well be a celebrated or notorious member of the IRA whom they may feel, rightly or wrongly, to have been involved in a wide variety of unlawful activities over previous years—they will not question him? Of course they will and any policeman who did not question a person under such circumstances clearly would be failing in his duty and would be subject to reprimand by his superior officers. It is not a theoretical matter. Of course they would examine him. The extent of the examination, whether it be this notorious interrogation in-depth about which we have heard so much, one does not know but, at the very least, he would surely be questioned. Is the Minister really serious in suggesting that the inclusion of the words "legal process" means he would be immune from "legal process" in paragraph (d), that that means he would be immune from questioning? If the Minister states that this is a legal fact, I must say it is a new one to me. It seems to me that the words "legal process" could in no way cover the ordinary process of questioning that could take place under these circumstances. "Legal process" is, I take it, a process involved with some kind of activities relating to the court, the delivery of summonses, papers of all kinds, and matters of that kind. I cannot, under any circumstances, see how a policeman, a member of an army or defence forces examining a civilian person could possibly regard it as "legal process". I would like the Minister to answer these specific points with regard to the police.
There is also the further point about counsel we had before, a question as to whether the accused is entitled, as in the Minister's Bill, to be represented by counsel and solicitor in the actual proceedings that are taking place in the court in the Republic. It seems elementary that he ought to be. The Minister has said, and I accept this, that he wants him to be. The Minister has admitted that it is not in the British Bill but he says that it will be carried out by administrative practice. Again, I would ask the Minister why he does not ask his British colleague to include it in his Bill.
I am not clear about the last sentence because as far as I can read it it is in the British Bill—in any event, the Bill we are debating is not the British but ours—but so far as reciprocity is relevant, it is in the British Bill that, in the proceedings, the accused can be represented by counsel or solicitor.
By a counsel or solicitor?
Yes.
Yes, but if I may intervene for a moment, the Minister says he has a right to be represented by the counsel and solicitor representing him in the court or by another counsel and solicitor entitled to practise in the State or entitled to practise in Northern Ireland. The Minister's version is far wider and fuller than what appears in the British Bill.
I am satisfied that the British Bill gives right to an accused going from here to the North to be represented by counsel and solicitor in the proceedings before the commission in the North in the same way as pertains down here. I am quite satisfied that that is clear from the British Bill.
With regard to the other point the Senator raised with regard to interrogation and the question of "legal process", of course certain "legal process" is involved in interrogation. For example, under the Road Traffic Act, under company law, under the Offences Against the State Act, there is provision for interrogation and that is part of that "legal process". Any interrogation that is not legal is illegal. To interrogate a person in the situation envisaged by the Senator, where an accused does not want to answer questions, immediately becomes illegal, or unlegal if not strictly speaking illegal. It would be draft to provide in an Act that a person shall be immune from "illegal process". He is already immune from "illegal process" by virtue of the law and common sense.
There was the third point the Senator raised with regard to the question of custody in Northern Ireland. I do seriously suggest that this is tilting at windmills. He says that because we say in our Act: a person is in the custody of the Garda Síochána or in prison, and in the reciprocating Bill: he is in custody, there is some serious difference. Does it matter a whit to a person in whose custody he is when he is guaranteed immunity when he is in custody? If we were to do as the Senator suggests and say that while in Northern Ireland he should be in the custody of the RUC or in prison, is the objection to other forces having control over him? If that is the objection, the Senator's proposed amendment would not meet it because we cannot say who shall be in control of the prison. We cannot say that the RUC would not be supplemented by an army presence, or that the RUC presence might be merely nominal. The important thing here is that there has to be custody because—as I indicated when we were debating amendments earlier in the day—it would be unreal to have a situation where a person was going North otherwise than in custody because in both cases the temptation to escape would be unavoidable and he would escape; we have to have custody. Once we have custody the main thing is to guarantee that that custody renders the person in custody immune from any "legal process". That is provided in the Act. He is already immune from illegal process by virtue of the ordinary law of the land.
Does that so-called immunity in any way protect the prisoner from the torture squads in existence in the Six Counties? Can the Minister say, when a prisoner is met at the Border, he is handed over to the RUC, transferred immediately to the UDR or some other British organisation, taken away in custody, tortured and efforts made to try to force him to make and sign statements and extract information from him, how long will he be kept in the Six Counties before he appears before this commission and evidence taken, or what right would a prisoner have under such jurisdictions?
Senator Dolan does not want or is incapable of understanding this Bill. The person is in custody of the courts of this country for the purpose of a charge under this Bill. He is sent North, with his agreement, to hear evidence being given on commission. That is the only purpose for which he goes North. To suggest that his going North would be so abused that he would be taken into custody, tortured and interrogated is ridiculous. I shall not deal with the point any further.
It may be all right for the Minister not to deal with it but, after all, he is supposed to have some concern for the prisoner who already has not been proven guilty of anything.
Senator Dolan can take it from me that will not happen.
I am only going on what has happened in the past. It is usually a fair yardstick with which to measure and try to forecast what might happen in the future. Remember we are not dealing with ordinary people here. We are dealing with British people who have been in our country for hundreds of years. I do not think that the Germans or anybody else whose country is partitioned would collaborate with the Russians, or anybody else, so far as prisoners are concerned in this respect. The prisoner would want to have some guarantee. As far as I can see, we have no jurisdiction. You, as Minister, or the Government hand over a man at the Border and he can be tortured and kept there for months, so far as I am aware.
Wrongly aware.
The Minister says now, if I understood him correctly, that it does not really matter whether he is in the charge of the RUC or the army. He seems to envisage that he could be in either. I suppose it could be arguable as to whether an accused would be worse off with the British Army than the RUC or vice-versa.
I am saying that the amendment the Senator proposes, that the British Bill being on all fours, exactly, word for word with ours, could result in that.
The fact remains that in our Bill the Minister has put it down in several places quite clearly that the accused is to be held by the Garda Síochána or in a prison. What I want to know is—and the Minister has made no effort to answer me—why is not a similar provision put into the Bill instead of this completely wide open aspect of custody? Particularly in view of the well-known situation that exists in Northern Ireland I would have thought the Minister would have been very careful to ensure that the wording in this case was the same. If an accused is supposed to be in the custody of the RUC perhaps, as the Minister said, it may be nominal only but at least the RUC will be responsible for him. If he ended up battered or in bad shape one would know who was responsible. Even if it is nominal he would be under the control and would be the responsibility of the RUC. If the Minister feels it necessary to put into his Bill that, in similar circumstances, the accused shall be under the control of the Garda Síochána, then he should certainly have insisted that a similar provision was put in the British Bill.
Secondly, I am amazed at what he says now about the question of counsel and solicitor. He says that the British Bill does incorporate the provision that he can be represented by a counsel and solicitor who are representing him in the trial that is taking place. This is simply not so, and when I raised this before the Minister admitted that it was not so, that his British colleagues had admitted it was not so but that, in practice, this was what would happen. He made that quite clear to me and there is no doubt about it.
Paragraph (b) of subsection (2) of section 11 of the Minister's own Bill says that the accused shall have the right to be represented by the counsel and solicitor who are appearing for him in the actual trial. The British Bill does not provide this. I know the Minister says—and I understand from him that he has been assured by British officials—that, in practice, as an administrative fact—this right will be given to the accused. While I accept completely that he has been given that assurance nonetheless I do not think it satisfactory. When we are framing Bills that are supposed to be parallel, which have been discussed by the Minister for so many months with his British colleagues, he should ensure that this basic and elementary right of the accused is incorporated into the British Bill. I cannot see why we should be asked to pass a Bill of this kind when the safeguards that the Minister and the parliamentary draftsman feel to be necessary in our legislation are not incorporated in the so-called parallel British legislation.
I find the Minister's mental processes even more difficult to understand on the third point with regard to interrogation. He appears to say that all questioning by the Garda Síochána is a legal process where it is legal; otherwise it is illegal. I do not follow this. If a person is brought in, say, under the Offences Against the State Act for 48 hours and can be questioned, is that a legal process? It seems to me to be stretching the phrase "legal process" to cover this.
It is, yes.
It is a legal process?
That the section which permits and indeed requires for its implementation, that an accused——
Every time a policeman asks a question; if, for example in the case we have now in this section, an accused is in the custody of some nameless force in Northern Ireland, or perhaps in a prison; if somebody comes up to him and says: "Where were you on the evening of the 23rd of August ast?" that that is a legal process?
I am not saying that at all. The Senator said that what I said in regard to interrogation as being a "legal process" was wrong as a matter of law, that it was a wrong legal statement. I gave some examples.
I am prepared to concede that some questions may be part of a "legal process". But the Minister has intended to convey the impression that all legal questions——
No, no.
The Minister is not answering the point. The point I am making is that the RUC, the army or whoever has the accused; they have him in a barracks, a prison or wherever they see fit to keep him. They have the man there; they can then question him: "Where were you on August 23rd last? Where were you on such and such a date? Do you know so and so?" They can ask questions of this kind. Will these questions be illegal under this legislation? I do not think they will.
Of course they will.
How?
They would be wrong.
What makes them illegal either in this or in the British Bill? Why cannot the RUC or the army ask questions of the accused? Certainly, they cannot——
They have no right to do so——
I am asking a serious question.
That is not a serious question. We have had enough of that type of nonsense.
Senator Halligan is very good at making snide remarks across the House. He is a good deal less good at defending the small print in this Bill. In fact, I would be interested to hear him do so on this section.
Senator Yeats without interruption.
It is no use in the Minister pooh-poohing this matter, shaking his hand and suggesting this is not worthy of an answer.
It is not.
I am putting this question to the Minister. It may be a question that he cannot answer; that is another matter. But certainly it is worthy of an answer. Indeed I fear it is unanswerable.
Let us go into this: the accused is delivered into Northern Ireland; he is in the custody of someone, somewhere. The Minister says now that, under this legislation, or I suppose it would be under the British legislation, it will be illegal to ask him any questions. If he says this, he ought to justify it. I cannot see that it is. The provision in our law, which is essentially the same as that in the British legislation, is that, while he is in custody in Northern Ireland for the purpose of the taking of the evidence he will be immune from detention and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid. In other words, he cannot be summoned for anything; he cannot be brought before a court for anything; he cannot be served with notice of legal proceedings.
It does not seem to me that this is, in any sense of the word a bar to questioning. I think he can be exposed to questioning. As I have said, he can be asked where he was on a certain date, whether he knows certain people, whether he took part in certain activities. I cannot see what is the bar. If the Minister says—of course this is not legal—then he ought to tell me why it is not legal. I am perfectly prepared to accept his judgment of this if it is a good one and if he will tell me on what it is based. It seems to me that to base it on "legal process" is not good enough. I accept, of course, that certain types of questions might be described as "legal process". The Minister has now accepted that other kinds of questions are not part of a "legal process". That being so, where is the bar on questioning?
What the Senator is talking about is a situation where a person goes North for the purpose of giving evidence on commission. The Senator is worried that, when he is in the hands of the forces in the North, he will be subjected to questioning. No person has to answer a question put to him in a situation like that. A person does not have to answer questions. Any attempt made to get answers from a person who does not want to answer them is illegal per se.
Will the prisoner be accompanied by our men to ensure that that does not happen?
I accept, at least in theory, that you cannot be made to answer. But you could, during an interval of a day or two days in the proceedings, be sat down there at 9 in the morning and cross-examined. Both in our police force and in other people's police forces there are excellent cross-examiners.
If there is a will to engage in such unlawful or improper conduct, the mere provision of a phrase in this Act will not stop it. The answer to that sort of situation is executive action on the part of the Irish Government, which of course would be taken instantly if there was such an abuse of the rights of the person in custody in the North. That is the answer to it.
It is already provided that you cannot be exposed to any kind of suit or legal process.
Of course not.
What is the difference in saying also that he shall not be exposed to interrogation?
That guarantee is already there.
There is no guarantee there. The Minister says if they do it he will do something about it. He might just as well say that if there is a bar on a suit or legal process, and they proceed with it, there is not much you can do about it; of course, you can take steps to see that this kind of proceedings stops. But he has provided that there should be no kind of suit or legal process. It would seem to be very simple to add to this "or interrogation", so that there cannot be any questioning of an accused. The question as to whether he could be manhandled is another matter. I am not raising this at the moment. I am merely suggesting that at the very least he could be sat down in a room and cross-examined.
The reason why the provision for the immunity of an illegal process is there is that if a person went into custody in Northern Ireland and that immunity were not present he could, in theory, be served with a civil process; he could be served with a summons because he has no right not to be served with those things. But with regard to questioning, he has a right, independent and irrespective of anything we might provide in this statute, not to answer questions, and once he exercises that right that is the end of the matter. Nothing that we can put in this statute can add to the right he already has. Should there be an abuse or an attempted abuse by any authority in the other jurisdiction of that right the answer and the remedy lies, not in a phrase in the statute, but in strict and urgent and immediate action by this Government, which of course will be taken. That is the legal position.
Yes, but I do not think the Minister is quite accurate in regard to this matter. He has a right, the Minister says, not to answer questions. But I would remind the Minister that under this Bill in many cases a person has no such right. You can be charged with an offence and sentenced to imprisonment for not answering questions. If an accused is in Northern Ireland and he is asked a question with regard to an offence listed in the Schedule to this Bill and listed in the Schedule to the corresponding British Bill and he refuses to answer, he has committed an offence. While he remains in Northern Ireland on commission he cannot, for the hearing of the evidence on commission, be charged with the offence, but he has committed it and could be charged with it if he ever went back to Northern Ireland. Is that not so? First of all, the Minister has provided in considerable detail in this Bill that if you are asked questions by the relevant authority with regard to the commission of offences under the Schedule to this Bill and you refuse to answer, you have committed an offence.
