Seanad Éireann díospóireacht -
Wednesday, 23 Jul 1975

Vol. 82 No. 8

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

Debate resumed on amendment No. 25a:

25a. In page 12, lines 16 to 19, to delete all words after "deposition" to the end of the section and substitute "unless the justice is satisfied that such person cannot give any material evidence or, as the case may be, produce any document or thing likely to be material evidence."

—(Senator E. Ryan.)

Mr. E. Ryan

The suggested amendment here would make the restriction in section 7 (2) of the Criminal Procedure Act, 1967, conform with the provisions of section 10 (1) of the same Act dealing with witness summonses. Section 10 (1) says:

(1) A summons (in this section referred to as a witness summons) may, on the application of the Attorney General or an accused person, be issued out of the court to which the accused is being sent forward for trial requiring the person to whom it is directed to attend before the trial court and give evidence at the trial and to produce any document or thing specified in the summons, unless the court is satisfied that such person cannot give any material evidence or, as the case may be, produce any document or thing likely to be material evidence.

Section 7 of the 1967 Act which is being affected by section 18 of this Bill deals with preliminary determinations and says that the justice shall consider the documents and exhibits. Subsection (2) says:

The prosecutor and the accused shall each be entitled to give evidence on sworn depositions and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.

Section 18 of the Bill proposes to restrict that by saying that this right shall not be available to the accused if it appears to the justice that the person is outside the State and that it is not reasonably practicable to secure his attendance before the justice for examination under that section. What I am suggesting is that the restriction should be modified by saying if "the justice is satisfied that such a person cannot give any material evidence or, as the case may be, produce any document or thing likely to be of material evidence". The situations seem to me to be the same, and I am merely using the wording in section 10 of the Criminal Procedure Act for the restriction which is proposed here. It seems to me to be a much better wording and a more appropriate one than the one that is in the Bill. It is preferable in a criminal prosecution where the accused is seeking to have a witness called that the onus should remain on the justice of being "satisfied", as in section 10 of the Criminal Procedure Act, rather than "appearing to the justice", which is less stringent.

What is proposed here is merely that the right of the accused should not apply if the witness is outside the State and it is not reasonably practicable to secure his attendance. Surely a much more important thing is whether or not the evidence he could give is material to the charge. In the proposed amendment the onus would be on the accused to satisfy the justice that the witness was material to the charge. If you look at this the other way around, that if on the one hand, the witness, the person to be examined, is a material witness but, on the other hand, is outside the State, justice cannot be done if the justice is, on the one hand, to find that the person in question is material to the charge and, on the other hand, is outside the State. Therefore, of the two, I think it is much more important for the justice to decide whether or not the person in question is a material witness and if he is, then obviously it is essential that he should be there, and that is the test which should be before the court and the test on which the justice should act.

Minister for Justice (Mr. Cooney)

As the Senator says, section 7 (2) of the Criminal Procedure Act, 1967 provides that in the course of a preliminary hearing of an indictable offence in the district court, the prosecution or the accused is entitled to require the attendance of any person before the justice to be examined by way of sworn deposition. I think that was to retain the old procedure of verbal deposition. That Act introduced the new procedure of written depositions and did away with the long and tedious oral deposition procedures. Section 18 of this Bill endeavours to secure that the entitlement under the 1967 Act will not lead to a situation where parties exercise their right of having an oral deposition and seek to have brought before the district court a person who is outside the jurisdiction and whom it is not practicable to bring into the jurisdiction, because, of course, the court has no power to compel a person from another jurisdiction to come before it for the purpose of giving an oral deposition at a preliminary hearing.

Senator Ryan's amendment suggests the cutting off of this entitlement—which I think is no entitlement at all, because the court has no power to compel the attendance— that instead of the section as drafted there should be a proviso that involves the justice. I gather from what he is saying that if a justice is satisfied that a person can give material evidence, then he should be summoned, although the amendment is phrased: "unless the justice is satisfied that such person cannot give any material evidence". I could not quite read that into the section because the word "unless" would appear to be a misprint for the word "if".

Mr. E. Ryan

That is correct. My amendment is wrong. It should be "if".

Mr. Cooney

If the justice is satisfied that the person has material evidence the justice cannot compel that person to attend. The reality of the situation is that in cases of these preliminary hearings if there is a witness outside the jurisdiction who has not given a written deposition, there is no power under the law here to compel his attendance before the court. Of course this point is basic to this entire Bill, that in such a situation, when the actual trial is taking place, there is provision made for hearing on commission.

I can foresee that it will be a very rare situation that there will be preliminary hearings before a District Court at all, that the procedure to get offences directly before the Special Criminal Court will be invoked when the Bill is passed. We dealt with this on an earlier amendment, I think it was Senator Robinson who had the amendment or had a query dealing with the mechanisms proposed to have these offences made triable by the Special Criminal Court only so as to avoid preliminary procedures in the District Court.

This section 18 is really precautionary that in the event of these proceedings involving a preliminary hearing before the District Court, they would not be stymied by a party to the preliminary hearings seeking to have a witness brought from outside the jurisdiction, because, of course, there would be no power to compel such attendance. That is the reality of it. We want to avoid a situation like that arising and styming any action that might be under way. I think, with respect, Senator Ryan's amendment does not really remove that difficulty because it really says that the person will not be needed if the justice is satisfied that he cannot give evidence, but the justice is satisfied that he can give evidence we are no farther on because the justice has no power to compel his attendance. This would not be really relevant to what we are discussing, which is essentially trials before the Special Criminal Court. In fact that is where the trials will be taking place. And if it is known in advance that a witness is not going to come to give evidence, then the procedure of going before the Special Criminal Court will have to be the procedure adopted so as to enable evidence to be taken on commission. What the section is intended to guard against is something very remote but it was thought prudent to put it in.

Mr. E. Ryan

The Minister is factually quite right in saying that if the person is outside the jurisdiction the court cannot insist that he be brought before the court. But that is just one aspect of the case. The justice in this preliminary examination has to decide whether or not there is a sufficient case to put the accused on trial. He has got to decide that on all the evidence and all the facts before him. From the point of view of doing justice to the accused, how can a justice make a decision that the person should be sent forward if he is conscious of the fact that a witness who can give material evidence is not available before the court?

It is very easy to say that it will be pleaded to him, the justice, that he will be told that there is an essentrial. He has got to decide that on all which will be material and which may have a very important effect in helping him to make up his mind whether a person should be sent forward or not. Surely the important thing in that situation is not whether or not a person whom the accused wants to have called is outside the State—that it is a matter of fact— but whether he is a material witness. I do not see how the justice can make up his mind, how he can do justice, if he is going to make up his mind in the absence of a witness about whom it has been represented to the justice that he is material to the issue before the justice.

Mr. M.J. O'Higgins

Surely the position is that the justice will in the ordinary course give the benefit of any doubt to the accused.

Mr. E. Ryan

That is the point I was going to make, that if the witness is material or critical to the prosecution's case, the absence of the evidence of that witness will mean, in effect, that a prima facie case will not have been made. That then will be in ease of the accused; if the State is not able to produce its witnesses to substantiate the charges it is making, then the charge falls and there will be no return for trial. This is a risk that is inherent in every criminal case. Generally speaking, it is an unusual point to be raised, but it can happen that a defendant may allege that he has a material witness in England and that he cannot get him to come over. It is then a matter for the court to decide whether in fact that evidence is material or whether the court will proceed to conclude the trial in the absence of that witness. If the witness is material to the prosecution and is a critical element of the prosecution case, his absence may be fatal to the prosecution case.

The court will decide, and the court inherently has powers to decide, whether there is this amendment or not, on the facts before it, and if those facts are faulty or lacking because of the absence of the material witness, then the court can only go one way and that is refuse information. If this is an actual trial, it will be in the Special Criminal Court and the commission procedure will be available. This is only dealing with another point of preliminary hearings. The court has the inherent powers, as every court has, to decide on the evidence before it if it is adequate to sustain a prima facie case. If the prosecution says: “I have Mr. X, but he will not come here. Mr. X's evidence is critical” and the court will have to say: “Too bad for you, Mr. Prosecutor, but as the evidence I have is not adequate, I am refusing information”. In the unlikely event of a defendant's counsel saying: “I have Mr. X who will exonerate my client”, the justice may decide: “I will let this matter be tried; I will let the matter go on as a prima facie case here made before me. That is all that I am concerned with.” If it is to be rebutted it can be rebutted by Mr. X in the other court and the other court presumably then would have power to have a commission and hear Mr. X in the other jurisdiction.

