Wednesday, 7 May 1969
Dáil Eireann Debate
Mr. M.J. O'Higgins: I am not making an important point about it but I should like to ensure that Deputies will be clear in their minds. There is amendment No. 8 on the main sheet and amendment No. 8 on the supplementary sheet and it so happens that both are related to the same section.
Mr. M.J. O'Higgins: I would have thought that the way to do it would be to have all the names of those supporting this amendment on the amendment listed on the supplementary sheet. It does not really make any great difference.
This amendment has been discussed for some time and the Minister, so far, has not shown any inclination to accept it. I want to urge him to reconsider his attitude with regard to it. Subsection (8) of section 12 is the subsection which imports into later sections in the Bill the power to arrest without warrant. I am suggesting in my amendment that this subsection should be deleted, that it is unwise and unnecessary to carry the power of arrest without warrant into the subsequent sections of the Bill comprised in Part VI of the Bill as the Minister  would have us do if this subsection remains in.
As I said in the course of the Committee discussion, I regard this as one of the most important amendments being proposed to this Bill. I referred in earlier contributions to the effect which this will have in relation to some of the sections contained in Part VI of the Bill if it is allowed to remain unaltered. I indicated that I proposed to say some words with regard to its effect on sections 28 and 29 of the Bill. It is correct to say that the Minister in amendments which he will move later on proposes to modify the proposals contained in sections 30 and 31 of the Bill as the Bill now stands, but there are no proposals from the Minister, other than what might be regarded as drafting amendments, in relation to sections 28 and 29 with the exception, of course, that the House has already agreed to an amendment in the definition section which has an effect, so far as these sections, in particular section 28, are concerned. That is the amendment which would enable the meetings contemplated in section 28 to take place in a building. Apart from that, there is no substantial amendment proposed by the Minister in relation to either section 28 or section 29.
Under the subsection which we are discussing at the moment—subsection (8) of section 12—it is proposed that in relation to offences under section 28 or under section 29 or under the other sections in Part V of the Bill, the Garda authorities will have power of arrest without warrant. I want to view that, and I want the House to view it, first of all, in the context of section 28 of the Bill. The House will know that section 28 deals with two things. It deals with meetings, processions or demonstrations held within half a mile of a building in which the Houses of the Oireachtas are sitting. It deals also with a public meeting, procession or demonstration relative to civil or criminal proceedings. So far as the first part is concerned, that is its relation to meetings, processions or demonstrations within half a mile of any building in which a House of the Oireachtas is sitting, it is necessary  that in order to become unlawful and in order to be an offence under this part of the Bill, the meeting, procession or demonstration should be calculated to influence or affect the deliberations of either House of the Oireachtas. There is a very important distinction between the phrase used in relation to a meeting, procession or demonstration which takes place within half a mile of Leinster House and the subsequent provisions in subsection (3) of section 28 in relation to a public meeting, procession or demonstration relative to civil or criminal proceedings.
The first distinction is that, so far as the Houses of the Oireachtas are concerned, the demonstration or meeting, as the case may be, must be calculated to influence or to affect the deliberations of the House but in relation to court proceedings, whether they be civil or criminal, it is not necessary that the meeting or demonstration should be calculated to affect the deliberations of the court. All that is necessary in order to render the meeting, demonstration or procession unlawful is that it should be relative to civil or criminal proceedings pending or at hearing in any court. I feel that that puts the matter very far indeed. So far as I can see it means and states that if any meeting of any description, if any demonstration of any description, if any procession of any description is held which has any reference to civil or criminal proceedings, either pending or at hearing, an offence will be committed, and any person who takes part in any such procession, demonstration or meeting is liable, under the subsection, which I seek to have deleted from this Bill, to arrest without warrant and that notwithstanding that there is no limitation as to distance in regard to any such meeting, demonstration or procession. Under the provisions of section 28 linked with the provisions of section 12 (8) it would be possible and open to the gardaí to arrest without warrant a person who attends a meeting in Cork or Mayo or Meath which has any reference to or connection with a court case listed for hearing in any of the courts sitting in Dublin, whether or not the case is actually at hearing,  because the phrase used in subsection (3) of section 28, is “any public meeting, or procession in or through a public place, or demonstration in a public place by one person or by two or more persons, being relative to any civil or criminal proceedings which are pending or at hearing, shall be unlawful.”
If a situation should arise in which people wanted to hold a public meeting or demonstration, even if the demonstration was by one person, even if that person was honestly and conscientiously convinced in his own mind that an injustice was being perpetrated in the courts, that proceedings were being brought of either a civil or criminal nature, in a manner in which a person or people were being victimised either because of religious or political beliefs or anything else, if that person uttered a single protest by way of demonstration, even though he might be 100 miles away from where the court was sitting, he would be liable to arrest without warrant under the provisions of subsection (8) of section 12.
As I say, there is no limitation as regards distance such as there is in the earlier part of section 28 in relation to the proceedings of this House or of Seanad Éireann. Not only is there no limitation as regards distance, but the demonstration, or criticism, or whatever it may be, need not be calculated to influence the mind of the judge, or to have any effect or bearing on the decision of the court. Any reference good, bad or indifferent, to court proceedings, whether of a civil or a criminal nature, renders a person under subsection (3) of section 28 coupled with subsection (8) of section 12, liable to instant arrest without warrant.
That is an enormous power for the Minister to ask us to give to the police force of this country. I do not think it is necessary or desirable, and I do not think it is a power that we in this House should sanction. If there were any reason for it, if an emergency situation had arisen which would justify the Minister in coming to the House and looking for special powers in order to deal with it, that would be a different position. We would be considering it in emergency conditions and in an emergency situation, we could look at it through the eyes of  people living through an emergency, but that is not what is suggested here. What the Minister is asking us to do is to write into our permanent legislation this immense power of arrest without warrant in the circumstances which I have outlined.
Since we last discussed this matter in this House I gather from a report in the Irish Independent of Monday, 5th May, that the Council of the Association of Irish Jurists have sent a memorandum to the Minister on this topic. It is well that we should know what a body such as the Council of the Association of Irish Jurists think of the kind of provisions which the Minister asks the House to adopt. According to that report:
The Council of the Association of Irish Jurists is of the opinion that, while some of the provisions of the proposed new Criminal Justice Bill will effect praiseworthy reforms, much of the new law would be to the detriment of the citizen.
“The law has always recognised the dangers of permitting the arrest without warrant of a person for an alleged breach of the peace which the arresting officer did not witness. This attitude of the courts is due to their recognition of the fact that ‘breach of the peace’ is an ill-defined concept.”
I want to get on to the part of the report which is relevant to what I am talking about now. I can deal later with the views of the council regarding the provisions dealing with breaches of the peace which we have discussed to some extent already. Later on in the  course of the report we find the following:
Regarding the prohibition on demonstrations relating to civil or criminal proceedings, the Council feels that the right of freedom of demonstration and assembly would not infringe the right of every citizen to a fair and unprejudiced trial, if the prohibition should relate solely to demonstrations outside a half-mile radius of the court.
I know quite well that Deputy O'Higgins is well aware of the fact but it suits his purpose to shout: “Wolf, wolf” and particularly it suits his announced purpose, and that of his Party, of holding up the progress of this Bill. Little cares he about the man with the flick-knife, little cares he for the man with the bicycle chain. His only interest is a narrow political one—the hope that he can raise doubts in the minds of certain people outside this House and use them as political footballs.
There is a suggestion by the Minister that I have no regard for the victims of flick-knives or bicycle chains. The Leader of my Party, Deputy Liam Cosgrave, for years has advocated from these benches that legislation should be introduced in this House to control the use of flick-knives.
Mr. M.J. O'Higgins: I think it is due to the determined effort made by Deputy Liam Cosgrave in campaigning for such legislation that the provisions of sections 22 and 23 have been introduced in this Bill. I want to make this offer to the Minister. If he will bring in a new Bill or another Bill, a short Bill, containing sections 22 and 23 of this Bill—and I am fully authorised by my Party to state this—my Party are prepared to give him all Stages of such  a Bill in one day. If he is not prepared to bring in such a Bill, we will do it for him, and we will see whether or not the Minister will oppose it.
Mr. M.J. O'Higgins: We are not prepared, for the price of including in this Bill the provisions of subsection (8) of section 12, to be offered the Minister's package deal. There are some provisions in this Bill that we want to see implemented. If the Minister will introduce such a Bill we are prepared to give him all Stages without delay, but we are not prepared to agree to the provisions of subsection (8) of section 12 extending the power of arrest without warrant in the cases which are mentioned in Part IV of the Bill in relation to offences which will be created, if this Bill passes, under section 28 or section 29 or, as the Bill stands at the moment, under section 31; nor am I prepared to agree that the power of arrest without warrant, which the Minister proposes should apply to section 33 dealing with public meetings, should be given to the Garda authorities.
The Minister himself in dealing with section 33—I am not sure of this; it is some time since I looked at it but I think it is referred to in the  Explanatory Memorandum—pointed out that the provisions of section 33 in relation to public meetings are already contained in the Public Meetings Act of 1909. The Minister is quite right; they are, and they are brought virtually word for word from that Act into section 33 of this Bill, with this fundamental difference, that under the law as it stands, under the Public Meetings Act, there is no power of arrest without warrant in cases where the Garda themselves do not witness a breach of the peace such as would be caused by disorderly conduct at a meeting.
It is proposed via subsection (8) of section 12 to incorporate into section 33 authority to a garda to arrest without warrant on somebody else's information if there is disorder at a public meeting. It is not necessary for the garda himself to witness the disruption, disorder, call it what you will. It is not necessary for the superintendent in the area to send men out to control, if control be necessary, a public meeting. He will be authorised hereafter to act on the information of anyone who goes to him and tells him that so-and-so created a disorder at a meeting and he will be entitled to arrest without warrant. He will not even have the trouble of going to get a warrant for arrest. If this is carried I shall have some more to say later about the importance of its effect in relation to section 14 of the Bill, where the power of search without warrant will also be given via this section we are on at the moment.
