Dáil Éireann díospóireacht -
Wednesday, 11 Feb 1976

Vol. 287 No. 10

Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage (Resumed).

Question again proposed: "That section 11 stand part of the Bill."

Mr. G. Collins:

The Minister knows that the section which deals with the taking of evidence in Northern Ireland for a criminal trial in the State is a section which is causing extreme anxiety to many people. Genuine fears are held that every effort is now being made particularly since Christmas to get this Bill out of the way as quickly as possible. Some people believe this because at Christmas time the Government were given a synopsis of the report on the Ireland v. England case. They believe that because of that information the Government are now anxious to get this Bill dealt with and have it neatly—from their point of view—wrapped up and out of the way as quickly as possible.

Yesterday, the Government made a statement to the effect that they have the report on the Ireland v. England case and people are now beginning to query certain details of this Bill more strongly than heretofore. People are asking what the Government can do or what they should do on the findings in this case. People know there are two courses of action open to the Government. They know that neither our Government nor the British Government can reveal the contents of the report for a certain period. Later on, for section 22 of the Bill I have tabled an amendment——

Minister for Justice (Mr. Cooney):

Perhaps the Deputy would leave the subject until then?

Mr. G. Collins:

I shall not go into it in any great detail if that is worrying the Minister. My amendment deals with the section which says that the Act shall come into operation on such date as the Minister for Justice may appoint by order. I shall not go into the subject but genuine fears are held by many because of the position in the past and the way in which evidence was cooked and the way in which prisoners were treated. The Minister says we should not go overboard about this; we should accept their bona fides—that is not good enough. Even at this stage the Minister might suggest postponing discussion of this Bill for a number of months and put the Bill on the shelf until such time as the public at large know exactly what is in the report and findings on the Ireland v. England case and know the extent to which they could accept the bona fides of the Special Branch of the RUC. The Minister may rightly suggest that this is more relevant to the amendment we shall be discussing in the near future but it is all involved in the same thing.

Up to now in this House and in the other House the Minister made no effort to be realistic about the Bill. Perhaps at this stage, after a public admission by the Government that they have this report, they might put the whole thing on ice until everybody knows what is in the report.

Mr. Cooney:

Deputy Collins suggested that the reason why the Government were anxious to proceed with this Bill was apprehension of what might be in this report. I deny that completely. This Bill is desirable to deal with a particular scandal which exists and that is that people are fleeding from the scene of most terrible crimes and by a legal quirk are obtaining immunity from the consequences of those crimes. This Bill is designed to deal with those people and deal with that scandal and take away from this country the reputation that scandal is giving it of being a haven for terrorists. That is what this Bill is about. That is an urgent problem and that is why the Government are anxious to process this Bill quickly and urgently. What Deputy Collins has been saying about the commission's report has nothing to do with the section we are dealing with. He says he has an amendment down about it. We can discuss it later if he so wishes but what I deprecate is the tone of his remarks, the repetition of what he was at yesterday, this British bashing. A certain amount of criticism of another jurisdiction might be in order but this paranoid British bashing is not in order and I deprecate it on the part of the hundreds of thousands of fellow-Irishmen who were driven to exile in Britain over the past three or four decades and who got hospitality and work there. I deprecate this paranoid British bashing on the part of the Opposition, particularly Deputy Collins.

Mr. G. Collins:

The Minister said that the Government wanted to process this Bill quickly and urgently. That is the height of nonsense as the Minister knows as well as I do. This Bill was before this House for many months and the Minister and the Government did nothing about it. Last March they withdrew the Bill and brought it to the Seanad. Let the record clearly show that this Bill came into the Seanad on 11 occasions and no more. If the Government are serious about getting the Bill through, the Minister should refresh his memory. The Government deliberately dragged their feet on this Bill for about 18 months. But now the panic is on and the Minister may become as emotional as he likes and make stupid and foolish accusations about us bashing the British.

An Leas-Cheann Comhairle:

The word "stupid" should not be applied.

Mr. G. Collins:

I will withdraw it but I will put in a word that means more or less the same thing. Let me put it to the Minister like this. If he thinks by using phrases like "British bashing" that this is headline making for himself let him not forget that we are telling the truth. As a nation we had the British Government before the European Court on Human Rights. Is that British bashing or is what the Minister has just said an indication of the attitude the Government might take as a result of the report they now have?

Mr. Cooney:

I am just trying to preserve some balance.

Mr. G. Collins:

The Minister is not. He is trying to play footsey. He is sweeping things aside. If he makes accusations here he better be prepared to stand over them solidly.

Mr. Cooney:

I obviously touched a sore point.

Mr. G. Collins:

The Minister did not but I hate insincerity and hypocrisy.

Mr. O'Malley:

This section is the section to which greatest objection can be taken because it seeks to establish a method of taking evidence in criminal trials, for which there is no precedent, and which, if it works at all, which is a matter of considerable doubt, will inevitably work in a way that must redound to the considerable disadvantage of many of the defendants who might be involved in the procedure that is proposed to be established in section 11.

I want to make it perfectly clear that I have no sympathy whatever with the views of the sort of people who might be defendants or who might be involved under the procedure that is proposed to be established here but that is entirely beside the point. As far as I am concerned, and as far as anyone, including the Minister, must be concerned, all those people are innocent until they have been proved guilty. I object to this section, not because of what the Minister states is the overall objective of it, but because the method of seeking to achieve that objective is wrong. That does not mean that I have the faintest sympathy for those who might be involved with the procedure. The Minister has endeavoured to suggest that in some way those of us on this side of the House who have spoken against the Bill have some form of sympathy of that kind. That is totally untrue.