Again Mr. X is in England, and where there is no Commission procedure this is a difficulty that arises in criminal trials even as of now. That is a matter for the court to assess whether Mr. X is a real person or is a fictitious person. This is something that we cannot provide for. It is a problem that is inherent in every criminal trial, always has been and, I think, will continue to be.

I would hope that the justice would take the course which the Minister suggests he would take. But what my amendment is seeking to do is make quite clear the test the justice should apply, because if a justice took a very rigid view of this section as it now stands, he would merely say that the person who was required to be called was outside the State. In these circumstances his duty would be clear; the person could not be called and that is that, and to the argument that he was not material the justice could say was not relevant: "The section says it is outside the State, I cannot call him and that is that".

My amendment would merely clarify the position and make quite clear the test to be applied. I do not see that it would weaken the position in any way that would affect what would happen if the Minister is right in the way a justice will probably interpret it anyhow. As it stands, it is possible that injustice will be done if a justice interprets in too rigid a way, whereas if the amendment were adopted that danger would be obviated. I submit that the amendment, particularly when I am merely suggesting the inclusion of the wording in the Criminal Procedure Act on a similar section should be adopted for this one. If it is right for section 10 it is difficult to see how it is wrong for section 7.

Mr. Cooney

It is not a question of the justice interpreting it in a certain way. The question of interpretation by a justice will not arise. The witness will not be called, Therefore, that evidence will not be before the justice. Therefore, if that evidence is critical the case falls. We have to rely on our courts to adjudicate on the evidence before them, not what might have been if that witness could have been called. The point is that the witness's presence cannot be compelled. If he comes voluntarily no problem arises. If he does not come voluntarily his evidence is missing. We are merely saying that the court cannot require his attendance. We are, if you like, putting into the statute what is a fact already. Possibly the section was not necessary at all— that it is merely to spell out what is the factual position, that the courts here cannot summon somebody from another jurisdiction. If that person's evidence is part of the prima facie case and that person fails to attend because he cannot be called by virtue of the power given under this section, that does not entitle the justice to then say: “If I had that man I would be happier. I am going to return for trial”. That is not the position. The court has an inherent obligation to do justice and only return for trial when there is a prima facie case made before it.

It is not correct to say that it is necessary to spell out that the evidence must not be material, because then you would be implying that to spell out that the evidence must be material if a person can be summoned, because there is an implication there somewhere that a District Court might return for trial where material evidence was lacking. That cannot be the case because a District Court can only return for trial where there is material evidence to find a prima facie case.

Amendment, by leave, withdrawn.

Section 18 agreed to.

SECTION 19.

An Leas-Chathaoirleach

It is proposed to take amendments Nos. 26 and 27 together.

Mr. Lenihan

I move amendment No. 26:

To delete subsection (1).

It is appreciated that they should be taken together because they are both cognate and very fundamental in regard to our criticism here of the whole legitimacy and bona fides of this Bill. I said initially that this Bill was un-amendable, and our amendments here to delete subsections (1) and (2) are in complete consistency with this view, because what is briefly proposed in these two subsections we are now seeking to delete is that we give the power of arrest to any person. I quote subsection (1):

Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence under section 2 (1).

I will go back to that section. Any person gets this omnibus provision of arrest. I am aware and there is no point in the Minister making this answer to me, I am well aware that there is a common law provision for an arrest of this kind, but this is being written into the statute here in regard to offence under section 2 (1), and subsection (2) goes on to say:

any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be guilty of the offence.

You have the two subsections that we now seek to delete here, subsections by which any person with a reasonable cause may arrest anybody whom he suspects to be in the act of committing an offence or whom he suspects to be guilty of the offence. And what is the offence? We will go back to section 2 (1) to see the offence:

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.

What we are giving here is power in the jurisdiction of the Republic to a private person to arrest a person whom he may suspect of committing an offence in the Northern Ireland jurisdiction. This amounts to a very serious situation. There always was a common law scheme of arrest by private persons, very seldom exercised indeed and usually on the basis of local knowledge or understanding of a situation. The whole purpose of having this traditional common law system of arrest arose out of a local situation where somebody was aware of an offence in his or her locality and had the power of arrest.

It is all very academic because the Minister cannot quote to me how often this power of arrest has been exercised without warrant by a private individual. I think it must be, if not zero, as near to zero as does not matter since the formation of the State. Over hundreds of years both here and in Britain a country that is far more susceptible to this kind of exercise of private right, I would imagine the figures must be infinitesimal where this type of power of arrest has been exercised by private individuals.

Here you are suggesting, and this is what the House is passing in subsections (1) and (2) of this section, that you are to have this power of arrest conferred on private individuals in the Republic in respect of offences committed in the North of Ireland as set out in section 2 (1) and the Schedule. In the name of God, how daft can we get? Sure that is not on. It is with a view to keeping the Minister right that at a stage when we decided to be reasonable, despite our total objection to the Bill as a whole——

Mr. Cooney

A nice decision.

Mr. Lenihan

We try to keep the Minister right. We would wish him in all seriousness to confine himself, and the legislature to confine themselves, to paragraphs (3), (4), (5), (6) and (7) of section 19, which give this power to the Garda Síochána alone. I do not have to elaborate on the history of our country and all the sensitivities involved in regard to the offences envisaged by the Minister. I am only talking in the abstract because I regard this measure as completely nugatory.

On the basis that this becomes an effective instrument of law and having regard to the circumstances that exist in the country and in regard to the offences to which this section relates, which are offences committed in Northern Ireland under section 2, surely it is total common sense to confine the power of arrest to the Garda Síochána who are the legitimately appointed force in this country. The Minister could do without subsections (1) and (2) and could do well with, if he wants an enforceable Act, subsections (3), (4), (5), (6) and (7). These are related to arrests carried out by members of the Garda Síochána, without a warrant, on suspicion.

I would trust a member of the Garda Síochána to carry out such an arrest, on suspicion, without warrant. I would have no qualms whatever— representing the main political party in this State which have always stood by the Garda Síochána and representing people who are concerned about having the enforcement of law and order within the State on a reasonable basis—about allowing the Garda Síochána, on reasonable cause, to arrest without warrant anybody whom they may suspect of being guilty of an offence under section 2 (1) or (3).

I have a real objection, in the sensitive context of the relations that exist in this country, to giving that right to any person outside the legitimate recognised police force of the State, having regard to the para-military situation, the IRA situation, the UDA situation, right across the board—there are all sorts of labels attaching to them. New labels are attached every day to the extremist organisations of the left and the right, extreme orangism or extreme greenism. I have no time for any of them. I wish to make that quite clear in case there is any misrepresentation of this aspect.

I want to ensure that legislation is passed here that makes it quite clear that we do not dabble in any form of private investigation or private informing in regard to these particular people: that if those people are arrested without warrant on suspicion, it will be done by the legitimate police force in this State. I feel very strongly about that. It is a fundamental principle in the context of this Bill and having regard to the sensitivities involved here in regard to the offences that will be pursued under this Bill.

It is no answer for the Minister to say that there is a traditional common law power of arrest. That exists in regard to harmless offences. It has become an academic sort of power over the years. It happened in the old days when only a minimum police force existed in these two islands where the common law operates, and it had a certain legitimacy. It has not been administered very often. Why have a right that has rapidly receded in the common law environment and which was largely exercised 50 or 100 years ago, to be exercised now in regard to a major offence scheduled in this Bill where para-military forces of all shades and kinds, of red and green and orange, rampage around the country to the detriment and destruction of property and the endangerment of life and limb? The right of private arrest only arises in the context of this section in the south of Ireland.

The right to arrest without warrant on suspicion people will be given to people outside the police force in the South in respect of an offence in the North of Ireland. It does not require any imaginative person to elaborate on the sort of area into which we are going now. I suggest to the Minister that he is doing harm to the objectives he has in the Bill by including these two subsections. He would do far greater good as far as the intention he has in mind goes by limiting these particular powers to the Garda Síochána.

I feel this Government could be brought to the European Convention on Human Rights on many issues involved in this Bill. I have mentioned a number of other issues on which, in my view, the Government can be chargeable before the European Commission on Human Rights. These two subsections are ones that very obviously bring the Minister into danger in that area. Article 5 (c) of the European Convention on Human Rights refers to:

The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so——

and continues:

There must be a lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence.