That is not in the Bill.
It is one of what the Minister described as positive omissions that we had a discussion on in section 1.
That is a Yeatsian phrase, if I may say so. I do not ever remember using that phrase.
The Minister did. I was very impressed by it. We had quite a long discussion on positive ommissions, and it became clear in the course of the discussion that a positive omission was, in fact, that if you had knowledge of an offence listed in one of the Schedules in this Bill having been committed and were asked about it and refused to answer, you would be guilty of an offence.
That is not a statement of the law as contained in this Bill. The Senator will have to point that out to me in the Bill.
We had quite a long discussion on this, in relation to an amendment I had down to section 1.
The Senator got the wrong end of that discussion if he now makes that statement.
If, shall we say, Senator Dolan has been guilty of an offence under the Schedule to this Bill, and if I know he committed the offence and the details of it, and I know where he can be found, and I say I refuse to answer any questions the gardaí ask me about this matter, is the Minister saying I have not committed an offence?
No.
I think the Minister, if he investigated this matter, would find that that is simply not so. We had a long discussion on this, and I pointed out that it could give rise to great problems because in certain parts of Northern Ireland there are people who simply do not accept the existence of the security forces and are not therefore willing to answer questions, and I suggested that it was somewhat unfair under these circumstances to provide for an offence of this nature in the Bill. But the Minister quite clearly has provided for such offences.
What the Senator is mixing up is the difference between a positive act and a positive omission, if I might use the phrase again. In certain cases neglect of a person to do something could be in such a way that it would be clearly an obstruction or would be an offence under the Bill of impeding an arrest or assisting an escape. Certainly the mere refusal to answer a question would not be such conduct.
Put it this way: there are certainly cases under the Offences Against the State Act where it is an offence to refuse to answer certain questions.
To refuse to account for your movements.
Yes, and I take it that in Northern Ireland there are similar provisions.
I cannot so say.
I take it there are, or if the Minister likes to put it the other way, someone coming from Northern Ireland to the hearing of evidence in the State could be asked by the Garda Síochána a question of this nature and would have committed an offence in refusing to answer.
If there are such provisions in Northern Ireland, the person in custody would be exempt because they would be part of the legal process.
I do not have unfortunately before me the report of this interesting debate that we had on positive omissions on section 1 of this Bill.
I can assure the Senator that the mere refusal to answer would not be an offence.
I will come back to this topic on the Report Stage when I will be armed with the information about positive omissions that we discussed on section 1. All I can say is that the Minister has not given any justification for these discrepancies between his own legislation and the so-called parallel legislation which is to apply in Northern Ireland. I cannot understand how this could have arisen or why he has not secured that, having arisen, it is not remedied. We certainly intend to oppose this section.
None are so blind as those who do not wish to see.
I still have not heard any justification from the Senator about this Bill.
Question put.
The Committee divided: Tá, 22; Níl, 9.
Tá
- Boland, John.
- Butler, Pierce.
- Connolly, Roderic.
- Daly, Jack.
- Ferris, Michael.
- FitzGerald, Alexis.
- Halligan, Brendan.
- O'Brien, Andy.
- O'Brien, William.
- O'Toole, Patrick.
- Prendergast, Micheál A.
- Harte, John.
- Kerrigan, Patrick.
- Kilbride, Thomas.
- Lyons, Michael Dalgan.
- McCartin, John Joseph.
- Mannion, John M.
- Markey, Bernard.
- Russell, George Edward.
- Sanfey, James W.
- Walsh, Mary.
- Whyte, Liam.
Níl
- Brennan, John J.
- Dolan, Séamus.
- Eachthéirn, Cáit Uí.
- Garrett, Jack.
- McGlinchey, Bernard.
- Robinson, Mary.
- Ryan, Eoin.
- Ryan, William.
- Yeats, Michael B.
Tellers: Tá, Senators Sanfey and Halligan; Níl, Senators W. Ryan and Garrett.
Question declared carried.
SECTION 12.
I move amendment No. 18:
In subsection (2) (c), line 21, to delete "otherwise than".
These amendments are designed basically for a specific purpose. I put down these amendments not because I think they are necessary in a direct context of section 12 but that the inclusion of these in section 12 would involve a corresponding change in the British legislation. The various amendments I put down are all designed to ease the position of the accused, particularly in Northern Ireland conditions. The effect of this first amendment is that the sittings must be held in public. The corresponding effect in the British legislation, which would have to be changed accordingly, would be that the hearing of the evidence in Northern Ireland would also be in public.
All along I should like it to be quite clear that, in devising these amendments I have particularly in mind the situation in Northern Ireland, and I would urge the Minister to accept them. While they relate directly of course to the Minister's own legislation and to the hearing of evidence in the Republic, they would also have the effect that the British legislation would have to be changed correspondingly.
The Minister provides in paragraph (c) of subsection (2) that the sittings of the commission shall be otherwise than in public, except at such times and on such occasions as the commissioner directs. The intention obviously is that the normal and natural course is that they will be held in private. I cannot understand why this should be. One of the great safeguards we have in democratic countries in the administration of justice is that trials are held in public, so that, to use a cliché, justice shall not merely be done but shall be seen to be done. It is a very great safeguard in any democracy that, apart from the presence of the accused and his counsel, and the fact that the accused in normal circumstances can hear the evidence and so on, it is open to the media, reporters from newspapers, television and indeed the public at large, to go to any criminal proceedings. It is the fact that this is so that has maintained the public trust in our legal institutions that undoubtedly does exist. We know as a matter of course that if a person is tried here for a criminal offence the trial will be a fair one. Experience has shown that this is so, and it is particularly so because the newspapers and other media and the public have access to criminal trials.
I know that the Minister has said on many occasions that the hearing of the evidence on commission is not a trial. But the fact remains that in most cases it is at the commission that the greater part of the evidence in these criminal trials will be heard. In these circumstances I am unable to understand why it is felt to be necessary that it should be held in secret. I can think of nothing more calculated to persuade ordinary members of the public that there is something going on, that this is not a fair form of trial. Even though it should be absolutely fair, even though it should turn out that in Northern Ireland conditions the judges of the High Court who operate as commissioners operate the procedure with absolute and scrupulous fairness, one will never persuade anyone that this is the case if the proceedings are in private.
I cannot understand why this requirement should be there. Therefore my amendment proposes that the words "otherwise than" should be deleted so that the effect then would be that in paragraph (c) the commissioner would hold proceedings in public except at such times and on such cases as he would direct. This would give the commissioner the prospect, in certain limited cases that might arise, of closing the court so that the evidence could be held in private, but it would lay it down quite clearly that, as a general rule, these proceedings, the hearing of the evidence in these cases, would be in public. I would urge the Minister therefore to accept this amendment.
Senator Yeats used the word "secret". The hearings will be in private, not in secret. There is a vast difference, because you will have present the judges from the court in the jurisdiction trying the offences, and you will also have the parties and their counsel or counsels without the parties, depending on what the accused does.
Or neither.
Senator Yeats uses this phrase "I know that the Minister said". He used that phrase again with regard to my statement that what takes place at the commission is not part of the trial. Again I have to say that what takes place on the commission is not part of the trial. I am afraid that it is not enough to remove my statement by saying "I know that the Minister said but", because I said that very seriously and it is very relevant with regard to this provision. It is not part of the trial. The evidence heard at the commission will be admitted by the judges holding the trial, or excluded by the judges, as the case may be. It is possible that evidence will be taken before the commission which will subsequently be ruled inadmissible. I think it could be prejudicial to the accused person perhaps in relation to the charge—because that could be put at right by the court subsequently ruling on the admissibility of the evidence—but, in an extra-legal sense, having regard to the context in which we are debating this Bill and the context in which these trials would take place. It could be prejudicial to the accused in an extra-legal sense, if evidence were published which was subsequently held to be inadmissible at his trial. It would not affect his trial, but it could prejudice him in some extra-legal sense.
Accordingly, I think it is only right that the hearings of the commission, when they are not part of the trial, should be in private. The evidence which will be given and which will be admissible to the trial court will be given in public and will be available for public scrutiny and for public reporting. There is no doubt about that, so that there will be no question of the evidence given before the commissioner being private all the time. It becomes public when it is subsequently admitted by the court of trial.
While Senator Yeats feels his amendment would be in ease of the accused as part of the general proposition that justice should be public, a proposition with which I agree, I think that in the circumstances I paint it could be to the detriment of the accused. The provision in the Bill will not take from the principle that justice should be done in public, because the evidence given by the commission will, if admissible, subsequently be made available to the public at the trial and will be available for public reporting.
Both of these paragraphs which amendments Nos. 18 and 19 set out to amend illustrate the most unfortunate position of the Minister, who having set out to do something in the Bill which was fundamentally unsound, finds himself being driven further and further away from the norms of justice, the norms of procedure, in criminal trials which were accepted in the past. This is the kind of situation in which one wrong leads to another wrong. It seems to me that the Minister, having accepted, and accepted, I am sure, with reluctance, the necessity to do something which was a departure from the normal administration of justice, is saying: "I am forced, for certain reasons which I believe to be justifiable, to depart in fundamental ways from normal justice, but I am going to make sure that in every way possible I minimise and confine myself to what is absolutely necessary." Nevertheless, his attitude, the way in which this Bill builds up as it goes on, he finds himself being undermined and departing more and more from the normal criminal procedure. Why should it be necessary to have this otherwise than in public? Why should it be necessary to emphasise that it should not be in public, except in certain situations, rather than merely to say that it should be in public but to leave the priviso that in certain cases the commissioner might decide to have it in private?
This illustrates the way the Minister, as the Bill goes on, is being undermined by the fundamental unsoundness of what he is trying to do. This amendment is a good one and it goes a small way to undermine what the section already says. It should pay some tribute to the fact, make some acknowledgment of the fact, that trials or the taking of evidence in this case should be in public and that it is only in special cases that it will not be done in public.
I know the Minister has said that this is not a trial, that it is merely the taking of evidence. If the Minister can go on believing that, it is a great tribute to his dedication of purpose in what he is doing. Anybody who has studied this Bill and allows himself to think about what is going to happen is bound to come to the conclusion that the taking of evidence, the procedure that is going to take place is very often going to be the real trial or, certainly, a large part of it. The Minister should consider accepting the amendment merely to experience the novelty of accepting even one amendment put down to this Bill.
If a better example had been found I might be tempted to become intoxicated on the lines suggested by the Senator, but to do it with this example would be unfair to the accused. To accept this amendment it could lead to unfair consequences for an accused person because, whether Senator Ryan likes it or not, my statement that the commission is not part of the trial is a true statement of fact and law.
Technically.
It is, technically, of course, and it is a technical Bill.
It is not part of the trial and things will be given in evidence there which may subsequently be ruled by the trial judge to be inadmissable. If they were to be given in the full glare of publicity as this amendment seeks, the accused could be prejudiced, not in a legal sense because admissability would be subsequently dealt with by the trial judges, but in an extra-legal sense. That is very important in the context in which this Bill is being debated and in the context of which we anticipate this Bill to operate. It could seriously prejudice an accused to have evidence, subsequently found to be inadmissable, given publicity, which would follow if this amendment were accepted.
Firstly, I should like to say a word on the matter which has been raised by the Minister as to whether the commission, as set out in this Bill, is in fact part of the trial. I would put it to him this way. Consider a trial in which all the evidence is given in Northern Ireland on commission or, indeed, in the Republic on commission in the specific case that we are dealing with in this section. The three judges of the Special Criminal Court retire to Dublin or wherever else the trial is taking place and they listen to some person reading out the typescript of the questions, answers, interjections, legal points and so on, but it is not merely on this typescript that they will be deciding the guilt or innocence of the accused. They will have been present, and they must, under the terms of this Bill, be present at the hearing of the evidence. What they are deciding on is not simply the typescript they have listened to but on the demeanour of the witnesses, their behaviour in court, the manner in which they answered questions. All these matters clearly will be, in many respects, of more importance than what appears in the typescript.
Certainly, their observations on these matters will be an absolutely essential indisputable part of the trial. Under these circumstances how can the Minister say that this hearing of the evidence is not part of the trial? The judges must be there under this Bill. They will be observing the witnesses. It is not as if they were just settling in in their own court back in the Republic listening to the typescript being read. They are doing far more than that. They are harping back all the time in their minds' eye to the appearance, the manner, the demeanour of the witnesses who are giving evidence. This is an important part of the evidence which does not appear in the typescript, has only appeared and been observed in these proceedings on commission. Under these circumstances, whatever the Minister may call it, it seems to me that on the elementary meaning of the word, the proceedings on commission must be inevitably a part of the trial.
The Minister says that it is in the interest of the accused that these proceedings should be in private—if he prefers to call it private rather than secret I am happy to call it private but the public, at any rate, are not there.
My amendment preserves the right of the commissioner to close the court. I suggest that if the accused is represented by counsel that counsel, if any dubious piece of evidence comes in which he feels ought to be rejected, only need ask the commissioner: "Will you please close the court while this evidence is being heard?" If the accused is not there and his counsel are not there it certainly ought to be open to the judges of the Special Court, who felt that a dicey piece of evidence was being given, to suggest to the commissioner that he might close the court. I should have thought the matter could be dealt with perfectly satisfactorily in that way. If the accused is not there, which will unfortunately be the normal situation, it can only be in the interest of the accused to have the proceedings in public rather than in private, in secret, whatever phraseology one might wish to use.