Mr. M. O'Leary: The Minister has said that he would allow for change where he considered cases were brought against sections of the Bill which a wide cross-section of people feel should not be included in this legislation. Since there is widespread opposition in this House among Members of the Opposition to subsection (8) of section 12, would the Minister give an undertaking either to withdraw it or to give further consideration to some of the opinions expressed on it? A case has not been adequately made by the Minister for this provision or for other provisions in the Bill, and in the absence of a case being made we are  forced to oppose this section. No one should lightly suggest that the power of arrest without warrant be given over to the members of the Garda, and this is what is proposed. It is also proposed in Part VI dealing with the requirements of a public meeting to give a very wide scope in relation to power of arrest without warrant.
The case has been made here, and possibly will be made again in the course of the passage of this Bill, that to give very wide powers to a police force of any democracy must lead that force into disrepute and do the very opposite to what would be intended. Nobody can give exactly the background thinking which went into the composition of this Bill, but this is too fundamental a change to be brought in on the basis of a few scare stories about demonstrations in Dublin in the past year or two. It is ironic that we should be discussing sections of a Bill designed to give unnecessary powers to gardaí and restricting the rights of public assembly when we know in another part of this country people have been opposing these restrictions tooth and nail over the past year. Only last week in Dublin one of the MPs who was engaged in the campaign for civil rights in the northern area had reason to criticise the Minister's measure. In view of all these circumstances would the Minister agree that if we are concerned for the standing of this Parliament this is the wrong time—it is wrong at any time but particularly wrong at this time— to bring in a Bill with such provisions when our own fellow countrymen have their backs to the wall fighting the Unionist administration in Belfast?
Mr. M. O'Leary: Yes. We are dealing with powers of arrest without warrant, and in Dublin last week Mr. Ivan Cooper addressed a meeting representative of all shades of political opinion and criticised this Administration for bringing in this Bill. He said he regarded it as a stab in the back to the civil rights movement in the north of Ireland that this Government should bring in a Bill with these wild provisions at this period.
I should like to ask the Minister whether he would consider withdrawing this provision. He has made speeches over recent months in which he said the Bill we have before us is not in its final form, that he is ready to withdraw sections which, having listened to arguments in this House, he would himself feel should be withdrawn. I should be interested to know what the Minister has to say on this amendment and whether or not he is prepared to give way because we feel very strongly about it, strongly enough to keep talking about it for quite some time to come.
Mr. Dillon: The attitude from this side of the House is an attitude reasonably designed to get through this House a Criminal Justice Act which will command the support of the people. No Criminal Justice Act that does not command the support of the people is enforceable by a constitutional Government such as we have here in the Republic. Any Criminal Justice Act that this Oireachtas passes can be enforced, if the people understand it, because the Government of the Republic has a moral responsibility to enforce it. I followed the arguments advanced by Deputy O'Leary, but I am bound to concede that some of the people speaking at these meetings were saying a great deal more than their prayers. Nevertheless, I have considerable sympathy with them. Deputy Michael O'Higgins and I are experienced practitioners in this House. I would draw attention to the fact that we are now dealing with a Bill which has been two years in print.
Mr. Dillon: There are now two sheets of amendments to this Bill. Mark you, one wants to be pretty skilled in the practice of this House to weave these two pages of amendments into the original text of the Bill and get a clear view of what the Bill will ultimately look like if some of these amendments are incorporated in it. None of us knows with any degree of precision which of the amendments on these two sheets will be incorporated in the Bill. The Minister makes the case that this amendment is put down on the presumption that Part VI of the Bill will be the same at the end of the discussion on this Committee Stage as it now is, whereas the Minister says he has indicated on the amendment sheet that it will not be the same.
I put it to the Minister that, if our purpose is to carry a free people with us in such amendments to the criminal law as may be requisite to the situation obtaining in this Republic, the sensible course is to withdraw the Bill and incorporate into a new Bill the amendments the Minister intends to make, which are already printed on the amendment sheets, and any other alterations he may feel it requisite to make in the light of the discussion that has gone on so far. Then we would all know what we were talking about and what is much more important, the people would know what we were discussing in this House. The present situation is that nobody has any very clear idea of what it is we are discussing because, despite what the Minister said, we are entitled to proceed until we reach the Minister's amendment on the assumption that Deputy Michael O'Higgins's amendment is moved to the Bill as it at present stands. One of the Minister's principal defences is that the Bill is not going to stand in that way when he finishes amending it.
I understand that within a very short period—early in June—we will have a general election and the prospect of this Bill passing all Stages, with the other business that will have to be transacted between now and the general election, is very remote. Under our procedure, if it does not pass all Stages before then it will have to be dropped and it will have to be reintroduced  into the next Dáil. I shall not be here to discuss it then, but I am suggesting to the Minister now that it cannot possibly make any difference to him to drop it now.
Let us drop this blooming Bill. It has got too riddled with amendments. It is incomprehensible. Let the Minister agree with Deputy Michael O'Higgins in regard to flick knives and offensive weapons such as bicycle chains and so on, which the court might reasonably hold to be offensive weapons, having regard to the surroundings and circumstances in which they were produced or used, and let him bring in a short Bill to deal with these. We will give it to him. He will get it through the Oireachtas, I imagine, in one week and have it enacted into law before the general election. There will be no quarrel on the more abtruse issues that we are at present engaged in discussing. But it is unreasonable to say to us here that we ought not to protest against very considerably expanded powers of arrest without warrant for the purpose of Part VI of the Bill we have before us, because on the Minister's argument, Part VI of the Bill is not what will be there by the time this Bill leaves the House. I do not know whether or not that is, in fact, the case, but the Minister himself must recognise that it is for the purpose of the records. We have got to challenge subsection (8) which Deputy Michael O'Higgins has moved to delete because, in our judgment, subsection (8) as incorporated in the original Bill is quite unthinkable.
I know, and every experienced Deputy knows, what is happening. This Bill was drafted about two years ago. I think Deputy Brian Lenihan was Minister for Justice at the time. Now everybody knows that if there is one mouth in the whole parish into which Deputy Lenihan, now Minister for Education, could put his foot, that mouth will be found by Deputy Lenihan and he will put his foot in it. The last time he did that was on the occasion of the Succession Bill and, having got his foot inextricably caught in his own back teeth, he went down to Deputy John A. Costello and asked him: “Would you, for God's sake, extricate my foot because I cannot  do it” and Deputy Jack Costello, to my mild indignation, took him by the hand, rewrote the Bill and said: “The best thing you can do, Brian, is to drop the Bill you have and introduce a new Bill” and, as far as I know, that new Bill was substantially drafted by Deputy Costello and Deputy Brian Lenihan came in here with the new Bill, which was passed into law after some discussion.
In regard to the present Minister for Justice, Deputy Moran's facility for putting his foot in his mouth is not quite so notorious, but he has a habit of becoming like a bulldog; he has got his teeth into this blooming Bill and he is going to bully and batter his way through this House. If you have a clear majority in Dáil Éireann it is, of course, physically possible to do that, but it is very bad Parliamentary procedure. Over and above that, it is very bad public relations. I think there are a great many perfectly decent people who are honestly bewildered, who do not understand that they are not still, in good faith, discussing the Bill as it was originally presented.
The whole atmosphere of this discussion would be radically changed if the Minister now dropped this Bill and brought in a new Bill. If the Minister dropped this and brought in a new Bill, I think he would probably get passage of the new Bill with reasonable celerity. I feel embarrassed trying to argue the merits of this amendment because I think this amendment ought to be pressed by Deputy Michael O'Higgins, whether the original section or the Minister's proposed amended section is considered in relation to it. However, there are other amendments here standing in the name of the Opposition which I think probably would be redundant if a new Bill were brought in, including the good provisions, about which we are all agreed, and an amended version of some of the other provisions about which there can be legitimate difference. I cannot see why the Minister will not do it. I could understand it if he was in the embarrassing position of having brought this Bill in its original form to the Government and recommended it to his colleagues in  Government and was now constrained to go back to the Taoiseach and to say: “This Bill was not well drafted. I should not have recommended it to the Government and I am now asking leave to drop it.” That is not the position.
The position is that the Minister found himself inducted into the Department of Justice and carrying a Bill in which he himself declares he does not believe and which he himself said he would not bring to the House without undertakings given to the House to gut the Bill substantially in regard to Part VI. We in the House understand the significance of such undertakings on the part of the Minister, particularly when they are sustained by a printed amendment, but 90 per cent of the people outside do not understand it. Mind you, it would have a most favourable reaction on the public mind if the Minister said: “It is better to drop this Bill and to get this thing straightened out.”
Deputy O'Leary referred to Mr. Hume and I thought he was going to refer to Miss Bernadette Devlin prancing about here in the Republic. My advice to them is to demonstrate their prowess in the Six Counties and, if they are as effective in the Parliament of the Six Counties as is the Opposition in the Oireachtas of the Republic, we shall find solutions for our mutual problems much more expeditiously. I do not believe we are confronted with the same problem as they are confronted with. Miss Devlin is dealing with a Government which has no moral authority. She is dealing with a situation in which the Government is an ascendancy Government. We are not dealing with such a situation. We are dealing with a legitimate Government. Our solicitude in this House ought to be to see that our people recognise that legitimacy and recognise that the natural tendency of an Executive to ask for excessive powers is prudently restrained by a representative Parliament in the Republic and that rational argument will carry conviction to the mind of a rational Minister. Why the Minister for Justice does not accept that point of view, I cannot imagine. If he feels himself gravely embarrassed  by the lack of power to deal with offensive weapons, we shall give him that power in 48 hours.
