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Dáil Éireann díospóireacht -
Monday, 16 Jul 1923

Vol. 4 No. 10

THE DAIL IN COMMITTEE. - PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923—THIRD STAGE RESUMED.

Motion made and question put: "That Section 6, as amended, stand part of the Bill."
Agreed.

Amendment 63 is not moved.

Section 7 and 8 agreed to.
SECTION 9.
"Every person who shall be charged before a District Justice with having in his possession or on his premises with his knowledge or conveying in any manner anything which may reasonably be suspected of being stolen or unlawfully obtained, and shall not give an account to the satisfaction of such District Justice of the manner in which he came by the same shall be guilty of an offence under this Act, and shall be liable to a punishment not exceeding twelve months' imprisonment with or without hard labour."
Amendment by

"To delete the words `given an account to the satisfaction of such District Justice of the manner in which he came by the same,' and to insert therefor the words `adduce satisfactory evidence that he had no intention to defraud.' "

The Section, as drawn, appears to me to be somewhat vaguely expressed. I may say that this is one of the few sections of the Bill with which I have sympathy, understanding as I do that it is directed against looters, and I appreciate the propriety in present circumstances of putting upon the looter, to some extent, the onus of proving his innocence instead of following the ordinary method. But the actual wording which has been adopted will leave the law very uncertain, and if it is necessary in normal times that the law should be certain, it is much more necessary when exceptional powers are being taken that those powers should be very clearly defined. The Dáil is asked to agree that every person charged before a Justice with having in his possession or on his premises property which may reasonably be suspected of having been stolen, or unlawfully obtained, should give an account to the satisfaction of the Justice of the manner in which he came by the same. A subsequent amendment proposes that the prosecutor should prove certain essentials first, before the alleged delinquent is called upon to prove anything. I have, however, been obliged to put this amendment in before the next one because it deals with wording which comes earlier in the Section than the words after which I propose to put the other amendment. To say that a District Justice must be satisfied as to how A.B. came by certain property is to say a thing which is very vague and indefinite. One District Justice might interpret "satisfaction" in one way, another in another. The District Justice, be his intentions what they may, is not given any precise direction by the law as to what his duty in the matter may be.

"The satisfaction of the District Justice." The Dáil will see at once that that is a very wide term and capable of varied interpretations. I ask the Dáil and Ministers to agree that it is not reasonable that the matter should be left in language so loose as that. The Dáil will see at once that the wording of the Section as drawn lends itself to a further objection. I do not know if it is intended that the alleged delinquent should have the power to appeal. He certainly should have, because it is desirable that the general law in these matters should be departed from as little as possible, and the stolen property will already have been reconveyed to its owner under Section 7, so that when Section 9, with which we are now dealing comes into operation, the only question will be whether or not the alleged delinquent is the guilty party.

There can, I think, be no reason why there should not be an appeal from the decision of the District Justice as in other cases. The wording adopted by the mover of the measure seems to me to go a long way to take away that appeal because the appellant is likely to be told that the Appeal Judge cannot inquire as to the "satisfaction" of the District Justice. That is a subjective matter, in the same kind of way as if a matter is left to the discretion of a court, and there can be no appeal from that discretion. I want to put in words which will make the matter of decision objective. I fancy it will be agreed that precisely the same result is obtained by saying that the alleged delinquent must adduce satisfactory evidence that he had no intention to defraud. The question on appeal, as to whether or not the evidence which he adduced proved what he wished it to prove, to entitle him to get off, is an objective question upon which a court would be entitled to pronounce. I think that will be clear to anybody who has compared the two phrases. Therefore, for those two reasons, which I need not go into at any great length, I greatly hope that the amendment will be accepted to the objectionable wording, that the alternative will be accepted—first, because the original wording leaving the matter to the satisfaction of the District Justice is clearly too vague for a punitive law, and secondly, if there be, as I submit there should be, a right of appeal, the test upon the appeal should depend on some such subjective matter as the character of the evidence adduced, rather than upon the District Justice's opinion of the evidence given.

Mr. O'HIGGINS

The wording of this Section is taken from the Dublin Police Act, and I submit if the wording is bad, the Deputy's amendment does not improve it; it does not improve it even from the point of view of the argument which he has himself adduced in support of the amendment. It is objected that the present wording leaves the matter subjective—"shall not give an account to the satisfaction of such District Justice"—and that in the Appeal Court they could not inquire into the question of whether the District Justice was satisfied or not. The use, in the amendment, of the words "satisfactory evidence," is open to the same objection. "The evidence is to be satisfactory." Satisfactory to whom? Satisfactory to the District Justice? I am not disposed to accept the amendment. The present wording is contained in an Act which has been in force for a long time, and which has been found perfectly satisfactory. It has passed the test of our own experts in drafting it, and I see no reason to change it. Even on the grounds that Deputy Duffy has himself advanced, the amendment is not an improvement on the Bill.

There is no use in my arguing a somewhat technical matter of this kind against the majority of the Dáil, and I will confine myself to pointing out that the Minister's answer does not deal with the objection. There is a real distinction between the subjective thing which is the satisfaction of a particular District Justice and the objective thing which is satisfactory evidence.

Mr. O'HIGGINS

Evidence satisfactory to whom?

Satisfactory in se. The Appeal Court will judge. Under the Dublin Police Act there is an appeal. I invite the attention of the Attorney-General to the considerable difficulties that have occurred in deciding whether or not there is an appeal in statutes passed subsequently, where the statute itself says nothing about an appeal. That particular matter runs right through the Act in the penal sections. The question as to whether or not it is intended the District Justice's decision should be final is not made clear, and if an appeal is intended I suggest it is very desirable that it should be made quite clear by express wording.

