Imposition of Duties (Confirmation of Orders) Bill, 1935. - Vote 26—Law Charges.

Tuesday, 9 July 1935

Dáil Éireann Debate
Vol. 58 No. 1

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Minister for Finance (Mr. MacEntee): Information on Seán MacEntee  Zoom on Seán MacEntee  I move:—

Go ndeontar suim ná raghaidh thar £41,239 chun slánuithe na suime is gá chun íoctha an Mhuirir a thiocfaidh chun bheith iníoctha i rith na bliana dar críoch an 31adh lá de Mhárta, 1936, chun Tuarastail agus Costaisí Oifig an Phríomh-Atúrnae, etc., agus chun Costaisí Coir-Phróiseacht agus Dlí-Mhuirearacha eile, maraon le Deontas i gcabhair do Chostaisí áirithe is iníoctha amach as Rátaí Aitiúla do réir Reachta.

That a sum not exceeding £41,239 be granted to complete the sum necessary to defray the Charge which will come in course of payment during the year ending on the 31st day of March, 1936, for the Salaries and Expenses of the Office of the Attorney-General, etc., and for the Expenses of Criminal Prosecutions and other Law Charges, including a Grant in relief of certain Expenses payable by Statute out of Local Rates.

This is the Estimate which I understood from Deputy Morrissey [133] the Opposition charged the Government with a desire to prevent the Dáil from discussing. It is now before the House, and if there is any information required with regard to the details of the Estimate I will endeavour to supply it. As I presume, however, that the Opposition are eager to get down the business I do not propose to detain the House unnecessarily.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  On behalf of Deputy Mulcahy I move: That the Estimate be referred back for reconsideration. I think that if the House uses anything approaching an unfettered judgment I will, before I sit down, have succeeded in satisfying the House that the Attorney-General has acted in a most improper fashion in the discharge of the duties of his office; and that that improper fashion of acting is shown as much by what he has done as by what he has refused to do. The Attorney-General is responsible for the administration of criminal justice and for the conduct of prosecutions in every court in this country. It is within the unfettered judgment of the Attorney-General whether a prosecution will be brought or not brought, and the method in which a prosecution is to be carried on lies also within his unfettered judgment.

I charge the Attorney-General with acting in a most improper fashion in the discharge of his duties. I charge the Attorney-General, through his counsel, as he is responsible for the counsel whom he appoints, with endeavouring to have men convicted against whom he knows there is no legal evidence. I charge the Attorney-General, through his counsel, with endeavouring to secure convictions per fas et nefas, by fair means or foul. I charge the Attorney-General, not only with endeavouring to get, but actually succeeding in getting verdicts which he knows, and which everybody knows, to be verdicts which could not be sustained in law. I charge him with obtaining verdicts through his counsel and having men sent to prison in cases which, if he properly discharged the duties of his office and did it fairly and honourably, he would enter a nolle [134] prosequi because there was no evidence against those men. He should not allow the Military Tribunal or any court to convict any persons who, in law, have committed no crime, or against whom, in law, there is no evidence of having committed a crime. Yet he has done so.

I could give plenty of instances to this House but, owing to the very short time we are given to consider the Estimates, I do not wish to take up the time of the House by going into specific cases in detail. I will say this much: that when you get a case, such as one to which I have referred in the House on a previous occasion, where there is a revolver found in an open shed to which any member of the public had access, it is against the law and against decided cases, that the man in question should be found guilty. Yet men have been found guilty on evidence, or the absence of evidence, such as that and have served or are now serving terms of imprisonment, though there was not one scintilla of evidence which would justify any court in convicting them. I will not say that the Attorney-General has been quite impartial; I will not say that he has leant with an equally heavy hand on the I.R.A. as he has upon followers of this Party, but he has not let even the I.R.A. off scot-free. I have no brief for that body; but there are members of the I.R.A. in prison at present against whom there was no evidence which would justify a conviction.

I am only dealing now with the general question. Nobody should be found guilty unless there is legal evidence against him, and the Attorney-General should not allow a case to go to the Military Tribunal unless there is evidence upon which the Tribunal could act. I go further and I say that the Attorney-General is doing wrong, and the counsel acting for him are doing grievous wrong, if they tender in evidence what they know themselves not to be evidence. It is a wrong thing, and has always been against the high traditions of the profession to which I belong, and to which the Attorney-General belongs, that a person should not get fair play. It is against the high traditions of the profession [135] that any underhand method should be undertaken for securing a conviction. It is against the traditions of our profession that anything should be put in in evidence by prosecuting counsel or tendered by prosecuting counsel which he himself knows not to be evidence. The Attorney-General knows that and the country knows that. But the Attorney-General and his counsel are not acting upon that salutary rule. They are, day by day, putting in evidence things which they know not to be evidence.

