I move:—
That Emergency Powers (373) Order, 1946, be and is hereby annulled.
This Order, in effect, provides that Orders made under the Emergency Powers Acts, whether by the Government or by a Minister under the Order entitling a Minister to make such an Order, are to be judicially noticed in the courts without proof. In other words, a person can be tried and convicted under an Emergency Powers Order without a copy of that Order being produced to the court or proved. I can find no justification whatever, even in expendiency, for the making of this Order.
If Deputies will bear with me for a few moments, I can give the history of how this Order was made, and I think that language of emphasis, much less language of exaggeration, is not required to bring home to the House the seriousness of the making of this Order. Deputies are aware that, under the Emergency Powers Acts, beginning in 1939 at the commencement of the war, the Government were given extensive powers to enable them to meet the situation created by the world war which was then at its inception. Under Section 2 of the parent Act of 1939, the Government were empowered to make by Order during the emergency—
"such provisions as are in the opinion of the Government necessary or expedient for securing the public safety or preservation of the State or for the maintenance of public order or for the provision and control of supplies and services essential to the life of the community."
A number of categories were mentioned in that section to which I have referred. The Government were uncontrolled so far as the powers conferred on them by the Oireachtas were concerned in relation to the type of Orders they were to make, but the Oireachtas gave them a headline that the Orders were to be made only where such Orders were necessary or expedient for the public safety, the preservation of the State, the maintenance of public order or in relation to matters connected with essential services and supplies. It passes my imagination to conceive how the making of this Order falls within any of these categories, made, in particular, at the time at which and in the circumstances in which it was made.
The particular Order costs only 2d. and to prove that Order in a criminal case in court, all that is necessary for the solicitor or counsel appearing for the State is to hand it across two or three feet of space to the registrar of the court. This Order has been passed to enable that small formality to be dispensed with. In order that counsel for the State may not have to put into the hands of the registrar of the court Emergency Powers Orders costing a few pence, the provisions of the Emergency Powers Acts have been invoked.
A case was brought against a man named Kennedy for alleged infringement of Orders in relation to, I think, sugar, and that case gave rise to the circumstances in which this Order was passed. He was convicted by the Special Criminal Court — the military court or military tribunal, as it is popularly called—and it is a matter perhaps of some significance that in the course of that case counsel for one of the parties being prosecuted in connection with the sale of sugar had to direct the attention of the court to the fact that apparently the State itself did not know the Orders under which the proceedings were being brought, because it appeared that defending counsel knew the Orders better than the State itself and had to point out that some of the indictments brought against some of these men were in fact brought under Orders which had in fact been repealed, and a verdict of not guilty had accordingly to be entered by the court in respect of some of these charges.
I have verified that statement from the counsel engaged in the case—I was not myself engaged in the case until a later stage. At all events, in respect of some of the charges, a conviction was obtained, and at no time during the hearing of that case were the Orders under which the proceedings were brought and in respect of which it was alleged that criminal offences had been committed by the defendants, proved before this lay tribunal of military gentlemen. Heavy penalties were imposed and the matter was brought to the Court of Criminal Appeal who set aside the conviction on the grounds that these Orders had not been proved.
In the course of the judgment in that case, the principle upon which the judgment proceeded was stated by the learned judge who delivered the judgment of the court. When I read that judgment and draw the attention of Deputies to the provisions of this Order, it will be clear that this Order, which was passed under the authority of the Emergency Powers Acts and is supposed to be justified by reference to an emergency situation, in effect and in fact contravenes one of the most fundamental principles in criminal law and in the conduct of criminal cases in court.
