The same point arises on this section. The Minister will consider it.
SECTION 188.
Amendment No. 238 not moved.
Question proposed: " That Section 188 stand part of the Bill."
We will have it examined.
Question put, and agreed to.
SECTION 189.
I move amendment No. 239:—
In sub-section (2), paragraph (g), page 85, line 8, to insert " or other wise " before " dealt ".
This is a very simple amendment. It is to insert the two words " or otherwise ". In other words, that any person who has investigated a case in any way, who in an advisory capacity or otherwise dealt with the charges tried by the court-martial or the evidence to be produced at the court-martial will not be entitled to be a member. The section would then provide that the prosecuting officer, an officer who is a witness for the prosecution, an officer who investigated the charge against the accused or took down any summary or abstract of evidence in the case, or who was a member of a court of inquiry respecting the matters on which the charge against the accused is based, the commanding officer of the accused, any officer who has a personal interest in the case, any officer who is not for the time being subject to military law or an officer who in an advisory capacity or otherwise dealt with the charges to be tried by the court-martial or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial, would not be qualified to serve as a member of the court-martial or to act as judge-advocate. It is just to eliminate all possibility of any person being on the court-martial who has investigated the case in any way.
" Investigating " may be all right but I could not accept " or otherwise dealt with it " in any circumstances. For instance, there would be numerous officers through whom documents would pass but they would not be investigating the case. They would not be even dealing with it. They might handle the documents as they were passing them on to somebody else. You would unnecessarily disqualify quite a large number of officers from participating in a court-martial if you accepted that.
No. I know that when a court-martial assembles the judge-advocate asks, has anybody any personal interest in the case, has anybody done any investigation or in any way dealt with the case, and they will all say " no." If one of them has read the documents, he ought not to be a member of the court-martial. As a member he is not permitted to see the summary of evidence until after the finding.
Mr. Collins
I am with you there.
I do not think there could be any objection.
I agree with Deputy Cowan very strongly in principle but the words " or otherwise " might embrace, for instance, an officer who merely carried documents.
That is exactly what " or otherwise " would mean.
No. The section says " an officer who in an advisory capacity dealt with the charges." The operative word is " dealt." I am putting in " or otherwise dealt with the charges." He must deal with the charges.
May be in some kind of investigating way.
Mr. Brennan
" Deals with " means more than mere reading.
I think the Minister will find no objection to that.
Mr. Collins
" Or otherwise " is limited by " dealt with ".
I have very grave doubts as to that. I think it is a very fine point, a point where you might get tremendous scope for disagreement between legal authorities.
That is the danger.
I would have to resist the proposal to insert the word " otherwise " because " otherwise " means that if I carry these documents and hand them to Deputy Collins I have dealt with the documents in some respect. I have not read them. I may not even be interested in them but if appointed to the court I would have to admit that I dealt with the case to that extent, that I handled the documents, and the court would be entitled to suggest or to imagine that if I handled the documents I had looked at them.
Mr. Collins
What about " who in an advisory or investigating capacity dealt with it " ?
That does not quite meet it. There is very real danger here. First of all I would like to preface my remarks by saying that Deputy Cowan and myself have raised in the past the question of an objectionable practice—I am very glad to see it is provided for in the Bill—whereby the officer who prepared the prosecution and actually advised on the prosecution, sat as judge-advocate. I once defended an officer in a court-martial and the officer who was the prosecuting officer, in other words, the legal officer, who actually prepared the charges and came to his own decisions in advising whether the man should be tried or not and, virtually by force of duty, had to make up his mind whether the man was guilty or not, found himself as the judge-advocate in court.
