I move amendment No. 39:
In page 55, to insert "or any other" before "Act" in line 8.
This is a minor drafting amendment which I think ought to be inserted. Its purpose is to remove an anomaly in the section in regard to licences or permissions granted or issued otherwise than under the Bill. They also should have been covered in the section.
This is purely a technical provision. Its purpose is to make it unnecessary for officials of the Minister's Department to attend court in order to prove that, for example, (a) an open season order under section 24 or 25, or (b) a licence or permission granted by the Minister or by any other Minister was not in force at the time the alleged offence was committed, or (c) that the act which is the subject of the proceedings was not the consequence of another act or thing lawfully done. As regards (a) the relevant published order would be available to the court. As regards (b), if the defendant claims he had a licence to do the thing complained of in court proceedings it would be his responsibility to prove that the licence did in fact exist at the time of the alleged offence. Similarly, as regards (c), the onus will be on the defendant to prove that the act complained of was merely unintentional and incidental to a lawful act. There is precedent for this in other Acts.
We protested against this procedure in relation to the Misuse of Drugs Bill and I want to protest against it here also. It is part of this creeping process whereby anybody brought before the courts is automatically guilty and the procedure on the part of the State would be just to have a rubber stamp.
With respect, I do not agree with the proposition put forward by the Deputy. Going back to the Customs Consolidation Act, 1894, this provision is written into many Acts of Parliament so that, while not in any way taking away from legitimate defences open to an accused person, it avoids the necessity of bringing witnesses from the Minister's office or the Department to prove that no licence was given or to prove an open season order.
We have almost run out of words in arguing on this point. Even in relation to wireless licences the prosecution is required to prove by producing an official of the Department of Posts and Telegraphs that no licence is in existence. This is part of a general process of making it easy for prosecution and getting away from the old principle that before somebody is found guilty the State must prove they are guilty, must marshal all the necessary proof and documentation before a citizen is found guilty by the court. We need not argue too long about it; it is a principle on which we and the Government disagree in relation to a number of other pieces of legislation. We need not hold up this legislation by arguing about it.
We are aware of the Deputy's views.
It is a point that is usually made by the Opposition.
It is a trend towards dictatorial powers by the servants of the State and could not be commended.
I could make the case that it is in ease of the accused person. If a person has to appear in court in Donegal and if it is necessary for a witness to attend from the Department of Lands to negative something unnecessary, in the ordinary course of events the expenses involved—
Everybody knows he is guilty so send him to jail and be done with it.
That is not the point, Deputy. If an open season order is there, it is there under the hand of the Minister of the day and all the defendant has to do is to hand it in. If the accused alleges he is doing something under a licence from the Minister, all he has to do is to hand in the licence. If the accused person says that the pheasant which he has in his hand was accidentally killed, all he has to do is make that case in the witness box.
There is an important principle involved. It is at the disposal of the State to prove things; they have the machinery to do so. It is not always simple for an accused person to prove that an order exists. It is throwing an unnecessary and unfair onus on the accused. Up to now we have only had to deal with exempting the State from proving a licence exists. In paragraph (b) we are going further and exempting the State from proving that one act was not consequent on another.
It is perfectly lawful for a person to drive a car along the road. If a game bird happens to run across the road and is killed by the motor vehicle it would then be necessary, if this provision was not included, for the State to negative that the killing was not lawfully and accidentally done.
If a man has done something criminal the State should prove it.
If a person is found with a pheasant in the closed season it would be virtually impossible for the State to prove that the pheasant was not accidentally killed. This Committee would be putting that onus on the State.
The Minister is putting an onus on an innocent person.
I am putting the onus on an innocent person to explain how he got the bird. If a person is found with a protected wild bird in close season—
The Minister is reversing the traditional order of justice. In other words you are making a man prove his innocence rather than having the State prove his guilt.
That is not so.
What else is it?
It is unreasonable for the Committee to want to create a situation where it is not possible to convict an accused person.
The State always has to convict; it always has to find proof.
We all know the theory of the prima facie case. If a prima facie case is established against an accused person the onus is on him to prove that the offence has not been committed.
It is a departure from tradition.
The procedure being adopted in this case is contained in many Acts of Parliament, starting with the Customs Consolidation Act, 1894.
Is it not our code that a person is innocent until proved guilty?
The Minister is saying that he would have to prove his case.
There are precedents in dozens of Acts of Parliament which were passed before the State was established and since it was established. In the Road Traffic Act and many other Acts there is precedent for what I am doing.
When a man is charged with drunken driving the onus of proof does not rest with him.
It shifts the onus of proof at a certain stage in the case.
The Minister for Health said there were several precedents in connection with the Drugs Bill. Now the Minister for Lands can point to the Drugs Bill and so on and say that it creates a precedent.
