Vol. 75 No. 9
I move amendment No. 1:—
In page 3, Section 2, lines 37 and 38, to delete the words "or purporting or appearing otherwise to relate to or be connected with any such organisation."
This amendment is on the lines suggested by Deputy O'Sullivan and Deputy Costello.
With regard to this amendment, there is still difficulty, and I do not know that the Minister can meet it. I am assuming, owing to the way in which he has met the points that we put up, that he has gone as far as he can, but it is still open to objection. There is the individual case that I have already raised that, even for the purpose of condemnation, you cannot get a printer to set up a condemnation because it contains the condemned document itself. It would be illegal for the printer to set it up. I instanced a particular case, but merely as an instance. A private individual may want to do it. That might not be so important, and the rights of the private individual are safeguarded, but the actual point I raised was that if, for instance, a Bishop wanted a printer to set up a pastoral, the printer could not set it up if it contained a document that was condemned. I do not think that that has been met by the Minister, and I understand his difficulties, but possibly he might give it further consideration, when the Bill is being considered in the Seanad. The point is this: you are condemning people whose duty may compel them to do certain things that are illegal.
As regards the question of the pastoral, one could hardly say that the Government would be so imprudent as to take action in a case of that kind. You have the difficulty regarding obscene publications, and there we are faced with great difficulties.
I quite understand that if a Church authority wanted to condemn an obscene book it would not publish the obscene book, but would refer to it, but here it may wish to show up some dangerous doctrines and include as an illustration a portion of the document to prove it. Sometimes there may be situations where persons anxious to speak might want to show that they are relying on evidence, just as the Minister for Justice himself brought forth certain documents to prove his case was not mere hearsay. I admit that no Government would be imprudent enough, but still compelling these people to do what is illegal——
I will see if something can be done. The Deputy knows our intentions.
I move amendment No. 2:—
In page 4, section 2, line 4, to delete the word "rightful" and to substitute the word "lawful".
I move amendment No. 3:—
In page 4, Section 3, line 28, to delete the words "either generally or".
I move amendment No. 4:—
In page 4, lines 45 and 46, Section 6 (1), to delete the words "authorised as aforesaid" and substitute the words "lawfully established."
I move amendment No. 5:—
In page 5, line 3, Section 7 (1), to delete the word "other" where it secondly occurs.
This amendment is merely a drafting amendment.
What is the effect of this amendment?
There was criticism of this item on the Committee Stage, that it would be restricting criticism. We have carefully considered it, and I do not think that it would be misconstrued unless the criticism amounted to threats.
I move amendment No. 6:—
In page 5, line 21, Section 8 (1), to delete the word "other" where it secondly occurs.
I move amendment No. 7:—
In page 5, line 33, Section 9 (1), before the word "commit" to insert the words "with intent to undermine public order or the authority of the State."
I move amendment No. 8:—
In page 6, Section 10 (1), to delete all from the word "issued" in line 1 to the word "or" in line 7, and substitute the words "or contains or includes an incriminating document, or".
This is really consequential on amendment No. 1.
I move amendment No. 9:—
In page 6, line 26, Section 10 (3), after the word "imprisonment" to add the words, "and also (in any case), if the court so directs, to forfeit every copy in his possession of the document, newspaper, or publication in relation to which the offence was committed and also (where the act constituting the offence was the setting up in type or the printing of a document) to forfeit, if the court so directs, so much of the printing machinery in his possession as is specified in that behalf by the court.
This is also introduced to meet criticism about the automatic forfeiture of machinery. It leaves it entirely in the discretion of the court to order the forfeiture.
This amendment and amendments Nos. 11 and 12 might be taken together, and as a result of this and the insertion under No. 11 and the deletion under No. 12 the point that we made is being brought in.
I move amendment No. 10:—
In page 6, line 27, Section 10 (4), after the word "who" to insert the word "unlawfully".
This amendment is exactly as suggested by Deputy O'Sullivan.
I move amendment No. 11:—
In page 6, line 38, Section 10 (4), after the word "months" to add the words: "and also, if the court so directs, to forfeit every copy in his possession of the document, newspaper, or publication in relation to which the offence was committed."
This amendment is consequential.
I move amendment No. 12:—
In page 6, to delete Section 10 (5).
I move amendment No. 13:—
In page 8, line 44, Section 14 (2), to delete the words "or declaration" and to substitute the words "declaration or agreement".
This amendment is exactly as has been suggested.
I move amendment No. 14:—
In page 9, Section 15 (2) (b), line 33, to delete the word "sickness" and insert the words "incapacitated by illness or other sufficient cause"' and after the word "prevented" to insert the words "or incapacitated", and in lines 34 and 35, to delete the words "or sickness" and to substitute the words "illness or other cause".
In this case there is some slight difference in the words, but I think it meets the point that has been made.
Yes. I think it to a certain extent meets the point that we made on Section 16.
I move amendment No. 15:—
In page 10, line 28, Section 17 (4), after the word "purposes" to insert the words "other than an application for a declaration of legality".
This amendment has been brought in to meet the point raised by Deputy Costello who said that there was an apparent conflict in the wording as it stood.
It meets the objection that we made.
I move amendments Nos. 16, 17 and 18:—
16. In page 10, Section 18 (2), to delete all words from the word "applicant" in line 38 to the word and bracket "any)" in line 42, and substitute the words "High Court, after hearing such".