That officer in the course of dealing with this case had to make up his mind on a point of law. Having known that officer personally, I know that he made up his mind on that after thorough examination, and made up his mind absolutely bona fide. When it came to the court-martial I raised that point of law. I am equally convinced that my opinion happened to be right. That is another day’s work. It is merely my own point of view. It is asking too much of human nature to ask that a man who had quite honestly gone into a matter and come to his own decision should be able impartially to listen to the arguments afterwards and, if necessary, rule against his own opinion. That is what it amounted to. Although that officer went to extraordinary lengths to facilitate me and the accused—no officer could have been fairer than that officer was—still the system was inherently bad, and I am very glad to see that the Minister is changing it. There is something similar involved here. I am thinking of a case which could arise and of the danger that Deputy Cowan and Deputy Collins see in this. I am also very acutely aware of what the Minister is saying, and I think the Minister has a good deal of substance in what he says. It is a question of striking the balance. Here is a type of case that could arise : Supposing there is an assistant adjutant in a unit and, in the course of the preliminary stages of investigation, all the documents pass through the adjutant’s office and that assistant adjutant, in the course of his duty, is in a position to see those documents, and in fact does read all those documents—it may be his duty to file them.
You have then the case of an officer who, if he read the summary of evidence, had done something which should not happen, because of the danger of his having read evidence that may not be admissible at the trial. I do not want to digress on the question of the admissibility of evidence, but it is very important in any trial. An officer in that capacity should not sit on a court-martial. I should be inclined to proceed more or less on the lines suggested by Deputy Collins, although I do not think " investigating " is the word. I was thinking of " who handled documents relating thereto ".
Mr. Collins
The Minister, with the Parliamentary draftsman, might find the point we are looking for, as I think he has sympathy with the principle enunciated by Deputy Cowan. I am anxious to see the point cleared up. It may be that there is substance in what the Minister says and it may be that there is a happy medium to be found. I feel that the Minister might be able, with the draftsman, to find a solution as distinct from our arguing here. If the Minister were to be left in the rather ineffective position that a large number of officers who might only have had some casual touch with the documents were to be excluded, we would be unwise to press it, but a via media can be found effectively by the draftsman.
The old Act specifically provided that any officer who investigated a charge against an accused or conducted any inquiry into the case could not sit on the court-martial " Conducted an inquiry " was interpreted in the widest possible way in favour of the accused. This Bill has changed it considerably.
By limiting it to an advisory capacity.
No. It has removed some of the protection because it says that none of the following persons shall be qualified to serve : (a) the prosecuting officer—which was in the old Act; (b) an officer who is a witness for the prosecution—obviously he could never be a member of the court, although, strange to say, a member of the court can give evidence for the defence; (c) an officer who investigated the charge against the accused—that is, the commanding officer—or who took down the summary of evidence or who was a member of a court of inquiry. There is the difference—" who conducted an inquiry into the case " in the old act is limited here to " was a member of a court of inquiry ". The commanding officer cannot be on it—that is the old Act; any officer who has a personal interest in the case—that, again, is the old Act; any officer who is not for the time being subject to military law—obviously he could not sit on it; and any officer who, in an advisory capacity, dealt with the charges. So that, although there is a number of words in the present section, it is not as good for the accused as the old one. Before starting a court-martial, the judge-advocate says: " Has any of you a personal interest in this case? Did any of you conduct an inquiry into it ?" And they all say " no ". If one said that he had read the file with the evidence in it, the judge-advocate would not proceed with him as a member.
Is the fact that all these people are excluded in sub-section (c) not the same as the guarantee you are referring to ?
No. Section 4 of the old Act refers to " any officer who conducted any inquiry into the case ". That is the widest possible term of reference.
And here it says " who was a member of a court of inquiry ".
This is a different thing. A court of inquiry is something which is set up.
Who was a member of a court that inquired into it.
It is narrower than " who conducted an inquiry."
Would that rule out a case such as the case the Minister mentioned of documents passing down through various officers ?
The net point here is " any officer who, in an advisory capacity or otherwise, dealt with the charges." I do not think there will be any objection to " or otherwise " and there is no question of ruling out a whole number of officers. At present the judge-advocate would say: " Is there anyone here who knows anything about this case?" and the officers would all say " No ". Now the judge-advocate knows nothing about the case until he sits down in court.
Deputy Cowan holds that " who was a member of a court of inquiry " limits the selection. Is the limiting effect any more than that of the sentence in the old Act which says " any officer who conducted an inquiry? " This confines it to members of a court of inquiry but we might just read it as " any officer who in any way dealt with the charges."