In the explanatory memorandum it is said that there is provision for avoiding the necessity for officials of the Minister to appear in court.
That is so.
Why is that necessary?
If this section was not here it would be necessary, in all cases, to call somebody from the Department of Lands to prove that the Minister had not granted a licence or permission under one of the many sections of this Bill that he is at liberty to grant licences and permissions.
Paragraph (b) is a little insidious addition to that. Up to now we were just dealing with cases where the Minister did not have to come and prove that there was no licence in existence. Now the Minister does not have to prove that something was consequent on something. It has nothing to do with licensing.
The Minister would not have to prove that a protected wild bird or animal was not accidentally killed. I put it with all sincerity to the Committee that if it were necessary for the Minister to prove that he could not prove it in court.
Certainly he could prove it. He could prove it just the same as the Minister for Justice or the Garda have to prove that a man did not knock down a bollard accidentally, or a person accidentally. You cannot bring people before the courts and tell them: "Prove you did not do it". That is not justice. That is not criminal law as we know it in this country. I want specifically to direct attention to the fact that the Minister here is going a step further than the Minister for Health wanted to go in the Misuse of Drugs Bill. The Minister for Health on the Misuse of Drugs Bill rested at the situation where he just did not have to prove or disprove that he had granted a licence. Now we are going a bit further. We are entering into a situation where a man has to prove that he did not do something accidentally. The whole process is insidious.
If a man puts up the defence that the bird or animal was killed accidentally, the onus of proof is on him. I do not think that is unreasonable.
The explanatory memorandum glosses over it very simply. The Minister is attempting here to insert a provision of a purely technical nature aimed at avoiding the necessity for officials of the Minister to attend court for the purpose of proving that an open season order made under section 24 or 25 was not in force at the time. The section says:
In any proceedings for an offence under this Act, it shall not be necessary to—
(a) negative by evidence the existence of any order under section 24 or 25 of this Act or any licence or permission under this Act,
(b) prove that any act which is the subject of the proceedings was not caused by or the result or effect of, or was not consequent upon any other thing lawfully done, . . .
The explanatory memorandum seeks to gloss over it by citing the simplest formula under which this could be invoked, whereas it actually applies to any offence.
It applies to that particular ingredient of every offence.
"In any proceedings for an offence under this Act . . .".
Or any other Act. The amendment adds: "or any other Act".
Seriously, I think it is going very far.
I do not want to be bringing in my District Court experience. However, I am satisfied both from my experience as a practitioner and as a Minister that there is nothing unnecessary in this section; that there is nothing new in this section. It is following precedent established before the State was established and of every Government in the country since the State was established.
It does not apply in the Wireless Telegraphy Acts. You and I know, Mr. Chairman, that in the matter of production of a wireless or television licence it is exactly on a par with this. The State has to prove that no licence was issued. Apart from that aspect, about which the Minister keeps talking, he refuses to talk about paragraph (b) which goes into a different area altogether.
I have explained.
Paragraph (b) has nothing to do with officials of the Minister’s Department attending.
Paragraph (b) interferes with the basic principle of the law.
Paragraph (b) clearly shifts the onus of proof to a person who, for example, says that a protected game bird or animal in his possession was accidentally killed and that it is somehow peculiarly within his possession and only within his possession.
Not at all. There could be witnesses to prove that the man deliberately went out of his way to knock down the bird or animal.
If we do have any regard for the role we are supposed to fill here, enacting legislation for the Statute Book, it is important that it is not left to attitudes or dispositions of people at a particular time. It is what is written here that will be the law. Attitudes, outlooks and approaches in ten years from now may be very different. The provision is there. It is all right to say it will not be abused, that people will be reasonable, but it is written into it. We are enacting legislation and we are not doing it in accordance with the higher principles of democracy.
Very well, Deputy. I think we have discussed this at length and you have made your point clearly.
That is not much good if the Minister will not undertake to amend the section.
The Minister is putting the simplest, nicest gloss he possibly can on paragraph (b). Even taking his own statement of the position under paragraph (b)—an unfortunate man who happens to kill a protected bird or animal on the road with his motorcar—particularly if it is a pheasant, for instance—there is an immediate presumption that he is guilty. Imagine him going into court and trying to prove that it was accidental. He would be laughed out of court.
I do not want to revert to my experience. Deputies have made their points; they have registered——
It is more than registering a protest, Mr. Chairman. We are discussing the section and certain important principles here.
I agree.
We are not just having a protest meeting or something.
If the Minister is defending the principle——
I do not want to drag this thing out. I am following precedents established by successive Governments since the foundation of the State, precedents which are reasonable.
Where is the precedent for paragraph (b)?