Mr. Dillon: I urge him to re-draft this Bill and to bring it back to the House. We need not have any long Second Stage debate on such a redrafted Bill. We can amend it in Committee and differ, if we must differ, genuinely about certain matters and argue them exhaustively and take the judgement of the House upon them. I urge most strenuously upon the Minister for Justice not to present the appearance of saying: “Anyone who criticises this Bill is in bad faith” because it simply is not true and he is only creating an atmosphere which is inimical to himself and to his own Party. What does concern me is that the Minister can create an atmosphere which, in my judgement, can speciously be described by Mr. Hume or Miss Devlin as approximating to the attitude of the ascendancy Government of Northern Ireland. So long as we continue on the basis of the present Bill, there is a kind of specious justification for that allegation. I do not want that kind of publicity to be spread abroad about this country. Especially, I do not want that fraudulent alibi to be used by the ascendancy Government in Belfast who, if they accept the version of Mr. Hume and Miss Devlin, come to be in a position of saying: “Mr. Hume and Miss Devlin certify that the Minister for Justice in the Republic is asking for exactly the same powers as we are asking for here, no more and no less”. “We do not claim to know,” they will say; “We are accepting the certificate of Mr. Hume and Miss Devlin who visited the Republic and discussed this matter with public men in the Republic and who tell us that the Minister for Justice there is looking for the very powers that we are asking for here”. I do not want that to happen. I do not think it should happen. I do not think it need happen. I think this is the amendment on which that issue ought finally to be determined. I suppose the Minister feels it would be too revolutionary a gesture  to say here: “Let us drop this blooming thing. I shall bring in two Bills. One of the Bills I shall ask you to pass promptly because I need the powers at once to deal with offensive weapons. The second Bill will be a re-draft of the general Bill at present before you.” The effect of that, I think, would be wholly beneficial not only upon our own people but upon our international reputation as a Parliamentary democracy. I think that is a very precious position which Ireland at present occupies in the world. It is in the power of the Minister to enhance it.
I take no joy in having to be constrained to admit in public that Deputy Michael Moran, the Minister for Justice, had made a statesman-like gesture: I do not conceal the fact that I should be astonished if he did—but hope is the riches of the destitute. Even if I am destitute in the presence of a Fianna Fáil majority in this House, I hang on to the riches of hope that, some day, some Fianna Fáil Minister may act in a manner approximating to sanity and, in that hope, I urge on the Minister to drop this Bill and drop the course of action suggested by Part VI.
Mr. Moran: It would appear from what Deputy O'Leary said that he is not aware of the offer I made on the last day we discussed this Bill, which was to discuss each section in Part VI individually when the House comes to it and on a later stage to recommit amendment No. 8 for discussion again in the light of what may be decided on Part VI of the Bill. That offer was not acceptable to the House and since that form of procedure is not acceptable I have no option but to press here and now for the subsection as it stands. Obviously, whatever may be said about certain sections in Part VI, there are undoubtedly some sections in that Part in relation to which a power of arrest is vital. Let us start with another of Deputy O'Higgins's misconceptions. He was speaking about section 33 which deals with public meetings and he said, in effect, that this was conferring a power of arrest without warrant where the garda did not witness what had occurred. Of  course, that is not so. Section 33 states:
That section is a re-enactment of the Public Meeting Act of 1908. The Deputy's suggestion about a garda accepting somebody's word is totally and utterly misconceived in this connection. The garda who makes an arrest has got to be in a position to charge the arrested person and, therefore, has to have his evidence ready and give that evidence. It is, incidentally, rather peculiar that while I am accused of hindering public meetings, I am also accused of acting wrongly in giving the police power to interfere and stop people from breaking up meetings, which is what it would appear I am accused of here.
In section 12 (8) “A member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from or continues conduct which the member has reasonable grounds for believing to be an offence under Part VI of this Act”. Last week, before the debate on this Bill was adjourned, Deputy O'Higgins had referred to the power of arrest without warrant as it would apply under section 32, which is the section dealing with watching and besetting. Again, that is a re-enactment of existing law. The Deputy suggested that, if the Bill had been enacted at the time the offices of the Department of Agriculture were being picketed by farmers, those concerned could have and would have been arrested without warrant under the section so as to prevent what Deputy O'Higgins referred to as the orderly protest carried out at that time. Now, for the record, I want to point out that Deputy O'Higgins is utterly wrong in this contention also. If it had been desired to put a stop to the picketing engaged in at that time by  members of the farmers' organisation, that could readily have been done under section 28 of the Offences Against the State Act, 1939, which empowers the Garda to prohibit by notice meetings or processions in the public street within half a mile of the Houses of the Oireachtas. Alternatively, the Garda could have prosecuted those concerned under section 7 of the Conspiracy and Protection of Property Act, 1875, the relevant provision of which is being replaced, almost word for word, in section 32 of this Bill.
Mr. Moran: There would have been no difficulty in obtaining warrants for the arrest of those engaged in the picketing. In fact, section 32 is designed to deal with an entirely different type of situation. In the main, that section is aimed at the watching and besetting of private individuals. This is something which has been unlawful since 1875 and, in all probability, even before that. It is something about which I would have thought there would be no disagreement in this House. If I understand Deputy O'Higgins correctly, he objects to the Garda having power to arrest without warrant a person committing an offence under section 32. I would ask the Deputy and the House to consider what would be the practical alternative. Let us suppose someone who does not like the Deputy decides to watch and beset his private house with a view to compelling him to abstain from participating in an important debate here in the House. Naturally, the Deputy would be outraged and he would telephone the Garda to come and remove the source of this annoyance and threat so that he could go about his lawful business. The Garda tell him: “We will have to proceed by summons.” This procedure is going to take several days, at the very least, by which time those committing the offence may well have achieved their purpose. I ask the Deputy to say honestly whether he would be happy with such a situation. Whatever about Deputy O'Higgins, Deputies as a whole would not be happy with it.
 The section is intended to deal with the watching and besetting of people anywhere they may happen to be. For instance, if certain people do not like the colour of a man's skin they could watch and beset him not alone at his house but at his place of employment. When Deputies relate these two sections, one providing this power to prevent the break-up of public meetings and the other providing the power to stop people watching and besetting individuals, the need for subsection (8) is quite apparent. These are two important provisions of Part VI in relation to which the House as a whole, when Members come to consider them, would certainly insist on a power of arrest without warrant being provided.
Let me say for the record, and I will deal again with this on the proper section, that there is no comparison whatever between the powers in this Bill and those which are already in existence and being sought in Northern Ireland. I am not going to pursue that hare here and now, but when we come to the section dealing with public meetings I will make the position abundantly clear.
Mr. Moran: I wonder would the Deputy stand over many of the statements made by the same people. I am not concerned with what they say for their particular purposes. I am concerned with facts, and the facts are as I say and as I shall satisfy the House when we come to the relevant section.
Deputy Dillon and I think Deputy O'Leary referred to the question of amendments. I would point out that I have already accepted an amendment from Deputy O'Leary's Party for the purpose of clarifying the meaning of an earlier provision. I have also introduced amendments to spell out and clarify the intentions in a number of other sections and, when we come to the particular sections if an ordered and reasoned case is made on any point in connection with them. I shall be prepared to listen to it. I have done  so since the Bill came to the House. I have, in fact, introduced amendments to meet some objections that were raised. I have accepted an amendment which the Deputy's Party considered to be necessary. I know we can be going back and forward between Part VI and this particular subsection for a long time. The fact that the subsection is in this particular form does not mean that the House will be committed to every line in every section in Part VI when we come to discuss those provisions. I made an offer to recommit Deputy O'Higgins's amendment on the next stage but that was not accepted by the House. Whatever may emerge from our discussion on Part VI, it is clear that there are some sections in that Part in which this particular power is, in my view, essential. When we come to discuss these sections I believe this view will, in the main, be accepted by the House. Therefore, as this amendment stands, I cannot accept it for the reasons I have given.
Mr. M. O'Leary: Would the Minister say which are the sections in Part VI in which he considers subsection (8) to be essential without going into the matter too far? I know the difficulties of doing this but I should be glad if he would indicate the sections he has in mind, where this specifically applies, if that is possible.
Mr. Moran: In my view this power should be there in respect of the whole of Part VI with the exception of sections 30 and 31. Under the new section 30 which I am proposing in a later amendment, no question of an offence will arise. In the new section 31, on the other hand, provision is made for certain offences for which penalties are prescribed under a later section in Part VI but it would not be appropriate, nor do I seek, to have any power of arrest without warrant in connection with offences. I have brought in an amendment to subsection (8) of section 12 to make that clear.
Mr. M.J. O'Higgins: The Minister is entitled to make the best possible case in defence of this provision. He disputes the argument I made in  regard to public meetings and he gave the correct date of the Public Meetings Act which is 1908; I think I said 1909. I made a case and he seems to think I am wrong. If so, I should like to know precisely where I am wrong. I made the case that the position as obtaining at present under the 1908 Act is that any person who at a lawful public meeting acts in a disorderly manner for the purpose of preventing the transaction of the business of the meeting is guilty of an offence. That is the position at present and that is the provision which appears in subsection (1) of section 33 of the Bill. I say there is a vital distinction between the two in that at present there is no power of arrest without warrant in relation to the offence under the Public Meetings Act of 1908 except in the case where a member of the Garda sees the disorder and decides that it is a breach of the peace and, witnessing a breach of the peace, he is then entitled to arrest without warrant.
I further make the case that under section 33 (1) of the Bill it is not necessary for a member of the Garda to see the disorder at a meeting; that he is entitled to act on information supplied to him by somebody else. I should like to know where I am wrong in making that argument and if I am wrong, well and good. The Minister can satisfy the House that that is so. He has not satisfied me so far. He has referred—quite rightly —to the wording of section 12 (8) which is that “a member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from, or continues conduct which the member has reasonable grounds for believing to be an offence under Part VI of the Act”. I am relating that for the moment to section 33 in Part VI of the Act. The Minister seems to deduce from the wording of section 33 and the wording of subsection (8) of section 12 that a garda must witness the disorder at the meeting because he must be in a position to make a charge if he makes an arrest.
I do not think that follows; it may be what the Minister intends. I intended to raise specificially the wording of the  subsection on subsection (8) later; I might as well do it now. It is: “A member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from or continues conduct....” That warning need not be administered by a garda. It could be a warning administered by anyone as the subsection stands at present. As I see it—the Minister can show me if I am wrong where I am wrong—if I am presiding at a public meeting and somebody interrupts I can warn him. If he persists in interrupting after being warned by me anybody may then inform the Garda and the Garda are entitled to come and arrest him without warrant. Is that not the position under the proposals contained in this Bill? It may not be what the Minister intends should be the position but what will be interpreted by the courts is what is in the Bill when it becomes an Act and not what the Minister or any other Deputy intends. So, in order to trigger off this power of arrest without warrant under subsection (8) all we are saying is that a person should continue in a particular course of conduct after warning. It does not say who is to give the warning or that it must necessarily be given by a garda.
