Tobacco Bill, 1934—Money Resolution. - Criminal Law Amendment Bill, 1934—Committee Stage.
Amendments 1 and 2 not moved.
Section 1 ordered to stand part of the Bill.
Amendments 3 and 4 not moved.
Sections 2, 3 and 4 ordered to stand part of the Bill.
Amendment 5 not moved.
Sections 5 and 6 ordered to stand part of the Bill.
I move amendment No. 6:—
Before Section 7 to insert a new section as follows:—
Notwithstanding anything in the foregoing sections it shall be lawful in the case of a youth under the age of twenty-one years convicted of an offence under any of such sections for a Judge to commit such youth to a Borstal Institution or to place such youth on probation.
I am not sure whether it is really necessary that such an amendment as this should be inserted in the Bill, or whether the object of it is attained without any special clause being put in. Perhaps the Minister would give me an assurance on the point.
The courts already have power to commit a youth to a Borstal Institution, and the amendment is unnecessary.
Amendment, by leave, withdrawn.
Sections 7 and 8 agreed to.
Amendment 7 not moved.
Sections 9 and 10 agreed to.
Amendment 8 not moved.
Section 11 agreed to.
Amendments 9 and 10 not moved.
Sections 12 and 13 agreed to.
Amendment 11 not moved.
Sections 14 and 15 agreed to.
(1) Every common prostitute who is found loitering in any street, thoroughfare, or other place and importuning or soliciting passers-by for purposes of prostitution or being otherwise offensive to passers-by....
Amendment 12 not moved.
I move amendment No. 13:—
In sub-section (1), line 30, to delete the words "common prostitute" and substitute the word "person."
I think the section would be improved if this amendment were accepted. As the section stands at present it is open, I think, to two grave objections. One is that it uses a term which perhaps— I am not sure—has not any clear legal signification. The decision, in the first instance, as to whether that term is applicable to a certain person who would be likely to be charged rests with an ordinary constable. That, I think, is a matter of possible danger to respectable members of the community. The other point in regard to it is this: that the section gives certain protection to respectable male members of the community, to protect them from accosting, or soliciting, in the streets, but it does not give protection to respectable women members of the community who may be accosted for improper purposes by males while going about their legitimate business. I think that if the Minister were willing to accept the word "person" instead of the words "common prostitute" it would get rid of a term which may be of doubtful legal meaning and it would give protection also to respectable women from molestation by males when going about their legitimate business and when they may be exposed to such molestation.
All these amendments have been considered by a committee that was set up by this House, and the points that are being made now by Deputy Rowlette were present to their minds. I am not prepared to accept the amendment. When speaking Deputy Rowlette directed the greater portion of his remarks to amendment 14 rather than to amendment 13, and said that under that particular amendment complaints might lead to a lot of trumped up charges.
I have not touched on that yet.
The Deputy talked about leaving it in the hands of a Guard. The description in the section itself is a well-defined description. It is one that, I think, is followed and is in operation. It is one which would be followed by the Guards who will have to administer this measure. I think that the dangers the Deputy has in mind are not at all likely to arise.
Amendment, by leave, withdrawn.
I move amendment No. 14:—
At the end of sub-section (1) to add the following words:—"Provided that no person shall be convicted of any offence under this section upon the evidence of one witness, unless such witness be corroborated in some material particular by evidence implicating the accused."
I think that different considerations are involved in the case of this amendment. I do not know whether the Minister meant, when speaking a moment ago, that he is not in a position to accept any amendment that may be put up to him on this Bill. I think, at any rate, that these amendments deserve discussion and consideration. The Minister may possibly not. He referred to a committee set up by the House, but no committee was set up by this House.
I may have conveyed that, but I meant a committee representative of the House.
I have no objection to that phrase. I think that a committee of that kind is in a different position from an official committee of the House. As no advice from that committee has come before the House, Deputies are quite unaware of the decisions that it may have come to. It is only by raising these points that we can find out the matters that were considered by that representative committee. I think myself—I am sure— that dangers are likely to arise from the fact that a person may be charged and convicted on the evidence of a single person in respect of an offence of this kind. I am told by people who have given a good deal of attention to social work that it may happen, and does happen, that women going about their business at night legitimately and properly, may be accosted for some improper purpose, and that a complaint to a Guard may be met by a counter-complaint from a man that she has accosted and solicited him. That is a very unfair position in which to put even the most competent and honourable Guard: to decide between two such people. The fear in the minds of working women who are out late at night is that they cannot get protection from improper molestation because any complaint they may make may be met by such a counter-complaint, and that counter-complaint, if supported and the matter goes into court, may lead to the conviction of a particular woman properly seeking protection for herself. She will really be running the danger of being charged with a very grave offence, that offence being proved on the evidence of one witness alone. I think that for the protection of such people it is proper that this clause should be added to the section.
