Seanad Éireann díospóireacht -
Wednesday, 21 Mar 1945

Vol. 29 No. 22

Public Business. - Customs (Amendment) Bill, 1945—Committee.

Sections 1 and 2 agreed to.

SECTION 3.

Mr. Douglas

I move amendment No. 1:—

In sub-section (3) to add at the end of the sub-section the following proviso:—

Provided that the contrary shall be deemed to have been proved if the person can show that he possessed or had the custody of the goods as part of the stock in trade of a business and that the goods were sold in the ordinary course of trade to a customer and that he had no grounds for suspicion that the goods were to be exported.

This amendment was put down mainly for the purpose of eliciting further information, if I can get it, from the Minister for Finance, with regard to the operation of this section. He indicated, and I have no information which would enable me to suggest that what he said was not correct, and I am not disputing it, that some shopkeepers had been suspected of irregularities for the purpose of facilitating the export of goods. I am sure that he will not think that I have the slightest sympathy with anyone who engages in transactions of that kind, or that I would have the slightest desire to make it difficult for his Department to deal with.

He will appreciate that I am concerned with the position of the genuine trader, and in this I do not speak for myself, but for a large number of people. Some of those who spoke to me were genuinely concerned about the position. Roughly speaking, it is this: a person goes into a retail shop and produces a ration book. It is not possible to know whether it is a genuine ration book or not; it may well be. There is no onus on the shopkeeper to prove that the person who tenders the book is the actual owner of it. It is a case of taking a man's ration book from a woman or vice versa. The difficulty I have in mind is that about a person who is resident in the Six Counties, or who is working in England, and who uses a ration book to purchase clothes when he or she is at home.

The shopkeeper has no reason whatever to expect that the clothes will be exported. I do not mind telling the Minister that goods bought in retail shops are often exported as personal effects. In my own business, I was asked by my manager what he should do about it. I simply said there was nothing to do unless he had grounds for suspicion. If he asked a customer whether there was any possibility that the clothing would be exported he would probably be told lies by those who intended doing it in any case.

This is not a question of politics, and I am not raising it as a personal question, but I would like to ask the Minister if he is prepared, either now or at a later stage, to let us know the exact position of the bona fide shopkeeper. I do not intend to try to protect the shopkeeper who knowingly helps in the illegal exportation of rationed goods, but I do want the Minister to know that people residing in England come home and quite legally use the ration books and coupons of members of their families. They get clothes they could not possibly buy on the other side of the Channel, and I do not think it is possible for a shopkeeper to stop those practices.

On the strict reading of the Bill, the shopkeeper may be deemed to be the exporter if the goods are afterwards found to be exported. I put it to the Minister to see if there is any way out of the difficulty. The amendment is not meant to be a hostile one; it is designed to meet a genuine problem.

Minister for Finance (Mr. O Ceallaigh)

I fully accept what Senator Douglas said—that his only desire is to help and that he has no desire at all to assist anybody attempting to break the law in this matter of smuggling or in any other matter. I fully realise that there are sometimes difficulties for bona fide shopkeepers. It happens every day in the week that goods are sold across the counter to people who intend to smuggle and the shopkeeper cannot know. Senator Douglas said that his manager asked what is he to do. I am afraid I can give him no advice. One thing that flashed across my mind when Senator Douglas mentioned that was whether people coming into the shop with a North of Ireland accent would be any indication, but knowing Dublin I think sometimes that 90 per cent. of the people seem to have come from the North of Ireland.

Mr. Douglas

I am supposed to have one. People have often told me so.

Mr. O Ceallaigh

I would not have thought it.

Mr. Baxter

You have no objection to it.

Mr. O Ceallaigh

Not at all, especially as most of them are well off and I get a lot of income-tax out of them. I am afraid that I cannot give any help in the matter and it would not help to know if they had a North of Ireland accent. I do not know any other advice that I could give. My advisers are of opinion that there has not proved to be any difficulty in the case of bona fide shopkeepers. Their experience has shown that there have been few cases where bona fide shopkeepers who have been examined have had any difficulty in showing the officials who asked them the necessary questions that they did whatever they did in a bona fide way. In the working out of the restrictions which have been imposed since the emergency, so far as we are aware the bona fide shopkeeper has not found himself in difficulties. Here is a note from my advisers. It reads:

"Section 3. Sub-clause (3) deals with the completed offence of exportation, i.e., where the defendant is charged with having moved the goods out of the State. Normally, the person from whom he procured such goods will not himself export them and should there be evidence that such seller was privy to the transaction he would, as a rule, be charged under clause 3 (7), i.e., ‘knowingly concerned in dealing with the goods with intent to evade the prohibition', and not under this sub-clause. The amendment is, therefore, unnecessary. It may be added that, however the charge might be framed, the fact that a shopkeeper sells stock to a customer in the ordinary course of trade has been shown by experience to be no guarantee that the shopkeeper is not fully aware that the goods are to be exported illegally. Convictions have, in fact, been secured in such cases, but if a defendant could satisfy the court that he had no grounds for suspicion that the goods were to be exported the onus would naturally be discharged without any such special provision as that suggested. It is accordingly superfluous."