There is one very great and glaring example of it, and I would like to hear, when the Attorney-General comes to reply, how he will explain this. If there is one principle which is deeply embedded in our law it is that no statement made by an accused man is admissible in evidence except as a free and voluntary confession. It follows from that that no statement made in answer to interrogatories or questions put to any accused person under Article 2A of the Constitution can possibly be made admissible in evidence. The Attorney-General knows that, and he must know that it is elementary law. A statement, to be admissible as a confession, must be free and voluntary. Nobody can say— it is a contradiction in terms to say— that a thing is voluntary where a man is told that unless he makes a confession he will be liable to be sent before the Military Tribunal, where he will be sentenced to a term of imprisonment. A confession is just as voluntary, or involuntary, and forced, if a man is told: “You will get six or nine months for not making a statement” as if he were told he would get his head broken. Yet the Attorney-General, through his counsel, is deliberately putting in statements of that nature for the purpose of getting men convicted, and the Attorney-General cannot deny the fact. What is important is that as soon as a question is put under Article 2A of the Constitution any statement subsequently made by that person to whom these questions have been put becomes evidence. The fact that the questions were put, to [136] commence with, prevents the confession from being free and voluntary, and prevents any subsequent statements to the Guards being regarded as a voluntary confession. That is perfectly well established law in this country. I do not want to weary the House, consisting largely of laymen, by reading many precedents. I will take the case of one man, named Doherty, decided by Chief Justice Whiteside and Baron Fitzgerald. It is a case where a prisoner was told by a constable at 10 a.m. that it would be better for him to tell the truth and not to be putting people to extremes afterwards, and the admission by the prisoner to another constable at 6 p.m. the same day, which was not allowed to be put in evidence although the second constable had previously cautioned the prisoner. That is the principle under which the law was always administered.

There was a decision of the Lord Chief Baron, who stood very high and was at the very summit of the pinnacle of the judges of his generation—there was a decision by him which I admit went too far in law, that in no circumstances whatever was a statement made to the police to be put in evidence. But that does not arise here. I only mention it to show the tendency of the judges in the country to prevent forced confessions being put in evidence. Here we have case after case in which statements to the Guards which are not free and voluntary and cannot be argued as free and voluntary, because if they are not made the person has committed an offence for which he can be punished, are tendered day by day by the Attorney-General, through his counsel, before the Military Tribunal and he cannot deny that.

There is another matter with which I would like to deal. The Military Tribunal, and the Attorney-General cannot deny this, are as much bound by the law of evidence as any other court. They have power under Section 5, subsection (2) to regulate their own procedure but they have no power to alter the law by one jot or tittle. Therefore, [137] they are largely at the mercy of the Attorney-General. They are not trained lawyers and must trust that they will be guided rightly in the law by the Attorney-General or his counsel. It is the duty of the Attorney-General or his counsel to see that the Military Tribunal are kept straight in law, and that whenever a question is doubtful in law the prisoner shall get the benefit of that doubt. Whether it be the law of evidence or ordinary criminal law, if there is any doubt where there is a tribunal before whom the matter can be argued, it is the bounden duty of the Attorney-General to see that the prisoner gets the benefit of the doubt as to what the law may be. I think every single member of this House will agree with me in that assertion.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  If we did not know you.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  And furthermore, the Attorney-General must know that the practice which is taking place of writing on documents containing statements forced from accused persons the words: “I make this statement freely and voluntarily” after it is completed—that signed statements such as that are not worth the paper they are written on. A statement not freely and voluntarily made but made under compulsion is of little value.

There is another matter which I can only touch upon briefly for two reasons. In the first place the Attorney-General is not responsible for the Guards, and, in the second place, the brutalities which are charged against certain members of Colonel Broy's new recruits —appalling brutalities, the nature of one so indecent that I could not now in any circumstances mention it to the House—are to be the subject of proceedings. I am not going to quote that matter against the Attorney-General because as I said he is not responsible for the Guards and secondly, because I know that legal proceedings have been taken against certain Guards who have been charged with the commission of these appalling outrages.

The Attorney-General must know and the whole country knows, and certainly Deputy Corry's county knows, [138] that there are third degree methods used on unfortunate prisoners in the barracks of that county which would shame the State of New York where third degree is supposed to be brought to a great state of perfection and the confessions extracted by that method as the Attorney-General must know are put forward as free and voluntary confessions before the Military Tribunal.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  You practised them for five years at any rate.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  I am very glad to have these interruptions from Deputy Corry. When he gets on his hind legs I know I am driving the truth home. It is the truth that hurts.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  No, but when we hear the like of you talking of provocation——

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  I think it is as clear as daylight that these statements are not admissible in evidence. Every trained lawyer before whom such statements are tendered has refused to admit them in evidence. Every District Justice has refused to admit them in evidence. Judge McElligott refused to admit them in evidence, yet the Attorney-General, through his counsel, is endeavouring to get them accepted as evidence. I leave it to the House to say whether that is fair.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  It comes well from you——

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  Deputy Corry must allow Deputy Fitzgerald-Kenney to make his speech without interruption.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  It is desperately hard. I am hitting a bit too hard for Deputy Corry, I am afraid. Those are facts which the Attorney-General cannot deny. Anybody who has read the papers of the last two or three days will have seen the very point raised of a confession extorted from a man under the powers conferred by Article 2 A of the Constitution put in evidence by the Attorney-General's counsel, who argued, with, of course, the authority of the Attorney-General, and, I suppose, by the instructions of the Attorney-General, because I presume [139] the Attorney-General read the papers in the case, as it was his duty to do, that a confession is voluntary when the man who makes it is liable to a term of imprisonment unless he makes it. That things are voluntary and involuntary at the same time is the magnificent proposition which the Attorney-General will have to stand over in this House. I should like to know how he will do it.

