I move amendment No. 301 :—
In sub-section (1), line 2, before " being " to insert " of which the Minister for Defence is at the time the owner ".
I move this amendment for the purpose of providing against the possibility of the section being used in reference to property that was, but has ceased to be, military property.
It is obvious that the Deputy was thinking of property which is no longer departmental property, such as material which has been sold by auction or clothing which a soldier is allowed to take away with him on leaving the Army. Naturally, a prosecution would never be brought in respect of such material. The Deputy's amendment would not, in fact, be feasible, because he has not gone on to define what he means by " owner ". The Minister, for instance, would not be the owner of a decoration once it was issued. He might only have chartered or requisitioned vehicles or other property which could be the subject of an offence under this section, and the question of " ownership " within the meaning of the Deputy's amendment could give rise to considerable argument. On the whole, it would be better for the Deputy not to press this amendment, and to trust the authorities not to bring a prosecution except in the genuine case for which the section is intended. After all, he cannot point to many cases in which the powers given by the corresponding section of the 1923 Act have been used. We have provided in (b) of the present section that, if a person is charged, it will be a good defence to show that the offence was committed unwittingly or that the property had already been sold by the Department or that it was a soldier's personal property. These provisions provide a safeguard if a charge is brought in error, but it is unlikely that in any such cases the matter would ever come to a court, because a prosecution would not be initiated, except in error, unless there was clear evidence that the property in question was, in fact, military property.
That again brings us up against the difficulty that we create offences and then hope that common sense will prevail, that the offences we create will not, in fact, be brought to trial. I agree with what the Minister says in regard to my amendment, that it does not quite complete the matter, but it was put down for the purpose of drawing attention to the fact that the section might be used in reference to property that was, but had ceased to be, military property. If the words I propose to insert in a general way to cover the whole section were inserted in sub-paragraph (a), they would avoid the danger of people being charged in respect of property which had ceased to belong to the Minister for Defence. Sub-paragraph (b) referring to military decorations, can be left—there are special reasons why that should be there. Sub-paragraph (c)—" furniture, bedding, blankets, sheets, utensils or stores, in military charge "—that is quite all right. If it is still in military charge, it is military property, and I would have no objection to that. " Provisions or forage issued for the use of a member of the Defence Forces or his horse "—we run into a slight difficulty there. If food, that is, provisions, is issued to a soldier and he does not eat it but gives it to somebody else, that person under the section can commit an offence, and it was never intended that it should be so used. " Any horse or vehicle employed in the services of the Defence Forces "—that would be all right too, but I think there should be some limitation in regard to the other points I have mentioned. Equipment issued for the use of members and which had ceased to be on charge through affluxion of time or otherwise, should not be included.
We are not worried about property which has been sold by the Department or which belongs to a member of the forces. As regards provisions or forage, provisions issued for the members of the Defence Forces should not be sold to somebody else or given away. The section, of course, does not mean that a man, having received his personal rations, cannot dispose of them in any way he wishes. Provisions and forage which are intended for Army use cannot, however, be disposed of by members of the Forces by way of sale or gift.
I take it the Minister will not accept the amendment.
No. It would be undesirable.
I do not want to press it to the extent of a division. Having mentioned the point, I would like it to be considered. There is something which would be very likely to happen in a place like the Curragh. A soldier may receive rations, and for some reason or another he or his wife may use only part of them, and give a couple of loaves or a lb. of butter to a friend, and when the friend is going out of the Curragh Camp he may be discovered by a military policeman or a Civic Guard in possession of that property.
In circumstances such as these, the foodstuffs would no longer be the property of the Minister.
Under the section it would. The section says : " Any provisions issued for the use of a member of the Defence Forces." I can visualise that happening in the Curragh, and I can imagine the Garda there looking up the Act, and having the civilian charged with bringing out those two loaves.
The Deputy will, however, have to get some other case, since rations are not issued in that way. A soldier does not get loaves of bread and lbs. of butter. Even a married soldier does not. The Deputy will have to find some other type of case. It would have to be property, say, blankets, which were not the property of the Minister for Defence. If a person taking these out of the camp were challenged, all he would have to do would be to prove that they were not military property.
I can see that point, although in fact in the Curragh provisions are issued—probably on a basis of repayment.
Yes, they are issued on a repayment basis.
I have seen charges in regard to that in recent years and again we would be pushed into the interpretation as to whether it was the man's personal property or provisions issued for his use. At the moment soldiers may receive a ration allowance, but that is a recent development. It is not so long ago since they were receiving rations in kind and in bulk, and possibly they may go back to that in the Army. That is only administrative machinery. I am concerned to be sure that no person will be charged in respect of property that has ceased to be the responsibility of, or to be on charge to, the Minister. However, I do not want to press it further than this now.
I think everybody would ensure that cases such as the Deputy fears would not arise.