The interest of the accused could be satisfactorily safeguarded by this means, by the power which would remain— even if my amendment is accepted—to close the court. In the interests of justice, of the public confidence in the administration of justice, it would be essential that the proceedings as a general rule should be in public. After all, the newspapers also would only be in a position to hear the typescript when it is being read out in court. They would not have seen the witnesses, their demeanour, their manner in court or the manner in which they answered questions. I cannot conceive that the public at large, or the newspapers, would consider it in any way satisfactory that so-called open justice should be done by way of typescript. Any trial, any legal proceedings of any kind, where oral evidence is given, is far more than merely a statement of facts or allegations by people. The whole concept of criminal justice is based on the fact that the accused, the public at large, the jury, where there is a jury, certainly the judges are able to see the witnesses and to judge by the manner in which they give evidence whether credence should be lent to them or not.
Two points arise from what Senator Yeats said. Firstly, it will not go away as a matter of fact in law that the hearing by the commission is not part of the trial. Secondly, I submit that in the case of an accused not at the commission personally, nor represented by counsel, to accept this amendment would do him a grave injustice if evidence, subsequently found to be inadmissible, were given in full glare of Press publicity. He would be in an even worse position because there would be nobody at all there. Senator Yeats suggests that, if his amendment were accepted, when counsel would be present counsel could ask to have the press excluded during the taking of certain evidence and it might be subject to objections afterwards. He also said, that even if counsel is not there, this duty could be undertaken by the visiting judges. I do not know if it would be proper for them to prejudge a question of admissibility. It is something about which they might have to hear arguments from prosecuting and defending counsel subsequently. They might feel somewhat inhibited in asking the court to go private for certain evidence.
The other point is with regard to the assessing of evidence by hearing it viva voce. This is an important point. That safeguard is preserved by arranging for the presence of the trial judges at the commission so that they can assess the demeanour of the witnesses and see how they answer questions. This is a matter of limited importance to a court. What is said rather than how it is said is what is really important.
Who are the parties interested in the sight of a witness? The trial judges—and their rights are already preserved and their presence is guaranteed at the commission. The accused can be there if he wants to. A jury does not arise; it will be a non-jury trial. The general public, by definition, cannot be present. They have to rely for what goes on at a court on newspapers' reports. The newspapers do not and cannot necessarily report on the demeanour of a witness; all they can report is the evidence the witness gives. This facility will still be available for them when the evidence is read out at the actual trial in court.
The Minister quite misunderstands the real advantage of having trials in public. I am not suggesting that newspapers describe the demeanour of a witness and so on. They do it in America and it is a satisfactory state of affairs that they do not do it here. The point he should consider is that the mere fact that the public and the newspapers can be admitted to trials is a safeguard against abuses of the judicial process. If members of the public, reporters who attend at criminal trials, consistently felt that decisions were going against or indeed for an accused against the weight of the evidence, bearing in mind the nature of the evidence, the demeanour of the witness and so on, the word would soon go around that there was something wrong with the administration of justice and with our courts. It is the fact that these matters are in public, that people have access to them, which has prevented this happening in our case. There is nothing worse than secrecy, or if the Minister prefers the word, privacy to breed rumours. There are always people, who, whether malicious or public spirited is immaterial, willing to spread rumours about matters which are private on the basis that there is something going on.
If the Minister is not willing because of, as he says, the interests of the accused—and I can see that the accused's interests must be considered in this matter, although I am doubtful whether the danger is such as the Minister suggests—why does he not provide that these sittings shall be held in public but that the court may ban the publication of the evidence? That would seem to be a simple way round it. We would then have the public, the newspapers, or anybody else who felt like going able to attend the hearing of the evidence, but there would be a total or partial ban on the publication of evidence. That would be a way round the problem which would certainly avoid any damage to the interests of the accused.
The answer to that must be to again refer to the confusion in the Senator's mind as between the commission and the court. He said that the court could ban the evidence but this will not be a court; it will be a commission. This would be giving it a function it is not entitled to have. It would be giving it a judicial role, so to speak, by allowing it to decide what is to be banned, what is not to be banned and having arguments with counsel on this. The proceedings should be in private. I do not think that the dangers of secret courts would follow from this. The only part of this that is private is not the court at all. The court itself will be public and the evidence will be available for public reporting and that is the safeguard we have against star chamber procedure or anything of that type.
That safeguard is not going to be diminished or interfered with by the section as drafted. It is preserved because the trial court itself would have access to this evidence which would be given publicly at the trial court and be available for public reporting. This, after all, is the real safeguard.
The Minister, all of a sudden is very mealy-mouthed about powers he proposes to give the commission. After all he has already given the commissioner power to require the provision of evidence, to exclude evidence, and grant privilege. He has given him power, on adjournment of proceedings, to release the accused or to hold him in custody. These are very considerable powers, far more considerable, I would have thought, than the mere question of banning of publication of evidence. However if he feels that the commission ought not to have this power, then the situation is simple. All he needs to do is to say that the sittings shall be in public but that there may be no publication of the evidence. Then it is not a matter for the commission, it is a matter of law. The Minister is obviously touchy about this.
Not touchy. I just want to be accurate.
It is a matter on which we might disagree, but I do not think it arises under this amendment. The Minister has one view and I have another. We can differ on it. As regards the amendment, I do not think it necessarily arises. The commission under these circumstances would have no function at all, because the law would say that evidence shall not be published. Equally it would be open to the public, the newspapers and all concerned to attend the hearing of the evidence. I suggest that the Minister might accept that proposition. Incidentally, he objects to the commission having the right to agree to or ban publication but it just occurs to me that in paragraph (c) of subsection (2) he gives them the power to sit in public or in private as they may decide. They already have considerable powers in this respect, but if he does not wish to to give any more I would be happy to have the situation left that the law said there could be no publication of evidence but, equally, that sittings as a general rule should be public.
The Minister is so adamant that this is not a court that one should look at this a little further. It may not be a trial; it may not be a court; but it is certainly not a normal commission. The commissioner in this Bill is given powers which no commissioner in normal circumstances who is taking evidence is given. It is a matter of saying a commission is not a court and is not part of the trial. The Minister must face up to the fact that in this Bill he is giving the commissioner more powers than are given normally to a commissioner who is taking evidence.
If the Minister is giving the commissioner far more than normal then it is not a normal commission; it is moving into, as the Minister described a number of other things, a grey area. It is an area which is not quite the court and is not quite a normal commission either, it is something in between. One could go on giving the commissioner more and more powers and keep on saying that it was not a trial but we would end up with a situation where the commissioner was presiding over something which was so important and an essential part of the trial to be indistinguishable from the trial. I do not think the Minister should push too far this business of this not being the trial. It is not the trial, but it is also not a normal commission; it is something in between.
It is not the type of commission we are used to: it is a new type of commission established for the purpose of this Bill. The normal type of commission we are used to is the one that takes evidence in a civil case, in a case of illness, or something like that. That is the normal type of one we are used to. Obviously it is not the same as that because the commissioner has somewhat wider functions than that commissioner would have. Nevertheless, it is still a commission. It is still somebody acting on behalf of the court and taking evidence on behalf of the court, but is not the court itself. It is important to preserve that distinction for the reason Senator Ryan points out, that if we kept adding to his powers that distinction might become too blurred and the clear distinction which is presently visible to my mind might no longer be visible and we might have an anomalous situation. If we are to add to his powers deciding what is to be banned or not banned we would be progressing more and more along that road.
I will withdraw the amendment as it stands but I will certainly reintroduce an amendment on the lines I suggested on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In subsection (2), lines 23 to 31, to delete paragraph (d).
This is a similar type of amendment. It seeks to delete paragraph (d) of subsection (2) of section 12, which provides that the name and address of any witness shall not be disclosed to any person other than the commissioner and his officers. Here we have a situation where the evidence is being heard in private, the public are not admitted, the newspapers are not admitted and indeed the accused may well not be present, and along come the witnesses and their names are to be withheld also. There are anonymous witnesses giving evidence in private, possibly in the absence of the accused. One difficulty is piled upon another in the way of attaining anything like what we would normally consider as a fair and just type of criminal trial. I cannot understand, particularly in the light to the Minister's insistence that these proceedings should be held in private, why it is necessary that the name and address of any witness shall not be disclosed. It seems that this is the old business that we have in Northern Ireland of soldier A and soldier B.
The Minister showed some resentment on a previous occasion when it was put to him that there could be hooded men coming in, soldier A, soldier B and sergeant C. He said this could not happen and, if it did happen, our courts would not stand for it. We know it happens all the time. I presume that the only purpose of withholding the name of a witness is so that he shall not be recognised. It would appear, therefore, that hoods are an necessary part of this. I urge the Minister to delete this provision, which is contrary to the normal practice of criminal law, because an accused and the public at large should have some kind of idea who is giving evidence in criminal proceedings of this kind.
I am disappointed that Senator Yeats should use his amendment as something on which to hang this allegation of Senator Dolan that witnesses will be hooded. That will not be the case because hooded witnesses would not be acceptable to our courts as a matter of our law and practice as it presently stands. These proceedings will be proceedings of our courts. To suggest that our courts would accept evidence from hooded people is insulting to our courts. I am disappointed that Senator Yeats would use this provision of prohibiting the name and address of a witness from publication to try and say that that implies that this other may happen. That is wrong.
The idea of this section is to protect witnesses and to encourage witnesses to come forward to give evidence. We are not debating this Bill in vacuum. We are debating it in the context of Ireland as it presently is, in a context possibly even worse than the one we are presently experiencing. We all know what has happened witnesses in the past. The most horrible case I can think of was the unfortunate bus driver who witnessed a hijacking, nothing more than that, and was subsequently murdered on his own hearth because it had been let known that he was going to be a witness and that he had got a witness summons. He was murdered on his own hearth in front of his wife and children because he happened to see a hijacking.
Witnesses in the context of this Bill— it is unreal to think of it any other way—need to be protected. The elementary protection is not to have their names and addresses published. Their names and addresses will be made available to the commissioner, his officers, the members of the court in Northern Ireland concerned and any officers designated by them, the parties to the proceedings in Northern Ireland, their counsel and solicitors, and, where the commissioner considers it is required in the interests of justice, any other person whom the commissioner specifies. All the relevant parties are provided for—they can all be informed of the name and address of the witness. The general public is excluded from this information. We have to weigh up the interest of the general public in having this information and the interest of the witness in being protected. In the context of Ireland today I have no doubt that the balance of justice lies in protecting the witness and keeping his name and address confidential.
The Minister has made a slight allegation that I was casting some reflection on our courts. I was not at any time. I was trying to guard against the fact that our Garda, our Army and our courts would be brought into disrepute because of their association with certain type of witnesses and certain personnel from the Six Counties who are dubious characters. They are people in whom we would not have any trust. That is what I meant. The Minister was quoting me incorrectly there. I never tried to cast any reflection on our courts and I have an implicit belief in our courts, our Army and our Garda. The Minister should know that. I would be concerned about some of these witnesses and to ensure that the public would believe that such witnesses were in existence. We could have a situation where names would be quoted and numbers given and probably no such person is alive at all.
That could not happen because the witness would have to give evidence, would have to be physically there and speak.
The evidence will be taken on commission.
The Minister expressed regrets that I should descend to talking about hooded people giving evidence but we are talking about something which we all know happens as a matter of course in Northern Ireland. The courts of Northern Ireland, including the judges who would be carrying out these commissions under the Minister's Bill, accept this evidence, and have consistently done so. What the Minister in effect is saying is that our judges have higher standards than the judges in Northern Ireland, that although the judges of the High Court and other courts in Northern Ireland accept evidence from hooded soldiers, and indeed in their capacity as commissioners might accept such evidence, our courts, who are more impartial, less hostile to the interests of the accused and so on, would not accept that evidence.
He may well be right. But it seems strange to me that in the light of this Bill, which relies to such an extent on the co-operation of these judges in Northern Ireland, their activities as commissioners and so on, he should make statements which go a long way to justifying many of the points we have been making—for example, that this Bill is unworkable if only because the administration of justice in Northern Ireland is not as we have it here. Many things happen in the administration of justice in Northern Ireland, among them this business of accepting evidence from hooded soldiers, A,B,C and so on. These things could not happen in our courts. The Minister has now made this point and that statement alone is a justification for much of the opposition to this Bill.
Amendment, by leave, withdrawn.
Business suspended at 5.30 p.m. and resumed at 7.15 p.m.
I move amendment No. 20:
In subsection (3) (d), lines 44 to 46, to delete "if he thinks it appropriate to do so, on the application of the accused or the prosecutor" and substitute "for more than twenty-four hours".
This amendment is to paragraph (d) of subsection (3) of section 12 which, as it stands, provides that
upon any adjournment of the proceedings, if he thinks it appropriate to do so, on the application of the accused or the prosecutor, the commissioner may authorise the temporary return of the accused to Northern Ireland.