Mr. Justice Davitt, in giving judgment in the Court of Criminal Appeal, setting aside those convictions, enunciated a principle—a principle which is centuries old and which we are supposed to have taken over and certainly thought we had taken over. The learned judge, giving the judgment of the Court of Criminal Appeal in this case, restated and emphasised it anew. It is the principle which was abrogated and given no adherence to by counsel for the State conducting these prosecutions. The learned judge said:—
"The burden of proof which rests upon the prosecution in a criminal case cannot, however, be eased in this or any other case. Every fact necessary to establish the guilt of an accused person must be proved clearly and beyond reasonable doubt. Not merely that, it must be proved in evidence at the trial. It is not sufficient if the court satisfies itself otherwise than by the evidence submitted at the trial. The proper way to establish the fact that the Orders in question were properly made in exercise of the powers conferred by the Act of 1939 was by providing that fact by evidence, either by one of the methods provided by Section 4 of the Documentary Evidence Act, 1925, or otherwise. This was not done. It is not sufficient to establish, if it could be established, that the Special Criminal Court itself had knowledge of what ought to have been proved in evidence."
Every lay man knows—to adapt the old cliché consecrated by Macaulay, "every schoolboy knows"—that the burden of proof in a criminal case rests on the prosecution. It is merely stating an old principle, a principle that was nullified by the proceedings in this case of Kennedy. This is the principle which has been abrogated by this Order, No. 373, which is the subject of the present motion. It is now no longer necessary to prove these documents in evidence.
It is well known that there have been vast quantities of these Emergency Powers Orders promulgated by the Government. There is no statutory obligation on the Government to publish any of those Orders. In this connection, may I refer in passing— apologising to Deputies for anything that may appear to be technical—as it is of very grave import and bringing with it the consideration of a very wide principle, to the Rules Publication Act, 1893. That was a British statute and provided that, in respect of certain statutory orders, it was necessary to give notice of the making of those orders before they were made, in the Official Gazette or otherwise. That Act does not apply to Orders of this kind, which are to be laid on the Table of the House. As a matter of fact, the opinion has been held, since the establishment of this State, that that Act is, to say the least of it, of doubtful validity in this country, having regard to the constitutional changes which have taken place. Reference is made in one famous case, where two people were executed, to the fact that the Rules Publication Act of 1893 did not apply to the Emergency Powers Order in this case. I will refer to that in a moment. It shows the evils which may result from the continuance of this Order, if the Government insist on its continuance. The position is that a Stationery Office copy of one of these Orders, costing a few pence, is sufficient proof of its existence and all that is required in a Criminal Court is for the prosectuor to hand it into court. Now, this simple operation, this inexpensive operation, may be dispensed with, on this Order made by the Government. Of course, in Kennedy's case the conviction was quashed.
The next step in the history of this transaction was that the Attorney General prosecuting in this case, gave himself a certificate for leave to appeal to the Supreme Court. He did not ask the court, as is laid down in the statute, for leave to appeal against the judgment. Where a matter raises a question of exceptional public importance and where it is desirable in the public interest that there should be a decision of the Supreme Court on a point of law in a matter arising out of a decision of the Court of Criminal Appeal, there can be an appeal, under the statute, to the Supreme Court, if the court gives a certificate or if the Attorney General gives a certificate. In reference to that simple matter, all that had to be done was to spend a few pence on a Stationery Office copy of the Order and hand it a few feet across to the registrar's table. That was regarded by the Attorney General as a matter of exceptional public importance, in respect of which it was desirable that there should be a decision of the Supreme Court, in the public interest. I pass over any action of the Attorney General in giving himself that certificate. The case came before the Supreme Court and at that stage I came into it and argued it before the Supreme Court.
The point was raised that there was no appeal given to the Attorney General against an acquittal or conviction, against the order of the Court of Criminal Appeal quashing the conviction and directing an acquittal—as happened in this case. That was argued fully for several days by leading counsel of the State and eventually, on a Thursday afternoon between three and four o'clock, the Supreme Court gave their judgment, holding that no appeal lay in the circumstances of that case, no appeal from an acquittal and no appeal from an order of the Court of Criminal Appeal directing a conviction of the Special Criminal Court to be quashed and an acquittal to be entered. That happened on Thursday afternoon and this Order was made on Friday morning, within a few hours. The Order is dated 1st February, 1946. The judgment of the Supreme Court in the Kennedy case holding that the Attorney General had no appeal was given on the day before in the late afternoon. What was the necessity for the undue haste in making that Order? All that was required in the Kennedy case, as I have said, was to hand in the Orders. Apparently, even in the Kennedy case, not merely were the Orders not handed in, but the State apparently did not know or were not fully apprised of the various orders in respect of which the prosecutions were being brought.