As well as all the Opposition it has been publicly stated that there are several people on the Government benches who are equally opposed to this whole procedure. The kernel of the procedure to my mind is section 11. I preface my remarks by saying that if this section 11 procedure works at all it could not but redound to the serious disadvantage of many of the defendants. It is only right to start by saying that I have grave doubts that it will work at all. I have a number of reasons for that.

The first one I want to deal with is that it is a requirement of section 11 that evidence taken on commission in Northern Ireland will have to be taken in the presence of the members of the court making the order. That means the three members of the Special Court hearing the actual trial. The three of them will have to travel to Northern Ireland and will have to be present while the commission are taking the evidence. Members of this party endeavoured over a long period in the House to try to ascertain from the Minister for Justice if any consultations were held with the Judiciary and, in particular, with the members of it who are members of the Special Criminal Court, before the publication of this Bill. It was finally learned that there was no such consultation.

As far as I am aware—the Minister can correct me if I am wrong—there has not been any consultation since the publication of this Bill. The views of the Judiciary in general and in particular of the members of the Special Court have not been ascertained officially by the Minister in relation to this proposal. There is reason to believe that many members of the Judiciary in the Twenty-six Counties——

Mr. Cooney:

In the Republic.

Mr. O'Malley:

The Twenty-six Counties, the same thing.

Mr. Cooney:

It is not. That is a pejorative term used by the IRA.

Mr. Haughey:

I am afraid that it is also very much the vernacular with Northern Nationalists. They always speak of the Twenty-six Counties.

Mr. G. Collins:

This is the republican dictionary of the Minister for Posts and Telegraphs, Dr. Cruise-O'Brien, no doubt.

Mr. Cooney:

I do not see the point in that remark.

Mr. Haughey:

As a matter of fact some Northern Nationalists still talk about the Free State.

Mr. Cooney:

That is a colloqialism but this is the Parliament of the country. It is only a small point.

Mr. O'Malley:

Before the small but nonetheless significant interruption of the Minister for Justice—it is significant of the mentality which it portrays—I was about to say that, to put it no more strongly, there is no reason to believe that the members of the Judiciary here, established under the Constitution of Ireland, are in any way enamoured by section 11. Indeed, quite a number of them are very much opposed to the proposals in that section in so far as this will compel in any given case three of their number to travel to Northern Ireland or the six counties of Ireland which comprise Northern Ireland for the purpose of listening to evidence being taken by a commissioner from the High Court in Northern Ireland. The willingness or otherwise of judges to risk their lives—that is what it amounts to—in going to Northern Ireland in these circumstances is a very relevant factor in considering the whole feasibility of this section and of the procedure which it proposes.

The recent history of Northern Ireland in relation to judges and their safety is well known. In recent years three judges have been murdered in Northern Ireland because they were judges. They were Northern Ireland judges but there is no reason to believe that judges from this part of the country would enjoy any greater degree of immunity from violence than the Northern Ireland judges. It might be argued that there might be reason to believe that judges going from the South to Northern Ireland in the particular circumstances of this Bill and this section might enjoy considerably less immunity than the resident judges in Northern Ireland have enjoyed in recent years. I do not think that can be denied.

We have to face the stark reality that if the judges for the time being of the Special Court down here travel to Northern Ireland they will travel in circumstances in which their lives will be in some danger at least. I do not know if they are prepared in those circumstances to travel. I understand they have not been consulted about this question. I presume it will be suggested by the Minister that the RUC will arrange to give them protection. I assume that over recent years, because of continuous attacks on judges in Northern Ireland, the RUC were endeavouring to the best of their ability to protect judges in Northern Ireland but still three of them are dead. I do not think the RUC are in a position to guarantee the safety of judges from here who travel up there. In those circumstances I think it is not unreasonable of our Judiciary here to be extremely apprehensive about what is in store for them under the section and to be extremely doubtful about the advisability of the section or its practicality. I am not encouraging our judges not to travel and I do not want to be accused of that by the Minister. What I am saying is that, normal human prudence being what it is, there will not be too many volunteers, if any at all, from our Judiciary to undertake the task that would be set out for them under section 11. If there are not too many volunteers for it, how does the Minister propose to operate the section?

An appallingly onerous provision of this kind on our Judiciary should not have been put in a Bill introduced into the Oireachtas without the fullest consultation in advance by the Minister with the Judiciary and, in particular, with the members who are currently in the Special Criminal Court. It is normal practice for a Minister for Justice, if he is introducing legislation in the Oireachtas which affects the Judiciary in any way, to have consultations with them or at least with their senior representatives, such as the Chief Justice, the President of the High Court and the President of the Circuit Court, as might be appropriate. One does have and I have had such consultations many times in relation to matters of no great importance and certainly not of great importance by comparision with the provisions of section 11 here.

While I am sure the present Minister and I and our predecessors, including Deputy Haughey here beside me, had many consultations with the Judiciary during our respective terms of office about matters of comparatively little consequence, it is startling that, in this matter which is of tremendous fundamental importance to the judges concerned on the Minister's own admission, there was no prior consultation and, as far as one can ascertain, no subsequent consultation either.

