Vol. 73 No. 14
Before the House proceeds with this Stage I should like to convey to Senators that the Cathaoirleach has ruled amendment No. 1 out of order as the amendment involves a matter which has been decided upon by the vote just taken by the House.
SECTION 1.
I should like to say a few words on the section as it stands without a time limit since that was the substance of the amendment that has been ruled out of order. The Seanad should consider very deeply the fact that this Bill will be permanently on the statute books if it is passed this evening or tomorrow morning. This Bill will have had a very cursory review in the Seanad.
If I could interrupt the Senator, amendment No. 1 has been ruled out of order. All that is before the House is section 1, which is essentially a definition section. The remarks the Senator is now making would appear to be more appropriate to the Fifth Stage of the Bill.
I accept the ruling of the Chair.
I move amendment No. 2.
To add a new subsection as follows:
( ) Where a member of the Garda Síochána had demanded of any person his name and address and an account of his recent movements under subsection (1) of this section, such person shall have the right to request the presence of his legal adviser, and such person shall not be obliged to give the information requested until he has consulted his legal adviser.
This amendment inevitably had to be drafted in a hurry. If the principle is acceptable to the House it might be improved by redrafting on Report Stage. The purpose of the amendment is to write in some procedural protection for the individual in this section which gives power to a member of the Garda Síochána to seek information from the individual. Section 2 states:
Where a member of the Garda Síochána
(a) has reasonable grounds for believing that an offence which is for the time being a scheduled offence for the purposes of Part V of the Act of 1939 is being or was committed at any place,
(b) has reasonable grounds for believing that any person whom he finds at or near the place at the time of the commission of the offence or soon afterwards knows, or knew at that time, of its commission, and
(c) informs the person of his belief as aforesaid,
the member may demand of the person his name and address and an account of his recent movements and, if the person fails or refuses to give the information or gives information that is false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.
The problem here, as with many other sections of the Bill, is that it raises a conflict between the protection of the individual and the interests of maintaining law and order as has been described by the Minister and also the securing of convictions of persons.
The Constitution, under Article 40, guarantees that a person shall not be deprived of his liberty save in accordance with law. I agree with a statement of a very well-known American constitutional judge, Mr. Justice Frankfurter, in a case in 1943 when he said: "The history of liberty has largely been the history of observance of procedural safeguards". These procedural safeguards are conspicuous by their absence in this Bill. It is necessary to ensure that in the political climate in which this Bill is being debated, and with the very real tension in the country, we do not neglect the vital question of writing in procedural safeguards to protect the individual.
I should like to make one comment, and I make it in the absence of the Senator concerned, that is I was very saddened that Senator Alexis FitzGerald did not see the necessity of processing this Bill even in the very short time we have and of looking at the sections with even more vigilance because of the very short time and the responsibility on Senators to make sure that the safeguards are written in. I propose to explain the reason behind this amendment and to try to convince Senators that the amendment, although not perfectly drafted—I am prepared to amend the draft—is necessary and compares with the sort of protection of another jurisdiction which in this area has very similar laws and a very similar desire to protect individual liberty as we have.
The question of the liberty of the individual in Article 40 of the Constitution that no person should be deprived of his liberty save in accordance with law gives rise to what is meant by "in accordance with law". I want to look first at the way in which a similar provision of the American Constitution —that:
No person shall be deprived of his life, liberty or property save by due process of law.
—has been interpreted to give the sort of protection which this amendment would try to introduce into this Bill.
The requirements of due process are that the person will get a fair hearing. Here I must disagree very strongly with some of the comments made by Senator Nash when he spoke about the fact that in civil law systems a person is very often forced to answer questions and explain his position.
The civil law systems work under an inquisitorial system. They do not have, as we have here and in the United States, an accusatory system. You cannot compare them in the way in which Senator Nash did and forget that in the civil law system there are other built-in protections of individual liberty. You cannot take the fact that questions may be asked of the accused under the inquisitorial system and try to introduce it into the accusatorial system. It was a very weak argument on Senator Nash's part and one with which we need not concern ourselves. We are trying to maintain in this country the accusatory system to balance the conflicts of society and, at the same time, protect the individual. The requirements therefore of due process and the essentials of fair procedure are that there be a fair accusatory system; that there be jurisdiction over the defendant; that there is some connection between the defendant and the legal unit, that is, that he be in some cases physically present, or domiciled, in some cases citizenship and so on. He should be given reasonable notice of the proceedings in order that he may prepare his defence. He should be given a hearing. Some sort of trial is essential. He must have a fair tribunal, an unbiased judge and a fair jury. There should be no trial by newspaper or by the media. A prosecutor must act within reasonable limits in prosecuting. He must present the prosecution case fairly and not in such an emotional manner as to distort the trial.
I now come to the relevant part of the essence of due process of these criteria, which is that in recent cases in the United States there has been the extension of the meaning of due process to include the right to legal assistance. This was established in earlier cases, in Gideon and Wainright in 1963. It was also established that a person has a right to counsel when they are being interrogated in a police station. It was established in a case the following year, Escubedo v. Illinois, in 1964. I should like to quote from the case of Miranda v. the State of Arizona in 1966, where the question of the rights and position of the individual when faced with the process of law was considered. It was considered by the chief justice of the court at that time, Chief Justice Warren. I am quoting from the Cases on Constitutional Law, by Freund, Sutherland, Howe and Browne, at page 1417. Quoting from the judgment of the Supreme Court, Chief Justice Warren said:
Over 70 years ago our predecessors on this court eloquently stated the maxim Nemo tenitur se ipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system and, until the expulsion of the Stuarts from the British throne in 1688 and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner when voluntarily and freely made have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner and to entrap him into fatal contradictions which is so painfully evidenced in many of these earlier cases made the system so odious as to give rise for a demand——
I should like to intervene to say that the issue which we have here is that of the rights of a person questioned under section 2. While passing references to positions in other countries would be appropriate, it would not be in order to dwell on them at undue length.
It is not my intention to dwell on them unduly. I am trying to stress that the amendment I am bringing forward is a reasonable protection of the individual, given the very wide power which we purport to introduce in this section. If I may resume the quotation——
May I interrupt for a moment to ask the Senator if she would be good enough, for the sake of the non-legal people here who have not her ability, to translate it into plain English. Tell us what it all means in a few sentences.
It means you are wrong.
We are not all experts.
I will translate. It means, in English, that in the United States, as a result of the interpretation of the Constitution and through the case law of the Supreme Court, that an individual is entitled to his lawyer when he is being interrogated in the police station. He is entitled to his lawyer in court. If he is too poor to afford the services of a lawyer he is given a lawyer under legal aid.
What I am saying here is that when we give the Garda Síochána the right to ask the name and address and an account of the conduct of a person who is found in a particular place by that member of the Garda, that person should be entitled to the presence of a lawyer before giving this information. There is a principle against self-incrimination. This principle is written into the United States Constitution. At the same time, it can be inferred from the protection which our courts give to the personal rights of citizens. I intend to take the time to argue the case from the Irish Courts of the principle against self-incrimination— that a person will not be obliged in answering a question to incriminate himself. This could happen in these circumstances where an individual was in a vicinity where the member of the Garda believed that a scheduled offence under the 1939 Act had taken place. That person could be involved in some other unlawful activity—for example, he might have attempted to burgle the next door house. If the person must give an account of his activity he is incriminating himself. The law has always been very careful to protect the individual from incriminating himself.
I have a telegram here summoning me to the House this morning. On my journey I was stopped three times by the Garda who asked me who I was, where I was coming from and where I was going. I did not feel that they were making any offensive charge against me.
With all due respect, had you not answered you would not have been guilty of a criminal offence. It is the circumstances of creating a criminal offence with which we are concerned.
I did not know.
The Senator might have been visiting a lady not his wife and he might not have wished to disclose what he had been doing over the period in question. In those circumstances, happily, as the law stands at the moment the Senator could remain quiet without incurring the odium of the criminal law. This type of provision in section 2 is dangerous in that it can lead a person to incriminate himself by answering the personal questions asked by a member of the Garda, which will give rise to a problem of self incrimination. If he refuses to answer those questions he will be guilty of the offence provided for in section 2.
In recent Irish case law the tendency has been for the courts to protect what are called the personal rights of the citizen. I am concerned that it would appear here that one of the personal rights of the citizen, the right to remain private, the right not to have to account for his whereabouts and possibly incriminate himself in doing so, may be infringed by this provision. We should all be very concerned about the dangers inherent in giving this power. The courts have used another section, Article 40, section 3 (1) which reads:
The State guarantees in its laws to respect and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen.
In trying to establish what are the personal rights of the citizen it was stated by Mr. Justice Kenny, in the fluoridation case where a woman was challenging the invasion of her family rights by putting fluoride in the Dublin water supply, that there are personal rights of the citizens which the courts will protect. They will declare that legislation is unconstitutional if these rights are invaded. These go beyond the specific rights mentioned in the Constitution. He gave two instances of where it goes beyond them. The right to travel around the country is not written into the Constitution but we all accept it as the personal right of the citizen. He mentioned also the right to marry. This is not written into the Constitution but we all accept it as being one of the personal rights of the citizen. I would say that another of those rights could be the right to remain silent or at least the protection of legal advice if one is making statements which may be incriminating and the refusal to make them being itself a criminal offence.
I should like to emphasise the necessity for the House, however late the hour and however tired we may be, to listen to the arguments and to examine the provisions thoroughly. Exactly two years ago to the month the two Houses of the Oireachtas passed a Bill giving powers to the Committee of Public Accounts to inquire into the use of £100,000 of public money. Because they passed that Bill without sufficient consideration it was declared unconstitutional by the Supreme Court within a few months of its enactment. We do not want the same thing to happen to the Offences against the State Bill. I believe that there are parts of this Bill which are unconstitutional. If we are to pass it in a hurry, at least we should implement the procedure under Article 26 of the Constitution and the President should refer this Bill to the Supreme Court. I do not think that either House of Parliament has scrutinised it sufficiently. I believe that the powers contained in it are too broad, they are potentially unconstitutional——
The Senator is again moving to a general point that might be more appropriate on Fifth Stage. It is not appropriate on the discussion on an amendment in which the arguments should be related to the net issue of the amendment.
I find some difficulty in that when I submit the point I wish to make I become rather technical and, therefore, rather boring. I have not got the great capacity of Senator Alexis FitzGerald, which I admire very much, to put his attention to the Bill and, if necessary, be boring. I find myself in difficulties in going on at considerable length in the knowledge that people are tired and that it is a late hour on a Saturday evening. Nevertheless, there are very important points to be made on the Bill and on each section of it.
The Irish courts are concerned to protect the individual. They may find that section 2 of the Bill goes beyond the police powers which are tolerable in the State in view of the constitutional protection of personal rights. Therefore, in moving this amendment I realise that the wording of it is not at all perfect but the idea is a valid one. If a person is to be asked to account for his movements, with the possibility of having committed a criminal offence if he refuses, the person ought to have a right to have his lawyer present while he is making these statements because of the very broad wording of the section.
In seconding this amendment, I should like to make one brief point arising from the obvious impatience on the other side of the House. For my part—and I am sure I speak here for Senator Robinson also—the act of putting down this amendment, or, indeed, any amendment, has nothing to do with a desire to filibuster. I yield to nobody, and I am sure Senator Robinson agrees with me, in my abhorrence of forms of violence with which this section of the Bill is intended to deal. It is a very sad state of affairs that, in a country such as Ireland, one should have to make such an explicit avowal. Everybody in this country who is in possession of his senses is against the type of activities with which this Bill is intended to deal.
On the amendment, I would agree with and support wholeheartedly the spirit in which Senator Robinson has proposed it. I agree with her that, perhaps, the wording could be improved. Its basic effect is to counterbalance the restriction on the rights of the individual which is contained in the section, as it stands, with a proviso that may or may not have the effect of protecting a person arrested under this section but which would definitely improve his rights somewhat. Law is becoming more complex every day. As law becomes more complex, it becomes more and more important to safeguard the rights of ordinary people who have to cope with the law. They may find themselves in the situation in which, through no fault of their own, they are, or appear to be, on the wrong side of the law.
Unfortunately, it seems at present that in a situation in which law is becoming more and more complex the people whose duty it is to enforce the law are usually in possession of far more information about the law than the people against whom the law is enforced. The classic example of this is the yellow card issued to members of the crown forces in Northern Ireland giving instructions as to when fire may be opened and when fire may not be opened. The unfortunate people who may be at the receiving end of the action carried out on foot of this instruction are not at all as well equipped to understand their rights, in a tense and dangerous situation in which conflicts arise.
I would hate to see the situation develop where, in order to protect individual freedom, ordinary people would find it necessary to carry around little pieces of paper or cards reminding them of their rights in situations in which they may be put under arrest or questioned by members of the Garda Síochána, for the only reason that their rights have been so constricted by legislation that they cannot possibly memorise them all and need some convenient form of aide memoire to help them. I do not think we are in that situation now. I see the section, as unamended, as tending towards this situation; it extends the law relating to individual rights without providing the slightest counterbalance in favour of the individual citizen. I know that the Minister is not completely closed to this point of view, and that he is well aware of the very serious implications of the growing complexity of law generally, and more especially of the law relating to personal freedom of individuals.
For example, the Minister has to my knowledge, unless I am misquoting him, spoken with some approval of the new free legal advice centres which have been set up in different parts of the country. As far as I understand the situation, he has even to consider favourably making Government money available to such centres, provided they can show evidence that they are a truly national service. This is the spirit in which this amendment is proposed, and it is the spirit in which I hope the Minister will accept it, or a version of it.
Before we continue, I will remind the Seanad that this is not like a normal night, when we could carry on and not worry about sitting until 3 a.m. or 4 a.m. Tomorrow is Sunday: we cannot sit then. Therefore, we must finish these proceedings at a reasonable time. I wish to remind Senators that——
Is it definite that we cannot sit tomorrow? Is there any legal or constitutional objection to sitting tomorrow? It is not that I want to sit; I merely want information.
Is it in Standing Orders?
As far as I know, the Seanad cannot do business on Sunday.
How does that arise?
As far as the present occupant of the Chair is concerned, there is no reason known to me for not carrying on. I have not been advised that there is any and, until I am advised to that effect, I am quite prepared to allow this discussion to pass midnight.
Perhaps we are not getting the real reason.
