Special Committee Defence Bill, 1951 díospóireacht -
Tuesday, 22 Apr 1952

SECTION 157.

Question proposed : " That Section 157 stand part of the Bill."

Captain Cowan

I oppose this section. I have a strong objection to it. It deals with what is called bribery and corruption and fraud. It deals with a person :

"(a) who connives at the exaction, by a person supplying property or services to the Defence Forces of an exorbitant price therefor or,

(b) who improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department of Defence or the Defence Forces, or

(c) who receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration. . ."

There was a section in the old Act, not as comprehensive as this, but which undoubtedly covered a number of these things :

". . . the offence of taking any fee or advantage in respect of, or being in any illicit way interested in, the sale or purchase of any provisions, stores, arms, equipment or other goods for the use of any of the forces."

As a general rule, in peace time most property bought for the Army is bought not by the Army but by the civil side of the Department. If the Minister would knock out " subject to military law " and bring in the officers of the Department of Defence as well as officers and soldiers I would not have the same strong objection. The Minister can, of course, deal with civil servants under the ordinary law if they were guilty of bribery and corruption or fraud of that nature. I suppose that there have been very few cases of that during 30 years in the Army. I think that a section like this is really offensive to the members of the Army. If anybody does engage in any of the frauds mentioned here he can, and should be, dealt with under the ordinary law of the country and be tried by jury. In fact, some of the few cases that we have had were dealt with by juries outside. Although it is in the old Act, I look on it as offensive towards the Army as a whole.

Mr. Traynor

I do not think it would be possible to allow this to be even amended. It would not be correct for Deputy Cowan to say that there have been very few cases. Unfortunately, although we would like to think that way, during the emergency there were quite a number of cases of this kind and, as the Deputy has remarked, they were initially dealt with in the civilian section quite properly and carried out very effectively and in a very business like manner. We all know that persons who are so inclined and who are anxious to benefit out of something which they can do in conjunction with somebody else can make money and, unfortunately, that was practised during the emergency, and practised, I regret to say, to some extent, with the result that we had a number of courts martial and also cases in the civil courts. There were always two parties to the offences. I think it would be wrong not to provide this power, because you must get at the root of anything in the nature of dishonesty in this particular respect, and it is because the Army themselves feel very strongly on this particular question that I would have to insist on its going through in its present form.

Chairman

I would take a slightly different view of this section. I agree with the Minister's view on the section generally but I think this would be an amendment that the Minister should cover—it is something apart from the line we have been talking on already—after " every person subject to military law "—I would add there something to this effect: " and in times of emergency, any person." Do you see the distinction I am making? In peace time, I think the Minister is perfectly correct, he wants the power and the other person who would not be subject to military law would be dealt with by the civil courts all right. In times of emergency, when the thing is likely to happen, when there is less administrative control, when a unit goes down the country and has to make its own contracts, there is greater temptation to the soldier. If some contractor comes along to a quarter-master to get a contract and then arranges for a rake-off if he is the preferred person, is not that the type of person who is primarily responsible? The man who procures the soldier's dereliction of duty in that case is, in any sense, the direct offender. Unless there is some other section where it can be brought in I suggest that the Minister should amend the section by putting in " in times of emergency or active service any person "—to bring them under the section.

Mr. Traynor

All we could do in a case like that would be to see that the individual that you refer to now—the civilian—would be tried in the civil court. We could not court-martial a civilian.

Chairman

Why not ? You could court-martial him in other cases. In times of active service you could court-martial a civilian.

Mr. Traynor

I think it would be much preferable to leave that for such a period.

Chairman

That may be so. There is a lot to be said for what the Minister is saying but I would like the point I am making to be noted for the future.

Mr. Traynor

We will note it.

Chairman

There will be circumstances, when it comes to active service, where certain people would be guilty of serious crimes which would endanger the State—corruption of the troops' morale, espionage, and that type of thing. Some provision should be made for that.

Mr. Traynor

It was practically covered in the 1923 Act, in Section 52 (1):—

The offence of taking any fee or advantage in respect of, or being in any illicit way interested in, the sale or purchase of any provisions, stores, arms, equipment or other goods for the use of any of the forces.

