I move amendment No. 151 :—
In sub-section (2), paragraph (b), line 6, before " leaves " to insert " and without good and sufficient cause ".
SECTION 125.
Is there any case in which a sentry would be warranted in getting off his beat ?
There could be. A sentry, in certain circumstances, for the purpose of protecting property, would be bound to leave his post, and that is why I think there is a defect in the section in that it is too rigid. If he has good and sufficient cause, it would not be an offence, but if he has no cause, it would be an offence to leave his post.
Take a hypothetical case of a sentry in a particular position and a serious situation develops, so much so that he gets over to another position and perhaps fulfils his mission more effectively from there or, betterstill, if there was a picket and there is a sudden eruption in his vicinity and an N.C.O. of that picket has the gumption to slip out to get the information back.
There are no circumstances in which a sentry would be entitled to leave his post without orders from his superior officer. He is supplied with a whistle ; he is entitled to fire a shot; and at some posts he may have an electric bell. He can use any of these means, or all of them, if he desires to leave his post for any reason, and he can then be immediately relieved.
That is in relation to a building such as this, but I am thinking of an active service sentry.
But, even on active service, provision is made whereby communication can be quickly brought about.
But surely in active service conditions there will be very few of the old-fashioned type of sentry post.
You know well that, when outposts are thrown out, one of the first tasks of the signalling section is to try to provide communication with the main body, so that messages can be sent back. Under active service conditions, however, there would usually be a number of sentries and the necessity for any one of them leaving his post would not arise. Under ordinary conditions, however, a man might, for one reason or another, desire to leave his post, but there should be no difficulty at all about having himself replaced.
I agree with the Minister in that, but what I am thinking of is the sentry on active service who is put in a particular post. He will have a set of orders which will cover that situation, but a situation can arise where, if he used his initiative, he would serve his task best by shifting his position. It is not enough that he is unlikely to be charged—it is without orders from his superior officer. The objection I see to it is that it seems to limit pickets, patrols, watches, guards and so on slavishly to pre-issued orders, and, in modern warfare, anyway, you need the maximum amount of initiative on the part of even private soldiers.
Providing any excuse for a sentry leaving his post without authority is a terribly dangerous thing.
I agree that there is a danger.
Especially when means of having himself relieved are provided. I have to say at this stage that I would strongly resist the amendment and I do so in the interests of the military authorities.
I can see the Minister's point, and I have a great deal of sympathy with it. I agree completely with the principle, and I think Deputy Cowan does, too. What I am trying to see is whether the actual wording is not so restrictive as to defeat the principle.
In Section 45 (2) of the 1923 Act you had the offence of " withdrawing from his place of parade or mobilisation or post or position before he is relieved, or without leave, or otherwise unjustifiably."
There is the offence of " leaving his guard, picket, patrol or post without orders from his superior officers ". That is Section 34 (2) of the 1923 Act.
It all depends on the meaning you put on the word " leaves ". It carries with it an implication that a man is deserting. If a sentry does something to meet a situation that means something to his unit, he would not be regarded as committing an offence if he anticipated an enemy action by shifting his position. He would not be leaving his post.
Even if he thought it desirable to stand fast and await advice, firing a shot is sufficient to bring out a picket to inquire as to what is wrong. It happens often in peace time that a soldier accidentally discharges a shot and immediately a picket is out.
If during active service the sentry saw enemy movements and if by firing a shot or blowing a whistle he would be giving away the fact that he had seen them, if he stole quietly back to his superior officer, would that be interpreted as leaving his post ?
It would depend on the instructions he had got. If they were that he should stand fast at his post, he should do so. A sentry is put on a specific job, to safeguard the main body. He could not do that if he left his post and went back to say that he had observed suspicious movements.
By leaving his post to give information, he would, in effect, be giving the initiative to his Commanding Officer.
There are two sides to that point.
I still feel there is a defect. While I can see the absolute necessity of ensuring that a sentry will remain at his post and not leave without orders, I can only hope that if, for good and sufficient cause, he does leave and establishes that cause to the satisfaction of the Commanding Officer, he may get a military decoration instead of a court-martial.
Amendment, by leave, withdrawn.
Amendments Nos. 152, 153 and 156 are similar.
I move amendment No. 152:—
In sub-section (2), paragraph (c), line 8, before " discloses " to insert " knowingly or negligently ".
I put these amendments forward in order to hear the Minister's view.
