I beg to move:—"In Section 7, Sub-section 2, to delete in line 20 the words ‘Minister for Finance' and to substitute therefor the words ‘District Justice.'" I hoped that the Minister would be able to say something in connection with this amendment when we came to the Report Stage, and I hope he has had an opportunity to consider the amendment moved by me in the Committee Stage.
SEANAD IN COMMITTEE. - PUBLIC SAFETY (PUNISHMENT OF OFFENCES) TEMPORARY BILL, 1924.—REPORT.
Mr. O'HIGGINS
Since the Committee Stage of the Bill in the Seanad, I have given very full consideration to the arguments advanced here dealing with this question of money in a bank held up on a stop order from a District Justice, and I had a consultation with the Ministry of Finance on the matter. We have not been able to depart from the view that as in principle this is a confiscation on something short of absolute proof it is unwise to ask that the courts be directly involved in the matter. Senators know the kind of case this section was introduced to cover, and they know that it is not by any straining of the imagination we came to the conclusion that it was necessary to insert such a section. One hears common talk of very glaring cases of people blossoming out in sudden affluence, the only explanation of which could be that they took advantage of the disorders of recent years to enrich themselves. It is pretty much like internment without trial, internment on something short of proof. That was an act of the State, and we came to the Dáil and Seanad, and asked that in the special setting, powers of that kind should be given to the Executive. We did not ask the court to be empowered to order internment and detention on something short of proof. I think it would have been unwise to ask anything of the kind. You have the same idea underlying this. It is considered that a particular bank account needs explanation. The State comes to the District Justice and asks for a stop order on the account, and the person in whose name the account stands, has a month within which to satisfy the Minister for Finance that the money is legally and properly in his custody, and is not the proceeds of lawlessness and of crime.
Senator O'Farrell's suggestion is that he should satisfy the District Justice of that, and you there bring the courts into it, a procedure which, as I say, is confiscation on something short of proof.
I submit that it is not wise to do that. The Minister for Finance suggested that I could state here that a Departmental Committee with one independent lawyer could be set up to hear appeals of the kind, a representative, let us say, of his Department, a representative of the Ministry of Home Affairs, and someone with legal or judicial training. There is just another aspect, and I want to be quite candid with Senators about it. It sometimes happens that evidence on which action of this kind is taken is not evidence which could or ought to be brought out publicly in open court. Not infrequently it is the evidence of a penitent accomplice, and it may not be at all for the benefit of the penitent accomplice's health that he should appear in court and give the evidence on which the action was taken. I put that simply to the good sense of Senators, that all things considered, a Departmental Committee is preferable in the circumstances, and having regard to the class of cases that will be dealt with under this section. The stop order is given by the District Justice, and then a month is allowed in which the person to whose name the money stands has his opportunity of showing the State that he has a clean bill of health, as it were, that this money is properly and legally his. The offer of the Departmental Committee with one independent lawyer is as far as I can go to meet the arguments that were advanced on the Committee Stage.
Might I suggest to the Minister that it is a very serious thing to have an order made by the Minister forfeiting money. I quite recognise the objection to giving evidence of the nature that is sometimes required in a case like this in a public court, but there would be no objection at all to having the case tried by the District Justice in the way in which he tries income tax appeals, privately in his own room, without the Press being present. Surely that would be much better than to have a case like this decided by the Minister himself.
AN CATHAOIRLEACH
There is an alternative suggestion, Senator Brown, that you ought not to lose sight of, that the Minister for Finance is only to make this Order after consultation with the Departmental Committee, of which one member is to be a person with legal training.
That would practically have the case tried by the Departmental Committee of which one is independent.
AN CATHAOIRLEACH
A person of legal experience.
That would get over a great deal of the difficulty. Perhaps it would be a more convenient alternative, but the real objection is to have this decided by the Minister himself.
AN CATHAOIRLEACH
If the Minister would carry out his views he might insert in line 38: "The Minister for Finance shall after reference to a Departmental Committee," or "The Minister for Finance shall submit the matter for decision to a Departmental Committee." It would be very easy to frame the necessary words if the House is agreed on the sense of the Minister's proposal.