Now the position is that anybody may be prosecuted under an Emergency Powers Order and not a single document of any kind—either a Stationery Office copy or a copy printed or typewritten — need be handed in. There is no necessity for proof. That is the position of the law as it stands at the moment. I would ask Deputies, in the light of those facts, to advert back to Section 2, which gives power to the Government to make that Order and I would ask them to remember the circumstances in which the section was passed, with a world war breaking out and when we were threatened with very grave repercussions from that war, even if we escaped the full consequences of it. Was it necessary for the Government, with that undue haste, to pass an Order saving the State a few pence and a solicitor a little expenditure of energy in leaning across a few feet of space and handing that to the registrar of the court? How was that necessary "to secure public safety or the preservation of the State, for the maintenance of public order or the provision and control of supplies essential to the life of the community?" The day after that judgment was delivered in the Court of Criminal Appeal, the position was the same exactly as it was the day before, except in so far as Kennedy was concerned. He got out of it. The same rule applied under the Documentary Evidence Act of 1925, which was referred to in the judgment of Justice Davitt which I have mentioned. It was necessary to prove that the document in evidence was in existence, to go through the simple procedure I have already described two or three times. That was deleted and, in order to save a few pence and a small expenditure of energy, literally hundreds of pounds, if not more, have been expended in legal costs and a conviction upset.
I ask Deputies to say that this Order is a gross abuse of the powers granted under the Emergency Powers Acts. Last July, when the Government came into this House and asked for the continuance of these powers, the case was made that it was the intention of the Government to get rid, as quickly as possible, of all these powers under the Emergency Powers Acts except to the extent that it was absolutely necessary to exercise those powers largely, if not entirely, in relation to matters of supply. The idea, it was suggested at that time by the Taoiseach, was that he only wanted the minimum of powers and, without committing himself, he said he merely wanted them to see that the country would have sufficient supplies. We have, fortunately, in this country been living for the past 12 months in a state of great peace, in a state where the courts are functioning normally, properly and well, and why it should be necessary for the Government—I say it without undue emphasis and certainly not with exaggeration—to abuse the powers conferred on them by the Emergency Powers Act of 1939, passes my comprehension.
It is possible to make a case to show the evils that may come from the existence of this Order. It is probable that no counsel conducting a prosecution will have the effrontery to say: "There is an Emergency Powers Order in existence, I will tell you what it is, and it is this," and the court will have to take it. I repeat what I said a short time ago, and on which I was more or less abused by the Taoiseach. There has been the utmost difficulty in getting these Emergency Powers Orders. It is impossible even for a trained lawyer, whose job it is to know what these Orders are, to follow them. I will ask the Minister for Justice to give to the House—if he does not do so now, I will ask him by way of Parliamentary Question—how many Orders have been made since 1939 under the Emergency Powers Acts. It is impossible for anybody to follow them. I made the case that it was possible for Orders to be made by the Government and people not to be able to get a copy of them. The Taoiseach told the Leas-Cheann Comhairle then that he was not accusing me of telling lies but, whether he was or not, I had a procession of my colleagues at the Bar next day telling me of the various times when they tried to get Orders and could not.
In one case, where counsel was unable to get an Order, he rang up the Department and asked whether the facts he gave them were covered by any Emergency Powers Orders. After a certain amount of finessing he was told they were. He asked could he have a copy of the Order, but they said "No", there was no copy available. Finally, he got a typewritten copy. If he had not gone to the trouble of ringing up the Department his client would have been prosecuted under an Order that neither he nor his counsel could get.