The real reason is, of course, that we want to get the Bill quickly. Otherwise, I was worried that sitting later than midnight would render the thing impossible. Since you want the real reason, surely to God the majority in this House have some rights as well as a minority of four or five? There are two of the minority here. If the majority here, by declaration of vote, have decided on a certain course, to ratify the Second Stage of this Bill, surely two people are not going to hold us up for the rest of the night?
This is an amendment.
No muddled talk about the rights of the majority can take away the responsibility of Senators to look at the legislation going through the House and to give it their best attention. I do not like being here on a Saturday night any more than Senator Ó Maoláin; I do not like being away from my baby daughter on a Saturday night, and I had other arrangements I would rather attend.
I still believe it is the duty of Senators present to pay very close attention to the terms of this Bill. It is a piece of emergency legislation, because of the emergency conditions under which it is being steamrolled through the House. I have made the point and I should like to see the safeguards for emergency legislation where it would only last for a certain period, unless both Houses of Parliament voted for it to continue. To suggest that we are either trespassing on this House or that we are abusing the procedure, or that we are deliberately staging a filibuster is to add even more steamrolling to what has already been done.
I take grave exception to the suggestion that we are abusing our position as Senators. We are doing what we were elected for, and we shall continue to do what we were elected for. We shall look at each section of this Bill and we shall make points where we consider that it is an invasion of the rights of the individual, and where we consider it to be a very important matter. I regret the empty seats on this side of the House, and I think Senators are not fulfilling their obligations. It is part of a very sad week for Ireland and a sad week for the Seanad that it is so.
Go up to the Mater.
I have been advised that there is a precedent for this House to sit on a Sunday. There is apparently nothing in law or in Standing Orders to prevent our doing so. It would therefore, be appropriate if the debate continued on amendment No. 2.
Senator Robinson dealt at some length with the history of liberty. It is true that the liberty of the citizen can be undermined by the excessive demand for power by the State. On the other hand, there is another way in which the liberty of the citizen can be undermined, and that is by the failure on the part of the State to take adequate powers to deal with difficult situations. One situation is just as bad as the other. It is the duty of the State to take adequate powers to protect institutions and to ensure that citizens are protected against subversion and violence. One must weigh up one situation against the other.
Senator Robinson has made some interesting references to procedure in court, again to ensure that the citizen is protected. She was talking about normal times; normal times are quite different. The procedure that would be proper in normal times is one thing; procedure that would be appropriate in unusual times is quite another one. We are talking about very dangerous situations, very abnormal times. We are talking about a piece of legislation which has been brought in because of these difficult times. There is no mistake about it and no pretence that it is anything other than an unusual piece of legislation which asks for rather far-reaching powers that would not be asked for in normal circumstances. Consequently, it is a completely different thing. We must, therefore, think of this Bill on the basis that it is asking for unusual powers because of an unusual situation.
Apart from that, even if it was not an unusual Bill and an unusual situation, the amendment with which we are dealing asks for powers which are not at all unusual. In many quite mundane Acts in the statute book, such as the Road Traffic Act and the Road Transport Act, and several other Acts of that kind, the Garda have power to ask for a person's name and address and a limited number of factual details, which enable them to decide whether or not an offence has been committed or is likely to have been committed. Certainly, to ask somebody for his name and address, and that he should have to get legal advice to answer that kind of a question is really quite ludicrous.
I would accept that.
A person who has to get legal advice as to which of his names he should give does not require much sympathy from us. It is, therefore, going much too far to suggest that this is a serious inroad on the liberty of the citizen by asking him for his name and address and his movements during a short period beforehand, and to suggest that he should have a legal adviser before he answers that. The next suggestion is that he will probably be required to have a spiritual adviser as well before he answers these questions.
I should like to reply briefly to Senator Ryan on the point he made about these being unusual times. I appreciate the reasoned way in which he is continuing this debate, but I fear that anybody who rises to his feet to discuss this Bill is in danger of being tainted with either supporting violence or of being a member of an unlawful organisation. I resent that sort of suggestion. The Senator has said——
I made no suggestion of that kind. I said that what you suggested was unreasonable.
I was referring to an inference which could be drawn from the Minister asking why I did not go to the Mater Hospital? I am here tonight as a Senator debating the legislation which we propose to put on the statute books. Senator E. Ryan said that these are unusual times. I would like to refer to the proper attitude of Senators and lawyers and responsible citizens of the State in unusual times. We should be particularly careful not to limit individual rights, as a response to acts of violence. Such a response could be one of fear and a desire to introduce repression, and to meet violence with another sort of violence.
At a time such as this when there is a crisis in the country we must be concerned, in talking about due process and about the protection of the individual. I would like to quote from Mr. Justice Frankfurter in a case in 1951. It is a relevant quotation, as it underlines the principle under which we operate——
The requirement of due process is not a fairweather or timid assurance. It must be respected in periods of calm and in time of trouble. It protects aliens as well as citizens but due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilisation. Due process cannot be imprisoned within the textual limits of any formula representing a profound attitude of fairness between man and man and more particularly between the individual and Government. Due process is compounded of history, reason, the past course of decisions and stout confidence in the strength of the democratic faith which we profess.
Due process is not a mechanical instrument or a yardstick. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process. In the Irish context, the Seanad is entrusted tonight with unfolding the process and with debating this Bill from the point of view of whether it has adequate safeguards for the individual. I ask for the patience of the Seanad to make certain points and to put forward amendments. This is a serious piece of legislation. The issue has been clouded both in another place and in this House by outside events, and because of that there is a danger that we will allow ourselves to forget our responsibility as Senators and not examine the legislation before us as we are given the responsibility under the Constitution to do.
First of all, I am saddened by the attitude taken towards Senators on this side of the House by Senator Robinson in dealing with this amendment. She seems to be presenting a case that nobody on this side of the House has given this Bill any serious consideration and that nobody has scrutinised thoroughly this particular section of the Bill. Tonight we are speaking in a situation where we are conscious of the need to have this Bill passed through the Oireachtas as speedily as possible but at the same time I would remind Senator Robinson that we had this Bill before us during the week.
I am speaking as a Member of the major Parliamentary Party in this House. This Parliamentary Party considered this Bill thoroughly. Each section was subjected to scrutiny at a Party meeting and a unanimous decision was reached to support the passage of this Bill through the House. I would like Senator Robinson to be clear that Senators on this side of the House have given careful consideration to the serious matters contained in this Bill at a time when we were under no threat or emergency and at that time it had the unanimous backing of the Parliamentary Party on this side of the House. It is sad that the attitude and integrity of this side of the House, in studying this piece of legislation, should be called into question in this way.
I was not calling it into question. I was asking for patience from that side of the House while we debate the point in the Seanad and are given time to do so.
We are engaged in the process of debate and I would have more sympathy for the points being made, particularly in regard to this section, if I thought there was some substance in them. I listened sympathetically to what Senator Robinson said and I read the amendment which was circulated. I find it difficult to have any sympathy with her point of view.
Senator Ryan raised the natural reply which Senator Robinson immediately conceded that the type of powers to question, which are in this section, are already in other legislation and that, indeed, in general terms the right of a person, who is subject to an accusation under the law to legal advice, and to consult a lawyer is never at question in the State. When this Bill becomes law if a person is brought before the court under this section he will have the right in court to state any grievance or dissatisfaction he may have with the legal aid at his disposal. This is the normal right of anybody brought before the court. It is a matter which is subject to the scrutiny of the public and the press and, indeed, subject to the decision by the court, which makes the ultimate decision on the matter of justice involved.
That is the factual context in which we are considering this section. There are no new threats to the rights of the individual. In particular it seems to me that the remedial wording suggested by Senator Robinson is completely inappropriate and misguided. To say that such a person should have the right to request the presence of his legal adviser really boggles the mind, when we consider the way in which men dedicated to the overthrow of the State and the disruption of law and order could treat that particular suggested wording. By the time a legal adviser would arrive for such a man a lot of water would have flowed under the bridge.
And a lot of blood too.
This is the difficulty. I want to make my position clear on this because there is a lot of woolly thinking in the matter of personal rights and liberties. Liberals are classically the protectors of the rights of the individual. The test of a liberal is if you feel like a liberal. I feel like a liberal, but the difficulty of anybody who feels this way in the times in which we are living is that there are evil men in our society who are committed to the complete overthrow of that society and if you once recognise that fact and recognise that the majority of law-abiding, ordinary, decent citizens must be protected you immediately run into all sorts of practical difficulties in trying to assess a particular problem affecting particular individuals as this section will do.
I am satisfied that in this section a balance is struck between the rights of the accused individual and of the community as a whole to be protected, particularly when this section deals with an aspect of law which has, in Border areas, fallen into disrepute where we have had extensive coverage in the newspapers of men having ditched guns at the scene of an incident, walked away and laughed scornfully at the Garda Síochána. This section deals with a menace which has brought the law into disrepute and that it does not interfer in any way with the liberty of individuals who may be questioned within an area where incidents may have occurred.
I thought we were dealing with the amendment.
Certainly.
I do not want to interrupt. The Senator has prompted a few thoughts of mine which are more appropriate on the section than on the amendment. I should like to follow him, but I would probably be ruled out by the Chair.
I regret having strayed from the amendment to the section.
The Senator could come back to the section. The Chair was worried that the Senator was going on very general lines. If the Senator wishes to speak briefly on the section in the light of the amendment, it is quite in order.
I will finish with one point I wanted to make. It applies both to the amendment and to the section and, perhaps, to a wider context as well. The one person who does not need the suggested protection of this amendment and who does not need this section or be affected by it in any way is the ordinary law-abiding person who is never involved in any of the events we are discussing at this tragic weekend.
I should like to express my agreement with everything stated by Senator Ryan and my puzzlement at his failure to follow through what he said. He began by making a very reasonable case and one with which I agree in principle. This is an unusual situation and we are looking for unusual powers, rescinding for a moment from the question of whether these particular powers are adequate to meet the situation or are a form of overkill.
Why did not Senator Ryan follow through and take the obvious consequence of indicating his acceptance of a time-limit on the operation of the whole Bill, and not just one subsection?
I again support Senator Ryan when he stated it is somewhat extreme to expect anybody who is asked for his name and address to cry "halt" and send for a battery of solicitors or barristers.
Probably a battery of barristers and a clutch of solicitors.
I accept the Senator's correction. Both Senator Robinson and I have made it clear that our real problem regarding the section is not with the name and address but with the "failure to give an account of one's movements" part of it which opens the door to the possibility of self-incrimination.
The other enactments to which Senator Ryan referred, in which the gardaí are entitled to ask for more than the name and address, are mostly connected with the Road Traffic Acts. The information which they are entitled to seek above and beyond the name and address, is very specific and delineated in the enactments concerned. This is a vague catch-all phrase which raises a small, but substantial, spectre in the area of personal freedoms.
When Senator Robinson was making what I thought a very reasoned case about individual rights, she was interrupted briefly by the Minister who advised her to go to the Mater Hospital and explain to the people there what their rights were. I should like to ask the Minister a question which I doubt he will be able to answer. Why have no prosecutions been taken against the people who assembled outside the Mater Hospital, under section 9 of the Offences Against the State Act, 1939?
We are making a lot of ado about what is really very little to the law-abiding citizens of this State. Article 40 of the Constitution states:
No citizen shall be deprived of his personal liberties save in accordance with the law.
We are having a very selective extract from the Constitution. The same Article states:
All citizens shall, as human persons, be held equal before the law.
It also states:
The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustices done, vindicate the life, person, good name and property rights of every citizen.
This is exactly what this Bill is endeavouring to do. The citizen is not just the man who is asked for his name and address and an account of his recent movements. He is also the person who is shot at, maimed, frightened or has his property destroyed.
Senator Robinson criticised me for mixing up the inquisitorial system and the accusatory system and stated that I gave a reference which refers to the inquisitorial system which has built-in protections for the citizen subsequently at the hearing. I am not aware of one built-in protection for the citizen at the actual hearing in the European Courts that is not provided for in our system of hearing of criminal trials.
Senator Robinson also took very astute selections in quoting from our Constitution which states: "The citizen shall not be deprived of his rights save in accordance with law." In other words any law which purports to deprive the citizen of his rights must be made by the Oireachtas. That is what we are doing in order to comply with our obligations under the very Article of the Constitution from which she quoted:
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
We are endeavouring to protect the lives and properties of all our citizens. Some people were maimed in this city one week ago and two other lives were unfortunately taken last night. While this is required by the Constitution we are told we must only protect the accused. Most of Senator Robinson's quotations were taken from American law which states the "due process of law". She referred to a quotation from Chief Justice Warren back in the year 1689. If we go back to 1691 and the Battle of the Boyne we get the nub of the whole problem. That is where our difficulties all started. Perhaps the Senator was much nearer to the actual roots of things than she realised. She then stated, and I took a careful note: "A person is entitled to a lawyer when interrogated in a police station." Nobody is denying that. The section to which she referred takes the place of a section on which the Government refused to act because the person could be interrogated only in a police station.
Which section is that?
Section 52 of the 1939 Act. The Senator stated that if a man is asked for his name and address and an account of his movements in the recent past it is an infringement of his rights. Senator Robinson went so far as to suggest it was unconstitutional. However, she can argue that in the Supreme Court some day. Laws must be made to meet circumstances. In the Road Traffic Act, 1961, section 107 (1) provides:
Where a member of the Garda Síochána alleges to a person using a mechanically propelled vehicle that the member suspects that such person has committed a specified offence under this Act, the member may demand of such person his name and address and may, if such person refuses or fails to give his name and address or gives a name or address which the member has reasonable grounds for believing to be false or misleading, arrest such person without warrant.
That is very specific.
This is very specific too where he demands his name and address.
The difference is that in the section the Senator mentioned, the person in question is the suspect whereas under this section a person who is not himself a suspect may be questioned because he may know something.
Subsection (4) of section 107 of the Road Traffic Act, 1961 states:
Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under the Act involving the use of a mechanically propelled vehicle—
(a) the owner of the vehicle shall, if required, by the member state whether he was or was not actually using the vehicle at the material time and, if he fails to do so, shall be guilty of an offence,
(b) if the owner of the vehicle states that he was not actually using it at the material time, he shall give such information as he may be required by the member to give as to the identity of the person who was actually using it at that time and, if he fails to do so, shall be guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who that person was,
(c) any person other than the owner of the vehicle shall, if required by the member, give any information which it is in his power to give and which may lead to the identification of the person who was actually using the vehicle at the material time and, if he fails to do so, shall be guilty of an offence.
