I move amendment No. 276 :—
In sub-section (1), line 43, to delete " as may be allowed in the prescribed manner ".
SECTION 241.
As regards this amendment, there is, perhaps, a certain lack of clarity in the sub-section, and if the Deputy will withdraw the amendment, we will look into it.
I will withdraw the amendment on the Minister undertaking to have the matter examined.
Amendment, by leave, withdrawn.
I move amendment No. 277 :—
In sub-section (1), line 45, to delete all words after " attend " to end of sub-section and substitute " such reservist shall be guilty of absence without leave ".
The section as drafted provides that if the reservist is absent—in other words,if he fails to turn up on permanent service or in aid of the civil power and he has no lawful excuse, if he fails to appear at the time and place at which he is required to attend, he shall be guilty, according to the circumstances, of desertion or absence without leave or, if he is called out for training, such reservist shall be guilty of absence without leave. My amendment proposes to delete all that and simply to say that if he does not turn up, if he fails to appear at the time and place that he is required by such calling out to attend, he shall be guilty of absence without leave. Simply, it means that if he does not turn up, he is guilty of absence without leave, whereas what the section says is that he may in certain circumstances be guilty of desertion. That is the net point.
Is not that actually what the position was ? Take the permanent service case. If the reservist fails to report for permanent service and continues to fail to report, he is actually guilty of desertion and, notionally, he is, so to speak, called up immediately the notice is served on him. On the other hand, he might fail to report and either he turns up within a week or he is picked up within a short time. You would not be able to establish a case of his desertion very easily then and he would not in fact be guilty of desertion if he had any intention of turning up at some time or another and he would surely make that case. So, it is difficult to see how one can avoid the Minister's draft.
I could not accept the amendment at all. If the Deputy will look at Section 134, he will see that a person is guilty of desertion when, having been warned for hazardous duty or important service, he is absent without authority with the intention of avoiding that duty of service. A reservist who fails without good excuse to report when called out for permanent service or in aid of the civil power must be able to be found guilty of desertion, if the circumstances so indicate.
The Minister and I differ in our approach to the problem. My view is that if a reservist is at home and receives a notice calling himout and does not attend, the offence he commits is the offence of failing to attend or being absent without leave. I think that desertion can only apply when a person is subject to military law. The definition is in Section 134.
That is if he is absent from duty with the intention of avoiding the duty or service.
A person is guilty of desertion—was always guilty of desertion—when he absented himself with the intention of not returning, or absents himself with the intention of avoiding what is described in this Bill as a hazardous duty. The main essential to create the offence of desertion was absenting himself with the intention of not returning to his unit or with the intention of avoiding a hazardous duty. This is a case where a man is at home, and he receives a letter calling him out for service, and he does not turn up for that service, and before he could be convicted of desertion, in my view, there would have to be a new definition of desertion for the purposes of this particular section. I do not think there is such a definition. I think the Minister will agree. If he looks into the section he will see that it says simply that he may be convicted of desertion but, under Section 134, desertion is specifically defined for the purposes of Section 134. As a matter of fact, desertion is defined, and it is interesting—" the word ‘ desertion ' means the act of deserting the Defence Forces."
Yes, that is with intent.
Yes, but once you have defined desertion for the purposes of Section 134, which relates to the permanent forces, you cannot apply that definition to the Reserve unless there is specifically put in a clause saying that that particular definition will apply to the Reserve.
The Reserve is an integral part of the Defence Forces.
Not for these purposes, not for the purposes we mention. Desertion is specifically defined in the Bill as applying to Section 134. Section 134 refers to people who are subject to military law. This section deals with reservists only while they are reservists, not when they become subject to military law, because, when they become subject to military law, then the same laws apply to them as apply to soldiers of the Army. When they are at home they cannot be convicted of desertion unless there is a definition clause inserted in the section.
One could put this question to the Minister in regard to that. I take it the intention is that immediately a reservist is called up and upon receipt of his notice—the onus would be, I take it, on the military authorities to prove service of the notice or is there some provision deeming what service would be sufficient ?
Yes—it is sent by registered post.
Immediately he received that notice he becomes subject to military law. I agree with Deputy Cowan. If that is not clear in the Bill, the Minister's provision would fail.
If he becomes subject to military law he could be dealt with by Section 134 because he is then a person subject to military law, but Section 241 provides for his trial before a District Court, and not as a soldier, a person subject to military law, but just as an ordinary civilian, a member of the Reserve, who has not done what he was told to do.