Does Deputy Duffy suggest that a District Justice is a peculiar type of magistrate who would be satisfied by something that falls short of satisfactory evidence? The distinction that he has drawn between what is satisfactory to a particular individual and the more objective thing called evidence which would be deemed to be satisfactory to every right-minded and dispassionate man is undoubtedly a valid and well-known distinction. But to apply it here, I suggest it would be necessary to show that the words "to the satisfaction of the District Justice" include, and could be permitted to include, some sort of subjective appeal, something which would influence the mind of the particular District Justice and would, of its nature, be inoperative with regard to any other hearer of the case. Those words "to the satisfaction of" occur in many statutes, and are always deemed to mean precisely what Deputy Duffy says in more explicit language. The magistrate is to be satisfied by evidence, and the evidence which is good for him would be good for any other person presiding over a tribunal. It seems to me that while, from the point of view of a metaphysician, the words of Deputy Gavan Duffy are better, yet through old-established customs and practices, as there is no ambiguity in the phrase which he seeks to amend, possession being nine-tenths of the law, the phrase ought to stand.

Amendment put and declared lost.

I beg to move:

To add at the end of the section the following words:—"Provided that, before any person charged under this section shall be required to adduce evidence on his own behalf, it shall be incumbent on the prosecutor to prove (a) that the property, the subject of the charge, is of the value of £10 at the least; (b) that there is reasonable ground for believing that property to have been taken by way of loot or plunder since the 1st day of July, 1922; and (c) that the said property is, or has at some time since the time when it is believed to have been taken, been in the possession or on the premises of the person charged."

This amendment is a further attempt to improve the section, which I say is one with which I have sympathy. Now, there are three distinct things there which I seek to have put upon the prosecutor as matter to be proved before ever he calls upon the defendant to go into the witness-box. First of all, that the property is worth £10 at least. Why? Because we do not want people to be harassed with trivial prosecutions on allegations of loot. We do not want, and I hope the Dáil does not want, to see this exceptional procedure adopted at all except in cases of a certain seriousness. I should myself have been inclined to put a higher figure than £10, but I put £10 in the hope that I might the more easily get some assent to the proposal. I think it must be generally agreed that for trivial items of loot it is not worth while to be putting into force a section of this kind. Secondly, one does not want to infringe upon the very proper and necessary principle that the onus must be on the prosecutor, except in the least possible degree, and even when you are charging an assumed looter there is a risk that the charge may be unsustainable. I want to guard against the possibility that your ordinary thief, who steals because he is starving, may be prosecuted under this section. As the sole justification for the section is the necessity of dealing with loot by special means, I ask that the prosecutor should be compelled to prove that there is, in fact, reasonable ground for believing that the property in question had been looted since the civil war began. Lastly, it is also right that the prosecution should prove affirmatively that the man whom they charged with loot has in fact at some time since the property disappeared been in possession of it or had it on his premises. If those three items are conceded, I speak for myself in saying that I am quite in sympathy with the proposals that the looter properly so-called shall be made to discharge the onus which then properly will lie upon him. If those concessions are not made, then I think the section is objectionable, because it is too liable to be used against persons who are not looters properly so-called, and it does not put upon the prosecutor the onus which I think ought to be undoubtedly his in the first instance.

Mr. O'HIGGINS

It is not proposed to accept the amendment. The Deputy says that if the amendment were accepted he would be in complete sympathy with the section. But in fact the amendment conflicts rather radically with the whole tenour and purpose of the section by shifting the onus of proof quite definitely to the prosecutor, whereas the object of the section is, where there is suspicion that a particular piece of property is not properly in the possession of the person, that such person should be asked to state in what manner he came by it, and he should be asked to give a satisfactory account of his possession of that article of property to the District Justice. It is, as I say, only an extension to the country of something that has been for a long time contained in the Dublin Police Acts. The Deputy's amendment demands that there should be a limit to the value—that below a minimum of £10 there should be no action taken under this section. I do not know what the Deputy's standards are, but it seems to me that £9 worth of loot is not exactly a trivial matter even in those days when loot has been carried on in the grand manner, and I see no sufficient reason for accepting a value limit at all, whether £10 or £9 or £8 or £5. It is a time when there has been a good deal of indiscriminate looting. An article worth £2 or £3 taken from a poor man's house is not a trifling matter, and it certainly is not so trifling that the State ought not to take the fullest measures and the strongest steps to trace it, and, if possible, to restore it. Now, the next thing asked in the amendment is that the prosecution should show that there is a reasonable ground for thinking that that property has been taken by loot, plundered since July, 1922. In that portion of the amendment there are two grounds asked—reasonable grounds for satisfying that the property was taken by loot, and a time limit back to the 1st of July last year. We would not accept that portion of the amendment, because reasonable ground for belief falls little short of proof. If the prosecution has to show in Court that there are reasonable grounds for belief, and if it is able to show it, then there is little reason why proceedings should not be taken under the existing code— under the Larceny Acts.

My point was reasonable grounds for belief that the property in question was looted, not by the particular person accused, but that in fact it was looted property.

Mr. O'HIGGINS

The Deputy should visualise the situation in the country that we are attempting to cope with. In certain counties a great many residences were burned. Somehow it became known before they were burned that the burning was about to take place, and they were broken into and indiscriminately looted. This section is meant to cover the case where a man is found to be in possession of property out of all proportion to his means and to his circumstances of life, and it asks that in a case of that kind that it should be possible to demand that he give a reasonable account of how he came by such property. I gave instances here in the Dáil of people whose houses were visited, people in a humble way of life—cottiers —and costly candlesticks, trousers presses, gilt mirrors and articles of that kind were found in the houses. We should have power in a case of extreme suspicion to ask how that property came into the possession of the holder. That is what that section does. I do not feel that the limitations which the Deputy asks for in his amendment are proper or ought to be inserted, least of all the one dated back to July, 1922. If there is to be a time limit it ought not to be July, 1922. In fact, there was probably more loot in the first six months of last year, before we came to the decision to grapple with the situation, than since July, 1922. Whole areas in the country were effectively in the occupation of the Irregulars. They were supreme there. Their will, supported by their guns, was unchallenged, and areas like Tipperary and certain areas in Connaught suffered very severely during that period, and there was a great deal of property stolen. There can be no question of placing the time limit back to the 1st July last year, and I see no sufficient reason for accepting a time limit at all. It would be impossible, if one came across a case of a man in very humble circumstances in possession of a particularly elaborate piece of property—perhaps a piano or, as I say, one of these gilt mirrors—even approximately to place the date at which that was looted or stolen, while there would be, of course, a reasonable suspicion that it had been looted. It is setting too big a task to a prosecution to say that they must advance reasonable grounds for saying that it was stolen since the 1st July last. I am afraid I do not quite catch the drift of (c) in the amendment, because action of this kind would be taken only against a person in whose possession property was actually found. I think I would ask the Deputy to give me some further enlightenment on the effect of (c), and in what way it supplements the section I am moving.