That was designed to meet a particular set of circumstances where you had fast moving traffic. This Bill is designed to meet a particular set of circumstances where people have allocated to themselves the right to take human life, destroy people's property and set themselves up as an army. In those circumstances a member of the Garda Síochána may demand from a person his name and address and an account of his recent movements. Surely any legislative body with a sense of responsibility, having regard to those facts, should not abrogate its responsibility to protect as is provided for in Article 40 of the Constitution to which I have referred from unjust attack and vindicate the life of the person and the property right of every citizen.
I should like to say a few words on this. Senator Nash is not correct in his approach to it. He is incorrect in assuming that the section which it is sought to amend in the manner proposed necessarily refers to a person who has been guilty of an offence. The principal distinction between section 2 of this Bill and section 30 of the Offences Against the State Act of 1939 is that the latter section refers to a person who is a suspect whereas section 2 of the Bill before us refers to a person who, by reason of his proximity at a particular time, the member of the Garda Síochána has reasonable grounds for believing he knows or knew of the commission of an offence. This does not necessarily imply that the person is in the position of being a suspect but merely that he was around at the time and the member of the Garda Síochána thinks he must know something about it.
In those circumstances Senators Robinson and Horgan have put forward the suggestion that a person in that position should be afforded the opportunity of having consultations with his other legal advisers before being required to give the information. I do not think this amendment would solve the problem. If this amendment were to be accepted by the Minister the result would be to drive the administration back to relying on the combined operations of sections 30 and 52 of the Act of 1939. The point being put forward is that the person who is being interrogated here is not necessarily a suspect but somebody who, by reason of being in the vicinity, may have knowledge.
I do not wish to be emotive about this but it is a section which empowers the authorities to require a person to inform with regard to any knowledge he may possess in connection with the commission of an offence. My reason for saying this amendment would not provide the kind of safeguard which the proposers had hoped to achieve. With one exception, all the power which the authorities will have under this section is already contained in section 30 of the 1939 Act, which provides that a member of the Garda Síochána
...may without warrant, stop, search, interrogate and arrest any person or do any one or more of those things in respect of any person whom he suspects——
I want to emphasise "suspect"
——of having committed or been about to commit, or been or having been concerned in the commission of an offence under this Act.
The first requirement is that the garda is dealing with a person who is a suspect.
This section now deals with a person who may have information. If you combine with section 30 the provisions of section 52 of the 1939 Act, any apparent lacunae are very well filled in because if the garda arrests a person, as he is entitled to do under section 30 of the 1939 Act he is entitled to obtain information from him. All information in his possession may relate to the commission or intended commission by another person of any offence under any section or subsection of this Act or any scheduled offence. In short, the position is that the proposed amendment would not remedy, so far as the statute law is concerned, the point which Senators Robinson and Horgan have in mind.
Therefore, there is some vestige or semblance of a safeguard in the present section which does not appear in the other sections I have mentioned, such as sections 30 and 52 of the 1939 Act. In relation to this section, the garda is required to have reasonable grounds for belief. If he acts without having reasonable grounds for his belief he may find himself in considerable difficulties. Under sections 30 and 52 of the other act the garda may act merely on suspicion. This is not as strong a statutory protection as saying that he must have reasonable grounds for belief before he acts.
Speaking as a layman, I find the amendment proposed by Senators Robinson and Horgan most unrealistic. It states that:
Where a member of the Garda Síochána had demanded of any person his name and address and an account of his recent movements under subsection (1) of this section, such person shall have the right to request the presence of his legal adviser, and such person shall not be obliged to give the information requested until he has consulted his legal adviser.
If this Bill had become an Act some months ago let us look at what could have happened in the tragic events near Liberty Hall last night. If the gardaí, seeing some individuals running towards a car after the blast, stopped them to ask their names, addresses and an account of their movements, would it not be ludicrous if they then had to wait until these people got their legal advisers from Belfast or wherever they came from?
With respect to the Senator, this is the point of what Senator O'Higgins was saying. There are other sections of the Offences Against the State Act which are effective in those circumstances. The gardaí in those circumstances could under section 30 arrest the particular individual involved. I should like to compliment Senator O'Higgins on his analysis of the section. In this section we are talking about somebody who is in proximity to where a scheduled offence has been committed, who is being asked to give a reasonable account of his movements.
There is a certain danger in saying that no law abiding citizen of the State should be bothered by this provision. There are many types of laws which could be introduced on that sort of reasoning which would be a grave infringement of what we regard as the scope of our personal liberty. Legislation involving the finger-printing of the nation and having a record of all the private details of our lives could be introduced on the principle that it would not bother innocent, right-minded members of society. If a person is being asked in such vague terms to give information and does not have a right to remain silent and the protection of the normal process of the law it is reasonable that he be allowed to seek legal advice and not be guilty of a criminal offence for which the penalty could be 12 months' imprisonment under this section.
The trouble with many legislators is that they think and speak mainly of the law in relation to other people but seldom in regard to themselves. I would ask the Members of this House to place themselves in the position of an innocent individual caught within the ambit of the circumstances set out in section 2. If a Member of the House quite inadvertently gave misleading information he would be guilty of an offence and could be subject to a term of 12 months' imprisonment. Can Members of the House be happy about that situation? Some people are so enraptured with the law that they cannot conceive a miscarriage of justice even within the ambit of the ordinary courts. I regret to say that in the course of two hours in a district court one can find a great deal of injustice even on the basis of discrimination for equal offences.
We are all aware of the kind of situation with which this section is intended to deal. I have a lot of sympathy with any draftsman who attempts to draft a reasonable piece of legislation to cope with this situation. The kind of situation I have in mind is the situation in which loud explosions are heard, for a lengthy period of time, in a rural area. Following such an occurrence the Garda, as they arrive on the scene, stop a number of vehicles occupied by a number of persons slightly out of breath and smelling strongly of cordite. We are trying to establish whether the present legislation is sufficient to deal with such a situation in which there is a very high element of suspicion and a very low element of objective proof.
One of my criticisms of this section is that it might not really do what it is supposed to do. Take, for example, the word "proximity". I would imagine that the definition of this word in the courts might give rise to a considerable amount of difficulty in establishing anything that might be regarded by reasonable people as a rule of thumb. Not so long ago we had a very long and detailed argument and correspondence carried on in the pages of the Irish Theological Quarterly after the Irish Catholic bishops had made a rule forbidding the attendance of Catholic priests at horse race meetings. The subject of this correspondence was to try to define the distance, the yards, feet and inches from a horse race meeting constituted attendance. This argument went on for years so far as I know. At least one clergyman resolved the problem to his own conscience and satisfaction by sitting in the race course car park listening to the public address system and using a very strong pair of binoculars. This is a definition of “proximity”. The establishment of a consistent definition of “proximity” is one which might create so many problems for the courts that this section, for all its intended stringency, might be of very little effect.
I feel that the proper and appropriate operation of section 30 of the 1939 Offences Against the State Act would meet the situation. It is true that the penalties under that section are relatively light. Section 30 (6) points out that
the failure to give a name or address, or the giving of a false or misleading name and address, shall render a person liable on summary conviction to imprisonment for a term not exceeding six months.
I argue, although I am not absolutely convinced of it, that what the Government want to achieve in this section might be more easily achieved by simply extending the penalties under section 30 of the old Act.
My final point on the section is one of substance, and I believe the House is entitled to consider it before we make up our minds on which way to vote. It is that the Minister, in his opening speech, told us he had been advised that section 52 of the Offences Against the State Act, 1939, was contrary to Article VI of the European Convention on Human Rights and this was one of the reasons why section 2 of this Bill was being introduced. He further told us that section 2 was not in contravention of Article VI of the European Convention. I think we are entitled to a little more information on this. I should like the Minister to tell us why section 52 of the 1939 Act is considered by him to be in contravention of Article VI of the European Convention and why section 2 of this Bill will fall within that Article. It is most important that we should know this before we make up our minds on which way to vote.
I think that is a reasonable question and one I intended to ask the Minister. Under section 52 of the 1939 Act the State is dealing with someone who has been detained because he is a suspect who has acted contrary to section 30 of the Act. Under section 2 here you can be dealing with a completely different set of circumstances. You can be dealing with a person who is innocent, whom the garda in question knows to be innocent but suspects that, by reason of his having been present on a particular occasion, may have seen something or otherwise acquired information but, nevertheless, a person who knows himself to be innocent of the offence.
I believe that in section 52 you are dealing with a person who has been detained because he was a suspect who had failed to comply with the requirements of section 30 and here you are dealing with a person who is not a suspect but who has failed to give information requested of him. It would be far stronger to say that section 2 of this Act, for the reasons which I have mentioned, would be in contravention of the Convention on Human Rights.
I am concerned with the word "recent" in section 2 (3) which states
the member may demand of the person his name and address and an account of his recent movements...
Would that be an account of his movements during the last two hours, the last 24 hours, the last seven days or, perhaps, the last month? If any of us was asked to account for his movements on, say, this day week he may find it easy enough to comply with the request or may have difficulty in accounting for them. If we were asked to account for our movements about a month ago I am sure we would not find it so easy to comply. Perhaps this word "recent" could be defined for us.
In reply to the point raised by Senator Horgan and pursued by Senator O'Higgins in relation to section 52 and its contravention of the Human Rights Convention, it is not the Minister's opinion that the section is in contravention of the Human Rights Convention. It is rather the advice he has received from his legal advisers.
Section 52 of the 1939 Act relates to those who are under arrest and this section does not relate to such people. Let us take the case where, under section 52 of the 1939 Act, you have a person in custody. One could imagine that a person in custody and under arrest would be subject to certain mental pressures that his arrest would bring upon him. The position in relation to this section is that the person is not under arrest. That is another issue that might be considered by the House when they are deciding whether they should vote for or against the Bill. The Minister is standing four square behind this section. He finds it to be a reasonable section and the Senator's amendment is totally unacceptable to him. However, this has been withdrawn now so that point does not arise.
I should like to draw the attention of Senators to the Minister's introductory speech in the Dáil.
We did not get it.
I am putting it on record.
I did not get the Minister's brief.
As you know, it is available to the Houses of the Oireachtas, so this would not preclude the Senator from having it.
The Senator has been looking for information all night: now you are getting it and you do not want it. What the hell do you want?
This script has been available to Members of the Senator's party in the Dáil. If the Senator wished to have that script in his hands before he came in to discuss the Bill this evening, he could have had it by courtesy of one of his own Deputies in Dáil Éireann.
I did not know we were meeting. I was telephoned this morning to tell me we were meeting today.
I am sure the Senator passes through Deputy Timmin's part of Wicklow. He could easily have called in to the decent man.
I should like to refer again to the section and to point out that the purpose of section 2 is to strengthen the hands of gardaí in their investigation of certain serious criminal offences, which are for the time being scheduled offences for the purposes of Part V of the Offences Against the State Act, 1939.
I thought the Parliamentary Secretary was going to tell us something new.
Let us not be light about this: this is a very serious matter. If the Senator wishes to treat it in a flippant fashion, it is a matter for himself. The Minister and the Government take a very serious view of the present situation.
This is in the section?
It is in the section. I should like to outline to the Senator the type of offences which arise under Part V of the 1939 Act, and which this section specifically deals with. These offences include offences relating to malicious damage, explosives, firearms, et cetera. As Senator Cranitch has pointed out, where this dastardly and cowardly deed was committed in this city, if a person was seen or suspected, or in some way showed by his temperament and so on, that he could have been associated with the particular explosion, would it not be reasonable to apprehend that person, and to ask him for an account of his movements? I think that is totally reasonable.
The Parliamentary Secretary is misreading—as some of his colleagues have misread—this section. I did not hear the quotation from the Minister which was read out here before. I should like an opportunity of studying it to see if the Minister himself was misreading this section.
The Minister was not misreading the section. He knows the section inside out.
Perhaps the Minister will be able to give us the benefit of his own views before we finish this discussion. The point I want to make to the Parliamentary Secretary, and through him to the Minister, is a simple one. The Parliamentary Secretary referred to the apprehension of people who caused explosions or bomb damage in the city.
Who may have caused.
Or who may have caused. I am quite sure that not one member of this House would raise a finger to prevent such a person being apprehended either by reason of amendments or any other way. Section 2 may also operate against a person actually known to the guards to be completely innocent of any offence.
In other words, there is no question of apprehending an evil-doer. It may be positively known to the guards that the person from whom they are looking for information is entirely guiltless and that his only connection with the matter is that he happened to be in the vicinity, and that by reason of happening to be in the vicinity, he may have information. I want to get this clear. In those circumstances you are dealing with a person who is guiltless of any offence. He is going to become guilty of an offence under this section, if he fails to give the information, but up to that time he is entirely guiltless. There is no point in being emotive about this and saying that you are dealing only with serious crimes, and the apprehension of persons who have committed serious crimes. I am not going to object to this section going through, but I want to get the record clear.
I take the Senator's point and I think it is reasonable. However, the guards are entitled to look for information under a given set of circumstances and I think that the Senator will take my point in this regard.
I am not objecting to that.
In all these things there is the question of human relations. The Garda, who are custodians of the peace, are men of deep integrity. If a garda asked me for certain information at a given point relating to a particular occurrence, I would find it totally reasonable that that information should be sought of me.
There are two things involved here: first, there is the question of the garda's right under this Act to get information and to make inquiries from people, whether or not they are guilty. If the person from whom he is seeking the information is a person who is also guilty of committing an offence, very few people would have the slightest sympathy with him. I think the Parliamentary Secretary, who in common with Senator Nash and myself, is a lawyer, would agree with this proposition: generally speaking, it is much better in the interest of the relations between the Garda Síochána and the public that information should be forthcoming on a voluntary basis. If a garda asked for information, we should feel it our civic duty to give that information. That is the kind of spirit that we should be trying to inculcate into people, if it is absent. However, that is not what we are doing here and we should not overlook it. What we may be doing here is dealing with an innocent person and saying: "You'll give the information or else..."—12 months or whatever it may be.
In circumstances such as happened last night if I, or any innocent bystander had any information that could assist the guards in forthwith arresting the perpetrator of that crime, and I refused the reasonable request to give that information, I would not deserve the protection of the society which I was co-operating in destroying. It is as simple as that. That is what is required here: that in certain circumstances, whether I am guilty or innocent, if I have information it is my bounden duty to give it. If I do not give it, I am doing an injustice to the State and I must be punished for that injustice. I would consider that in circumstances such as those of last night six months would be far too short for the person who would refuse such information.