Will you look at Section 87 (2), line 47, it says that " such reservist shall . . . stand called out on permanent service as from, in case a special notice is served on him, the time at which he is required by such special notice to attend. . . . "
That is in a state of emergency.
Mr. Brennan
Under what law or by what right do you so notify a man ? You must have some claim ?
Acceptance of this amendment would mean that nobody would answer a calling-up notice, that it could be ignored.
No. We are really in a technical difficulty, and it is really a technical problem.
What you are raising now has nothing to do with the amendment. It is a new point.
It is a new point that arises in regard to the section because what I propose in my amendment is the deletion of the references to desertion on the ground that desertion does not apply. Nobody has ever heard of a soldier being tried in the District Court for desertion.
Yes.
In the District Court ?
Yes. There have, I think, been cases where people were apprehended during the emergency and brought before the District Court.
They are apprehended and brought before the District Court and handed over to a military escort, but this provides that he can be tried in the District Court and sentenced to a fine not exceeding £25 for desertion. I am saying that the desertion clause in this section is not applicable, unless desertion is defined specifically for the purposes of the section.
That is the ground for the amendment ?
There are two grounds. The main ground is that if a person is called up for permanent service, for training or in aid of the civil power, and does not turn up, the offence he commits is the offence of absence without leave, for which he can be apprehended and dealt with by court martial, but there is no way by which you can try him for desertion, and it would be wrong to try a man for desertion who has not in fact commenced to serve.
He has to be subject to military law before he can be absent without leave.
To be absent without leave is one thing. He is absent from his force without leave, but I submit that that is a completely different thing from being with the forces and deserting from them. Words have a specific meaning.
Let me explain this for the information of the lay members of the Committee. If a man who should be serving with the forces is absent for less than 21 days, he is normally regarded as being absent without leave, but if the absence exceeds 21 days he becomes a deserter
Not automatically.
The next point is the matter we are discussing here, the question of intention. Let us say that the Reserve is called up because of a serious emergency, and a man who gets his calling-up notice comes to the conclusion that it is going to be serious and dangerous and says : " I am going to try to miss it if I can." He deliberately refrains from acknowledging the call-up or reporting himself. He then becomes a deserter because the intention to avoid hazardous duty is present. The question of absence without leave does not arise because there is the intention to avoid responding to a call of danger.
Mr. Brennan
Deputy Cowan's idea is that a man must report to the Forces, must get into uniform, if you like. If he goes away without authority, he becomes a deserter. I should like to know what claim you have on a reservist. He must be under some form of military law.
There is a contingency claim on him.
It is part of his contract. He contracts to do that, and, if he does not do it, he breaks his contract.
Mr. Brennan
From the moment he gets the notice he is a soldier?
There are two ways of looking at it.
He is a soldier on reserve always.
Deputy Cowan's point is that, since the man is not on service at the moment, subject to military law at the moment of committing the crime, so to speak, desertion should not apply, that you cannot say it is desertion within that sense. If that is the meaning of desertion, one would agree with Deputy Cowan, but we have to look at it in another way. A reservist contracts to become and becomes a member of the forces, and the practice has been to have him in the Army subject to military law even for an infinitesimal period—an hour or a day—in order to bring him subject to military law. He goes out on reserve and is not actually subject to military law, but in another sense is subject to military law, in that there is a particular claim on him, and he has a particular liability to become subject to military law, if and when called upon to do so. In these circumstances, you have the position—and the section to which Deputy Colley referred is relevant in this case, Section 87 (2)—that when the reservist is called up he becomes subject to military law. It is to be noted that he does not become subject to military law until called up, and similarly he could not commit this offence until he is called up, and therefore until he is subject to military law, so that if we take things in order of time, the first is that he becomes subject to military law and a member of the forces by virtue of being called up, and it is after that that he is guilty of the default of either being absent without leave or desertion, so that, in my view, it is proper, according to the circumstances, to charge him with either offence if he fails to report. He must first have become subject to military law before the offence can arise.