I have only dealt rather briefly with these matters, because I do not wish to take up the time of the House at any very great length upon this question, but I want to impress on the House as strongly as I can that nothing is worse for the administration of the law, nothing can bring the law into greater contempt, than that the Attorney-General should deliberately endeavour, and, unfortunately, taking advantage of the want of legal knowledge on the part of the Military Tribunal, succeed, to have men convicted against whom no evidence can be produced. No legal evidence is produced or can be produced. The duty of the Attorney-General and the duty of his counsel is the old duty which has always been recognised, as I have said, by prosecuting counsel at the Irish Bar —the duty to the prisoner. Especially there is a duty in the prosecuting counsel towards the prisoner who is undefended and the Attorney-General is under the greater obligation of seeing the prosecutions are conducted fairly and that no illegal evidence is admitted, because the Attorney-General knows that, largely owing to the way in which he has conducted his prosecutions, a very large number of counsel at the Irish Bar have made up their minds that they will never appear before the Military Tribunal again because the Attorney-General has reduced trials there to a travesty of justice.

The Attorney-General knows, or should know, that a large number of counsel who had experience of the way in which cases are conducted and results arrived at in that court have decided that they will never enter the doors of that court again and never defend prisoners in such an atmosphere [140] again. Because that is so and because the Attorney-General, through his method of prosecution, has brought that Military Tribunal as low in the public estimation as he has brought it, the Attorney-General ought to make redoubled efforts to endeavour to restore some sort of public confidence in the Tribunal and to endeavour to let the country know that men are getting, as they ought to get, something approaching a fair run in that Tribunal. Prisoners are not getting it, as I have said. It is not confined to one side, I admit. It is not confined entirely to the followers of Fine Gael. Prisoners who come from a political association which I personally abhor are likewise being convicted without any evidence against them, and no matter how much I may abhor the association to which they belong, I do say that, so far as I am concerned, wherever I see a miscarriage of justice, wherever I see men convicted of a crime where there is no legal evidence to convict them of that crime, whether they be my political opponents or whether they think as I do in public matters, I will raise my voice in protest in this House against such a course of conduct.

There is another matter with which I want to deal and it is the manner in which the Attorney-General is making use of certificates coming from the Minister for Justice which he knows to be false certificates. In this House, I have twice charged the Minister for Justice and once the Minister for Industry and Commerce. I said I would not press the charge against the Minister for Industry and Commerce because the certificate he gave may have been, and probably was, given in good faith, but nobody could say that the certificate given by the Minister for Justice was given in good faith. I charged the Minister for Justice, on his own Estimate, and the Minister sat dumb. I charged him again in case one of the gravest charges that could be made against his personal honour might, by any strange chance, have escaped his notice, on the President's Estimate. I charged him in respect of the certificate he gave in the case of Clifford and I gave full particulars [141] to the House then and need not repeat them now. The Attorney-General is just as well able to see that a certificate is false as I or anybody else. It was obvious and patent upon it. I daresay there are a good number of other cases but I saw the papers in Clifford's case myself and that is why I press it home. The Attorney-General cannot wash his hands and say that the crime is the crime of the Minister for Justice. He can no more wash his hands of that than he can wash his hands of the wrong things being done by prosecuting counsel in his name. He is responsible, and the washing of hands method, which did not avail Pontius Pilate, will not avail the Attorney-General.

The Attorney-General:  The Deputy seems to suggest that I washed my hands of what counsel did on my behalf. I never did. I have always accepted their actions.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  We shall be interested to hear what explanation the Attorney-General will give of the admission and pressing on the court of evidence which he knows to be illegal evidence. I do not say that all his counsel do it. I want to be careful. A great number of counsel instructed by the Attorney-General prosecute perfectly fairly. I want to make that clear. I am not charging all his counsel by any means, but I am charging the counsel who put in evidence what they know not to be evidence. I know that there are counsel whom the Attorney-General briefs who are men of high honour and who would not dream of putting statements such as that in evidence, but there are others who do put them in evidence and the Attorney-General is responsible. The guilt is his and if, as is undoubtedly the case now, people in this country do not regard a conviction by the Military Tribunal as showing either the guilt or innocence of a man, but simply brush it aside, it is due to the fact that the Attorney-General has not watched over the decisions of that Military Tribunal as he should have and has not carefully seen that no innocent person was ever convicted, and certainly that no person who in law ought [142] not to have been convicted was convicted. I know the blame may not be all his. I give him that credit. The Military Tribunal would be a much better court if the Executive Council had done its duty, but I cannot deal with that question now. I do not really care very much how far you apportion the blame as between the Executive Council and the Attorney-General, but the fact remains that the Attorney-General, by his method of prosecuting, has brought that court at the present moment into such disrepute that a conviction by it or an acquittal by it—such few cases of acquittal as there are— does not in the public mind establish the guilt or the innocence of the person charged or does not even tend to establish the guilt or the innocence of the person charged.