The amendment is not acceptable. If the information is disclosed without due authority, it is a serious offence, and the circumstances as to whether it was knowingly or negligently done will have to be gone into at the trial.
Is not the distinction that in this section you want not only to penalise the man for disclosure, but also cast on him the duty of secrecy,the duty to protect information? There is a duty on everyone in possession of military information to guard it. Therefore, if it is disclosed at all, prima facie he has to answer for it. That would be a safer view on the section.
I put this down simply to have the principle discussed. I understand what the Minister says in regard to the principle. As the amendments are not acceptable, I will not press them.
Amendment, by leave, withdrawn.
Amendment No. 153 not moved.
I move amendment No. 154:—
In sub-section (2), paragraph (d) to delete all words after " or " in line 16 to end of paragraph.
I do not understand the last part of that clause.
If the password were " Sarsfield " and a man said it was " O'Neill " he could cause considerable havoc.
I cannot visualise the circumstances in which a man would do that.
If I tell my section the password is " O'Neill " when it should be " Sarsfield ", someone who gives the wrong word will be trapped. Should it be tacked away like this ? Again, you may have a " gentleman " coming into the ranks and, where the unit would get through on " Sarsfield ", he says it is " O'Neill " and they are all trapped except himself. Would the Minister consider making it a separate paragraph ?
I think it is fairly clear. You could lead a whole force into difficulties; they would be proceeding in confidence and might be decimated by their own side. We are trying to provide throughout the Bill for possible cases. We have argued from the beginning to a great extent on hypothesis. Deputy Cowan himself has been doing that in putting forward arguments in favour of his views. There is probably no record here ofanything of this kind having happened but the Army authorities realise the possibility of its happening and they wish to guard against it.
There are a lot of new ideas being put in that we should not have. To give just an idea—we have already passed paragraph (c), but in the equivalent section—Section 35—of the old Act it was that he made known the information in such a manner as was " in the opinion of the court calculated to produce effects injurious to the forces." There was a saving clause there, " injurious to the forces ". Now, the trouble is that the doing of it at all is being made an offence—whether done with injurious intent or injurious effect. I mention that generally as affecting this section.
Amendment, by leave, withdrawn.
Amendments Nos. 155 and 156 not moved.
I move amendment No. 157:—
In sub-section (2), paragraph (g), line 22, before " forces " to insert " without due cause ".
I would like to hear the Minister saying what is imagined under this. Who does things like those mentioned in the sub-section ?
The paragraph reads :
" (Any person subject to military law) who ‘ forces a safeguard or forces, strikes, or molests a sentinel. . .'"
A man under the influence of drink could very easily do an act of that kind, or some pugnacious individual who finds soldiers on his land not knowing that they had authority to be there.
It is limited in this section to a soldier or an officer.
" The offence of forcing, striking, or wilfully molesting any soldier acting as sentry " is in Section 34 of the 1923 Act.
I think the word " forces " more or less implies the idea of improperly forces, does it not?
In the old Act it was really " forcing, striking, or wilfully molesting any soldier acting as sentry ". I thought that was a very good section at the time because we had some madmen going around and they thought they were not doing their duty unless they were trying to disarm sentries. Sentries got clever, put up the rifle and fired at them and each time they fired a bit closer and they put an end to it. It is enlarged here to " forcing a safeguard ".
There are such persons and we have to provide against it.
I can visualise the case of a person striking a sentry.
We all know that if there were any extenuating circumstances in a case of this kind, they would be taken into consideration by a court made up of commonsense officers who would see if the sentry was exaggerating in making the charge of forcing the safeguard. You must provide, however, against the individual deliberately committing the offence.
I can imagine a circumstance in which a man would strike a sentry. Would this be weakened in any way if the Minister accepted the words in the amendment, " without due cause "?
There again you have to get down to examine the question, what is meant by " due cause ".
He would have some defence. He could say that he had good cause, if he strikes a sentry. If he had all the cause in the world, he commits an offence, if these words are not inserted.
If he strikes a sentry on duty he will have to take whatever is coming to him.
He may be right to strike the sentry. A circumstance might arise. Say the sentry went amok.
Do you not think that that would be taken into account? Doyou seriously suggest that it would not be?
I have seen cases where the Act was interpreted in courts by judge advocates in a way that I would not or could not accept, and I disagreed with it. They said: " That is what the Act says ". The Act did not say " without due cause ". It is an extraordinary thing that the court would be advised that it was their duty to find him guilty because " without due cause " was not in it, and then the judge advocate would say: " You can, of course, take that into account in mitigation of the punishment ", which I think is unfair. He should not be punished at all.