When somebody says it is as simple as that, you can be sure of one thing: that it is not. Perhaps the Parliamentary Secretary misunderstood my point about the European Convention. There is a quibble as to whether it is the Minister's opinion or the advice available to him. If this is the advice available to the Minister and if he has accepted it then it can be accepted that it is the Minister's opinion.
If the Minister can show me that this section is simply closing a gap in relation to section 52 of the 1939 Act it is likely that I would not vote against it. We have nothing except the Minister's word for it and I would be grateful if he would give us more detail about the advice available to him as to why this gap had to be closed.
I do not know if it is really necessary. If the Minister gives his word in this House that this advice has been given to him by his legal advisers. I do not think that he has to go any further than that, with great respect. The Minister's word is sufficient for the House.
Amendments Nos. 3 and 4 can be taken together.
I move amendment No. 3.
To delete subsection 1 (b).
As regards this section we are being asked to admit three new forms of evidence in the trial of a person under the Offences Against the State Act. As can be seen from my amendments I believe that two of these three new forms of evidence should not be admitted as evidence and certainly not in the form in which they find expression here. I confine my remarks here to section 3 (1) (b). I oppose the inclusion of this paragraph on the grounds that it offends against the right which people have, no matter how much we may disagree with them politically or in any other way, to a fair trial. My second reason for opposing this paragraph is because its operation will also interfere with the rights of the people as a whole to be adequately informed about what is going on in the country.
Senator Brosnahan spoke very eloquently about the rights of people. He spoke about the right of freedom from violence and intimidation and the right of freedom from the danger of the sort of death which was meeted out in Dublin last night. I yield to no one, and certainly not to the Senator, in my agreement with this right and in my defence of it. There are numerous rights in society and if any legislation which, in order to promote one right offends grossly against other rights, it must be examined seriously. It is a difficult question and in the end, I suppose, a political one, as to the balance that is achieved in legislation between conflicting rights.
There is not an honest balance between this right to freedom from violence and intimidation and the right of the people to be fully informed of what is going on in the country and the right of people who may be accused of offences to a fair trial in this paragraph of section 3. In section 3 we are being asked to admit a new kind of evidence in our courts:
In paragraph (a) of this subsection "conduct" includes omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.
I abhor and I have a total lack of sympathy with unlawful organisations in this country, but at the same time I am alarmed at the provision in this paragraph. It militates against people's rights to a fair trial by allowing as admissible, evidence of published statements about them. This is a terrifying principle of evidence. It may not be a principle of proof, and no doubt this point has been made and will be made again, but even as a principle of evidence it seems to be very dangerous. One might accept, as Senator Ryan has already said, that these are unusual times and this is the kind of unusual power that we are looking for but even if I were to accept that I would have to follow through and say that this section, like almost every other section of this Bill, should be accompanied by a time clause. If I give the Seanad a couple of examples of what this principle of evidence might mean then they might be more disposed to agree with me.
It is an offence in this country to possess drugs, but it is not an offence to use them. It could be possible in a hypothetical situation if this principle of evidence were to be extended—and once it is introduced there is no reason why it could not be extended—that it might put people in jeopardy in a way in which they are not at the present time. For example if, in an interview, a person said that he smoked reefers and that he thought the laws on drugs should not be changed because he enjoyed smoking them and if this was published in the newspapers the principle that we have in this paragraph would apply to this sort of case. This is not, as things stand at the moment, grounds for proceeding against that type of person. It could be said that it would be in order for the State to proceed against such a person simply on the grounds of published statements by him or about him. The State could argue that since X said he smoked pot, X must have possessed pot, therefore X is guilty of possessing pot and therefore X must go down the river for a long stretch. This is the sort of avenue we are opening up if we accept that evidence should be admissible in a court of law in the kind of context in which it is written in the subsection.
The argument behind the subsection can be defeated by reduction ad absurdum. If things had gone another way last night and if we were now in the middle of a general election campaign the Members of the Seanad have a clear idea of the kind of scripts which would be pouring out from the script factories and finding their way into the various newspapers. It is fair to say that a high proportion of those scripts would cheerfully accuse politicians of whatever party——
It does not say that, Senator.
——of treasonable activity. It has already been done in the House and outside the House to my certain knowledge. If we accepted the principle of evidence which finds expression here publication in such a case of an allegation that a certain person had engaged in treasonable activity would be admissable as evidence of his having participated in treasonable activity whether it be true or false. This is the main reason why I am opposed to the introduction of this principle of evidence.
The secondary reason for my opposition is that the way in which it is operated could affect the rights of people to know what is going on around them, could affect what has been rather inaccurately described at times as "the freedom of the Press".
I should like to remind the House that the freedom of the Press is not an end in itself, it exists only in defence of people's right to be informed. If it is generally noised abroad that a person is or makes himself out to be a member of an unlawful organisation and makes statements supposedly on behalf of such an unlawful organisation it is vital in the national interest that the people should know this.
It is equally vital that he should be arrested and charged.
Yes. It is also vital that he should get a fair trial and that the State should prove the case against him without reference to what is being said about him. A person's right to a fair trial is infringed by this paragraph.
But the State do not say anything. It is the journalists who speak against him.
The fact that a journalist, broadcaster or whatever, may describe any person in a particular way is not now, and there is no reason why it should be evidence against that person in a court of law or in any legal sense. It is only evidence that the said journalist or broadcaster has made such a statement. As I understand it, this is the strict legal position and I see no reason to depart from it.
Should the journalist be arraigned?
Senator Honan will have an opportunity of speaking later if he wishes.
I will listen to Senator Honan's contribution with pleasure. My two main points on amendment No. 3 are first, it offends people's right to a fair trial; secondly, it may be operated in such a way as to make it difficult for people to publish widely known facts about organisations, lawful, unlawful, subversive or whatever, in a way which may very seriously infringe upon the people's right to know.
I am not going on the freedom of the Press per se; I am going on to the right of people to know the facts. Some time ago I asked a colleague in this House how Mr. de Valera managed in the forties to carry through the operation of very similar legislation to that with which we are dealing today. I was listening to a television programme where it mentioned that in the forties two persons had died on hunger strike but their deaths were not widely published.
The interesting answer I was given to my question was that for the first two years of the original Offences Against the State Act operation we were living in a war-time situation with very stringent Press control. I would not like to see a return to that situation but this subsection in some ways is a pointer towards this.
Maybe Senator Horgan never heard of An Phoblacht.
Perhaps Senator Ó Maoláin will enlighten me in due course. I am always willing to learn.
A line like that will keep us going for another few minutes.
Senator Ó Maoláin interrupted me.
Did you ever hear of the Offences Against the State Act, 1953?
I understand that this is a Bill entitled to amend and extend the Offences Against the State Act, 1939 and 1940 and 1953 are not mentioned. I should like to speak on amendment No. 4. Assuming for the purposes of argument that amendment No. 3 is defeated it is vital to remove from the paragraph the last phrase "but the fact of such denial shall not by itself be conclusive". If we examine the Offences Against the State Acts, 1939 and 1940, we see all sorts of different approaches to the question of evidence of membership of an illegal organisation and to evidence of various other forms of illegal activity.
In section 26 of the 1939 Act it states in a proviso in relation to the publication of a document that under the section the evidence of a chief superintendent on publication of a seditious document shall be evidence "until the accused denies on oath that he published such a document". In other words, in this section a denial on oath by the accused that he did publish such a document is an absolute rebuttal to the evidence of the chief superintendent. In section 3 (1) (b) of this Bill it states:
...the fact of such denial shall not by itself be conclusive.
This is much worse than the provision in section 26 of the Offences Against the State Act, 1939. It is even worse than the provisions in sections 15 and 24 of the same Act.
Section 15 provides that the burden of proof is transferred to the person who is prosecuted on a charge of illegal drilling. In section 24 there is a reference to proof of membership by possession of incriminating documents. The relevant part of the section reads:
An incriminating document relating to the said organisation... shall, without more, be evidence until the contrary is proved that such a person was a member of the said organisation...
If you constructed an ascending scale of nastiness, this subsection would be at the top of it. The provision in section 24 would be next down the list and that in section 26 at the bottom. Of three possible formulations relating to the admissibility of evidence in the trial of a person who is accused of membership of an unlawful organisation, this paragraph of the Bill offers us the most objectionable. This is why I oppose it.
It is quite legitimate in considering this section or any other section of this Bill to examine the possible way in which the section could be used and to have regard to the fact that it might be used in a way which would be undesirable. On the other hand, we must also look at it from the point of view of the realities of the situation and the purpose to which the section is likely to be directed. During the past few years, we have frequently seen in the newspapers bulletins, statements and speeches attributed to people who are described as leading members of the IRA or some other illegal organisation. There is no doubt that the continued publication of statements and bulletins of this nature is highly provocative, in particular to the victims of the activities of these organisations. Apart from the victims, it is very disquieting for the public generally and gradually could lead to a loss of morale on the part of the public and the feeling that nothing can be done to prevent leading members of an illegal organisation from publishing these statements or bulletins.
While it is quite legitimate for Senator Horgan to discuss the possible ways in which the action could be applied, we must have regard in particular to the way in which it is likely to be applied. The situation I have described needs to be dealt with. In its own way it is very important and it is something which is frequently mentioned in the north of Ireland by those people who are the victims of the activities of illegal organisations. It is a cause of great amazement to them that these statements and bulletins can continue to be made. If this section has the effect of discouraging these statements, because it will be possible to use them as evidence against a person, something worthwhile will have been achieved. While it is no proof that a person is a member of an illegal organisation, nevertheless if a person is continually described as a leading member of such an organisation and if he takes no action to deny the charge, then I submit it is legitimate evidence, although not conclusive.
We must be realistic about this. Anybody who is not a member of an illegal organisation and who sees his name printed in a paper as making a statement or issuing a bulletin will naturally take some steps to deny it. Such a person will not be victimised by this section. I have no doubt that if he denies it at once, says it is not true, it will not be used as evidence against him. While it is true that theoretically an individual could be adversely affected in some way by this section, the odds are very much against this happening. The section clearly says this is evidence that can be used but must, of course, be weighed up by the court. The possibility of its being abused is very remote. There is a situation which is doing a great deal of harm and this section can play a part in preventing this abuse from continuing. For that reason, taking the balance of probabilities and acknowledging that there may be some remote risk, nevertheless, the section is well worth while and I do not support the amendment proposed by Senator Horgan.
I should like to support this amendment. My task in supporting it has been made easier by the very able analysis of his reasons given by Senator Horgan. Section 3 was obviously introduced—and this has been confirmed by the Minister's statements—in order to improve the possibility of introducing evidence of membership of an illegal organisation. The Minister has pointed out the difficulty of securing convictions of people as members of illegal organisations and the section is legitimate on this ground. He can point to the many times the courts have not succeeded in conviction of membership of an unlawful organisation. This point is not displaced by the rather notorious conviction just recently of Seán Mac Stiofáin as a member——
A word such as "notorious" should not be used to refer to——
I meant well publicised.
It is rather different.
We thought you resented his conviction.
Is the Senator withdrawing the word "notorious"? It is not the type of statement that should be made about the courts.
I withdraw the word "notorious". I am rather tired. It was a complete misunderstanding. I withdraw any inference that I support either Mac Stiofáin or his organisation. Section 3 (1) (a) is an attempt to make it easier for the prosecution to bring in evidence of membership of an illegal organisation and have people convicted. As it stands, it does meet the problem. To illustrate my point, I quote the section:
Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.
This is not conclusive evidence but evidence. If the section stopped there, I would have no objection. My objection to paragraph (b) subsection (1) of section 3 which defines in a way that no judge would at the moment interpret it the word "conduct". We are reading in an interpretation of "conduct" which I agree with Senator Horgan goes beyond the normal rules of evidence and is much broader than would be accepted by the courts, if they were not given this statutory interpretation.
The points made by Senator Ryan are not as valid as they might be under the wording of the section. The problem with this Bill is that, had it had proper time for consideration in another place, it might have been amended and therefore some of the matters before us today would not exist.
The subsection provides that the conduct includes omission by the accused person to deny published reports that he was a member of an unlawful organisation. Senator Eoin Ryan pointed out that an innocent person who is not a member of an unlawful organisation would be quick to deny this. It is not provided for in the section that a person will know of these reports. It is not provided in the section that the reports be published by organs of newspaper or media in this State. They can be published by newspapers or they can be published in a permanent form outside the State. This leaves open the possibility—not such an unreal possibility—that foreign newspapers could victimise certain individuals. There may very well be circumstances where these reports are repeated—where it is repeated that certain persons are associated with unlawful organisations.
It is going beyond the bounds of fair trial procedure to interpret the failure of a person to deny these reports as conduct which is evidence of him being a member of an unlawful organisation. Subsection (1) (a) meets the problem. It should have stopped there. The statutory definition goes beyond that. It throws a burden on those who are making published reports, such as the newspapers or radio and television. This will be vague enough to bother those journalists who are seeking to inform the public of the situation and who are seeking to give a fair and impartial assessment of what the problems before the country at the moment are. I should like to support this amendment first because of the unfair burden and the improper extension of it on the accused by giving a very extended statutory meaning to the word "conduct" which judges would not give without this provision and, secondly, for the affect it may have on the organs of public opinion and on the newspapers in their reporting.
I have heard all the discussion on this question of fair trial. I should like to ask some of our legal luminaries who are experts in academic law for their opinion on the following. We have read in the newspapers of cases where people who were not tried had been shot four times in the back of the head, then covered with a plastic bag and dumped on the side of the road.
I do not think that arises. Is the Senator speaking on this amendment? The Senator is putting questions which do not appear to have any relation to this amendment and answers ought not to ensue. The answers would be as irrelevant as the question.
That is the failure to answer——
The question was a disorderly one.
I want to make one point in reply to Senator Ryan. We are all in a considerable difficulty here. I doubt that there would be any difference of opinion between Senator Ryan and myself about the people with whom this section is intended to deal. Senator Ryan said that the kind of publication to which he referred had been provocative. That may be so.
I should like to ask, as a working journalist, why the newspapers and other media of communication have consistently been not proceeded against under the provisions of the Offences Against the State Act, 1939, under which they could be proceeded against? If it is provocative to have a reference in the newspapers to statements emanating from an organisation styling itself as the IRA, it is inconsistent to say the least of it, that newspapers are not proceeded against on foot of the provisions in the Offences Against the State Act. It is equally provocative, for example, for the Taoiseach to be photographed with a printed book in his hand in direct contravention of the Offences Against the State Act.