I have dealt as shortly and as concisely as it lay in my power with some, the chief as I think, of the Attorney-General's sins of omission, but I am going now to deal with the Attorney-General's great sin of omission. I am going now to deal with the thing which has put a stain upon the reputation of the Attorney-General that nothing on earth can ever wipe out. I am going to deal with the non-prosecution of members of the Civic Guard, of Colonel Broy's new recruits, who shot down a number of men and murdered one, in Marsh's Yard, in Cork. When I dealt with that matter last, the Attorney-General made two excuses. He said that there was no precedent for an Attorney-General putting upon their trial guards or police who had been guilty of shooting citizens of this country. He said that there was absolutely no difference between military and police in the matter of shooting.

As far as the difference between military and policy goes, if he reads the Fetherstone Colliery case, which is the leading case on the subject, and Lord Burns' decision and report, they are looked upon as being the best summary of the law on that matter which could be got. If he comes to a case nearer home and considers the report on the shooting at Bachelor's Walk in 1914, he will find that the British Government, when citizens of Dublin were shot down, thought it [143] worth while to enquire into the matter. But in 1934 when citizens are shot down in Cork the Government and the Attorney-General do not consider any prosecution necessary. In both these cases it was laid down clearly that military may shoot where the police cannot, because the soldier has one weapon and one weapon only. He has got his rifle and nothing else, but the police have got their batons and until they have used their batons and shown that the use of their batons is insufficient, they are not justified in firing.

Indeed, in the Bachelor's Walk Inquiry, the Commissioners held as a fact that if the troops who fired on the crowd in Bachelor's Walk had been accompanied by the Dublin Metropolitan Police, firing need not and would not have taken place. Yet the Attorney-General made the case that there was absolutely no precedent for the Attorney-General prosecuting police who had been guilty of firing upon a crowd. Granted there was not, is the Attorney-General going to stand over this position, that the police are wantonly to fire on a crowd, that they are to be the judges as to when they can shoot down citizens of the State, and, if they so shoot down citizens of the State, then the Attorney-General is to put forward, as he has already put forward, a doctrine which, in my humble judgment, is a contemptible doctrine? But the Attorney-General is quite wrong in his opinion. In the case of the Borrisokane riots, Chief Baron Joy, who was then Attorney-General, did put two members of the then police force on trial. What is more, in order that there might be no question at all, such was his opinion of the value of human life, so different was his opinion from that of his successor, the present Attorney-General, that not only did he put the police who fired on their trial, but he sent up to the Grand Jury a bill against Captain Dodd, the magistrate who read the Riot Act.

It is true the Grand Jury flung out the Bill against Captain Dodd but the Attorney-General did what he could— he cloaked nothing—to see that there [144] would be a full investigation and the men were put upon their trial by the then Attorney-General, the Chief Baron Joy, in a case not half as strong as the Cork case. In that case the Riot Act had been read. In that case every opportunity had been given to the people to clear away. It was a case not one-tenth as strong as this particular case, but the then Attorney-General Joy considered it part of his duty, and rightly considered it part of his duty, to put the police on trial. Our new Attorney-General on the new principle that the life of a wretched Cork boy is not worth considering, says, in effect: “What if the Guards did shoot him?” That did not matter; I suppose the Attorney-General thinks that a Cork boy more or less does not matter. In consequence the men who fired at him, who coolly and deliberately shot down his comrades and himself and who murdered him—I shall call it murder until it is shown to the contrary—go scot-free. Not only does the Attorney-General promote them, but he permlts them to go scot-free.

I have dealt with this case of the Marsh's Yard shooting in this House before, but since I referred to it previously a pronouncement has been made by the highest authority in County Cork in matters appertaining to justice and religion. A pronouncement has been made by Dr. Cohalan, the Bishop of Cork. I shall just quote a few words from it here. At Glanmire Parish Church, which was the parish church of Michael Patrick Lynch, when giving confirmation there, Dr. Cohalan referred to the shooting of this boy, and what he says is this:

“There was one grave violation of justice by public authority in relation to a boy of the parish since my last visit for confirmation. I avail myself of this visit to the parish to express and convey my sympathy to the father and mother of the young man, Michael Patrick Lynch, who was killed in Marsh's Yard, Cork, and to say that some reparation should be made by the Government.”

There is a clear and important statement by a man whose duty it is, when occurrences of this nature take place, [145] to say what are the views and teachings of the Church. He expressed them in very quiet, dignified language. “There was one grave violation of justice by public authority.” He is responsible, as far as one man can be, for the upholding of Christianity and the law of the Church in the diocese which he rules. The Attorney-General is responsible for the maintenance of civil law in this country. The one speaking on behalf of the Church says deliberately that there has been a violation of the eternal principles of justice—a grave violation of justice by the public authority. The Attorney-General says there has been no breach of the law at all. The Fianna Fáil Party have a very nice problem to face to-night. They will have to vote one way or the other. They will have to approve the Attorney-General and disapprove the moral law or they will have to approve the moral law and disapprove the Attorney-General.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Same as you had——

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  The Deputy must not interrupt.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  These are not my words. They do not rest on my authority. They rest on the authority of the Bishop of Cork who says that there was a grave violation of justice. The statement goes on to say that there were three stages in this particular shooting.

