I move amendment No. 195 :—
To insert at the end of the section the following new sub-section:—
(3) Every inanimate thing whatever which is the property of any person, and which either is or may be made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order that it may be stolen.
I understand that Deputy Cowan's opposition to this section is based on his belief that where the civil law provides for a particular offence, and where a court-martial can deal with that civil offence when it is committed by a member of the Defence Forces, no new military offence of the same type should be created.
In support of this section, however, I am advised that, while we have a small legal staff, the discipline of the Army is mainly in the hands of commanding officers and their adjutants. It is they who from day to day have to endeavour to apply the law to the everyday crime of the Army. Evidence tending to show some kind of theft, fraud or illegal dealing with public or service property is a frequent headache to the unit adjutant. The evidence presents itself in every guise. Thus an adjutant may have to endeavour to work out: is a particular offence simple larceny under the Larceny Act or is it larceny by a trick or larceny by a bailee ? Or is it an embezzlement or receiving or obtaining by false pretences ? Or, again, fraudulent conversion or fraudulent misapplication and misappropriation? These, I understand, are questions which cause difficulty even to skilled criminal lawyers. That being so, I think it is a fact to be welcomed that there is now proposed a section which, by simplification and definition, creates a military offence of stealing. Certainly it seems very clear and exhaustive and has the approval of all our legal advisers. Therefore, I recommend it to the Committee.
There is one other consideration which I would put to Deputy Cowan. In so far as he sees objection in principle to creating military offences which have their counterparts in civil law, I think that, on several grounds, the objection is not altogether sound. Offences to which the soldier is particularly open to temptation by reasons of camp and barrack life are those relating to property. A soldier gets to know the military code. Under regulations, appropriate extracts are read out and explained to him. He does not know the details of the civil code. If, therefore, offences against property—the State's, the unit's and his comrades—are clearly dealt with in the military code, respect for property becomes a military commandment, and he is aware of it in that light.
Furthermore, if you omit from the military code any section which is already covered by civil law, commanding officers and adjutants will necessarily have to be acquainted with and provided with, even during active service, statutes such as the Larceny Act, the Malicious Damage Acts, the Road Traffic Acts, the Bribery and Corruption Acts and so on.
It seems natural to me that the Army should endeavour to frame its own criminal code in the light of its own needs and experience, and should, to that extent, not depend on civil law which naturally is not framed with special attention to the Army.
I find myself very strongly opposed to this section for a number of reasons. The law with regard to larceny is laid down in the Larceny Act, 1916. That law has been interpreted from time to time by the courts and by the Court of Criminal Appeal, and any soldier charged with larceny is entitled to the protection of the decisions given by the courts. If offences exactly similar to larceny are put in the Bill called " stealing " a soldier may be deprived of his rights arising from the interpretations which will be given by criminal courts in this country from now on. It is very undesirable that that should be so. Under the old Act a number of offences were set out as summary offences, which might be dealt with by a commanding officer or a subordinate officer. This Bill proposed to give the Minister authority to make regulations regarding the offences which may be dealt with summarily without reference to superior authority, and consequently at the present moment we are not in the position we would be in if we were discussing the 1923 Act, as we do not know precisely what offences the Minister may make summary. Under the old Act all these offences—they were 20 in number but included scores of types of offences—were all of a military nature, and where a person was charged with an offence which was of a civil nature such as larceny the case was always sent forward to be tried by court-martial. Then the matter was investigated by the command legal officer, who decided whether or not there was evidence to justify a court-martial being held. If there was the man was arraigned, tried by court-martial, prosecuted by the command legal officer and could be defended by solicitor and counsel. There was a Judge-Advocate on the court-martial to advise the court on the law. The result was that he would be dealt with by law, the law as interpreted by the courts, whereas under this section he can be tried for these offences of stealing which are similar to larceny and the person defending him might be deprived of the rights laid down in the decisions of the courts regarding good defences. I certainly would very strongly resist the inclusion of this offence. If we put this in why not put in offences similar to any of the other civil offences? For murder we might put in " unlawful killing " and we might include manslaughter or rape under another name. This is a very objectionable thing and I would ask, the Committee not to approve of it.