My basic point in reply to Senator Ryan rests on the people's right to know. I would differ with him slightly about the effect of this kind of publication. It is, he says, provocative. I accept that it can be provocative to some people. It is not provocative to me except in the sense that every statement published about a person who holds himself to be a member of the IRA confirms my total opposition to and loathing of that organisation. This is not an uncommon reaction to this kind of publication. This kind of publication is essential if the true facts, the horrors of what people are being exposed to and the hypocrisies and fascism which exists in the country at the moment are to be seen for what they are.
There are other forms of terminology to which I am equally opposed. Newspapers have the habit of describing somebody as a leading member of "The republican movement". This is an appelation which might become contentious evidence under paragraph (b) of this subsection. I once thought that it would deflate many of these persons if, instead of describing them as members of "The republican movement", we took a journalistic decision, to describe them as members of "a republican movement". It might cut many of these people down to size. Newspapers and journalists have a duty in this matter. They are trying to fulfil this duty very seriously. If they have fallen down on this duty to any extent it is because they have not paid enough of the right kind of attention to the IRA. They have not attempted the kind of exposés and articles which would be an essential and healthy part of our journalistic system at the moment, but this is by the way.
The main danger of the operation of this subsection is that it will have precisely the kind of effect which Senator Ryan said it would have. It will either make for a conflict involving complicated questions of ethics and so on between journalists and the State, which I would not like to see happening at all, or, if it removed from the papers virtually all references to named persons who hold themselves as being members of illegal organisations, it would impose a blanket of silence which to me would be much worse than the provocation in existence as a result of the present practice.
If we are to defeat the IRA, as we must, we will have to do so in the open. Any measure which will operate to drive them further underground will only help them to regroup, to strengthen their forces and to get from secrecy the kind of fresh impetus that all secret organisations get. It is basically in favour of the people's right to be informed and in favour of the right of an accused person to a fair trial that I put forward my two amendments.
I move amendment No. 4:
In subsection 1 (b) to delete from "but the fact" in line 37 to the end of the paragraph.
I move amendment No. 5:
To delete subsection (2).
There will have to be a consequential amendment to subsection (3) if this amendment is passed. In proposing this amendment——
Does the Senator wish to take amendments Nos. 5 and 6 together?
I have no instructions on this; amendment No. 6 is not in my name. I originally substituted an amendment, which does not appear on the Order Paper, which could have been taken in conjunction with amendment No. 5. It was to change the wording of subsection (3) in order to make the time limit apply to such parts of section 3 as still remained.
I have no objection to the two amendments being taken together. The amendment would have been a consequential amendment on the first amendment which I tabled and which you, a Chathaoirleach, ruled to be out of order. If we had put in a 90 day period, it would not have been necessary to leave in subsection (3) so I have no objection to its being taken at the same time as amendment No. 5.
I accept what the Minister for Justice has said in two respects: first, that this subsection does not transfer the onus of proof to the defendant—I think it is a very thin argument in favour of it but I am prepared to accept it as a technicality —and secondly, the contention which either has been or may be made by the other side that this is not, in some ways, a new departure in our law. Anybody who reads section 26 of the 1939 Act will see a precedent for this section. It reads:
Where in any criminal proceedings the question whether a particular treasonable document, seditious document or incriminating document was or was not published by the accused, whether by himself or in concert with other persons or by arrangement between himself and other persons, is in issue and an officer of the Garda Síochána, not below the rank of chief superintendent, states on oath that he believes that such document was published, as the case may be, by the accused or by the accused in concert with other persons or by arrangement between the accused and other persons, such statement shall be evidence until the accused denies on oath that he published such document either himself or in concert or by arrangement as aforesaid that the accused published such document as alleged in the said statement in the said statement on oath of such an officer.
Here we have, in section 26 of the existing law, the admissibility of a statement by a chief superintendent of the Garda Síochána to the effect that the person has committed an offence under the Offences Against the State Act; we have, in section 26 of the 1939 Act, this proviso. In other words, if the person affected by this statement denies on oath that he is guilty of the offence which the chief superintendent says he committed, this automatically, if my reading of the section is correct, renders inadmissible the chief supertendent's statement.
I am comparing this section unfavourably with section 26 of the original Act. This does not mean to say that I approve of section 26 of the original Act. Both sections have this much in common and this much that is objectionable in common: they effectively preclude the right of an accused person to silence. They force an accused person to go into the witness box, to expose himself to cross-examination and, in so far as it repeats this effect of section 26 of the 1939 Act, it is objectionable. It does not only repeat this effect but it goes beyond it by refusing to allow even a denial on oath by the person concerned to render inadmissible the evidence under this section. This is absolutely extraordinary.
Another objection to this section has been very well stated by Senator Alexis FitzGerald. As he points out, it is not a section relating to the admissibility of evidence at all; it is a section arranging for the introduction of internment under a judicial process. We have already had, in the last few days, a letter in the newspapers from a member of the Judiciary criticising this subsection in terms identical with those expressed by Senator Alexis FitzGerald and, if anything, in even stronger language. I think an event of such rarity should be considered very seriously. For a member of the Judiciary to come out in public on an issue of this kind, while a Bill is passing through the Oireachtas, is an extraordinarily unique affair. I believe the man would not have done and said what he did unless he was very seriously worried by this impending legislation.
This is really the introduction of internment by judicial process. There is further proof of this which has not, to my knowledge, been referred to by anybody else. We have to remember that unless under this subsection the new evidence to be admissible will be the evidence of a garda of the rank of chief superintendent or higher. In order to assess the effect of this section, it is valid to look at the position and role of chief superintendents in the Garda. Under the Garda Síochána Act, 1924, which is the founding legislation for the force, superintendents and all ranks above superintendents are appointed not by examination and interview, not by an independent police authority, but by the Government. This is in significant contrast with the method of appointment of senior police officers in Britain and, indeed, in Northern Ireland, where all such promotions are made by the appropriate police authority, except in the London Metropolitan police area, for which the authority is the Home Secretary. I am not making any criticism of chief superintendents or other such ranks in the Garda Síochána. The fact that these people are appointed by the Government is very relevant when we consider the credibility of action initiated under this subsection of the Bill.
Why?
I shall explain that; I have not yet made my point. The authorised strength, as far as I know, of chief superintendents in the Republic is about 25.
No.
Am I wrong?
Yes.
Is it greater or less?
Very much.
A good journalist checks his figures.
A number are tied up into administrative positions.
A little learning is a dangerous thing.
The point I am trying to make in relation to this subsection is that for its effect it will rely on the testimony of a small number of police officers who owe their appointment to the Government of the day. It is fair to say that their appointment can be terminated at any time by the Government of the day. When we further consider that it is standing Garda procedure to refer always to the Department of Justice before bringing any charge under the Offences Against the State Acts, we can accept that the Act has not, and never has been, used by Garda as part of their day to day work, but always in political directions. The Bill, in effect, gives a number of policemen appointed by the Government a total control over the liberty of the individual and this is an extraordinarily dangerous thing to do. The method of appointment of chief superintendents, when it is taken in conjunction with the other provisions of this Bill and more especially of this subsection, adds up to a whole series of things which is almost guaranteed to shake peoples confidence in the judiciary. In the first place, we have the admissibility of evidence, which may send a man to prison, evidence given by a chief superintendent of the Garda Síochána. That chief superintendent has been appointed by the Government. He is giving this evidence in front of a judge or judges who also have been appointed by the Government. I am not saying——
That they are all corrupt, the whole lot of them, except the IRA.
I am not saying anything of the sort.
No, but you are implying it.
What I am saying is that——
They are all corrupt except the IRA men.
I am saying nothing of the sort, and the Minister does wrong to misrepresent me as doing so.
That is what the Senator has been doing for ten minutes now.
What I am saying is that, at a time when it is absolutely vital that we should protect the integrity of the courts, the effect of this subsection can only be to further undermine their credibility. I am not in favour of undermining the credibility of the courts or indeed of the Garda Síochána. That is why I am opposing this subsection.
I wish to support Senator Horgan in this amendment for the deletion of subsection (2) of section 3. This is the section which has perhaps received the most publicity prior to the debates on this Bill and which has been criticised most severely during the debates. It was said in another place that the tragic events of yesterday did not displace the reasons given or take away any of the validity of the points made about the section. We must remember that we are debating this in a climate where people who try to point to the lack of safeguards, and to point to the dangers of this Bill, are subject to misrepresentation. Yet the points at issue are so extremely important that we must consider the legislation in an objective light.
I agree very much with the points made by Senator Horgan. One of the matters which will be an intolerable delimitation of the freedom of the individual is the fact that in the section the chief superintendent does not have to give any reasons for his belief: he merely states that he believes, and this can be evidence that a person was a member of an unlawful organisation. As Senator Horgan has said—and I agree with him—this does not displace the burden of proof on the prosecution; it is an evidential presumption which is created. The problem is that on cross-examination one could imagine a chief superintendent being able to say that he was not in a position to disclose the information which gave rise to his belief. This would mean that his statement, if uncontroverted, would be sufficient to convict the person of being a member of an unlawful organisation.
I am aware that an attempt was made to introduce an amendment to allow the defendant to deny this on oath. That is a very limited form of protection. It was not an amendment which we were prepared to consider introducing, because it would be hard to see how the accused could simply deny this on oath and yet not be open to cross-examination in the witness box. Therefore, it would compel him to go into the witness box. I share Senator Horgan's point that, as this section stands, the only effective way in which the accused can prevent the evidential burden from securing his conviction is to go into the witness box and deny. This is going very far in changing the normal position of the criminal law where an accused does not have to go into the witness box, where he is protected from this and may remain silent.
No doubt the Minister will emphasise, as he has done before, that the burden of proof has not shifted: that the prosecution still has the burden of proof. This can become almost a question of semantics when the evidential burden has been placed on the accused because of the statement made by a chief superintendent that he believes him to be a member of an unlawful organisation. I share the view that it is, in fact, a form of interment by the judicial process and that it is a very dangerous distortion of the present judicial process.
Like Senator Horgan, I was very surprised at the letter from District Justice Sweetman in the newspapers. Anybody with a familiarity with the judiciary in this country would know how reluctant he must have been to actually state in print his strong reservations about this Bill. I have also read a number of statements by citizens as to how one can redress the evidential effect of the statement by a chief superintendent. It is also worth asking whether the superintendent, under the present wording of subsection (2), could base the belief on the type of fact-finding, such as extensive phone-tapping of a particular accused's phone and then, on the basis of that, say he believed the person to be a member of an unlawful organisation.
I do not want to go into too much detail in connection with American cases, but it has been interpreted in the American due process that the legislature does not have an unlimited power to create evidential presumptions. This is limited by the requirements of due process. Is subsection (2) within those limits for the reasons given by Senator Horgan and the objections which I have made on the sections? It may be that it goes beyond the requirements of procedural due process and the requirements for a fair trial of the accused. Therefore, I support the deletion of subsection (2).
The first thing I want to say is that I referred here and in the Dáil to the fact that this subsection did not transfer the onus of proof. I was not putting this forward as an argument for the subsection. I was trying to state what the fact is in order to catch up on the erroneous propaganda which was put out before I was allowed to speak on the Bill.
That is not in dispute.
I am not saying it is. I am not putting forward the fact that there is no transfer of onus of proof as an argument for it. I had to say it twice because the IRA acting under the guises of either Sinn Féin or Republican Movement or the Irish Republican Publicity Bureau or whatever other name they adopt, after holding a meeting in a tall building in the town put out a statement, before the Bill was published, pointing out that the Minister for Justice had transferred the onus of proof. That is why I want to make it clear that I am not putting this forward as an argument for the subsection. There is no transfer of onus. Everybody agrees with that.
This subsection is, to a great extent, the kernel of this Bill because in the present set-up of unlawful organisations in this country they are not as brave but they are a great deal more sophisticated than they were 20, 30, 40 or 50 years ago. The leaders of these organisations are never found with arms or documents on them. The experience of the police over the last few years has been that they rarely, if ever, go out to do the dirty work. If they are apprehended or questioned by the police they have nothing on them that would enable evidence to be given against them. The only way that these people are ever going to be convicted of an offence under the Offences Against the State Act is the offence of membership. The leaders go behind closed doors without any evidence on them and plot the murder and maiming of citizens of this country, both north and south. They plot the destruction of the property of the citizens of this country without lifting a finger themselves. The people who are caught in the act and with documents on them are usually the small fry. Rarely, if ever, is a leader of any of these organisations caught and convicted with being a member of such an organisation.
In the Dáil last night I gave the figures for prosecutions and convictions for this offence from the 1st February, 1972 to the present time. There were 30 prosecutions and only three convictions but the significant thing about that is not that there were only three convictions out of 30 prosecutions but that there were an awful lot of prosecutions that were never brought because the Garda, although they were absolutely positive, had not one shread of what at the moment is admissible evidence, even though they were morally certain that a man was a member of an unlawful organisation.
That is why this particular offence under section 21 of the 1939 Act is very important and necessary to enable the Garda to widen the amount of evidence which would be admissible against these people who go to such great lengths to keep themselves in the clear even though they endanger the smaller men in their own organisations and also many innocent people in this country, North and South. People have lost their lives, limbs and homes due to the activities of such people.
I want to make a point in relation to what two Senators said about the evidential presumption that was placed on a defendant. There is no evidential presumption placed on the defendant. The position is that the entire onus of proof is on the State and for either of the Senators to say that they accept that there is no onus of proof put on the defendant, but then say that he has to discharge an evidential presumption against him, is to contradict themselves.
It takes away his right to remain silent.
Senator Robinson referred to the limitations in America on the amount or sort of evidence that the Legislature could impose as admissible against a defendant. I do not know what the limitations in America are, but no doubt, they have definite ones. If Senator Robinson is so keen on whatever limitations they have in America on admissibility of evidence, will she go the whole hog and then we will have the whole American criminal code here which will include federal grand juries, before whom a person against whom the police have not sufficient admissible evidence at the time can be brought and asked a question, and if he refuses to answer it he will get between six months and two years in jail? The American system would get over my problem.
I invite Senator Robinson not to be so selective in what she wants to hawk out of America. Is she agreeable to a system of federal grand juries and congressional committees of investigation where a number of Members of the Houses of the Oireachtas could question certain people who were known to be engaged in illegal activities, but against whom the Garda could not get enough admissible evidence, and if these people refused to answer a question the committee of the Oireachtas could have them committed to prison until such time as they did?
The Minister's party tried that and it was found unconstitutional.