The Minister then referred to the Offences Against the State Act and the Conspiracy and Protection of Property Act of 1875 in order to demonstrate that in relation to the pickets placed on the Department of Agriculture and Fisheries some time ago by farmers that there was power there to deal with such picketing. I agree the power is there under the Offences Against the State Act and under section 7 of the Conspiracy and Protection of Property Act of 1875 and I am content that that power should remain as it is under the Conspiracy and Protection of Property Act, 1875. I would even be happy to some extent to see the provisions of the Offences Against the State Act—section 28, oddly enough, of that Act—also incorporated here instead of the provisions in section 28 of this Bill. I think it is better that this should be dealt with by ordinary legislation rather than that picketing or meetings within half a mile radius  of Leinster House should be regarded as offences against the State.
But, again, there is this vital distinction between the power the Minister now seeks and the powers that are there already in the Offences Against the State Act or the Conspiracy and Protection of Property Act, 1875, that while the powers are there, and powers quite adequate, to deal with such a situation as picketing of Government Departments, it is necessary for the Garda to get a warrant if they want to arrest the picketers and what the Minister is doing now is providing in this Bill that the gardaí can arrest in such circumstances without any warrant. That is the important distinction, as I see it, between the powers that are there already and the power which the Minister wants to incorporate in this Bill.
The Minister, again, in relation to section 32, which is the section dealing with watching and besetting, falls back on a line of defence that I am quite sure is perfectly bona fide but which to my mind just cannot stand up in court. The Minister says that what is aimed at in section 32 is watching and besetting a private individual. I am quite sure that that is what is intended but that is not what it says. Again, there is no reason to my mind why section 32, if passed by this House, should not apply exactly to the situation which arose here some time ago when the Department of Agriculture and Fisheries was being picketed by Irish farmers, who were doing it in an orderly way. I repeat that because the Minister seemed to challenge me on it arising out of what I said here last week. They picketed the Department in a perfectly orderly way, a perfectly orderly manner, in pursuance of their demands.
I think that the remedy so far as this Bill goes is what has been urged here by Deputy James Dillon and I know that there is great truth in what he says because I have heard discussions of this Bill and even though I am violently opposed to some of the proposals in this Bill I felt called upon on occasion to defend the Minister. I have heard  people discussing this Bill and saying that the Bill is going to do so-and-so and so-and-so and it might have been to my political advantage to let that idea run on but I had to pull it up and I said: “Yes, that was the Bill as originally introduced but the Minister intends proposing amendments which will materially alter that.” There is chaos and confusion in the minds of the people with regard to the Bill as it stands. There is a great deal of public uneasiness with regard to the Bill as it stands.
Some of the proposals which the Minister is introducing in relation to Part VI and the amendment No. 9, which is being taken with amendment No. 8, will mitigate the severity of the measure as drafted but that has not got home to the people. I attended the meeting in the Mansion House last Friday to which Deputy O'Leary referred. I was not speaking at it but I went along to hear the views of the speakers with regard to this measure. I want to say to the Minister quite frankly that there is a tremendous volume of public feeling against this Bill. It was quite clear to anyone who attended that meeting that that volume of public opinion against the Bill exists. The Minister would be wise to adopt the suggestions that have been made to drop the Bill completely and to come in with a new Bill dropping a number of the objectionable sections, dropping in particular the extension of the power of arrest without warrant.
I was surprised when the Minister intervened that he did not comment to the House with regard to the submissions which have been made to him by the Council of the Association of Irish Jurists in relation to this measure and in relation in particular to what I was speaking about regarding section 28— the extension of the power of arrest without warrant into section 28 in relation to civil or criminal proceedings. I think I am not wronging him when I say that the Minister was completely silent with regard to the case made in connection with section 28 and I do want to get the Minister's views on this and to try to draw from him what his intentions are with regard to section 28.
We have already heard from the  Minister on section 32 as to what he is aiming at. I do not think what he is aiming at is the only thing being captured under section 32. That is the whole trouble about a Bill of this sort. I want to find out now from him, in fact, what he is aiming at in subsection (3) of section 28 because, remember, the power of arrest without warrant is being imported into section 28 by means of subsection (8) of section 12 and subsection (3) of section 28 is the portion of this Bill which is making it an offence for any public meeting, procession or demonstration to be held which is relative to any civil or criminal proceedings either pending or at hearing and the case I make on that is that that, as the Bill stands, will be applicable regardless of the distance involved, will be applicable regardless of the nature of the discussion or demonstration that takes place. If any reference is made to a civil or criminal proceeding which is listed for hearing even though not actually at hearing, if any reference is made even though it is not intended to influence, even though it is not calculated to influence the court or the consideration of the case or the proper conduct of the case, the person who makes that reference, provided, of course, he gets a warning from someone—it need not be from a garda—and continues, will be liable to arrest without warrant by virtue of subsection (8) of section 12.
I ask the Minister is that so or is it not so. If it is so, and I believe it is so, then subsection (8) of section 12 imported into subsection (3) of section 28 of this Bill is setting a very dangerous precedent. It is giving enormous and dangerous powers of arrest without warrant. I do not think the Minister referred to that at all when he spoke some while ago. I invited him to do so because I think that this is a section that is of paramount importance to our consideration of this measure.
Mr. Dillon: I understood the Minister to say that section 32 of this Bill would substantially repeal the Conspiracy and Protection of Property Act, 1875. The Minister should show some understanding of this. I could  understand that if, when I looked at the Schedule, I found that the Minister had repealed the Conspiracy and Protection of Property Act of 1875, as he proposes to repeal a long list of archaic statutes. But when I look at the Schedule, as it appears on page 41 of the Bill, I find he is not repealing the Conspiracy and Protection of Property Act of 1875. He is repealing only paragraph 4 of section 7. It seems reasonable for a Deputy, who is not in a position to read through a list of repeals which must run into three figures and must consist of more than 100 repeals, to ask the Minister why he repealed paragraph 4 of section 7 of the Conspiracy and Protection of Property Act. Section 32 of this Bill does nothing except to lengthen a paragraph in the Minister's own Schedule.
Can the Minister find himself justifiably impatient with people outside the House who find it difficult to understand that problem? I find it difficult to understand. I could quite understand the Minister saying to us here: “We wanted to get rid of the Conspiracy and Protection of Property Act of 1875 because 95 per cent of that Act is no longer applicable, but we wanted to preserve one provision in it which prevented the unlawful besetting of an individual for the purpose of preventing him from going about his lawful occasions”. However, that is not the position. The Conspiracy and Protection of Property Act of 1875 remains fully enforced except in respect of paragraph 4 of section 7. That paragraph of the 1875 Act cannot contain much more than what is contained in section 32 of this Bill.
Regarding section 32 of the Bill and the rest of Part VI that we are arguing about, section 32 does no more than put back into our law what was already there. The Minister ought to explain why it was necessary to put in section 32 at all when he could have achieved the same purpose by omitting paragraph 4 of section 7 in his Schedules of repealed Statutes.
Mr. Moran: Deputy O'Higgins complains that I did not deal with the submissions made by the Association of Irish Jurists. I did not deal with them  for the simple reason that, in my view, it would be irrelevant to deal with them on this particular amendment. We are not now discussing section 28 and I will deal with the submissions when we come to that particular section. I only heard from the Association two days ago after their submissions had gone into print. On the Second Reading I dealt in detail with what we are aiming at in section 28 as to the stopping of the recent but pernicious practice of mounting demonstrations to intimidate the courts. When we come to that particular section I will again deal with this matter fully.
I thought it would be accepted in this House, as it is accepted in every other democracy, that the courts must be allowed to do their business with-out-being intimidated and without fear or favour. In fact, this House has passed a law which prevents newspapers from publishing reports of cases that are pending. I should imagine that it should be clear to everybody in this House that we cannot afford street trials in this democracy if it is to survive, that we cannot allow our courts to be intimidated about a case before it comes off and that it would be utterly wrong if the rights and wrongs of a particular case, be it criminal or civil, could be the subject of public controversy and discussion prior to its coming before the court and the judge.
I am sure that when we come to that particular section all Deputies in the House will see how essential the section is. I do not propose to deal further with it at the moment. Deputy O'Higgins asked me what was the purpose of it. I set it out fully in my Second Reading speech and I shall deal fully with it when we come to the section.
Deputy O'Higgins also asked me to say where he was wrong in dealing with section 33. When I said he was wrong I meant that he was wrong in saying that the police could act on any story by another person. The police can do no such thing under that particular section. They must have their evidence and a person must refuse to obey a request to leave the meeting. They could not arrest on the story of  anybody else as suggested by the Deputy unless they saw evidence there that a criminal offence had been committed—for instance, if they found a person whose skull was split open and they were informed that such a person did it. They would have to have evidence to justify making an arrest and I keep on saying that part of the legal process is that a charge follows the arrest.
A member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from or continues conduct which the member has reasonable grounds for believing to be an offence under Part VI of this Act.
It appears to me to be as plain as a pikestaff that the person who gives the warning must be the garda we are concerned with in this section. If the Deputy has any doubt about what I think is quite clear already, I will have that aspect of it examined between this and the next Stage of the Bill. I have made the intention clear in what I have said. I cannot get the meaning Deputy O'Higgins seems to read into it but, as I say, if on examination I find there is any doubt about my interpretation of it or the Deputy's I will have it examined.
I think Deputy Dillon was concerned about paragraph 4 of section 7 of the 1875 Act. The point is that paragraph 4 of section 7 of the 1875 Act is a provision dealing with a certain type of public demonstration. Part VI of the Bill was intended to get all the demonstration provisions into the law together. That also is the reason justifying the repeal and re-enactment of the Public Meetings Act, 1908. This is a consolidation measure bringing us up to date with the criminal law. The purpose of bringing those sections in was to have the relevant provisions of the law dealing with demonstrations and meetings all in the same Act and in the same Part.
Finally, as Deputy O'Higgins has come back to this, let me repeat for  the record that the picketing by the farmers could have been stopped under either of the two provisions to which I referred. Might I also point out it is not necessary to get a warrant under the 1939 Act in a situation of that kind.