We are up against a peculiar difficulty in this section which I think is not likely to recur or, at any rate, to recur frequently in the Act. We are dealing with offences which are punishable both on active service and in peace time. As far as active service is concerned, I feel that what we said on Section 123 applies, that military necessity rules, and that we cannot be too finicky about the words. However, in so far as you are providing for peace-time, I would be very much in sympathy with Captain Cowan on this question of rigid interpretation. On the other hand, this is not just the best paragraph to change.
No one would have any authority to speak to a sentry, much less strike him, other than the guard or an orderly officer, or somebody like that.
The only case I can envisage where there would be any justification for interfering would be where he went off his head or went amok.
That would be a case where nobody would force the issue on this section.
That is what I imagine.
I do not think they would.
In that case a man might have to do what warders often have to do: He might have to reducethe man to a state in which he would not be able to resist, by a punch on the jaw or something like that. There is no circumstance that I can visualise, either in peace time or on active service, where anyone would be justified in assaulting a sentry, and I would not like to think that we would make any provision that would make it easy for anyone who would attempt to do such a thing.
Amendment, by leave, withdrawn.
I move amendment No. 158:—
In sub-section (2), paragraph (h), lines 24 and 25, to delete " in search of " and substitute " with intent to ".
The section says " who loots or plunders or breaks into any house or place in search of loot or plunder ".
I suggest that it should be an offence to break into any house or place with intent to loot or plunder. It is a better known phrase.
It is a better legal phrase, certainly. It would seem that that would be a neater way of putting it.
I will accept the amendment.
Amendment agreed to.
I move amendment No. 159:—
In sub-section (2), paragraph (i), line 26, before " wilfully " to insert " or without reasonable cause ".
It is difficult to know what exactly is meant by the wording of the section, it can cover such an enormous lot of things:—
" Who, without orders from his superior officer, wilfully destroys or damages any property ".
A man or an officer may have cause to destroy or damage property, not necessarily military property, any property. It is the widest thing in the world. He may do it wilfully but he may do it for a particular reason and, if he has due cause for doing it, then it should not be an offence.
These things can happen. Take a peace-time emergency or any kind of emergency. Something happens in a hurry. A commanding officer can only give general orders. Assume that Platoon Commander A is banged off to a particular corner and told to stop anything. Platoon Commander A finds it highly desirable to knock some bricks out of somebody's shop-front. He certainly does it wilfully. Has he to wait for the orders of his superior commander to be completely clear ? From a military point of view there would be sufficient cause, in his orders, for him to loophole the place. That would be an amendment in favour of the Army. It is a dangerous one from another point of view, the peace-time one. Supposing you had a riot and it was necessary to bring out troops and the riot was taking a serious turn. It might be necessary for an officer in such a case to do minor damage to property to fulfil his mission. After everything had been cleared up there would be a furore about that and the people could say that this man had no orders. Even from the civil point of view, I can see, say, the shop owner coming along and, by way of proving negligence on the part of the officer, putting to him in the witness-box: " Did you get orders from your superior officer?" The answer would be " No ". The next question would be : " Are you aware of the contents of Section 125 of the Defence Forces Act?" etc., etc. From that point of view it would be highly desirable to give the unfortunate devil a chance of using his initiative.
Very well. I will accept that.
Amendment agreed to.
I move amendment No. 160:—
In sub-section (2), to delete paragraph (j), lines 28 and 29.
I have also moved to delete paragraph (j) altogether. I do not think anybody would ever think of doing violence to a person bringing matériel to the Defence Forces.
It can happen in time of civil commotion, for instance. If theDefence Forces are on a particular job and there is somebody going to supply them with rations.
I do not like saying this, but it is to provide against military personnel doing it themselves.
That is what I imagine.
Suppose there were supplies going up which were needed at the front and some military personnel a good bit behind, who were expecting that they might be going up too, and who had not got, in their opinion, sufficient supplies, might intercept the transport and say : " We are going to have a share of this too."
We did it on manœuvres a few times, but we did not use any violence.
Certainly the Minister has covered his intent very well in the rather nebulous verbiage of the paragraph. I am sure the tradition of the old soldier has not died so much that that task could not be accomplished without violence.
We had the best example we could get from Deputy Cowan himself.
