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Special Committee Defence Bill, 1951 díospóireacht -
Tuesday, 1 Apr 1952

SECTION 108.

I move amendment No. 111 :—

In sub-section (3) to delete paragraph (a).

We are accepting that amendment.

Amendment agreed to.

I move amendment No. 112 :—

To delete sub-section (4).

This is one of the things that I have never seen arising and could not imagine arising. According to the section, if an officer neglected or refused on application to deliver over to a member of the Garda Síochána a member of the Defence Forces accused of an offence he would be guilty of a misdemeanour and he could be brought into court and sentenced to imprisonment for a term not exceeding two years. I feel that that is wrong. If he does that, if he obstructs the Garda Síochána in the course of their duties or if he conspires with a person guilty of a crime, he would be ordinarily amenable to the criminal law. I would not like to see a section like that put in, and that is the only reason why I am objecting to it.

This is a very important provision, and is based on the principle and the fact that the civil power is paramount, and that any deliberate interference with the civil power in carrying out its functions is a very serious matter. If, therefore, any officer deliberately withheld a soldier under his command from civil custody or deliberately refused to assist the civil power to apprehend a soldier under his command, it would be an offence which would not be met by a fine or a short sentence. There should be no misapprehension of the circumstances in which the section would be invoked. It would not be invoked in any trivial cases. There is, in fact, no record for many years of its having been used, although it has always been in the 1923 Act. But it is necessary, if only to bring it home to all officers that the civil power is paramount in matters of this nature, and that it is a very serious thing to obstruct the civil power.

Does the section not go a little further than the ordinary law ? I wonder is it wise ? The section provides that not merely an officer or soldier who wilfully obstructs but a member of the Defence Forces who neglects or refuses to assist a member of the Garda shall be liable. That is going a little far. I could understand it in the case of obstruction. I think that the normal law is that a civilian is expected to render assistance in the case of somebody who has committed a felony, but this goes a good deal further ; the offence can be anything, not having a light on a bicycle or a breach of 101 different regulations which may be made from time to time.

The section reads :—

" If an officer neglects or refuses an application to deliver over to a member of the Garda Síochána, or wilfully obstructs or neglects or refuses to assist a member of the Garda Síochána in apprehending, any member of the Defence Forces under his command. . . ."

It means, in effect, assisting them in regard to offences against the civil law.

I never knew the section to be operated. It may have been in 1923 but I doubt it.

It would not be operated unreasonably but the danger of a section of that kind is that it will stand.

Mr. Collins

I do feel that its inclusion in the Bill is a deterrent.

It has been in that state for the last 30 years and has never been used.

The Minister would not consider deleting the word " neglects " and making it " wilfully obstructs or refuses to assist " ?

It would improve it somewhat. The trouble is that it is not the Minister who operates the section but the Guards. It becomes part of the ordinary law of the land.

It makes the officer subject to a Garda officer. It means that if a Garda officer made application to an officer of the Defence Forces to hand over a person accused—I would not mind convicted—then that officer must, notwithstanding his own Minister or anything else, hand over that prisoner.

I think it desirable to make it clear that the civil power comes first.

If it came to that issue would it not be better to have it at ministerial level? The Garda officer has his own authority, too.

Mr. Collins

It would be better if the application must emanate at least from an officer of the Guards as distinct from an ordinary member of the Garda Síochána, who at present can walk into a barracks to a senior officer of the Army and demand somebody and take precedence over that officer.

Under the section an ordinary member of the Garda can, in fact, go in and arrest an officer who he thinks has neglected to hand over a prisoner.

Mr. Collins

That is why I suggest an amendment necessitating somebody of commissioned rank to deal with a commissioned officer in another service.

A Guard would not go into some barracks on his own initiative and tell a commissioned officer that he must do this, that or the other. He would be doing it on a warrant issued by somebody with authority to do so.

Not quite. Suppose you have the case of a run away driver ——

It would be more likely to arise in an emergency situation.

—— and a Guard, rightly or wrongly, comes to the conclusion that it was a soldier. Under the section the Guard is empowered to go in without warrant and command an officer to hand over any soldier. The question is whether it is desirable to have it in such a blunt form. There is no protection of warrant.

It would be better if the words " or neglects " were omitted. There is always a danger in creating an offence consisting of an omission to do something. It should be either wilful obstruction on the one hand or wilful refusal on the other.

There could also be wilful neglect.

It is a very hard thing on which to defend yourself.

Mr. Collins

If you left out " neglect " you would have a way of escape for somebody who could, by omission, avoid doing something. It is easy to say that you cannot conceive wilful neglect, but with Army regulations and directives to Army officers as they are, very often the easiest way out of a problem is to shelve it.

This is more likely to be of value in the case of emergency such as a murder or an accident.

Mr. Collins

Surely it should be done on the authority of an inspector.

A situation which could arise is that a Guard goes in to arrest a man and it is necessary to arrest him quickly. If an officer obstructs or refuses to assist, he must face trial in a civil court. We would improve that section if we left out " neglect." That would protect an officer who, through ordinary neglect not of a criminal nature, obstructs a Guard.

Could an officer not wilfully obstruct if he set out to do so ?

He could. If he does it wilfully he is liable under the section, but suppose some neglect takes place due to ignorance.

Mr. Collins

If the Guard is looking for a man either he gets him or he does not.