The precedent for paragraph (b)—I just cannot lay my hands on it——
There just is not one.
I just cannot lay my hands on it now—to "prove that any Act which is the subject of the proceedings was not caused by or the result or effect of, or was not consequent upon any other thing lawfully done . . .". The principle is involved here.
The Minister said he was following precedent. He might give us the precedent for paragraph (b).
I am following precedents established here down through the years.
I am asking the Minister for the precedent for paragraph (b).
The precedent for paragraph (b) is the Customs Consolidated Act of 1894.
I think most of that has been found to be unconstitutional.
It has not, and it has been operated. It states that where a person is found——
That is a poor precedent.
The Deputy asked me for it and then he will not allow me give it. Where a person is found with some goods which originated outside the State the onus is on him to prove that duty has been paid.
We all know that customs legislation is peculiar to customs. It is something particularly draconian and severe. The Minister has to go back to an Act long before this State was founded to find a precedent. I submit that that is not a precedent at all. Very large chunks of the Act he has been quoting have been found unconstitutional in any event.
And followed by every Government of this State since the foundation of the State.
All of us, time and again, have had occasion to pilot legislation through this House. The temptation always existed to have this type of section in virtually every Bill. Almost invariably it would be suggested. I met it in social welfare legislation but I never adopted it. It would not get through. Any sensible Government would not allow it through.
Having regard to Standing Order No. 46, could you tell me what governs the substitution of one member for another? What is the process required by the Standing Orders?
It is under Standing Order No. 70, subsection (2).
There were certain people appointed to this Committee. We met and we discussed this and decided that, as far as we were concerned, we should to the greatest extent possible, retain the original members appointed. It is an understatement to say in regard to the Government side that we have reached the point where it has nothing to do with the spirit of the legislation but rather the number game that is involved. I do not know whether you can quote me anything in Standing Orders for Select Committees that does not allow me to make this point validly. Other Deputies may come in here at any stage and listen to our deliberations, and I think that each member acting on this Committee should at least know who are the members of the Committee. I am at a loss to know that. Today I did not know whether Deputy Ryan was here in his capacity as a Member of the House or as a member of this Committee. I think we should know that and that carrying out the spirit of Standing Orders would give us that satisfaction.
My interpretation of Standing Orders is that he is correctly voting on this.
Then anybody can come in at any stage.
Deputy Timmins and Deputy Ryan were correctly here to vote.
Were you notified of this?
Yes, I was.
In writing?
No, I was notified verbally. I do not have to be notified in writing.
Could I inquire how the notification came to you?
It came to me personally.
What were you notified about Deputy Bermingham who was here earlier on?
I was notified that Deputy Bermingham would be leaving and that Deputy Ryan would be taking his place.
And you are quite satisfied you are discharging your functions as Chairman in operating in that fashion?
Yes, I have done so in respect of other——
I think Deputy Tunney is being rather pompous about this, because he may recall that precisely the same situation arose on his side and there was no demur in that regard on the Government side. I think he should not be whistling too loudly at this stage.
I did not get the basis of the charge of pomposity made by Deputy Desmond. Could I have it again, please?
With respect, this discussion cannot continue. I have ruled on the matter and I stand by my ruling.
What happens in circumstances where the six serving members on this side decide to retire en bloc and pick out from the highways and byways six other Fianna Fáil Deputies to come in and replace them? Do you think that is in accordance with our duties on this Committee?
I have actually been notified by your party, Deputy Tunney, at previous sittings of the Committee and at other committees that people were——
I am not talking about other committees. I am talking about this Committee.
Yes, but I have ruled in accordance with what I regard as the interpretation of Standing Order No. 70.
May any member, if he is unable to attend, put in a substitute?
Yes, he may. An absent member may have a substitute nominated by his party.
Is this absence from hour to hour or from minute to minute?
There is no qualification on the absence.
But your interpretation as Chairman of this Committee is that you can have a perpetual incursion and excursion of the members of this Committee every second minute?
I have interpreted the Standing Order, and that is the position.
I will accept your interpretation without having much respect for it. I can see it defeating the whole purpose of select committees, and certainly I will be recommending to my party that they would not take part in any committees of this nature. As I say, it is a number game where we do not have the benefit of contributions from people. Obviously it could not be expected from them. I would not mind an occasional occurrence. People will be absent, but if it relates now, as you say, to momentary absences, it is an extra-ordinary situation.
I would like to see the committee procedure working, but I have my doubts about it as a result of this. The Opposition party did have a technical difficulty in regard to their side of the House and we facilitated them with regard to it.
We are not aware of anything of the sort.
I am not having any further discussion on this matter. Let us deal with the Bill in front of us. Other procedures can be adopted.
I am not aware of any technical difficulties in relation to this Committee.