I saw it done on manœuvres. Rations were going up and the field kitchen was collared by a company who then ate another company's rations. The discussion applies more to the next sub-section, but the peculiar thing here is the wording, " does violence to ". Why not " assault "—an English or Irish phrase? " Does violence " is not something known to us.
That is the ordinary legal meaning.
Would the Minister put in " assaults " and not assault our ideas?
Some of the 1880 verbiage remains.
Is it physical violence? I presume it is, not mental.
I would say that " interferes with " are the words the Minister wants.
These words were not selected in a haphazard manner. You could, I imagine, do violence to a person without actually assaulting him. Without in any way hurting an individual in a convoy you could jump up, put your arms round him and hold him until the others had got what they wanted and then say: " Now you are all right, chum, " and let him go.
That would be assault.
Mr. Brennan
Can you not charge a man with assault if he lays his hand on your shoulder?
You could debate the use of the word " interferes " for a long time, perhaps longer than " violence ". " Violence " covers assault as well as interference. To throw your arms about a man and to hold him, telling him " we will not hurt you but we will get what we want ", would be doing violence by preventing that man from carrying out his duty and delivering the matériel to the place where he was instructed to deliver it.
I am looking at it from the point of view of defence. Suppose a man is charged with doing violence to one, John Brown, who is bringing matériel to the Defence Forces. What would have to be proved? That is my difficulty. “ Molest ” is a word that is known in the Act and is understandable and well understood.
Would the Minister consider " molest " ? It is not as wide as " interferes with ".
I would be prepared to have it considered, but perhaps the military authorities feel that the words " does violence " suit them best.
" Molest " includes " does violence " and is a better word than the one I suggested, " interferes ".
Suppose that these people did not physically assault anyone in the lorry but caused it to overturn, thus injuring those in it, would that not be doing violence ?
" Molests or interferes with " would cover everything. What I am objecting to is the introduction of phrases about which we know nothing. What we are doing is building up law. These are offences the breaking of which can lead to penal servitude or some other punishment.
Will it suit you if I say I will have it examined?
Yes, but after all in defining laws we must remember that the fact that a man is a first class military officer does not make him the best judge of what is the best law. I am prepared to widen it to " molests or interferes with ".
What I visualise as most likely is that two boys get together ; one hops up beside the driver and tells him what is happening while the others hop up at the back and take the stuff with no violence at all. However, the Minister will examine the question.
Amendment No. 160, by leave, withdrawn.
Amendments Nos. 161 and 162 are similar. We can debate them together and take the decisions.
I move amendment No. 161:—
In sub-section (2) to delete paragraph (k), lines 30 to 33.
This is the case of a person who irregularly detains or appropriates to the unit of the Defence Forces with which he is serving any matériel being conveyed to any other unit of the Defence Forces. I can see that a person who did that could cause a very serious upset and that an offence of that type should be provided for, but instead of using the word “ irregularly ” I suggest that if he does it knowingly and without reasonable cause he has committed an offence. If you say “ irregularly ” you reduce it to a question of opinion again : Wasit regular ? Was it irregular? When is it regular or when is it not regular? If he does it without showing reasonable cause or without authority he is guilty of an offence and should be punished, but the word “ irregularly ” is too wide and it is too hard to know what exactly it means.
There is something to be said for keeping as far as possible to words known to the law because, when you bring a new word into legislation, you are bringing new problems and new opportunities to the legal profession. This is an active service offence and I think it would be desirable to consider the word from that point of view. " Irregularly " is a new word. I do not know any criminal statutes in which it occurs. There might be circumstances where, in a Bill like this, you must have non-recognised words such as " improperly " to which we agreed in another section, but if you can avoid doing so it would be better. " Without reasonable cause " would cover " irregularly " because that in effect is what it means.
It would leave room for leniency or clemency.
It has been said that this is introducing a new word into legal phraseology. This Bill has been drafted by lawyers and from that point of view I find it difficult to reconcile these statements.
Lawyers are often wrong.
There are lawyers and lawyers.
I would like to say perfectly objectively that lawyers work largely on precedents. The Minister has himself disclosed that—a very proper thing—precedents have been consulted. Apparently precedents from other places besides England have been consulted—very properly also—but a word that would be appropriate in a Canadian Act and which is very well established in Canadian legislation might not be appropriate here. There is also a possibility that thelegal people took the word without adverting to the point we are making now. Unless there is a very good reason for it I would prefer to keep to the standard forms. What does " irregularly " mean ?