That is the wording of the Article. I am not referring at all to the subsections in section 19 which deal with arrest by a member of our Garda Síochána. They are the legitimately appointed police force, but read these subsections in conjunction with the subsections we seek to delete here. Subsection (1):

Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in act of committing an offence under section 2 (1).

This offence is an offence under section 2 which has been committed in a different jurisdiction. So any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence in a different jurisdiction. This, in effect, is an extension of, or ridiculous ploy on, the existing common law right which was never designed to deal with this type of situation.

The common law right that is written into statute here was designed to deal with a situation where people had local knowledge and understood a local situation. Here we are talking about an offence committed in another jurisdiction, Northern Ireland. If John A in any of our 26 counties feels he has reason to suspect B, his neighbour, of committing an offence in the Six-County area, he may arrest that individual. That is what it means. I know the saver of "with reasonable cause" is included, but I would say that that sort of saver is best attached to people in uniform who are ascribable and subscribable to the organs of authority within our jurisdiction, people whom we appoint from this Parliament or who are under the control and management of the legitimately appointed Government of this State. I suggest that they are the right people to arrest on suspicion without warrant in this type of situation.

That is why we suggest that the subsections that deal with the Garda Síochána acting in this manner, subsections (3), (4), (5), (6) and (7), should remain. That is why we suggest that subsections (1) and (2) should be deleted. I do not think that that type of arrest without warrant on suspicion as embodied in subsections (1) and (2), which we seek to delete, would be in accordance with, to use the words of the European Convention on Human Rights, "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonable to prevent him committing an offence or fleeing after having done so."—"lawful arrest or detention".

I want to refer to lawful arrest or detention. What we are suggesting here in subsections (1) or (2) amounts to prairie law, jungle law, banana republic law in the context of the situation I am talking about. I realise that there is a traditional common law right of arrest residing in every citizen. That is in regard to petty offences or local offences that are totally outside the ambit of the type of offence——

Mr. Cooney

It does not apply to petty offences at all. It only applies to felonies.

Mr. Lenihan

I would like to ascertain from the Minister, everybody knows that people have the right of private prosecution, the Minister is well aware of that——

Mr. M.J. O'Higgins

A private prosecution is different from right of arrest.

Mr. Lenihan

I am talking about the whole system of private prosecution which people have and they may do it through a garda.

Mr. M.J. O'Higgins

This is dealing with the right of arrest.

Mr. Lenihan

I am talking about the general principle of the private individual going in on a person's right as against the public authority, through its lawful force, doing it. What I want to get from the Minister is in how many cases under the traditional common law code has the power of arrest on the part of a private citizen been exercised within this State since the formation of the State or over X number of years past. He has officials there behind him and they know well. I happened to occupy the same chair as the Minister for a while, and the Minister knows that what I am saying is true: this right has hardly ever, if ever, been exercised. I should hate to get the figures because they are probably one or two, if at all. I should like to get the figures since 1922 to bear out my point. It is entirely an academic matter. The Minister knows that himself.

Mr. Cooney

If it is, the Senator is speaking a lot about it.

Mr. Lenihan

I will talk more now because the point has not got home sufficiently. There are certain private rights that exist in regard to dealing with offenders. There are private rights that exist for petty offences where people can bring a prosecution via the police authority. There are private rights of arrest in regard to felonies. These private rights are based on a real historical period and they have now become theoretical— when there were no organised police forces. Hundreds of years ago people had this private right of arrest in regard to felonies, but this does not operate any more.

I want to get from the Minister the reality of the situation. Why import something that is unreal to a highly sensitive area? This is the point I am trying to make if I can get it home: that there is this old-fashioned feudalistic common law right that predates the organisation of modern police forces, when there was this power of arrest in regard to felonies. It is now suggested that this should be done in regard to the scheduled offences that are largely, not entirely, felonies in the traditional sense. This particular right, in my estimation, has hardly ever, or if at all only once or twice, been exercised by private citizens since the formation of the State.

I would say that the figures in Britain, a far bigger country with greater problems of every kind, social and political, would show that the right has hardly ever been exercised there over a number of years.

Then why give this right the garb of statute, in an important measure like this which is loaded, to put it mildly, with highly significant and sensitive political and social issues involving unfortunate disagreements between our people? It is crazy. Anybody who is concerned about this country must realise how crazy it is. You are asking people by subsections (1) and (2) to be, in fact, informers. That is what you are asking them to do and let us not put a tooth in it. Anybody who knows Irish history knows that is what you are asking them to do. It is a cod. It should not be incorporated in a civilised piece of legislation by an Irish State in 1975. It is not on.

Nobody is going to do it anyway. Why invite them to do it in a piece of legislation? Why invite people to be informers? Why invite people to proceed in a para-military manner to deal with para-military people? A civilised State in 1975 should deal with these people in a civilised way and win out through the normal exercise of law, the normal process of law and, if necessary, strengthen the police force, strengthen the security forces, strengthen the armed forces, strengthen every force we have within our control. Let people in uniform, people under discipline, conduct the arrest and let them have the suspicion and let them do it, if necessary, without warrant. Do not, in our sensitive situation, pass this right on to every Tom, Dick and Harry to exercise his or her grudge against this or that various shade of green, orange, or red which unfortunately exist in this island.

That is all I am saying, and it is as simple and as straightforward as that. The Minister could solve all his problems in this particular area by deleting completely subsections (1) and (2) and concentrating the whole exercise of the power of arrest under section 19 on members of the Garda Síochána and let them act on suspicion and without warrant. Let them exercise the discretion to do so in regard to any particular people who they feel are guilty of malpractices. They are the people who should do it, and rightly so. We should not in any way allow anybody outside the properly accredited forces of this State to arrest on suspicion without warrant anybody supposedly guilty of an offence outside the jurisdiction of this State in another part of this island. Otherwise we start to introduce the sort of "eye for an eye and tooth for a tooth" type of law that has operated, unfortunately, in the North of Ireland in recent years. We do not want that here. I respectfully suggest that these two subsections which we now seek to delete lean in the direction of people informing on people, making arrests without warrant, trapping people, paying off grudges, all the sort of things we abhor but which have happened in Northern Ireland. All these things which we abhor could very easily be introduced here by the adoption of these two subsections. We feel very strongly that they should be deleted and that the section without them stand as a section that can exercise legitimate authority of arrest in the extreme case, without warrant on suspicion, with the Garda Síochána appointed by the State.

Mr. M.J. O'Higgins

I appreciate the case made by Senator Lenihan. I would have been surprised if the case was not made. It is a pity he spoiled the case by the emotiveness of his language and the extreme manner in which he expressed it.

Senator Lenihan finished by putting his argument on the basis that the Minister could solve his problems by deleting these two subsections. As I see it, it is not the Minister who has any problems in relation to this matter. The Minister is quite clear and the Government are quite clear as to where they stand. The only people who have problems with regard to this section and, indeed, with regard to this entire legislation, are those whose views with regard to the happenings in the North of Ireland may be ambiguous. Before Senator Lenihan gets his hackles up. I am not suggesting that he is ambiguous, but there is no ambiguity on the part of the Minister or of the Government. Those whose views are tinged with ambiguity may very well have problems in relation to this particular section, to these two subsections of sections 19.

There are some things to bear in mind. First of all we should not dismiss so lightheartedly as Senator Lenihan seemed to do the question of the common law right of arrest. I do not know that it is particularly relevant except that it is worth while noting that it does exist and that it is unimpaired by this legislation. Senator Lenihan said that the common law right was never designed to deal with this situation. Of course it was not. The situation which the people of this whole country are facing arising out of the events in part of the country is largely unprecedented and the legislation with which we are concerned and subsections (1) and (2) of section 19 are for the purpose of dealing with that unprecedented situation. One of the things that must be noted is, first of all, that the powers in subsections (1) and (2) of section 19 are, of course, entirely and purely permissive. No one is forced to take advantage of the rights of arrest in particular circumstances which are given in these two subsections.

Mr. Lenihan

That is obvious.

Mr. M.J. O'Higgins

These two subsections do challenge everyone of us with regard to our sincerity and our determination in dealing with the problem which has been posed and which has been very acute and very much current for a number of years in part of this land. Our willingness to accept the responsibility which these two subsections place on the shoulders of every one of us is a test of our earnestness and our determination to face and to overcome this problem.