Mr. Douglas

Would the Minister be prepared to put the last words into the section, the words with regard to the onus? My point is that on a careful reading of sub-section (3) it is not there. All I want is that the onus should be to show that he had no grounds for knowledge. As it is he has to prove that he did not know it was for export, which might be extremely difficult in certain circumstances. As far as Section 7 is concerned I have no amendment because I have no objection to it. Section 7 deals with "knowingly", and in that case I have no objection. Sub-section (3) I have shown to one or two friends, some with legal minds, and I really suggest that it is extremely strict if it is taken in its actual wording.

Mr. O Ceallaigh

I can assure the Senator that so far as our experience is concerned it has not worked out that way.

Mr. Douglas

I am not dealing with the past. May I suggest that I had no reason whatever to say that there is any legitimate grievance on the part of shopkeepers as to the way they have been dealt with by the Revenue Commissioners? I have not suggested that and I would not like anything I say to be taken as suggesting it. My point is that they might find a difficulty in this matter. I am not going to press this amendment. I have raised a bona fide point and I hope there will be some publicity given to the last statement of the Minister. If it could get some publicity in the Press I think it would relieve minds because it would show the intentions of the Revenue Commissioners. I may say that I do not find any general want of confidence in the officials among shopkeepers. In fact, there is great confidence in them.

Mr. Kingsmill Moore

Would the Minister say if he would put before the word "prior" in division (iii) of clause (b) of sub-section (3) the word "reasonable"? It would then read: "that such person within a reasonable period of time prior to such exportation." As it is phrased now there is no limit of time. I think there should be some limit.

Mr. O Ceallaigh

I wonder how would we define within a limited time. If Senator Kingsmill Moore were a justice or a judge could I ask him how he would define "reasonable"?

Mr. Kingsmill Moore

A reasonable time would depend on the circumstances of the case. When you put in the word "reasonable" it is deliberately done to leave it to the judge as a question of fact to consider what would be a reasonable time. It is put in to make it elastic.

Mr. Douglas

I would like to mention one point. I do not know whether the Minister would care to answer it. Probably he would not, and if so, I will not press it. I am not sure if it is legal for people who come home from England on holidays to purchase clothes with coupons belonging to the family here and then return to England. Many shopkeepers know that, and it would not occur to them that there was anything wrong. I am sure there is nothing morally wrong and I doubt if there is anything legally wrong.

Mr. O Ceallaigh

I could not answer that. I do not know.

Mr. Kingsmill Moore

I do not want to press it.

Mr. O Ceallaigh

My people here are not acquainted with the supply section. I think I could accept what Senator Kingsmill Moore says about a limited period.

Mr. Kingsmill Moore

I did not put down an amendment because the exact wording would be a matter for the Minister. I merely wanted to indicate that I think there should be some limit of time.

Mr. O Ceallaigh

I do not know whether it is proper to accept an amendment in that way across the House.

Mr. Baxter

The Minister will have to get a form of words.

Mr. Kingsmill Moore

What I say can be dealt with by the Minister on the Report Stage.

Mr. Douglas

It would meet 99 cases out of 100 in regard to shopkeepers.

Amendment, by leave, withdrawn.

Mr. Douglas

I move amendment No. 2:—

At the end of the section, in page 45, to add the following sub-section:

(10) The word "place" in this section means a place where it is reasonable to suppose that goods would be brought in order to facilitate exportation.

This really deals with another point. It seems to me that when a judge is trying a case under this section there ought to be an onus on the prosecution to show that the place the article was brought to was a place to which it might reasonably be brought for exportation. There is absolutely no limit to the word "place". The Minister might also consider this on the Report Stage. "Place" could mean where I am standing, or anywhere in Ireland. It is an extremely wide term. It would be for the judge in the case of a prosecution to know whether it was a "place" which might be regarded with some suspicion. When you add to that the fact that the onus of proof is on the defendant, it is not unreasonable that the prosecution should have to show that the place was a suspicious place. Otherwise, you may have a very grave injustice.