If the members of our Judiciary concerned were to express their apprehension and their anxiety about the provisions of this section and were to express their anxiety not to have to travel to Northern Ireland in these circumstances, that would be perfectly understandable, and it would not be open to the Minister or to anyone else in this House or outside it to express any criticism of them for having that apprehension. If it happens, therefore, that our judges or a significant number of them are not willing to travel in these circumstances, where inevitably their very lives must be put in danger, how is it expected that this section can operate, and if this section cannot operate, how is it expected that this Bill as a whole can operate?

To my mind, that is one of the fundamental practical weaknesses of this Bill and the scheme that is proposed under it. No matter how worthy the motives or alleged motives of the Government in relation to the whole question of terrorism may be, if there is a fundamental impracticality about the method proposed—and I believe there is and that I have demonstrated it— then all of this debate in this House and the other House is just so much waste of time, because, with this fundamental problem, it is very hard to see the whole scheme being brought into operation.

When this Bill was originally published and when this party considered it, we made comments on what we thought was its general impracticality. One of the reasons for that is the reason I have just dealt with here now. There are other reasons why we believe it is impracticable. We compared it—and at the time our spokesman was Deputy Andrews—with the action of the Government in December, 1973, making an order under the Offences Against the Person Act of 1861, making murder committed in Northern Ireland triable down here. At the time Deputy Andrews said that although this provision was welcome so far as it went and was laudable in its intent, and was announced with a fanfare of trumpets by the Government as being something of great significance, we believe that that provision in December, 1973, would have little effect, and that it was likely that a few years later nobody would have been convicted under it.

We are now two years and three months later. Not alone has Deputy Andrews's forecast about the impracticality of that provision been proved right; not alone has nobody been convicted under it, but nobody has even been charged under it. If there are fugitives down here, as is alleged, who have committed serious crimes in Northern Ireland—which I do not believe for reasons that I dealt with on Second Stage—then many of those alleged fugitives must have committed or allegedly committed the crime of murder, because God knows there have been enough murders in Northern Ireland over the past six years, something in the region of 1,400, if I am not mistaken. Provision has always been there, but it is specifically there since December, 1973, to try those people for all these murders. The only difference between the provision in December, 1973, and this Bill is that murder is just one of a large category in this Bill, but murder is, tragically, one of the most common offences or crimes in Northern Ireland in the context in which we are speaking now, 1,400 of them. If nobody could have been charged with murder down here allegedly committed in Northern Ireland in two years and three months, how many others are going to be charged under this Bill?

I said on Second Stage that the most effective piece of legislation passed in this House in relation to these present problems with which the country is beset is section 3 of the Offences against the State (Amendment) Act, 1972, and the reason that I believe there are few if any fugitives down here from Northern Ireland is that in the case of a great many of them, if they do come down here, they can be charged with membership of an illegal organisation——

Mr. Cooney:

That is wrong.

Mr. O'Malley:

——because a high proportion of them would almost inevitably be members of an illegal organisation. One of the fundamental errors under which this Bill labours and in particular this section, is that there are two jurisdictions on this island, and that the respective writs of the respective Governments of these two jurisdictions run in the entirety of the territory of these two jurisdictions. That is not correct, Sir. The writ of our Government and of this Parliament runs in the 26 Counties known as the Republic of Ireland, and in every part of the 26 Counties known as the Republic of Ireland, but the writ of the United Kingdom or the Northern Ireland authorities, or whatever you wish to call them, does not run in the entirety of the six counties called Northern Ireland. The Minister must know that. It has been so for quite a number of years and it is still so, and the indications are that it may well continue to be so.

In these circumstances, it is futile to suggest that if somebody is not in one effective jurisdiction then he is in the other, because there are many people on this island who are in neither jurisdiction. The Minister knows the sort of places of which I am talking— south Armagh and other similar places where, in fact, there is no effective policing and has not been for several years, and where the Northern Ireland authorities or the United Kingdom Government are unable to exercise any effective jurisdiction.

There is another aspect of this section which I want to deal with, that is, the very controversial proposal that if an accused person down here wants to go to Northern Ireland to attend his own or part of his own trial—the taking of evidence against him from people who probably are effectively the major witnesses against him—irrespective of whether or not he is on bail down here, he must go into custody down here and be transferred into the custody of the police of Northern Ireland. The words in subsection 2 (a) of this section are "the police of Northern Ireland". I do not profess to be in any sense an expert on the law of Northern Ireland, but I did ascertain some years ago, when I was Minister for Justice, that for the purposes of the law of Northern Ireland, under orders made in council by the United Kingdom Government, the powers of the police in Northern Ireland are not confined to the RUC, and the British army, the Ulster Defence Regiment and other analagous military forces are given the same powers in Northern Ireland as the police and have the same powers as the police. That is not so down here where a very clear distinction is made and maintained between the powers of our police and our Army. Our Army are in a subsidiary position so far as any internal disturbances are concerned, because their only function is to be called in in aid of the civil power at the request of an officer of the Garda Síochána, and under his direction.

The situation is quite otherwise in Northern Ireland where the military forces of the various ilks have the same primary powers as the police. Therefore, in the requirement of this Bill that defendants be handed over by the Garda Síochána to the police of Northern Ireland, what the Bill is in fact saying is that they need not be handed over to the RUC as such. Under the terms of this section, they can quite lawfully be handed over to the British army which includes such sections as the much celebrated and much talked of SAS. They can be handed over to a force——

Mr. Cooney:

They cannot.

Mr. O'Malley:

Do the British army not exercise the powers of the police?

