I am glad the Minister made that point because he does not appreciate what I am saying. Section 2 (1) incorporates the principle of extra-territoriality. The whole purpose of this section is to do precisely what I am saying, to ensure that an offender down here who has committed an offence in the North of Ireland which corresponds to an offence in the Schedule of this Bill, can be transferred to the North of Ireland in the custody of the police and security forces of the North of Ireland to stand before a judicial commission in the North who will hear evidence with regard to the offence purported to have been committed by the offender in the North of Ireland. This may happen even if the man is on bail and free to move as he likes in this part of Ireland. He can be so brought and put into the custody of the security forces in the North. That is what flows from this Bill and the Minister is well aware of that. There is no point in running away from it because this is one of the practical aspects of this Bill that renders it entirely ineffective. No man will put himself into the jeopardy I have just described. This Bill says this can happen. In particular, subsection (1) of section 2 which introduces this principle of extra-territoriality states:
Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State.
He can only be convicted on indictment after due proof is given before the Special Criminal Court. I want to emphasise this point again that section 2 is directly tied in with section 11.
Senator Yeats is perfectly right because section 11, which makes section 2 effective and operable, in fact specifies that the court referred to is the Special Criminal Court for the purpose of the trial in accordance with Article 38 and so on of the Constitution. That is the start of section 11 (1). So in order to make subsection (1) of section 2 work, (a) the Special Criminal Court must be the relevant court, and (b) in order to make it work that court in effect must request the courts in the North of Ireland, as set out in section 11, and must request the Lord Chief Justice in Northern Ireland to establish a commission composed of a judge of the High Court in Northern Ireland who will sit and hear the evidence on which the conviction can take place under section 2 subsection (1). The evidence must be heard by a High Court judge in the North of Ireland with the judges of the Special Criminal Court from this part of Ireland sitting beside him and listening but not in any way hearing evidence, or not in any way being able to question the witnesses directly so as to test the credibility of the evidence.
That may happen in any one of several ways. It may happen under what flows from section 2. In order to procure conviction on indictment under subsection (1) of section 2, there are various ways in which that can be done. The accused man may volunteer to go to the North. If he does that he has to go into custody in the North of Ireland. He will not do that, therefore he will not be there to participate in the hearing of vital evidence, to recognise witnesses, to cross-examine them directly himself. So straight away you have a situation where the person charged is put into a situation which he would not go into, and therefore the whole combination of section 2 and section 11 becomes a complete charade. The accused, in the interest of his own protection from the security forces in the North, rightly refuses to go North to give evidence or to question witnesses, or to give evidence before such a tribunal, and stays down here. The evidence then will be heard in the North of Ireland in his absence without any means of testing such evidence.
I am back basically to subsection (1) of section 2, which is the nub of the whole Bill. The Bill must be tested on one basis, and that is the effectiveness, the workability, the enforceability of the subsequent measures that flow from section 2 and are designed to give effect to the principle enshrined in section 2 (1). Of course, it goes without saying that you have had limited application of the principle of extra-territoriality. The Minister is welcome to the point that you have such a principle enshrined with regard to the poaching of salmon under the Foyle Fisheries Act, in a very limited way, where there is a common and mutual interest to catch salmon poachers.
We are not talking about salmon poachers in this. We are talking about a far more fundamental breach of the criminal law where, as I said earlier, you are providing the Minister with legislation although it will never be effective. We are providing the legislation for the handing over of offenders to the security and police forces in the North of Ireland, the handing over by this State of offenders who may be out on bail and free men within this jurisdiction.
This Bill will not work. The cat will not jump. The offenders will not budge from here. There is very little that can be done. A phoney court or commission hearing will be held in the North of Ireland with nobody present on behalf of the accused. This evidence will be brought down to a court in the South of Ireland, brought down on a commission introduced for the first time into criminal law, brought down in written form. The accused will appear before the Special Criminal Court. The burden of the evidence against him will be untested evidence in writing from the commission hearing in the North of Ireland, in Belfast.
That sort of hearing will not stand the light of day. As a criminal hearing that could deprive a man of his life or his liberty, it will be torpedoed under Articles 5 and 6 of the Convention on Human Rights, torpedoed under the basic criminal law provisions that are written into our Constitution. All of this in the interest of what? It will be totally ineffective. The fact of the matter is that we have under the existing Offences Against the State legislation strong enough legislation to handle this problem as far as the Twenty-six Countries are concerned. That is functioning at this time.
Our function at this time is to ensure that law and order is maintained where our forces have their jurisdiction. We have the police and Army of this country to look after what has to be looked after within this area. The way events have accelerated since the Minister introduced this Bill fully justifies what I am saying that whatever scintilla of misguided confidence was placed by our misguided Government in the good faith of the Northern Ireland administration at the time of the Sunningdale Agreement, it may have been justified in the interests of getting a good deal in December, 1973——