I said in relation to an earlier section of this Bill, and it is just as relevant here, that practically without exception every section of the people in this part of the country condemn the offences which can be summarised as the scheduled offences so far as this Bill is concerned. Everyone condemns them but very few people have an opportunity of doing more than condemning them verbally. These two subsections will challenge the seriousness of our people as to whether or not they are prepared to accept the responsibility which these subsections place on their shoulders or whether they are prepared merely to talk and merely to condemn and to funk accepting the responsibility that this legislation will place on their shoulders.

Even when the legislation is passed, even if this section is passed unamended, the option is still going to be open to people either to accept the responsibility, to live up to it or to funk it.

What is suggested by these two subsections? Let us take a practical example. It is suggested, in effect, that if I know—I substitute that expression deliberately for "having reasonable grounds for believing" as I think the courts would, certainly the individual would interpret it as being the same thing—that one of the scheduled offences, whether it be murder or church burning, kneecapping, or burning buildings, is taking place in the North and I know that someone down here is aiding and abetting that, is providing the sinews of war for that operation, these subsections are challenging me to do something about that. Senator Lenihan interprets them as inviting people to be informers. It is doing more than that. It is telling me that in those circumstances I can if I choose do nothing, I can if I choose act as an informer and get to the Garda or, if that is not possible, if by an omission on my part I am going to encourage the person who is aiding and abetting, I am going to encourage the supplies going to the North in the example I have given, it challenges me to do something about it.

If it is not possible to put a stop to it by taking my time and informing the Garda, if it is within my grasp to make an arrest, and put a stop to it, it challenges me to have courage to do that. That is what these subsections are about. We can flunk it if we want to, or we can face up to our responsibilities not merly as legislators but as individual Irishmen who abhor the kind of things Senator Lenihan so rightly said he abhors seeing happening in a part of our country.

We can look on this either way. We can look on it in the way which Senator Lenihan has chosen to look on it. We can adopt the attitude that private individuals should not dabble in private investigations, that we should leave it entirely to the Garda, or we can adopt the attitude that there is a problem facing us which in all decency we have to try to play our part in solving. We have to decide for ourselves in relation to our attitude particularly to these two subsections, which challenge us, whether we are prepared to do more than indulge in mere verbal condemnations, whether we are prepared to stand up and be counted, whether we have the courage to accept the responsibility which these subsections ask us to accept.

Mr. Cooney

These subsections enable a private person to arrest without warrant when he has reasonable cause to suspect a person to be in the act of committing an offence under section 2, subsection (1), where an offence under section 2 (1) or section 3 has been committed, a private person may arrest without warrant where he has reasonable cause for suspecting a person to be guilty of the offence.

I intend to make the argument that these sections replace the common law power which was available to private citizens and is still available to private citizens in regards to a felony. The offences under this Bill are not declared to be felonies as such and therefore the common law power of arrest that lies in the individual citizen with regard to felonies does not lie with regard to these offences.

Senator Lenihan anticipated that argument and sought to rebut it by making the point that the present common law powers apply only in a local way to a harmless range of offences, to petty matters. It was only when I drew his attention to the fact that this was an incorrect statement of the law that he mentioned that they do apply to felonies. Of course they apply and they apply only to felonies. There is no common law right in the individual to arrest in regard to misdemeanours and in regard to offences which are not felonies. The right only exists in regard to felonies, and felonies, by and large represent the serious crimes in our criminal code. It is in regard to those serious crimes that the common law power exists. It is not a small or an insignificant power. It is of a significant power of great social importance. The reason is that it is up to us as individual citizens to protect our society. Therefore we should have the power to take steps when a serious offence is committed against our society.

Mr. Lenihan

How often has it been exercised?

Mr. Cooney

It is in order to protect ourselves that this power is there. I do not know how often it has been exercised. I have no statistics to tell me whether it has been exercised or not. The point is that if we really believe in the wellbeing of our society and we as citizens want to protect our society, we should be jealous of this power and keep it, not sneer at it because it has not been exercised, because we have been fortunate enough to live in a society where we have a police force to do this job for us. Our police force is only as effective as we make it. One of the ways in which we can make it effective is to assist it and to exercise our legal rights and our legal powers when the opportunity presents itself.

I make this argument to rebut Senator Lenihan's argument that the common law power was available only in regard to insignificant offences. That was a seriously incorrect and misleading statement of the law. It is only available in regard to felonies, which by and large are serious crimes and it was there as a protection for society.

So much for Senator Lenihan's point that I might use this argument. I do use it and I think it is a valid argument to use. The heinous offences created by this statute are not being made felonies but I think it is important to preserve the right of the citizen to move against the felon, that that right be preserved by statute. That is what these two subsections do.

Mr. Lenihan

The Minister is missing the point completely.

Mr. Cooney

I am glad that Senator Lenihan put down these amendments because they have provided him with a platform to make a speech in the course of which he came very near to baring the soul of Fianna Fáil with regard to this Bill. Senator O'Higgins has adverted to it.

Mr. Yeats

Are you back on that?

Mr. Lenihan

Are you back on that?

Mr. Cooney

Getting a little sensitive? I was distressed to hear the Leader of the Opposition in the Upper House of our Parliament state that with regard to the type of offence— and again these euphemistic phrases, the paramilitaries—that this Bill seeks to deal with, that these should be left entirely to the uniformed forces of the country, make the guards more numerous, make the Army bigger and stronger, but for goodness sake let the rest of us close our eyes and turn our backs and pretend the problem does not exist. The Senator warned specifically against these matters being matters of private investigation.

Mr. Lenihan

It was a point of law I was talking about.

Mr. Cooney

This again is getting to the kernel of this situation, which is that the only way in which subversion in this country can be beaten is when all citizens take it as their responsibility, relying on each and every citizen to do his part in the fight against subversion, not to close his eyes and turn his back and say, "It is only for the guards: it is not my affair". That is the very way in which anarchy and subversion will rule. It is a cowardly way and a hypocritical thing to do. If we profess respect for the institutions of this State and if we profess abhorrence for the actions that are being committed on this island, we have a duty to put those beliefs into practice.

Mr. Lenihan

Everybody has power of arrest in Lisbon today.

Mr. Cooney

We have to have the courage to fight this. Is Senator Lenihan comparing this democracy with Lisbon?

Mr. Lenihan

The way you are going, that is the way it will wind up.

Mr. Cooney

That is the way this country would become if good men turned aside and closed their eyes, as Senator Lenihan would have us do, with regard to the evil of the para-military. He would have us close our eyes to their existence and say, "All for the guards, let the rest of us do nothing". He even goes so far as to say that a citizen who carries out his duty and who fulfils his obligation to protect his own society and who exercises his rights under this Act— that that citizen can be castigated as an informer. It is a travesty of democracy. It is a citizen's solemn duty and his privilege to inform his police forces. It was a revealing speech by Senator Lenihan, a disturbing and a disappointing speech, seeking to take away from citizens the obligation and the privilege of defending their own society and their own democracy.

These sections are proper sections to have in this Bill. As Senator Higgins said, it puts it up to us, are we prepared to fight for our society or are we not? Are we prepared to be ambivalent and ambiguous and say, "It is none of our business. This is a thing special to Ireland and we must not interfere". These matters are affecting the kernel of our democracy and the safety of our society, and these powers give each and every one of us the opportunity, if we care about our country and about the terrible things that have been done to prevent them and bring them to an end. They give us an opportunity to act.

Mr. Yeats

We have now heard from the Minister a return to the type of thing that we had to put up with before the Second Reading of this Bill several months ago and indeed during much of the Second Reading. We had a return to the efforts which the Minister and other Members of the Coalition Government made to suggest that anyone who opposed this Bill or any section of it was therefore in favour of knee-capping, church burning and all the other crimes that were trotted out again here tonight by Senator O'Higgins.

We had a return to the attempt to use this Bill, which is a bad Bill and an unworkable Bill, as a kind of stick with which to beat Fianna Fáil, an attempt to use this Bill, not for the ostensible purpose for which it was introduced, but as a clear political effort to denigrate the Opposition and to distort the views of the Opposition.

The Minister says that these subsections in this section merely bring more clearly into statute law the old traditions of the common law. The Minister has refused to reply, and I think refused is the word because he knows the answer—when asked how often in the past 53 years since the first Saorstát Éireann Government was set up have these common law powers been used. He has refused to reply because he knows the answer, and the answer is that not once in the last 53 years have these common law powers been used.