Mr. O Ceallaigh

Normally, I understand that the place would be definitely specified in the charge. However, occasions do arise—fairly frequently, I understand—where the place cannot be so specified. An example would be the case of a carter or a motorist carrying goods along a road. The customs officials might be following that vehicle for miles before it would reach the Border. It would be difficult in that case to specify a particular spot. I am advised that this amendment would hamper the administration. In order to get after the smugglers in an efficient way, I am advised that the officials do need what are admittedly very wide powers. It has also been suggested to me that the judges would take into consideration the suitability or otherwise of the place where the goods were found.

Mr. Douglas

The difficulty in that is that the judge has no business to take that into consideration if he accepts this Act literally, because the onus of proof is on the defendant. The Minister has instanced the case of a car going along a road leading, presumably, to the Border. That would be, unquestionably, a place where it would be reasonable to suppose goods might be brought for the purpose of exportation, and it would be covered by my amendment. On the other hand, to include a place anywhere does seem extremely wide. I do not propose to divide the House on the amendment. I do think, nevertheless, that the Bill requires some limitation by way of definition of "place".

Mr. Sweetman

Would the Minister consider the matter before Report Stage?

Mr. O Ceallaigh

I have considered it. On the last day I thought that the Senator's proposal was not unreasonable. Since then I have gone into the matter with the officials and they are strongly against it.

Amendment, by leave, withdrawn.

Question proposed: "That Section 3 stand part of the Bill."

Mr. Kingsmill Moore

I cannot allow this section to pass without a short protest as a member of the Bar. It is a retrograde section. It brings us right back to the 12th Century. I say that, having due regard to the statutes of 1827 and 1876, which were quoted by the Minister in his remarks on the Second Reading. Unfortunately, I was not able to be present then. There was a time when a person accused had to clear himself. He did it by ordeal— by walking over red-hot ploughshares or by being thrown into a river to see whether he would sink or float. If accused by an individual, he had to undertake the ordeal of battle with his accuser. If the person accused was very small and the person accusing was very large, he would not emerge well from the ordeal.

Mr. O Ceallaigh

I am glad that that system does not exist at present.

Mr. Kingsmill Moore

Even when the ordeal was abolished the accused person was a suspected person, and he had pretty well to clear himself by his own efforts. But from 1640 onwards, there was a steady movement, not so much in statutes as by way of the product of the crystallised wisdom of the judges, to make it incumbent on anybody, whether in a civil or criminal case, who makes an accusation, to prove it—and in a criminal case to prove it up to the hilt. That was the product of the wisdom of the judges who discovered two things—first, that innocent people had been convicted, and secondly that the conscience of the public was so disturbed by the possibility of innocent people being convicted that their weight was not thrown towards the enforcement of the criminal law, but rather against it. For the enforcement of the criminal law, no policeman is as good as public opinion. Accordingly that principle came in, and has been observed in criminal law, as a whole, up to the present day. There have been certain minor exceptions under the Customs Acts. Two of them were referred to by the Minister on Second, Reading.

Mr. O Ceallaigh

Does that principle exist in any other Acts than the Customs Acts?

Mr. Kingsmill Moore

Speaking offhand, I do not think so. There may possibly, be an exception in the case of a burglar's tools. The Minister justified the general principle of this section by reference to an Act of George IV—the Revenue Act, 1827. Section 76. That was a provision of limited application. All that that section provided was that, if a question arose as to whether the duties had, in fact, been paid, the onus was on the accused person of providing that. Ordinarily speaking, he would have the receipt, and it would be easier for him to prove that than it would be for the revenue authorities to take the onus of proof upon themselves. That was an example of quite a usual modification—that where one person has proof in his hand and the other person cannot get it, you may ask him to produce it. The other case under the Act of 1827 had reference to a question as to whether goods were of the nature or kind alleged. The onus was placed on the individual to prove that they were not of such a kind. As the goods were his, he would be able to show the nature and kind of them. It would be easier for him to do that than it would be for those who were taking the case against him. The provisions of that Act were, therefore, of limited application.