Mr. Dillon: May I draw the Minister's attention to this. In regard to the Public Meetings Act, 1908, he repeals the whole Act. He presumably has brought back into section 6 whatever part of that Act he feels ought to be retained in the criminal law. When we come to the Prevention of Crimes Act, 1906, he has thrown aside the whole Act. He has in fact repealed only paragraph 4 of section 7 of the Conspiracy and Protection of Property Act of 1875. Therefore, the whole of that Act continues to be law with the exception of paragraph 4 of section 7. What I cannot understand is, if paragraph 4 of section 7 said no more and no less than section 32, what was the necessity of repealing paragraph 4 of section 7 and enacting section 32? I can understand the other case because the Minister was getting rid of the whole Bill, wiping it off the criminal calendar, but retaining the necessary part.
Mr. Moran: The short answer, of course, is that the Act deals with many other matters besides this particular one. The rest of the 1875 Act is not relevant to the provisions of a Criminal Justice Bill. It is not relevant so far as this Bill is concerned. On the other hand the whole of the 1908 Act, to which I have referred, is in section 32. It dealt solely with public meetings and consequently it was all repealed and we have it here.
Mr. M.J. O'Higgins: Could I ask the Minister this? He says the other parts of the 1875 Act are not relevant to a Criminal Justice Bill. Surely the first part of section 7 of the Conspiracy and Protection of Property Act, 1875 would in many ways be far more relevant to a Criminal Justice Bill than Part IV, which is the part he is repealing and re-enacting in this Criminal Justice Bill? Section 7 of the 1875 Act says:
 Every person who with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority
That paragraph 4 is being repealed. It is coming into the Criminal Justice Bill we have before us. Paragraphs 1,2 and 3, which I have read out, are not being touched. They are not coming into this Bill. Neither is paragraph 5 of section 7 of the 1875 Act coming into this Bill. This reads:
Mr. Moran: It is quite simple really, as I already explained to the House. This particular section deals with what I would call demonstrators. There may be two, three or four of them publicly watching or besetting a house. That is why this provision is being re-enacted. As I have already explained to the House, these are “demonstration” sections—the law on meetings and demonstrations, generally speaking. We are  not here re-enacting the whole of the criminal law. We are not attempting to do that. This particular provision is being re-enacted and so also is the 1908 Act, which deals with public meetings and demonstrations, because it was felt desirable to have all the different laws dealing with this matter in the one Act and in the one Part of that Act.
Mr. P.J. Burke: I was delighted to hear my colleague, the Minister for Justice, giving an explanation regarding the powers of the Garda to arrest without warrant because this part of the Bill has been completely misrepresented outside. It was implied at a meeting at which I was present recently that, if a garda did not like you, he could arrest you on the street. I have listened very carefully to the various arguments since I came into the House this evening. I heard people allege in Ballymun on Thursday night that a garda could arrest and charge you with something if he did not like the colour of your hair. I said this was not so at all, and gave an explanation of the section. We have a situation in Dublin where fellows have flick-knives and injure people. The injured people are afraid, even in their own homes, to give evidence against the people using the flick-knives on them.
Mr. P.J. Burke: We want our people free to walk through city and country without interference. I am delighted the Minister has given this explanation. I would be glad if the Minister would go even further and tell us the circumstances under which the Garda can arrest and so contradict the misrepresentation of this Bill made outside. I know the Minister is an able legal man. He is a democrat who would not give such powers of arrest to the Garda except in exceptional circumstances, perhaps in cases of rows or threats. The house of a public man may be picketed because of the way he voted in this House or because of a statement he made about a particular organisation. I believe such protection is necessary. The people most  anxious to condemn this section of the Bill are people who have no respect for the law. Statements were made in Ballymun that night which would be out of order in any democracy, or even in a dictatorship.
If by this Bill we can help in any way to preserve the freedom of our citizens in city and country we will be contributing something worthwhile to society. In parts of my area certain sections of the people have circularised others condemning us as undemocratic and dictatorial. These people want a free-for-all. Some of these people have very little respect for law or order themselves. The idea of representing us as going even further than they have gone in Northern Ireland is completely wrong. There is great freedom in this country. People can insult Deputies and even Ministers and get away with it. I am delighted to be here tonight to hear the Minister's explanation.
Mr. M. O'Leary: One way or another, we are all delighted to be here tonight. So far as the Bill is concerned, we all have a duty to see that this “best of all possible worlds” in which Deputy Burke is so happy to be living will continue to have some of its best and most bearable features.
Section 8 will mean that some features of this “best of all possible worlds” which we enjoy could disappear. We cannot look on this Bill with a black and white polarity of views. We cannot say that, on one side, we have parties with flick-knives who want to see anarchy installed in the country and city and, on the other, people like Deputy Burke who trust the Minister's good wishes and the good wishes of everybody all around and hope that everything will be for the best in this “best of all possible worlds”.
As members of this House we must look on the dark side of this Bill and see what might happen through court interpretation of the provisions of this Bill. We are in a difficulty on this amendment because the Minister indicates he is willing, if we are willing, to let the thing go for the moment, and to relate it later to Part VI. In Part  VI the Minister indicates that he would consider each section and listen to arguments as they are put. Part VI is the centre of hysteria in this Bill. Whether we like it or not, there is a hysteria involved in the creation of this Bill. The Minister has indicated that he is prepared to explain the basic motivation behind Part VI when we come to it.
The Minister said we cannot have street trials. This country, like every other country in Europe, has had its share of demonstrations and counter-demonstrations over the past year. Every democracy in Europe has had them. There is no need for the House to become hysterical or to think that the fabric of democracy is breaking up because of group marches here or there. The democracy which cannot survive with people marching does not have much confidence in its own future. I have confidence in the future of this democracy. We are not safeguarding democracy here by making a hysterical response to such manifestations by young or old people. There are many such demonstrations in European countries today; they have been a feature of these latter years of the 1960s. Anyone who appreciates what democracy is about should welcome the fact that nowadays people feel more strongly about matters relating to politics and the conduct of State policy. I welcome the widest possible interest in public affairs among people who previously had little interest in them. Many times in this House we have discussed young people having no interest in the world around them. We have spoken of young people having various vices. We must welcome this interest in public affairs as a new development. I hope that every young person in this country will continue to march for what he considers to be social justice of one kind or another. This Parliament does not earn respect for itself as an assembly of people devoted to giving the country the best legislation if we react hysterically to the occurrences of the past year.
Mr. M. O'Leary: Everybody is agreed that none of the Parties in the House have on their manifestos that we should have flick-knives. We are all agreed, Deputy O'Higgins did so on behalf of his Party, that we are quite willing to give the Minister a Bill which will give him all the power he needs to control the possession of offensive weapons——
Mr. M. O'Leary: ——bicycle chains, the lot. There are good sections in the Bill which none of us has any quarrel with, but there are ominous sections which all of us are worried about and our concern does not arise because of recent circulars from this or that group. It arises from our honest examination of the provisions of the Bill and our consideration of the way they can affect this democracy and the conduct of justice in general. The Minister has said he is willing to consider subsection (8) later in relation to Part VI. That is all very well but we do not know the Minister's mind on Part VI, which seems to me to contain totally unreasonable provisions. The Minister says he will deal with the matter we are now discussing when he comes to Part VI. He says he will tell us all but we are in the position of having to guess about what he means by telling us all.
Why should the Minister not deal with subsection (8) now? Why not withdraw it at this stage and, perhaps, re-introduce it when we come to Part VI when he comes to explain that part of the Bill? This would be fairer to the people who are opposing the Bill in good faith. When we come to Part VI, the Minister can give us the complete facts and convince us of the necessity for that Part. It will take some convincing but the Minister seems to think we can be convinced.
 The Minister has said that the parts of the Bill which we have been opposing cannot be compared with the Unionists' Public Order Act in Northern Ireland but spokesmen of the Unionist administration have used against civil rights spokesmen the fact that these provisions which we are opposing are being brought in in this Bill by the Dublin Government. This has been a serious embarrassment to Six County civil rights fighters. That should be remembered. It shows extraordinary insensitivity to their problems in the North that we here should be pressing on regardless with this Bill at this time especially when we have said that we have no quarrel with the parts of the Bill relating to such things as offensive weapons and to which Deputies from all sides of the House have referred and on which they have suggested there should be legislation.
The legislation we have got in this Bill would impose serious limitations on the liberties of our people and this means, in effect, that we are caught in the dilemma of having to oppose the Bill as it stands, even if some good sections must go with it. The Minister has said he is willing to accept amendments which he considers to be near to the point which he wishes to arrive at. He must be aware of the volume of criticism coming from people throughout the country who do not have much interest in political parties. He must be aware that wildfire opposition to this Bill is growing throughout the country.
We do not wish to have an election fought on our differences on this Bill but this is what we will have if the Minister does not rapidly realise that we are concerned with getting good legislation. I am far more concerned that we do not pass legislation which will be a threat to the liberty of individuals throughout the country. There is a hysterical heart in this Bill and that hysteria is included in Part VI. The sections which carry this hysteria include that dealing with arrest without warrant. All this goes back to Part VI and it is on that part of the Bill that the Minister says he will give us the full facts which, he has said, made it necessary to bring in such a Bill. I  repeat my request that the Minister withdraw this subsection and if necessary re-introduce it when we are discussing Part VI. Otherwise we cannot continue the discussion on a constructive level.
Mr. M.J. O'Higgins: I wish to make a few points arising out of what the Minister and Deputy Burke have said. On Deputy Burke's intervention, we should all be clear that the opposition to this subsection has nothing to do with flick-knives or other offensive weapons. It has nothing to do with keeping our city free for people to walk through it, or anything like that. Any discussion on offensive weapons will be on sections 22 and 23. As I said earlier—Deputy O'Leary has confirmed this from the Labour point of view—we are willing to give the Minister all Stages in one day of a Bill to legislate on the matter of offensive weapons.
That is not what we are discussing here. We are now discussing the power of arrest without warrant and its extension into Part VI of the Bill. One of the sections in Part VI is section 28 which deals with public meetings, processions or demonstrations within half a mile of the place where the Oireachtas is sitting and with such meetings or processions being relative to any civil or criminal proceedings which are pending or at hearing.