There is the more or less equivalent provision of the British Bill in this regard. As I have already pointed out to the Minister, the British Bill is somewhat less favourable to the accused than the Minister's proposals. Whereas the Minister obviously envisages that in the event of an adjournment the accused will be returned to Northern Ireland, the British Bill says that the accused shall, unless the commissioner otherwise directs, remain in Northern Ireland until the examination is complete. In other words, where the Minister clearly envisages that in the event of any adjournment of reasonable length the accused will be returned so that he can be again on bail, the parallel provisions of the British Bill envisage that on the contrary the accused will, in accordance with normal procedure, remain in custody until the examination is completed. The wording is quite different. It is different in a way that can only be intended to mean something. One can only ask the Minister why he has not ensured that in this respect also the same safeguards are given to the accused in the British legislation as are given in this legislation.
Even in the Minister's form, which is clearly more desirable than the British version, it is left too vague, particularly in the light of the Minister's constantly reiterated proposition that the commissioner is merely a superior civil servant whose function is to take evidence. That being so, the Minister should agree that as little discretion as possible should be given to the commissioner with regard to whether he will release the accused. To give him the very extensive flexibility of power that he has here in this paragraph seems quite wrong in view of the Minister's reiterated denials that he is a judge. He should not have that kind of power if he is a Northern Ireland judge because we know that some of these gentlemen have not in the past shown an impartiality and a lack of bias that one would expect of judges.
My amendment proposes that instead of the element of considerable flexibility that the Minister provides for, though still leaving it to the commissioner to decide whether it is appropriate to a particular case but providing that if he deems it appropriate in any case where the adjournment is of more than 24 hours he may authorise the temporary return of the accused. If this amendment is accepted the British Bill would have to be amended accordingly. The position would be then that an accused who goes to Northern Ireland must be returned, under the parallel provisions, to the Republic of Ireland in the event of an adjournment of more than 24 hours. The power given to the commissioner both in this paragraph and more particularly in the British Bill covering the situation that arises in Northern Ireland is quite simply to keep the accused in custody, if he wishes, irrespective of the length of time of the process of taking evidence. The Minister may say that while he has this power, we all know he will not exercise it, that in the event of any kind of adjournment, perhaps, beyond one night, the accused will be returned here. This is not what is stated. We have the position that the commissioner, this gentleman who is not a judge according to the Minister and to whom he has stated he resisted giving such power on the ground that it would not be appropriate to do so, has the power to keep the accused in custody regardless of how long the taking of evidence might entail and regardless of whether it transpires that some military witness has gone on leave and will not be returning for a week or ten days. It is perfectly within the powers of the commissioner to keep the accused in custody. The Minister may say he may not use that power but nonetheless he has it. It ought not be given since the Minister is at such pains to stress that the commissioner has not the authority of a judge. If he is only a sort of functionary he should not have this kind of power. I would be a little in favour of depriving the commissioner of all discretion in the matter, but if the Minister wishes him to have discretion this amendment is certainly far more satisfactory than the wording in the Bill. It would mean that where there was an adjournment of 24 hours or more the accused could be returned across the Border. I ask the Minister to accept this amendment.
In considering the amendment I think we should look back at the provision as drafted. Section 12, subsection (3), paragraph (d), reads that the commissioner may:
upon any adjournment of the proceedings, if he thinks it appropriate to do so, on the application of the accused of the prosecutor, authorise the temporary return of the accused to Northern Ireland.
As drafted that gives the commissioner discretion which he has to exercise on the application of the accused or the prosecutor to authorise the temporary return of the accused to Northern Ireland. The commissioner has discretion if he thinks it appropriate to do so, to order the return of an accused or his retention in custody in Northern Ireland. The accused and the prosecutor have power under this Bill to request the exercise of discretion one way or another. What the amendment seeks to do is to limit that discretion by providing that if the adjournment is for 24 hours at least, the accused must be returned to the other jurisdiction. This does not remove the discretion because it is still subject to the commencing words: "the commissioner may". As amended it would read: "the commissioner may upon any adjournment of proceedings for more than 24 hours authorise the temporary return of the accused to Northern Ireland". It is still discretionary. It is clearly preferable to leave it to the discretion of the commissioner at all times. The amendment as drafted limits that discretion where the adjournment or the delay is to be shorter than 24 hours. I could envisage a situation where the commission might be sitting in a town adjacent to the Border and the appropriate action would be to return the accused to the other jurisdiction overnight but the amendment as proposed precludes the commissioner from doing that. It would be retrograde to accept the amendment for that reason.
Senator Yeats also raised the question of the parallel provisions as between the two Bills. As is clear to the House from the provision in our Bill as drafted, there is a discretion on the part of the commissioner. He can be requested by either party to authorise the temporary return of the accused and, if he thinks it appropriate to do so, he can so authorise. The UK Bill says that the accused shall, unless the commissioner otherwise directs, remain in Northern Ireland until the examination is completed and that either the prosecutor or the accused may apply for a direction. The position there is the same. The commissioner has a discretion. It is phrased differently in the British Bill but essentially it is the same discretion. The commissioner, in the case of an accused going to Northern Ireland may on an application direct the return of the accused to the South. Likewise, an accused in the South for the purposes of the commission may be returned if the commissioner thinks it appropriate to do so even for a shorter period than 24 hours. If the amendment were to be accepted, it would be cutting down on the rights of the accused to be returned in a suitable situation in the case of an adjournment of less than 24 hours.
I can see the Minister's point that my amendment would cut down the possibilities for the accused to be returned if the adjournment were less than 24 hours but I doubt, even if these proceedings were being held close to the Border, that an accused will be sent back across the Border if the adjournment is as short as that. After all the hearing of the evidence might be held next door to the Border but that does not mean that the accused would live next door to the Border and it would be rather pointless to send him across the Border if in fact his dwelling was in Dublin or in Cork or some place like that.
I would imagine that the jurisdiction wherein the commission was taking place would want to send him back rather than have the burden of keeping him in custody.
It would not be much consolation if he is going to have to stay in the custody of the police up there simply because he could not be sent anywhere else. However, I can see that there is an element of flexibility lacking in my reference to 24 hours.
I shall withdraw the amendment, as at present drafted. I shall think of something for the Report Stage which may more closely meet the points the Minister put, because I think it really is in no way in accordance with the Minister's conception of the commissioner that he should have this really very extensive power with regard to the retention of an accused in custody. Before tea the Minister told me that even such a simple matter as a decision by the commissioner whether a particular item of evidence was to be published was, in his view, too great a power to be given to a person in his position. He said this was much more in accordance with the kind of power that a judge might have and that it was improper that it should be given to the commissioner. Surely here he has a much greater power? I would think that the power of holding a man in custody, or releasing him from custody, is a far more important and extensive one than the mere question as to whether evidence should be published. The Minister should be consistent in this matter. If he wants to limit the powers of a commissioner in one respect he should certainly limit them in another.
I shall see what I can draft on the Report Stage with a view both to securing more fully, as is needed, the rights of the accused and also to limit the powers of the commissioner.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In subsection (4), lines 50 to 52, to delete "it shall be the duty of the Commissioner to arrange his sittings so as to facilitate their presence and to" and substitute "the Commissioner shall arrange his sittings so as to facilitate their presence and shall".
Perhaps this is really a matter of wording more than one of any fundamental importance. For the reasons I have already mentioned it should meet the approbation of the Minister who is so anxious not to give undue flexibility in the powers of the commissioner.
If I might take the first part of my amendment, it seeks to ensure that whereas the Minister says that it shall be the duty of the commissioner to arrange his sittings so as to facilitate the presence of the members of the court, I suggest that, instead, the wording shall read that the commissioner shall arrange his sittings so as to facilitate their presence. I do not see any reason why it should not be put in that more direct way. The commissioner, particularly in view of the Minister's reiterated statement, the commissioner being a functionary rather than a judge, there should be no question of his doing anything else except fit in his sittings to the needs of the court. Therefore, the word
"shall" there is much better than the words "shall be the duty". It is far more than a duty; it is an obligation.
However, the second part of my amendment is, I think, of very great importance. The Minister's provision in subsection (4), the last couple of lines, says:
..., and it shall be the duty of the Commissioner to arrange his sittings so as to facilitate their presence and to comply with any request by those members to put any particular question or questions to the witness.
My amendment seeks to say that the commissioner "shall" comply. I do not think it is sufficient to say that it is his duty to comply. It seems to me quite clear, bearing in mind the nature of the powers of the commissioner, the nature of the procedure which is under way to hear evidence for a trial, that the commissioner must comply with any requests by the members of the court to put a particular question or questions to the witness. He should not have any powers in the matter at all. If the judges of the court who are attending the hearing of the evidence require that a question should be put, then the question must be put.
The Minister has probably found that there are constitutional problems in allowing the judges to put the questions direct. It is one of the crosses he must bear because of the peculiar nature of the procedures that he is incorporating in this Bill. Failing that, which would obviously be desirable, other things being equal, certainly it should be made quite clear that the commissioner must, in all cases, comply with any request by the members of the court to put a particular question or questions to a witness. I do not think it sufficient to say that it should be his duty to comply with such a request. Apart from anything else, if he does not carry out his duty, as far as one can see there is no redress. There is an element of flexibility there which is undesirable.
However, this brings us to yet another very serious deficiency in the supposedly parallel British legislation. The corresponding provision in the British Act in relation to a situation where our Special Court members go to Northern Ireland to listen to evidence being given on commission in Northern Ireland says that the judges shall have a right to suggest to the commissioner questions to be put to the witness. Here, there is not even any duty laid on the commissioner; they shall have a right to suggest to the commissioner; it is big of them in the British Bill to give them this right to suggest; very nice, but there is absolutely no duty or obligation of any kind laid upon the commissioner in the British Bill to put these questions.
The Minister may say: all right; he knows they will do this. How does he know they will do this? He has no way of knowing it. Certainly he has not secured it in the way in which he discussed this matter with his British colleagues. I cannot understand why, on this basic point, he has not secured that at least the rights of the Irish judges, whatever about the accused, who attend the hearing of evidence in Northern Ireland are not secured. They have absolutely no rights. At least a Northern Ireland judge who comes to the Republic for the hearing of evidence, in accordance with the provisions of this section—at least in his case—the commissioner here has a duty to put questions suggested by the Northern Ireland judges. But, when a judge of the Irish Special Criminal Court travels to Northern Ireland and listens to the evidence being given, for a trial which— mark you—is taking place in the Republic of Ireland, he has absolutely no right to insist that a question is put. All he can do is suggest to the commissioner that he might put these questions.
This is not merely a coincidence. This is a deliberate decision by somebody to put this in in this way in the British Bill. I would like to know from the Minister why it is being done in this way, why he has not insisted that it be done correctly and why he proceeds with this Bill, in the absence of parallel legislation in England.
There were a number of matters raised on this amendment. First of all, the section, as drafted—if I may take the question of facilitating the sittings first—says:
...and it shall be the duty of the Commissioner to arrange his sittings so as to facilitate...
The amendment purports to change that to read:
the Commissioner shall arrange his sittings so as to facilitate...
I cannot see any real difference between "it shall be the duty of the Commissioner to arrange his sittings so as to facilitate" and "the Commissioner shall arrange his sittings so as to facilitate". Where the amendment would have a real difference, would be in its effect on the last clause of the section, which would then read that the commissioner shall comply with any requests by those members to put any particular question or questions to the witness. I would be inclined to look at this section again but in an opposite direction to that suggested by Senator Yeats. The point of a commissioner having a discretion is that the commissioner has to be the person to decide whether a particular matter is to be excluded on the grounds of public interest. In applying domestic law in that regard, he is the person who will have to decide on whether a particular thing should be excluded. I would be anxious to avoid any potentially contentious situation as between visiting judges and the commissioner that might lead to a request, which under our Bill would have to be carried out, to the commissioner to put a question, the answer to which he knows will have to be excluded as a matter of public interest, or as a question of privilege under the law of the State where the commission is taking place. In practice —again I have to make the point—it is unlikely that a commissioner would not put or would cavil at putting a question suggested by the visiting court. That would be the situation in both jurisdictions.
I sympathise with the amendment in so far as it affects the first part of the subsection dealing with the arrangement of the sittings. I do not see any great objection to it. I should like to consider its effect on the second part of the subsection with a view to amending that, possibly, to put it on all fours with the British Act, so that we would have the position, in both jurisdictions, that the commissioner would have the discretion, on being requested by the visiting court, to put the question. That is as it should be, because it is unlikely that he will be asked to put a question that could be contentious or out of place. It is equally unlikely that he would fail to put a question that would be proper. To strengthen the statute by directing people of this particular rank in this particular function would not be entirely appropriate.
I agree with the amendment in so far as it applies to the first part as regards the facilitating of the sittings, with regard to the compliance with a request, or the consequence of a request made, I should like to think further and come back to it at the Report Stage, perhaps amending that entire section to meet Senator Yeats' points.
With regard to the Minister's point about the problem of privilege, all one needs to do there is to add the words "subject to the provisions of paragraph (b) of subsection (6)", which is the one dealing with this matter. If one says that, then it means that, in a case where privilege was involved, he could refrain from putting the question. That would cover the point completely and adequately. While thanking the Minister for his agreement with the first part of our amendment— which candidly I think is of small importance, is a matter essentially of wording; I do not really think it makes that much difference—I am more than appalled at this proposition that he might alter the second part of this subsection in order to match the British wording, wording which is entirely and completely unsatisfactory and gives absolutely no safeguard to the members of the court.