“The first stage was when a motor lorry was seen to be driven at a very dangerous speed towards the entrance gate of the auction yard. One would say that, at that stage, if the Civic Guards feared danger to life, they should give some warning and, if the warning was unheeded, one would not blame them for firing. The second stage was when the motor lorry crashed through the gate. It was said that a few persons were injured.”

That is not correct, but it is not material.

“But once a law is violated it is for the courts and not for the police agents to deal with the case.”

[146] Surely that is correct. Surely that is the view the House takes—that it is for the courts and not for the police to deal with the case. If a man has broken the law it is for the courts to punish him and not for the police to shoot him down in cold blood. The punishment for breaking into a yard is not punishment to death or serious injury. But it was punishment to death which the Guards inflicted on Michael Patrick Lynch. The statement goes on—and this in the crucial part:

“The third stage was when the motor lorry was brought to a standstill at the centre of the auction yard. There was not a machine-gun or rifle or shot-gun among the men in the motor lorry. Michael Patrick Lynch was not of the lorry party at all. Yet, the agents of the Government fired deliberately at these unarmed men, when there was no question or danger of an attack on anybody.”

There we have an impartial man reading the evidence and coming to the only conclusion to which anybody who read the evidence could come. The statement goes on:

“Surely it was wrong. And surely the Government owe some reparation to the father and mother of the boy who was killed. We have much to criticise and condemn in the relations of England to Ireland. We have much to learn, too, from the English mode of Government. If a grave injury like this were committed, even by mishap, reparation would be made. A friendly expression of sympathy from the Government and some reparation would be far better than any legal proceedings.”

I am not dealing with the question of reparation. It is not germane to the issue before the House. What is germane and what the House should really and seriously take into consideration is that, there, an impartial authority, examining the case carefully, not in any hurry but some months afterwards, has come to a clear conclusion as to what took place. There, we have the clear view of an impartial, highly-placed person whose duty it was to make a pronouncement of this kind. [147] The pronouncement is not rashly made or made in a hurry. But the Attorney-General brushes it all aside. The Attorney-General's view is that no matter under what circumstances, no matter when and no matter how the Guards fire upon the people, they are to be the judges and the sole judges. If any Guard decides at any time to shoot down members of a crowd which is hostile to the Government, then the doctrine which the Attorney-General has laid down and will, I suppose, lay down again, is that he is justified and that he will not prosecute. Where is the law? Who are to be the judges? Are Colonel Broy's new recruits above the law? Who has made them the judges of when people should shoot or not shoot—judges from whom there can be no appeal? Who has put in their hands powers of life and death? When they take the powers of life and death into their hands, when they shoot without any justification under heaven, the Attorney-General will bow down and say: “I dare not prosecute them because there is no precedent.” That is the issue now, that is the real issue on which the House will vote when it votes upon the Attorney-General's estimate. Does it approve of the Attorney-General's conduct? Does it consider that the life of an ordinary Irish farmer's son is a thing of value or a thing of no value? Do Deputies think that the Government, without the intervention of the law, without the intervention of the courts, are justified in putting to death any citizen of this State? That is the principle upon which the House will vote. If Deputies think that the Government is above the law, that the Guards are above the law, that they have in their hands powers of life and death and may execute these powers at their own sweet will—if they approve of that doctrine, which is the Attorney-General's doctrine, they will vote for this estimate, which contains the Attorney-General's salary. But if there is any respect for the law in any member of the Party opposite, if there is any belief that the citizen of this State, has got his God-given rights whether he be the son of a small farmer [148] or of a large farmer or of any other member of the public, then they will vote for the preservation by law of those rights.

The greatest and first of these God-given rights is the right to live. No government under heaven has got the right to take away, or to put it into the power of their Guards to take away, the life of an innocent individual or, indeed, of any individual, without trial. Under the other doctrine, you may get your Hitlerites walking around and murdering their political opponents in the morning. Is that a doctrine you approve? Is Hitlerism to come into this country? Is the Attorney-General, the Minister for Justice and the whole Executive to stand for a policy of that nature? Are they to stand for the non-punishment of a wanton and deliberate shooting of that nature, for wanton and deliberate it was? Nobody can deny that. The facts were sworn to at an inquest and they are on record. Yet, the House is asked to support an Attorney-General and to vote for the salary of an Attorney-General who stands behind murder—an Attorney-General who is standing for the principle that the Guards have a right to shoot down, without cause or excuse offered, the citizens of this State. I dare say the Party opposite will vote for the Attorney-General. I do not believe that many members of the Party opposite will do so willingly. I will give the Party opposite, at least, this credit —that some of them have some respect for the law and some respect for the sanctity of human life. They may be forced by their Party Whips and under Party discipline to vote for the Estimate, but I do hope that some of them, at any rate, will have the courage to stand up and say that a crime of that nature is one which will not have their approbation, and that they will not vote for an estimate which contains the salary of an Attorney-General who fails in his duty, who shirks his duty, who, like a coward, runs away from his duty and is afraid to put men upon their trial who have openly committed offences of this [149] nature and who calmly and deliberately swore they took away human life.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  It would have been better for the Opposition if they had put up any other Deputy, folded with the cloak of innocence around him, than Deputy Fitzgerald-Kenney. Any one who will look back on the old official records of the Dáil will see that an individual member of the Gárda Síochána, convicted of having committed three assaults, was described in this House by Deputy Fitzgerald-Kenney as a perfectly good Guard who was entitled to promotion, doubtless in order that he might proceed to get voluntary statements by this means. When we remember the crowds that used to collect outside the various barracks in Cork city and county listening to the tortured wails of the prisoners making voluntary statements inside during Deputy Fitzgerald-Kenney's reign, when we remember the men who were taken out along the lonely roads and beaten up, and remember the prisoners brought into the barracks and found five minutes after they had been released outside the barracks—within ten feet of the barracks—with their skulls broken in with the butts of revolvers, when we remember all these things and think of the voluntary statements, then we know the perfectly fair show that was given; the perfectly fair show that Deputy Fitzgerald-Kenney now talks about. Deputy Fitzgerald-Kenney was very happy in those days screening behind the fact that those men would not recognise the court. When he makes statements now he should remember that on every occasion on which there was a complaint made here of the conduct of the Guards and told that it was his duty to prosecute the Guards concerned he would not do it.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  On a point of order, is it my administration or the administration of the present Attorney-General that is being discussed? This Estimate is being rushed through.