I would like to know a little more as to the composition of this Departmental Committee.
AN CATHAOIRLEACH
It would not apply in any case, of course, until the District Justice puts a stop order on the funds. Then the Bill provides that an advertisement to the effect that the Minister will proceed to deal with these moneys is to be published, and the persons are to be allowed an opportunity of explaining to him how they came by this money. It would then be for him either to allow the stop order to remain or to issue an order discharging it. That is the proposal in the Bill. The amendment now suggested is this: The Minister, in making his order, should act upon a decision of a Departmental Committee. The Departmental Committee should consist of one official of his own Department—I do not know who the second would be—and the third a person of legal or judicial experience.
If we were to understand that one member of that Committee was to act as a devil's advocate, I would be prepared to agree with it, an advocate for the man whose property is to be confiscated on the order of the District Justice.
AN CATHAOIRLEACH
Well, that might be met by allowing the parties to appear before this Committee, by giving them the right of audience. The persons interested in the money could have the right of coming before this Departmental Committee and stating their case. I do not know how far the Minister is prepared to go on this matter.
Mr. O'HIGGINS
Certainly the person to whose name the money stands would have an opportunity of showing before this Committee that the money was his, either in person or through a representative.
AN CATHAOIRLEACH
Through counsel.
I think before I withdraw any of these amendments that it would be better to report progress, until we see the nature of the proposals embodied in the amendment that the Minister suggests to substitute for these amendments. It is a very serious and important constitutional question affecting the right of the subject, and we should not too lightly hand over these rights to a Minister. The Minister admits that this is confiscation, and he goes further and admits it is confiscation done in such a way that he would not like to stain the records of our courts of justice by putting the responsibility on them of authorising it. I appreciate that consideration for the dignity of our courts, but this is a Parliament, and if we authorise this confiscation in the manner suggested by the Bill it is just as dangerous in the precedent it suggests, in the undermining of the common law, as if the courts themselves delivered judgment. One can easily visualise the errors that may occur and the prejudices that may exist in officials, and, after all, it is the officials of the Ministry who will be responsible. Have we not had numerous instances of huge blunders that officials have made by having acted upon false or insufficient information and having refused to listen to information and arguments that were of a more reliable character? Very often through lack of judgment a man would be guilty of a grave injustice towards another.
The Minister suggests that evidence is sometimes tendered by a penitent who has himself been involved in some of this dishonesty. Can a person always rely upon the evidence of a penitent? He may come forward to tender evidence in the hope of getting free from some other charge of a more serious character, and these things are also open to abuse by a person, having a grudge against another, coming forward and giving evidence. Seeing that the evidence is not to be given in court and subjected to the ordinary procedure of a court, cross-examination and evidence on oath, the unfortunate person against whom the evidence is given has not the protection that a court extends. It is reducing the law to the old spirit of the inquisition and the star chamber, and if the justification for it may seem somewhat apparent, I think we should be very slow and cautious in the steps we take towards that end. I would, therefore, either press my amendment or move that we report progress pending the introduction by the Minister of the alternative he suggests, in the form of a regular amendment.
I would like to know will an appeal lie from the decision of the Committee that is being suggested by the Minister? Will the decisions of that Committee be final and binding? I would also like to know how long the Bill is likely to be in existence.
AN CATHAOIRLEACH
The last clause says that it shall continue in force for one year.
Section 7 says:—"If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any bank or similar institution is, or represents, or is directly or indirectly derived from," etc. I want to know from the Minister what method it is proposed to adopt to ascertain what moneys are to the credit of certain people in banks. This raises a most important question. If I understand it right, with the Bankers' Institute, and the bankers generally, any contract or business transaction between them and their clients is strictly private and confidential. I have no experience in banking, but I understand that is the system. I want to know from the Minister what steps he proposes to take to ascertain whether the funds in the name of any person in the bank are his or not. To know whether there are funds in the bank or not there must be an examination of the books.