I take it the Minister will agree with me when I say the ideal procedure, in a matter of this kind—the hearing of evidence in the manner suggested by this Bill—would be that the judges of the court of trial should be able themselves to cross-examine the witnesses. This is leaving aside legal problems. I am not talking at the moment about legal problems at all. The idea is to see this from the point of view of the trial which evidently could——
If I may intervene—I do not want to interrupt the Senator's train of thought—but it is not good that judges should intervene to the extent of cross-examining and it is reckoned bad judicial practice that they should do so. Occasionally if a point is left obscure by cross-examination or direct examination they may ask a question to clarify but any intervention more than that is reckoned bad judicial practice.
If I said "cross-examination", I did not mean to use that in the full meaning of the term. Clearly there are cases in which the judge can ask questions and indeed in cases, which will be the normal thing under this legislation, where the accused is unrepresented and indeed not even himself present, the judge would clearly have a special duty to protect the interests of the accused. After all, the counsel for the prosecution are there to prosecute. While one certainly expects that they will be fair nonetheless they are not, shall we say, on the side of the accused. In the absence of counsel for the accused, which would be normal, and even in the absence of the accused himself, which would be normal, one could visualise that there could be many instances in which the judges would find it valuable to put questions to the witnesses.
In so far as such questions were necessary, I would put it that the Minister would agree with me that it would be clearly desirable, leaving legal problems entirely out of it, that the judges could put these themselves. Now I accept that there are legal and conditional problems which make this impossible. But, that being so, they ought at least be able to ensure that whatever questions they sought fit to put were put. I cannot conceive, particularly in view of the Minister's attitude about these commissioners that they should be given as few powers as possible, not even the power to decide whether evidence is to be published or not, why one of these commissioners should have the right to say to a judge of the Special Criminal Court that although the judge would like a question to be put the commissioner decides not to put it. The question of privilege is another matter and I have already said we could solve that without any difficulty.
It seems to me that, if a judge of the Special Criminal Court or indeed a corresponding judge of the court of trial in Northern Ireland came down here under this section and wished to put a question, he should be able to see that it is put. I cannot understand why there should be any kind of flexibility or power given to this commissioner, who the Minister says is merely a kind of functionary, is not a judge, is not conducting a trial, he is not supposed to have this kind of power at all, is merely taking evidence, to say "I will not put a question that these judges want me to put".
He has this power even in the Minister's wording, though I accept that the Minister's wording is far more satisfactory than the British. But in the British wording he has complete discretion. There is no kind of onus on him, no kind of duty laid upon him, no kind of obligation laid upon him to put questions that he is requested to put by the judges. "The judges shall have a right to suggest to the Commissioner questions to be put to the witness." Is that not a generous concession made by the British authorities in this British Bill, that the judges of the Irish special court who travel to Northern Ireland in proceedings related to a trial being held in the Republic to hear the evidence being given in respect of that trial in the Republic, that they are told blandly in this piece of British legislation, for which the Minister has a direct responsibility, that they shall have the right to suggest to the commissioner questions to be put to the witness? It is clearly totally unsatisfactory. Totally contrary to what the Minister has in his own Bill for the comparable case where judges come down here to listen to evidence being given.
Under these circumstances I am unable to understand why the Minister has not long since written to whoever his confrére is in the British Government, pointed out this discrepancy and suggested that it really ought to be remedied and that at the very least the wording should be identical in the Irish and British Bills. It seems to me that the Minister, having laboriously framed this extremely complicated piece of legislation and having discussed these matters at considerable length with his British colleagues, has given up all responsibility, accepts no responsibility for what is in the British Bill.
It is the British Bill the Senator wants to amend now.
The position is really quite simple. The Minister was in—he does not like the word "collaboration"—co-operation——
I have never objected to it. Some of my colleagues object to it.
I see. It is a much more convenient word. He was in collaboration—I am not using this in any pejorative sense—with his colleagues in the British Government over a period of months. They framed these parallel pieces of legislation. The Minister used the word "parallel" on several occasions on Second Reading. Each side had a duty to ensure that they were indeed parallel. The whole point of this legislation is that each side—the British Parliament, on the one hand, and the Irish Oireachtas, on the other—are passing legislation which is as identical as the draftsmen in each country can make it. Each had a parallel responsibility to his end.
I am maintaining that the Minister has not carried out his end of the responsibility. In all the parts of the British Bill which might be of interest to a prosecutor there is identity. When it comes to the Schedule of offences, to a variety of matters dealing with the nature of offences, the creation of new offences, the method of trying these offences and so on, in all these matters which are related particularly to the prosecution there is identity. I have found no discrepancy, of wording occasionally but not of meaning. But, when you come to the rights of the accused, over and over again you find that the British Bill reduces the safeguards available to the accused. The Minister's Bill, I will admit it, while I criticised the Minister's Bill in many respects with regard to the position of the accused, in these respects I have mentioned the Minister's Bill is incomparably more desirable or less undesirable than the British one.
When it comes to the rights of the accused you have these changes—I can only describe them as changes—in the British Bill, changes, I presume, from what was originally agreed. There must have been a text originally agreed. There appear to have been changes made in all cases to the detriment of the accused. Because there are so many of them—five or six at least—and because they are all to the detriment of the accused, one can only conclude that this is deliberate, that there is a deliberate pattern underlined in the British Bill.
That is why I say in answer to Senator O'Higgins that the Minister has a responsibility. The Minister should long since have examined the British Bill, should have noted these discrepancies and in particular that they are all on one side, all leaning against the accused. He should have written to his British partner pointing out these. If the reply came that this was the way they wanted it and it was not going to be changed, then he should then have written again saying "Well, I am sorry, but I am not able to carry on with my Bill until these changes are made". I take it that the terms of these two Bills were agreed and in particular the rights of the accused were laid down in agreement with his British colleagues. They have been maintained, in so far as they can be maintained, if only to a limited extent, in the Minister's legislation. Yet they have not been maintained in the British legislation. The Minister should do nothing further about this Bill until he is satisfied that the British are going to follow it.
It is wrong to suggest that any provision in the Bill is in favour of the accused or in favour of the prosecution. All the provisions apply equally to both prosecution and accused. Again, Senator Yeats is making verbal mountains out of verbal molehills. The position is that the commissioner is in charge of the proceedings and it is his duty to decide what questions are put and what questions are not put, subject to the retraint that he determines whether they are in accordance with the public interest and whether a thing is admissible. If a question has to be excluded it does not matter that the wording of the right to put the question is mandatory in this Bill as opposed to discretionary in the British Bill; if it is to be excluded it is to be excluded under both Bills. As I say, this is making verbal mountains out of verbal molehills.
I do not think so. The Minister has not been a Minister for very long. When he was in Opposition he would not have suggested that this was a matter of making verbal mountains out of verbal molehills. He would have been the first to see that there was a very serious point of principle involved.
I accept that the Minister provides in his own section 12 that the commissioner, who is a member of the Irish judiciary, has a duty to comply with any request to put questions. I accept that an Irish judge, a judge under our Constitution. Will conduct these proceedings in a fair way. If he has to put a question—leaving questions of privilege aside—he will put them. My amendment is merely directed to improving the position so that the British would correspondingly have to change their Bill, too.
The point I am making about the difference in the British Bill is not really related to my amendment. I am raising it now because it seems a convenient place to raise it. I can assure the Chair I will not again raise it on the section. It is a matter that needs to be discussed and I think it is convenient to do it now.
The Chair would be forgiven at times for thinking we were on the section.
I assure the Chair that I will not attempt to raise this particular point again on the section. The difference between the wording of the British Bill and the Minister's Bill is far more than a verbal molehill. It could be, though I would not accept the proposition, that if this was the wording in his own section 12, one might feel that no great harm is done because we know that Irish judges will play fair by everyone, that they will put the right questions and so on. I would still say that if we are legislating we should do it right. We should make it absolutely clear that the judges have a right to see that their questions are put and that the powers of the commissioner, who after all is not a judge, are as limited as possible.
Unfortunately, in the British Bill the powers of the commissioner are very great in this respect. He has complete discretion as to whether he puts a question or not. The question of privilege need not worry us any more. It can easily be dealt with by a rewording of my amendment. I have no problem there and I do not think the Minister has either. But there is this very great discrepancy between the British Bill and the Minister's Bill. Does the Minister not accept that these discrepancies are present? He says that everything in the Bill is equally related to the prosecution and the accused. That obviously is not so. It is one of these theoretical points which has no real substance at all.
When I say that there are provisions in the Bill related to the accused and others related to the prosecution, I really mean that certain parts of the Bill relate to the nature of offences and the manner in which prosecutions should be carried out, the courts that will apply, and matters of that kind. There are other sections which specifically lay down the rights of the accused. For example, we have in section 11 (2) all the things that a court is to tell the accused—his option to go to Northern Ireland and to be represented at the taking of evidence by counsel and so on, his immunities, so called, when he is in Northern Ireland. This is the kind of matters which I refer to as being particularly related to the accused. My point is simply that it is such matters as these that suffer from these discrepancies in the British Bill. They are all in sections which are related particularly to the safeguarding of the rights of the accused, whereas the other matters are, in fact, identical.
I am totally unable to reconcile the Minister's point earlier on about the desirability of so limiting the powers of the commissioner that he could not even decide whether a matter should be published or not with this apparent anxiety or willingness to allow a commissioner, in the case of the British Bill, to have complete discretion as to whether he puts a question or not.
The position is that under these two Bills combined—one cannot consider the procedures to be adopted under this Bill without considering that there are two Bills combined—a trial taking place here in the Special Criminal Court is partly a trial under the Minister's legislation and partly a taking of evidence under the parallel British legislation in Northern Ireland. Therefore we must consider the two. The position, as left by the Minister and his English colleagues, is that the greater part—in most cases all—of the evidence will be taken in Northern Ireland, perhaps in the presence of the accused, more likely not. The members of the Special Criminal Court who are trying this case are to go across the Border and listen to the evidence being taken. Under the provisions of the English Bill, under which this will be worked, they have absolutely no rights in the matter. They can listen and they are given the privilege of suggesting questions they would like put, but with no reason to believe they will be put. There is no duty or obligation on the commissioner to put these questions. This so-called commissioner who is not supposed to be a judge or to have any real discretion or powers of his own, is, in this respect, given absolute powers. He can completely ignore the Irish judges in so far as the English legislation is concerned.
At no stage, as the Minister said, have these matters arisen. I would be interested to know has he ever drawn the attention of the British authorities to these discrepancies. One by one I have mentioned these matters to him in various stages of this Bill. Has he ever been in touch with the British authorities? Has he asked them how this has happened? Has he asked them if they mean to change their Bill, or is he just happily going on with this Bill without any intention of securing an improvement in the parallel British legislation? I would be interested to know.
Regarding this amendment I will return to the fray on Report. I will withdraw it for the moment. As regards my questions to the Minister about representations or otherwise to the British authorities on this matter, I will return to the question on the section.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In subsection (5), page 8, lines 54 to 56, to delete all words down to and including "of the" in line 56, and substitute "The accused in the proceedings in Northern Ireland shall be present and his counsel and solicitor and the counsel and solicitor for the prosecution shall be entitled to be present at each sitting of the".
This amendment seeks to remedy the situation which will inevitably arise that the accused, certainly in some cases and probably in most cases, will not be present at the hearing of the evidence. I think the Minister would accept that it would be entirely unsatisfactory that the bulk—in some cases all—of the evidence in a crmiinal trial should be heard in the absence of the accused. I seek to provide in this amendment that the accused must be present during the hearing of the evidence.
This is really an amendment which was intended to be considered in connection with our earlier amendments in which we asked that the accused in going North should be in the custody of the Garda Síochána rather than in the custody of some other body in Northern Ireland. I would not like to suggest that the accused would be forced to travel to Northern Ireland to be in the custody of anonymous forces, as laid down by the Minister in his legislation.
Nonetheless I think that, in the interests of some kind of coherence in our criminal law and the administration of justice, the accused must be present during the hearing of the evidence in the same way as the judges must be present and that it would be impossible therefore to carry out these commissions in the absence of the accused.
This amendment proposes to make it obligatory on an accused to be present at the taking of evidence on commission. I think it has to be left to the discretion of the accused to attend if he wants to attend. The important point is to give him the right to attend and the immunities which follow. To leave the exercise of that right to him is as far as we can go. It is unreal to talk about forcing an accused to attend before a commission. What we are doing here in the amendment is purporting to say to an accused who is being tried in Northern Ireland and who is in custody in that jurisdiction that he shall be present down here at the taking of evidence on commission. That would be a ridiculous situation to try and get into. All we can do is provide the right for him to come down if he so wishes and provide him with immunity when he comes down. I know Senator Yeats has been looking at this from the other point of view, that is, the position of the person who is on trial down here going North for the commission. What he wants, which would have to be in the reciprocating Bill is a provision that would require an accused on trial in this jurisdiction to be present at the taking of evidence on commission in the North. This would also require a separate provision in our Bill directing such an accused to go North. I think that would be an impossible situation, to send an unwilling person to another jurisdiction. If he wants to go voluntarily he may do so. That is all we can do. We cannot direct a person to go. It is his right to decide to do so or not and we shall give him immunity. There is the suggestion that there would be more liklihood of him exercising his right if he were to go in the custody of the Garda Síochána into the other jurisdiction. Of course in order for the gardaí to have legal custody in the other jurisdiction there would have to be some provision whereby they would have a legal standing there and that their writ, so to speak, would run in Northern Ireland. Again because of the reciprocal nature of this legislation, it would be necessary for us to provide that an accused on trial in Northern Ireland came South for a commission. He would be entitled to come in the custody of the RUC and we would have to give reciprocal rights to them so that their writ could run down here. Having regard to what Senators Dolan and McGlinchey and other Senators had to say about the RUC, I do not think that course would commend itself to the Opposition. But in any event either course envisages compelling an accused to go to the other jurisdiction for the commission. That is unreal. What the legislation should do is to give him the right to go and guarantee him immunity should he exercise that right.