I think there is no danger whatever of the things that the Deputy has in mind arising. The unfortunate people that this Bill is intended to deal with are well known to the police, and I do not think that there is any possibility of a mistake occurring. Even if the extra precautions that the Deputy has suggested were adopted, I am afraid that the same thing might occur, if it was possible under the present circumstances, but I say it is not.
Does the Minister see any danger in accepting the amendment? Does he see any risk arising from it?
I do not see any advantage.
Amendment, by leave, withdrawn.
Section 16 agreed to.
(2) Any person who acts in contravention of the foregoing sub-section of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and to forfeiture of any contraceptive in respect of which such offence was committed.
Amendment 15 not moved.
I move amendment No. 15a:—
In sub-section (2), page 5, line 49, to delete the words "twenty pounds and", and substitute the words "fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment and, in any case".
Amendment put and agreed to.
Question proposed: "That Section 17 stand part of the Bill."
It is with considerable reluctance that I think it necessary to make some observations on this section, but I think that there may be considerations bearing on this section which, perhaps, may be more present to the mind of a member of my profession than to those of most of the Deputies of the House. I think it would be a mistake if the section were accepted without any consideration of the possible consequences or of some conditions which may arise if it should become law. I take it that the intention of the section is to prevent the use of those so-called contraceptives, when they are used in order to facilitate licentious relations between unmarried people of different sexes without some of the ordinary and natural consequences following such relations. If one were convinced that the section would be likely to bring about the result, which I am quite sure is in the minds of those who framed it, one would not dream of offering any criticism of it, but I think there are certain results which are quite likely to follow if this section becomes law. In the first instance, I doubt very much if the prohibition of contraceptives is likely to act as a deterrent to the relations in regard to which it is intended that this section should act. What is more likely to happen is that those who wish to obtain such apparatus may make arrangements to obtain it by some underhand means. The trade would become illegal and may be driven underground. Consequently it would be much less easy to control than it is at present. Moreover, it should not be forgotten that elaborate apparatus is not necessary for such purposes as those contraceptives are sold for. As we may learn from letters in the daily papers it is common knowledge that contraceptive apparatus is manufactured with the greatest ease from the ordinary contents of any household, so that from the point of view of effectiveness I think it extremely unlikely that this section, if enacted, will have any real effect in diminishing the use of contraceptive measures where used deliberately to cloak licentious practices.
Apart from the use of contraceptive apparatus for such purposes, one cannot overlook the fact that there are cases in which contraceptives are employed by many people for what they believe conscientiously to be quite legitimate purposes. I am not going to consider the justification of the use of contraceptives in the manner that is frequently spoken of as birth control. I am quite aware that the general moral judgment and feeling in this country is against any such practice, and with that feeling and opinion I find myself personally in agreement, but there are instances which require some more consideration than if dealt with simply by an appeal to common feeling or common moral judgment. The problem not infrequently arises where a respectable married woman is in ill-health. She is told that her health or her life may be endangered should she again have to undergo the trials of pregnancy and childbirth. In such a case two alternatives are open to her. There is the alternative of abstaining from marital relations. In that, there are very considerable practical difficulties in many households. It is not necessary, I think, to define with any exactness what those difficulties may be in a constricted household, with narrow accommodation, where a wife and her husband are living on affectionate and proper terms. There are certain dangers to herself arising out of abstention in such conditions. It is not uncommon to find that women who have adopted this alternative suffer from grave nervous disorders as a result of the strain under which they are forced to continue. It is common knowledge too that such abstention may lead to very grave marital unhappiness, and possibly may lead to infidelity on the part of the husband. Those are matters which cannot be lost sight of. They are practical, everyday matters of fact.