In the Customs Consolidation Act, 1876, also vouched to warranty by the Minister on Second Reading, of the three cases in which the accused person would have to discharge the onus, one was, again, where a dispute arose as to whether the duties had actually been paid; the second case was: if the goods had been unlawfully imported, whether there were circumstances which he alone could show which would change the prima facie conclusion to be drawn from the facts; and the last case had reference to the place from which the goods were brought. Again, that was only a very limited shifting of the onus in respect of a question to which the accused person would be easily able to provide an answer and to which the State could not given an answer. This section goes so far beyond that that I do not think the earlier Acts can be used to justify it as a principle which is accepted and recognised in law. If you pass this section as it is now, you are going to get a great many more convictions and you are going to get your convictions more easily. You are also going to put innocent people in a position in which it will be very difficult for them to clear themselves, and you are probably going to get innocent people convicted. The question for the House is whether it is more important that the Revenue Commissioners should get 100 per cent. convictions in guilty cases at the expense of also convicting some innocent people, or whether the Revenue Commissioners, if they get a reasonably high proportion of convictions, can do without getting the full 100 per cent., and ensure that no innocent person is likely to meet with the pains and penalties provided by the section.

It has always been regarded as a principle of the law that it is much better that a few people who have misbehaved themselves should escape punishment rather than that a person who has not done so should be wrongfully subjected to any fine, imprisonment or other form of animadversion.

That, roughly speaking, is the question for the House, and I respectfully suggest to it that the attempt to get this 100 per cent. efficiency is a mistaken one in all government. All you can do is to make a thing difficult; you cannot make it impossible. You will not, as has been remarked by Senator Sweetman, make it impossible even by this Bill. What you are going to do, I think, is to put a greater premium on the desperate corruption which already exists. I do not want to deal with that matter on this section, but I shall deal with it at a later stage. I think, however, that the effect of this will be that goods will be dearer, that the smuggling will be more difficult, that there will be greater bribery, and that that widespread corruption which, unfortunately, prevails throughout a great portion of the counties along the Northern boundary will probably become much worse, because the more difficult you make a thing the more profitable it will become and the greater incentive you give to underhand dealings. I need only cite for that the case of the Prohibition Acts in America, and also the old smuggling laws in England at the end of the 18th century and the beginning of the 19th century. The amount of corruption that they produced was staggering, and finally the rates had to be reduced so as not to give the incentive. I think that the effect of this will be that you will make it more difficult, that you will provide a greater incentive, and that you will create more of that underground traffic which at the present moment, in my humble belief, is doing more moral harm around the Border than any other thing that we can imagine.

Senators

Hear, hear!

Mr. Kingsmill Moore

I had occasion to be up there a short time ago in connection with a series of cases, and I had the opportunity of speaking to a number of people of influence, both in the legal profession and outside it. The picture painted to me by police inspectors, solicitors, clergy, and so on, of the extent to which the whole moral tone of the community had been lowered by this smuggling was staggering, because not merely was it that the actual smugglers themselves were able to bribe extensively, but I was also told—I cannot vouch for this, but I had it on what I consider good authority—that as a result of the bribery and corruption of officials concerned with this matter, the effect on the ordinary members of the community, who saw people getting rich by these methods, who saw all this winking at the law going on, and who saw a regular, carefully worked-out scheme of corruption, extending from high up to low down, was that in connection with the ordinary criminal law the offender felt that he was doing nothing wrong. He said, in effect: "If these people who are so respectable and who occupy such positions are making money by indulging in such a widespread system of bribery and corruption and the subornation of evidence, then, surely, there is nothing wrong in my stealing a few spark-plugs, or something like that." What I feel strongly is that we should get public opinion on our side in this matter, and we shall not get public opinion on our side if we create a state of affairs in which a person may be convicted because he is not able to discharge the onus of proof of his innocence. Therefore, I feel that this is a section that I have to oppose as a whole, because I am apprehensive that, although it will certainly bring in more money and get more convictions, its long-term results may be very disadvantageous so far as the moral fibre of the people of this country is concerned.

Question put and agreed to.

SECTION 4.

Question proposed: "That Section 4 stand part of the Bill."

Mr. Baxter

In connection with Section 4, I did not put in any amendment to this section on the last occasion, but I raised the matter on the Second Reading. I did not put in an amendment to the section because it is very difficult for me to do so. I subscribe, generally, to what Senator Kingsmill Moore has put so very well to the House. Any of us who live in that area close to the Border know quite well what is happening and, in fact, we are really staggered at the degree to which the moral fibre of the people as a whole—perhaps, I should not say, the people as a whole, but a limited number of them—are having their moral fibre sapped by the traffic that is going on. We all know that that traffic is taking place. We see even fairly respectable people engaging in it, and one comes to the conclusion— the only conclusion that one can come to—that it pays them very well to engage in it, and that they can only succeed to the extent to which they are prepared to pay other people, and pay them very well.