Yes. I am wondering whether the solution is not to strike out the words " in an advisory capacity " and say " an officer who dealt with the charges to be tried."
What is meant by the word " dealt " ?
That is one of the words that you put a commonsense construction on—if he handled the charges in any way so as to prepare them, or read the evidence or ——
Had a knowledge of the case.
—— had a knowledge of the case, as Deputy Colley puts it in plain language.
I doubt very much if that is the effect that would be created in the mind of the court. We all know the effect that a cross-examining counsel can create, and if he says to an individual: " Did you handle these documents? " the man is bound to say he did.
Let me take the Minister up on that, Suppose he did——
If he merely handled them.
Suppose he did handle the summary of evidence. One has to presume that he has read it.
That is exactly the impression that would be created.
We would have to assume that he had read it and if he had, he could not sit on a court-martial because the might be some things in it that would be ruled out.
I agree, but surely that could be brought out by the judge advocate asking the question: " Did you read the documents in question? " That would clarify that. If Captain Brown carried these documents to Commandant White, I do not see that it should be regarded as debarring him from sitting on the court-martial. The use of the words " or otherwise " would, in my opinion, debar him from sitting on it. When we talk here about justice, we have to bear in mind that what we are doing will aid or interfere with justice. We have to be careful in our decisions because we are making laws. I am very anxious—and I showed it on previous occasions by accepting the strong views put forward on legal grounds—that this Bill when it becomes law will reflect credit on the Committee and we ought not in any circumstances to allow personal experiences to affect our good judgment.
The Minister may not appreciate that, in the interpretation of a word like " dealt " the court will put a common sense construction on it. If it is a technical term of law, it is rigorously defined, or if it is a word which admits of no elasticity whatever, the court will construe it rigorously, but in the case of a word like " dealt " the court will interpret it in a common sense way. The word would be taken to mean some dealing with it that could be termed dealing, and the mere carrying of a document would not, I think, be regarded as dealing with the charges. If, however, an officer read them or did any administrative or executive act in relation to them, that would be " dealing". The section fails because it does not embrace the type of case I have mentioned, the case of an assistant adjutant. It fails also because it does not embrace a case such as this. Something happens which later comes before a court-martial. In the initial stages perhaps, the commanding officer details one of his officers to look into the thing straightaway. That officer investigates it and makes a report to the commanding officer and it is only at that stage that the legal machinery, so to speak, is put in motion and the court of inquiry set up following on a court-martial. The section protects an accused in regard to the members of the court of inquiry, but does not protect him as against the officer who made the preliminary investigations and does not seem to protect him against the officer actively preparing the material for the court of inquiry, whereas the word in the old Act was wide enough.
Would sub-paragraph (c) not protect him?
No. " Any officer who investigated the charge against the accused"—" investigated " has a definite meaning. An investigation of the charge means the preliminary formal investigation of the charge where the summary of evidence is taken down. That actually means, in effect, the officer who took the part that is analagous to the district justice in the ordinary civil procedure. I agree with Deputy Colley this far, that if I had nothing else to hang my hat on and were trying to defend an accused, I would stress that point.
That is the point I want examined here. In a cross-examination if the defending counsel wanted to find a last straw or a loophole for escape, there is no man more competent to find it than Deputy Cowan himself, and those two words would be a God-send to him. We are trying to find a definition now or an interpretation of the word " dealt". The Chairman himself has stated that he believes the word would mean and would have to be interpreted by a court as meaning " inquiring into " ; but the Chairman cannot speak for the actual members of the court-martial, he is only offering his view. From what I can see, it is a matter of the legal men differing in their views here, and they differ outside in the court-martial in the same way. It is possible that if on a court-martial you have the two very able Deputies here, Deputies de Valera and Cowan, they will be able to influence the court-martial every time on this matter. I would like if this could be examined to see if there are any other words that could be used instead to convey the meaning.
The alternative I would suggest would be to drop the words " in an advisory capacity " and put " dealt " alone.