The other alternative open to a woman who is in the unfortunate position of having received a warning that if she continues her ordinary married life her health or her life may suffer; that is the adoption of contraceptive measures to prevent pregnancy occurring. That is a matter which she herself must decide by her own conscience, under such guidance as she conscientiously sees fit to seek. One cannot overlook the fact there is a considerable number of people in this condition both in this and in other countries who do not adopt the view that the use of contraceptives in such a position is contrary to morality. I am quite aware that the other view is generally adopted in this country. I do not at all wish to question that those who adopt that view should be bound by their own consciences in the matter, but we must not overlook the fact that there are others who do not adopt it as a point of conscience— whose conscience is quite easy in adopting the second of the alternatives open in the case I have spoken of. It is not possible to enforce moral principles by statute, and however strongly we may wish that this alternative were not open it is an alternative which many women put in that dilemma will choose to adopt. It is questionable whether it is either feasible or just to try to enforce morality by statute. We all agree that people should do what is right from the common point of view of the community as well as from that of the individual conscience, but it is not a practical matter to enforce a general moral standard by statute. I am not sure what view the representative committee, to which the Minister has alluded, took of this particular section of the Bill, but I would call the Minister's attention to the fact that in this one section the Bill goes considerably further than the Report of the Select Committee which reported a couple of years ago. That Committee, the Minister will recall, recommended that the sale of contraceptives should be controlled by similar conditions as those which control the sale of dangerous drugs.
It may be a matter of considerable difficulty to adjust, but, certainly, the Committee did not recommend that their sales should be entirely prohibited, or rendered a grave offence, as is done by the Bill. While I regret it, I thought it my duty to draw attention to some of the risks and the dangers which may arise from the enactment of this section. I think I would not be doing my duty if I did not point out that there are certain considerations and certain conditions which may arise, which may have very grave effects on the health of respectable and virtuous married women if this section is enacted. There are other dangers which may arise that have been pointed out in the Press with regard to the different uses of contraceptives, if and in so far as the section is effective in preventing persons who wish to use contraceptives for what I may call licentious purposes. If in so far as the section would be effective in preventing contraceptive measures, it would be likely to lead to an increase in crimes such as criminal abortion and criminal infanticide. If criminal abortion and criminal infanticide are increased the state of the country will be rendered worse than it is at present by this section.
Sections 17, 18 and 19 agreed to.
Amendments 16 and 17 not moved.
(2) For the purposes of this section references to the exclusion of the public shall be construed as meaning the exclusion from the court of all persons whatsoever except the judge or justice presiding at the trial then in progress, the officers of the court, the jurors (if any) sworn for such trial, the accused person and any member of the Gárda Síochána or prison warder in charge of him, the counsel and solicitors engaged in such trial, members of the Gárda Síochána on duty in the court, other officers of the State present in their official capacity, the witness (if any) who is for the time being giving evidence, barristers bona fide practising as such in Saorstát Eireann, and representatives of the Press.
The following amendments were on the Order Paper:—
18. In sub-section (2), line 49, after the word "barristers" to insert the words "and solicitors."—(Aire Dlí agus Cirt.)
19. At the end of sub-section (2), line 50, to add the words "and such persons as the judge or justice shall determine."—(Robert J. Rowlette.)
20. Before sub-section (4) to insert a new sub-section as follows:—
Whenever the public are excluded from a court under this section and the judge or justice presiding in such court is of opinion that, owing to the youth or the mental or physical weakness of a particular witness, the presence in court with such witness of a relative or of a medical or other attendant is desirable, such judge or justice may admit to such court such relative or attendant whenever such witness is admitted thereto.—(Aire Dlí agus Cirt.)
Would it be possible to take amendments 18, 19 and 20 together?
They may be discussed together.