My impression is, "having in his possession looted property" might refer to any period of time. I may be wrong. If that is so, it should be incumbent on the prosecution, in the first instance, to shift the onus that is on them by proving the fact that the stolen property has been in the possession of the man accused.

Mr. O'HIGGINS

"Every person who shall be charged before a District Justice with having in his possession or on his premises with his knowledge, or conveying in any manner any article suspected of being stolen or unlawfully obtained." I think that is sufficiently clear. The prosecution would be taken only against a person who would be charged either with having in his possession or on his premises an article supposed to have been stolen, or with conveying such article to some other person. I do not think that (c) strengthens or improves the section.

If the Minister's interpretation of the section is right, I submit that a man can only be charged with conveying if he is conveying at the time of arrest. That is not what it means. If he conveyed a week or a month or two ago, surely the section would hit him, and if that be so, why give a different parsing to the words "having in his possession"?

Amendment put and declared lost.

I propose Amendment 66, which is as follows:—

To add a sub-section as follows:—"Evidence given by a person charged under this section shall not be capable of being used against him in any other criminal proceedings."

I propose this amendment for the purpose of having it placed on record. It is useless to propose an amendment of this kind for any other purpose in view of the attitude taken by the Minister or by his official advisers.

Mr. O'HIGGINS

I am advised that this amendment ought not to be accepted; that there is no reason why a statement made by a person who is asked to account for the possession of property under suspicious circumstances should not be used in subsequent legal proceedings or prosecution that may be taken against him. I am informed that there is not sufficient reason for the insertion of any such provision, and the Attorney-General, who is responsible for criminal prosecutions, advises against acceptance.

It does seem a little hard that a prisoner who in the ordinary course would not be called on to open his month until the case has been proved against him, should now, under this new form of putting the onus of proving his own innocence on him, be obliged or compelled to go into the witness-box to clear himself of a charge before a prima facie case has been made against him, and should be liable, as the result of the cross-examination to which he is submitted, to be prosecuted upon some other charge upon evidence which he has been compelled to give, and which in ordinary circumstances he would not be compelled to give, or even permitted to give, because, according to the law as it stands at present, the prisoner can neither give evidence on his own behalf nor be summoned to give evidence against himself. He is entitled to stay there and to say to the prosecutor, “Prove your case.” He cannot be made to go into the box and be submitted to cross-examination except under this new method of putting on him the onus of proving his innocence, and, in endeavouring to prove his innocence of the particular charge against him he lays himself, under cross-examination, open to some other charge upon which he can be indicted on his own evidence. That seems to me to be going very much too far. He is not only compelled to prove his innocence under this Bill, but his very endeavour to do so may result in a prosecution against him on some other charge. I wonder would the Minister, between this and the next stage, reconsider his attitude in regard to this amendment.

Mr. O'HIGGINS

I wonder if I might put a hypothetical case to the Deputy. A person is found in possession of a piano. He is asked to account to the District Justice for the manner in which he came by the article, and he gives a certain account. He says, perhaps, that he received that from some relative, and that is accepted, and that particular prosecution is passed. In the course of time the fact becomes clear that the piano was not presented in that way by a relative. Is the suggestion that no subsequent proceedings could be taken in which could be used a false statement, or a statement which, in course of time, is proved to be false, and which was made by a person in whose possession the property is found?

The statement is that no statements made by a person who is compelled to go into the box can fairly be used against him in any proceedings afterwards.

Mr. O'HIGGINS

That proves my point that a person would be free to make statements in the proceedings provided for by the section which could not be called in question subsequently or used in any way in subsequent proceedings, even though those statements are found to be false.

With the greatest respect to the Minister, I say he could be indicated for perjury. The man could not again be charged for the same offence even under the law as it stands in this Bill.

The instance I give is rather in the direction of what I had in mind—namely, that the prisoner is charged with having stolen property in his possession, and he proves to the satisfaction of the Court, and truly proves, that it was given to or purchased by him at some date at some particular place. It is then discovered that he was in that place on that date, and then he can be indicted for some other crime, and the evidence which he has given can be used against him to prove that he was in that place for the purpose of the other crime, and to prevent him from giving evidence of an alibi or something of that sort, and saving themselves the trouble of proving that he was there. It is the use of that kind of evidence in that way that seems to me unjust, because you get the foundation, not of a new crime but the destruction of the defence against the new crime by the evidence given by him to clear himself.

What weighs with the Deputies obviously is the tradition of British law, the administration of law. It does seem rather hard that a man should be forced to give evidence where under ordinary circumstances he would have been left at liberty to hold his tongue and force the prosecutors to make the case against him. On the other hand, this is emergency legislation, meant to deal with abnormal cases under abnormal conditions, and the tradition to which the Deputies rightly appeal was a tradition in favour of justice and fair dealing, but it was justice tempered with humanitarianism. The question now is whether we should apply the flavouring of humanity in that particular case, or give the strictest of strict justice to the type of malefactor against whom this Bill is aimed.

Only common justice.

Only common justice?

Not the strictest of strict justice. I consider natural justice and the strictest of strict justice to be identical.

They provide a contrast.