Deputy Cowan knows as well as I do that stealing is one of the most prevalent military offences. It would probably amount to 75 per cent. of Army crime. Surely we should attempt to deal with it simply rather than by having to rely on some other method?
Although it will be a little tortuous, I would like to put this point from the legal angle, and I assure the Minister that I have no desire to raise legal difficulties as such. I am sure that he would be impatient of them and I would be impatient of them in the ordinary way. The offence of stealing, larceny, call it what you will, is one which will be cognisable in both military and civil law. Remember that the man will be triable by either military or civil law. We have had this discussion before. No matter what way the law is, whether it is as the Minister has it or as some of us want it, the civil power or the military power will have the option. Surely it is desirable that the offence for which the man is to be tried will be the same offence in both cases. This offence as defined here, the offence of stealing, is unknown to civil law, as I will demonstrate in a moment. This is oversimplification, perhaps very desirable ; if the Minister brought in the section as amending the Larceny Act there would be something in it which I would support. The law of stealing has a peculiar and difficult history in England culminating in the Larceny Act of 1916. That is the law which would have to apply to a soldier if he were tried by the civil court for stealing. The section only applies if he is tried by court-martial. If he is tried by a civil court the Larceny Act, the civil law of stealing, will rule. It is highly desirable that the man should have the same law and not be subject to two laws at the same time.
The wording of the Larceny Act is changed to " without colour of right." The wording in the Larceny Act is " without claim of right." A section of the Larceny Act defines the subject of stealing which is not defined in this section and the result is that to complete the definition of stealing one must go back to the Larceny Act anyway. The words " anything capable of being stolen " are used in paragraph (a). Anything capable of being stolen is undefined in this Bill, but it is defined in the Larceny Act and therefore in order to complete the definition one has to go to the Larceny Act and you have a certain amount of inconsistency, or not so much inconsistency as difference, of wording between the two sections. I am going to read that section in order to put it on the record and members of the Committee can follow it against the section in the Bill. It reads :—
" For the purposes of this Act—
(1) a person steals who, without the consent of the owner, fraudulently and without a claim of right . . .
You will notice that the consent of the owner is left out in the military Act, and the words " colour of right " are used instead of " claim of right."
" . . . made in good faith . . .
There is nothing about good faith in the military Act.
" . . . takes and carries away . . .
The phrase in the military Act is " converting to the use of any person."
" . . . anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof . . .
The military offence of stealing embraces taking the loan of another fellow's cap for a parade, which is not the offence of stealing at civil law . . .
" . . . provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner . . .
" (2)—(i) the expression ‘ takes ' includes obtaining the possession—
(a) by any trick;
(b) by intimidation;
(c) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained ;
(d) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps;
(ii) the expression ‘ carries away ' includes any removal of anything from the place which is occupied, but in the case of a thing attached, only if it has been completely detached ;
(iii) the expression ‘ owner ' includes any part-owner, or person having possession or control of, or a special property in, anything capable of being stolen.
(3) Everything which has value and is the property of any person, and if adhering to the real thing then after severance therefrom, shall be capable of being stolen:
Provided that—
(a) save as hereinafter expressly provided with respect to fixtures, growing things, and ore from mines, anything attached to or forming part of the real thing shall not be capable of being stolen by the person who severs the same from the realty, unless after severance he has abandoned possession thereof; and
(b) the carcase of a creature wild by nature and not reduced into possession while living shall not be capable of being stolen by the person who has killed such creature, unless after killing it he has abandoned possession of the carcase."
I am not at the moment in a position to say how far that has been amended, but the point I want to make is that it may be very desirable to amend the law of larceny and to amend the definitions, but there does seem to me to be a definite defect in this section in so far as it purports to duplicate the civil offence of stealing and at the same time does not quite do so. Further, if I am right in what I have suggested, one is thrown back on the civil definition in order to define the words " anything capable of being stolen." Further—I see the cogency in everything the Minister says—I want to ask whether it would not be better to create a new offence distinct from stealing without calling it stealing and so avoid the introduction of this confusion. If it is necessary to deal specifically with a type of larceny in the Army, produce a new limited military offence and then allow the ordinary law to operate. Without looking into the matter in more detail—if necessary, I will do so before the next meeting—I think this is a matter that should get really serious consideration from more than the administrative end.