Mr. Cooney:

If I may make the distinction. The Deputy is quite right when he says the military there have police powers but that does not make them the police force. The Bill is quite explicit that the person will be handed over to the police force, not to persons with police powers.

Mr. O'Malley:

The words used in the section are "the police of Northern Ireland".

Mr. Cooney:

Yes.

Mr. O'Malley:

As the Minister confirmed, my understanding of it is that the police of Northern Ireland are the RUC, and the British army, and the UDR.

Mr. Cooney:

No.

Mr. O'Malley:

I do not think the Minister can validly make that distinction between them for the purposes of the Bill. I would remind the Minister that neither he, nor we as a Parliament here, have any control over what happens to defendants when they go into Northern Ireland. He cannot ensure that if, on the Border between Dundalk and Newry, the Garda Síochána hand over an individual to the RUC, 50 yards further up the road the RUC cannot lawfully hand that individual over from their custody to that of the British Army, or some section of it. They will not have done anything illegal either by our law or by their own in doing that. A defendant will then find himself in the position of being in the custody of a force who, so far as their own activities in Northern Ireland are concerned, have been found before the entire world to be seriously in default.

Every time Deputy Collins, Deputy Haughey, Deputy O'Kennedy, or myself, or anybody else on this side of the House, makes any reference to the British army and their activities, we are accused, as it was put this morning, of British bashing, of having an ultra green view of things, of doubting the bona fides of the British army——

Mr. G. Collins:

And of going overboard.

Mr. O'Malley:

——and of not retaining balance and a great number of phrases of that kind. Much as it may annoy the Minister, these are facts and if he will not face them this House and this country will have to face them. It may be unpalatable for the Minister to face them, but it is our duty as legislators to point out what the facts are. If the House wants to pass this section, at least let us pass it with our eyes open and knowing what we are doing. Over the past few days one had only to look at the front page of any of our newspapers to see what is currently happening, not in Northern Ireland but on the African Continent, what is being done there by people who only a few years ago were serving members of the British army in Northern Ireland——

Mr. G. Collins:

And of the police force.

Mr. O'Malley:

——and who, in the words of this section, constitute "the police of Northern Ireland", the people to whom defendants we must presume to be innocent will be handed over by our police. Some gentleman who was convicted of armed robbery while he was a serving member of the British army and who was apparently let out——

Mr. Cooney:

He is hardly a gentleman.

Mr. O'Malley:

——before his time, took himself off to the continent of Africa where he started to organise further activities of this kind. Various allegations are made in relation to him which, apparently, have some foundation, but I am not interested in the details of these allegations. All I know is that it was suggested by some of those recruiting for that force that one of the best qualifications for employment in African civil wars was the fact that a potential recruit or candidate had served in the British army in Northern Ireland. That, in itself, is a very eloquent comment without anything further from me on the kind of situation which exists in relation to those who constitute "the police of Northern Ireland".

Deputy Collins has dealt with the issue of the Commission on Human Rights in recent weeks and the summary of their report in relation to the case taken by the Government of Ireland against the British Government in December, 1971. It is well-known now that the summary the Government have contains findings which, for the most part and in relation to the more important aspects of the case, support the charges or allegations made by us in December, 1971, in regard to torture, ill-treatment and so on. If this House is going to legislate to hand over citizens, who must be presumed innocent until they are proved guilty, it is well that we should know to whom we are handing over these citizens and, if the Minister wants to stand over that section, he is at least standing over it with his eyes open and he knows where and to whom he is handing over citizens who are presumed innocent until they are proved guilty.

There is a third point in relation to this proposed commission. The normal reason for the establishment of a commission is that the circumstances are such that the judge trying the case cannot be present during the taking of evidence. This occurs sometimes because a witness is abroad or is ill and cannot travel. If a witness is ill it could be inappropriate and not in his interest for a judge, court officials and others to descend into a ward to his bedside.

Mr. Cooney:

In the interests of accuracy, it is not that the judge cannot attend but that the witness cannot come to court. That is the more accurate description.

Mr. O'Malley:

In practice the judge does not go. I have been involved in a case where a commission was sent to take the evidence of some one who was ill. It would have been feasible for the judge to go but he did not go. He appointed a barrister who was not involved in the case to take the evidence for him.

The extraordinary thing about the proposal here is the requirement that the three judges be present when the commissioner is taking the evidence. Originally we were told that the judges going up to Northern Ireland would be able to tell the commissioner what questions they wanted asked and able more or less to supervise the whole operation. There is nothing in section 11 that purports to give them any power to do that and, as far as one can see, they will have no option but to sit mute. It is not clear from the section, and I would like the Minister to clarify this, whether the counsel prosecuting down here on behalf of the Director of Public Prosecutions will himself travel to Northern Ireland to examine the witness concerned, either in chief, if he is on behalf of the prosecution, or by cross-examination if he is a witness on behalf of the defendant. The rights of the defendant to have counsel and solicitor are set out. What the position will be in regard to the prosecution is not stated at all. The position of the three judges up there is not stated and it is not enough for the Minister to say, as he has already said, that they can direct what questions will be asked. Unless they are given some statutory power to do so, it is not enough for the Minister to say they can do that. He will have to write into the section, if he insists on keeping the section, something which will give them that right or, alternatively, it will have to be written into the corresponding British Act. If they have no such rights and if their only obligation is to go up and sit mute they would be as well not to go at all because the only advantage they will have in being present over what they would have if they got back a written report from the commissioner is to observe the demeanour of the witness.