Perhaps Deputy Gavan Duffy will make his case, and then I shall finish. My difficulty is, the Deputy accuses me of contradicting myself in effect, and without his assistance I cannot see that. I say when in ordinary administration an accused person taking up the position of a witness is not obliged to commit himself, I say when you apply that doctrine, which is a reasonable humane doctrine, to the type of case for which this legislation is meant, you are qualifying it with an element of humanitarianism. Does Deputy Gavan Duffy dispute that? I hold in those special circumstances that that element of qualification should be omitted. I think, however, the two Deputies have in their own minds a case they have not stated. I can conceive two different positions here. "A" volunteers to give evidence. He is a prisoner; the ordinary operation of the law of evidence would not be used against him in a further case. Now we pass to the emergency legislation, and we will assume this is an Act, and that a man is being charged before a Court or District Justice with having in his possession or on his premises, with his knowledge, something reasonably suspect of being stolen or being unlawfully obtained. He is called upon to give a satisfactory account of how he came to be in possession of this. Suppose he is found guilty, that is one case. Suppose he proves his innocence, that is another case. Supposing, in proving his innocence of having stolen something, he allows something to transpire which is capable of being employed against him as evidence later. Deputy FitzGibbon considers that that is objectionable. Suppose, however, the evidence he brought forward did not clear him of the charge under Section 9, and that notwithstanding the evidence he gives he is found guilty of being in possession of loot. Now, I would like the Deputy to address himself to this question. Is the evidence not fairly to be used against him on a further charge of further guilt? Why are we to have such soft hearts for criminals in this particular conjuncture? I have some sympathy with a man who, when he is charged with the offence of being in the possession of loot, not only having loot in his house, clears himself of that charge and escapes imprisonment for twelve months, with or without hard labour, by evidence he adduces in his own favour.

If that evidence would have the effect of involving him in further punishment, having escaped by virtue of the present punishment, I could have some sympathy with him. But suppose, as I have already put it, that, notwithstanding the evidence he has adduced, and, I assume it to be true, he is found guilty of this charge, I see no reason why, because he is found guilty of this charge, he should not be found guilty of other charges. In other words, I think if a man is found to be possessed of loot, and renders himself liable under this emergency legislation to this punishment, he ipso facto divests himself of any sympathy or to any application in that special sense of mercy that I have used on the part of the District Justice.

I did not intend to say anything in favour of my own amendment, because I feel it is utterly useless to argue any of these matters in this Bill. Surely it is plain to anybody who considers the matter that it is not fair or ordinary justice to compel a man to go into the witness-box, on pain of being sent to prison, because he is suspected of having a piano or a chicken, and when you have got him there to prove himself completely innocent of the charge, counsel for the prosecution cross-examines him, and in the course of cross-examination discovers he is guilty of aiding or abetting, assisting, or in any way encouraging the commission of one of the numerous offences set out in this Schedule, then you prosecute him with a view to flogging him or with a view to sending him to prison under Schedule 1, or under any one of the other sections of the Bill. You put him in the position that he himself must go into the witness-box and expose himself to your cross-examination, and having extracted from him proof of his own innocence upon a charge, you will be entitled, according to this law, if it becomes a law, to say, "Now that we have it out of your own mouth that you did something else, we will rely upon your ipsissima verba to prove you guilty of the charge.” What is his answer? He has got none. If the Minister thinks that fair, then he should have the same clause in every one of the previous sections dealing with arson, or else say, in connection with every offence, that each person shall be presumed to be guilty until he proves himself innocent. If that is the law, let it be stated openly. I cannot see any reason why you should not have an identical provision, or sub-section, in every clause of the Bill imposing a penalty. If it be right to make a man go into the witness-box where he will be subject to cross-examination just because he is suspected of having looted property, and then to use what he says in the witness-box, where he is under compulsion, against him on any conceivable charge, just because it is called loot, then it is equally right to make him go into the witness-box first before you prove anything at all against him on any other charge whatsoever. If I am wrong, I should be very much interested to know where the subtle distinction lies between what is right in one case and not in the other.

Mr. O'HIGGINS

The Deputy who has just sat down seems to have a natural sympathy with artful dodgers. He also seems to have the idea that people charged with certain offences set out in the Schedule to this Bill ought to be given the greatest possible latitude for evading the law, and that if in the course of proving ownership of a particular article of furniture the person reveals the fact that he is guilty of any or all of these offences, there should be no prosecution upon such evidence. We cannot accept that. The Deputy said Deputy Magennis was contradicting himself. There seems to be an epidemic of this sort. The Deputy's amendment is to the effect that no statements made by a person under this section shall be used against him in any subsequent criminal prosecution, but in the next breath he says he may be prosecuted for perjury. There seems to be some conflict there.

Yes; in your section.

Mr. O'HIGGINS

No, in your amendment. If the amendment is accepted it would not be open to prosecute for perjury in respect of persons under the section.

Then I take it we are to accept this rather startling proposition—I merely asked that it be noted for record—that the Ministerial view is that any man charged upon suspicion is a man who ought to be presumed guilty until he proves his innocence. Any man charged on suspicion under this section will be presumed to be guilty until he proves his innocence; ergo any man charged upon suspicion of an offence, under another section, should likewise be presumed to be guilty until he proves his innocence. I challenge the Minister to put that plainly into the Bill at its next stage.

I am sure Deputy Gavan Duffy would glory in the result if the Ministry were to write themselves down as hopeless imbeciles. That is the usual trick of the nisi prius performer. Why is the doctrine of Section 9 to be made law universally? This section deals with the commission of one particular form of crime which has become very prevalent in the country of late. One man loots a house and takes possession of the loot before another man burns it. “A B” is charged with being in possession of property reasonably suspected of being looted, we know very well what these words connote. We know very well what the people living in the district mean by an expression of this sort: “That is my piano, that is my mirror, or that is my armchair, and I recognise it.” How are you, in the special circumstances which prevail in the district where looting was prevalent recently, and arson following on the looting which preceded it—how are you to prove by witnesses who will not come forward, as they used to in the ordinary course, these things in view of the fact that we have recently the evidence of Captain McGarry that he could establish certain things only that the witnesses dare not, for fear of their lives, come into Court to give evidence? When these are the regnant circumstances of the times, how are the ends of justice to be met? Let a man who has property deemed to be loot in his possession show either of two things— that it is not in his possession as loot, or that it came into his possession in some way that left him innocent, in view of this emergency legislation.

I rise to a point of order. We have already dealt in two previous amendments with the matter to which the Deputy is now addressing himself. I submit, with all respect, that the matter that was before the Dáil, and is still before it, is whether or not a prosecutor is entitled to use, on a subsequent trial, evidence given by a prisoner in a previous trial under this sub-section, and not the question whether the machinery provided by the section is correct.