If the Deputies here were to be asked to choose between the section in the Defence Bill and the section which the Chairman has read, for simplicity, every one of them would go for the section in the Defence Bill.
Agreed, but the section is not complete.
The members of the Committee have the section before them and they have read it. What we are after is perfectly clear. As I said, probably 75 or 80 per cent. of Army crime is simple petty theft and this section is intended to deal with that type of thing. We do not want to have intricate legal discussions. It must be remembered that the men who will be dealing with this will not in every case be expert legal officers. Some of them will not perhaps have any knowledge of the law at all, but will have a knowledge of what is right and just and I think that the interpretation of any one of these sections or sub-sections would be so simple that any of us here could sit down and come to a judgment on any case under the section which would come before us. We are dealing in the main with petty theft and unfortunately it is, where large numbers of men have to congregate together, pretty rife. I remember on one occasion carrying out an inspection at the Curragh.
I was inspecting the guard-room and I found a very young fellow there and I asked him what he was doing there. He said he was awaiting trial. I asked what he was being tried for and he said: " Stealing a watch." I asked how he came to steal the watch and he told me that the man beside him had a watch hanging on his bed. " I took a liking to it and took it," he said. That is all there was to it. It was pretty larceny, theft from a colleague, and while that was a simple type of theft carried out by a young fellow who was probably innocent enough to think that what was someone else's was also his, there are other types. There are the mean types of theft where men steal property belonging to each other and try to get away with it. If there is anything which I, as a layman, cannot see and which the lawyers can show me is necessary to make this section even better than it is—and I think it is a good section—I am quite prepared to look into it. I might explain that, while my amendment may seem intricate, it simply covers cases such as that of a man who wants to steal something and, to do so, has to make it movable, say by loading it on a lorry.
How did the word " larceny " come into the discussion at all?
It is stealing. In the Larceny Act, stealing is defined. Larceny is a legal word for stealing, if you like, and kindred offences. The word is defined in the Larceny Act in the section I read out. The point I was making—I grant the Minister all he has said and I have a great deal of sympathy with him—is that in order to avoid confusion, I suggest that if he is making a definition which is different from the definition of common law stealing, he should find another word for it.
A substitute for the word " stealing?"
A soldier who commits the offence of stealing is liable to the civil law. It is a civil law offence and nobody has any objection to making it a military offence also.
It is provided here as a military offence.
In that case he can be tried in either court, under whatever arrangement the Minister comes to with the authorities. If he is tried in the civil court, he can only be tried under the civil law, the 1916 Act, as amended up to date. If he is tried in a military court, under this section there would be another law not quite the same as the civil law. Why change the words " claim of right made in good faith " which is explicit in the Larceny Act to the words " colour of right ?" What does " colour of right " really mean ?
I think everybody would agree that " colour of right ": is as good as " claim of right." How often have we said in ordinary conversation " He had not the colour of right?"
You are dealing with a legal draft. " Claim of right made in good faith "—what is the effect? The effect is that if he can establish that he made a bona fide claim to that property as his, he has a clean defence. In other words, he is safeguarded from a mistake. For instance, if I take a hat from a hotel and carry it out with me and am pulled up for stealing the hat, it is a perfectly good defence to prove that I really believed that the hat was mine.
Suppose you did not have another hat in the hotel?
" Without colour of right converting to the use of......" the things that are essential to the offence in civil law, taking and carrying away—
Asportation.
—are paraphrased into " converting to the use of any person anything capable of being stolen, with intent ".
The words " permanently to deprive the owner thereof " are in the civil law. Here " temporarily or permanently " is inserted. Do not be under any illusions that you are defining the law of stealing as it is. You are creating a much more rigorous offence, creating a much more harsh offence, and giving much less opportunity to the accused person to defend himself.
I freely grant you may very well say there is too much technical defence on words. I am not so worried about an actual change in the definition of the nature of the thing as the dilemma of having two laws apply to the one offence and the man being subject to two laws according as they elect to try him by court-martial or under the civil law.