Mr. O'HIGGINS
Or his cheque book.
The cheque book will not show the amount of money he has in the bank. His cheque book might look all right, but there might be nothing in the bank, and very often the amount might be on the wrong side. I think this is a most important point, and I am surprised that some members of the Seanad who have intimate knowledge of the banking profession, which I understand is a strictly confidential business between the clients and the banks, have not raised this question. In spite of guns, on a recent occasion they guarded the secrets between their clients and themselves. The guns did not intimidate them to give the evidence required some years ago. I think we ought to have some more information as to whether it is intended to take powers to go in and examine bank books.
Mr. O'HIGGINS
The Senator ought to show under which section it is intended to take any such power.
Section 7. "If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable grounds for suspecting that any sum of money standing to the credit of any person in the books of any bank." How will he know there is money standing to the credit of any person or not? He must have some investigation to find that out. That is plain.
May I make another suggestion? I think there is a general feeling amongst the Senators that the order for forfeiture of money in cases like this ought to be on the order of a tribunal, and the only difficulty. I think, is what is to be the tribunal. There is a serious objection to having a tribunal composed of two members of the Departments who are interested in the question at issue. I would suggest to the Minister, as he is to have a tribunal, that if there were a single independent person of legal training there could be no objection.
With regard to what Senator Farren has said on the question of banking authorities, I think we can rely on it that the banks will continue the policy of protecting their clients in the future as well as in the past, and observing the traditional secrecy in these matters. The Senator is quite right in suggesting that a cheque book may not always be a true indication of the situation—it might often be anything but a true indication —and I do not suppose any Government would act on it.
AN CATHAOIRLEACH
Would it meet the case if in any event in which the Minister for Finance certifies the money was forfeited an appeal was allowed to the Circuit Judge?
You will not have a Circuit Judge perhaps in time for the early stages.
AN CATHAOIRLEACH
A County Court Judge or Circuit Judge, whichever it may be.
To any tribunal which is a real tribunal.
AN CATHAOIRLEACH
The appeal would only be required in a case where he certifies that the money is stolen.
Mr. O'HIGGINS
I am afraid that a provision of that kind would simply nullify the section. It certainly would deprive it of any real benefit in dealing with the problem. It is admitted that the action would have to be taken on something short of evidence, something short of legal proof. If there was proof, of course it is easy to deal with the matter; you would simply prosecute the person and put him in jail, but we contend in the situation arising out of the last two years that either we must let matters pass which are public, and which are a scandal to the law-abiding community, or else take some other exceptional powers of this kind to deal with them. If there is an appeal from the decision of the Minister, and his Departmental Committee, what that means is that the Minister is put on his proof to show that this money was stolen money. He will not be able to prove it; if he were able to prove it the person concerned would be a convict.
The idea of the Departmental Committee was that the Minister, acting on very strong presumption, gets his stop order from the District Justice, and holds up the money, and the person to whose name the money stands has the onus of proving that that money is properly and legally and cleanly his. The onus of proving that lies with the individual, and not with the State. It is an application of the same principle which in an earlier section of the Bill we applied to property, that principle which has existed in the Metropolitan Police Act for a great many years, and which is now being extended to the country generally, that a person in possession of property reasonably suspected of being stolen may be called upon to prove lawful possession. The proposal now is to apply that to moneys which are reasonably suspected of being the proceeds of stolen property, and if you provide an appeal from the Minister to the Circuit Court, then in fact you put the Minister on his proof, and you change the position which we were attempting to arrive at, namely, that the onus of proof would lie on the suspected person.
I cannot follow the argument of the Minister, because Sub-section 2 of Section 7 states that the person to whose credit the money is lodged shall prove to the satisfaction of the Minister for Finance that such money belongs to him. All the amendment suggests is that he shall prove it to the satisfaction of a District Justice. So that under the Bill, as it would be amended, the onus of proof would still lie on the person suspected. On appeal it would still, I take it, lie with him to prove it to the satisfaction of the court. So that it is not suggested that the onus of proof should be put on the Minister under the amendment.