The point under discussion is Deputy Gavan Duffy's amendment, and the egregious thing which he alleges, by way of argument, in support of it. I submit that that is the subject which is under discussion—Deputy Gavan Duffy's proposed amendment in the interests of humanity, justice, fair play, and all the fine things for which there would be applause outside. I am entitled to show that the purpose of this Bill, and particularly of this section, would be defeated by an amendment of this type if it were made operative. When the onus is put upon the man charged to show that he does not come under this section, in his effort to clear himself he may make it obvious that he is guilty of some other offence. According to Deputy Gavan Duffy, the law is to be applied to him as it used to be in the case of a dog. The dog was allowed one bite, and somehow this man is to be allowed one offence. The State would never have found out that he was a guilty man only that he happened to find it necessary, in his own behalf, to inform them of the fact, and because in his own interest, in his own defence, he informs the State of the fact that he is guilty of such and such an offence, the State is now asked to say to him, "Because you have so informed us, you may go free." We hear a lot about childishness and puerilities, but surely that argument is to expect us to declare, in favour of this Bill, that it is something of emergency legislation called for by a particularly objectionable state of affairs regnant in the country, and then to turn around and make it ordinary procedure of ordinary normal, quiet, law-abiding times.

Deputy Gavan Duffy's attitude may be explained by the fact that he does not wish to see "a rift in the lute."

Amendment put and negatived.

Motion made and question put: "That Section 10 stand part of the Bill."

Agreed.

SECTION 10.

Amendment 67 not moved.
Motion made and question put: "That Section 10 stand part of the Bill."
Agreed.
SECTION 11.
(1) If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any bank or similar institution is, or represents, or is directly or indirectly deprived from.
(a) any stolen property or funds, or
(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
the District Justice shall, notwithstanding that no notice of such application has been given to the person in whose name such sum of money is standing in the books aforesaid or to any other person, order that such sum of money shall be transferred to the Minister for Finance.
(2) An order of a District Justice under this section shall operate to vest in the Minister for Finance as from the time of the service of a copy of the order on the bank or institution in whose books the sum of money aforesaid is standing, all money which at the time of such service is standing in such books to the credit of the person aforesaid.
(3) Whenever any sum of money becomes vested in the Minister for Finance by virtue of an order under this section, the Minister for Finance shall give public notice by advertisement or otherwise of such vesting, and unless within a time to be limited by such notice (not being less than one month) or such extended time as the Minister for Finance shall allow, some person proves to the satisfaction of the Minister for Finance that such sum of money belongs to him, and is not and does not represent and is not directly or indirectly derived from
(a) any stolen property or funds, or
(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
such sum of money shall be forfeited to the Minister for Finance.
(4) All money forfeited to the Minister for Finance under this section shall, after payment thereout of the costs and expenses incurred in the recovery thereof, be applied by the Minister for Finance in recouping the person from whom such money was directly or indirectly stolen or the fund to which such money directly or indirectly belongs.

I beg to move the following amendment:—To delete the section, and to substitute therefor the following section:—

(1) If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any bank or similar institution is, or represents, or is directly or indirectly derived from

(a) any stolen property or funds; or

(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department, the District Justice shall by order prohibit any transfer of or other dealing with such sum of money or any part thereof.

(2) Whenever an order is made by a District Justice under this section prohibiting the dealing with any sum of money, the Minister for Finance shall give public notice by advertisement or otherwise of such prohibition, and unless within a time to be limited by such notice (not being less than one month) or such extended time as the Minister for Finance shall allow, some person proves to the satisfaction of the Minister for Finance that such sum of money belongs to him and is not and does not represent and is not directly or indirectly derived from

(a) any stolen property or funds; or

(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department, the Minister for Finance shall certify in writing that such sum of money is forfeited to the Minister for Finance.

(3) If within such time or extended time as is mentioned in the foregoing sub-section any person proves to the satisfaction of the Minister for Finance the matters mentioned in the foregoing sub-section, the Minister for Finance shall certify in writing that the order made by the District Justice under this section in respect of such sum of money may be discharged, and upon production of such certificate to a District Justice such District Justice shall discharge such order.

(4) A certificate given by the Minister for Finance under this section certifying the forfeiture of any sum of money shall operate to vest in the Minister for Finance, as from the time of the production of such certificate to the bank or institution in whose books the sum of money aforesaid is standing, the whole of such sum of money.

(5) All money forfeited to the Minister for Finance under this section shall, after payment thereout of the costs and expenses incurred in the recovery thereof, be applied by the Minister for Finance in recouping the person from whom such money was directly or indirectly stolen or the fund to which such money directly or indirectly belongs.

The effect of the amendment is that money can only be forfeited on the certicate of the Minister for Finance. In the clause it is provided that, on the certificate or order of the District Justice, the money shall be transferred to the Minister for Finance. The effect of the amendment is that the order of the District Justice will only have the effect of holding up the money, so that it could not be finally forfeited without the certificate of the Minister for Finance.

I have put down some amendments to the Clause as it originally stood, and they will substantially fit in with the newly-drafted Clause. The object of them is to get the District Justice out of the matter altogether, and for this reason. The great charge always brought forward against Judges of all ranks, and particularly against those of the lower ranks in the Judicial hierarchy, in the past was that they were the tools, and very often the willing tools, of the Executive of the day. You have set up a system of District Justices which I have heard from various parts of the country is working very well, because it has the confidence of the people. I fear that if this section were passed in the form in which it is drawn you would bring upon these very Justices, who are now doing well, the very charge that used to be brought against their predecessors, that in certain cases they are nothing but the tools of the Executive. I am quite certain that when the farmers of this Bill put in the beginning of this section that it should be the duty of the Executive Minister to satisfy the District Justice that there was reasonable ground for suspecting that money standing to the credit of any person in a bank represented directly or indirectly money derived from stolen property, their object was to interpose, between the Executive and the subject, the action of a "Judicial Officer." That, I think, was a very high-minded and proper attitude for them to take up, but I am asking them to delete the "Judicial Officer," because on reflection I think they will see themselves that he performs no Judicial office at all; he merely registers the will of a particular Executive Minister, and for this reason he has no right to hear the other side. He has no right to cross-examine the Executive Minister who makes the case before him, and therefore he will, in fact, merely register the will of the Executive Minister. The Executive Minister will come before him with a statutory declaration, affidavit or report, or whatever the proper procedure may be, and the District Justice will read it, and it will be his duty then to make the order asked for by the Minister. There is no appeal to the District Justice. If that order is accurate, if anyone wants to challenge it, it is to the Minister they must go. They do not come back to the "Judicial Officer." The Minister merely appears before him and goes through what, in the ordinary Police Courts, would be the swearing of an information, and the order is made accordingly and is issued at once. If District Justices are compelled to do that they will be held up through the country as merely the tools of the Executive, and I ask the Minister not to put that upon them. The amendment that I put forward does not embarrass the Minister at all; it merely enables the Executive Minister to make an order himself without going through the form of applying to the District Justices. It is the merest form in the circumstances, and therefore the amendment that I move is to leave out the words "satisfy a District Justice," and simply say that if and whenever an Executive Minister shall be satisfied that there is reasonable ground for suspecting that the money is stolen money, he may make an order himself, and then, when he has made the order, there shall be the usual advertisements as to appeal, and the appeal shall come before the Minister for Finance as the section as it stands provides.