It is worse than that. Under the Act a man may be tried by court-martial for the offence of larceny or for the offence of stealing. Under this Bill a man who steals £10 can be brought before a court-martial and charged with larceny or with stealing. There is no way out of that—that is provided in paragraph (e) of section 168—" if he is convicted of any offence not before in this subsection particularly specified, which when committed in this State is punishable by the law of the State ". He can be charged with larceny or with stealing. I think that is an absurd position.
The second fact is that the Minister, before the ink was dry on his Bill, had to bring in important amendments and that shows that when you start to tamper with the law of larceny you are landing yourself in terrific trouble. We would not have a dozen courts-martial with regard to the law of stealing, until the Minister would be compelled to come in with a new amendment. I have no doubt about that.
I admit that you get a number of simple petty thefts in the Army. How is the situation being dealt with at present ? Over 100,000 men have served in the Defence Forces in the last thirty years. Some of them stole things How was it dealt with? Was there anything unsatisfactory in the machinery for dealing with them? Take the fellow in possession of his comrade's toothbrush or his comrade's socks or some other part of his comrade's equipment. He is always dealt with for some offence under the local standing orders which say he is not to be in possession of them. It is a breach of the barrack or battalion standing orders. He is in possesson of a comrade's article and he gets a couple of days C.B. or a few days' detention from the commanding officer. But where he is guilty of deliberately having stolen £10, he is sent forward for trial under the civil law for stealing and has all the defences in the world open to him. Take the soldier who takes a camera belonging to another man and, being short of a few pounds, brings it to a pawnbroker and leaves it there for a week or a fortnight, for no other purpose than to get the few pounds and with the definite intention of recovering the camera by paying the money and then bring it back. That is not an offence—because he had no intention at any time of depriving the owner of it: he just took the loan of it to get a few pounds.
It is not an offence at all ?
It is not larceny. That happens every day in the courts. When the law of larceny is laid down very clearly and even though we are entitled under the Constitution to create offences to be tried by court-martial I wonder whether we can create offences exactly like those ordinary laws but with different definitions, different punishments and different procedures. I have certain doubts about our power to do this. A soldier who is tried by the courts under one law, the Larceny Act of 1916, would have all the defences open to him ; yet after being tried there or acquitted by a jury he could be brought in and charged with stealing and convicted by a court-martial. Larceny is an offence contrary to section 168; stealing is an offence contrary to section 154. Anyone could maintain they were two separate offences.
I am wondering how far the estoppal would have effect there.
The Minister has started off by saying that this is simple. A famous British statesman, when he brought in the Workmen's Compensation Act in England, started off with the introductory sentence something like this:—" Every person injured during and in the course of his employment will be entitled to compensation ". He said he was putting this in language that everyone would understand and was cutting the nonsensical technical language of the lawyers. Now, more court decisions had to be given on that simple statement than on the whole of the rest of the Act. When you start will the object of making for simplicity you, very often, do not make them simple. You may think you are making them simple but in fact you are not.
I say, with hesitation and making a legal case, that I believe that the further we can get away from technicalities in regard to the Army the better; but the difficulty is that we are not going to get away from technicalities where you are tying it up with the civil courts. The reaction would be as to whether, if it is necessary to have a more general defence you could not have something else.
Pilfering.
Yes, pilfering. The definition in the Larceny Act is not a gem of clarity, but it was the best lawyers could do after dealing with an extraordinary difficult situation. We have here now something that some of us will have to draw the attention of the House to on the Report Stage, in regard to the way we are now tampering with the civil law to some extent and introducing anomalies which as long as they are within the Army are alright but which outside the Army can repercuss over on an offender, to have him charged under two codes.
This is framed to deal with military personnel. I cannot see the argument about a man beng tried by the civil court for an offence and then being brought to the military court. He would be tried by the court-martial.
Not necessarily. Supposing he is arrested by the Guards, they would bring him out and try him outside for larceny.
That is, for an offence that does not come within this Act?
Yes. Supposing he is charged with stealing the commanding officer's wallet, he can be tried.
The military would probably want to deal with that.
Whether they would or not, the Guards have the right to deal with it. They bring him before the district justice and the district justice says he did not steal the wallet, that though he had it in his possession, it was not larceny. The moment he gets out he is charged in the Army with having stolen the commanding officer's wallet.