The trouble is that he has not been guaranteed immunity. However, we have had this discussion before and there is no point in continuing on it, even if I were to be allowed by the Chair to do so. Had I been able to be present during the discussion of amendment 15 I would have suggested that this amendment ought to be taken with it, because clearly they are linked. What I had in mind was that an accused going to Northern Ireland for the hearing of evidence would not be in the custody of the anonymous bodies laid down in the Bill, whether it be the RUC or the UDR or the British Army or whatever, but in the custody of the Garda Siochána. In that event, I think it would be a much better way of dealing with it to say that the evidence could not be heard on commission in the absence of the accused. However, I certainly would not wish, taking this amendment alone, to insist that the accused should be forced to go to the North of Ireland to receive the hospitality of whatever bodies would look after him there. The difficulty in the Minister's Bill is that he is almost forced not to go, because it is quite clear that he has no fair option of the kind the Minister has suggested he does have. In the light of the refusal of the Minister to accept our amendment 15 to the previous section, I obviously cannot press this amendment. It is another reflection of the total unreality of the Minister's proposals where he is suggesting in the Bill that the entirety of the evidence in a criminal trial can be given in the absence of the accused. It is an outrageous abuse of the ordinary provisions of criminal law, but in so far as the amendment does not really have any separate existence other than with amendment 15, I am prepared to withdraw it.
Amendment, by leave, withdrawn.
Question proposed: "That section 12 stand part of the Bill."
I should like to come back to the question I put in a brief way to the Minister as to whether he has been in touch with the British authorities with regard to the clear and, in some cases, important discrepancies between their own legislation and the Minister's. This covers the rights of the accused in various respects. For example, as I have already mentioned at some length, whereas the Minister's Bill provides that the accused, in a case where the evidence is taken here, shall be in the custody of the Garda Siochána, and provides in section 11 that the court shall tell the accused that in Northern Ireland he will be in the custody of the RUC, the British Bill, on the other hand, does no such thing and merely says he will be in custody, which could be the RUC, the British Army, the UDR or any other organisations who might be involved in these matters. This is one discrepancy.
Then there is the fact that the Minister's section 16 which provides quite clearly and rightly that persons entitled to practise as barristers or solicitors in Northern Ireland shall have a right of audience before any court in which proceedings in connection with an offence under section 2 and 3 are being held and before a commissioner taking the evidence under section 12. The provision that Northern Ireland solicitors and barristers can come down here for the taking of evidence is not reflected in the corresponding British Act. The Minister has said it will happen. It may or may not, but it is not in the British Bill which is now an Act, having passed through the British Parliament.
Then again we have this matter we discussed recently that the powers given to the commissioner to hold an accused in custody during an adjournment are different in the Minister's Bill and in the British Bill. The Minister's Bill says that upon any adjournment of the proceedings, if he thinks it appropriate to do so, on the application of the accused or the prosecutor, the commissioner may authorise the temporary return, the implication being that in the case of his adjournment he will as a matter of course authorise the return. The British Bill on the other hand does it the other way around and says the accused shall, unless the commissioner otherwise directs, remain in Northern Ireland until the end of the proceedings. The clear implication there—and one must assume that the Parliamentary Draftsman is well aware of the implications behind this drafting—is that he will remain throughout adjournments until the evidence has been fully heard.
Finally, we have this very strange discrepancy that, whereas in the Minister's Bill it is the duty of the commissioner to comply with any request by the members of courts to put questions to a witness, the British Bill, on the contrary, merely says as a big concession that the judges of the Irish Special Court shall have a right to suggest to the commissioner questions to be put to the witness.
We have all these discrepancies which, as I said to the Minister, in each case, relate to the safeguarding of the rights of the accused; when it comes to the creation of offences, the laying down of courts who can try these offences, all the matters relating to the prosecution of offences, in all these cases there is identity between the two Bills, but not when it comes to the rights of the accused. I want to ask the Minister whether he has written to or been in touch with anyone in the British Government with regard to the remedying of these discrepancies.
I support Senator Yeats. I have no faith or confidence in this section of the Bill. Nobody could have any confidence in it. We have to treat with utter contempt any collusion or collaboration with the law in the Six Counties. We have ample evidence to support that view. As we move from section to section of this Bill it becomes more evident that it is completely unworkable.
The Minister referred to the difference between secret and private evidence. A prisoner taken to the Six Counties has a certain right to go there, to be guaranteed immunity. There is something wrong with situations such as that. Anybody knows that a prisoner here cannot exercise that right because of what has happened in the past. He would be afraid to give it and the evidence would be taken when he would be absent. There is a difference when a prisoner comes from the Six Counties down here. We have faith in our own institutions here. The Minister said I was casting reflections on our courts of justice by making comparisons like that. I fail to see how that could be so. We are not comparing like with like. There is no justice in the set-up as it is. The British know that. They are asking us to aid them in this difficult situation of keeping people in subjection against their will.
What is being aimed at in this Bill and the British Bill is that there will be parallel procedures and that things will be done the same way in both jurisdictions with regard to the operation of the two measures. What is important is that procedures will be carried out to each other's satisfaction. The fact that every "i" is not dotted and every "t" is not crossed identically or that the apostrophies are not the same does not have any effect whatever on the day-to-day practice of the procedures provided for under the reciprocating legislation. There has been contact between myself and the UK authorities on any matter where there appeared to be a divergence in print. We are satisfied that, in practice, there will be no divergence and that procedures in each jurisdiction will be the same. We have that assurance. One might say: What good is a further assurance unless it is written into the section? But because this is a reciprocating legislation we have a sanction. The sanction is to withhold our consent to the operation of our part of it. Likewise, the UK have a similar sanction to apply against us if they should find that we were administering the Act in a way that was not parallel or was not in accordance with the intention of the two Governments. This is the real safeguard to ensure reciprocity in practice and not just verbal reciprocity. What happens in fact is what is important. In any area in which there appear to be differences of drafting or differences of wording or differences of emphasis Senators can be quite satisfied that in practice there will be no difference in procedures in the two jurisdictions.
I think that was the burden of Senator Yeats' worry. I am glad to assure him that there has been contact between myself and the UK authorities. I am quite satisfied that we have the means to ensure that the assurances we got will be maintained and implemented. Likewise, the UK Government have similar means to ensure that any assurances they sought from us in regard to what we do under the Bill will be carried out in the letter and in the spirit. The sanction is the willingness to co-operate or collaborate in the operation of the procedures. That was the main point that was worrying Senator Yeats. I do not propose to go through the individual points mentioned in the section—what happens on an adjournment, the questions to the commissioners, the questions of secrecy as against privacy, we have dealt with those in detail in the debates on the various amendments on the various sections. Senator Yeats can be assured that reciprocity will happen in spirit and in fact when the two Bills become law.
"Senator Yeats can be assured", says the Minister. Assurances are all very well but Senator Yeats is not convinced. If I may take this simple matter of the right to suggest questions to the commissioner. The Minister brought this matter up during the Second Reading. Somebody mentioned the three judges sitting like dummies in the commission while the evidence was being taken, with no powers, no functions and so forth. The Minister interrupted to say: "But they have the right to put questions to the commissioner." He looked upon this as a matter of some importance, and I agree with him. We have the basic point that, whereas the Minister lays it down quite clearly that the commissioner has a duty to ask questions put to him by the judges, the British do not. They say: "The judges shall have a right to suggest to the commissioner questions to be put to the witness." This is a basic and important discrepancy. It is not just a matter of verbiage. The Minister says that the administration of this will be identical. He cannot possibly know that. We must bear in mind that, however much we may regret to have to say it; we know that certain members of the Northern Ireland High Court do not conduct their affairs in an impartial way. The Minister admitted that today and on an earlier occasion, when he said: "Whereas in Northern Ireland they are prepared to do such disgraceful things as receiving the evidence of hooded men who are described as Soldier A, Soldier B and Soldier C, this of course could not happen in an Irish court under our Constitution." What he was saying, in effect, was that things happen in Northern Ireland courts that would not be tolerated here.
In the light of that, how can he tell us, on foot of a reassurance from some unnamed individual in London, that the conduct of this business in Northern Ireland by Northern Ireland judges will be in accordance with what the Minister would wish or in accordance with what would be normal procedure in Irish courts? Of course he cannot. He says that if things do not work out, if Northern Ireland judges behave like Northern Ireland judges, it is always possible to draw back and stop cooperating. But let us be realistic about this. There are political issues involved as well as legal issues. The Minister has spent a long time already pushing this highly controversial Bill through this House of the Oireachtas. He will spend an even longer time railroading it through the Dáil. It is a big political issue.
The Minister has put his prestige, and the prestige of his Government behind this ramshackle edifice of a Bill. Is the Minister telling me that having gone to all that trouble, having raised all these hackles on all sides, he is going to say, "on foot of some mismanagement of affairs by some Northern Ireland judge we are going to drop it after all because they are not running it right in Northern Ireland"? In fact, as a sheer political reality, we know that if this Bill goes through at all, and provided it is held to be Constitutional, and is workable—all these things are doubtful—it is no use the Minister telling us that in the event of there being mismanagement or a lack of impartiality on the part of some Northern Ireland judge we can withdraw from this whole massive edifice. Of course we cannot. It is not done so easily as that.
This thing should clearly be laid down in the Bill. Of all the items in this Bill the one that seems to require most to be laid down in the small print is this question of the right to put questions. Here one is relying completely on the discretion of the commissioner, this member of the Northern Ireland judiciary that the Minister has shown to have considerable doubts about the manner in which they conduct their courts. He is giving these commissioners extensive powers in this matter, although on other occasions he has been against giving them any discretion. This, therefore, is an important matter and is not one that can be settled by a simple process of receiving assurances from unnamed civil servants or Secretaries of State in London. It cannot be done that way.
The Minister should long ago have written a polite letter—there is no need to fight a war over it—to the Secretary of State concerned, pointing out these discrepancies and suggesting that in order that the two Bills should be identical their wording should be changed. I take it that at some stage Bills were exchanged, that the Minister received a copy of the British Bill and the British received a copy of our Bill and that everybody got together, the civil servants concerned, to make sure they matched. Either at that stage they matched and the British Bill was later changed or at that early stage they did not match. In that case why did not the Minister see that they did? This legislation depends on a juxtaposition of legislation in the United Kingdom and here. It cannot work any other way. It was essential and obviously so from the start, that there should be a genuinely parallel legislation, to use the Minister's terms. He has not secured that. We have these discrepancies which are not molehills, which are fundamental and which are important in view of the fact that candidly we cannot be certain that the commissioners in Northern Ireland will behave with the impartiality we would expect from our own judges. Even at this late stage the Minister should put it to the British Government that they ought to make these relatively small amendments to their Bill.
It would appear from the Minister's attitude that everything the British do is right. He is not willing to discuss this. He said he had discussions, but the discussions have ended up with these basic differences between the Bills. He is not willing to amend this Bill, his own Bill; he is not willing to suggest to the British that they should make any changes in their Bill even so that it can meet the requirements of his own legislation. It seems that what the British do is absolutely sacrosanct and cannot be changed in any way. He cannot even write a letter to them. I first raised these issues at a time when the British Bill had just left the House of Lords and before it had been discussed in the House of Commons. It would have been simple at that stage for Ministerial amendments to be introduced in the House of Commons. The Minister could have written at that stage. I brought these matters to his attention in plenty of time for him to do so but he has not done so. I cannot understand why he has not done so.
He has got himself into an attitude that anything the British do is right and that it is not for us, mere Irish, to interfere in the matter at all.
This display of xenophobia by Senator Yeats does not become him because what is involved is a question of wording and of drafting. When I spoke previously on this section I said that the substance of the two Bills is the same. In their operation they will be the same. We have the power to ensure that in their operation they will be the same. To quibble over a different comma, a different apostrophe or a different form of drafting, or a different use of English, and raise this into a matter of contention between two Governments, is pointless and is verging on the ridiculous.
I am satisfied that as between the two Bills the procedures will be identical. The important thing is that we have the means to ensure that they will be identical.
I have already pointed out that I did not suggest the Minister should fight a war over it. It is not a matter for fighting a war. I said the Minister could have written a polite little letter to his colleague in the British Government, not making any accusations or anything of that kind, simply pointing out that it had been brought to his attention that there were these, relatively minor from the point of view of wording, differences in the Bill and suggesting that, therefore, changes might be made in order that the two Bills would be identical.
There was no question that the Minister should fight a war. If a war was needed he should fight it, but I do not think it would be necessary. The British were trying to get away with this. They had made these marginal changes, in the hope that they would not be noticed, which in each case reduce the safeguards given to the accused. If it had been brought to their attention they would instantly have come back to what I take was the original agreed text between the two Governments. Apparently, it was not felt possible to point these things out to them. I do not think any kind of confrontation would have been necessary, any kind of a war or anything of that kind. A polite little letter was all that was necessary.