Mr. Lenihan

Is that right or wrong?

Mr. Yeats

That is undoubtably the position. Otherwise we would hear differently. In the past 53 years these common law powers have never been used.

Mr. Cooney

If they are so ineffectual and have never been used why worry about them being introduced?

Mr. Yeats

The Minister now admits the point I am making.

Mr. Cooney

I do not know.

Mr. Yeats

The laws have never been used in 53 years because they are dead. They are not related in any way to Irish law. Consider how these common law powers started. They started centuries ago in England at a time when there was no police force. Remember, the first police force on a regular professional basis only started about 1838 or 1840. There was no police force. The only way of dealing with crime was for the people of a particular locality to band together if they knew somebody had stolen cattle or committed murder or whatever the crime was and they had to apprehend him. There was a reason then for these common law powers.

I do not know whether in England today, perhaps for historical reasons —and they appear to have a great sense of history—they like to preserve the fiction that these common law powers exist, but that is their business. In Ireland under Irish law I am telling the Minister as a fact, and let him deny it if he can, that common law powers have been dead for 53 years. They have never existed in the Irish State. It is no use pretending that they have existed, and that he is merely recreating them. These are new powers which do not at present exist. Whatever the theory may be, the fact is that they do not exist. They are now being brought into this Bill.

At least, let us be clear as to what we are doing. We are giving new statutory powers, powers which have never existed in the Irish State, whatever about England, powers under which any member of the public can arrest anyone that he thinks, rightly or wrongly, has committed an offence or, indeed, there may have been no offence committed at all and he can still arrest because under subsection (6) of this section the Minister has provided that the provisions of this section shall apply to an attempt to commit an offence as they apply to the commission of that offence. In other words, if a member of the public thinks, with reasonable cause, that some other person has attempted somewhere, sometime, to commit an offence, then he can arrest him, even though no offence may ever have been committed. These are very wide powers.

It is simply not good enough for the Minister to say that any one who opposes these powers, therefore, is not willing to accept their responsibility for seeing that crime is ended and so on. There is a very important point to be made here. In any civilised country there ought not to be a position that every Tom, Dick or Harry who feels rightly or wrongly that someone has been guilty of an offence should jump out on that person and drag him off to the local police station. If anyone suspects this, let him ring up the guards and say "So and so is in this house down here and I think he has committed an offence".

Mr. M.J. O'Higgins

Cannot they do that under the section?

Mr. Yeats

That has nothing to do with the section. That does not need a section. It does not need this Bill. If I think a man has committed burglary or knee-capping, or church burning or any other offence, and he is in a certain house I can ring up the guards. It does not take the Minister's statute to enable me to do that. If I suspect that a man has committed an offence or even attempted to commit an offence, there may not be an offence committed at all for all I know but rightly or wrongly I have this opinion, I can go up and drag him off down to the Garda barracks, but that is not civilisation in the sense as I think we all know it.

Mr. Lenihan

You can arrest or do what you like with them.

Mr. Yeats

That is chaos. It is the rule of the rabble. It has nothing to do with supporting knee-capping or church burning or murdering. We do not support this. None of us supports this concept that any private individual—and he may well be wrong, remember—who thinks that someone has committed an offence he should be able to arrest him. If it is going to be brought in at all I cannot see any particular reason why it should be limited to this Bill. There are other offences, many of them just as grave as the ones listed in the Schedule to this Bill, and yet we do not have these powers of arrest, whatever about the mythical common law power that the Minister claims we have and that we know the inhabitants of Britain once had and indeed may still have.

If this is to be brought into this Bill at all there is an argument, I suppose, for saying that in all cases where serious crimes are committed people should have the power of arrest. This would be merely the rule of the rabble.

In relation to the practical aspect does the Minister seriously envisage that members of the public will go after people who, by the very fact that they are suspected of these crimes, are suspected to be violent men, armed men? Who will go after them and try and arrest them? The thing is futile. Until now I have been discussing this in principle. It is a bad principle. It is not a principle one should enshrine in a Bill—a principle of mob rule—when it will not have any practical effect. Therefore we have this very serious breach of all the ordinary principles of the rule of law inserted in this Bill for actually no purpose. These powers will never be used. They could be eliminated from the Bill and it would not in the slightest degree weaken the effects of it. That is why I urge the Minister in everyone's interest to accept these recommendations. It will not, as I say, weaken his Bill in the slightest degree but it will eliminate a very serious breach of the ordinary rule of law which we in Ireland should not commit.

I am not interested in the ancient, obsolete concept of the common law powers of private arrest. I have made the quite definite point that this has never existed and has never been used in the last 53 years. In the complete absence of denial of this, we may take it for the sake of this argument that that is so. They have been dead for 53 years. In a situation where nobody will be in a position to use these powers we should not resurrect this dead dodo of common law powers in this Bill in this way. I urge the Minister to accept the recommendations.

Mr. Dolan

From the very beginning I have opposed every section of the Bill. It is completely daft for any Minister to expect that citizens here would be asked to act as informers or place themselves in that position. Who would protect them if they were so brave, as Senator O'Higgins would suggest, that they would come along and arrest somebody who might be guilty of some of these crimes with which we all disagree? Does the Minister really know whom he is dealing with in these cases? Many of these people could be British agents in our country or part of the 50,000 British troops that are in the Six Counties already? This is preposterous altogether. There is no sense whatever to it.

Mr. Lenihan

I should like to get this debate into perspective. I am sorry that the Minister has brought a heated note into it because I regard this as a tremendously important matter. Indeed the Leader of the House treated it in that manner. It should be treated in a rational, sensible way. If I, in any way, got emotive, I want forgiveness in that respect. I did not think I did. I was trying to get across here that the incorporation of subsections (1) and (2) in this section, which we are seeking to delete, involve the right of private arrest by people other than the people entitled to arrest by power of this Oireachtas—involve giving private people without the authority of this Oireachtas the right to arrest on suspicion for the very serious offences set out in the Schedule alleged to have been committed in a jurisdiction other than ours.

That, as precisely as I can put it, is what is involved in subsections (1) and (2) and it gives rise precisely to the danger just mentioned by Senator Dolan. I do not want to adumbrate or elaborate on that. The scope is obvious in a country such as ours, because our country is a whole island. In a country such as ours it is obviously open to massive malpractice and abuse, where there are, in part of our country, illegal paramilitary organisations of every shade—orange, green and red. I will not opt for one or the other. They are all equally wrong, all operating as civilians on a guerilla basis, all operating on a hit-and-run basis.

Somebody from some of these organisations—I was trying to get this home earlier on—who happens to be down here, will be given the right to arrest without warrant in regard to an offence scheduled. The whole purpose of the Bill is to deal with political offences—let us be realistic—that are at the same time offences that offend against everything we believe in, are in fact criminal offences. Criminal cum political offences is what we call them. The Minister is now inducing into that situation these two subsections. I do not need to have any imagination, and neither does anybody else, to realise the dangers of that.

I want to correct what I was saying. There are only areas heretofore where private people have had any participation in regard to the apprehension of offenders. This is going right back into the whole tradition of the common law, going back hundreds of years. One area is in regard to petty local offences, where people have had the right of private prosecution. They can go to a police station and lay a charge against A, B, C, D. That is still exercised to a very limited degree. It is becoming a reducing factor, even on that level. It is practically gone but that right has been traditional, both in statute and in common law over the years. The other right that has existed in common law is the larger right of direct arrest in regard to felonies—for example, serious crimes. That originated—forgive me if I seem to be slow and schoolmasterly about it—in historical days when police forces did not exist or existed only to a paltry degree. With the growing development of police forces as we know them that type of power of arrest practically disappeared.

I challenge the Minister to name even one case of private arrest in regard to a felony since the foundation of the State, that is 53 years ago. He has advisers there to back him. Senator Yeats asked him as well. It is quite obvious that right has not been exercised even once in regard to a felony. On the petty side, the right of prosecution in regard to a local or private offence, locally committed, that right of private prosecution is rapidly disappearing also.

The whole system of law in sophisticated countries, of which we are one, has gradually become one where there is a separation in regard to administration, enforcement and so on. You have the people, the administration, the enforcement authorities, the courts, the Army, the Parliament and so on. That type of development has been the sophisticated development in every civilised State in our time and we are part of that development. We helped that development along and we ought to be very proud of the fact that we, and our people before us since 1922, have been participators in evolving here a civilised and sophisticated State where we do not have the right of private arrest. The right of arrest lies with the police force duly appointed under the elected Government of the people.