[150]Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Now, we know who is sore.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  I am not sore in the least.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Chair has been asked what administration is under review. The administration shown in the Vote before the House. It is within the recollection of the House, and of the Deputy who raised the point of order, that Deputies have (in discussion of these Estimates) gone back to 1933 or even 1922, for the stated purpose of contrasting the present administration with the past. The Deputy in possession should now come to the Estimate before the House.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  It is rather amusing to hear Deputy Fitzgerald-Kenney here to-night squealing under his own whip; to hear his cries and his wails.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Deputy must come to the Estimate before the House.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  One of the matters dealt with by Deputy Fitzgerald-Kenney to-night was the Military Tribunal, and I am pointing out that the Military Tribunal was brought into force and its personnel selected by Deputy Fitzgerald-Kenney's Executive Council.

Mr. Fitzgerald-Kenney: Information on James Fitzgerald-Kenney  Zoom on James Fitzgerald-Kenney  And properly administered by them and not as it is being administered now.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Now, they are squealing under their own whip. We have also been accused in connection with the shooting in Marsh's Yard. I do not want to go into that matter very much except to say that the responsibility for the Marsh's Yard shooting rests with the legal advisers who advised these people on bad law: those who advised them to carry out this work and who had not the courage themselves to stand in the gap. Instead, they brought in their dupes, innocent country fools, and let them go into the breach that they themselves ran away from. The same cowards came along the other day and signed their cheques to pay before they would let even their cows go.

[151] There is one other matter that was alluded to here. Whilst I pay every respect to the Church and to the teaching of the Church as far as my duties to the Church are concerned, still, when I hear the Bishop of Cork alluded to as an impartial man and an impartial teacher in this matter, I cannot forget the excommunication orders that were issued by the same Bishop against the soldiers of Ireland in 1920 and 1921 when we were at death-grips with the “Tans.” Neither can I forget his silence when four young Irishmen were pulled out and murdered in 1922. If he had broken his silence then he would have spared many a good life. I think his pronouncement now, when his relatives are breaking the law, when their cattle are being seized for unpaid annuities——

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Deputy should speak very carefully on matters involving any charge against any person not here to defend himself, and particularly a person so distinguished as the Bishop to whom he has referred.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  May I point out that Deputy Fitzgerald-Kenney based a very large part of his speech—he quoted them in full—on the remarks of the Bishop of Cork, and made charges against this Party?

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I do not wish to go into that matter at any length except to make these two statements. I think I would not be doing my duty to my people if I did not make them. As far as Deputy Fitzgerald-Kenney's statements to-night are concerned, we all know the difficulties that the Minister for Justice and the Attorney-General had to contend with. We all know the kind of a Gárda force they got over. We cannot blind ourselves to the Gárda force that was there for 12 years—that was being taught every illegality—a Gárda force in which an assault on an unfortunate I.R.A. man was considered a step to promotion. We cannot forget these things and, therefore, we cannot forget the difficulties [152] there were in weeding out that particular murder gang that was introduced here, and that has labelled the Deputy opposite for all time as the Deputy of the kicking cow.

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  The last speaker dealt with old history. It would be well for everybody, and particularly for the country, if as much of that history as possible could be forgotten. I do not see what use it is to anybody at this time to be recalling that history. There is one comment to be made on the speech made by the last speaker, and who has now left the House, that it squares very badly with the present tactics of the Government. Some years ago some of the Gárda Síochána were charged with being a murder gang. Does the Deputy not realise that when such charges were made they were made against our own countrymen? I think it was very bad taste to make such charges against any body of Irishmen. If it was right that the law should be obeyed at Marsh's Yard, it was equally right that the law should be obeyed at the time Deputy Corry spoke of. When the Deputy referred to Deputy Fitzgerald-Kenney and the kicking cow, and what that is associated with, he should remember that Deputy Fitzgerald-Kenney was only administering the law as Deputy Ruttledge, the present Minister for Justice, is administering the law.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Deputy Fitzgerald-Kenney never administered the law.

