SECTION 168.

I move Amendment No. 205:—

In sub-section (1) to delete paragraph (a), line 47.

Paragraph (a) deals with offences punishable by the ordinary law. In other words if a man is charged with treason under the ordinary law can he be sentenced to death ?

Yes, he can.

Murder, treason and piracy.

Was not Roger Casement charged with treason ?

We have a new Act for treason ; does it provide for death ?

The so-called common law treason is still good if you can prove it. Proving it is a totally different matter. According to the Statute of Treasons of 1351, treason consists of :—

" (1) Compassing the death of the King, Queen, or eldest son and heir ;

(2) Violating the King's consort, eldest daughter unmarried, or the wife of the eldest son and heir ;

(3) Levying war against the King in his Realm ;

(4) Adhering to the King's enemies by giving them aid or comfort in the Realm or elsewhere."

Treason is known to our law in Article 39 of the Constitution which states :—

" Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt."

My question regarding treason was to some extent rhetorical.

According to the Treason Act of 1939 :—

Be it therefore enacted by the Oireachtas as follows :—

(1) Every person who commits treason within the State shall be liable on conviction thereof to suffer death.

(2) Every person who, being an Irish citizen or ordinarily resident within the State, commits treason outside the State shall be liable on conviction thereof to suffer death.

In other words, it boils down to this: the common law which I mentioned is virtually retained here. Treason is explicity defined and provided for by Article 39 of the Constitution, the details of punishment being laid down in the Treason Act of 1939, and undoubtedly the punishment for treason is death.

I have three amendments to this section:—

To delete the following :—

(a) if he is convicted of treason, be liable to suffer death ;

(b) if he is convicted of murder, be liable to suffer death;

(c) if he is convicted of manslaughter, be liable to suffer penal servitude or any less punishment awarded by a court martial.

By the ordinary law of this country a person found guilty of treason or of murder is liable to suffer death, and a person convicted of manslaughter is liable to suffer penal servitude or a less punishment. Since this State was established no person has ever been tried for treason, murder or manslaughter by a court-martial. There is no necessity in this country for a person to be charged with these things by a court-martial. In any circumstances I can visualise the Central Criminal Court will function, and it is that court which deals with treason or murder. Manslaughter may be dealt with by the Circuit Criminal Court. A person charged before the Central Criminal Court with treason or murder is entitled to have his case tried by a jury of 12 persons, all of whom must agree before he can be convicted. If he were tried by a court-martial he would be tried by a court of five officers or perhaps in certain circumstances only three, a majority of whom could find him guilty and sentence him to death. If he is convicted by the Central Criminal Court he has the right of appeal to the Court of Criminal Appeal, and to the Supreme Court in certain circumstances.

I would never be a party to the Defence Forces being given power to deal with treason, murder or manslaughter by court-martial. In the Act of 1923 it was provided under Section 69 that a person subject to military law shall not be tried by court-martial for treason, murder, manslaughter, treason-felony, rape or buggery unless such person at the time he committed the offence was on active service.

May I refer you to Section 190, sub-section (3) which says that a court-martial shall not have jurisdiction to try any person for such offences unless such offence was committed on active service ?

That contains the same provisions as the Act of 1923 but why they are taken out of Section 168 and put into Section 190 I do not know.

Section 168 deals with offences punishable by ordinary law while Section 190 deals with the jurisdiction of courts-martial.

These other two things—rape and buggery—do not matter very much and courts-martial might be given jurisdiction to deal with them. As the jurisdiction is limited to active service, the objections I have to the section are not as strong as they would be if there was not this limitation.

I may be wrong in this view but I believe that there is something in it, that there is an appeal generally from this Act to the Supreme Court, whether through the High Court or not, by some extraordinary process. Under the Constitution the Supreme Court has a particular function in regard to the maintenance of law and, in time of peace at any rate, I am fairly certain that a person would have access to the higher court before such a section would come in. He could move in some way or another.

In time of active service——

That is accepted, and very properly so. There is no objection to this in active service conditions, but I am thinking of the peace time safeguards.

The fact that this section was in the 1923 Act and that it is now repeated in this Bill does not alter the situation. A court-martial has never yet tried any person for treason, murder or manslaughter. Active service is a situation clearly defined in this Bill as being the occasion when a person is engaged in military operations against an enemy or is in any place wholly or mainly occupied by the enemy. Then he is on active service. You may get a part of the forces on active service in County Kerry or in County Donegal, and a person charged with treason, murder or manslaughter, may be on active service in either of these places. The ordinary civil writ runs, there is no interference with the Government, the Government is functioning; the courts are in operation and I see no reason why in these circumstances a man should be tried by court-martial for these offences. If there were circumstances where the Central Criminal Court was not able to function then I would say——

If there was the slightest possibility of the courts to which the Deputy has referred being in a in a position to operate, courts-martial would not deal with these cases.

They can, that is the trouble.

If the position were such as the Deputy has outlined, the civil courts would operate, and I am sure the military authorities would be glad of that.

A peculiar situation arises at the moment. A state of emergency still legally exists.

Of course, state of emergency and active service are two different things.

A man is on active service if he is merely in a place wholly or mainly occupied by an enemy or if he is engaged on operations against the enemy.

Does not sub-section (2) of this section provide for the trial of such person before the civil court?

No, it says that he may be tried by any competent civil court.

He can be tried before the civil court. They are not compelled to try him by court-martial. There is an option.

The option is there.

It certainly follows that the section is to be used only when the civil court is not functioning.

Must not they make the provision in case the Central Criminal Court was not functioning?

I can see that I am going to be defeated on this, but it will help me in another case that I am going to argue later.

Amendment put.
The Committee divided: Tá, 1; Níl, 5.

Tá.

  • Cowan, Peadar.

Níl.

  • Minister for Defence.
  • Brennan, Thomas.
  • Carter, Frank.
  • Colley, Harry.
  • Hilliard, Michael.
Amendment declared lost.
Amendments Nos. 206 and 207 not moved.
Sections 168 and 169 agreed to.