I spoke on the subject of civil and criminal proceedings and the Minister's reply was that none of us wanted intimidation of the courts—that we could not afford to have street trials. Nobody disagrees with the Minister on that point. In our approach to this matter, we are not advocating that intimidation of the courts should be allowed, that street trials should be allowed, that mob rule should prevail, but we are questioning the wisdom of and the necessity for extending the power of arrest without warrant in the circumstances suggested in section 28 (3). The wording of that subsection, when taken in the context of power of arrest without warrant, is far too wide. The Minister has met me to some extent in relation to my arguments in section 23 on the matter of public meetings: he said he is prepared to  have examined between now and the Fourth Stage the wording of section 12 (8). I am grateful for the Minister's undertaking to do that but I am afraid it does not induce me in the slightest to withdraw the amendment to delete subsection (8) and it does not induce me at all to minimise in any way the opposition which I feel is rightfully being made against this subsection. Subsection (8) reads:
A member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from or continues conduct which the member has reasonable grounds for believing to be an offence under Part VI of this Act.
The point in question is that it is not spelled out that the warning must be given by a member of the Garda Síochána. The Minister thinks that that is the intention. From his point of view he seems convinced that that is quite clear. I do not think it is. It is not said in the subsection and to my mind if a warning is given by anyone, in particular circumstances, that is enough to trigger off the operation of that subsection. I gave the example of a public meeting where an interruption is made and where the chairman warns the interrupter. I think that once that is done it can be said that under the subsection as it stands the necessary warning has been given and that if a further interruption is made from the same source then anyone may inform the Garda and the Garda may arrest without warrant the person who has interrupted because he has continued after warning. However, the Minister has agreed to have that examined.
Mr. M.J. O'Higgins: Subsection (8) of section 12 is the subsection which imports into section 28 of this Bill the power of arrest without warrant and I feel the House is entitled to consider, indeed, I believe the House is obliged to consider, the circumstances under section 28 where the power of arrest without warrant may be exercised. The point I am making is that if a meeting, procession or demonstration relative—and that is the important word here—to any civil or criminal proceedings is held then the power of arrest without warrant under subsection (8) of section 12 becomes operative. I do not think it should become operative and that is one of the reasons why I am moving that subsection (8) should be deleted.
 The Minister has dealt with this on the basis of saying that we cannot allow intimidation of the courts—I agree with that; that we cannot allow street trials—I agree with that; that we cannot allow our courts to be intimidated—I agree with that, but this refers to any public meeting, procession or demonstration relative to any civil or criminal proceedings either pending or at hearing. It refers to any of these, relative to any civil or criminal proceedings, no matter where the meeting, procession or demonstration takes place. There is no limitation as to distance.
Mr. M.J. O'Higgins: The point I am trying to get to, if I am not interrupted by the Minister or if there are no further interventions, is that the phrase here is “any civil or criminal proceedings which are pending or at hearing”. One would assume, and I imagine the Minister assumed when he presented this section to the House, that that necessarily refers to court proceedings which are either being heard in court or which are listed for hearing in court. I want to question the Minister. If he examines it is that, in fact, the position?
Mr. M.J. O'Higgins: I want to find, Sir, the extent to which it is being suggested that this House should give the Garda Síochána power to arrest without warrant. That is the purpose of my query to the Minister. Is the power of arrest without warrant, for example, to  be given in the case of a protest raised by someone because a Land Commission notice has been served with regard to the acquisition of property, that proceedings in the Land Commission court are thereby to be put under way? Is that not a civil proceeding? If there is a protest against that by the owner or by anyone else is this House seriously going to give the Garda power of arrest without warrant because such a person makes a protest? Can the Minister assure me that is not captured by reason of section 12 (8) in its relation to subsection (3) of section 28?
Let us examine this a bit further. The Minister is a lawyer. There has been a system in operation here for some years now of fines-on-the-spot. If the Minister or any Deputy of this House or anyone outside the House finds on his car a sticker that he is to be fined on the spot and if that person protests against it, is he liable to arrest without warrant on the basis that there are civil or criminal, as the case may be, proceedings initiated by the service of the notice? I am sure the Minister did not intend this but surely that is a case that must be answered.
The Minister is asking us under subsection (8) of section 12 to give the Garda the power of arrest without warrant in cases which come within Part VI of the Bill. Part VI of the Bill includes section 28 and it includes civil and criminal proceedings in the manner provided for in subsection (3) of section 28. Surely the House is entitled to know from the Minister whether, if the House decides that power of arrest without warrant should be imported into Part VI of the Bill, in section 28 (3) the phrase “any civil or criminal proceedings” is broad enough to capture cases such as I have mentioned, cases concerning Land Commission notices being served, or notices by local authorities or health authorities, notices under the Health Act, sanitary notices in regard to buildings, and notices under the Factory Acts. Surely they come within the terms of civil proceedings at least if they are warning notices, notices warning that, unless a certain course of action is taken, prosecution will follow. There are also demolition notices. I  want to know about this from the Minister—I am quite serious about this; it is very relevant to this subsection—whether he is now suggesting that in these cases, although unintentionally, power of arrest will, in fact, be given to the Garda. I am quite sure the Minister does not intend it but I want to know is it possible.
Mr. M.J. O'Higgins: That is what the courts will be concerned with. What I am saying is that the provision in regard to a public meeting, a procession or a demonstration being relative to any civil or criminal proceedings——
Mr. M.J. O'Higgins: It arises on section 28, and it arises because it is suggested that, in such circumstances as are set out in section 28, the Garda authorities should have power of arrest without warrant——
Mr. M.J. O'Higgins: I hope we will have sufficient information from the Minister to deal with it fully and adequately by the time we do reach it. So far as I am concerned, the position is that under subsection (8) of section 12 provision is made for the importation into Part VI of power of arrest without warrant. Unless I am specifically ruled out of order by the Chair, I propose to examine, in relation to this amendment, the various sections which comprise Part VI of the Bill and to try to ascertain, for the clarification of the position, and for the benefit of Deputies of the House and people outside it, just how far the Minister suggests we should go in carrying through these powers of arrest without warrant.
Subsection (8), as I said, provides that “a member of the Garda Síochána may arrest without warrant a person who, after warning, refuses to desist from or continues conduct which the member has reasonable grounds for believing to be an offence under Part VI of the Act”.
Mr. M.J. O'Higgins: It has already  been pointed out to the Minister by other speakers that there is a definite and very sustained and very serious volume of opinion against this Bill and that this is one of the provisions which has given rise to it. The Minister dealt with a point raised by Deputy Dillon with regard to section 7 of the Conspiracy and Protection of Property Act, 1875. This relates to the provisions to which are extended the powers of arrest without warrant as regards, I think it is, section 32 in Part VI of this Bill.
The case the Minister made was that the reason why only paragraph 4 of section 7 of the 1875 Act was being repealed and re-enacted in this Bill was, as I understood him in any event, that he was gathering together particular provisions which dealt with a particular type of demonstration and that paragraph 4 of section 7 of the 1875 Act dealt with demonstrations of the particular kind to which the Minister referred. I want to ask the Minister if this is so, does not that also apply to Part V of section 7 of the Conspiracy and Protection of Property Act, 1875?
Mr. Moran: Again on a point of order, I submit that this is utterly out of order. Not only are we not discussing the Deputy's amendment but we are discussing sections of the 1875 Act which we are not concerned with at all.
Mr. M.J. O'Higgins: In roughly 21 years in this House I have never been asked to resume my seat. I should hate to find myself in collision with the Chair but I am going to insist on whatever rights I have as a Deputy to discuss this Bill, this amendment, and this section fully.
An Ceann Comhairle: I am ruling that the Deputy is out of order. The Deputy is in order in discussing his amendment but I should also like to point out that he has repeated himself on the amendment at least six times.
Mr. M.J. O'Higgins: The ruling I asked for from the Chair was on dealing with the point made by the Minister. If I am ruled out on that I will leave it. One of the objections which I have made to this matter is that I think the things the Minister is seeking to confer on the Garda, powers of arrest without warrant, are not matters which should properly be dealt with in a Bill of this sort. That, let  me say to the Minister, is the reason I was not prepared to fall in with his suggestion to deal with this amendment as we dealt with a previous amendment. It was not intended in any sense to be from discourtesy to the Minister that that refusal was made. It is because I take a particular view of the matters which have been introduced into this Bill that I am not prepared to oblige him in that matter.
Mr. Moran: I want to put it on the record as clearly and as emphatically as I can that neither under the provisions of this Bill as introduced nor under my suggested amendments is there any proposal to restrict in any way the right of legitimate public meeting, public procession or public protest. Deputy O'Leary makes this assertion here to-night and gives us a lecture on the desirability of allowing young people to protest. There is nothing about that in this Bill at all. What I was referring to when I spoke of street trials was not any ordinary protest meetings but demonstrations or meetings designed to influence a case that was pending before the courts or at hearing before the courts. It was in that connection I referred to street trials and mock trials. Lest somebody might think, with all the misrepresentation that has gone on about this Bill and having listened to Deputy O'Leary's words, that we are dealing here with the type of protest he is talking about, let me say we are not and that it has nothing to do with that.
In so far as Deputy O'Leary talks about telling all when I come to these particular sections in Part VI of this Bill, “telling all” are Deputy O'Leary's words, not mine. As far as I am concerned I told all in my Second Reading speech and covered all these sections very thoroughly. What I have said to the Deputy and to the House is that when we reach that stage of the Bill I shall listen to any reasoned argument about these sections, that if there is any doubt about their interpretation I shall clarify them; that if I see reasoned argument for amending these sections I shall deal with them in the same way as I have dealt with the Labour Party's amendment which I have already accepted and the  amendments we have dealt with so far for the purpose of clarifying various provisions. I do not intend to follow Deputy O'Higgins into the realms of fantasy he has conjured up in this House for the purpose of obstructing this Bill. I do not intend to chase the hares raised by the Deputy as to what is the meaning of these sections, particularly the sections dealing with intimidation of the courts. He can raise those hares again when we come to the section but I shall not assist him in wasting the time of the House in that exercise. On this amendment he has repeatedly gone over everything that is in the Bill and has used the amendment for the purpose of dragging out the discussion.