It is a pity that Senator Robinson in her lauding of the various obscure things that they have in America is so selective and that she does not tell us all of what happens over there. She or Senator Horgan mentioned that Justice Sweetman must have been reluctant to write the letter. She is wrong there as he is not at all reluctant to write letters. It would be no harm if she read some of the earlier ones written by him.
The phrase was used by the two Senators who moved these amendments that this section introduced what they described as "internment by judicial process". I wish to make it clear there is no such thing unless the Senators mean the courts are corrupt, in other words imprisoning people who are not convicted. If they mean that, they should have the courage to say so. It is a matter for the court to decide under this subsection whether the man is guilty or innocent. In internment it is a matter for the Government to decide. We, as a Government, have consistently refused to do that. We only wish to lock up men who have been convicted before a court in accordance with the law. To describe the conviction of a man who has had a fair trial in a court as internment is suggesting that the courts are a mockery or are corrupt.
The courts are being used.
The Minister will recollect that shortly after his appointment to his present post, the Minister and the Taoiseach joined in issuing a declaration to certain people threatening to introduce internment for some plot in relation to the kidnapping of ambassadors or Ministers. I state this in reference to the last remarks of the Minister.
I am disturbed by this section because we are now departing from the best evidence rule. We are saying by virtue of a statute that if a chief superintendent states his belief, that that statement will be evidence. As the Minister stated, the fact that it is evidence does not necessarily mean it is proof. If there is no other evidence available it is the duty of the court to come to its decision on the basis of the evidence before it and consequently the mere statement without giving the grounds for belief could lead to conviction.
I sympathise fully with the Minister's statement regarding the necessity of getting the men at the top as well as other ranks engaged in unlawful activity but the Minister has made a mistake in the drafting of this subsection. It should have been inserted in this subsection that the reasons for the chief superintendent's belief would have to be given to secure any worthwhile protection for an innocent person. The statement is evidence. It does not matter whether that belief is well-founded. I am not suggesting that any chief superintendent would go into the witness box and commit perjury, but if such a thing happened, then the statement is the evidence.
If the Minister wished to have this subsection he should have drafted it in such a way as would require the chief superintendent to state his belief and the grounds for it. A great deal of unease with regard to this subsection would have been removed if that were written into the legislation.
I am also disturbed by what the Minister has just stated. He seemed to be throwing his hat at getting the leaders for any offence except the offence of membership of an unlawful organisation. What is the penalty for that under section 21 of the 1939 Act—a fine of £50 or three months' imprisonment?
Two years.
On indictment, two years.
Possibly on indictment, but it could be £50 or three months. That penalty can be compared with penalties imposed in other sections of this Bill.
I would go entirely with the Minister if in addition to the powers conferred in subsection (1) of section 3 he had increased substantially the penalties for membership of an unlawful organisation. I would like to have heard the views of the Minister in relation to these points.
We are concerned here with the statement of the chief superintendent regardless of the grounds on which that statement is based.
If a chief superintendent who states his belief in evidence that a person was a member of an unlawful organisation is then cross-examined as to the grounds for his belief, and decides that it would not be in the interests of public safety to disclose that information, he can plead privilege for this. If privilege is allowed, surely the position arises that the defendant who is before the court will not know on what grounds the chief superintendent bases his belief that he is a member of an unlawful organisation.
There are weaknesses in this subsection. It is a bad one. Subsection (1) is all that was needed by the Government by way of strengthening the evidential position as regards membership of an unlawful organisation. Section 3 (1) (b) goes very far indeed. Earlier today I was prepared to go along with that. I was certainly prepared to go along with paragraph (a) of this section. With those powers contained in subsection (1), and the right of the court to draw a general inference from a person's conduct that he is a member of an unlawful organisation that immeasurably strengthens the position as regards evidence. In my view it is unnecessary that the Government should go further as they have done in relation to subsection (2). It is this subsection which has aroused the vast amount of controversy that has been associated with this Bill. It is not a good thing to enact legislation which is born in this kind of controversy surrounding this particular subsection if it is not necessary. That is what worries me.
I should like to say how much I agree with and appreciate what Senator O'Higgins has just said. He has put the case better than either myself or, with all due respect to her, Senator Robinson. We are not dealing with theoretical questions here. We are dealing with the kind of situation which the Minister described and I have every sympathy with him in his attempts to cope with it. I feel, and I am not alone in feeling, that he is going too far. I can envisage many cases arising under this section where somebody comes before the court accused of membership of an illegal organisation. He refuses to recognise the court and a plea of not guilty is entered on his behalf.
A chief superintendent gives evidence under subsection (2) of section 3 of this Bill and there is no further evidence of any other kind brought before the court. I may be wrong but it seems to me that in such a case —and it is the kind of case we will see a lot of under this particular subsection—the judge would have no alternative but to convict because the only evidence before him would be evidence of membership. There would be no rebutting evidence or cross-examination. This is why I believe District Justice Sweetman wrote this letter. Any judge placed in a situation in which, for lack of any evidence to offset evidence given under this subsection he had to convict an accused person for membership of an unlawful organisation, would feel, and rightly so, that he was being used. He was being asked to carry the can for what was basically a political decision.
Senator Alexis FitzGerald has already said in this House tonight that he could envisage a situation in which internment under the Offences Against the State Act would be necessary. I agree with the Senator's remarks. I, too, could envisage such a situation arising. I could almost wish that the Government had been honest about this and had introduced or threatened to introduce direct internment rather than this half-hearted measure which falls between all the stools. The Minister spoke with some feeling, of the moral certainty of members of the Garda Síochána with regard to membership of illegal organisations. I have no difficulty in understanding the feelings of the Minister and the gardaí involved. As people who are occupied day and night in the fight against this sort of illegal activity their moral certainty must have a genuine passion. Moral certainty is not, unfortunately, evidence. This is why we should oppose the subsection.
Is the amendment withdrawn?
No.
I should like to make a few points on the section. The first point is that if this section is doubtful law it is even worse grammar. In the first line of the section them is the statement:
Any statement made orally, in writing or otherwise,
I should like the guidance of the House how an oral statement could be made in writing. It is nonsense. In order to correct it the Government would either have to insert another comma after the word "writing" or to insert the word "or" before the word "in", so that it would read either:
Any statement made orally, in writing, or otherwise,
or
Any statement made orally or in writing or otherwise.
In its present fan the statement is nonsense. The same grammatical mistake is repeated later in section 4. On the section generally, the fundamental——
On the point of order, are we not now an illegal assembly?
No.
The Lord's Day Observance Act applies from one minute ago. On what authority do we continue this Assembly?
Under the authority of the Constitution and the precedents of this House we met on Sunday, 3rd September, 1939. The meeting started on Saturday, 2nd Sep tember, 1939.
Unlike the Fine Gael Party, I do not know everything. I was wrong in thinking we could not meet.
A Chathaoirleach, you cited that this House previously sat on a Sunday.
Under the authority given by the Constitution of Ireland.
Could you help me by stating under what Article it was authorised?
The Article of the Constitution which deals with the making of legislation in this State by the Dáil and Seanad. It superseded any earlier Acts provided those Acts were ever in force in this country. The Lord's Day Observance Act was in force but in so far as it is contradicted by the terms of the Constitution it ceases to be in force.
The Lord's Day Observance Act was, in fact, carried forward into the legislation of this country by the Constitution. With respect to you, Sir, I should like to know your authority for continuing to hear Senator Horgan.
If the Senator wishes to enter into an argument on the interpretation of the Constitution, I would suggest to him that he should look through the Constitution for his authority for not meeting on a Sunday.
I must observe the Lord's Day.
The second point I should like to make about the section is that the fundamental weakness in the section is related to the fundamental weakness in section 21 of the Act of 1939 relating to membership of unlawful organisations. Section 21 (1) of the Act of 1939 reads:
It shall not be lawful for any person to be a member of an unlawful organisation.
This is an extraordinary statement. What is an "unlawful organisation" unless it has members? It is like saying: "We decree sins to be unlawful and, therefore, we subsequently decree that everybody who commits sin is guilty of an offence".
It seems that the original Act was really an attempt to rewrite the conspiracy law. Many of the problems we are facing nowadays, with regard to unlawful organisations, have arisen because this attempt was not successful. I would prefer to have seen action taken against unlawful organisations. The mere fact of proscribing, naming and suppressing an unlawful organisation, as such, gives that organisation a kind of glamour status in some people's eyes which would not happen if the people who founded it were prosecuted under other enactments or under the common law relating to conspiracy. This would have been the better course of action in 1939. If it had been adopted, then we might now have a more satisfactory and consistent body of case law to follow rather than this imperfect legislation.
The Minister spoke several times about membership as being the only way in which he would get the chiefs of various organisations. I wonder whether an incitement charge could have been brought against them, in many cases, instead of the membership one? Senator O'Higgins has already said that section 3 (1) (a) is acceptable to him. It is acceptable to me also but I wonder whether it will add anything new to current practice. In a recent court case, which received a great deal of publicity, statements made by an accused person were adduced as evidence that he was a member of an unlawful organisation and were capable of being interpreted as giving that effect. If this happened before this Bill is passed, I wonder if section 3 (1) (a) will add anything new.
I have a similar problem in relation to section 3 (1) (b) which reads:
In paragraph (a) of this subsection "conduct" includes omission by the accused person to deny published reports that he was a member of an unlawful organisation...
Do the published reports have to be reports published after the date of this measure or can they be reports which were published prior to the enactment of this legislation? As drafted at present, this section could make reports that were made prior to the enactment of this Bill evidence in proceedings. I wonder if this does not import a rather dangerous provision into the legislation.
I should like to ask the Parliamentary Secretary to tell the House how many suppression orders have been made and in respect of what organisatons. Is the position at present that the only repression order made declares that Irish Republican Army, also the IRA and Óglaigh na hÉireann, to be an unlawful organisation? That suppression order was made sometime after the passing of the 1939 Act. Are there any other illegal organisations declared by suppression orders? If not, does the Minister contemplate making any suppression orders in relation to organisations from across the Border that may operate here? The Minister should apply the provisions of this Bill, and the other Offences Against the State Acts, to such organisations if the activities which they endeavour to carry on in this State are activities which would come within the ambit of this legislation.
I have one small point to make on this section regarding subsection (2). I would have thought it preferable if these powers had been given to superintendents or district officers who would be familiar with members of illegal organisations. Many of the chief superintendents would live some distance from the districts from which those people would operate or live. Why did the Minister decide to give these wide powers to the chiefs? The man who would know the individual concerned would be the district officer or the superintendent. If those people had the powers there would be less likelihood of people being wrongly accused of being members of an illegal organisation.
I wish to refer in particular to subsection (1) (b) of section 3, which reads:
In paragraph (a) of this subsection "conduct" includes omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.
That is outrageous. It is objectionable because the person referred to may be away for six months or longer and may not have read it, or he may not be living in the State. He may not have seen the particular publication or journal in which there was a reference to his being a member of an unlawful organisation. Therefore, I suggest to the Parliamentary Secretary who is acting for the Minister that if anything of this nature arises, the person thereby involved should by registered letter be informed that this would be evidence in court.
I can see the fallacy of this subsection as it stands. However, I would consider evidence of a registered letter properly receipted by the person to whom it is sent. That is the point I want to make under this subsection. In my view it is too loose. It can be adduced as an offence, even if he has not seen the report. Who can controvert the fact that he has not seen it? Who can controvert the fact that he has not been told about it? If you want to catch a man under this particular section, you must have evidence and proof, and I do not think any case would stand up in court, if the person referred to in the subsection had not seen it. Who is to prove he had not seen it?
I should like to deal with Senator Belton's point. In section 3, subsbection (1) (b), you will find that the word "conduct" relates to section 1, subsection (a), "or any conduct by an accused person implied or leading to a reasonable inference that he was, at a material time, a member of an unlawful organisation". Therefore, there could be no doubt about what it means. I should like to assure the Senator that he has raised a very interesting point and it should be given mature consideration.
If the Parliamentary Secretary says that, I am willing to agree.
I can see the interesting point being made by Senator Belton. In relation to the matter raised by Senator O'Higgins, the IRA is factually the only organisation that has been the subject of a suppression order. That may answer his question.
I was anxious to know that. I appreciate the Parliamentary Secretary may not be in a position to reply—I also raised the point if it was contemplated making further suppression orders in relation to other organisations.
I have not that knowledge, so I cannot help the Senator.
I am only trying to copperfasten this. I am not trying to denigrate the Government's attempt in any sense. I want to copperfasten it.
I appreciate the Senator's concern in the matter.
I must admit a mea culpa on this because I have not got the relevant part of the principal Act. I understand that this subsection in the principal Act was written rather in the terms of subsection (2) of section 3 in relation to another offence. However, it allows the person against whom the chief superintendent gives his belief, which is accepted as evidence, and who is affected by that belief the right to enter a sworn statement to the contrary. There is a provision that that statement should also be accepted as evidence. Can the Parliamentary Secretary point out to the House what those sections relate to and why that procedure was not followed in this Bill?
I would really need to have notice of the Senator's question. I have not the information here.
I appreciate that, but I should like to remind the Parliamentary Secretary and the House that the Minister has had notice of it. I raised the point on Second Stage.
The Senator may not have been present at the time, but the Minister dealt very fully with this particular subsection, and he dealt with the Senator's point. At 12.20 a.m. on 3rd December it is not my intention to engage in repetition. The sooner this section is put the better from everybody's point of view.
The Parliamentary Secretary may rest assured of two things: (a) the Minister dealt quite fully with section 3 and I appreciated the method in which he did on his reply on Second Stage. The reason I asked the particular question was that it was the one aspect I felt he had not dealt with in replying. Even though he is not here now, understandably, his officials still are and they may be able to advise the Parliamentary Secretary; (b) it is not my fault or the fault of the House or of any Member that it is 12.20 a.m. on Sunday, 3rd December, and that we happen to be present. With respect to the Parliamentary Secretary—I know he is not going to reply any further quite obviously because he does not know the ins and outs of it—I do not consider that to be a fair answer.
I am sorry to put the point again but would the Parliamentary Secretary not give an indication of whether or not he accepts my contention that the first line of this section is nonsense and whether he proposes to do anything about it?
Yes, I will. The first line of the section is not nonsense. I do not accept the Senator's contention.
I move amendment No. 7:
In subsection 1 (b) lines 15 and 16 to delete "or is of such a character as to be likely".