When I first raised these matters with the Minister there still was ample time to do it since the Bill had not been discussed in the British House of Commons. It is more than a question of commas and semi-colons. The Minister, on this question of the duty of a commissioner to put questions, raised this matter by way of an interruption on Second Reading of this Bill in reply to somebody over here who said that the judges would sit there like dummies. He raised this as an important issue and he is right. It is an important issue. The safeguards contained in his Bill are not in the British Bill.
As a result of section 12, courts in the Six Counties may ask the High Court here to obtain evidence for use in criminal proceedings in the Six Counties. The Chief Justice here will appoint a judge of our High Court as a commissioner. In subsection (3) of section 12 we learn that the commissioner may:
(a) direct any person whose evidence he is to take to attend on a date and at a time and place specified in the direction and there to give evidence before the Commissioner and to produce any document or thing in his possession or power specified in the direction,
In subsection (7) we learn that should a person fail to turn up at this special sitting he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or to imprisonment for a term not exceeding six months or to both.
This means that if a citizen of the Irish Republic is driving through the Six Counties and witnesses the commission of an offence under the Schedule of this Bill and if he drives on, not wanting to get involved in any trouble, and the police take the number of his car, the courts in the Six Counties could ask the High Court here to ensure that that person be summoned to the special hearing in Dublin and to give, under oath, an account of what he may have witnessed in the Six Counties.
This provision is most unfair and certainly most undemocratic. When driving into a village in the Six Counties last summer, my car was stopped. I was informed that there was a bomb in the centre of the village. Within seconds the bomb went off and immediately shooting commenced. I had to open the door, crawl out of the car, crawl across the road and lie behind a wall. When the shooting eased I went back, got into my car and drove home. I did not see who was shooting but, if I had, I would not like to have been placed in the position that I could be accused of being an informer. I certainly would not like to be placed in the position that I could be accused of being a British informer. We know there still is in this country a stigma attached to many families because of their activities some 55 to 60 years ago. The stigma of British informer which is levelled at certain families is one that in rural Ireland will never be forgotten. I would deeply resent receiving a summons to attend before a special meeting of a commission, and be compelled to swear that I saw certain people committing this act.
Murder?
It was not murder and whether it was or not——
If the Senator saw a murder, if he saw someone being shot, would he not have a moral obligation to give evidence like anybody would?
Not at the behest of the British Government.
So that it is all right to murder somebody British?
If Senator Ferris would take pleasure in having the stigma of British informer levelled at him I can assure the House that I certainly do not wish to have it levelled at me.
Not even for murder?
I would deeply resent being summoned to a special sitting of this commission, not at the behest of the Chief Justice in this part of the country, of the Attorney General, or of the Minister for Justice but at the behest of the courts in the Six Counties, in the first instance, and at the behest of a British corporal, a British sergeant or, possibly, an ex-"B"-special. I do not think I should be placed in that position. I do not think anyone should be placed in that position. When we hear of knee-capping it appears that if the Senator Ferrises were living in Derry's Bogside they would have been kneecapped long ago. I do not condone knee-capping but anyone who has followed the situation during the last five or six years must realise that the knee-capping was done to people accused of giving information to the British in the Six Counties.
Does the Senator ustify it?
I am not condoning it.
I suspected that the Senator might have been slightly approving it.
I am not approving it.
Would the Senator mind saying that out?
I certainly condemn knee-capping. I certainly condemn murder and the Minister knows that well, but the Minister occasionally comes in with his interruptions because the Minister's propaganda, and his Government's propaganda, in this Bill is that anyone who condemns it is in favour of murder, knee-capping, arson and everything else. The Minister knows in his heart and soul that that is not so, but he has to justify his action. His Government must justify their action. In order to do so they are trying to persuade the people that the Fianna Fáil Party in opposing this legislation are sympathetic to illegal organisations and to their acts. The Minister knows that is not so, but he must also know that the vast majority of knee-capping in the Six Counties and the reason it was committed was that the people were accused of giving information to the British.
Does that justify it?
It does not.
Say that.
The point I want to make is that section 12 could bring more knee-capping, not within the Six Counties, but in the Republic. There is a grave danger. Someone summoned before this commission, on the one hand faces a fine of £200, or six months in jail if he does not turn up to give evidence; but, on the other hand, if he does, he faces knee-capping by this despicable organisation. That is the alternative the Minister for Justice may be giving to an innocent person who may arrive at a particular spot at a time when an offence under the Schedule to this Bill is being committed.
In other words we do not pass a law in case the IRA do not like it? Because we are afraid of the IRA?
I know, for example, of a professed IRA man in the Minister's constituency who was charged with burglary, received a summons to attend at court—not all that long ago and since the Minister became Minister for Justice—and that summons was withdrawn. I do not know who was responsible for withdrawing it.
I am not aware of the case to which the Senator refers but if he is implying interference by me, he is on a wrong wicket. I would ask him to be more specific before he starts throwing dirt. He knows what happened to persons before who threw dirt.
The Minister was fairly good at throwing dirt when he was in Opposition and I cannot see any halo on the Minister's head now. Possibly some of the people over there would canonise him but I would not canonise him.
Facts, if the Senator is going to make allegations.
Apparently, the Minister seems to know more about this than he is pretending.
I know nothing whatever and that is why I am asking for facts.
The Minister is getting annoyed before he even hears what I have to say.
I am getting annoyed at slander.
Acting Chairman
Would these interruptions cease, please? Let us get on with an orderly debate. If anybody wants to challenge what Senator McGlinchey says, or what the Minister says subsequently, the floor is his, but one cannot conduct the business in an orderly way with these interruptions.
I am amazed that the Minister should accuse me of slander before he hears what I am going to say. The moment I referred to his constituency the Minister's temperature rose. The moment I stated that a summons was withdrawn in the Minister's own constituency against a professed supporter of the IRA on a house robbery charge, the Minister's temperature rose. He accused me of slander. Have I been guilty of slander?
And the Senator is now guilty of hypocrisy.
It takes a hypocrite to recognise a hypocrite. I suggest that the Minister conduct an inquiry into the withdrawal of a summons in part of his constituency within the last 18 months, a summons that was issued——
Acting Chairman
I am afraid this is not relevant to the section of the Bill.
What relevance has this?
I can appreciate that Senator Russell would be concerned about this.
On a point of order, there is an imputation being made by Senator McGlinchey that in some way a summons was withdrawn. The implication and the tone of his voice is that it was withdrawn improperly.
The tone of my voice will not appear on the Official Report.
That is part of the hypocrisy, that the tone of his voice does not appear on the Official Report. If he has details, I would be glad if he would furnish them to me. If there are individuals involved, in order to avoid mentioning individuals who are not in this Chamber, he can send the names to me privately, if he so wishes.
The Minister for Justice is the head of the Department of Justice. If a summons is withdrawn in his constituency it is up to him to inquire into it.
Acting Chairman
The Chair now rules that any further reference to this will be totally irrelevant. The matter has been pursued far enough.
I object to innocent people being forced to give evidence at the behest of the authorities in the Six Counties before a special commission in this city. I object because I am only too well aware, and most people in this House are well aware, of the fear many people have of getting involved in situations of this kind. There is a grave danger that people who give evidence will be dealt with at a later stage. We all know that many businessmen in the Six Counties have for years been paying protection money to prevent action being taken against them. We learned from the newspapers last year that banks in the Six Counties were paying this protection money. We know that because of the ruthlessness of various organisations in the Six Counties if these people did not comply with their wishes they could have suffered severely as a result.
I can visualise, because of the terms of section 12, that the same threats could be made against people living in the Irish Republic. They will be forced to decide which would be better for them—six months in Mountjoy if they refuse to give evidence, or knee-capping, or even worse, if they do. That is the situation the Government may be placing innocent people in.
It is wrong and could cause serious problems in time to come. It could be responsible for a form of intimidation that, thank God, we have not been subject to in this part of the country up to now. It certainly could be responsible for that despicable type of punishment, the knee-capping, that the Minister is so concerned about.
Question put and declared carried.
SECTION 13.
Acting Chairman
Amendment No. 23 has already been ruled out of order.
Question proposed: "That section 13 stand part of the Bill."
I should like to come back here to a rather intricate little technical discussion that the Minister and I had earlier. It arises out of the words "any kind of legal suit or process", which appear again in this section—line 54, subsection (2). We are told that:
While a person is in the State in the circumstances mentioned in subsection (1) and is duly kept in custody, he shall be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in the State in the circumstances mentioned in that subsection.
I pointed out to the Minister that this did not exclude the possibility that the accused could be interrogated. The Minister said in relation to that, even if he was asked questions, he could refuse to answer them. But I said that under certain sections of this Bill if he was asked questions and refused to answer them, he would have created an offence. The Minister denied this. At the time I regret to say that I was unable to trace the particular section but I would now refer the Minister to section 2 and he could pick either subsection (4) or subsection (6) but let us take subsection (6) for the moment although they are both much the same. Subsection (6) of section 2 provides that:
Where a person has committed an offence specified in the Schedule or attempted to commit any such offence, any other person who, in Northern Ireland, knowing or believing him to be guilty of the offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension or prosecution in the State or in Northern Ireland shall be guilty of an offence.
Getting back to the Minister's positive omissions and in particular referring him to section 1 subsection (2) which says that:
References in this Act to any enactment include references to an omission and references to the doing of an act include references to the making of an omission.
We had some discussions earlier on subsection (6) of section 2. It has, therefore, to be read to say that when somebody knows or believes that a particular person has committed an offence, where he does an omission with intent to impede his apprehension or prosecution, he shall be guilty of an offence. I pressed the Minister on this point at the time but he told me, and in legal terms he was right, that this would cover a case where a person who had evidence of offences or of the whereabouts of a person who had committed an offence was asked about these by the relevant authorities and refused to answer. There is no doubt about it that, considering the wording of this subsection and of subsection (2) of section 1, he was right on this. We have, therefore, the position that it is an offence, if one is asked such questions by a member, shall we say of the RUC, to refuse to answer.
Coming back then to section 13— the same thing applies to the earlier section on which I raised this matter— where an accused who is in Northern Ireland for the hearing of evidence there or alternatively has come from Northern Ireland to the Republic for the hearing of evidence, is given this immunity from suit or legal process, he can be questioned. As the Minister pointed out, he can always refuse to reply to questions; but if the questions are of the nature which are referred to in section 2 of this Bill, by refusing to answer the person commits an offence. The Minister has denied this to be the situation.
When an accused goes to Northern Ireland, while he may be protected from suit or legal process, he is not protected from questioning. While he may have a general right to refuse to answer questions, if he refuses to answer the questions in the circumstances laid down in section 2 of the Minister's Bill, he has in Northern Ireland under subsection (6) commited an offence. He could not be summoned for that offence while in Northern Ireland. But he has committed the offence, it is on his file, and on any future occasion when he returns to Northern Ireland after the hearing of the evidence he could be prosecuted for this offence.
What Senator Yeats is saying in effect is that refusal to answer a question can amount to an offence under subsection (6) of section 2. In other words, it can be doing an act without reasonable excuse with intent to impede the apprehension or prosecution in the State. I would ask Senator Yeats to quote where I said so. But I am saying now that I never heard of any legal proposition whereby refusal to answer a question in that sense could constitute an offence under this Bill. The Offences Against the State Act puts an onus on a person in certain circumstances to account for his movements and failure to answer questions about his movements can be an offence, but that is a very special case. Normally an accused is under no obligation to answer questions put to him and failure to answer those questions does not constitute an offence.
What we were discussing on the early stages of the Committee Stage debate was how, if you like, negative conduct or non-action by a person in a certain situation could be an offence of impeding an arrest, that if, for example, if the person held out a certain situation as meaning a certain thing to the police and then changed that situation so as to deceive the police without doing anything positive himself, that could be a type of action envisaged by section 2 regarding the offence of impeding or obstructing. But a mere refusal to answer a question could not constitute an offence under that section.
I am trying to see if I can recall for the Senate an example that we had at the time that we were debating those sections. Section 2 can apply to omissions, and omissions in that sense could be manslaughter where there could be the omission of negligence. But refusing to answer a question is no offence. I do not know in what context Senator Yeats raised this matter. Is it in the context of section 13?
We are on section 13. I raised it in relation to line 54 which refers to immunity from any kind of suit or legal process.
But I am saying that questioning can sometimes be part of a legal process. Normally this is in very special cases specifically provided for by statute. I mentioned the Offences Against the State Act. It can also arise under the Road Traffic Act and in questions of company law. To that extent the putting of those questions would be part of a legal process. The accused person would be immune from being asked those questions.
In ordinary interrogation, as we normally understand it, an accused person has a right antecedent to this Bill or to any piece of legislation to refuse to answer questions put to him. This was the point I was making when discussing the matter earlier. The persistence of putting those questions is unlawful and to put a statement to that effect in the Bill will not make it any more unlawful or less likely to happen. It is unlawful per se once there is a refusal to answer questions. To refuse to answer a question cannot make a person guilty of an offence under section 2.
Regarding the question of omission, a person might have led the police to expect certain information from him. For example, a person could have said to the police "I will tell you when arms come to my house or when arms come to such and such a place". When the arms come to such a place the police go to the person who is owner of that place and ask him if the arms are there. If he refuses to answer the question he is not committing any offence. But if he were to say to the police "They are not there", then he would be committing an offence because he would be impeding or obstructing the police. In that sense there would be an omission to reveal his knowledge and he would be committing an offence. But that would be different from failing to answer a question in the course of his interrogation.