All that I want to do is to try and get your new Judges out of the unfortunate position of being merely the registering officers of the will of the Executive Minister. I do not want to interfere in any way with the powers of the Executive to confiscate stolen money any way they please, but I do beseech them to keep the judicial administration out of what is really Executive action. If the Judge really had any duty to perform I would welcome it, but it is because he must act ex parte—upon the statement of one side only—that I think the Minister who calls upon him to make the order ought to be empowered to make the order himself without going through the form of getting the District Justices to countersign it. When I saw the newly-drafted section I handed in amendments, applying my amendments, 69 and 70, to the section as newly drafted.

Mr. O'HIGGINS

Deputy FitzGibbon's suggestions with regard to this section have been very carefully considered, and I am advised that it would be undesirable to delete the reference to the District Justice in the first portion of Deputy Duggan's amendment. There is a judicial function involved; there is a discretion which ought to rest with someone other than the Executive Minister of granting or withholding an injunction. The reference further down to the District Justice we will be prepared to reconsider, and we would be prepared to agree with the Deputy and to meet him on the point that the Executive act of forfeiture ought to be the act of the Minister. But I submit that in the first section the procedure involved is very much the same as the granting of an injunction by a Court on prima facie evidence.

"(1) If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any bank or similar institution is, or represents, or is directly or indirectly derived from

(a) any stolen property or funds; or

(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department, the District Justice shall by order prohibit any transfer of or other dealing with such sum of money or any part thereof.”

The Deputy, I think, indicates the view that is very much the same as the granting of an injunction on an ex parte representation. My advisers are of opinion that there is a proper function there in the first portion of the amendment for a District Justice to discharge. We are prepared to reconsider that portion of the amendment which places the actual forfeiture on the District Justice rather than on the Minister.

The forfeiture is not in the District Justice in the new section. In the old section it was. In the new section it is in the Minister for Finance. My reason for saying that this differs from the granting of an injunction on prima facie evidence is this: An application is made to a Judge on prima facie evidence for an injunction, which he grants ex parte to the next day or until notice can be served upon the other side to come in and discharge it. But he discharges it. It is merely granted to preserve property for the moment, until the other side can be brought in, when he hears and discharges his own order. An ex parte injunction is in all urgent cases invariably granted, without any hesitation, because it is only granted until the following day, or perhaps for 48 hours, until the other side has time to be brought in. Once the District Justice has made the order he is functus officio. No one ever comes near him again. His order lasts till the end of time, not until an opportunity has been given to the other side to be heard, and he must make the order upon the declaration by the Minister, because he is bound to accept the declaration of the Minister. No District Justice who had a statutory declaration before him by a Minister that he had reasonable grounds for believing such property was stolen could for a moment refuse such an order. It is for that reason I suggest that he is not in the same position as the Judge who grants an ex parte injunction, which he may discharge himself the next day. He is in substance the mere formal tool of the Minister who applied to him to make the order.

Mr. O'HIGGINS

I think the Deputy is, perhaps, overstating the case when he says if an official of the Ministry of Finance were to make representations to the District Justice to the effect that there was reasonable ground for suspecting that a particular sum of money represented stolen property, that the District Justice would have no alternative but to grant the order. The amended section reads:—

"If and whenever an Executive Minister"—which, in fact, means an official of his Department—"shall satisfy a District Justice that there is reasonable grounds for suspecting," etc.

I have too high an opinion of the District Justices to believe that if they were not satisfied that there was a reasonable suspicion that they would still grant the order that was sought by the Ministry.

I do not think they would. I have the same opinion of them.

Mr. O'HIGGINS

There is therefore something to show to the District Justice.

If I might interrupt, I would say that I have too high an opinion of Executive Ministers to think that they would send forward a case to the District Justice without good grounds

Mr. O'HIGGINS

Nicely said, sir. The Deputy's contention is that there is no judicial function in fact—that if such a representation is made, the District Justice is the merest automation. I think it right to have a check, and that a person in a judicial office must at least be satisfied that there is reasonable ground for suspicion in regard to those funds before an injunction is granted closing down on them or transferring them temporarily to the Minister for Finance. It may be said that it is not a very substantial check, and that the tendency would be for the District Justices to accept, with the minimum of critical examination, the grounds put forward by the Finance Ministry or any other Ministry. But it is a judicial function. To completely eliminate the District Justice and state that a Minister or Ministry could close down on any property or any funds on suspicion would be rather an extreme course to take. There should at least be an examination of prima facie evidence by some judicial person and some person who can approach the matter with a detached view. The District Justice is the best person we could find for that purpose. If I might add, the word “shall” in Sub-section (1), Section 11, while it seems mandatory, is of course qualified by “if and whenever an Executive Minister shall satisfy a District Justice.”

Amendment put and agreed to.
Motion made and question put: "That the new section stand part of the Bill."
Agreed.

Amendments 69 and 70 were to the section which has been deleted, and they, of course, fall.