I move this amendment in order to remove what I regard as a wrong negation of the principle that a person must have mens rea in a criminal offence and must have the intention to commit a criminal offence and that nobody should be convicted of a crime or conduct likely to interfere with the course of justice unless he had an intention of interfering with it.
As section 4, subsection (1) (a) stands at the moment it provides—
"Any public statement made orally, in writing or otherwise, or any meeting, procession or demonstration in public, that constitutes an interference with the course of justice shall be unlawful."
Section 4, subsection (1) (b) provides—
"A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if it is intended, or is of such a character as to be likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings (including a party or witness) as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome."
My grave exception to the words "or is of such a character as to be likely" is because they mean that a person need have no criminal intent in the way that is normally required in the criminal law and that a person may be judged by an objective standard because of the words "likely, directly or indirectly, to influence any court".
This goes beyond the normal bounds. Like the other Senators here tonight I am almost too tired to express the degree of my concern for this. The amendment would have the effect of deleting that phrase and then subsection (b) would read—
"A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if it is intended directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings..."
Surely this is as far as this House should be prepared to go in the creation of a criminal offence. The Minister explained that this section is a statutory outlining of contempt of court and the creation of a statutory penalty. It also allows members of the Garda Síochána to initiate proceedings for contempt on the grounds that it is an interference with the course of justice.
I will have comments to make on the general phrasing of the section bus as far as I am concerned the section would be greatly improved if "or is of such a character as to be likely" was deleted. Here one can draw an analogy with our attitude towards the crime of murder. There was a tendency by the courts to rely on an objective test of mens rea, if a person was pursuing a course of conduct likely to result in the death of another person. Then, regardless of his actual intent, if that person was killed this would be sufficient for murder. There was a classic case of this in England in 1960, the DPP against Smith. This is now being changed by statute in England. There is no change here but there is a statutory provision to make it clear that a person could not be convicted of murder by conduct likely to cause death unless he intended to cause either death or serious injury.
The Criminal Justice Act, 1964 defines malice of forethought which is the mens rea for murder and defines it in such a way as to remove the possibility of this sort of objective assessment of conduct which is not considered or does not necessarily mean that the person would have intended either directly or indirectly to do what is undesirable, that is, to influence any court, person or authority concerned. It means that the prosecution do not have to prove any malicious intent as such. If they can prove that the person's conduct was likely, directly or indirectly, to influence any court, person etc. then that is sufficient to sustain a conviction for contempt. This goes far beyond what is acceptable; the amendment leaves the section effectively fulfilling the obligation that the Minister deems necessary, and we ought to consider it even at this late stage.
This is a technical legal amendment and I bow to Senator Robinson's superior legal knowledge. I ask the Minister and the Government to look at this and the following amendment and to judge from them how little difference there is between us on this particular point. We are all concerned about the same thing. This amendment in the names of Senator Robinson and myself is an eminently reasonable and sensible one. If we were not discussing it in these particular circumstances it would be dealt with more reasonably and sensibly on the other side of the House. I regret that that is not the case.
With Senator Horgan I bow to Senator Robinson's legal knowledge but I wish I could pay the same tribute to her common sense. This Bill is attempting to deal with a number of problems, one such problem is that the course of justice is being interfered with. When legal proceedings are taking place in court there are protests, marches and so on outside which, in many cases, are likely to lead to abuse of justice. This section of the Bill will enable the Government to do something about that.
It is possible to meet a person who says, and genuinely believes, that he is not interfering with the course of justice and that he has no intention of interfering with it. He may have his own idea of what justice should be and of the way he would like the course of justice to run. In a few cases these people may genuinely believe that they are not interfering and that they are entitled to organise marches and have hundreds of people demonstrating outside the courts. Nevertheless it would be clear to any reasonable person to see that this activity is, in fact, interfering with the course of justice. Consequently it is essential that these words be left in and it illustrates, once again, the blind spot which Senator Robinson has in her approach to this Bill.
She is concerned, and is quite right to be concerned, about the position of a person who is accused of an offence under this Bill. But she seems to be quite unconcerned and to pay no regard at all to the question of public policy, to the fact that there are abuses, that something must be done to prevent their continuation. If she looks at that side of the coin and has any regard for the fact that these abuses exist and that something should be done about them, she must realise that it is not merely sufficient to talk about a person who intends to do something but also to talk about a situation where the activity is of a character which is likely to lead to interference with the course of justice.
At this hour of the morning I do not feel inclined to bow to anybody's legal knowledge or commonsense. I should like to resolve the conflict which appears to be between the views of the Minister and Senator Ryan. The Minister was very emphatic when dealing with section 4 in reply to the Second Stage debate that mens rea was necessary and that guilty intent must be shown and that that was an integral part of our law and continued to apply in relation to section 4 of this Bill.
I hope I have not been unfair to the Minister in summarising his views in relation to this matter. Assuming I have summarised the Minister's views correctly, may I now summarise Senator Ryan's views which, as I understand them, are that in relation to this setion you can forget about intent.
That is going beyond what I stated.
We are dealing here with a factual situation. Perhaps I overstated it. Senator Ryan's actual words were "you are not merely dealing with the intention but with the fact". If this is correct then the question of mens rea need not necessarily enter this subsection of section 4. It is because it is not the intention that mens rea should enter into it that these words are included in the subsection. I should like to know is the Minister correct or is Senator E. Ryan correct? The easiest way to find out is to ask the Minister bluntly if, in relation to section 4 (1) (b), mens rea is an essential part of the offence.
May I clarify what I stated? There is a difference between a person who intends to pervert the course of justice and a person who does something which is likely to pervert the course of justice and he knows he is doing it although it is not his intention to do so.
In other words, you say mens rea is necessary?
Yes.
Even though there is no guilty intention, and guilty intention and mens rea are the same thing?
He knows he is doing it.
I move amendment No. 8:
In subsection (2), line 23, before "makes" to insert "knowingly".
This is another attempt to introduce the requirement of mens rea, the requirement of a mental element, into this section, and it provides for the insertion of the word “knowingly” into subsection (2) of section 4. It would then read:
A person who knowingly makes any statement, or who organises, holds or takes part in any meeting, procession, or demonstration, that is unlawful under this section shall be guilty of an offence...
The object of the amendment is to try to give some protection to the person by preventing circumstances occurring as they could occur under the present text of the Bill. As I read it, a person could go along and join at the end of a procession or demonstration and be a curious bystander. If the meeting was of such a character as to be likely, directly or indirectly, to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings, that person could be liable to be guilty of an offence under this section.
I remind the Seanad that the penalties under this section can be particularly high. A person can be convicted on indictment to a fine not exceeding £1,000 or to imprisonment for a term not exceeding five years or to both such fine and such imprisonment. We ought not to create new criminal offences where there is no requirement of mens rea in the sense of an intention to be involved in conduct hitherto governed by contempt of court.
This is basically the same point as was raised in the previous amendment. It is "taking part" in a meeting not "at". "The innocent bystander", which is the phrase used in connection with this subsection, is innocent in the sense that he does not know that the meeting is intended to interfere with the course of justice.
He does not have to know.
But if he actively organises or takes part he is then knowingly doing it and so far as statements are concerned it seems difficult ...
Would the Minister insert "actively".
If someone looks on for a few moments he can hardly be described as actively taking part.
The word "actively" is not in the section.
Yes, but taking part is an action. It is more than just happening to look on as you wander past. So far as the necessity for the word "knowingly", in regard to a person making a statement, is concerned, the law presumes that someone who unknowingly makes a statement is not guilty. If he is insane or drunk and does not know what he is saying he is not guilty.
The "knowingly" refers to the fact that the statement would be unlawful in that it would interfere with the course of justice and be likely, indirectly or directly, to interfere with the course of justice. The word "knowingly" is necessary. Without wishing to be contentious this section-appears to me to be unconstitutionally vague. I am too tired at the moment to argue the point.
In the sense that the Senator is putting across the word "knowingly" it would confine the meaning to "intended". It would not cover the situation where the statement or conduct was "likely to be" an interference with the course of justice. If one inserted the word "knowingly" it would be necessary to take out all the words other than "intended". That would narrow not only the section, which is a valid enough point, but also the existing law on contempt.
It is clear from subsection (3) that the existing law on contempt remains. Could I ask the Minister for some illustrations of conduct of this sort where, regardless of the intent of the individual, his conduct is of such kind as to be likely, directly or indirectly, to affect the course of justice in such a way that it would justify the penalties written into the section?
Something falling under section 7 of the Act of 1939 probably.
The example that sprang to my mind on this is that if a meeting is organised ostensibly for some other purpose—and this happens from time to time with what are called the front organisation—and then the meeting becomes an interference with the course of justice.
That leaves me even more worried with the section. It does seem that a meeting in which persons were participating might be deemed to be likely to be an interference with the course of justice. I would be worried about deeming it to be of such a character as to be likely, directly or indirectly, to influence any court, person or authority concerned. I would have thought that the present law in relation to contempt of court which still remains is sufficient to protect a court against the activity of someone who may not intend to interfere with the course of justice in that sense but the court can nevertheless hold that person in contempt. I am not satisfied with the example the Minister has given.
Can I give the Senator another example? A newspaper reports a handout from one of these organisations. At the moment if the handout given to the paper constituted contempt of court the newspaper would be in contempt but presumably it would not intend to be. A great many of these handouts relate to cases—you know the usual stuff they contain about South Africa, O'Malley, et cetera.
I should like to make it quite clear that, once I am satisfied in relation to this section that there is no real danger of a person who has been described as an innocent bystander being subjected to the penalties in this section, I am not going to object in any way to it. It is only right that anything which constitutes an interference, whether by means of meeting, procession, statement, words, intimidation of one sort or another with the course of justice, should be stamped on hard. I make no apology for saying that. The Minister gave us the example of the possibility of a meeting called by what he described as a front organisation ostensibly for one purpose but which is turned into a meeting designed to interfere with the course of justice. If a front organisation does that then I want it to be stamped on under the law of this land, assuming that the front organisation were deliberately lending themselves to that kind of manoeuvre with the idea of getting around this legislation. The following is a different matter, and this is possibly what Senator Robinson had in mind when she said it would create more worry for her. If an innocent organisation holds a meeting for one purpose and the meeting is taken over by a group—the Minister will understand I am not taunting the Fianna Fáil Party when I use the expression—of dissidents who then——
Or the Fine Gael Party. We have no dissidents now. Someone else has them.
—turn the meeting into——
Will you face up to the problem?
We will have plenty of time to discuss that if the Minister wishes. I doubt if Senator ó Maoláin does.
Possibly.
——a different direction which contravenes this particular section, it is only the dissidents who should be subjected to the penalties imposed. The people who originally organised and held the meeting, being innocent of any intention to interfere with the course of justice, should not be brought in under this section. As the section stands, it would seem that such a possibility could arise. I have no sympathy whatever for people of any shape, size or description who set about organising meetings, processions or anything else in order to interfere with the the course of justice, or to try to intimidate witnesses, jurymen or members of the bench.
I move amendment No. 9:
In subsection (2), line 24, to delete "or takes part in".
Part of the discussion on the previous amendment strayed over on to this one. Some of the things I wished to say have already been said.
I thought the Senator was going to suggest that they had all been discussed at length.
No, indeed not. Subsection (2) of section 4 adds something to a provision which is already in the Offences Against the State Act. The section as a whole adds the offence of interference with the course of justice. I am in favour of a proposal to define such an offence and make people who commit it liable to the penalties.
I object to the extension of the already stringent terms of the 1939 Act contained in subsection (2). Section 27 of the 1939 Act is the relevant one here. It refers, admittedly, only to public meetings of an unlawful kind. It makes only those who organise, hold or attempt to organise or hold such meetings liable to prosecution. This is the proper way of operating. I consider the words "or takes part in" dangerously vague. They will catch the innocent bystander. It is in effect saying that anyone who follows a band to listen to the music shares the political convictions of the conductor. This is an enormous assumption to make about anybody.
The difficulties which the Minister faced in the drafting of this section— I sympathise with him in his attempt to draft a section of this kind—illustrate to us the whole problem of dealing with meetings and processions. For example, I would have been happier, if together with this section there was one placing an obligation on organisers of meetings, demonstrations and processions to notify the Garda at least one hour before the commencement of such meetings, and so on. This would have the advantage of allowing positive identification of persons responsible for holding such meetings, processions or demonstrations. It would make it easier to bring proceedings against these people in the event of the meetings, processions or demonstrations interfering or intending to interfere with the course of justice. The state of the law in regard to processions, demonstrations and meetings pertaining to unlawful organisations is very unsatisfactory but I do not accept that this particular section is the best way to deal with the situation.
In relation to my amendment, I am worried about the possible effects of the inclusion of this phrase in subsection (2). We must recognise that the Offences Against the State Act and the amending Act are usually used in a political way. They are not a normal part of the armoury of the Garda Síochána. Prosecutions are only taken under these Acts after prior consultation with the Department of Justice. This is something which affects the whole implementation of the law with regard to processions and so on. The section I have quoted from the 1939 Act is a pretty draconian section. It states that:
public meetings shall be unlawful if they are held by or on behalf of or by arrangement or in concert with or for the purpose of supporting, aiding, abetting or encouraging unlawful organisations.
That is quite a mouthful. I am surprised that at a time when we are being asked to introduce a piece of legislation such as is contained in subsection (2) we have no evidence placed before us of unsuccessful prosecutions brought under section 27 (1) of the parent Act. The Minister gave us evidence of unsuccessful prosecutions in relation to membership. His case, on this section, and particularly on the subsection, might have been strengthened if he gave us similar evidence in regard to public meetings, unlawful processions and so on.
The problem is—section 28 of the 1939 Act which relates to processions near and around the Houses of the Oireachtas is also relevant in this connection—that there has been a history of dual reaction to illegal processions. They have been either ignored, because it was politically inexpedient to prosecute the people concerned, or they have been exploited because, equally, it was politically expedient to exploit them at a particular time. It is because it is almost impossible to implement a law relating to processions and demonstrations in a way which is not strongly political that this whole section creates considerable problems.
I should like to point out to the Senator that what he has been saying would appear to be relevant to the section as a whole rather than to the amendment before us at the moment.
The Leas-Cathaoirleach may rest assured that I will not repeat when the section as a whole is being considered. The effect of my amendment is to remove a situation in which the innocent bystander is at risk, which I believe to be the case under this subsection.
I should like to support, very briefly, Senator Horgan in his amendment. An alternative would be what the Minister suggested. I doubt if he will be prepared to put it in the form of the amendment—"holds or actively takes part in any meeting"—which would meet some of the objections to the present wording.