On examination, some words may be introduced into the section which would limit it.
I move amendment No. 302 :—
In sub-section (2), line 15, after " person " to insert " knowingly ".
If a man knowingly receives such property he should be guilty of an offence, but otherwise he should not.
This could conceivably apply to a case where an article would not be patently marked on its face as military property but might be military property within the meaning of the section. Then it would be reasonable to provide the word " knowingly ". Vice versa, if the thing is patently marked as Army property, like a ground sheet or a gun, " knowingly " would be a very easy thing to prove. There is something to be said for Deputy Cowan's amendment.
Yes. I agree with Deputy Cowan in that.
In cases of this nature, it is most desirable that the onus of disproving guilty knowledge should be placed on the accused person. If the word " knowingly " is inserted, it will shift the onus to the prosecution, whereas in paragraph (b) it is definitely placed on the accused. I feel it should be agreed that the onus should lie on the pawnbrokers and others to make the fullest inquiry before they accept what appears to be military property. The position is the same under the Act of 1923, under the various British Acts and, as far as I know, in all the other legislation affecting pawnbrokers and such persons. We looked into this matter especially in regard to pawnbrokers and such persons, and aparently the civil law is much the same.
Binoculars or something like that might be either civilian or military. The ordinary law places a fairly severe onus on pawnbrokers in the ordinary case and most military property will on its face value raise the suspicion.
My recollection is that binoculars are specifically marked.
Yes. That would raise the presumption. But take the case of coal. Supposing a gentleman comes down the street, a bell-man hawking coal. You buy the coal but it has come out of Army stores. Under this, the householder who bought it would be guilty of a crime. The section says : " If any person buys." It would not be damaged in any way if the word " knowingly " were put in.
It would put the onus of proof of guilty knowledge on the Army authorities.
Is it not a very proper thing to put the onus on them ? I would like a Committee of Parliament to consider that. The tendency always is for the Executive to want to get powers and it has come to the stage where one must protect citizens. It is an easy thing to make this general.
There must be some protection for the owner of the property.
But the owner of the property will be the State in this case, and there will be ample protection even if the word " knowingly " is in. Why should the onus be shifted to ease the State and put an undue burden on the individual ?
The normal onus in crime is on the prosecution, and I would add my voice to that of the Chairman. In my experience, where we had in our barracks a very large coal dump on one occasion, there was considerable filching over periods from that coal dump. Coal at the time was in fairly short supply in the area. It would be different if there were direct contact, but when the coal is stolen and disposed of to a recognised bellman or coal hawker it would be placing an unfair burden on a person who might unwittingly and absolutely in good faith buy the coal.
It is the hawker who would be prosecuted in such a case, not the individual householder who purchased from him.
The section does not limit it. That is the only quarrel I have.
Look at paragraph (b) further down.
Paragraph (b) reinforces my argument. It says that it would be a good defence if he could prove he did not know it, or if he could prove it was sold by the order of the Minister. But if the Minister sells at a public action, and the thing comes into the possession of someone else, it is unfair that that man should have to prove that the Minister sold it, when the Minister from his records should know that and be able to prove that the Minister sold it.
There would be no question of anybody being prosecuted in respect of property sold at an Army auction.
But he might. Say it is a military blanket, or a motor car.
Cars are recorded as having been sold, so there would never be any possibility of anyone being charged in such a case.
A number of these items will not be actually numbered, and the record of their being actually sold would not get you any further.
There could also conceivably be an error in a large batch which was sold.
Blankets, for instance, would not be sold. They are cut up.
Greatcoats were sold at one time.
A lot of blankets are not cut up.
If Army blankets are to be sold, they are mutilated or, if they are very bad, torn up, made unusable and sold as rags. Uniforms are also torn or cut up. In some cases where they are sold to reputable firms as whole garments, it is on the understanding that they will be dyed, so there would be no difficulty in cases of that kind. The undertaking is to the effect that they will not be resold as uniform. Therefore, the discussion we are having on the possibility of the purchase of that type of article is not real.
In other words, it is identifiable property that will be involved.
We are concerned with the improper possession of property which is clearly Army property.
The Minister says that all the property that is involved in the section will be identifiable ?
Yes. Generally speaking, that is so.
It will be identifiable as military property.
If it is not there will be no proceedings.
For that very reason Deputy Cowan's amendment should be accepted. If it is identified its very nature will raise the assumption immediately it is found that it is property of the Minister for Defence and the onus will immediately be shifted to the accused person to show that he had it innocently. You will achieve the protection about which Deputy Cowan talks in other cases. If binoculars which are numbered or other equipment, even blankets, are found in the possession of a person and that person is prosecuted, it is self-evident that it is military property and the onus immediately shifts on to the person who is prosecuted. The presumption is there immediately. I am probably arguing with more force than is necessary ; I do not think that the point is of such terrific importance as to make it an issue but we should protect the principle of guarding against giving the executive too much power.