Mr. M.J. O'Higgins: Would the Minister let us know if, since the matter was first raised, he has had any further view on the question of who must give the warning under subsection (8) of section 12? I know the Minister has made clear what his intention is but as the subsection stands it is not clear that the warning has to be administered by a member of the Garda Síochána, and, if we pass this subsection as it stands, taking the words of the subsection at their face value, the warning can be administered by anyone.
Mr. Moran: On a point of order. This has been said by Deputy O'Higgins at least four times already. He is wasting the time of the House. I have already made it clear that, in my view, it is the garda and that, if there is any doubt about it, I shall examine it before the next Stage. He is repeating and repeating the same silly misrepresentation as to what is the wording of the section.
An Leas-Cheann Comhairle: In order that the Minister's amendment No. 9 be saved the Chair is putting the question in the form: “That the words  proposed to be deleted down to and including ‘Part VI of this Act’, in line 7, stand.”
Blaney, Neil T.
Burke, Patrick J.
Calleary, Phelim A.
Corry, Martin J.
de Valera, Vivion.
Fitzpatrick, Thomas J. (Dublin South Central).
Gibbons, James M.
Gogan, Richard P.
Healy, Augustine A.
Hillery, Patrick J.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Millar, Anthony G.
Ó Briain, Donnchadh.
|Barrett, Stephen D.
Costello, John A.
Crotty, Patrick J.
Dillon, James M.
Dockrell, Henry P.
Fitzpatrick, Thomas J. (Cavan).
Flanagan, Oliver J.
Harte, Patrick D.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kyne, Thomas A.
Lyons, Michael D.
Murphy Michael P.
O'Higgins, Michael J.
Reynolds, Patrick J.
Question declared carried.
Mr. Moran: I move amendment No. 9:
In subsection (8), page 10, line 7,  after “Part VI”, to insert “(other than section 31)”.
Amendment agreed to.
Mr. M.J. O'Higgins: I move amendment No. 10:
In subsection (9), page 10, line 11, to add to the subsection the following:—
“Provided that if it is reasonably practicable to do so he shall first apply for and obtain a search warrant”.
I take it that amendment No. 10a does not come with this?
An Ceann Comhairle: No, it is amendment No. 10 on its own.
Mr. M.J. O'Higgins: In case the Minister may have overlooked it, we are still on section 12. I am proposing amendment No. 10 in respect of section 12 (9). As presented, subsection (9) reads:
For the purpose of arresting a person under any power conferred by this section, a member of the Garda Síochána may enter (if need be, by force) and search any place where that person is or where the member, with reasonable cause, suspects him to be.
I am suggesting in this amendment that we should add to that subsection the words “provided that if it is reasonably practicable to do so he shall first apply for and obtain a search warrant”. I urge the Minister to accept this amendment. Its purpose clearly is to provide in respect of the garda who proposes to search and who, under the terms of the subsection, would have authority to use force for the purpose of effecting an entry to a place that may be a person's private house or any type of building that that power will not be used if it is possible first to obtain a search warrant. All I am suggesting here is the addition of the words which would impose an obligation on the garda, if reasonably practicable, first to apply for a search warrant before entry by force to a particular place is effected by him for the purpose of  making the arrest contemplated by this subsection.
Mr. Moran: What is involved in this subsection is a power to search a house for the purpose of making an arrest. It is not, and it does not include, a power to search the house for goods or to carry out an examination of the contents of the house. This will be clear from the wording of the subsection, as the Deputy has already read out. But the matter is put beyond any shadow of doubt by the provisions of section 18 which lays down the general rule that a search authorised by this part of the Act shall not be carried out to any greater extent than is reasonably necessary for the purposes for which the search is authorised.
To put it another way, he can only enter after his man without a warrant for the purpose of effecting the arrest. What is involved, therefore, is a right to go in and have the kind of general look-around that would be needed to establish whether a person was hiding or was in the building. In this very limited context, the question is whether it is reasonable or necessary to impose the restriction suggested by the Deputy. I suggest it is not necessary. On the contrary, I feel that it would be most undesirable in its implications. We are dealing only with cases where, by definition, so to speak, circumstances are such that prompt arrest is necessary. Of course, the power of arrest can readily be frustrated unless the gardaí have a power of entry for the purpose of effecting the arrest. Once one concedes the power of entry one must logically concede it without the qualification which the amendment would make. If the garda could go for a search warrant, as suggested by the amendment, he could equally well, and at the same time, ask for a warrant of arrest, because the issuing authority is the same in both cases.
The amendment envisages an arrangement that would be altogether wrong, namely, that a garda would go along for a search warrant for the express purpose of enabling him to make an arrest without a warrant. This could never be justified. I would ask Deputies to remember that in this day and age we have highly organised crime  and travel facilities whereby criminals can get on a plane and disappear out of the jurisdiction in a matter of hours. Consider the position of a garda who sees one of these wanted men, perhaps, in the middle of the night, entering some building—a man whom he knows is wanted for a crime. If the garda chases that man there and then, and the criminal rushes into some building or house, the garda is in a hopeless position if he has to look for a peace commissioner to swear an information for the purpose of effecting the arrest. We all know quite well that, by the time the garda returns, his bird will have flown and may have committed many further crimes before he is finally apprehended. This is the reason for giving the gardaí the power proposed here. I suggest to the Deputy that his amendment would hamstring that power and make it ineffective.
The whole purpose of this provision is to ensure that the garda will not be frustrated by a wanted man escaping from him into a house. If he had to go to look for a warrant—particularly if he saw the wanted man entering certain premises at night—there would be little hope of his apprehending the wanted man. For these reasons I suggest that the Deputy should not press this amendment. As I say, in these circumstances, this power of instant arrest is very essential for the effective control of crime and criminals by the gardaí.
Mr. M.J. O'Higgins: I do not know whether the Minister has considered fully the wording of the amendment and what is suggested in it. It would seem to me, and possibly this is borne out by words used in a previous section, that the various examples which the Minister gave of when it would be necessary in the interests of justice to enter without warrant were all cases where it would not be reasonably practicable for the gardaí to obtain a warrant. For example, the Minister made the case that if a wanted person was seen entering a building at night it would not be possible to get a warrant. That is exactly the kind of situation that is accepted in my amendment.  What I am trying to do, and I would not mind if the Minister met me in another way, is to lay down guidelines so that the power of entering private houses, public buildings, church property or other buildings of that sort, will not be arbitrarily open to be used possibly by a raw member of the force.
I do not for a moment suggest that it would be normal practice, or the desire, or that there would be any encouragement to members of the garda by their authorities to use the power in any arbitrary way, but when we are legislating here we should as far as we can lay down guidelines in relation to this kind of matter. After all, it is a very wide and very broad power that the section seeks to give member of the force simply because, as may happen under the subsection as it stands, the member of the force has formed a suspicion that on that piece of property or in that particular building a wanted person may be found. It is probably a necessary corollary to giving that power that the member of the force should also have the authority to use such force as might be necessary to make the entry, but when we are giving it we should try to lay down guidelines as to when it would be proper to enter without a warrant as provided for in the section and when it would be proper first to obtain a search warrant.
The Minister will recall that in subsection (4) of this section which deals with the power of a garda to arrest without warrant in certain circumstances where the garda is satisfied a person has committed an offence involving a breach of the peace and so on, one of the limitations imposed on the power of arrest without warrant of the garda is that it has not been reasonably practicable for him to apply for a warrant. I am suggesting that exactly the same provision should exist in relation to this power of searching without a warrant. Most of the objections which the Minister raised would be cases where it was not reasonably practicable to obtain a warrant but if the Minister feels that the use of the phrase which is a repetition of the phrase used in subsection (4) would be too strong and that it would hamper a garda in times of emergency, I do not mind if it is altered or modified as long  as we try to lay down the guideline which should be followed.
This is of some importance. It is not as important as other matters in the Bill. As the Minister pointed out, this is a power which properly, so to speak, concerns the question of crime and crime detection and it is concerned with the whole process of bringing a person who has committed a crime to justice, of arresting him and bringing him before the courts. For that reason I do not regard this subsection as being a controversial one in the way I regarded subsection (8) as being such. I am not trying to force acceptance of the amendment on the Minister just as it is drafted but I feel fairly strongly that there should be a guideline. If the Minister is prepared to suggest any other form, or to undertake the drafting of some modification which would satisfy him will not hamper unnecessarily the gardaí at a time of emergency, I would be quite happy about it.
Mr. O'Malley: There is just one point about which I should like to inquire of the Minister. It is stated that for the purposes of arresting a person under any power conferred by this section a member of the Garda Síochána may enter and search. It struck me that as the power conferred by this section would be a power to arrest without warrant what would be the position of a member of the Garda Síochána who did have a warrant, who, perhaps, saw a fugitive enter a certain premises, but whose warrant might not cover entering that premises for the purpose of searching for him and arresting him? Would it not be better, because of the obvious necessity of giving this power, to extend it to a garda who had a warrant as well as one endeavouring to make an arrest without a warrant?
Mr. Booth: It appears to me that we are getting confused in this subsection by regarding the subsection as involving an additional power of arrest. This is purely a provision enabling a member of the Garda Síochána to enter, if need be by force, and search a place. The only reference to an arrest is that he is doing this for  the purpose of arresting a person but his power of arrest as such is not contained in the subsection but in another subsection. We could simplify matters if we confined ourselves, correctly to my mind, to the right of entry, if necessary by force. That is the whole purpose of this.
Mr. M.J. O'Higgins: The Deputy is the only person who has raised the question of arrest.
Mr. Booth: No, Deputy O'Higgins certainly raised it because he was saying that the powers of arrest under subsection (4) were qualified by the provision that it must not be reasonably practicable to apply for a warrant. To my mind the provisions of subsection (4) are already applicable to an arrest carried out after an entry and search carried out under this subsection (9).
Mr. M.J. O'Higgins: I do not want to interrupt but I think the Deputy missed the point. All I said was that in relation to subsection (4) which deals with arrest, there was this modification and I was suggesting a similar modification in relation to the power to search without a warrant.