I would not like that there should be objection to the members of the court-martial by reason of the officers having dealt in possibly some mechanical way with the documents, perhaps by handling them.
Exactly.
Nevertheless, you would not agree to have a man on the court-martial who had had an eye to some of the documents.
You cannot have on a court-martial any executive who has been dealing with the documents.
In actual practice when the court-martial sits, the judge advocate will say to the president and members: " Has anyone of you investigated the charge against the accused?"
Mr. Brennan
I suggest you start at the early stages. What is the procedure down along ?
Say a private is involved. He comes before his company officer, who investigates the charge and remands him for the commanding officer.
Mr. Brennan
The file passes on?
There is no file—only the charge sheet. It comes to the commanding officer who decides to send the man for court-martial. That may be as a result of some inquiry that has been held by a court of inquiry by some provost officer or someone sent out to make it. The net result is that a file has been created but there is a charge against the man. Another officer is assigned to write down all the evidence and that is then sent up to the officer commanding the command. It goes to the command legal officer who sees that the charges are properly formulated or settled and the man is sent to court-martial.
Mr. Brennan
During the process of travelling from one rank up to an officer of a higher rank, does that file pass through the hands of any officer?
It may. For instance, the file is sent up with all the evidence to the commanding officer of the command asking him to convene a court-martial. In actual practice, although it is addressed to the commanding officer of the command, it goes to the command legal officer. He reads it and decides there is sufficient evidence to warrant a court-martial. He may take the papers across and give them to the command adjutant. There may be some interest in the case and that man may read the proceedings. There may be a couple of staff officers in one way or another who may read them. Generally speaking, it is sent direct to the legal officer who goes personally to the command commanding officer and says: " I think this man should be court-martialled". The command commanding officer accepts that when he is so legally advised and signs the convening order.
There is not very much trouble there, but someone may have made an inquiry into the business. We talked about messes before. There may have been a board of inquiry into mess deficits. The officers in the mess themselves may have gone into this whole question relevant to the charge. A sergeant in charge of a mess may be charged with doing away with money belonging to the mess. The discussion of that may have been going on for six months in the mess. Obviously, no officer of that mess should be on that court and no one should want to put him on it. The legal officer will do his best in advising the commanding officer to clear from membership of the court every person suspected of being connected with the case. At any rate, the judge-advocate will, on assembly of the court, ask each one: " Did you have anything to do with this case? " Under the old Act he would say : " Did anyone conduct any inquiry into the case?" That was interpreted in the broadest fashion in favour of the accused, but that approach can be very much altered by what is here.
I want to explain this to Deputy McQuillan. There is no question of a defending officer or counsel breaking up a court-martial at all. What really happens is that every precaution is taken by the command officer commanding to put on officers who are not connected with the accused man's unit—good, bad or indifferent. If the court-martial is in Dublin there would be officers from Portobello sent to deal with a man from Islandbridge. In the Curragh you get officers from different barracks altogether and from different units and from different corps to the accused. The whole idea in the Army all the time is to make it impossible to have anyone in the court who knows anything in advance about the evidence. That being so, all I am now concerned about is to ensure that the judge-advocate will still say to the court: " Have any of you in any way dealt with this?" I think we are unwise in simply confining consideration of the section to the word " dealt". Paragraph (d) says: " An officer who in an advisory capacity dealt with the charges or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial." Now if anyone dealt with the evidence to be given, not in an advisory capacity, he should not be on the court. If he dealt with the conduct of the prosecution he should not be on the court. I put in these two words " or otherwise " because they are the simplest words I could think of to give effect to what I mean—anyone, whether in an advisory capacity or otherwise, who dealt with the charges—that means, dealt with them in an official capacity or who looked into the evidence or who looked after the conduct of the prosecution, that no one like that should be on the court. I would say, with all respect, that I would prefer, if my words are not accepted, to see what was in the old Act: " Who conducted any inquiry into the case," continued in force. I think that if those two words were included they would eliminate from the court anyone who had any prior connection with the case. That is what is happening at the moment and that is what I want to continue to happen.