It seems to me the demeanour of the witness giving evidence before a commission of this kind in Northern Ireland will be of little significance because in almost every case the witness will be giving evidence otherwise than in the presence of the accused and the demeanour of a witness giving evidence face to face with a man against whom he is giving it is and will be very different from the demeanour of a witness in the presence of that man. One wonders therefore if there is any value at all in our judges being put to the traumatic experience of having to travel to Northern Ireland in their official capacity in circumstances in which they can have no guarantee of their safety.

These are just three points in general that strike me in regard to this section. There are matters of detail I could go into but I do not propose to do so at this stage. I simply want to point out in general terms that this is the most important section in the Bill. It is also the most dangerous. In my opinion it is the most impracticable. I believe there is grave danger that it cannot be worked and, if it cannot be worked, I cannot see much justification for the Bill as a whole.

Mr. Cooney:

Deputy O'Malley made the case that he has reason to believe members of the Judiciary who would be concerned would not travel North because of a concern on their part for their safety. I reject utterly any suggestion that our Judiciary are a pusillanimous body of men and I also reject utterly the implication that members of the Judiciary would not carry out or obey a law passed by this Oireachtas. I shall say no more on that.

The function and rights of a visiting judge are dealt with in the reciprocal statute which provides that any judge shall be entitled to attend the examination of witnesses and shall have a right to suggest to the commissioner questions to be put to the witness. It also provides that the commissioner shall arrange the sittings so as to facilitate the attendance of any such judge and put to the witness any questions suggested to him. The visiting judges, whether they are from the North attending down here or vice versa, are entitled by the two measures to ask any questions they want relevant to the proceedings. Their powers and their presence are not something trivial. They are given real powers and they have a real function at the taking of evidence on commission. Counsel can be present at the commission, the same counsel that appear at our Special Court. They have full rights to examine and cross-examine the witnesses at the commission. If a person is handed over for the purpose of attending at the taking of evidence of the commission, he is handed over into the custody of the police of Northern Ireland. That means the Royal Ulster Constabulary and not the British Army.

Mr. Haughey:

It might have been as well to define it.

Mr. Cooney:

There is no need to define something which is already patent. I am satisfied it cannot legally mean anything else other than the police of the jurisdiction. For example, if we had to give police powers to our Army and people were to be handed over to the police force of this country, it would be straining the argument to say that they should be handed over to the Army. The two bodies retain their separate identities. They may have similar powers but they are two separate and identifiable bodies. I have no doubt it is quite clear it is only to the police that a person can be handed over.

Mr. Haughey:

The British Bill says "the police force (Garda Síochána) in the Republic of Ireland". They feel it necessary to spell it out.

Mr. Cooney:

I do not know why they do. Perhaps it is a matter of ultra-careful drafting. I am satisfied the police of Northern Ireland can only mean the police force of that area, that is the Royal Ulster Constabulary.

The essential feature of this is that the accused person has immunity. We have been over this subject on numerous occasions. It is all the time overlooked by the Opposition that when a person goes North he goes North with immunity from all legal process, civil or criminal. I am satisfied that this immunity is total and real. If I had any doubt about that I would not promote this legislation. I have no doubt that the immunity given in the two Bills will be real, honoured and observed.

Deputy O'Malley raised those three points. The question of our Judiciary I reject completely. I reject with contempt the suggestion of pusillanimity on the part of our Judiciary. I equally reject the implication that our judges would not be loyal to this Parliament in the operation of a law passed by this Parliament. When a person is handed over he will be handed over to the police of Northern Ireland, and real and total immunity will be given and guaranteed to him. The judges visiting for the purpose of attending that commission will have the right to have any questions they think fit and proper put to the witnesses. Counsel present at the commission will have full rights to examine and cross-examine and will be the counsel who were appearing in the Special Criminal Court.

Deputy O'Malley mentioned two other points which do not relate to the section but I do not think they should be let go uncontroverted. First, he talked about the 1861 Act Adaptation Order and the fact that there had been no prosecutions under it, but that does not mean that it has not been a useful section. The situation could arise tomorrow when a prosecution could be brought on foot of it. A prosecution can be brought on foot of it only when there is a person against whom a charge can be sustained. We may have suspicions about certain persons but we cannot charge people before the courts on suspicion. In the absence of hard evidence, a prosecution under the Adaptation Order of the 1861 Act cannot be taken. None has arisen and it could be for two reasons: (1) that no evidence was available, or (2) that there had not been any fugitive murderers. The making of that order might have been a deterrent to any murderers who might have been tempted to flee.

The other point Deputy O'Malley made was in relation to the 1972 Act. He said the most effective deterrent against people coming South was the operation of that Act. He made this point on the Second Stage. It was quite wrong and improper to suggest that this Act was to be operated at will against people from the North who might come to live in the South. That section gives very wide ranging powers, powers which should be exercised with circumspection and with equity by the people entitled to exercise them. Deputy O'Malley is doing himself less than justice when he says it could be applied at will to people coming South. In effect, he is implying that it could be used without proper consideration of the legal issues involved in a blanket, nondiscriminatory fashion. I hope it was never intended that it would be used like that. It is not being used like that and it is not an answer to the fugitive offender. The only answer for the fugitive offender is to have him taken before a court of law on the specific charge for which he is wanted, and not on some other handy charge which will have the effect of putting him away for a certain length of time, while still leaving the main issue unresolved and untried.