This is what is involved here. An old, forgotten, unused common law power of arrest is being reintroduced into statute, That could be covered with a cloak of legitimacy if it was merely reincorporating a situation supposed to exist legally. That might be defended, although I would not defend it. But in regard to any form of felony or any form of crime it could not be defended because the forces of law are there, paid for, under our control. They are the professional people who are responsible and in the position to deal with the situation rather than encouraging all sorts of underhand, informing, mouth behind back malpractices of every kind.

I am all for efficient professionalism in this whole area of detection, arrest, apprehension and bringing to trial of people. That is, on the ordinary criminal side, where I think it is undesirable anyway. Some argument might be made for it by a Minister on the basis that it had existed over hundreds of years even though there is not a single trace of it having been operated in this country in its 53 years existence.

Mr. Cooney

I do not know if that is correct or not. I have not answered that because I do not know.

Mr. Lenihan

If it was otherwise the Minister's officials would have told him. I am quite confident of the competence and efficiency of the officials in the Department of Justice—very confident indeed in that respect. I mean that as a compliment.

An Cathaoirleach

The Senator should not delay on that point. Officials are to be neither praised nor blamed.

Mr. Lenihan

At any rate, the position is this, that for 53 years—we can take it as a fact—no arrest has been taken in regard to a felony by a private individual in this country.

Mr. Cooney

We cannot because we do not know.

Mr. Lenihan

I would like the Minister to furnish the House with the facts. I can understand why he does not have those figures, but certainly by Report or Final Stage I would like those figures to be available. I want those figures to be available. I am asking as a free man in a free assembly to have those figures available.

Mr. Cooney

I do not even know if there are such statistics compiled. I doubt it.

Mr. Lenihan

It is an area which the Minister might investigate anyway, just as a matter of interest. I am saying there have been very few prosecutions. I would hazard a guess that the same is true in regard to Great Britain. Their statistics machine may be more effective. Perhaps a phone call in the morning might elicit the required information. At any rate, I think I am not being extreme in saying that in the two common law jurisdictions of the two islands very few prosecutions on the basis of private arrest have taken place over the past 50 years in regard to felonies.

Mr. Cooney

Every time a store detective arrests a shoplifter that is an arrest by a private citizen.

Mr. Lenihan

We are not talking about felonies now.

Mr. Cooney

It only applies to felonies. Let us be accurate legally about this. The right of private arrest only applies to felonies. A store detective is a private citizen. If he arrests a person for larceny, which is a felony and a serious crime, that is an arrest by a private citizen.

Mr. Lenihan

I will not go into the whole area of arrest by store detectives because I understand this has also been a matter of investigation in our courts. We will wind up in the Supreme Court now if we talk about their lawful rights of arrest. The Minister knows that various challenges have been made on this issue. We will not go into that area.

Mr. Cooney

It is an indication of how circumscribed the right is and how far removed it can be from introducing this rabble law that the Senator was speaking about and that Senator Yeats spoke about.

Mr. Lenihan

Whatever justification there might be—I do not defend the justification because this matter should be dealt with on an entirely professional basis—for having this right of arrest in regard to ordinary criminal offences, does the Minister suggest that there should be a private detective force in operation here in regard to the schedule of offences in this Bill and that there should be a private detective force operating on behest of some paramilitary group of orange, green or red?

Mr. Cooney

Indeed, I do not and it is not to be implied that I do.

Mr. Lenihan

The Minister said it about a private detective force.

Mr. Cooney

I did not. I said that a store detective is a private citizen. The Senator should listen to what I say. I did not use the words "private arrest".

Mr. Lenihan

I am against power of arrest on the part of any private detective, or detective, operator, or organisation.

Mr. M.J. O'Higgins

Even if it is the only way to stop the commission of one of these offences.

Mr. Killilea

Are you against the private arrest of any citizen?

Mr. Cooney

Senator Killilea is asking if the Senator is against the private arrest of any citizen.

Mr. Lenihan

Of course I am.

Mr. Cooney

He should not have a right of arrest at all?

Mr. Lenihan

He should not have a right of arrest with regard to the serious offences mentioned in this Bill.

Mr. Cooney

The Senator is arguing that the right has never been exercised at all or very seldom.

(Interruptions.)

Mr. Lenihan

This is the point I was making earlier on. Senator Killilea has put in very straightforward language what I have been saying right through this. It is a matter which I think will never see reality but if it does by some extraordinary chance or mischance see reality, it is an important piece of legislation dealing with extra-territorial jurisdiction. Enshrined in that the Minister has in these two subsections we are seeking to delete given the right to any person to arrest without warrant on suspicion of any of these serious scheduled offences. Whatever justification there might be for such a right residing in a private citizen in the case mentioned by the Minister—I agree to disagree with him on it— where you have a private detective organisation within a supermarket, or something of that kind, where the right of arrest may or may not reside, it has not been fully cleared by the courts and that is the point made by the Minister——

Mr. Cooney

That is a wrong statement.

Mr. Lenihan

The right of arrest in that particular area has not been fully cleared. Whatever justification there may be for the power of arrest in that particular area, dealing with supermarkets, private detective organisations within factories and so on—and I abhor it and disagree with it—is the Minister suggesting that in regard to subsections (1) and (2), dealing with the serious offences we have outlined here, not just a woman stealing a pair of stockings in a supermarket store, not something as petty as that, but very serious major offences, murder, manslaughter, arson, kidnapping, false imprisonment——

Mr. M.J. O'Higgins

Surely the more serious the offence the more power there should be to stop it?

Mr. Lenihan

This is precisely the point at which we totally disagree. I believe in the system of law operating on a more serious level as the seriousness of the offence becomes greater. That is precisely what law is all about.

Mr. M.J. O'Higgins

Of course it is. Would the Senator let me put a question to him?

Mr. Lenihan

If we are to have a situation where any Tom, Dick or Harry, associated by some illicit or wrongful method with some paramilitary organisation of orange, green or red, or a secret agent of another Government or a secret agent of any of these paramilitary organisations can make a serious arrest on a trumped up allegation without warrant against a citizen here for an alleged offence committed in another jurisdiction and that that will be incorporated in the legislation of this State, it is very, very serious.

Mr. M.J. O'Higgins

That is not here.

Mr. Lenihan

I want to make our position quite clear. We are against these offences. I abhor every aspect of violence, no matter where it comes from. I want that violence dealt with by the professional forces under the control of this Parliament, this State and this democratically elected Government. That can be done by retaining subsections (3), (4), (5), (6) and (7) of this section and deleting subsections (1) and (2). I do not mind what is spent on strengthening the police force, strengthening the Army, strengthening the security forces of this State. But I do not want this power of arrest given to all sorts of stray civilians.

The Minister should be more aware than anybody present of the type of civilians, the type of informers and the type of pimps that can be encouraged by this type of section and the sort of people who go along, invent stories, prefabricate evidence, all sorts of double-agent and trebleagent situations. If we give the power of arrest to people of that kind——

Mr. Cooney

We are not. What does it state?

Mr. Yeats

Anyone.

Mr. M.J. O'Higgins

It is worth reading, Senator. I do not want to interrupt but I wish to make an inquiry at this stage. Is it envisaged that we might finish the Committee Stage if we sat on a bit later this evening? So far as the Minister's plans are concerned it might be helpful if we could get an indication at this stage.

Mr. Yeats

I think we should sit on after ten and see how we get on.

Mr. M.J. O'Higgins

I am certainly prepared to do that but I do not think we should leave it too open-ended.

Mr. Lenihan

As far as I am concerned I feel very strongly about this section and the two subsections I wish to delete. As far as the rest of the Bill is concerned there is nothing terribly contentious in it unless some of my colleagues have some other idea.

Mr. Killilea

Sit until one o'clock.

Mr. M.J. O'Higgins

We should adopt Senator Yeats' suggestion of sitting on a little beyond ten and see how we get on.

Mr. Killilea

Not later than one o'clock.