Once the court sits, no one can object. I cannot go in then as defending officer and say " I object to this court." The accused has the right—and it is also given in this Bill—to object even to the President if he thinks he should not be on the court. He can object to a particular officer. These objections will be heard and decided. If it is decided that, for one reason or another, a particular officer should not be on the court because he has investigated a case he will be excluded. Two members will consider whether it has been established that the third member should not be on the court. If that is upheld and the court-martial is reduced below the legal minimum, it reports back to the convening officer, who appoints a new member in the excluded member's place or a new court. If you accept my amendment, you rule out any possibility of a man being put on the court who should not be put on it. When the judge-advocate asks whether anyone has dealt with the case and each one replies " no," there is confidence in the court. But if one officer said : " Well, I read the charges and I read the evidence of so and so, who is stationed in Cork and whose evidence for the summary was taken not in the ordinary way but in Cork, and when that statement came to my office I read it and I know some of the evidence that will be given," the judge-advocate would not allow that officer to sit on the court. If we leave the section as it stands, the danger is that an officer who had some knowledge of the evidence would not be captured by (a), (b), (c), (d), (e), (f) or (g). Consequently, under the Bill he would be perfectly legally entitled to be on it, notwithstanding the objection of the accused.
Then there would be no one on the court at all.
Even from the Minister's point of view, there is a certain danger. Take a case where an officer read the evidence of one of the prosecuting witnesses. He hears that prosecuting witness giving evidence afterwards before the court. If he never read that evidence he would assess that witness as he sees him in the court, but if he has read that evidence and happens to notice there is some discrepancy between what he read and what the fellow says, he has got to have a question mark about that particular witness for the prosecution. It is actually going to work against the Minister in a case like that.
I see the cogency of the Minister's point, and it is a good one. It would be ridiculous to leave it open for people defending in a court-martial to quash the court-martial on the grounds that an officer on it carried the envelope containing the charges from one room to another. There is a case for removing " in any advisory capacity ".
I will have it examined but again I must express my feeling that there is a lot of unreality about the discussion. Deputy Cowan has outlined the procedure which has operated in the past and he appears to believe that the methods used in the past were ideal methods.
They are.
I do not see how there will be the slightest smallest difference as a result of this section. There you have (a), (b), (c), (d) and (e) and I am pretty certain that if any member of this Committee were to examine them seriously to see whether he could add something else, he could not do it. Deputy Cowan apparently cannot do it either and adopts the method of using " or otherwise " to embrace every possible individual who could be brought into the net. We would not be doing justice to the military authorities if we were to accept all-embracing words of that kind. What we should do, having had this discussion, is to allow the report to be carefully read by the authorities and see if we can find words to meet the objections raised. We could even adopt the suggestion made by the Chairman, but I think that with the record in their hands, the military and legal authorities will see as clearly as any one of us here the points of importance.
I would not like the Minister to feel that there is any unreality about this.
All I mean by unreality is that there has been a great deal of hypothetical discussion this evening. I have noticed since the commencement of the Committee's deliberations that we are inclined to draw too much on our imaginations rather than try to deal with realities.
There is very definite reality in this. If a summary of evidence is being taken in preparation of a charge against a soldier or officer the officer taking that summary will not be a trained legal man and nobody would want him to be as it would be ridiculous to tie yourself down by provisos of that nature. The evidence may include statements like " so and so told me such and such and I heard such a thing ", a whole lot of hearsay evidence that would not be evidence at all.
That will be dealt with.
Anybody who has seen all that beforehand can get certain prejudices.
They will not be on the court.
We wish to preclude such people. I have sympathy with the point the Minister has made, and I would be impatient of the raising of technical difficulties merely to frustrate the court. We know, however, that that would be the first place a defending lawyer would jump if he had an opening at all, and there is no use in pretending that he would not. I have sympathy, therefore, with the Minister, but on the other hand I feel that this section is a trifle too narrow, and we should see if we could do better. We have at least the consolation that the authorities, both civil and military, would be careful about the thing, and would treat it in the spirit it is intended. This is a case where you can feel fairly morally certain that there will be a fair approach to the problem.