Without due authority.
It means without proper reason, that is literally, not according to rule, " without proper reason " in its widest interpretation. The standard phrase in English law and English criminal law is " without reasonable cause ". That is the standard legal jargon to express that idea. The Minister will consider it.
If a man does something contrary to regulation he can be charged with a breach of the regulation under another section as that is an offence in itself.
Amendment No. 161, by leave, withdrawn.
I move amendment No. 162:—
In sub-section (2), paragraph (k), line 30, to delete " irregularly " and substitute " knowingly and without reasonable cause ".
I will withdraw that on the Minister's undertaking to have it examined in the light of this discussion.
Amendment No. 162, by leave, withdrawn.
I move amendment No. 163 :—
In sub-section (2), to delete paragraph (1), lines 34 to 38.
The military people never put this in. I do not know why it has been put in because the Provost Marshal is an officer ; all his officers are officers and his men in the ordinary way are all non-commissioned officers. That is the way it has been and is at the moment. As such they get under the Act special powers and anyone impedes the Provost Marshal or any man on his staff is doing the same as if he were impeding his superior officer. However, there may be special reason for the paragraph.
In view of the peculiar position of the Provost Marshal with regard to discipline, especially on active service, it is as well to leave this. It cannot do any harm.
Is there any particular reason for it ?
They are particularly serious offences at any time.
In peace time they are serious, too.
And on active service they are very serious indeed.
The red-cap has to be in a peculiarly privileged position.
Are they established N.C.O.s now ?
They have the wide powers through being N.C.O.s. They had them in the old Act and I suppose that the powers are also given to them in this Act.
Amendment No. 163, by leave, withdrawn.
I move amendment No. 164:—
In sub-section (2), paragraph (i), lines 45 and 46, to delete " penal servitude " and substitute " imprisonment ".
If a person subject to military law, without orders from his superior officer, wilfully destroys or damages property, the Bill says he shall get penal servitude and for that I want to substitute imprisonment. If he is not on active service, I suggest that, instead of being dismissed with ignominy from the Defence Forces, he be fined. If a man is not on active service, none of these things—even impeding the Provost Marshal—is very serious and they could be met by a fine. Perhaps the Minister will say if there is any reason for these heavy maxima.
The offences dealt with in this section are very serious. I draw the attention of the Committee to the fact that the punishments mentioned by Deputy Cowan are maximumpunishments—there can be very much lower kinds of punishment imposed. If a crime is of such a character that it warrants a man being sent to penal servitude, the court can award that sentence, but if it is of a less serious type, such as Deputy Cowan visualises, a much lesser sentence can be inflicted.
Penal servitude is a punishment very seldom enforced outside. A man has to be the worst conceivable type of crook or house-breaker before he gets penal servitude and, as the Committee know, it is only in the past couple of years that they have begun to impose again the sentence of penal servitude for very serious cases of housebreaking or bank robbery and, in the case of housebreaking, they impose it only on habitual criminals. Imprisonment is considered a very serious punishment and, even on active service, for some of these offences to carry the penalty of penal servitude is pretty hefty. I appreciate that courts-martial in the ordinary way are not going to impose the maximum punishment and as a general rule will be reasonable; but there are occasions when they might step over the line and impose an excessive punishment.
As regards several of the offences mentioned in the section, we are lessening the sentence by comparison with the 1923 Act, which prescribed a sentence of death.
In my opinion, on active service, the sentence should be death.
Paragraph (c) relates to the disclosure of information and surely that is a serious offence.
It is. So far as active service is concerned, there are a number of offences for which, in my opinion, the maximum punishment of death should be provided, but I will not quarrel with the Minister if his advisers are satisfied. If I were drafting the Bill, however, I would put death in in sub-paragraph (i). As regards peace-time offences, I am not in sympathy with Deputy Cowan because I think there is a greaterstandard of duty required from the Army in these circumstances. The whole question of the morale of the Army is involved and when providing the maximum penalty, you must provide for the exceptional case when there is a particular stress involved—discipline in time of crisis and so forth. My quarrel with the Minister is with regard to the active service provision. I wonder is he justified in reducing the penalty awardable ?
In case the Minister should be tempted to consider increasing it, I will withdraw the amendment.
Amendment No. 164, by leave, withdrawn.
Amendments Nos. 165 and 166 not moved.
Section 125, as amended, agreed to.