Special Committee Defence Bill, 1951 debate -
Tuesday, 8 Apr 1952

SECTION 152.

Captain Cowan

I move amendment No. 193 :—

In line 27, before " flies " insert " knowingly and without reasonable cause ".

The section provides :—

" That every person subject to military law who flies an aircraft at a height less than the minimum height authorised in the circumstances is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment or any less punishment awardable by a court martial."

There are circumstances in which a person might fly an aircraft at a less height than the minimum height authorised in the circumstances, and he would not be guilty of an offence, but I think when he does it knowingly and without due cause he should be subject to the penalty.

Chairman

This is something that matters more in peace time than in war time. Supposing that was an offence triable in the civil court, here is what would happen: somebody would get up and prove that the aircraft had flown, say, at 1,900 feet when it should have been a minimum of 2,000 feet. Immediately that is proved, no matter what defence counsel say or what explanation is given—it may be that the engine failed and that the plane would not go above that height—the court would have to say, " the section says ‘ anyone who flies an aircraft ', there is no qualification; he flew the aircraft; therefore he is guilty of the offence ", and, although they may let him off with very light punishment, they would still have to convict him, because it is an offence. From that point of view, the ordinary legal point of view, it would be highly desirable to put in the saving qualification there, " without reasonable cause'" . I think Deputy Cowan could drop the word " knowingly ". If you had " without reasonable cause ", the advantage is that a man could be acquitted ; the court could say that he is not guilty. As the section is drafted, the court would have to say that he was guilty and all the court could do would be to mitigate the punishment. A man would not like to have a thing like that recorded against him.

Mr. Traynor

Do you want " reasonable cause " dropped as well?

Chairman

No. Drop the word " knowingly " and have it " every person who, without reasonable cause, flies an aircraft at a height," etc.

Captain Cowan

I would be satisfied with that.

Chairman

It will be exactly the same thing. As far as the trial is concerned it gives a chance of acquittal and, what is more, if it is being tried by court-martial it is obviously desirable that the court-martial will function as nearly as possible in analogy with the civil court. If a court-martial has to strain itself in order to give an acquittal it is acting in a way that is not desirable.

Captain Cowan

The court might be satisfied that the man was perfectly reasonable in his explanation, but under the section once a man flew at a certain height they would have to convict.

Mr. Traynor

If the man could show reasonable cause for flying low, the court would not have to convict him.

Chairman

But he would be guilty of an offence under the section and they could not acquit him. Once the plane is flown under the minimum height he has committed an offence.

Mr. Traynor

The object of this is to prevent low flying in certain places. A pilot has, of course, to fly low when he is landing or taking off.

Chairman

Over Dublin and towns the minimum authorised height is, say, 2,000 feet, and if for some reason over which the man has no control or for for some good reason, because, say, something has happened to his engines or his instruments, he has to fly below that, he is still guilty of an offence. I am speaking as a lawyer. We are talking of offences which will largely be peace time offences. This does not take away from the section the power point of view.

Captain Cowan

If I were Judge Advocate on a court-martial trying such a man I would have to tell the court-martial: " This is ridiculous, but you are bound by your oath to find him guilty."

Chairman

You do not want to have a court-martial straining the law.

Mr. Traynor

These are good reasons for having it re-examined, and I will certainly have it re-examined from the lawyers' point of view.

Chairman

Deputy Cowan's point is a good one about the legal officer having to advise the court-martial that that is the law. If you put yourself in that position you will see it very clearly.

Amendment, by leave, withdrawn.

Question—" That Section 152 stand part of the Bill "—put, and agreed to.