Amendments 69, 70 and 71 not moved.
SECTION 12.
Amendments 72 and 73 not moved.
Motion made and question put: "That Section 12 stand part of the Bill."
Agreed.
SECTION 13.
Amendment 74 not moved.
Motion made and question put: "That Section 13 stand part of the Bill."
Agreed.
SECTION 14.
Motion made and question put: "That Section 14 stand part of the Bill."
Agreed.
SECTION 15.
Amendment 75 not moved.
Motion made and question put: "That Section 15 stand part of the Bill."
Agreed.
SECTION 16.
Amendments 76, 77 and 78 not moved.
Motion made and question put: "That Section 16 stand part of the Bill."
Agreed.
SECTION 17.
(1) This Act may be cited as the Public Safety (Emergency Powers) Act, 1923.
(2) This Act shall continue in force for six months after the passing thereof, and shall then expire.
Amendment 79 not moved.

I move Amendment 80, which is designed to ensure that this Bill shall be submitted to a referendum before it becomes operative. The amendment reads:—

In Sub-section (2) to insert after the word "Act," line 26, the words "shall be submitted by referendum to the decision of the people and shall require the assent of a majority of the votes recorded on such referendum before it shall become operative; it."

The motive for the amendment is this. In this Bill the Executive Council is proposing drastically to amend the Constitution not in favour of liberty, but against it. I hold that no Executive Council, however powerful in this Dáil, has any moral right to uproot the Constitution passed last November unless they are certain and can prove beyond yea or nay that in so doing they have the assent of the Irish people. It may be that a majority of the electors would vote in favour of this Bill. I emphatically believe that a majority would vote very decisively against it. But if the Ministry believe, as they profess to believe, and as they claim, that they are carrying out the will of the people, of which we have heard so much, they must be the very first to welcome an amendment which will give them a magnificent opportunity of showing that the people are solid behind them. I apprehend that the people who supported the Ministry throughout the more difficult times will be found, when they are consulted, to declare that they emphatically dissent from this Bill as being the wrong remedy for the present state of affairs, and as being designed not to bring about peace, but to bring about further turmoil. If I am wrong the Ministry can prove it very easily by accepting the amendment.

Let the Dáil consider how, in fact, it is proposed radically to alter the Constitution passed here. Can it be said radical alterations should be passed without the assent of the people? No one can suggest that this Dáil was elected to amend a Constitution which did not exist when the Dáil was elected. It is proposed to do away with habeas corpus in the case of these prisoners. It is proposed to do away with the Article in the Constitution which declares that judicial power shall be exercised and justice administered in the public Courts, and to substitute the back chamber of a Minister, in which he receives reports from his agents, for the public Courts of this country. It is proposed to overrule the emphatic Article of the Constitution which declares that extraordinary Courts shall not be established. It is proposed to do away with that first principle of criminal law whereby the onus is always laid upon the prosecution in the first instance. It may be that the people of Ireland are so disgusted with the proceedings of the last twelve months that they will tell the Ministry that they are right. It may be, but they are entitled to be consulted and to be asked their opinion before you commit them to so drastic an amendment of the Constitution and so emphatic an annulment of many parts of the Constitution as this Bill provides. None of us was elected to this Dáil to pass the present measure; none of us was elected radically to change the Constitution. Ministers are quite entitled to say that the only way in which they can find it possible to deal with the present situation is to pass such a Bill as this. They are entitled to say that if that is their conviction, but they are aware that there are other ways in which the matter might be approached. They are aware that the people are not unanimously behind them on this measure, and I put it to them that it is their duty to make certain whether or not the people approve of the measure before forcing it into law with a majority not elected for any such purpose. It is one special way of dealing with the present difficulties—some of us think an exceedingly bad way. Why should it be forced upon the country before the country has an opportunity of saying whether it is or not a method which it desires to see adopted? I may be told that there is urgency; let us consider that. Is there urgency? The Courts of this country have so far humiliated the law and the respect in which law should be held as to intimate that there will be a state of war in the technical sense in this country so long as the arms are not surrendered. That, I think, is a fair paraphrase of the judgments that have been given. Very well. If that be the case a month or two months hence I presume it is probable that the Courts will still be refusing habeas corpus, and if a referendum took a month or six weeks the Ministry would not be greatly damnified by the delay. They would be in exactly the same legal position at the end of that time as they are now. I do not think that urgency can be pleaded. So long as Courts are going to justify the Executive in their present action on the ground of a state of war, urgency is not an answer to a demand for a referendum before you change the Constitution radically in those things which most closely affect the liberty of the subject. I suppose I shall be told, as I was told by a Deputy just now, that an amendment of this kind is electioneering. No doubt. If the Ministry are right in assuring us from every platform up and down the country that they, and they alone, represent the will of the people, the very best electioneering for them is to prove it by getting a magnificent majority on a referendum in favour of this Bill. They know, and every Deputy knows, the horror which this Bill has excited. Everybody knows it.

I do not know it.

Except the Deputy on my right.

I have not heard about it either.

Those who do not know it will discover it at the forthcoming General Election. People are perfectly entitled to their views, however insane, on the best way of dealing with the present situation. But if your views require that you should uproot the Constitution passed by yourselves a few months ago in the middle of a civil war— passed at a time when everything that has happened could have been foreseen—if your views require such amendments as that to the Constitution, I submit that it is the clear duty of the Ministry and of the Ministerial majority to see to it that before such amendments are placed upon the Statute Book to disgrace our Constitution, that the people should have the right to say yea or nay to the question: Is this the way in which you wish this problem to be dealt with?

Mr. O'HIGGINS

The Deputy is always on the side of the angels; always a defender of high constitutional principles.

That is more than I can say for the Minister.