Even though you say he was in possession of it?
Yes.
I would like to check up on this. He may be able to get out of the double trial as the offences are so similar. That is possible : I would like to check on it. Supposing the soldier steals something outside, he is liable to be arrested by the Guards. Supposing a picket here on duty at Leinster House took a Deputy's coat, hat and spectacles and converted them. That undoubtedly is an offence for which he should be amenable just as any other citizen. On the other hand, under this Bill he would have a separate code applying to him as regards the Army. I wonder if that is the best situation to have.
If the offences were committed against a civilian, no one would object to his being tried by a civil court—I would not, anyhow—but if the offences are committed in the precincts of barracks, as in the case of the commanding officer's wallet, I would say that the military personnel would deal with it. If the Guards came along and claimed him, however, I am certain the military authorities would hand him up.
They would be committing an offence if they did not.
If they demanded him he would be handed over. After the case had been dealt with in the civil court, I doubt if the military authorities would have another go at it—if it were possible that that could happen. We have dealt with the two-trial business already and I think that would govern this.
I would differ on that, but it is open to argument. If a soldier steals a person's handkerchief or someone's overcoat in the barracks, he may be brought before the district court and the maximum penalty he would get would be six months—perhaps it is twelve months under the new Act—but here we are providing that he may get seven years. The thing is shocking.
Would the Minister give us an opportunity to consider this? Would the Committee agree to that? We must sympathise with the Minister's approach, and our function is to try and find the best way out.
What I suggested on a former occasion could be very easily applied to this occasion. That is why I was anxious to draw out from yourself, Mr. Chairman, and Deputy Cowan the legal arguments against this Neither I nor my colleagues here can put up the highly technical arguments against it that you trained lawyers are using. Having made this case and having drawn that out, I am again proposing to submit those arguments to consideration.
I want to ask a question to make some things clear in my mind. If I understood your definition of larceny in the civil court, it only applied when an article was stolen permanently, if you like.
There you are into case law. The animus furandi, we call it.
Would this be covered by it? Supposing a company is going on parade and one man finds he has no cap and steals the cap of the fellow beside him and gets out on parade and the rightful owner of the cap has to appear on the parade without it and he is punished for it, is that man liable?
In civil law, for larceny? He could set up this defence : I only borrowed it for the moment; I was going to give it back. In the army it is not the offence of stealing; it is another offence.
He has worn a comrade's cap on parade and he can get 28 days' detention. That is serious punishment. There is no question of there being any want of power to punish at the moment. To wear a comrade's cap on parade is an offence.
If this section is accepted by the Committee and passed into law would that mean that the method of dealing with petty cases, as outlined by Deputy Cowan earlier on, being tried by the company commander for breaches of battalion and company orders, will cease.
I would not say so.
Assuming that a soldier commits an offence as laid down here and is sent for court-martial under this section, if he gets the opportunity of consulting a solicitor or some legal person and if that person demands that the soldier be brought before the civil court, can he have him tried before the civil court?
No.
He could not even demand that he be charged with larceny instead of stealing.
What is more, I do not think you could concede the right— Deputy MacBride was keen on it—I do not think that from a practical point of view you could concede the right to give a man the option—
This section only deals with a serious type of case
I think the answer to Deputy Hilliard would be this—on its face it deals with only the serious type of case and it is intended to but actually its terms are wide enough to make very trivial offences a very serious type of case. Do you know what I mean ?
Take the Larceny Act ? If a person puts his hand in another person's pocket to " take " a wallet and lifts it a bit and lets it drop, it is larceny because, although he only moved it a little bit, he had the intention. The chairman brought in the Larceny Act and the decisions that have been given by innumerable courts away back to 1880 or before it. You have a volume of decisions. There is no reason why, when we have all these intricate decisions we should deprive the soldier of the rights that are in those decisions, in defending himself before a court-martial.
I do not know about that, I was looking at it from the other angle, to see how many new defences I had, how many of the old broken defences I could resurrect. I can see a couple.
You are leaving court-martial, judge advocates, prosecutors and defenders without any law at all.
The Committee adjourned at 9.50 p.m., until 7.30 p.m. on Tuesday, 22nd April, 1952.
