Special Committee Defence Bill, 1951 debate -
Wednesday, 30 Apr 1952

SECTION 249.

Captain Cowan

I move amendment No. 284 :—

In sub-section (1), line 5, to delete " or an absentee ".

This section deals with apprehension of suspected deserters and absentees. It relates to soldiers of the forces and in regard to reservists ; it applies to them also on the basis of our discussion on a previous section. While I agree that if a member of the Garda Síochána has reasonable grounds for suspecting that any person is a deserter, he is right to take him into custody, and in fact it would be his duty to take him into custody. Where a person is simply guilty of the offence of absence without leave, for instance, an officer or a man has not leave to leave his barracks and slips out quietly without authority, in strict legal language he is an absentee without leave, and this section giving the member of the Garda Síochána the right to arrest him is going too far. Absence without leave is a very common military offence. It is probably one of the most common military offences to be absent without leave for an hour or half an hour, or a day or a week-end. I will not consent to the guards having the right, when they suspect that an officer or a soldier is absent without leave from his barrack, to arrest Lim.

Mr. Traynor

The Deputy knows as well as I do that nobody, not even the guards, would worry about a man who is absent in the circumstances that he is talking about.

Captain Cowan

They might.

Mr. Traynor

In practice it is found very difficult to get the guards to apprehend an individual who is away for weeks, not half-hours or half-days.

Chairman

I have certain sympathy at first blush with Deputy Cowan's amendment, but the way I see it is that if a man is absent, say, for a couple of days or more I see no reason why he should not be arrested. If you go further into the serious case—in time of emergency—it is highly proper that he should be arrested. To limit it to desertion seems to me to limit it to the case where the guard is reasonably certain that the man had never any intention of coming back.

Mr. Traynor

At that stage it cannot be known whether he is deserting or merely absent without leave.

Chairman

On balance I would say that the Minister is right to use the draft that he is using. I should say that this is a case in which no great hardship is going to be done, that we can reasonably rely on the common-sense of the people concerned. In any event, the person concerned is guilty of an offence if he is absent without leave, and we should not be too worried about the personal inconvenience of arresting him ; but having regard to the serious cases that can arise, the implication in the word " desertion " and the necessity for casting a duty on the Garda Síochána in the matter, I, for one, find myself in disagreement with Deputy Cowan, though I very frequently find myself in agreement with him.

Mr. Traynor

What happens is that a man is not regarded as being absent without leave until some little time has elapsed. A man is missing this evening ; he should have reported back to-night and he is marked down as being absent without leave ; he does not report back to-morrow night, and he is still absent without leave. When a week has passed, the military authorities notify the Guards of the district in which the man lives, and all these Guards know that the man is missing, and if a Guard comes across him he will naturally take him up after saying to him : " You are So-and-So " and received the reply : " I am ".

Chairman

From the strict legal point of view, there is this to be said for Deputy Cowan's argument. Suppose a Civic Guard knows that, for some reason or other—it may be purely military discipline—there is a universal rigid rule that soldiers must be back in barracks by 11 o'clock at night and he meets a person he knows to be a soldier at 11.15 p.m. That Guard knows that that soldier is absent without leave.

Mr. Hilliard

That is rather stretching it.

Chairman

I want to show that Deputy Cowan's amendment is not without substance. That Guard under the terms of the section can quite legally say to him : " Look here, boy, you should have been in barracks a quarter of an hour ago. I am going to pull you in." I have said that I agree with the Minister, but there is no harm in considering the point that Deputy Cowan has rightly raised. Here is the real difficulty that might arise. Suppose there was a regulation requiring all soldiers to be in barracks by 11 p.m. unless they have a late pass and at 11.30 p.m. a soldier has an argument with a Guard and the Guard would have good grounds for lifting him for being drunk and disorderly. It is open to that Guard to ask the soldier to show him his pass and if he has not got one, to say : " You should have been in barracks half an hour ago." In order to get him on the other point, there is a danger that he would do that.

Mr. Traynor

And the Guard would be entitled to do it.