I think that the Attorney-General would have to direct a prosecution. If you tied it down to wilful refusal or obstruction there would be protection for the officer, but if you include "neglect," if he just does not do something, he can be charged with neglecting to assist a member of the Garda Síochána, is put on trial, and must prove that he did assist.

Mr. Collins

By just neglecting to do so surely he can create the very same effect as if he wilfully obstructed or refused to assist.

No, that would be wilful obstruction in a way.

Mr. Collins

If a member of the Gardaí comes into a command billet with a request to an officer for Private So-and-so the officer listens to the request and proceeds to do nothing about it ; Private So-and-so disappears in the interim. Has he not created the very same effect ?

No, in that case he refuses. If you were trying to prepare a charge against an officer for neglect, how in the name of God could you establish it ?

If you inserted the word " wilfully " ?

It is implied.

Does " wilfully " govern " neglect " and " refuse " ?

That is a legal argument.

On the construction of the Statute the fact that " wilfully " is placed at that point and is omitted before the other word seems to raise that inference.

" Wilfully " could not apply to refusal, and refusal would have to be wilful.

If " wilfully neglects " satisfies the Committee I will see if it can be changed.

Mr. Collins

Has the Minister any view on my suggestion that a member of the Garda Síochána coming to a barracks in these circumstances should come at least on the warrant or signed authority, of somebody not below the rank of superintendent?

It is cumbersome.

That might be aiding and abetting somebody to get away.

Mr. Collins

You would always have somebody in the area to do it.

I do agree that if a member of the Garda came in to an officer of the Army and the officer wanted to obstruct, he could obstruct or wilfully neglect to assist without appearing to do so, by saying : " Yes I will go and look for this individual," while his method of looking for the individual might be such that he would get away. That is something which none of us here wants.

He could tell an orderly : " I am going for so and so," and go to the far end of the barracks knowing that the man was at the other end and hope for the best.

Without those words, would the officer be liable for anything ?

Mr. Collins

There would be great difficulty in detecting obstruction by neglect.

If the officer wanted to, he could aid an individual to get away but nobody could prove it.

Officers are instructed in the military college and in practice that if a Guard is looking for a man he must be assisted to get him. There would be no trouble from the point of view of the ordinary routine of the Army in that respect. I do not mind a man being charged with wilful obstruction or refusal of assistance—he could be court martialled for that—but if an officer is arrested for neglect it may cost him £200 to be acquitted, and that is a serious matter.

We could examine it from the point of view of inserting " wilfully neglect." That would put the onus on the prosecutor to show that he wilfully neglected.

There is the added difficulty that there is civil neglect, as in the case of an ordinary negligence action, a motor-car accident, and there is criminal neglect as in the case of a criminal prosecution. There is a different standard completely laid down for both. If we put in " wilfully," it will indicate that it is criminal negligence we have in mind.

Amendment, by leave, withdrawn.

I move amendment No. 113 :—

In sub-section (4) to delete all words after " thereof " in line 37, to end of sub-section and substitute " to a fine of five pounds."

I am looking at this from the point of view of neglect. That an officer who neglects or refuses to assist a member of the Garda should be liable to imprisonment for two years is a very heavy punishment. I think he would be adequately punished if there was a maximum fine of £5.

If the Minister puts in the word " wilfully " and there is then the onus of driving it home to the officer in a positive way, would that not alter the position with regard to the punishment ? I would be completely in sympathy with the amendment if it were merely a matter of neglect, but if the prosecution is forced to bring home wilful neglect, which we may term criminal neglect, the punishment would have to be slightly more severe than that suggested in Deputy Cowan's amendment.

Both this amendment and the next hinge on the previous one.

To some extent.

The examination of the one will probably aid us in dealing with the other two.

Imprisonment for two years is a very heavy punishment and an officer sentenced to imprisonment by a civil court loses his commission. To lose his commission and then to be put in jail for two years is too heavy.

No court would normally inflict the maximum punishment.

If he gets anything more than six months his commission is gone.

If an officer wilfully obstructs or refuses to assist in such circumstances he probably does not deserve to remain an officer.

There could be wilful obstruction which would not be of a serious character but you might have a judge who would say : " I will show these ‘ buckos ' that the civil law is paramount and I will give this fellow two years."

He could not do that without the case having been fully proved.

The jury would simply have to find him guilty.

You must have some regard to this point : that if a jury sits down carefully and examines all the evidence put before it and finds an officer guilty he deserves a sentence rather than a mere fine. Surely a fine would not meet a case of that kind where a man deliberately and wilfully obstructs the civil law ?

We very often obstruct the civil law. If all our judges were angels I would give that power, but unfortunately they are not.

If it were not a serious matter you would not envisage a prosecution being brought.

I do not think there will be very many cases and I do not think there will be very many punishments but I should like the Minister to consider it and to provide for a reduced punishment.

I will have it examined from the point of view of the insertion of the word " wilfully " before the word " neglects," but I am very doubtful about the desirability of putting in a fine instead of a period of imprisonment. It will never happen, I hope, but the knowledge that he would be liable to imprisonment rather than to a fine of £5 might probably be the greatest deterrent to an officer.

A fine of a fiver might be more of a deterrent than imprisonment for two years.

It might in 1900 but not to-day.

Mr. Brennan

Is an officer in such circumstances not a custodian of the law, too ?

No more and no less than an ordinary civilian in that respect.

Amendment, by leave, withdrawn.
Amendment No. 114 not moved.
Section 108, as amended, agreed to.
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