17. In page 10, before Section 18 (3), to insert a new sub-section as follows:—
"(3) The High Court shall not make a declaration of legality unless the applicant for such declaration either—
(a) gives evidence in support of the application and submits himself to cross-examination by counsel for the Attorney-General, or
(b) satisfies the High Court that he is unable by reason of illness or other sufficient cause to give such evidence and adduces in support of the application the evidence of at least one person who submits himself to cross-examination by counsel for the Attorney-General."
18. In page 11, Section 18 (5), after the word "him" where it occurs in lines 14, 17 and 20, to insert the words "or on his behalf", and in line 16 to delete the words "by him".
These amendments have been brought forward to meet the views of Deputies O'Sullivan and Costello. Where an applicant is incapacitated by illness from attending court in person, the applicant can support his own testimony with other evidence.
I move amendment No. 19:—
In pages 16/18, Section 28, to delete sub-sections (3), (4) and (5) and substitute four new sub-sections as follows:—
(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.
(4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section.
(5) A member of the Gárda Síochána may do all or any of the following things in respect of a person detained under this section, that is to say:—
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Gárda Síochána of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.
I gave an undertaking to have Section 28 re-drafted where it restricts the period during which a person may be detained.
That is pretty far off. I do not know whether I am quite in order, but before you go on to that——
I went rather fast.
I quite admit that this is in connection with the next amendment; but the position is this: the Minister's amendment was circulated yesterday, and we had intended when we saw it to introduce one or two amendments. When the business was being announced to-day there was, shall I say, excitement elsewhere, and I did not know that this particular Bill was to be taken. I really want information from the Minister. He will remember that on Section 19, I think it was, we suggested, in connection with the property of an association that had been declared illegal, that he would consider, if an application was made to the court, that the court might liberate, so to speak, a certain amount of the money that would be otherwise held for the purpose of defence. The Minister seemed to be struck with that particular idea, and said he would consider it.
I did. Yes, I remember that.
Would that be possible? Because otherwise I really do not see how the case can be defended.
There is the difficulty, of course, of dealing with unlawful organisations.
I appreciate the Minister's difficulty. I do not want in any way to increase it, but if possession has been taken of the money all that is asked for is that when those who make application to the court to declare their organisation lawful, they shall be allowed, with the consent of the court, to use the fund that previously was in their hands and is now in the hands of the Government, and that a certain amount of that money, under the supervision of the court, will be set free for that particular purpose, and for that particular purpose alone.
I can assure the Minister that I have no great sympathy with illegal organisations, but I think they should get a fair trial and, if you do give them an opportunity of proving their legality and lawfulness, as you do in the Bill, I think facilities should be given to them as well. It is hardly reasonable to deprive them of the money with which they could fee lawyers. I thought that the Minister did seem to be struck with the particular safeguard, namely, that it would be within the discretion of the court to grant it, and the sum that could be granted would be in the discretion of the court.
The Deputy knows that they would have all the funds available the moment the organisation was declared to be lawful. If an organisation is satisfied that it has a good case, I do not think any such organisation would be very much hampered in procuring the necessary fees to fight their case.
I am sorry to say that I cannot agree with that. I will admit that the Minister is better acquainted with both branches of his profession than I am. I was merely once "knocking at the door," so to speak, but there are cases in which counsel and solicitors might be slow, without some guarantee of fee, to take up the case.
I am not suggesting that counsel would take it on chance. I am not suggesting that at all, but I am suggesting that the people who would be concerned would be able to raise the money if they were satisfied, or could satisfy the people they might appeal to, or who might be in collusion with them—I do not want to put it any stronger—that they had a good case.
Could not that money be confiscated, too?
It could not be confiscated, because counsel would have been paid.
In the process of collection it might be confiscated.
I will look into the matter further.
It was one of the points about which I was rather anxious.
The amendment restricts the period during which a person may be detained without being charged, to 48 hours.
Yes. It was more or less agreed on that the Minister would do that.
On amendment No. 19, there does not appear to be any change in the principle of this amendment as compared with the Bill when it was introduced. For that reason, we propose to divide the House. We do not accept the amendment in its present form. It gives unlimited powers to Gárda officers.
The time is reduced from eight days to 48 hours.
They still have power to do things that they had when the Bill was introduced.
I do not want to defend the amendment, but if you carry the amendment against the Government, you are restoring eight days and knocking out 48 hours. That is the only effect. However, I have no doubt the Minister would be ready to meet you.
I move amendment No. 20:—
In page 22, before Section 42, to insert a new section as follows:—
(1) A person convicted by a Special Criminal Court of any offence or sentenced by a Special Criminal Court to suffer any punishment may appeal to the Court of Criminal Appeal from such conviction or sentence if, but only if, either he obtains from that Special Criminal Court a certificate that the case is a fit case for appeal or, where such Special Criminal Court refuses to grant such certificate, the Court of Criminal Appeal on appeal from such refusal grants to such person leave to appeal under this section.
(2) Sections 28 to 30 and Sections 32 to 35 of the Courts of Justice Act, 1924 (No. 10 of 1924), and Sections 5, 6, and 7 of the Courts of Justice Act, 1928 (No. 15 of 1928), shall apply and have effect in relation to appeals under this section in like manner as they apply and have effect in relation to appeals under Section 31 of the Courts of Justice Act, 1924.
This amendment covers the point on which most emphasis was laid, that is, to give the right of appeal.
That was one of the points.
I move amendment No. 21:—
In page 26, lines 12 and 13, Section 49 (1), to delete the words and brackets "(other than military custody)" and, in lines 16 and 17, to delete the words and brackets "(whether during or after the period of forty-eight hours mentioned in the said provisions)".
This amendment is consequential on the redrafting of Section 28.