The question whether he is guilty if desertion or absence without leave is fundamentally, in the contemplation of the law, a question of intention, the broad distinction being that he is guilty of absence without leave if he had the intention of turning up some time, and of desertion if he can be construed as having had no intention of coming at all. I should like to add a gloss to what the Minister said in regard to that. The 21 days' period is only material as evidence of intention. The practice is that if he turns up or is apprehended within 21 days, he is normally charged with absence without leave. If he turns up within 21 days you are satisfied that he had the intention of returning, and you charge him with absence without leave. If he stays absent for 21 days, the convention has arisen that you can imply to him the intention of never turning up. In other words, absence for 21 days is evidence which raises the presumption of desertion as against the presumption that he was absent without leave, the presumption of the more serious crime. I see no reason why these principles should not apply in this case also, and therefore I would agree with the Minister's intention and draft. So much for what I might call the substantive argument. " If he is called out on permanent service or in aid of the civil power such reservist shall be guilty, according to the circumstances of desertion or of absence without leave."" According to the circumstances " does make one think as to what precisely is meant. For instance, if the matter should not be sufficiently clear on the lines on which I have been going, and if there is room for an interpretation on the lines put forward by Deputy Cowan, " according to circumstances " is not sufficiently definite to capture a man at all, and it is a matter of technical wording.
May I point out that Section 224 of the 1923 Act is the same as this?
I may have misled the Committee slightly. Section 134 applies definitely to the Defence Forces but I see in the peculiar way it is put that its correct interpretation is that for the purposes of the Act desertion is so-and-so. It is defined not only for Section 134 but for Section 241, which we are dealing with.
Deputy Hilliard took the Chair in the temporary absence of Deputy de Valera.
Would Deputy Cowan agree that as soon as a man gets the calling-up note he becomes subject to military law ?
Yes, but if he does not attend his greatest offence is absence without leave.
Mr. Brennan
Even if it went over the 21 days ?
It may go up even to six months.
Mr. Collins
The probability is that it would, where he was avoiding the call up.
We are arguing the difference between desertion and absence without leave. I say that where a man does it deliberately and with intention to avoid being called up, that is desertion and not absence without leave.
Absence without leave is always part of the offence of desertion, the preliminary part of it, where you absent yourself with the intention of not returning or of avoiding the performance of a particular duty. Supposing the man comes before a court-martial for desertion, he can get a very heavy sentence—penal servitude if on active service and imprisonment otherwise. For absence without leave he can be sentenced to imprisonment. A reservist may be brought before the District Court and fined up to £25.
The purpose of bringing him before the District Court is to enable it to be established that he is an absentee. The District Court orders the man to be handed over to the military.
Mr. Collins
Even if he were absent for considerably more than 21 days and were charged before a court-martial with desertion, it is open to the court-martial, in the light of the circumstances adduced before them, to hold that even though the period was in excess of 21 days he was not a deserter.
That has happened on numerous occasions.
Mr. Collins
I cannot see any necessity for increased protection, as the court-martial itself can deal with it according to the circumstances.
I cannot accept the amendment, as it would encourage reservists not to respond to a call up.
The punishments are practically the same for desertion as for absence without leave but by bringing desertion in here it seems to be cheapening the offence of desertion. It was always looked upon as serious when a man deserted when ordered for a particular duty. We have not so much of it as they have in other countries, where soldiers have to serve abroad and where, when the ship is moving off, they absent themselves from the ship. I always looked on desertion as a very serious thing but where a reservist is called up and does not turn up that is absence without leave and nothing more.
Mr. Brennan
Supposing he does not turn up for six months ?
Whether six weeks or six months, it does not change the principle.
The argument in favour of the section as it stands is that it has stood over all the years that the Army has been in being. It was in the 1923 Act.
I do not know how it has operated recently but, generally speaking, if a fellow did not turn up for training the practice was for someone to ask him why and to give him another date. I do not think many reservists were charged with desertion simply because they did not turn up.
Mr. Collins
I do not know of anybody, in my experience.
He could write a letter to the commanding officer showing there were extenuating circumstances.
This refers to men called out on permanent service.
Or called out in aid of the civil power. However, I have put the case as best I can.
Amendment put, and declared negatived.
I move amendment No. 278 :—
In sub-section (2), to delete all words after " the " in line 53, to the end of the sub-section and substitute—
" offence of absence without leave he shall be liable to be tried summarily by the District Court and on conviction by such court, to be sentenced to a fine not exceeding £20 or to imprisonment for a period not exceeding six months."
This hinges on what has already been decided.
It is in the 1923 Act also.
I wanted to send reservists for trial by the District Court rather than by court-martial. I take it that that view would not be acceptable.
Amendment, by leave, withdrawn.
Amendments Nos. 279, 280 and 281 not moved.
Deputy Vivion de Valera resumed the Chair.
Sections 241 and 242 agreed to.