Mr. Brosnan:

A point occurred to me when Deputy O'Malley was speaking: is the Minister satisfied that there is complete conformity between the rules of evidence, as to the admissibility of evidence, privilege and so on, in the two jurisdictions, here and Northern Ireland? If there is not, is there any provision in this or the British Act to resolve any conflict? I have in mind the case of the admissibility of evidence of clergymen, particularly priests. The situation in this State as I understand it, is that a priest can claim privilege in relation to any communication between himself and a parishioner. That was laid down in the case of Cook v. Carroll and was reported in the Irish Reports, 1945 or 1946. A priest can claim privilege in relation to any communication between himself and a parishioner not alone in the confessional but in relation to any communication. In England no such privilege attaches to evidence which a priest or clergyman might give. He would be in contempt of court if he did not disclose even a communication in the confessional. I want to pose the situation of the commissioner in Northern Ireland taking evidence from a clergyman. Clergymen have been involved in the troubles which this Bill sets out to remedy, and we had clergymen of denominations other than Roman Catholic involved in the Feakle talks. Those men must know a lot of inside information. What will be the position of a commissioner if a priest wishes to give evidence on behalf of the defence? The Commissioner from Northern Ireland will apply, and insist on, the letter of the English law with the result that the clergyman or the priest cannot obtain privilege. I presume it is the lex loci which will apply and the commissioner, in spite of the situation in which a defendant would find himself in in this State, will have to make these disclosures. He would not be required to make them in this State. Has that problem occurred to the Minister?

Mr. Cooney:

The case which the Deputy referred to was a civil case and the rule laid down there would hardly be a rule of general application because it was a very net point related to that case which was a matrimonial issue. The case was on the civil side.

Mr. Brosnan:

It was a seduction case.

Mr. Cooney:

It was a civil case and there would be no rule relating to the admissibility of evidence in criminal trials of that kind. No such claim of privilege as a general rule would lie. The Deputy prefaced his remarks by asking if there would be uniformity of the rules of the admissibility of evidence. What happens is that the trial takes place in this jurisdiction and it is the rules of evidence of this jurisdiction which apply. Consequently the question of uniformity does not arise. The commission takes place in another jurisdiction but the commission is not part of the trial; it is connected with the trial and the admissibility or otherwise of the evidence adduced at the commission falls to be subsequently considered when that evidence is presented to the court of trial. It is at that stage that the admissibility is ruled upon by the judges of the Special Criminal Court and they will rule on it in accordance with the laws of evidence prevailing in this jurisdiction.

Mr. Brosnan:

Surely it is the commissioner—a Northern Ireland High Court judge—who should decide. If a witness who is a clergyman is being cross-examined on behalf of the defence by the prosecution can the commissioner decide on whether he can claim privilege and whether he must make these disclosures? I understand that under this Bill a defendant has the option of having his trial in or outside the State.

Mr. Cooney:

It will be for our courts to decide on the admissibility of evidence. Take for example, the clergyman who, we will assume, has privilege in this jurisdiction but does not have privilege in another jurisdiction. If he is a witness for the defence and his evidence in one jurisdiction would be privileged and in another not privileged he would have the option of giving his evidence down here where the Deputy suggests it would be privileged. There would be no attraction for him in going before a commission in another jurisdiction where he could not make the same claim. If he decided to go to the other jurisdiction and his claim of privilege was not allowed, that evidence would fall to be considered as to its admissibility by the court here when it would be subsequently read out during the course of the trial. If there was a good claim for privilege the evidence would be excluded by the court notwithstanding the fact that the commission had allowed it.

It is for the court here to decide on the admissibility of evidence which might be taken in Northern Ireland on commission. If the court here held that privilege did lie it would exclude that evidence. Again I should like to repeat that there is a distinction here. The commission is not part of the trial; it is connected with the trial and the evidence given on commission becomes part of the trial when it is subsequently given to the trial judges in the court here.

Mr. O'Malley:

I should like to refer briefly to two points made by the Minister when replying to what I said earlier. The Minister said he rejected any suggestion that our judges would be pusillanimous.

Mr. Cooney:

Deputy O'Malley said they would be frightened of threats and would be afraid for their safety to go north.

Mr. O'Malley:

I want to make it clear that the suggestion of being pusillanimous did not come from me; it came from the Minister who implies by what he said that if our judges refused to go to Northern Ireland under this Bill they would be pusillanimous.

Mr. Cooney:

Deputy O'Malley said he had reason to believe that judges would be apprehensive about going North.

Mr. O'Malley:

I did not make the suggestion and the description that if they were not to go to Northern Ireland under this section they would be, as it was put, pusillanimous is the Minister's.

Mr. Cooney:

I am rejecting Deputy O'Malley's suggestion on that.

Mr. O'Malley:

I do not think they would be pusillanimous or anything else of that nature if they did not go.

Mr. Cooney:

I am glad that is being withdrawn.

Mr. O'Malley:

I repeat that they were not consulted about this matter; that they should have been consulted and that they are frequently and regularly consulted about matters which are only trivial by comparison with this. I repeat that they will be asked, if this section and this Bill is passed, to travel to Northern Ireland into a jurisdiction in which in the last couple of years three judges were murdered; that there can be no guarantee of their safety and that it would be a normal reaction of human prudence and self-preservation if they were extremely apprehensive about taking on this onerous task about which they were never consulted. I do not withdraw one iota of what I said originally. The Minister in endeavouring to make implications and suggestions is not going to get me to withdraw my remarks about a situation in relation to our judges in which I believe they should never be placed, or if they are going to be placed in it, it should only be after full consultation with them and with their consent. There was no such consultation and, accordingly, no such consent.