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  I do not think that the reaping up of old sores of that kind is going to do any good. At best all who do that from a particular point of view, only level charges against a body of Irishmen. Outsiders can only say to it: “Well, that is the Irish. What else can you think of them?” If what produced the occurrence at Marsh's Yard was faced up to in a proper manner, this question could have been dealt with long ago, and the extra charges that have to be borne by the Exchequer would not arise. Under the gag and the closure we were prevented from developing an aspect of this question that impinges on the Vote for [153] Law Charges. The Minister for Agriculture remarked, by way of a challenge, that if any Deputy wanted to put down a motion time would be given for its discussion. The Minister for Finance tried to build up a case for the payment of imaginary sums to help the agricultural industry. The climax or anti-climax of Marsh's Yard is connected with Law Charges and arose out of the Government not facing up to the situation that was created here. That situation was created owing to the economic war, and the withholding of payments to England. I am not going into the rights or wrongs of that now. The money was diverted from England. As a result our Government benefited by the amount diverted but did not compensate the people who had paid. In that way the Government was false to the farming community.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The attitude of the Government to the farming community is not relevant to this Vote.

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  It produced the Marsh's Yard occurrences, which were discussed by the last Deputy. Statements were made that other people rushed young fellows up there in lorries and that the Guards fired on them. I heard the Minister for Justice saying that the Guards who shot young Lynch were promoted. I do not want to identify anyone, but it was stated that there was promotion. I am not saying that the Minister said it was any particular Guard who shot at young Lynch was promoted. I was a charge under this Vote for Law Charges but that may not be for the year under review.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  The Deputy paid his share.

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  Yes. Was there anything wrong about that? I paid my share when the Minister did not pay his share. He incurred expense equally with the Deputy. He is going away and can take that with him. The Attorney-General came into the case. I have nothing to say to the Attorney-General for the way in which he conducted [154] that case. I hope he has nothing to say to me. I made the best case I could and I was convicted and had to look pleasant. I put it to the Attorney-General that all this agitation and all the passive or active resistance has come about because of the position in which these people found themselves. There has been a charge on the Exchequer and that charge will continue to increase on this Vote. The Government should be above sections and should accept a challenge when it has been given. It has often been stated that there was an organised decision not to pay. I am putting another interpretation on that. I put it to the Attorney-General that he should advise the Executive Council to face up to the situation, and to investigate the cause of the trouble. As far as an individual could do that, I did it by Questions in this House. There was a motion on the Order Paper in connection with the matter, if it has not been forgotten. I should like the Attorney-General to have the matter faced up to. From what I know of the Attorney-General he must consider his duty unpleasant, because no Irishman wants to be the agent for prosecuting people of this class. The Attorney-General should put it up to the Government—probably it would be best to put it to the President—to investigate the position of the agricultural community, arising out of the mix-up with England during the last two or three years, seeing that it is increasing Law Charges, police charges and in a variety of ways is bringing the new section of the Gárda Síochána more or less into contempt. There is a popular belief in many quarters that that section of the Guards is being used for a certain purpose. I know that they are being used. Deputy Corry referred to people who put young fellows into lorries and ran them up against the law at Marsh's Yard. Why do not the knaves up along the Border, who have the police acting as their agents in Clonmel and Fermoy, come into the open? I know what I am talking about when I say that, and I can give the Attorney-General the names.

[155]An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Is the Attorney-General responsible for the administration of the Gárda Síochána?

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  He happens to be the occupant of the Government benches now.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  That is a different thing.

Mr. Belton: Information on Patrick Belton  Zoom on Patrick Belton  I suppose he may be deemed for the time being to represent that arm of the law. If anything occurred the Attorney-General would very soon come into the matter I am now discussing. I know that he came across my path. The sore is there, and the only way it can be dealt with is by the peaceful way of an investigation. These people rightly or wrongly —I say rightly—hold that they are suffering under a great grievance Why is it not investigated? If it was investigated, and if there was a decision on it, no matter what the decision was, the position would be very different from what it is now. Those people believe they have paid already, and they look upon it as robbery under arms to make them pay again, and that is how I look upon it. For any man to be forced to pay his annuity by the Government at present, and for Government money to be spent on its collection, I consider as bad as if the Government went up to a man and put a revolver to his head and threatened to blow out his brains if he did not hand over his purse. That is my honest conviction and that is the honest conviction of thousands, and even hundreds of thousands, of people in this country. Why is it not investigated?

I am sorry that the Minister for Agriculture is not here at the moment. When he was here he said that if anybody “over there”—with a wave of his hand—would put down a motion to discuss agriculture, time would be given to them for its discussion. As I say, I am sorry he is not here now so that I could question him, but I will ask him for time at the first opportunity. The Attorney-General comes into all these cases by virtue of his office. Before arraigning people before [156] a Civil Court and charging them with these things, would it not be better for the country if these things never happened? If there is any chance of preventing that offence being committed, would it not be the best thing to try to prevent it, and why is not every avenue exhausted? The people believe that they have paid already, and why is not their claim investigated? I hope that the Attorney-General when he is replying will tell us why it is not investigated, or will he promise to use his influence in the proper quarter to have the matter investigated?