Let me refer to one case, or rather comment on a case which occurred some years ago, so that I may not be accused of exaggeration or stating what may not be in fact the truth, as the Taoiseach was good enough to say. I refer the House to a judgment of the late Chief Justice in the case of the State (Quinlan) against Kavanagh and others. The report is in the 1935 Irish Reports, at pages 262 and 263. I was engaged in the case. A writ of habeas corpus was obtained; a conditional order was obtained in respect of Lieutenant Quinlan who, it was alleged by us, was illegally detained. The Supreme Court held that he was and released him and, having been beaten on every point, on the last line of defence the State counsel purported to justify the detention of Lieutenant Quinlan under regulations made under Article 2A prescribing prisons into which men arrested under the provisions of that Article could be detained. These are the words of the Chief Justice in his judgment, which is in the Irish Reports for all time. He referred to the regulations made under Article 2A, Section 10, sub-section (2), naming a list of nine prisons in which prisoners might be detained or imprisoned, and then he goes on—these are his words:—
"The court asked for a copy of the regulations to which he, that is, counsel for the State referred. None could be supplied. Neither party before the court had a copy. Enquiry at the Law Library elicited the information that no copy had been supplied to the Law Library and apparently their existence was unknown. The court then inquired of counsel for the State whether, if the court sent a messenger to the Stationery Office or the Government Sales Shop for Official Publications, a copy could be purchased, which we were prepared to do immediately. The answer was that a copy could not be procured in that way because the document was not on sale and could not be purchased either by the public or even for our official use. We then asked whether the document was not in print and whether printed copies could not be supplied for the use of the court. The answer by State counsel was that the regulations had not been printed, and that the court would not be furnished with a full copy of the regulations in print or in any other form, but that counsel proposed to hand to the court certified typed copies of extracts from the regulations containing those parts of the regulations upon which they intended to rely and base their argument and they declined to allow the court to see any other part of the regulations or to consider them as a whole with reference to the intended argument. It is difficult to speak with restraint of such a proceeding. It is questionable, indeed, if one should speak of it with restraint. It is an affront to the court. To permit it would be a travesty of justice, and, for my part, I reject an argument so proffered as incapable in law of being entertained by any court of justice."
That was the judgment of the late Chief Justice in reference to regulations which are not Orders under these Emergency Powers Acts. But there can be no doubt that such a state of affairs as was adverted to by the Chief Justice in the judgment which I have read, and which I myself copied from the Official Reports, can be repeated with impunity if this Order is allowed to remain in force. The subject-matter of the comments by the Chief Justice were regulations made by the Government, or by a Minister, I think.
That there were Orders of the Government passed under the Emergency Powers Acts and under which two men were arrested and detained and subsequently tried and executed, and that they exist, I will also demonstrate by reference to the Official Reports. There were two Orders made by the Government and under these Orders two men were arrested and detained and could not be given, and were not given, a copy of the Order under which they were arrested and detained, nor could their legal advisers get it. They then applied for a writ of habeas corpus and at that time, when the conditional Order was applied for, those Orders were not procurable and had not been printed or published. The case to which I refer is the case of McGrath and Harte, and it is reported in the Irish Reports of 1941, the report beginning on page 68 and the judgment of Mr. Justice Gavan Duffy, to which I need only briefly refer, begins on page 69:—
"The subsisting committal Order, entitled under certain emergency laws (1),"
those are the laws to which I have been referring—that is, the Emergency Powers Acts—
"justified the detention by reference to two Orders, called the Emergency Powers Orders (Nos. 41 and 41A), 1940, under which the trial was held. It appeared that the making of Order No. 41 had only been announced in the last number of Iris Oifigiúil; it has been the practice to print, in the Statutory Rules and Orders series, and put on sale, Orders entitled Emergency Powers Orders, which cover a wide variety of topics, but it appeared that Orders Nos. 41 and 41A, being very recent, had not yet been published and that the solicitor for the prisoners had not succeeded in obtaining them. The prisoners stated that these Orders had not been supplied to them.”