Mr. Lenihan

If we are to have a Bill, to which we object totally in principle on various grounds, let it at least bear some civilised resemblance to a Bill that can be administered by a free democratic State. Let us not have in it subsections such as I have mentioned that bring in an area of participation on the part of all sorts of non-professional people, in the police sense, in the type of crime that that is envisaged to deal with. As Senator O'Higgins said this is "crime dubbed political" or "crime-cum-political". This is a very seamy, tough area that is sought to be investigated and dealt with by the Government. I appreciate that. They are going the wrong way about it. Assuming they are going the right way about it and assuming they want a measure of this kind I do not think they are doing themselves any good by having these two subsections incorporated in this section. If the Irish State participate in dealing with this intractable and difficult problem let us do it with our own professional police, security and Army forces. Let us have arrests carried out by our own police force on suspicion and without warrant. We trust the Garda Síochána to do that properly. We do not trust individuals to do that sort of thing, particularly as it has very seldom been done—I claim never been done—since the foundation of the State. In this whole murky area of quasi-political, criminal sort of activity——

Mr. Cooney

It is not quasi. It is entirely criminal.

Mr. Lenihan

Senator O'Higgins very rightly used the phrase that it was "crime dubbed political".

Mr. Cooney

Senator O'Higgins used the phrase "criminal dubbed political". The Senator wants to use the phrase "criminal-cum-political".

Mr. Lenihan

I will take Senator O'Higgins' point. Political-dubbed-criminal or criminal-dubbed-political. The point I am trying to make is that is does not matter how you put the nomenclature the fact is that this is a murky area of crime.

Mr. M.J. O'Higgins

The Senator made that point.

Mr. Lenihan

For the Minister and the Government to persist in these two subsections, that will only lead to further murkiness, further sordidness and further blackguardism on the part of all sorts of people who may be induced to make arrests without warrants and on suspicion. That is only aggravating and adding to a sordid, murky area that has caused this country sufficient trouble already. This Bill as a whole will cause more trouble. These subsections will cause a lot of trouble if the Bill is ever enacted, which I doubt very much.

Mr. M.J. O'Higgins

I do not want to repeat anything I have said before. There is one aspect which I think should be considered. It has possibly been overlooked by Senator Lenihan. The Minister has explained that as far as the common law rights of private arrest are concerned they apply in the case of felonies. This replaces that right in the context of the scheduled offences in this Bill. I wish to put this seriously for the consideration of those who feel, as Senator Lenihan has expressed himself as feeling, in connection with these two subsections. If there is a case where the commission of one of the offences could be stopped no other way than by a private arrest, is there anyone who will disagree with the proposition that in those circumstances the private arrest should be made? I do not think there is.

Mr. Killilea

There is another way.

Mr. M.J. O'Higgins

If there is no other way?

Mr. Killilea

There has to be another way.

Mr. M.J. O'Higgins

I am asking this to be taken as an example. If there is in fact the case where there is no other way of stopping the commission of one of these crimes and it can be stopped by means of a private arrest, the question I am posing is: will anybody disagree that in those circumstances the private arrest should be made? I do not think anybody will disagree with that.

Mr. Dolan

That is hypothetical.

Mr. M.J. O'Higgins

I accept that may be in the last resort.

(Interruptions.)

Mr. M.J. O'Higgins

Senator Killilea should not interrupt because Senator Lenihan and myself have reached an area of agreement, and that is an achievement.

(Interruptions.)

Mr. M.J. O'Higgins

Nobody will disagree that the private arrest should be made, but if that private arrest is made which succeeds in stopping the commission of an offence, do we not then agree that the person making that private arrest should be given statutory protection and that he cannot then be charged with false arrest?

Mr. Lenihan

That is a very legalistic proposition. In the extreme example of somebody coming upon somebody committing an offence, everybody knows what should be done by any right-thinking person. He should have a go and do his thing.

Mr. Cooney

That is probably what he will do. That ends it.

Mr. Lenihan

That is too simplistic altogether. There is an obvious way of dealing with that.

(Interruptions.)

Mr. Cooney

That is really rabble law.

Mr. Killilea

If you are talking about those people who believe in guns and things like that, what chance has an individual?

Mr. Lenihan

This is reducing the thing to absurdity. We all know what should be done in particular circumstances where anybody comes upon somebody who is doing something wrong. You do what you can do with what you have physically available to you.

Mr. Cooney

We only want to give the right to the person to do what is right.

Mr. Lenihan

That is legalistic nonsense. What we are talking about here——

Mr. Cooney

Legalistic nonsense— from a person entrusted with the task of passing laws, to refer to the legislative process as legalistic nonsense.

Mr. Lenihan

Under section 19, we are giving a non-police member of our community, in other words any person, criminal, informer or anything you like, the full right to arrest without warrant anyone who is or whom he with reasonable cause suspects to be in the act of committing an offence. We are giving him precisely the same powers as we give rightly in subsequent sections to members of the Garda Síochána. Therefore anybody can legally and legitimately exercise these powers. Senator O'Higgins is trying to quote the case where somebody comes on a crime. This applies sometimes. You do not want to clothe everybody in the State with the right of arrest merely to deal with an offender who is committing a crime. If I come upon somebody who is committing a robbery or if a man breaks into my house or if I meet a fellow on the street who is after stabbing another fellow I will do what I can as an ordinary citizen to deal with that particular situation.

(Interruptions.)

Mr. Killilea

You already can do it without this at all.

Mr. Lenihan

I do not want to be clothed with this power at all, good, bad or indifferent.

(Interruptions.)

Mr. Lenihan

It is getting late. The two subsections are redundant and unnecessary in my view, and Senator O'Higgins' examples do not sway me at all.

Mr. Yeats

Senator O'Higgins made the point that there was only one way of preventing a crime taking place and if you could take that way then would you not do it? As Senator Lenihan has rightly pointed out, preventing a man from committing a crime is not the same as arresting him. Leaving that question aside, I am sorry that Senator O'Higgins is not here, but I can put it to the Minister in his place. Another way of putting it would be, if the Minister thought that the result of this was going to be that mobs perhaps would go along and start trying to arrest whom they, rightly or wrongly, perhaps wrongly, suspected of having committed or attempted to commit a crime, in that case would he be in favour of the section? One could always dredge up cases on one side or the other and say if this is the only way of doing it or if this is the inevitable result, would you be in favour of it or not? I do not think we would get anywhere with that. The last point made by Senator Lenihan was that of course if he meets a fellow on the street trying to knife somebody else he would jump on him and stop him; and so he would, and the Minister says: "Then you need the Bill."

Mr. Cooney

He needs law which he has got by virtue of common law power.

Mr. Yeats

The Minister has not dealt with that situation at all. The Minister, in a very limited sphere of the law, has brought in these rather curious provisions for arrest by private persons, but where it is a case of somebody knifing someone on the street or robbing a bank or murdering, in the normal sense of the word, he does not provide for this at all.

Mr. Cooney

It is already provided for. There is no need to provide for it in this Bill.

Mr. Yeats

The Minister has already provided for this mythical common law.

Mr. Cooney

It is not mythical.

Mr. Yeats

The Minister, after a good deal of thought, suddenly dredged up out of his subconscious the example of store detectives. After all they are exercising their common law rights. I wonder are they. I think it is a branch of the law that the Minister might well consider dealing with, regularising the activities of these people in some sort of statute; it might be quite useful. I strongly suspect that a store detective in fact has no legal right at all but uses a sort of moral power. To begin with, he is very careful that he does not jump on anyone who is not clearly guilty of stealing stockings or whatever it happens to be and ask them to come back and discuss the matter with the Manager of the store and so on. In such cases the person concerned, I take it, invariably comes back. Supposing I were to meet such a person outside a store and he said to me: "I have reason to believe that you have stolen a pair of stockings"—or whatever it happened to be—"Come back with me." and I told him where he got off, is he thereby entitled to hit me on the head and drag me into the store and arrest me? I am certain he is not. If he tried that one I would soon show up his common law powers for what they were. One of the great problems with this is that it is blatantly obvious and I have the highest respect, as Senator Lenihan has already said, for the amount of expertise the Minister has at his disposal. It is patently obvious from this memorandum before us in relation to the Bill that the Department of Justice itself does not know what the common law is in this regard.

Mr. Cooney

Senator Lenihan paid us a very high tribute a few minutes ago.