Mr. Morrissey: Information on Daniel Morrissey  Zoom on Daniel Morrissey  I want to approach this matter from a different angle. I should like to draw the Attorney-General's attention to the matter of the employment of counsel by the Attorney-General in many of the cases which have been brought before the courts and, particularly, before the Military Tribunal. It is the opinion of many people and, speaking as a layman who does not know very much about the legal side of things, it seems to me also that the Attorney-General appears to want to have a full array of counsel even for what might be looked upon as a comparatively simple case. I have seen a case where there were as many as four senior counsel with one or two junior counsel engaged.

The Attorney-General:  That was only in one case.

Mr. Morrissey: Information on Daniel Morrissey  Zoom on Daniel Morrissey  It seems to me that when the Attorney-General is dealing with public funds or when it is a case that goes against the prisoner, we have this array of counsel. The Attorney-General says that it only happened in one case. Would that be the case where the counsel employed by the Attorney-General demanded double the fees usually received?

The Attorney-General:  If the Deputy wants the information I shall give it to him.

Mr. Morrissey: Information on Daniel Morrissey  Zoom on Daniel Morrissey  I am making the statement, according to the information given to me, that in one case where the Attorney-General employed more counsel than it is the custom to [157] employ on a case of that sort, the case having gone in favour of the State, the counsel employed by the Attorney-General demanded fees which, I am informed, were nearly double the fees which would be ordinarily given. I dare say that those fees are subject to review by the Master or somebody else. Speaking as a layman, I do not know whether they are or not; but that is my information and I should like to get from the Attorney-General, when he is replying, some information as to whether there is a basis upon which counsel are employed or whether it is just a case that the Attorney-General takes a sort of humour and says: “We will have two senior counsel and one junior counsel on this case,” or “We will have one senior and just a junior counsel,” and so on. On that point also, I should like to know whether it is on the Attorney-General's instruction, and at the public expense, that we have counsel for the State going into court in certain cases and giving lectures on the different forms of republicanism. We had a notorious case a few months ago of a counsel appearing for the State as Prosecutor getting up in court and spending hours giving a lecture to the court and to the prisoners on the reasons why they could not claim the same continuity from the Republic as the President had claimed up to a certain period. Are we to pay public funds for that sort of performance, or are counsel to be allowed to drag in any irrelevancies so as to get refreshers —I think that is what they are called —to add to their own fees? Was it on the instructions of the Attorney-General that this imposing performance took place on that occasion? I must say that I am quite certain it was not on his instructions that that was done. I am sure that the Attorney-General was as surprised, and perhaps as disgusted, as anybody else in the country when he read this statement in the courts. The prisoners were not professionally represented and the counsel took advantage of that fact and proceeded to expound how the constitution of the I.R.A. of to-day differed fundamentally from the [158] constitution of the I.R.A. when the present Minister for Industry and Commerce was Minister for Defence in 1925 or 1926, before his Party came into this House; and proceeded, at the expense of the State—money which we are now asked to sanction here in this House—to lecture these misguided young fellows upon the error of their ways and to point out to them the statement made here in 1927 or 1928 by the President—then leader of the Opposition—about claiming that the rightful authority existed outside of this House and that he could claim the same continuity with those he had left outside in the wilderness as he had claimed from 1921 onwards.

Surely, we are not to be asked to pay money for performances of that kind and to be put in a position where lawyers who, very recently, so far as the majority are concerned, became supporters of Fianna Fáil, are to be employed—four or five of them at a time—and paid at the State expense? That has happened in the last 12 months. It is known to every Deputy in this House, and I say that the Attorney-General has a very strong responsibility in the matter seeing that he is in the position of accounting for the expenditure of every penny in this Estimate. I submit that he is not at liberty to employ more counsel than is necessary in order to see that justice is secured, whether the case is before the Military Tribunal or the ordinary courts.

There is one other matter to which I should like to refer before I sit down. I think that there does not seem to be what one might call that strict impartiality that there should be. One reads in the papers—personally, I am speaking here altogether of things I have read in the papers—of members of some organisation and some who were not members, or alleged that they were not members of any organisation, being brought before the district justice on serious charges—far more serious charges than other charges levelled against members of other organisations who were brought before the Military Tribunal. The Attorney-General knows that people belonging [159] to the I.R.A., or who were alleged to belong to it, have been brought before the district justice on a charge of possession of arms, whereas in other cases, which ought to be quite simple cases, men were brought before the Military Tribunal because they were, or were alleged to be, members of the Blueshirts. If that is a fact, it seems to me that it is something the Attorney-General ought to be ashamed of. I should like him to deal with that matter when he is replying.

The Attorney-General:  If it is a fact, the Deputy should give me the particulars.

Mr. Morrissey: Information on Daniel Morrissey  Zoom on Daniel Morrissey  As I have said [160] already, I only know this from what I can gather from the newspapers. That is my only means of finding out the facts, and I have read in the newspapers of cases brought before the district justice which were far more serious than other cases that were brought before the Military Tribunal. I make that allegation now and it is for the Attorney-General to deal with it when he is replying.

The Attorney-General:  I cannot deal with it unless the Deputy gives me the particulars.

Progress reported.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 10th July.


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