I hope the Minister will consent to take amendment No. 19 in lieu of amendments Nos. 18 and 20. I recognise that the Minister's intention in amendments Nos. 18 and 20 is practically the same as my intention in amendment No. 19, but I think he will recognise that there are other considerations, and that his amendments hardly go as far as is desirable. Under the sub-section as it stands, if a judge or a justice decides to exclude the public from the court, he can only leave in the court such persons as are defined by the sub-section, or by the section as amended by the Minister's amendments. I suggest that that is hardly adequate. I ask him to consider the case of a defendant who may be a lad of 17 or 18 years. There is no limit as to what the age of a junior defendant may be who is charged with an offence under this Bill. A young lad of 17, 18 or 19 years of age may be in the dock for a very grave offence. Unless some such amendment as No. 19 is accepted that boy will be left without the support of a father or of any near friend. He will be in an atmosphere of complete strangers. He is not necessarily a guilty person because he is in the dock, and he may be perfectly innocent of the charge made against him, but during the whole of the trial, which will be a very grave trial for him, he is left without the moral support of any near friend. Not merely in the interests of common humanity, but in the interests of justice, a young fellow in that position should have the support of a father or a near friend during those very critical hours for him. Again, he may have to give evidence in his own defence. It is certainly desirable in the interests of justice, as well as in the interests of common humanity, that he should be in a normal state, and not be subjected to the hardship of listening to a case against him in an atmosphere which is strained, and without the moral support of anyone with whom he is familiar. He is probably a stranger to his solicitor, and certainly to his counsel, and he is put into a very difficult position if he is to do himself justice in giving evidence after listening to a case pressed against him for several hours.
In Amendment No. 20 the Minister intends to provide that during the examination of a particular witness that witness may be accompanied by a friend. I submit to the House that that is not sufficient, and that during the whole course of the trial the defendant should have, if a young fellow, the support of some near friend. Again, the aggrieved party in regard to whom the charge is brought should have with her, if a young person, regardless of her state of health, the support of her mother or other female relative, in whom she has confidence, and with whom she is at ease. There is another point to which I wish to draw the Minister's attention. Some of these cases will at least give rise to the necessity of expert evidence being given, either for the prosecution or for the defence. As the Minister is aware, it is often necessary for an expert witness to give evidence following on the hearing of evidence given by other witnesses, and much of that evidence will be based on the opinion he formed on the facts, and on the opinion given in evidence by the other witnesses. Unless a more liberal interpretation is given than that given by the Minister in his amendments, it would be impossible to make use of the expert evidence in the way it should be made use of in such cases. I hope the Minister has not any hostility to my amendment. After all, it leaves the whole matter to the person best fitted to decide, the magistrate or the judge. Everyone has confidence that they will use their discretion properly and in the interests of justice and humanity. If a judge decides to exclude the public it remains for him to decide who will be left behind. He could make exceptions in the cases I have mentioned, the near friends of a defendant or an aggrieved person. He can also permit such witnesses as are necessary to remain in court.
I appreciate the force of the argument put forward by the Deputy, and I may say that I am in entire sympathy with him from that point of view. The only difficulty I have with regard to the Deputy's amendment is that it is always considered advisable, for the protection of the judge, when imposing limitations such as are proposed to be imposed in these particular cases, that the limitations shall be clearly defined. That is the only objection I have with regard to Deputy Rowlette's amendment. I am keeping in mind that perhaps some amendment might be framed which would cover all these eventualities the Deputy has in mind and I hope to introduce something in the Seanad which, I believe, will meet the Deputy's point of view. I assure him that I am in complete sympathy with it and that I understand the case thoroughly.
I am obliged to the Minister. Might I ask him if it is not a fact that at the present moment, a judge or presiding justice has the power to exclude such members of the public as he thinks fit to exclude so that all this amendment would do would be to make explicit in this particular Bill what are his powers of jurisdiction at the present moment. It is the practice, whether he has the power at the moment or not.
It is the practice but a rather doubtful power, I think.
Would the Minister bring it up on Report?
Amendment No. 18 agreed to.
The Minister is not prepared to accept amendment No. 19?
I am prepared to bring in an amendment which I hope will cover it.
Amendment 19 withdrawn.
I move amendment No. 20:
Before sub-section (4) to insert a new sub-section as follows:—
Whenever the public are excluded from a court under this section and the judge or justice presiding in such court is of opinion that, owing to the youth or the mental or physical weakness of a particular witness, the presence in court with such witness of a relative or of a medical or other attendant is desirable, such judge or justice may admit to such court such relative or attendant whenever such witness is admitted thereto.
Amendment agreed to.
I move amendment No. 21:—
At the end of sub-section (4) to add a new sub-section:—
No public Press account shall be published of any sexual assault on a young girl under legal age.
I am not accepting the amendment.
Section 20, as amended, agreed to.
Sections 21 and 22 agreed to.
Schedule and Title agreed to.
Bill reported with amendments; Report Stage fixed for Wednesday, 8th August.