Mr. O'HIGGINS
The rebutting evidence may be of a kind which the Minister would not be in a position to produce.
That would lie in regard to property, too.
The point at issue, as between the District Justice and the Minister, is that the Ministry will appoint a certain legal gentleman according to the proposition put forward by the Minister. Under the amendment it will go before the courts in the ordinary way. The justice will be independent of the Government. We do not want to be put into the position of defending wrongdoers, but we want to protect people who may have an injustice done to them. There could be no reason why the matter should not come before a District Justice.
AN CATHAOIRLEACH
The difficulty, as has been pointed out by the Minister, is that there are many cases in which one can well imagine and understand that the information was obtained from such a source that the Minister could not, in justice or fairness to the man who gave the information, bring it out before a public court.
Could not the court be held in camera?
AN CATHAOIRLEACH
Unless the Bill confers the power to hear in camera, I do not think it could.
I quite understand that these things have occurred all over the country, and it is desirable to find out, punish the offenders, and get the money back, if there is a reasonable way of doing it. I think it is very important that this should be done by some judge or justice, and not simply by Ministers or their subordinates, who may go into the matter and hear a lot of evidence which may be wholly untrue. We know that the country is full of false reports of all sorts, and I really do not know how the Minister even could protect himself against that sort of thing. The better thing is to have a judge to decide.
AN CATHAOIRLEACH
You could insert at the end that applications to a District Justice under this section should be heard in camera.
I would like to call attention to a matter which I referred to previously when this Bill was being considered.
AN CATHAOIRLEACH
Does it arise under the section?
Yes, under Paragraph (C) of Sub-section 1 of Section 7.
AN CATHAOIRLEACH
You have no amendment down to that.
On a point of order, I think we should keep to the amendment, otherwise we would get mixed up.
This amendment would cover the point I want to raise, which is only another reason for passing the amendment. The sub-section reads—"Any public funds or funds." I suggest that the words "or funds" should be taken out.
AN CATHAOIRLEACH
That has nothing to do with the amendment. I will give you an opportunity for raising that afterwards.
We are not making very much progress, and I, therefore, move to Report Progress, to give an opportunity to the Minister to consider the matter.
AN CATHAOIRLEACH
It would be better for you to move to adjourn the further consideration of the Report Stage.
If it is the same thing, I beg to move that.
I beg to second.
Would it not be well before doing that if we had it from the Minister that he is going to reconsider the point? It would be no use passing such a motion if the Minister is not going to do that. Might I suggest that unless the Senator gets it from the Minister that he will consider the proposals that have been made, it would be better for us to settle this amendment here and now.
I was not able to gather the full implications of the offer made by the Minister. I thought that when he had put it down in black and white it might mean something better than it looked on first appearance. Otherwise there is no object in adjourning.
Mr. O'HIGGINS
I made a statement as to what the practice would be with regard to money stolen that amounted to an undertaking that people applying would have an opportunity of appearing before a Departmental Committee, containing one independent person of legal training, to prove proper ownership of the money. If the Senator thinks that that ought to be drafted as an amendment and inserted in the Bill, then I think it is a good idea to Report Progress, and I would come back with such an amendment at a later stage. In any case, it is an undertaking that it is the practice which would be followed in connection with this section.
AN CATHAOIRLEACH
Would the Minister be able to produce that amendment to-day?
Mr. O'HIGGINS
I would.
Would the Minister also consider that that Committee should consist of one independent legal person, instead of having two Departmental representatives on it also?
AN CATHAOIRLEACH
A sort of legal assessor?
Mr. O'HIGGINS
Yes.
Would the Minister consider my suggestion of a single person?
AN CATHAOIRLEACH
That is what Senator O'Farrell has just mentioned, and I was suggesting that he might be described as a legal assessor. We will adjourn the further consideration and take it up later on. That refers to all your amendments, Senator O'Farrell.
Further consideration of the amendment adjourned.