If military property is in someone's possession under doubtful circumstances the onus should be on that person to show how he came by it.
That is what happens. I do not think that the Minister understands the position.
The person must show that he got it innocently.
If it is military property he must prove that he had not got it knowingly. In effect it would be putting the onus on him. If he has a bona fide case that he did not have it knowingly he would have a way out which is quite fair. What I object to is making it too easy for the administration ——
What I object to is making it too easy for property of the kind we are discussing to be stolen. There is none of us who is not fully aware that Army property ——
Is knocked off.
—— is too easily removed and stolen.
Boots, for instance.
Very often boots, shirts and various other articles are sold and the people who purchase them, in fact, do it knowingly. We do not want to make it too easy.
I do not want to do that either.
There is a matter which I mentioned before and with which I thought the Minister might deal. Officer pattern blankets may be issued from Army stores to an officer in residence in a military house in the Curragh. The type of identification is one that is readily removable. The type of blanket generally made available for officer ranks is normally a high quality blanket of the type generally used in middle-class or better class houses. A case which presents itself to me is that some of these blankets could readily be got rid of by pawning them or selling them and the person buying them might, and probably would, have no reason to believe that they were military property. In that type of case I felt that " knowingly " would be a protection.
Sub-section (b) goes a long way to cover that. There is no doubt about that.
It would not be the officer who would get rid of them but somebody with access to the officer's quarters.
I would not exclude the possibility that it might be the officer or the officer's wife in certain difficulties.
Even with the word " knowingly " would the procedure not be the same ?
It does not make a terrible lot of difference but it shifts the onus.
It would put the onus of proof on the owner of the property.
A man who honestly came by the property would immediately say so at the investigation, and in view of sub-section (b) there would be nothing to proceed with.
I would love to think that the processes of the law worked so simply and equitably. It is the technical point : Who is to discharge the first burden of proof ? If the section stands as it is the prosecution can say : " This is on the face of it military property. Now it is up to you, boy, to prove you had it innocently." If you put in the word " knowingly " the prosecution must go a step further and say : " This is military property and you must have known it was." Only when the prosecution has gone that far is the onus shifted on to the accused. It is not important in the case of something which is patently military property, a rifle or marked field glasses, because the prosecution has only to say : " This is military property. Everybody with eyes in his head must have known that, and you must have known that." The difficulty arises in the case of coal, blankets or a tyre. Then the prosecution must go further, and prove the additional circumstances. That will remove the assumption that the accused knew it was military property, and that is a fair burden to put on the prosecution. As the section lies, in the case of a tyre the prosecution can say : " It is military property, and it is up to you to prove you got it innocently. You have to get out of the hole." The property might have been bought innocently. It is a question of the measure of initial proof you are to put on the prosecution.
The person is in a position no more difficult than that of an ordinary civilian.
Yes, the onus is shifted.
Suppose that I take property belonging to Deputy Collins and sell it ?
Suppose you buy a cow from somebody who has stolen it and pay a fair price ?
It is the person with whom the cow is eventually found who must prove that he got it innocently.
No.
Will I not be charged with being an accessory ?
A modicum of proof is required.
I agree with the Minister that " knowingly " should not be inserted. The State should not be called upon to prove that the person who had the property had it knowingly. This section deals with a case which the Minister has gone a long way to explain—that Army property is fair game. It cannot, however, be stolen without a contact man, a person who is in contact with a soldier or a group of soldiers who will take the property from the place in which it is kept by the military authorities. In that type of crime it is only proper that the person who has the property should be called upon to prove that he had not got it knowingly and believing it to be stolen.
I would agree with Deputy Hilliard as far as property which is patently the property of the Department is concerned.
So do we all.
But unfortunately in cases where the property is patently military property no difficulty arises because the effect is exactly the same whether the word " knowingly " is included in the section or not. The case we must deal with is the case of property which is difficult of identification, which can get into the market and be bought innocently. Take a motor tyre. A motor trader might get a stolen Army tyre. Under the section if you went to that trader and bought it you could be charged. A publican gets some stuff out of the canteen—that is a bad example.
The tyre would be specifically marked.
Then the word " knowingly " would make no difference ?
Suppose a reputable trader sells property which is subsequently discovered to have been stolen from the military authorities. He says to the Guard or whoever is making the inquiries that he bought it from so-and-so. Then the Guard will not prosecute him.
I agree, but we must look at the law. Under the law as you are going to make it, the man who buys it is still liable to be charged with an offence. I do not think that the matter is of such vital importance but it is important to preserve the ordinary working principles of civil law as far as possible.
Sub-section (b) covers all you are talking about ?
Not quite.
If it does not, I cannot read.