Whereas on previous occasions when we discussed this Bill I carried with me the complete Official Report of the debates to date, on this occasion, because I have been trying to travel light for the last few days, I left the reports at home. Therefore, I am not in a position to quote the Minister on what he said. However, I have a fairly good memory of what was said. I remember the Minister telling us that there would be an obligation in certain circumstances on a person who had information of illegal activities, when asked by the police, to produce this information. That led me to point out that this could have unfair results, that, for instance, in certain parts of Derry where the local population did not accept the official police of Northern Ireland, a policeman could ask a question and be told to go to hell and that an offence would have been committed. I thought this was unfair.
It would not.
This arose out of what the Minister said. This matter does not arise under section 13 as under the earlier sections. I will have an amendment down to section 11 on Report Stage. In the meantime I will look up exactly what was said on the Committee Stage discussion on section 2. I think the Minister's memory on this is not altogether accurate. I will have a look at the Official Report between now and then. In the meantime I am willing to let this section go.
Question put and agreed to.
SECTION 14.
Government amendment No. 24:
In pages 10 and 11, to delete subsection (4) and to substitute the following subsection:
"(4) (a) Subject to the provisions of this section, if a person in whose case an order is made under subsection (2) or this subsection is found in the State—
(i) after having escaped from custody in the State before his delivery under subsection (3) or this subsection,
(ii) after having escaped from any custody in which he was held in Northern Ireland for the purpose of the proceedings in relation to the offence in respect of which he has exercised his option under this section, or
(iii) after having escaped from any custody in which he was held in Northern Ireland while serving a sentence imposed on his conviction for that offence,
he shall be brought before a judge or justice of any court (who may from time to time remand him in custody) and the said judge or justice, if satisfied as to the matters mentioned in this subsection, shall make an order that he be delivered into the custody of the police of Northern Ireland as soon as may be after the date of the order.
(b) The references in paragraph (a) to a person's escaping from custody in Northern Ireland include references to any failure by him to appear or to be at any place where he is required to appear or to be for the purpose of the proceedings referred to in that paragraph or the service of any sentence imposed on his conviction for the offence referred to in paragraph(a).”
This is a drafting amendment. Its purpose is similar to that of the amendment to section 3, that is, to make it absolutely clear that the provisions of section 14 as to escape from custody in Northern Ireland apply only where the accused is in custody for the purpose of the criminal proceedings against him or while serving a sentence passed on him for the offences. Section 14 is the one that enables a person charged with an extra territorial offence to opt to go in custody to Northern Ireland for trial for the corresponding offence under the law there.
Subsections (4) to (7) provide that, if a person who has exercised the option escapes from custody in the State on his way to Northern Ireland or escapes from custody in Northern Ireland before the conclusion of the proceedings there or while serving a sentence and is then found in the State, he will be brought before a judge or justice. If the judge or justice is satisfied as to the facts he will make a fresh order for the accused to be taken in custody to Northern Ireland for trial there in accordance with his option. The amendment constitutes a new subsection (4) to make it clear beyond argument that custody has the meaning mentioned and does not include internment under a detention order or by the executive. It was not suggested during the Second Stage debate that that meaning might be there but it was suggested that it might be possible to take that meaning out of an equivalent earlier section, section 3. We decided to amend section 3 to remove any doubt, so I think it is only right that section 14 should be amended in the same way.
Amendment agreed to.
I move amendment No. 25:
In subsection (6) (b) (ii), line 22, to delete "or other place of detention".
The paragraph which this amendment seeks to amend refers to a certificate purporting to be signed by the person in charge of a prison or other place of detention in Northern Ireland stating that the person named on the certificate has escaped and so forth. Senator Lenihan in this amendment seeks to delete the words "or other place of detention". I accept straight away that there is a prohibition— fortunately, in this case, both in the Minister's Bill and in the British Bill— on the detention of any person who is either in the Republic or Northern Ireland for the hearing of evidence. Therefore, detention without trial is out. Nonetheless, the provision that the Minister has here would appear to enable the accused to be held in a wide variety of places in Northern Ireland. He could be held, not under detention but in custody, in Long Kesh, in an army barracks or in any one of a wide variety of places. It is entirely undesirable that there should be this wide field. A certificate by the RUC or by the person in charge of a prison would be perfectly adequate. To add the words "or other place of detention" is far too wide and I suggest that the Minister agree to delete these words.
I do not think those words really matter. The important thing is the point I covered in the previous amendment, that is, to ensure that for an escape to be an offence it must be only from lawful custody following conviction of an offence or awaiting trial of an offence. It makes it clear beyond any doubt whatever that an escape from custody consequent on executive action is not an offence.
Therefore, if the person comes before a court and there is a question of a certificate to prove escape from custody, the venue from where he escaped is irrelevant, because he will only be triable here and an offence will only have been committed if the escape was from lawful custody. If there is any element of escape from executive detention there will be no offence and consequently the wording of the certificate will not arise. It will not even come before the court because there will be nothing to come before the court about. The only reason why the words "or other places of detention" are put in there is that not all places of detention are prisons in a technical sense. For example, while St. Patrick's Institution in this city is a place of detention, technically speaking, it is not a prison, technically speaking— though to a person inside the distinction is very much an academic legal one. Indeed, to a person outside it is an academic legal distinction. But that is the only distinction as between those two words.
Therefore it is not in ease of anybody to remove the words "or other place of detention". The ease for the person is in the preceding amendment, which ensures beyond any doubt that escape from executive detention, irrespective of what that venue's detention might have been, will not be an offence. There are various ways in which the section could be amended, but I suggest to the Senators on the other side that there is no need and that there is nothing sinister in using the words "or other place of detention" purporting to be signed by a person in charge of the place of detention. It is purely because there may be other places of detention besides prisons that would be relevant, in the same way that St. Patrick's Institution is a place of detention, technically speaking, and not a prison.
I have made it clear that executive detention does not come into this. I accept, particularly in the light of the Minister's amendment to this section, that Executive detention is not possible. What worries us is the extremely wide wording of this. The difficulty is that a certificate can be given which would be admissible of the facts stated and so on by the person in charge of a prison or the person in charge of any other place of detention, including Long Kesh because it is perfectly possible to keep a person in Long Kesh for security reasons and not under detention order. But you could have all kinds of army commanders, UDR commanders and various people who run camps of all kinds giving those certificates and this seems highly undesirable. I should have thought that these certificates should be limited to the person in charge of a prison or to a member of the RUC who is in charge of the custody of the accused.
After all, the Minister has provided— I think very fairly—in the part of his Bill that covers the reception of an accused into the Republic for the purpose of hearing evidence here that that person shall be in the custody of the Garda Síochána or held in a prison and the term "prison" under section 1 includes St. Patrick's. This is the correct procedure. I dislike the idea of wide wording such as this which could cover almost anywhere. I accept that it is in no way saying where the accused is to be held but by its mere appearance in this section it would seem to envisage that we would be agreeable to an accused being held in an army barracks or one of these places. In particular it means that our courts must receive certificates signed by a very wide spectrum of the security forces in Northern Ireland, far wider than the equivalent people who can at any time be involved in the Republic with an accused under these circumstances.
I would suggest to the Minister that if he cannot accept this amendment at least on Report Stage he should be willing to accept an amendment which I will draft limiting the certificate to be provided under this subparagraph to the person in charge of a prison or some member of the RUC, so that the various other types of people who could be covered by this existing wording would not be covered. I do not see any reason why we should be receiving certificates from the officers in charge of army barracks and so on. It would be wrong for us to do so. The Minister intends quite clearly in his Bill, though I think he has admitted that he can do very little to control it, that an accused who travels into Northern Ireland to hear evidence being given will be held by the RUC.
This section has nothing to do with that.
No, but he intends that. On the other hand, he is providing that our courts will receive certificates from all kinds of people, every Tom, Dick or Harry, who is involved in some aspect of the defence forces, army, UDR, everything. Any of these could produce a certificate. You can have the major in charge of some army camp, the UDR colonel who is in charge of some UDR camp where this man was being held and from which he has escaped. I think that is wrong. It is not in accordance with what the Minister wishes to happen and has endeavoured, rather unsuccessfully, to provide will happen. He says specifically in his Bill that the accused will be delivered into the hands of the RUC. That being so, he should provide that a certificate will be received from the RUC or, if he likes, also from the prison and leave it at that. I will draft such an amendment for the Report Stage. In the meantime I am willing to withdraw this one.
This section gives an accused an option to go North for trial instead of being tried here on the extraterritorial basis. It provides that, should he escape having been sent North or should he escape on his way North, he can be sent back again to the North if reapprehended in this State. To prove that he escaped it is necessary to show the courts here that he did escape. One of the ingredients of showing that he escaped was to show that he was in custody either on his way North or in the North following the exercise by him of his option. That is why this is completely different from the other sections where a person is being handed over. The court, as part of the proof of escape, require a certificate of custody. It is not conclusive; it is merely saying that a certificate is admissible. The certificate is to be given by the person who had the custody of the accused at the time he escaped whether it be a policeman en route or whether it be the Governor of an institution where he is in detention. That is all that is involved here.
Amendment, by leave, withdrawn.
Question proposed: "That section 14, as amended, stand part of the Bill."
There is no necessity for this section. It tells us that a person charged in the State with an offence under section 2 or section 3 has the option to go in custody to the Six Counties for trial there instead of being tried in the State. I would submit that, if a supporter of the IRA having committed an offence under this section, crosses the Border into the Republic and is arrested, that supporter would not exercise the option provided for in section 14. He would in no way wish to return to the Six Counties to be tried there because of his experience of the type of justice meted out in that part of the country during the past 50 years.
I would also submit that, where a supporter of a Protestant para-military group commits an offence under the Schedule of this Bill or the British Bill he would have no necessity to cross the Border into the Republic for refuge. He would have all the protection he needs from the security forces in the Six Counties. We have been given many examples over the last few years where the security forces in the Six Counties not only protect but defend members of the Loyalist para-military groups. Fr. Denis Faul in his booklet Triangle of Death states, and I quote:
Twelve assassinations of Catholics, nine by machine-gun fire, by weapons almost certainly issued to the UDR. No person charged and no one interned. The British say internment is the response to violence but it is clear it is a political punishment for Catholics, a species of terrorism against Catholics. The RUC, who send many young Catholics, boys and girls, to Long Kesh and Armagh jail, have never interned any Protestant from Dungannon, Loughgall, or Portadown. The RUC have completely failed to offer any protection to Catholics in this area. Were they ever seriously interested in doing so? Hardly likely. When you have a Protestant Police Force organised to defend Protestant ascendancy, you cannot expect impartiality.
That is a quotation from a man who should know more about the RUC than the Minister for Justice or any Member of this House. With a body such as this I would submit that when a member of a Loyalist para-military group commits an offence that man will be able to remain in the Six Counties with the full knowledge that he will escape justice there. The IRA supporter, if caught, would, I believe, choose to stand trial within the State. For that reason I claim that section 14 is completely unnecessary and will never be implemented. I do not believe the Bill will ever be implemented at any time, but if it is section 14 is one that will never be used.
Question put and declared carried.
Section 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
I should like to refer very briefly to the fact that this is another of these discrepancies. This is a section we can agree with, but it does not appear in the British legislation.
It is not in the reciprocating Act that barristers and solicitors here shall have a right of audience before courts in the North. This has to be agreed with not only at executive level: the professions are involved here as well. It has to be ironed out primarily between them in the first instance. In addition, there is a legal complication in that solicitors do not have a right of audience in the higher court as they have here. That is something that also has to be changed. The position under the EEC is altering the whole scene completely.
I thought this Bill was complicated enough without having the EEC coming into it.
It would only come in regard to the right of establishment of the professions.
Would the EEC not affect our Bill no more and no less than the British Bill?
If I might clear the point. Reciprocity has not been granted yet by the professions in the North to what we are prepared to give here. Even if it does not come voluntarily I envisage that it will be forced by reason of the EEC right of establishment.
This is a new sensation at this stage. This is the first time the Minister has mentioned this.
It has nothing to do with the Bill. I merely mentioned it by way of information.
Do I understand the Minister to suggest that unless and until the EEC bring in these regulations, and they are accepted by the Council of Ministers and enforced in the nine countries of the EEC, only then will we have a situation where the rights given to the accused under section 16 of this Bill will be extended.
I withdraw what I said about the EEC?
The trouble is that, once said, it reverberates around the room in the most sinister fashion. Will the accused who travels to Northern Ireland under the provisions of this Bill to hear the evidence given in respect of a case being tried here have the right to bring his solicitor and counsel with him?
Unequivocally, yes.
He will not have it under this Bill. This Bill cannot cover procedures in Northern Ireland. He will not have it under the British Bill. It is not in it. The Minister says he would have it by some rather obscure method of conferring, of administrative changes, of discussions, in Northern Ireland. At present he would not have the right. Somebody has to take decisions; people have to agree; it has to be put through. It will not apparently be done by British legislation. I should have thought that the most rapid way of doing it would be to put it in the Bill and that is that. The fact that it is not empowered that it cannot happen at the moment, would be all the more reason for putting it in the British legislation. The present position seems to be that the accused going North will not have these rights. At some time in the future he may have them, but I wonder when. I do not follow the one about the EEC at all. Anyway we can agree with the section as it stands.
Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
I have down a statement that I am opposing this section but in fact this identical matter is considered on the basis of an amendment. Therefore, we will vote against this section but I do not propose to discuss it any further.
Question put and declared carried.
The Seanad adjourned at 9.50 p.m. until 10.30 a.m., Thursday, 10th July, 1975.