That is the real problem, and the difficulty is for the law to get its hands on the people who are breaking the law. Sometimes, one suspects that the law itself may not be as clean as is essential in order to deal with a traffic of this kind, and there again you have a difficult problem, but what I want to point out is that in this particular section you are dealing with the case of a customs official coming to a farm, and that is what I am specially concerned about. He may request any person, "in whose possession or control or on or in whose land or premises or in the immediate vicinity of whose land or premises the goods are found, to give him all information", and so on. Further down, it mentions that he must give "the name and address of the owner of the goods, the purpose for which the goods are at the place where they are found, the intended disposition of the goods, and whether the goods are intended to be exported". Then you come on down to where an officer of Customs and Excise, when he requests any person, in whose possession or control, and so on, such goods are found, may demand that that person "shall forthwith, to the best of his knowledge or ability, so give such information or produce such document, as the case may be, and that if he fails or refuses to do so, or gives any information which is false or misleading, he shall be guilty of an offence", and shall be subject to certain penalties. I do not quite know how that is going to be dealt with, but I do urge on the Minister that there is a very real problem there.

The people who are going to export butter, sugar, textiles, or the like, out of the country will not leave them in my field for any length of time. I do not happen to be along the Border, but I know enough to know that such goods will not be left in my field for a week, and if a customs officer comes upon these goods in my field, in the evening or the dark of the night, it is more than likely that they would only have been there for about half an hour and, probably, in a field far away from the residence of the owner of the farm. The customs official may not know how long the goods have been there, and he will come to the owner of the farm and request information from him. Now, let us suppose that it is my case and that I were quite truthful and said that I did not know how those goods came to be on my farm; the customs official may not be satisfied with that statement, and then you have all these pains and penalties imposed upon you. Any person like myself who has seen people grow rich on this traffic, who has seen people buying farms who had not, as we say, three halfpence, on smuggling—they are taking in and they are sending out, of course—knows that these people are like chain shops in the big cities. They have agents scattered all over and it is very easy for an agent to place a farmer in a position of very considerable difficulty. If I am unpopular enough with some of them and if I am not prepared to accommodate them, it is on my land that the goods will be kept. They will be left there deliberately and the customs authorities will then be sent to visit me. I cannot find a solution for the problem but I urge on the Minister that there is a very great danger there. I think that the Minister should look into the matter.

I know that there are a great many people living along the Border who do not smile on this traffic and who are not making any contribution to it, one way or another. When one sees that butter can be purchased in a Cavan creamery in a legitimate way and the next thing one knows is that it has got into this illicit traffic, with very considerable annoyance to people whose names may be introduced, one cannot but feel that there is a necessity for tightening up the regulations, and yet if that tightening up is going to be carried out at the expense of responsible and respectable citizens, I think your last position is going to be worse than your first. I suggest that the Minister might look into the matter to see if it is not possible to do something on less stringent lines than are provided for here.

Mr. Kingsmill Moore

I move to report progress.

Progress reported. Committee to sit again.

Business suspended at 6.5 p.m. and resumed at 7 p.m.

Mr. Kingsmill Moore

I am going only to call the attention of the House to the fact that this section also transgresses a very old principle of criminal law, though not as old as the principle to which I referred earlier. It is only about 100 years old, which is a comparatively young age with legal principles. It always has been a principle that not only should a man not be forced to incriminate himself but that he should be protected by warning from incriminating himself. Undoubtedly questions of this nature will get you information; so would torture. Torture would get quite a lot of information but if you force a person into a position in which he has to give information in order to get out of that position, he is going to say something in which it is just as likely he will protect the real criminal and incriminate somebody who is less in a position to round on him for the action he has taken. Accordingly, on these grounds, I recommend the House to be very slow in passing this section.

Mr. O Ceallaigh

I am impressed by the case that Senator Kingsmill Moore has made on this and on previous sections. By nature and inclination I am inclined not to be harsh or drastic, or to get people into trouble or to lead people into trouble, but the unfortunate fact is that Senator Kingsmill Moore mentioned in Section 3 that the thing we have to do is to get public opinion behind us. The unfortunate point is that we have not succeeded in doing that so far as smuggling is concerned.

I have come across people belonging to professions that should have a particular regard for law and order, who, to my own knowledge, have delighted in the fact that themselves and their friends have succeeded in evading the law in regard to goods coming into and going out of the country. When you find such types, it is not to be wondered at that the commonalty is of the same mind. I do not know how we are going to proceed to eradicate that kind of feeling of pleasure that exists in getting under or over or around the customs laws.