The Minister said he rejected any suggestion that our Judiciary would not do their duty under the Constitution. I have no doubt that they would do their duty under the Constitution but their duty under the Constitution does not extend to travelling to Northern Ireland in the circumstances envisaged in this Bill and hearing evidence taken on commission there in the context of the current situation in Northern Ireland and this Bill. It is wrong of the Minister to suggest, as he did this morning, that if they did not operate this Bill they would be failing in their duty under the Constitution. They would not. If they so choose, and I am not advising them because it is entirely a matter for themselves and their own judgment, not to operate this they are in no way in default in regard to their constitutional obligations. It is wrong of the Minister to suggest to this House or to the public that a refusal by them, in all the circumstances of this Bill, to operate section 11 would be a breach of duty.

Mr. O'Kennedy:

It is more than wrong. It would be an improper interference with the independence of the Judiciary to say that.

Mr. O'Malley:

The Minister made reference to what I said in relation to the value of section 3 of the Offences Against the State (Amendment) Act, 1972. I would have thought that the Minister, notwithstanding the fact that he spent many hours and days opposing that section, had, with the passage of time, gained an insight into the wisdom of enacting that section, that he had gained much personal and political benefit having that section available for use. I would have thought that he would see its value and the problems it has overcome. It is quite wrong to suggest that I suggested it should be used in a blanket way against every fugitive offender. I did not suggest that. I said quite a proportion of those who might be fugitive offenders might also be members of an illegal organisation and that if they were they could be charged under that section. Quite clearly, if there are a large number of fugitive offenders— which I doubt—they are not all members of an illegal organisation. I repeat, and it is a fact the Minister knows as well as I do, that quite a proportion of them are members of an illegal organisation. If the Garda are satisfied beyond reasonable doubt about this, the DPP is entitled to bring a prosecution and a chief superintendent is entitled to swear in court as to his opinion. That is what I suggested.

It is a hallmark of the Minister's attitude throughtout this debate, that the terrible weaknesses he now sees surrounding his whole position in relation to this Bill are such that he frequently has to pick on phrases used in the debate by members of the Opposition. He has to seek to ascribe to them meanings and motives they did not and could not have. If the Minister were prepared to discuss with us the facts and the practicality of the section rather than seek to create, manufacture or imagine motives or reasons that are not there, we would have a more useful debate.

The Minister resents criticism of the section, of the thinking in the section and of the fact that it is impracticable and quite possibly will never be put into operation even if it is passed by this House. He resents that and, in some way regards it as a slight on himself. He becomes very annoyed, he does not reply to the criticisms made but he seeks to ascribe motives to those who criticise. It would speed up the matter and it would provide a more constructive and useful debate if the Minister declined from entering into that area of activity and if he simply discussed the merits, the practicalities or impracticalities of the section.

Mr. Cooney:

I reject the suggestion that there is any resentment on my part of criticism of the section. That is nonsense. The Opposition are there to criticise the section and their right to do that is perfectly acceptable to me. There is no question of personal resentment or of reading anything personal into this.

In his original speech Deputy O'Malley made three points relating to the section; he made many other points that had nothing to do with it. He referred to the matter of the judges, the question of whom the person would be handed over to, the rights of the judges at the commission and the question of visiting counsel. I answered all of those points as they were raised. The Deputy has come back with one particular point, namely, with regard to the position of judges visiting. I would refer him to the report of the Law Enforcement Commission on which there was high judicial representation. That commission when recommending the taking of evidence outside the jurisdiction recommended that the members of the court should be present for the taking of evidence on commission outside the jurisdiction——

Mr. O'Malley:

How many judges have been murdered in Northern Ireland since that report?

Mr. Cooney:

I do not know. It is regrettable that any were murdered——

Mr. O'Malley:

The answer is three.

Mr. Cooney:

We have to do here what we can——

Mr. O'Kennedy:

It is regrettable that this has happened. As has been pointed out, we must not react in a hasty or ill-considered way to horrific events such as those. We must have regard to principles and to the institutional structures of our courts. Why we are being asked to do something as novel as this—it might be more accurate to say as reprehensible as this——

Mr. Cooney:

As what?

Mr. O'Kennedy:

As this provision whereby evidence will be taken on commission under the provisions of section 11——

Mr. Cooney:

The Deputy has said it is reprehensible. The European Convention has provided——

Mr. O'Kennedy:

We had that out with the Minister on the last occasion. If he wants to go back on the European Convention we will do that. The Minister will find that he was very far off the mark and misrepresented the position of the European Convention.

Mr. Cooney:

The Deputy can read the Official Report and see who is right.

Mr. O'Kennedy:

On section 11, Deputy O'Malley—I am sure Deputy Collins has raised this matter also— asked why are the judges of this State, who have a constitutional obligation to uphold the law, being asked to travel out of this jurisdiction, to sit as observers in what is not a judicial function at evidence being given on commission outside this jurisdiction. The judges have sworn to uphold our laws and I am quite sure they are fiercely determined to do this in accordance with that oath and with their responsibilities. The reason is that members of the security forces in Northern Ireland, the police and the Army would decline to come down here to give evidence at the hearing of a case in our jurisdiction. Therefore, we have to respond to the reluctance and sensitivity of members of the security forces or the police in Northern Ireland who are not prepared to come here for one reason or another.