If a man comes along to a meeting and he realises its purpose or nature when he hears what is being said, and remains, the question whether he takes part in it or not will depend on what he does. Examples I should like to give are that, if he joins in the discussion, asks questions, applauds and so on, he is likely to be considered as taking part. If he stays for a short time out of curiosity and says nothing, he would not be taking part. If he only protests that the meeting is a disgrace, or illegal, he will not be taking part. The test is whether, as a matter of ordinary language, one would say that he took part or not.
What about a procession? If he just follows on, is he taking part in the procession?
What distance from the procession must he walk?
It is a matter the court would leave to the jury——
There may not be a jury.
If you go a half-mile in the procession, knowing what it is about, you are probably taking part. If you walk a short distance with the procession, not knowing what it is about, and then leave you are not taking part.
At this time of night one almost gets a persecution complex. I was thinking, while listening to some of the debate, that I could forsee circumstance where I might be caught very easily under the terms of the Bill. I should like to ask the Minister if he does not agree that this is possible under the Bill. The section refers to:
Any public statement made orally, in writing or otherwise... that constitutes an interference with the course of justice shall be unlawful.
This means any public statement. It says that a statement—
shall be deemed to constitute an interference with the course of justice if it is intended or is of such a character as to be likely, directly or indirectly, to influence any court, person or authority including a party or witness...
Recently, there was a case before the High Court dealing with constitutionality of section 7—the provision prohibiting the sale and distribution of contraceptives—of the Criminal Law (Amendment) Act. There was a decision given on that case by a High Court judge and I went on television and made a statement criticising, very sharply, the decision of the High Court judge and the reasons for his decision. I do not think anything I said would influence the High Court judge. I do not flatter myself that anything I may say here would influence a High Court judge or, more important still, would influence a Supreme Court judge, but it might well influence the parties to the case as to whether they should appeal—in this instance as to whether Mrs. McKee should appeal to the Supreme Court.
Although I have no intention of influencing the case, the wording of the section is so broad that this would seem to be a case where I would, technically, have made a statement which would be likely to influence the course of justice. This example shows the ridiculously wide nature of the section. For that reason, I believe it is unconstitutionally vague. There is a great problem attached to defining the scope of "contempt of court". In this section we have a legislative re-enactment of the gist of "contempt of court". I do not believe that we have sufficient precision or safeguards in it. I would welcome clarification on that point.
I should like to ask the Minister a simple question on the section. It relates, in particular, to section 4 (1) (b) which reads:
A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if is intended, or is of such a character as to be likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings——
Under this paragraph we have a situation where a statement, made for the purpose of influencing a court, shall incur all the penalties provided here. I wish to visualise a situation where the Minister is back in private life, practising as a solicitor, or the Parliamentary Secretary is back in private life, practising as a barrister, or Senator Mrs. Robinson practising as a barrister. They go into court on behalf of a client and make statements with the deliberate intention of persuading the court, on behalf of their clients. Is that situation not captured by this paragraph?
No. They are privileged if they make the statements in court. The Senator knows that as well as I do.
It is the privilege that is being removed.
The privilege is not being removed. The draftsman was told to draft this on the basis that he would re-enact, in statutory form, part of the existing law on contempt. He has done so to the best of his ability and I am advised that it is as near as is humanly possible to make it to the existing law on contempt.
I take it the Minister can safely go back to private practice in that case.
In fact, I should love to go back. As far as Senator Robinson's problem about the lady who lost her case in the High Court is concerned, Senator Robinson's statements on the case obviously could not affect the High Court.
I said that but what about the woman herself if it did affect her in her decision as to whether or not she would appeal?
You are always entitled to suggest to someone that they should proceed with the case, but the general tone of what Senator Robinson said in relation to that case would seem to put her in a grave danger of being in contempt of court at present. I am not sure if a person is allowed to make public statements at the moment saying that a decision of the High Court was stupid.
That is my point. Up to now I have always felt happy that I could do so without being prosecuted for contempt of court. This is done in other jurisdictions. Up to now I could take a judgment of the High Court, analyse the reasons for it, say that I disagreed with it and write a legal article or make a statement about it. The reason why that was not contempt of court and the reason why I felt happy on my knowledge of contempt of court was that I could not, in fact, influence the court before which the appeal would come. I could not influence the Supreme Court because the Supreme Court would not be influenced in their own proper judgment and discretion in the matter.
What we have done here, in the very wide wording of the section, is to say that any public statement—
...shall be deemed to constitute an interference with the course of justice if it is intended, or is of such a character as to be likely, directly or indirectly to influence ...a party or a witness as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome.
On the wording of that, it seems to be contempt of court, even if I was not very critical of the court but merely pointed out that arguments had not been made by a defence counsel that might have been made, that there was room for appeal in the case and encouraged the party to take it further. That amounts to an offence, reading it in the way in which the section is framed.
All I can say is that the person will not be any more in contempt of court or in danger of committing an offence after this section is passed than she is now. I say that without prejudice as to whether or not she already had committed contempt of court.
I do not accept this because the wording of the section goes very far. The fact that "a character is likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings (including a party or witness) as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome" is much wider than contempt of court, and the Minister knows that.
Yes, but what the Senator is talking about is trivial. There is scarcely a provision of the criminal law that is not open to technical breaches. The best way to overcome the Senator's difficulties is to bear in mind the effect of the maxim De minimis non curat lex.
Yes, but normally I would have the protection that there would have to be mens rea. Here we have even eliminated the intent involved. Normally, one could say that this circumstance would not arise because you would not have the necessary intent but, since we do not need any intent here, this does not arise.
You do not need intent for contempt.
I appreciate that, but contempt remains and this is much broader than contempt of court.
I move amendment No. 10:
To delete paragraphs (b) (c) and (d).
In talking on this amendment, I should like to start by referring to the last thing the Minister has said. He said it was almost impossible to draft criminal legislation that did not create technical infringement of a minor kind. It is my understanding that the clauses in section 5, which I am proposing to delete, create vast numbers of technical infringements, so many technical infringements that it cannot possibly be described as good law. Definition sections are notoriously double-edged and this one is more double-edged than most. It creates a situation in which you are casting a net which catches literally thousands of people for the sake of a conviction of maybe ten or 20 people.
I shall explain what I mean by reference to the Principal Act. The three paragraphs of the section seeking to delete can be divided very neatly into two lots. Paragraph (c) stands by itself; (b) and (d) for the purposes off my argument go together. I should like to deal first with paragraph (c), which adds to the definition of "document" in section 2 of the Act of 1939:
any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.
First of all, I would refer the House to the definition section in the original Act. The second definition section in the Act is section 3, which defines a seditious document in the following way:
A seditious document is a document in which words, abbreviations or symbols referable to a military body are used in referring to an unlawful organisation.
By adding to the definition of "document" the definition in paragraph (c) of this section we are adding a vast amount of material which is commonly available in this country at present to the category not only of document but of seditious document. There are numbers of ballad groups in this country who sing songs about, or purporting to be about, an organisation known as the IRA. Many of these ballad groups have cut records into which these songs are permanently inscribed and which are sold all over the country.
If we pass this section unamended it will mean many things. First, I presume that all these balladeers will be technically liable to prosecution for being members of unlawful organisations; secondly, it would mean that any shops in which are gramophone records using these abbreviations or symbols of words would also be liable to prosecution. Under section 24 of the original Act, it would also mean that the proprietors of such shops would automatically be proved to be members of illegal organisations. Section 24 of the original Act states that proof of membership can be supplied by possession of an incriminating document relating to the said organisation. If it is plain that one of these records is, at least technically, an incriminating document, it is equally plain that the person who is in possession of it, or on whose premises it is found, is liable to the penalties under the Principal Act.
The Minister may object that this is a bagatelle and that these are not the people he means to catch. We are in danger of enacting a situation here in which the proportion between the technical offences that are caught by the Act and the real offences which the Act seeks to catch is absolutely grotesque and unreal.
I now wish to refer to (b) and (d) together. Paragraph (b) extends the definition to include any photographs; (d) refers to any "film, microfilm, negative, tape or other device". I will not read the whole paragraph. If we look at section 13 (1) of the original Act, it refers to anybody who prints a document for reward. In section 5 of this new piece of legislation we are extending the definition of "document" to include any photograph or film. It is also a fairly legitimate conclusion to draw that the act of processing, developing and printing film will be, when this becomes law, printing a document for reward. Under the original Offences Against the State Act certain obligations are laid on people who print documents for reward. They are:
(a) at the time of or within twenty-four hours after printing such document, print or write on at least one copy of such document the name and address of the person for whom or on whose instruction such document was printed:
(b) retain, for six months from the date on which such document was printed, a copy of such document on which the said name and address was printed or written as aforesaid.
This is again what appears on the surface to be another example of a simple definition. It suddenly puts thousands of people into a situation in which they are technically in breach of the law. I would accept the Minister's contention that no criminal law can be drafted without allowing for some minor technical infringements, but my basic objection to this is my basic objection to the other one as well. It is the disproportion between the technical offences which are automatically created by this heedless extension of the definition section. The good which the section seeks to achieve is so grotesque as to make it an absolutely absurd piece of legislation.
I have sat here since 7.45 p.m. listening to hairs being split and listening to a lot of irresponsible talk, taking up time and costing the State money by people who purport to be very concerned about the State. I have also listened to Senator John Horgan with great attention, and I am wondering who made the balls that Senator Horgan is firing here. I am quite convinced that they where made by somebdy and I recognise the style, and I am convinced——
My style is my own.
Not quite.
I resent this——
I would ask Senator Farrell to come to the section. We are on amendment No. 10 at present.
I have sat here and listened to an awful lot of drivel tonight about people who are concerned about this House.
If they are concerned about this House, they should be concerned about the country. They should stop talking in cloud cuckooland and stop introducing amendments because, if they know the feelings of the people of the country——
This matter does not arise on this amendment. We are now discussing amendment No. 10.
She has spoken a lot more sense than all the drivel we have been listening to for the past hour or two.
Before we complete the Final Stage of this Bill, I want to say I understand how tired and frustrated some Senators may feel and, therefore, I do not intend to follow up the last speaker on that side of the House. Her tiredness excuses the insinuations she was making against Senator Horgan.
I want to make a short statement about this Bill. When it is passed it will be the Offences Against the State (Amendment) Act and will be a permanent part of our statute law. It is unlikely to be repealed in my lifetime or even after that if one can judge by its predecessors, and by the fact that the State of emergency which was created over 20 years ago under the earlier Offences Against the State Act is still with us. This is a permanent piece of legislation. We tried to have this Bill given the sort of time limit we felt was appropriate in view of the fact——
On this Stage the Senator may discuss what is in the Bill and not other matters which she would like to see in the Bill. The discussion is strictly limited to what is now in the Bill.
The various sections which have been debated, the points that have been raised and the amendments that have been put forward, leave doubts in the minds of Senators on this side of the House as to the desirability, and in one or two instances which we pointed out, the constitutionality of the Bill. For that reason it is appropriate that this Bill should be submitted by the Presiden to the Supreme Court for a ruling as to its constitutionality under Article 26.
This Bill did not have the normal time in the House. It has not got the emergency procedure written into it that the Bill will only last for 90 days and, if it is to be a permanent part of our statute books, then I feel it is appropriate that the President, after consulting the Council of State, should refer this Bill to the Supreme Court, and that the Supreme Court should review its sections to see whether they are a constitutional limitation on the freedom of the individual. I hope this will not be misinterpreted by others. I am not a supporter of an unlawful organisation and I abhor, as much as any Senator on the other side of the House, the violence and tragedy which have hit this part of the country in the past few days. I also deplore the violence in the North over the past three years which I do not distinguish from the violence here.
The parliamentary process has been sadly inadequate in relation to this Bill in so far as it will be a permanent part of our legislation since it has no time limit. Therefore, I feel that it is an appropriate Bill, and the sort of Bill that Article 26 was intended to cover, for the President, after consultation with the Council of State, to refer to the Supreme Court on the question of whether the sections constitute a legitimate and constitutional curtailment of the liberty of the individual.
What this Bill contains can be summed up in one sentence. It contains a lot of bad law in a good cause.
This Bill contains very good law and, if Senator Horgan and Senator Robinson were living where I have been living for the past three years, their attitude to this Bill might be different. I remember just a month ago going to a building in my own home——
The Senator is raising matters which would have been relevant on the Second Reading but are not relevant on the Fifth Stage. The Senator may discuss matters relating to what is in the Bill.
I know somebody who lives near the Senator and who is not very happy about the Bill.
He lives 155 miles from the Senator.
Neither these people nor these matters have anything to do with the Fifth Stage of this Bill.
I am glad there is provision in this Bill to apprehend people who, in the opinion of the Garda, and the public, are manufacturing bombs which could kill 50 or 100 people. I know that, as a result of this Bill, the Garda authorities will be in a position to arrest a man who one month ago could have killed 60 people, 50 yards from my place of business. There is provision in this Bill for the Garda to arrest a man if he repeats an action which he was guilty of in the past when he organised a mob——
These matters do not arise on this Stage. All this could conceivably have been relevant on the Second Reading but not on this Stage.
There is provision in the Bill——
Details of the provisions in this Bill are relevant at this Stage. Surrounding circumstances and matters with which these provisions might deal do not arise.
I bow to your ruling, Sir, at this unearthly hour of the morning. I have many examples of why this Bill is a good one; and I repeat that, if some of the Senators had as much information on the subject as I have, they would welcome the Bill. When the people of Ireland are given an opportunity to study its implications, the name of the Minister for Justice will go down in history.
That is a great change from previous statements in the House.
If the Senator would quote the previous statements I would comment.
As the leader of the party with a majority in this House and which could have exercised their rights and privileges under Standing Orders here tonight, I should like to say to Senator Robinson that her insinuation that there was any attempt to cut short the debate is entirely out of court. She and Senator Horgan had ample time to make their case. I resent the idea she has tried to put across that there was an attempt to steamroll this Bill through the House. It got a long and wide-ranging discussion and there was only one "vótáil", and it did the trick.
Did you miss one? There were two.
It was obvious that the game was not worth the candle. I was hoping they would call for another "vótáil" so that the people would see the bloody hypocrisy that has gone on here, talking about representation and whom they represent.
The phrase "bloody hypocrisy" should be withdrawn. Is the Leader of the House withdrawing the expression "bloody hypocrisy"?
I withdraw "hypocrisy". Will that do?