Mr. O'HIGGINS

Champion of liberty of the individual. No doubt he feels the blood of the signers of the Bill of Rights boiling in his veins. We have a certain responsibility to the people, and we have put a clear, plain interpretation on that for the last year. In a couple of months' time we will go to the people and ask whether we have discharged our trust in the manner in which they wished us to discharge it, and the people will decide. We are not greatly troubled about that prospect. We have not begun to lose any sleep about it. If the people decide to give a mandate to others than those who have held it for the last ten or twelve months, it will be simply one more proof of their sovereignty which has been vindicated—which was challenged, and which has been vindicated. Now, as to the Bill. I am not aware that there is any clamour or anxiety in the country for the release of 12,000 or 13,000 men in view of the fact that arms and explosives are secreted throughout the country. I think the people understand that to hold any of the prisoners it is necessary to get powers to hold all, and to use judgment and discretion and caution in the matter of any releases. Neither have I found throughout the country that there is any protest against the proposal to use against the crimes of arson and robbery with violence the most effective means, to use a familiar phrase. The people have a right not to be robbed; they have a right not to have their houses burned; and they have a right to demand that their Executive Government will take all possible steps to stamp out these two crimes, which menace all society, all stability and all prosperity. I have found through the country— and I have been through the country more than the Deputy—no feeling against this Bill, and no feeling against that particular Section of the Bill which Deputies here profess to make most cry about. If imprisonment is, as we believe, inadequate to check robbery with violence and arson, then the people demand that we will use whatever methods will check those crimes. Robbery under arms and arson, these may be said to be the main features of the Bill. There is another feature, the methods by which it is proposed to meet agrarian anarchy. Now, I have found a very thorough appreciation through the country of the fact that agrarian anarchy cannot be met by prosecutions before a summary court for trespass; cannot be met by the law which was intended to meet mere cases of accidental or casual trespass. People realise that this particular form of anarchy requires very drastic treatment to check it and that you have to treat the cause. The cause is, and has been, agreed, and you will only meet and beat that particular offence by setting off against the greed, against the desire for illicit gain, the rather certain prospect of loss if that line is adopted, that is the line of driving one's cattle into a neighbour's land and removing your neighbour's landmark. These are the main features of the Bill: the intention to hold those of the prisoners whom it is thought unsafe in the public interest to release; the intention to apply very special and very stringent penalties to robbery with arms and violence, and arson: and the intention to meet agrarian anarchy; the confiscation of one's neighbour's land, by confiscation of the trespassing stock that are driven in, in direct challenge to all that law, and to all those principles upon which civilised society rests.

resumed the Chair at this stage.

Mr. O'HIGGINS

We make no apologies to the Deputy for this Bill or to any Deputy and we made no apologies through the country. On the contrary we would feel that we should be apologetic through the country, to the people, if we had shirked or shrunk from taking all the steps which in our minds and in our own consciences we believe to be necessary to deal with the situation with which we have been confronted, and with which we are still confronted. There is no intention of accepting the Deputy's amendment, to submit this Bill to a Referendum. In a few months' time the people will decide on this and on other matters that have occurred within the last 12 months, and we are not afraid of that decision, and we are not worried about it. We will simply go honestly and in a responsible spirit before the people and state what the situation was and ask them to decide. As I say, if they decide against us and give a mandate to others than those who have been conducting their political affairs for the last 12 months, it will simply be another proof of their sovereignty and we will not go out with arms or with petrol cans or land mines to challenge the people's will.

Amendment put and declared lost.
Amendment 81 not moved.
Motion made and question put: "That Section 17 stand part of the Bill."
Agreed.
SCHEDULE.
PART I.
1. An armed revolt against the Government of Saorstát Eireann.
2. Threatening, coercing, assaulting or attempting to threaten, coerce or assault any person in furtherance of any such revolt.
3. Destroying, damaging or removing or attempting to destroy, damage or remove any property in furtherance of any such revolt.
PART II.
1. Having possession without lawful authority of
(a) any lethal firearm or other weapon of any description from which any shot, bullet or other missile can be discharged; or
(b) any ammunition for any such firearm or weapon; or
(c) any grenade, bomb or other similar missile, whether capable of being used with any such firearm or weapon or not; or
(d) any land mine or other similar explosive machine; or
(e) any dynamite, gelignite or other explosive substance; or
(f) any component part or ingredient of any such article or substance aforesaid.
2. Having possession without lawful authority of any article of clothing, equipment or accoutrement or any arms or ammunition belonging or issued to any member of the military or police forces of Saorstát Eireann.
3. Putting on or assuming without authority the uniform or any part of the uniform of any branch of the military or police forces of Saorstát Eireann.
4. Assuming the name, designation or description of any rank, or of any member, of the military or police forces of Saorstát Eireann for the purpose of doing or procuring to be done any act which the person assuming such name, designation or description would not by law be entitled to do or procure to be done of his own authority.
5. Wrongful entry on and retention of possession of land without colour or pretence of title or authority.
6. Robbery under arms; that is to say, robbing or attempting to rob while armed with any offensive weapon or instrument.
7. Arson; that is to say, unlawfully setting fire or attempting to set fire to any house or other building whatsoever, whether public or private.
8. Unlawfully injuring or destroying or attempting to injure or destroy any property whatsoever, including standing trees and crops
9. Interfering with or preventing, without lawful authority, the lawful occupation, use or enjoyment of any land or premises.
10. Illicit distillation, or having possession or control of any illicitly distilled spirits or any illicit still or any articles or materials for illicit distillation.
11. Selling or offering, exposing, or having for sale any illicitly distilled spirits.
12. Aiding, abetting, assisting in, or encouraging the commission of any of the offences mentioned in this Schedule, or helping in the concealment or escape of any person guilty of any such offence.
Amendment 82 not moved.

I move:—

In paragraph 7, to delete the words

"or other building whatsoever, whether public or private," and to insert in lieu thereof the words:

"factory, barn, haggard, workshop, or other building, or any agricultural property, food supplies for man or beast, or any other property of any nature or kind, movable or immovable, public or private, including standing trees and crops."

The object of the amendment is to provide a more extended definition of "arson." It is felt that it was not sufficiently clear in the Bill. I submit it is fitting that the Bill should apply to the burning or destruction of all the things mentioned.

Amendment put, and agreed to.

I move Amendment 84.

In paragraph 8, to delete the words "property whatsoever," and to insert in lieu thereof the words:

"house, factory, barn, haggard, workshop, or other building, or any agricultural property, food supplies for man or beast, or any other property of any nature or kind, movable or immovable, public or private."

This amendment is in identical terms and refers to unlawfully injuring or attempting to injure or destroy any property.

Amendment put, and agreed to.
Amendment 85 not moved.
Amendment 86 not moved.
Motion: "That the Schedule, as amended, be the Schedule of the Bill," put, and agreed to.
Barr
Roinn