Chairman

The Minister can take me as agreeing with him, but I want to extend that to catch the civilian in time of war.

Mr. Traynor

Yes. I agree with that all right.

Chairman

It is a point that should not be overlooked.

Mr. Traynor

As a matter of fact, during the emergency I was much keener on getting the other person, to whom you refer, than the soldier. The soldier was a dishonest servant. That was all he was, not giving the service which he had undertaken to give. The other person was a briber and corrupter. That was the person I was anxious to get at.

Chairman

In times of war and emergency, any citizen whatever, whether subject to military law or not, who was guilty of either espionage, active assistance to the enemy, demoralisation of our own troops by propaganda or otherwise, obstruction of our own troops and, then, demoralisation in the sense of exploiting the situation as a racketeer—that is the type of offence we are dealing with here—and any cognate offences—any citizen guilty of such offence—should be brought within the ambit of a military court-martial to be dealt with speedily. If we are not providing for it in this Bill I think it should be in the draft legislation to come into effect upon any emergency breaking out. I do agree with Deputy Cowan to this extent, that it is particularly important that civilian personnel serving the State, whether in the Department of Defence or otherwise, would be stringently subject to such a law in these circumstances. I am quite satisfied that the normal law is quite sufficient in peace time.

Captain Cowan

I think the Minister could bring in a section into Part VI, because Part VI of the Act deals with offences in relation to the Defence Forces and military property, and deals in the main with offences committed by civilians. Sections 250 to 266 deal with offences committed by civilians in relation to the Defence Forces and military property, and a section such as the chairman has referred to could very properly be introduced there. I felt that by just singling out the soldier, who has not very much to do with contracts in a general way, and leaving entirely out the people who have everything to do with contracts is a bit of an insult to the Army. Subject to that I agree with what the Minister says.

Mr. Carter

You have the civil law to deal with civilians.

Chairman

Yes, but this is a much more rigorous law. A man would be caught by this law in particular circumstances where he would not be caught by the civil law.

Mr. Carter

Take the American Army in Germany during the last war. How did the authorities deal with civilians there that were found out in such acts as we are providing for here?

Captain Cowan

That is martial law.

Chairman

A certain set of circumstances must be very explicit to allow a man to be caught by the ordinary peace time civil law. The soldier can easily be caught under these sections in circumstances where a civilian could get out. That is the objection. Still, I would be satisfied, in spite of what Deputy Cowan has said, if the case of active service in times of war or emergency, were covered. I have one more matter I would like to mention on this section which, again, is a third separate point for the Minister's attention. In paragraph (d) of Section 157, it says: " who commits any act of a fraudulent nature." In any law, certainly, that is far too wide and far too nebulous and certainly could not stand as an ordinary feature of criminal law. It would make inroads on the rights of the individual.

We are dealing with a totally different set of circumstances and I see that some coverage has to be put in there. By way of compromise, would the Minister consider a qualification there—" who commits any act of a fraudulent nature with criminal intent " ? " With criminal intent " is a pretty standard legal phrase, or you can get other phrases to do it. It implies simply that there was some criminal element in his doing it. A man could quite conceivably commit an act of a fraudulent nature in circumstances short of being criminal. I recommend that to the Minster's attention. I would not press him very hard on it.

Mr. Traynor

I will have it examined and we will also look into the possibility of including something as suggested by Deputy Cowan.

Captain Cowan

There is one other point I want the Minister to look into—the word " improperly " in paragraph (b). The paragraph says: " who improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department of Defence or the Defence Forces." If he demands or accepts compensation for doing it, that is wrongful in itself. Is there any circumstance in which he could legitimately demand or accept compensation?

Chairman

If we want to be very pernickety, from a legal point of view, you would have to put in a qualifying clause—" other than his proper and authorised remuneration " and the word " improperly " is about as good as that.

Captain Cowan

It is a queer phrase. Perhaps the word " wrongful " would be better. I would like that to be considered.

Mr. Traynor

We will have it examined.

Question put, and agreed to.