It does not apply alone to the people along the Border, the people who have profited most out of it, and who, as Senator Baxter said, have become rich as a result of the traffic. One hopes that we will one day see an end to it, and that is by the abolition of the Border. How that is to come about is beyond me to say. I do not see any solution at present. But that would end the incentive there is to evade the Customs Acts. Another thing that may modify it is the end of the emergency. At the end of the emergency, let us hope, those goods and commodities, of kinds that are scarce now, will in the ordinary course become more plentiful, and there will not be profit to be gained out of smuggling; but it is a fact that enormous vested interests have grown up in the smuggling traffic. That is there —unfortunately it is true—and we have made laws here in the Oireachtas which we find are being evaded every day of the week. I take it that the Oireachtas lays the responsibility on the particular Minister concerned to see that the law is carried out, and I am asking the House to give me more efficient implements in the law.

That is all I am asking. I dislike interfering to any extent that is not, by reason of the times, necessary, with the private individual in his liberties. We have to do it in a variety of ways, in a great many things, particularly in the customs laws which, in a very drastic way, sometimes infringe personal liberty. But really, I do not see any other way out of the section and I think some of the arguments used by Senator Baxter in favour of the restriction of the powers of the Minister and his staff could equally be used against him.

Question put and agreed to.

SECTION 5.

Mr. Sweetman

I move amendment No. 3:—

In sub-section (2), line 36, to delete the words "or conveyance".

The amendment is for the purpose of drawing attention to a particular sub-section. I have some doubt as to whether the Minister or his advisers appreciate exactly the effect of the section as I interpret it. So far as the first sub-section is concerned, it is perfectly clear and correct in my view, but the second sub-section is a mandatory sub-section for forfeiture of the carriage—using the word "carriage" as a noun—of the exported goods. I will give the Minister an example.

Suppose that a man came to the horse fair which was held yesterday in Naas and bought a farm horse at the fair. In present circumstances, it is forbidden to export a farm horse. He tells the agent of Córas Iompair Eireann that he has a farm in County Cavan, and he asks Córas Iompair to send the horse to him on a railway wagon to his land. The horse is sent up and subsequently is exported. It appears to me that the railway wagon which carried the horse from Naas to Cavan must be, not may be, forfeited.

If that is the effect of the section, I think that the Minister will agree that it is not as it should be. I am entirely with him that where a man is trying to drive something over the Border that not only should the goods be forfeited but also the cart or other means of carrying them. In this section, however, it would seem that the railway wagon or other vehicle used for the conveyance of goods at any time in the State up to the time the goods are exported is liable to confiscation.

This is a matter which is going to arise very much in the future in cases of export. It is not going to arise in cases of import, and it does appear to me that, as the sub-section is framed, it is not going to carry out the intentions of the Minister. I suggest that between now and the Report Stage of the Bill, the Minister should look into it.

I will give the Minister another example. Suppose I was to get a stone of sugar, put it into a box and label it as something else——

Mr. Hearne

Tea.

Mr. Sweetman

You cannot export tea at the present time. Suppose I label it as a bundle of papers and that at the Border it was discovered that it was not in fact what I had alleged it to be. Very probably, the stone of sugar would be forfeited, but, by the section the Revenue Commissioners would be empowered to forfeit the wagon in which it was carried. It appears to me that some discretionary power will have to be left in the hands of the justice so that it will not be mandatory on him to order the confiscation of the conveyances, as is provided at the present time.

Mr. O Ceallaigh

This section is on all fours with the section relating to smuggling inwards in the Act which has been so often quoted here—the Act of 1876. The deletion of the word "conveyance" would restrict the efficacy of the clause to one class of offence, that in which illegal exportation has been successfully effected. Seizures in such cases are naturally of infrequent occurrence; the majority of seizures are, of course, effected before the goods have actually been spirited out of the State, and the inclusion of the word "conveyance" will enable customs officials to deal with offenders making ready to export or caught in the act of attempted exportation. It is to these offences that regard must chiefly be had, and amendment must render the sub-clause nugatory is therefore quite unacceptable. That is the view of my advisers.

Mr. Sweetman

To be quite fair to the customs officers, I think it would have been much better if I had moved an amendment to the word "shall" instead of the word "conveyances".

Mr. O Ceallaigh

There are cases in which the word "may" is read as "shall".

Mr. Sweetman

You can reverse "shall" with "may" but not "may" with "shall".