Mr. Yeats

Since it is patently obvious that they do not know what the common law is, it must be an extremely vague and obscure section of the law. I would refer the Minister to paragraph 58, page 13, of his memorandum. It says that subsection (4) of section 19 empowers a member of the Garda Síochána to arrest without warrant anyone who is, or whom he, with reasonable cause suspects to be, about to commit an offence under section 2 (1), again including aiding and abetting and attempts. Then he goes on to say it is possible that the corresponding common law power in respect of felonies is enjoyed by private persons as well as members of the Garda Síochána, but the subsection follows British and Northern Ireland legislation. It is possible they do not know whether this is covered by the common law or not. Again I would refer the Minister to the following paragraph, paragraph 59, where it says that the common law as to powers of entry for the purpose of making an arrest under the powers of arrest for felony is not clear. They do not know.

Mr. Cooney

That is in relation to the powers of entry.

Mr. Yeats

Yes but these are two branches of the common law that the assembled intellects—and they are very considerable—of the Department of Justice have suggested they do not know. In other words it is as dead as a dodo. It does not apply in this country. I suppose it could be said to be in Limbo together with a variety of other obscure statutes dating back to the 13th century and so on. It is a branch of law that simply no longer exists. It is doing no good for the Minister to suggest that he is merely re-enacting in this Bill something we have had before. It would appear, in so far as common law exists at all, which is doubtful, that in this section he has increased the powers of private arrest beyond what the common law used to provide. I refer again to paragraph 58 of the memorandum, which points out that subsection (4) gives a member of the Garda Síochána power to arrest anyone without a warrant who is, or he with reasonable cause suspects to be about to commit an offence under section 2 (1) again including aiding, abetting and attempts—"attempts", mark you. They do not know whether——

An Cathaoirleach

I trust the Senator is not going to repeat the discussions on subsection (3) and (4) on the section.

Mr. Yeats

No, I do not think so. I think we can do it on this. It is not certain that common law empowers persons to arrest people who are about to commit an offence, which includes attempts. The Minister is not certain as he says in his memorandum, whether a private person, in common law, could arrest a person who is attempting to commit an offence. Yet that is exactly what he has provided in subsection (6) of this section. It says that the provisions of this section shall apply to an attempt to commit an offence as they apply to the commission of that offence. That is not part of the common law and the memorandum expresses doubt as to whether it is part of common law, this mythical suppositious or historical common law. But if it exists at all, subsection (6) goes beyond that and is adding to it in a way which it seems was not envisaged in common law.

The reason for these sections, which are entirely wrong in principle and will quite obviously not be used, would appear to be, as stated in the memorandum in various places where it says that, while the provisions under common law are vague, doubtful and so forth, the subsection follows the English and Northern Ireland enactments of 1967. Paragraph 55 says:

The section follows as closely as is appropriate to the subject matter of sections 2 and 3 the provisions of section 2 of the English Criminal Law Act, 1967, and section 2 of the Criminal Law Act (Northern Ireland), 1967, which conferred powers of arrest consequent on the abolition by these Acts of the distinction between felony and mis-demeanour.

We are for reasons which are not clear to me following in this respect British and Northern Ireland legislation. That is the reason it is inserted into this section. Whether this is considered to be part of the parallel legislation which is supposed to be enacted here and in Britain, I do not know. The Minister is not doing this for any particular reason except in so far as he wanted the common law on this subject to be the same in Ireland and in Britain and Northern Ireland.

Mr. Killilea

Listening to all the lawyers talking, one tends to get lost in the technicalities of this Bill, but Senator M.J. O'Higgins was the person who made one point clear to me when he used one extreme in his argument. Now I would like to use a different extreme. We have the situation today where political groups are having an inner fight. Presumably this legislation will be used to stop this fighting. The forces of the State are protecting certain members of those political organisations. Using the other side of Senator O'Higgins' argument, we could have a situation under section 1 of this Bill where a direction could be given from the top for any of those organisations to go out themselves and arrest members of another organisation and use the law created by the Minister and the Government and enacted by the Houses of the Oireachtas. These are the people he is trying to bring into his jurisdiction. These are the people who can use this section to achieve an aim in their own party or in their own organisation. They can use this section to arrest any man, possibly of another organisation and perhaps of his own, for a vindictive purpose. He can abrogate it solely for his own use. Are people going to believe the person who makes an accusation or are they going to listen to the defence of the other man?

This section can be used against the Minister, against the Government and against the law. I fail to understand its provisions, as I am not a legal person. Take the instance of two people living down the country having a personal argument, perhaps about the division of land and having nothing at all to do with the contents of this Bill, and one says to the other that he will solve his problem. One man can go out and arrest the other man and charge him with certain offences. What would happen if they came before the courts? "Any person may arrest, without warrant, anyone who is, or whom he, with reasonable cause"—reasonable cause, mind you —but it could be a fabricated story. It can happen and it has happened in the organisations that are fighting with one another today. They do not know what reasonable cause is. Even if they did know what reasonable cause was, the application of their reason would be entirely different from the application of reason intended by the Minister.

Subsection (1) of section 19 says:

Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects...

I submit to the Minister that the application of reason by different people gives them power to arrest. This is a fact in my unlegal mind. Sections of these political organisations, for which I have no time at all, will be protected by the police. The Minister knows how these organisations apply reason and he knows the difference between their reasoning and that of the Minister, who is a reasonable man, but the application of "reason" is in doubt.

If the Minister, who says they are protected by common law without this Bill, then do not subsections (3), (4), (5), (6) and (7) give authority to the professional people who are capable of exercising it and who are trusted by all sections of the community, and is it not clear that they are the people to do this job and not the "willy-nillies" who could use subsection (1)? Why give it to people whose application of reason might be completely different to that of the Minister or, indeed, the vast majority of the people? What reasoning do they apply when they take a gun from their pocket and shoot a fellow Irishman? None, in my reasoning.

Mr. Cooney

Senator Yeats raised the question of the common law powers. The common law is composed of a mixture of custom and precedent, mainly custom; but it lacks the precision of statute law. There are certain principles of the common law which are clear. One of them is the right by the citizen to arrest for a felony which has been committed. There may be some area of doubt, because of the imprecision of the corpus of the common law, as to whether that right extends to a private citizen to arrest in anticipation of the commission of a felony. But certainly all the authorities would be well settled on this point, the right to arrest for a felony committed in one's presence or a felony that one has reasonable cause to believe has been committed.

An example of that right is the person who is charged with the security of a store or indeed a bank. If that person arrests a thief, that person is exercising the common law power of arrest. The common law power of arrest is circumscribed by certain legal requirements that there must be reasonable cause to believe that an offence is being committed. There must be no more use of force than necessary. There must be a telling of the person who is being arrested what he is being arrested for. These are things which circumscribe the arrest to ensure that it is a power which is not used in an arbitrary or frivolous fashion. It is for the courts to decide subsequently if the power was properly exercised; and if it was improperly exercised, then the person who exercised it is up for assault and also imprisoned. It is not just a simple matter to say that any Tom, Dick or Harry, as has been said by the Opposition, who takes a fancy can effect an arrest under this section without warrant and without fear of consequence. It can only be done where there is reasonable cause and that imports all these sanctions that I have described.

That power is present in our law, has been there for a long time, a power which has been used in the way I have indicated, admittedly possibly in a narrow way but nevertheless the power is there and has been useful. The very serious offences created by this statute, the extra-territorial offences, are not being made felonies. I have decided that it was as a matter of policy proper that the power relating to felonies should be transported to these offences so that a private citizen would have the power to arrest without warrant. Again if he exercises that power, he is subject to all the sanctions for an improper exercise of that power or for an abuse of that power, so that every Tom, Dick or Harry who decides to start arresting people arbitrarily and without having a proper and reasonable cause will be subject to legal retaliation for such an abuse of the powers given here.

In any event the reality of the situation is that the vast majority of arrests that will be made as a result of this Bill will be made by the police force of the State. It is only in the rare case that the private citizen will exercise the power that is given to him. But as Senator O'Higgins pointed out when he posed a hypothetical question to Senator Lenihan, which Senator Lenihan very honestly answered, there may be the extreme case where the only way to prevent a serious crime against some of our fellow Irishmen in Northern Ireland would be for the private citizen to move and use the power of arrest given to him here. If it stops one case, the power is well justified. It is right that it should be retained. It is not going to diminish the use of the Garda Síochána. They will be the first line of defence in our battle against oppression. Every citizen has a duty to protect his own society. This gives him an opportunity to do it. I hope and anticipate it will only be a rare opportunity, but it should be there for the important occasion when it might arise.

Progress reported; Committee to sit again.