It goes back to the rules of evidence, the legal presumptions in courts and certain legal technicalities.
It goes back further than legal technicalities ; it goes back to principles of law.
It goes back to the question of where the onus lies.
As a Committee of the House we are not entitled to change principles of law unless for the gravest reason. There is no difference in principle between a table the property of the Minister for Defence being involved and a table the property of the Minister for Education. We have no such provision to deal with a chair belonging to the Board of Works as distinct from a chair belonging to the Army authorities. We simply cannot have this. I know that this section was in the 1923 Act.
That is what I was about to say.
We understand that.
You cannot say that we are changing a principle of law, when we are discussing a principle which has stood the test of 30 years.
We are hoping to be able to improve it.
The 1923 Act was never examined by anybody.
I think that the Minister will agree that it is important to try to preserve the general principles of civil law. That is all we are trying to do.
I would regard myself as doing that when I take something which has stood the test of years and insert it in a new Bill. I am not a lawyer but I must assume that my legal advisers have examined the question and have seen no objection to transferring the section from the 1923 Act into this Bill.
This is the first really searching analysis we have had the opportunity of making of any defects in the 1923 Act. I would like the Minister to appreciate that the only object I have in this is that I feel that this may be an improvement on the Minister's section, and it is on that basis that I am making the case.
What apparently is wanted, anyhow, is to add the word " knowingly ". I will have that examined in the light of all that has been said.
That is all that is at stake. The only suggestion I would make is that this happens to be a section that it may be well to refer to the Attorney-General's Department from the point of view of uniformity with all the law relating to larceny of property, and we would all be satisfied if that was done.
The insertion of the word " knowingly " does not meet the point Deputy Cowan is making.
It does.
The Attorney-General will not direct a prosecution against you unless he can prove that you knowingly did it.
How is he going to prove it ?
The Minister is going to have the matter examined and that is all he could be reasonably asked to do.
The section does not deal merely with possession of property. There are three headings here—buys, exchanges, or takes in pawn ; solicits or entices any person to sell, exchange, pawn or give away any military property. Why should the State have to prove that a man who would be commissioned to act for any person selling, exchanging, pawning or giving away military property did that knowingly ?
I think the Minister's attitude answers the whole thing.
Our whole point in this is the question of uniformity and, if the Minister will consult the Attorney-General from that point of view, that is all the Committee can reasonably ask.
I think the discussion should be closed. The Minister said that that would be done. We are only arguing at cross-purposes.
The only thing that is important is to secure uniformity.
It is a principle of law that a man is always innocent until he is proved guilty. This sets it around the other way, that you are guilty unless you can prove you are innocent. That is too much of a change in the ordinary law for us to allow to go through.
I am afraid that there have been inroads in other places and we cannot accuse the Minister.
I think the discussion should end in view of the assurance given by the Minister.
I should like to raise a couple of points for consideration. In paragraph (a) of the definitions sub-section, you may be up against an old legal difficulty that where you attempt definitions, if your definition is not completely exhaustive, whatever you have left out specifically of your definition is missed and the first question that is raised there is as to whether you should not strike out the words in brackets and simply leave it " ammunition " and leave it to the general interpretation.
If, on the other hand, the Minister feels that he should be explicit, then I would ask him to add certain words. That section, as it stands, runs the danger of not catching demolition explosives or mines. They are just two things that strike me. I would suggest an amendment that might be considered : " Any arms, ammunition (including bombs, grenades, mines or similar missiles or demolition agents). Do you see the words I am adding—mines—because a mine is not a missile —and demolition agents. Outside the bracket I would add the word " explosive ". In paragraph (d) they say " any provisions or forage ". They are thinking of horses. What about petrol and oil ? Would the Minister consider these points ?
You are putting on record the things you want, and we will consider them.
I would suggest after the word " grenades " the word " mines ", and after the word " missiles " the word " demolition " or " demolition agents ", and, outside the bracket, before the word " equipment " to add the word " explosive ". I am not sure that that is exhaustive, but it would give a starting point.
You would want to put in " ships ".
What about " tanks " ?
" Equipment " might stand, because it is a standard Army phrase. You talk about a field-gun as equipment. Certainly, where you are talking about forage, it might be well to put in petrol and oils. These are just suggestions which we need not dwell on.
How would we identify petrol ?
You had better cover it.
There is another range of country that presents itself to me. What about all the cleaning equipment you have in connection with vehicles of that nature—chamois, and all that kind of thing ? You do not catch it in that section. You might have hundreds of pounds worth of that kind of thing.
You could probably get an omnibus phrase.
I would suggest to the Minister that he should ask his advisers to consider putting in at the end of the section a general omnibus clause that will catch anything that might not be specifically mentioned in the other sub-sections.
" Stores " ?
" Stores " would be a good word.
A boat belonging to the Navy might not be included.