Is it that they would not respect the procedures in our courts? Is it that they would fear for their lives? If that is the case, surely the Minister must realise that the judges who are being asked to go to Northern Ireland have much greater reason for apprehension and fear for their lives than the people they are being asked to accommodate. Even on the basis of ordinary factual judgment or observation, leaving aside the legal principles, in the light of the terrible history and the unfortunate things that have happened to judges in Northern Ireland the Minister or anyone else must accept that the greater risk lies that way.

Our Minister and his colleagues are responsible to a considerable extent; they have paraded themselves as making a virtue of their success in the area of law and order and security. We have taken the view that this is a fundamental obligation of Government, an obligation that Fianna Fáil have always discharged and one they will discharge again. We see no special virtue in discharged that obligation. Nevertheless, the Minister now present in the House, as well as the Ministers for Posts and Telegraphs and Foreign Affairs, proclaimed on the same night some time ago the determination of the Government to maintain law and order. It was rather like the three determined sheriffs heading out to the wild west or the three musketeers. The impression was that everything was safe in the hands of this Government because they know all about law and order. There might have been the implication that the wild men on the other side were less than trustworthy.

If the Government are so determined, and proud about their record in the Dáil, surely the least they should be able to do is to guarantee the safety in our jurisdiction and in our courts of members of the security forces and other witnesses from the North who may come to give evidence here. They have boasted about it ad nauseam but now they seem to be saying that our judges will be safer in Northern Ireland when they go there on commission than theirs would be in our jurisdiction. Where is the reason and logic in that?

Our approach to the Bill has been that all of us in this House, particularly the Government responsible for the time being—I stress "for the time being"—should see to it that we can control our own affairs. It is our obligation to do so, with proper supervision through our police. That obligation will not be discharged by relying on a prayer and a hope or some "guarantee", the Minister is so fond of referring to.

This represents the kernel of our objection. The Minister is attempting to defend the indefensible. He made an implication which I was not present to hear to the effect that judges here who do not wish to be involved in this procedure would not be fulfilling their constitutional obligations. If he implied that it is disgraceful. He should be the last man to do so. He is Minister for Justice representing a separate wing of the Executive which should not interfere in any way with the Judiciary. Deputies O'Malley or Collins or I might say it and it would be bad enough, but the Minister implying it is a gross interference with the independence of the Judiciary. If there are members of the judiciary who take the view that they do not want to go and that even if they did they should not go because they do not agree with this procedure, the Minister has implied that they are not being true——

Mr. Cooney:

I did not imply it. I said I did not expect it to happen.

Mr. O'Kennedy:

It is the same thing.

Mr. Cooney:

If it were to happen this legislation will not work and that is the end of it.

Mr. O'Malley:

That is what we are telling the Minister.

Mr. Cooney:

I do not anticipate it will happen.

Mr. O'Malley:

Why not ask the judges whether it will happen?

Mr. O'Kennedy:

If it does happen, does the Minister think the judges will be untrue to their constitutional obligations?

Mr. Cooney:

I do intend to answer that.

Mr. O'Malley:

The Minister has told us already that they would be.

Mr. O'Kennedy:

Nothing in this Bill involves judicial constitutional obligations—when they accepted those obligations this type of legislation did not exist. Nothing in our criminal law involves a judge travelling out of our jurisdiction to sit as an observer and not even have the right to put questions.

Mr. Cooney:

He has the right to put questions.

Mr. O'Kennedy:

Not directly.

Mr. Cooney:

Indirectly.

Mr. O'Kennedy:

Has he the right to do what any judge might want to do, to ask a witness directly and to ask him again and again if he is not satisfied with his response?

Mr. Cooney:

Yes, through the commissioner.

Mr. O'Kennedy:

If I have an obligation now to ask the Minister a question does he think I am discharging it by asking him through Deputy O'Malley—by asking Deputy O'Malley to ask the Minister? This is inconsistent with our law and flies in the face of the judicial process in criminal procedures as we know it. The Minister obviously knows he is in an intolerably weak position here. If we are to have legislation of this kind we must have legislative guarantees over which we can stand and which we can operate because we cannot just transfer people to the North on the basis that everything will work and that if it does not, to quote the Minister, we will not do it again. It is no use the Minister saying the purpose of this is to deal with terrorists who flee the scene of their crimes. We are as determined as the Minister on that score but let us not begin to compete about it.

We proposed amendments in relation to an all-Ireland court and in relation to the European Convention on Human Rights because we wanted to ensure that through that court or convention we would have controls and guarantees under international law or through an all-Ireland court in order to enable us to operate this system. We have no such right or control. We are depending on the goodwill and the good behaviour of the police, for instance, in the North and unless we are to blind ourselves completely to their contemporary historical record, we knew the reliance we can place on that.

One gathers from informed sources that the last people to be informed are the Opposition as to whether there is now a report available from the Court of Human Rights in Strasbourg on the complaints lodged by us when in Government and continued by this Government. The Press seem to know it and they are able to inform us what has happened, that the report involves a vindication of our complaint. The Government obviously know it. We in the Opposition are the only people who do not. Apart from that, we are being asked to assume that the people against whom we made that complaint and against whom the Government continued the complaint—I do not know with how much enthusiasm——

Mr. G. Collins:

Not much.

Mr. O'Kennedy:

We are now being asked to rely on those people to ensure that pre-trial procedures will be adhered to.

Progress reported; Committee to sit again.

Business suspended at 1.30 p.m. and resumed at 2.30 p.m.