"In an ordinary case I could have adjourned the application, to be renewed as soon as official prints or certified copies of the two Orders had been procured, but this course was not open to me in view of the immediate imminence of the execution of the death sentences. In this dilemma I made a conditional order for each man, because I could not, in a capital case, without seeing the text of the two vital Orders, make the grave assumptions against the condemned men involved in blindly taking for granted the contents of the two Orders as justifying the departure from ordinary law."
Deputies will see that these two men were tried and sentenced to death under Emergency Powers Order which had not been published, of which they could not get a copy, and of which their legal advisers could not get a copy. They were, of course, subsequently supplied when a writ of habeas corpus was applied for, and the court held that the Orders were valid, but the men were executed. I refer to that case as emphasising what did occur, and as pointing to the dangers of what may occur if this Order proceeds. There is no obligation, so far as I know, on the Government to publish, much less to print Orders, made under the emergency powers code.
A recent decision of the Court of Criminal Appeal has laid it down—and I hope this House will take note of the decision, if and when the Government comes this year for a continuance of the power of the Emergency Powers Acts—that in reference to the obligation imposed on citizens of this country by Emergency Powers Orders, it is the duty of citizens to find out for themselves what their obligations are, and even in cases where in ordinary language a citizen would be justified in assuming that an offence would not be committed, by adopting that course of action, if he makes a mistake, he must take the consequences. The position is that these Orders need not be published; they need not be printed. There is no obligation on the State to furnish any individual citizen with any of these Orders. The citizen must find out for himself, how he can, and where he can, whether he has committed any offence under the Order or not. If he is prosecuted, the position is that either the solicitor for the State, or counsel for the State, or whoever conducts the prosecution, need not produce in court, or prove in any way, the Order under which a man is going to be prosecuted and condemned. The court is supposed to know and to take judicial notice.
I cannot imagine a court acting without seeing one of these Orders in some official form. That is not the point. The point is that it may happen as it happened in the McGrath and Harte case, where two people were tried, convicted and sentenced to death under two Emergency Powers Orders which had not been published. Private citizens might find themselves infringing the law unintentionally because they cannot get these Emergency Powers Orders when they are not available. Experience has shown how difficult it is—not very frequently—in some cases to get these Orders. There are instances where the Orders have not been published, certainly for some considerable time afterwards. Whether you know that these Orders are there or not you inadvertently commit an offence under one of these Orders and they need not be proved in court. Much of what I have said would be ground for annulling this Order, even within the legal and moral powers of the Government.
I have emphasised the aspect that there was no justification whatever for making this Order, or for the promulgation of such an Order under the emergency powers conferred on the Government under these Acts. That Order, in my submission to the House, is entirely unjustified by any of the powers which it was intended by the Oireachtas to give the Government. There is, in fact, no justification or necessity for it. I stated several times, and I repeat, for the benefit of those who were not here when I said it before, that all this Order does is to save State counsel the trouble of leaning across a few feet in court and handing to the registrar a print of the Order printed and published by the Stationery Office which costs only a few pence.
How was the State jeopardised? Where did the public interest suffer by that? I submit to the House that it would be wrong and unjust to allow this Order to continue to have the course of law, as, apparently, it has at the moment. Accordingly, I press upon Deputies to look upon this matter as calmly as possible, and as calmly as I tried to put the case, feeling as I do very strongly, that the annulment of this Order is necessary; that it is a violation of the fundamental principles of criminal practice and criminal law; that a person is not proved guilty until the State by evidence proves his guilt beyond all reasonable doubt; and not merely proves it by evidence, but by means by which facts and documents are put in evidence in accordance with well - established and old - established criminal procedure.