Mr. Hayes

"May" is sometimes "shall" but "shall" is never "may".

Mr. Sweetman

I am quite satisfied if the Minister will look into it.

Amendment, by leave, withdrawn.

Mr. Douglas

I move amendment No. 4:—

Before Section 6 to insert a new section as follows:—

6. (1) A list of goods, the export of which is prohibited shall be available at every customs station where passengers' personal luggage is examined.

(2) Notwithstanding any provision to the contrary in this Act no person shall be guilty of an attempt to export prohibited goods if such goods were in his personal luggage when leaving the State and were produced to an officer of customs.

This amendment is an effort on my part to put down what I believe is the usual practice but what rightly or wrongly I am informed has no statutory value at all. Most travellers have to bring goods with them, the exportation of which is illegal. I do it myself regularly. Not being a nudist, it is necessary to wear clothes, to put it mildly. It is recognised by custom and also by the officers, though I think it has no statutory effect, that a certain quantity of clothes are necessary for people staying a reasonable time in England or elsewhere, and they will be allowed to be brought as long as they are produced to the officials and no harm is done. The Minister may ask why am I raising this. I say I am raising it because the Minister is bringing in an Act which, to the best of my information, provides penalties and raises difficulties that never existed before. I ask that the Minister indicate to the travelling public that they be dealt with in the same way as before, provided they show what they have got by opening their bags. I do not think the Minister could give me a list of prohibited articles. I could give a pretty long one from memory, but I am sure I would leave out something. It is not possible, unless a list is given, to know exactly what is prohibited but, at the present time, the customs officials deal courteously and quite firmly with people who bring in an excess quantity of goods. Sometimes, people bring in a few things but not to any large extent. I have been asked why I had not a half a pound of tea and I said because I had not any friends. They said: "We would have allowed it to you." As we are bringing in a terribly drastic measure, with no safeguards for the individual, and in which every safeguard is provided for the Revenue Commissioners, I think it would not be unreasonable to put down what should be the practice and, at any rate, I should like a public assurance from the Minister that the practice is going to be continued.

Mr. O Ceallaigh

With regard to the first section, I think that has been always the practice. The list is a long one at present and there are frequent changes in it, I understand. It is kept up to date from week to week, if not from day to day, and every person in the case of passage from the Border is supplied with copies of the list. They do not always read them. It is the custom to ask them have they any of the things on the list and the list is so long that very few people look at it. It has been suggested to the Revenue authorities that it would be wise to put up a board and print them on it. There are so many changes that that has not been found desirable or feasible. There is a list printed with additions written in almost from day to day and every one can see that if they want to do so. All are asked if they have any of these articles and if they wish they can ask what articles and the list is given them. Usually, they do not bother. People who are constantly going backwards and forward, probably know. I have not much experience. I do not think I have crossed the Border more than four times since it was erected and, when I crossed the Border, as luck would have it, I was not questioned. I suppose my face was my guarantee.

Mr. Douglas

As long as that is not a reflection on anybody else's face.

Mr. O Ceallaigh

I can only speak for my own face. I never knew exactly what the list was except when circulated to the Dáil or laid on the Table of the House. That is the only way I could personally have any check on what are the articles it is illegal to export or import. These lists are there at all times for the information of people crossing the Border.

Mr. Douglas

I think the Minister has completely misunderstood the amendment. It is divided into two parts. The second part is the only part I am concerned with. It was only in order to make the second part reasonable that it seemed necessary to provide that there should be a list. In other words, I do not want each list carried over to the railway carriage but, when a person so requires, he should be able to get it. What I would ask is that, notwithstanding the provisions of the Bill, you would not be regarded as committing an offence if you produced anything that is on the list given to you.

Mr. O Ceallaigh

I think the Senator has already said that he found the Revenue Commissioners reasonable people. Even where goods are on the prohibited list, where they are in small quantities, where they can be used by persons on the job, cigarettes, cigars— I do not know about alcohol—I think they would be allowed to take a small quantity. I think it is generally agreed people are reasonably facilitated by the Revenue officials. They ask people: "Have you got such and such articles", and if they tell they will be at all times facilitated. I have not much experience but certainly, in the old days, I used to travel back and forward and I think the same custom prevails. If you declared what you had you were reasonably treated. The same tradition is, I think, carried on now. It is only when people conceal things and get nervous in their attitude that the customs officers get suspicious. They are allowed to take small quantities, like the half a pound of tea Senator Douglas mentioned. That would be allowed, and I think it is a reasonable attitude.