Mr. Booth: But in a number of cases there is power to arrest without a warrant which is not so qualified. I think subsection (9) is purely a subsection giving the right of entry and search and I cannot see any objection to it, while I can see everything in favour of it. Obviously, where a garda already has power to arrest either by warrant or by statute under this Bill when it becomes an Act, he must not be prevented from apprehending a culprit through not having the right of entry, if necessary by force, to search a premises. I think we are confusing the issue if we bring the question of arrest into this. It is only a question of whether we should allow a member of the Garda to enter and search the premises, if necessary by force, where he has good reason for believing a man who should be arrested is hiding.
Mr. M. O'Leary: The whole point in this amendment again is an attempt to limit the wide area of discretion which  every section of this Bill apparently gives members of the Garda. Presumably, the intention of the amendment is to seek some kind of guideline which will limit unrestricted powers in this area. Deputy Booth may say that there are sections of the Bill concerned with arrest without warrant. To these we are opposed because of this arbitrary use of Garda authority. Possibly, it is difficult to get the correct drafting that will allow the discretion, necessary discretion in some instances, to search premises, but at the same time it is important that an attempt be made to limit such a search and, if possible, have it accompanied by a search warrant. However difficult it may be to achieve, we must not be lulled by simplicity because the most disturbing sections of this Bill are simple and easy to understand, but they are pretty alarming in their results as regards the ordinary citizens and their liberties. Presumably, it is the intention of this particular amendment that the gardaí should, by reason of our legislation, be in such a situation that, in fact, they would be required, wherever practicable or possible, to obtain a search warrant before following up their just suspicion and entering premises. All of us who treasure privacy and private property and individual rights of citizens will know that we must not lightly relinquish a position in which it is impossible for any forces of the State to enter a premises in any part of the country without going through all the due procedure wherever this is practicable and possible. As Deputy Booth well knows, our Party are very concerned about protecting private liberty and private property.
Mr. M.J. O'Higgins: Possibly Deputy Booth misunderstood the argument I made on this subject. It is quite clear that we are dealing now with the question of power to search without a warrant. Earlier we dealt with the power to arrest without a warrant. I do not think there will be any serious disagreement in the general proposition which Deputy Booth made that where a garda has the power of arrest—certainly where he has a warrant—that he should have whatever other power is  necessary to execute the commission to arrest. Two things are involved here. As Deputy O'Malley pointed out, this section—I am talking of the section now and not the subsection—so far as arrest is concerned deals only with the case of power to arrest without warrant and accordingly subsection (9) deals with the power to search without warrant in cases of arrest without warrant.
Mr. Booth: In any case of arrest, surely.
Mr. M.J. O'Higgins: No. I think Deputy O'Malley's point is right. The case of power to search where there is power to arrest with a warrant may be covered by other section later. I may be wrong and Deputy O'Malley may be wrong but, as I see it, the point made by Deputy O'Malley is a good one. This section deals with power to arrest without warrant. This deals with the power to search without warrant in cases of arrest without warrant.
Mr. Booth: Does a warrant for arrest give power to enter if necessary by force and search without a warrant? I do not know.
Mr. M.J. O'Higgins: If the Deputy reads subsection (9) he will see that it says: “... for the purpose of arresting a person under any power conferred by this section ...” the power of arrest conferred by this section is the power of arrest without warrant. I think that is Deputy O'Malley's point. The only reason I referred to subsection (4) which deals only with one of the cases of power to arrest without a warrant— that is the case of a breach of the peace —was because there it was thought proper in drafting the Bill to provide that in relation to such cases the power to arrest without warrant would only apply where it was not reasonably practicable to obtain a warrant. I am suggesting here that we should also lay down a guideline similar to that when it is a question of entering a person's property for the purpose of arresting a person without a warrant.
I would argue in the same way even if the Minister were to assure Deputy O'Malley and myself that this power also applies in the case where there  is a warrant. I should also argue then that here you have a question of entering on property and that we should only, so far as we can, seriously contemplate that being done without a warrant in cases where, for one reason or another, it will not be reasonably possible or practicable to obtain a warrant or where a situation has arisen where, if the garda has to delay in order to get a warrant, the “bird” will have flown.
I appreciate the Minister's argument on that point and, as far as I am concerned, if there is a guideline laid down I should feel reasonably happy about it. I cannot imagine Deputy Booth feeling happy. If there is a knock on his door some night and on opening it he finds a garda there who says: “I think someone who has broken the peace has got in through a window of your house” or “You let him in through the front door and I want to search the house.” I think Deputy Booth's immediate reaction would be to say: “You may search provided you show me a warrant to search——”
Mr. Booth: If there was a miscreant in my house I should be delighted to have the garda come in and take him out.
Mr. M. O'Leary: Suppose the Deputy himself was a suspect.
Mr. Booth: Then I would not be in my house.
Mr. M. O'Leary: Suppose the Deputy was in somebody else's house and he was the suspect?
Mr. Booth: I have no intention——
Mr. M. O'Leary: Intentions do not count.
Mr. M.J. O'Higgins: Suppose Deputy Booth had admitted somebody to the house and did not know that such a person was involved in any way in relation to an offence for which he was liable to arrest and a garda came along and said: “I believe there is a person I want to arrest is in this house.” Deputy Booth says: “I believe there  is no one in this house who is liable to be arrested”——
Mr. Booth: That would not be my reaction.
Mr. M.J. O'Higgins: ——and the guard says, “I do not care what you believe because what you believe is not in the Criminal Justice Act but what I suspect is, and I suspect he is in this house and if you do not let me in I will use what force I think is necessary”. I do not think that situation is likely to arise between reasonable people and the guards having reasonable cause but I do think it would be a valuable safeguard if we could write into this section some kind of protection. As far as I am concerned, if the Minister is prepared to look at it with a view to writing in the protection himself, I will be happy.
Mr. Moran: If Deputies refer back to the Explanatory Memorandum they will find what was envisaged by this subsection. It really is to clear up some doubts in the existing law. In reply to Deputy O'Malley, let me say that the existing law allows entry in the case of a warrant but that we are dealing in this section only with arrest without warrant. The existing law allowing entry by force in the case of arrest under warrant remains undisturbed.
Deputy O'Higgins's amendment gives me some difficulty from another point of view and that is the point of view of its interpretation. In view of what I have said about this section, the power of instant arrest, or instant entry to effect an arrest, is very necessary because otherwise the bird would have flown. Deputy O'Leary starts talking about someone being suspected. What we are concerned with here is a wanted criminal who is seen to enter a place and the power is for the purpose of arresting that man. In due process of law, when arrested, he must be charged. This is what I would like to explain to the Deputy. There are wide powers of arrest already vested in the Garda Síochána and it has not been suggested, for instance, that there have been any abuses. Why assume that the garda will act mala fide and not bonafide? The law is there for long and  many a day that any garda, any police officer, can arrest anybody on the suspicion of stealing one penny. He has a power of arrest without warrant there. I am only saying this to remind Deputies of other powers that are there in this particular context.
But what I want to get down to is the practical position that a garda may find himself in if he spots some criminal who has been on the wanted list possibly for quite a while and who possibly has been out of the country. He may see him some night entering a premises, may get a glimpse of him going in. How can he make up his mind as to whether it is practicable to apply for a warrant in such a case? He has no way of knowing whether the man is going to remain in the building or move out five minutes later. It is always practicable, I suppose, to apply for a warrant if the garda takes the chance that the wanted man will stay there long enough for him to come back with the warrant and make an arrest. It is never practicable in the present context for a garda to take a chance. In my view, the chance he takes depends on what the other man may do and does not depend on anything the garda has knowledge of. The position is that he sees the wanted man, he sees the criminal, entering a house or building. He has not much time to consider whether it is practicable to get on his bicycle and chase a peace commissioner, when the wanted man may be on the plane within half an hour, nor has he time to speculate whether the wanted man is prepared to sit there and wait for him to come back with his warrant.
Let me again emphasise that this is a power where instant action by the garda is necessary to apprehend wanted criminals. Let me also say that there is a general instruction to the Garda always, if possible, to apply for a warrant. The Garda authorities regard that procedure as the desirable one. However, it is one thing to have such a general instruction issued to the Garda Síochána but quite another matter to try to write it into this subsection, to put this fetter on the garda's efforts to apprehend his man when he sees him.
 Deputy O'Higgins has suggested to me that I might have another look at this to see if any amended version of the wording of his amendment could be acceptable. I certainly will undertake to do that. What I am emphasising to the Deputy here is the practical position of a guard or detective officer who suddenly sees a wanted man and the decision facing him as to whether it is practicable for him in these circumstances to take the chance of letting his man escape and to go off looking for a warrant. If Deputies appreciate that the man must be a wanted man, that the power of entry here without warrant is tied up with the power of arrest which is part of the process of bringing a charge, then they will see the necessity for ensuring that the garda is not frustrated in his efforts to chase the criminal and take him in.
However, as I have said to Deputy O'Higgins, I will have a look at his suggestion. Certainly, I am satisfied of this: I could not accept his amendment in its present form.
Mr. M.J. O'Higgins: I can see that in view of the case the Minister makes. I will not press it in view of the Minister's undertaking but it does seem to me that if qualified in some such way as to allow the opinion of the garda to be paramount it would probably mean, if it was not reasonably practicable in the opinion of the garda, then he need not do it—or some such thing as that.
Mr. Moran: I will have that suggestion examined but the amendment here I could not have in this Bill. It would negative the purpose of the section. If there is a way of meeting the Deputy, I will have a look at it between now and the next Stage.
Amendment, by leave, withdrawn.
Mr. Pattison: I move amendment No. 10a standing in the names of Deputy Corish and Deputy James Tully:
In subsection (9), page 10, line 11, after “to be”, to add “provided such search shall be limited to that necessary for the discovery of such person”.
As the subsection stands, a member of the Garda Síochána may enter and  search any place where the person is or where the garda, with reasonable cause, suspects him to be. Take the case of a member of the Garda Síochána going to the door of a house and the suspected person answering the door and the member of the Garda Síochána arresting the person there and then proceeding to search the house. I know that section 18 to some extent covers this aspect of the matter. Nevertheless, that protection should be embodied in the subsection because, as it stands, it not only gives the Garda Síochána discretion to arrest without warrant and to enter the building without warrant but it also gives them discretion to search the building without warrant and as it is worded here the building may be searched even if the arrest has been affected beforehand.
Progrss reported; Committee to sit again.
|Last Updated: 15/09/2010 09:18:22||Page of 63|