The Minister differentiates between imagination and reality, but I am speaking on the basis of a reality of which I have knowledge. Suppose that the court-martial assembles and the judge-advocate says: " None of you is the prosecuting officer, an officer who is witness for the prosecution, an officer who investigated the charge against the accused or took down any summary or abstract of evidence in the case, or who was a member of a court of inquiry respecting the matters on which the charge against the accused is based? None of you was the commanding officer of the accused, an officer who has a personal interest in the case, an officer who is not subject to military law, or an officer who in an advisory capacity dealt with the charges to be tried, the evidence to be produced, or the conduct of the prosecution at the court-martial?" If the answer to all these question is " No " he has done his duty. They are all statutorily clear and can sit on the court, and nobody, the accused or anybody else, can object. Suppose, however, it comes out that there is, in fact, an officer on the court who has investigated the case. He may not come in under (a), (b), (c), (d), (e), (f) or (g). He is on the court and the accused says: " I object to Colonel Brown being on the court." He is asked why, and he says : " He read the evidence which was given against me by so-and-so."
Although the judge-advocate had asked him.
No, the judge-advocate can only ask him the statutory questions from (a) to (g).
Paragraph (g) says:—
" An officer who, in an advisory capacity, dealt with the charges to be tried by the court-martial or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial."
That refers to " an advisory capacity " but this colonel has not in an advisory capacity dealt with the evidence at all. He has read it, however. The accused says: " I object to this man being on the court because he has read the evidence of so-and-so." That is an awkward position for the president to be in if he is the officer in question, because he has to sit aside and leave it to two subordinate officers to decide whether he should be on the court or not. These two officers would have to ask themselves: " Is it fair that Colonel Brown, who has read the evidence should be on the court?" I am satisfied that they would say and be advised to say that he should not be on it. He must then suffer the humiliation—because it is a humiliation for the president of a court to be debarred in open court from sitting on the court—and that is not good for discipline or good order. If he were asked in private : " Did you read the evidence? " it would be different.
I cannot see how he could allow to get himself into that position if he were asked the questions he should have been asked.
He is not debarred by the section from sitting. I am trying to debar him by putting in the words " or otherwise " but you say " no." If the president had read the evidence and were told that he could not sit the accused would be notified of an adjournment and there would be a short adjournment while the court was getting in touch with the convening authority. you would appoint a new President. It would be better to be done in private than to have it done by legal objection in open court.
Deputy Cowan's amendment is perhaps too wide as the Minister says. Would the Minister consider something like this : " who in an advisory capacity or otherwise in a manner which might reasonably influence his judgment or enable him to have any special knowledge of the case," in other words a qualification of " otherwise "? " Reasonably " comes in. Clearly the case the Minister mentioned would not come under that heading. I would not ask the Minister anything but to consider that.
Mr. Brennan
The way out of that would be to make it: " who in an advisory capacity dealt with the charges or read the evidence to be produced at the court-martial."
I think with all due respect that when it is examined no better phrase will be got than my two simple little words.
From your point of view, I agree, but there is substance in what the Minister says.
I admit that, but the substance in what the Minister says cannot be permitted to go beyond the fundamental requirements of justice. Take a man who is tried in a criminal case before a jury. He can always object in open court to any juror who has inside knowledge of the case.
He can show cause.
He can challenge five jurors without cause.
I cannot see any officer who read the evidence being on it.
When I read this section I had not the old Act in front of me. That Act includes " who conducted any inquiry into the case." That was very widely and generously interpreted by the Army legal people and caused no trouble. Anyone who will sit down and quietly read my words " or otherwise " will not be able to find one bit of objection to them. I know that " or otherwise " looks big but when it is related to its context it is not.
If the authorities who read this agree with your view I will accept it.
Deputy Cowan will withdraw his amendment on that under taking ?
Yes.
Amendment, by leave, withdrawn.
Question—" That Section 189 stand part of the Bill "—put, and agreed to.
Section 190 agreed to.
The Committee adjourned at 5 p.m. until 4 p.m. on Tuesday, 29th April, 1952.