Mr. Douglas

I suggest that what they do is illegal, that they have no legal sanction for what they do. I think it would be much better to give them legal sanction.

Mr. O Ceallaigh

I think they must have discretion. I would not object if some of the officers allowed even more —say, three-quarters of a pound of tea. I only mention that because it was mentioned by Senator Douglas. Once they are facilitated, I think discretion should be allowed to them, and I would rather not have down in black and white what that discretion should be. But if they are treated reasonably, I would like them to have a free hand.

Amendment, by leave, withdrawn.

Sections 6, 7 and 8 agreed to.

SECTION 9.

Mr. Sweetman

I move amendment No. 5:—

To add to the section a new sub-section as follows:—

(3) Any judge of the Circuit Court may, in his discretion, on an appeal under this section, direct that the complainant pay the cost incurred by the respondent in connection with such appeal (including any costs incurred by him on any reference to the Supreme Court as provided by the next following section).

I understand that the Minister feels that this amendment is not necessary, as a Circuit Court judge has already power to grant costs. I cannot see how that arises, though I have not got the recent Supreme Court judgement. I understand that the position was that the court held that a prosecution in a revenue case was a criminal offence. An appeal by the State from a criminal offence does not exist, unless and until this section is enacted. I cannot, therefore, quite see how the question of costs on appeal can be covered by existing law.

Mr. O Ceallaigh

I am advised that costs can, at the discretion of the judge, be awarded to or against the State in a customs appeal to the Circuit Court from the decision of the District Court. There is, therefore, no case for making provision as proposed. As regards the proposal in relation to costs incurred by the respondent on a reference to the Supreme Court arising out of an application by him or by the complainant under clause 10 of the Bill, it would clearly not be competent for a judge of the Circuit Court to make an order affecting costs arising in a matter to be determined in the Supreme Court. The consensus of legal opinion is that the Supreme Court has full jurisdiction as regards costs and this proposal is, accordingly, unnecessary.

Mr. Sweetman

I accept that the Minister is very competently advised, but I cannot understand how the costs can be covered by existing law. I do not know whether I am right in thinking that this is the first time the State will have power to appeal in a criminal case where the decision in the first instance has gone against it.

Mr. O Ceallaigh

I do not know that it is the first time in this type of case.

Mr. Sweetman

Well, in revenue cases?

Mr. O Ceallaigh

Yes.

Mr. Sweetman

If it is the first time in revenue cases, how can there be any existing legislation to cover it? I have read the Customs Consolidation Act of 1876, but this Bill is being brought in in an entirely new form for the first time, and I cannot understand how this could have been visualised before this section was introduced and how there could have been provision for costs.

Mr. O Ceallaigh

The Senator ought to be more familiar with this type of matter than I, but I am giving the advice I have received: Order XL (27) of the Circuit Court Rules is: "In appeals from the District Court party and party costs, shall be allowed on the scale set forth in Part VIII of the Third Schedule." Order XLI is: "Save where otherwise stated these rules shall apply to all proceedings on behalf or against the State or any Minister or Department." That seems to settle the matter.

Mr. Sweetman

Would the Minister let us leave this matter over and consider the question before Report? If the Minister would give us a copy of the statement he read, we could consider it.

Mr. O Ceallaigh

Is there no chance of getting the Report Stage to-day?

Mr. Sweetman

We will give you the Report Stage to-morrow.

Amendment, by leave, withdrawn.

Sections 9, 10, 11, 12 and 13 agreed to.

SECTION 14.

Question proposed: "That Section 14 stand part of the Bill."

Mr. Baxter

I confess I am not satisfied with the optimism of the Minister expressed in this section:

"This Act shall continue in force until the 31st March, 1950, and shall then expire".

I would be much more optimistic about the Border going than the Minister. Frankly, I think that that is a confession we ought not to put into an Act of the Oireachtas. I suggest to the Minister that it would be much wiser policy for us to re-enact this measure annually, if necessary. I think that this is a line we ought not to pursue—to put in a confession of our belief and conviction that these conditions are going to continue for the next five years. That is a very long period. I should hope that the atmosphere would change and that the prospects are much brighter than the Minister visualises. I am not going to raise any hares on that. I disagree with the Minister in making a public declaration that the Border is going to be there for the next five years.

Mr. O Ceallaigh

I hope the Senator's optimism will be justified and, if so, I will be the first to congratulate him.

Question put and agreed to.

Schedule and Title agreed to.

Bill reported without amendment.

Report Stage fixed for Thursday, 22nd March, 1945.