Mr. Carter

There could be a genuine reason—a death in the family or some emergency.

Mr. Traynor

We have this dozens of times—a man absent without leave and in due course a notification is received that his child is dying or something like that. The Guards go to the trouble of notifying the military authorities that the man's child is dying — I am sure that Deputy Carter has cases of this kind in his mind—and immediately the man is granted extra leave. I have seen these cases so often that I am surprised by Deputy Cowan's attitude.

Captain Cowan

What I am troubled about is the fact that while everything is exercised and operated with common sense and there is never any trouble, one does find Guards who enforce the law in different ways. I knew a particular Garda sergeant who was such a holy terror to licensed house proprietors that he was shifted from place to place, and shifted by order of his chiefs, from time to time. In that case nothing could be done except to shift him about, but he was carrying out the letter of the law. You could get a sergeant or a Guard—this will be the law when passed—who, on seeing a soldier out at 1 o'clock or 2 o'clock in the morning, has reasonable grounds for thinking he is an absentee, can dump him into the black hole where he will have to stay until morning.

Chairman

If it were only that case we were dealing with, I would be 100 per cent. with Deputy Cowan, but we have to consider the real necessity for the section in regard to the more serious cases. As Deputy Hilliard remarked, we have stressed it pretty far in making the case against the section but, on balance, I think it is a section which we should give the Minister.

Captain Cowan

Then, I will be defeated on a division on it.

Amendment put.

The Committee divided : Tá, 2 ; Níl, 5.

Tá

• Cowan, Peadar.
• Gallagher, Colm.

Níl.

• Minister for Defence.
• Colley, Harry.
• Brennan, Thomas.
• Hilliard, Michael.
• Carter, Frank.

Amendment declared lost.

Captain Cowan

I move amendment No. 285 :—

In sub-section (1), paragraph (b) (ii) (I), line 22, to delete " or an absentee ".

The section provides that on such a person as we have already discussed being brought before a district justice, the district justice, if he is a deserter or an absentee, shall cause the arrested person to be delivered into service custody or, until he can be so delivered, to be committed to some prison or Garda Síochána station for such time as appears to him reasonably necessary for the taking of steps to receive the arrested person into service custody. Obviously, the same implications must follow. If a Guard arrests him because he is an absentee and brings him before a district justice, the district justice can put him to jail or deliver him to service custody. There is no necessity to discuss it again.

Mr. Traynor

What is the Deputy's objection here ?

Chairman

It is essentially the same thing.

Captain Cowan

When he comes before a district justice or a peace commissioner, if he is a deserter, he can be delivered into service custody or into prison or kept in a Garda station, but if he is an absentee he should not be subjected to these things. He might be only an hour absent.

Chairman

It is more important to my mind than ever than the word " absentee " be included. If that word is deleted, before the district justice can do anything at all he will have to be satisfied that he was a deserter, which involves all the proofs of desertion, including proof of intention to desert. We all know how many cases have failed in relation to desertion but which succeed as absence without leave. It is much harder to prove desertion. He could be absent for 21 days and if he satisfied the district justice that he was going to return sometime, he would get clean away. If the section is to be operative at all it is absolutely essential that the word " absentee " should be in and more than ever necessary in regard to the proof needed before the district justice.

Mr. Carter

If you delete the word " absentee ", you would make provision for a higher charge, so to speak.

Chairman

If we take the section as it stands, Deputy Cowan having been defeated on the first amendment, and if we delete the word " absentee ", the matter would be tried by a district justice and if the justice was not satisfied that it was desertion, cold and hard, that there was no intention to return, he would have to release him. In other words, a man could be absent for 21 days or more and if the district justice held or had to hold that he had no intention to desert, that he was merely absent without leave, he would have to release him. There would be cases within that category in which it would be necessary that the man should be arrested and handed over in the interests of discipline.

Captain Cowan

I agree that once the Committee has taken the decision it has taken in regard to the previous amendment this will have to stand. I do not propose to press it.

Amendment, by leave, withdrawn.

Section 249 agreed to.