Tuesday, 8 July 1975
Seanad Eireann Debate
But I believe that it is vital from the start to see that in a larger sense, none of these issues can be approached piecemeal or dealt with in isolation. Our attitude and approach to each issue can only make sense if it is  informed by a coherent overall idea of where we now stand in Ireland and in Anglo-Irish relations; and an equally clear general view of the needs which the present situation imposes on us.
The Taoiseach stressed that none of the issues being debated at Sunningdale could be approached piecemeal or dealt with in isolation. At the end of the Sunningdale Conference the Taoiseach issued a closing statement giving a brief synopsis of the decisions taken at Sunningdale. He said:
The agreement which we have reached to establish a Council of Ireland is of primary importance. Such a Council can establish trust between both parts of the island and with all sections of the Irish people.
We have also considered the measures to defend the new institutions which are now to be established in Ireland. Our aim—in the interest of all of the people of Ireland—is to see that those who seek by violent means to wreck the institutions of democracy will not find a refuge in either  part of the island. We have therefore agreed to take immediate legal steps to ensure that henceforward a person accused of murder in either part of the island will be tried for the offence wherever he is arrested.
The British Government committed itself again at the Conference to bringing detention for all sections of the community in Northern Ireland to an end as soon as the security situation permits. The British Government also expressed the hope that a number of detainees might be released before Christmas.
That was the statement issued by the Taoiseach on 9th December, 1973. Now, as we discuss this Bill in this House in July, 1975, it should be clear to everyone that the statement made by the Taoiseach at the opening of the conference, that the matter could not be approached either piecemeal or dealt with in isolation, is not now correct. Section 2 of the Bill, if it is put into operation, will clearly show that all the other matters agreed to at Sunningdale have been forgotten about and the one issue the two Governments agreed to at Sunningdale is now being pressed forward.
It appears as if the whole operation at Sunningdale was designed for one specific purpose: to get this legislation passed in this island. In the Republic an accused person may not be surrendered to the British if his offence is one connected with a political offence. The reason is that Ireland is a party to the European Convention on Extradition and that Britain is not. I should like to ask the Minister, in the event of this Bill being passed, what will Ireland's part be in this European Convention on Extradition in the future? Will this have to be changed as a result of this legislation? It appears that to placate the British the Minister, and the Government, agreed to section 2 in order to get around the Convention on Extradition which this country subscribes to.
Some Government speakers have taken exception to my accusation levelled against them of collaboration. Senator Butler took exception to this  allegation. I have no doubt that Senator Butler's family played a useful and important role in our quest for freedom but I still state that anyone who supports section 2, in order to help Britain in its dilemma in relation to the European Convention on Extradition is, without a shadow of doubt, collaborating with the British authorities.
I am not the only person to have accused Fine Gael of collaboration. On 21st May, 1972, Fine Gael were accused of collaborating with an opinion poll damaging to the party. The man who accused Fine Gael of collaboration is the present Taoiseach and Leader of the Fine Gael Party. Was Senator Butler, as he listened to his leader speaking, as annoyed with the charge of collaboration against Fine Gael levelled by the Leader of Fine Gael as he appeared to be when I accused him?
A few weeks ago the British Secretary in the Six Counties, Mr. Rees, said at Ballykinlar that he had full confidence in the UDR. It is not necessary for me—and I am sure the Chair would not allow me—to repeat the various reasons I have for having absolutely no confidence in the UDR. It seems strange that, at a time when there is so much evidence to suggest that the UDR are one-sided and so much evidence to back up the belief that certain members of the UDR have co-operated with para-military Loyalist groups in the Six Counties in the provision of arms and in the murders that have taken place, the British Secretary of State should seize the opportunity of expressing his full confidence in them.
An Cathaoirleach: The Chair has great difficulty in seeing the relevance of the views of the Secretary of State on the UDR to section 2 of the Bill. Such remarks might be allowable on Second Stage debate but it is difficult to see how they can be accepted as relevant on the net question of section 2.
Mr. McGlinchey: Section 2 simply cannot operate unless the Garda authorities have the full support and co-operation of the UDR. It appears as if the Minister for Justice, the Coalition Government and their supporters——
An Cathaoirleach: The Chair has to intervene to say that there is nothing in this section which seems to be concerned with co-operation between the Garda authorities and anybody else. Section 2 is concerned with the creation of offences.
Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State.
This is the kernel of this Bill. This section is unworkable and, possibly, unconstitutional. This Bill is meant to take action against the so-called terrorists, as has been expressed by the Minister for Justice and other Ministers, but there is very little in it against the para-military groups. The kernel of this problem has not been tackled and is not tackled in any section of the Bill.
We have known through the history of this State that violence begets violence and further oppression of the minority will bring fresh violence. It can be seen daily in the six northern counties that the para-military organisations are growing in strength. Their recent raid in Derry for arms proves that.
They may even engage in the sophistry of saying that, because  there is another violent group there who are not being led by civilized men, we, the civilized people in this State, should abstain from doing what we ought to do. Because there are Craigs, Paisleys and Wests who are giving bad leadership to their people and failing to do what they ought to do, does that mean that we should fail to do it?
He clearly defines that he takes sides in this argument, that he takes a specific side against what one could only class as the terrorists of the minority side. That is what this Bill is also doing. Can we afford to take sides? Can we, or the Minister, afford to take sides? Further oppression against the minority, or what seems against the minority, will bring a new violence. On the other hand, the strength of the para military groups seems to be so obvious and uncurtailed that there is no point in semantics or in looking at the issue in this way. It is open to the Government to ask the people for an opinion and upon that opinion to govern. This Bill as we may see it is one thing but applied, in section 2 in particular, appears to me to be something quite different.
From what I know of Northern Ireland law and, indeed, the application of Northern Ireland law it is different to what we understand as law; whether we be on one side or the other of that law there is a defining point. Throughout the debates on this Bill in this House it has on numerous occasions been stated that law as applied to people in Northern Ireland seems to differ in its application to different individuals. How then can we take the word of a person giving evidence on this issue?
An Cathaoirleach: So far the Senator has been speaking for some eight minutes and, apart from a few ritual references to section 2, the Chair has heard nothing but a Second Stage speech. The Senator should address himself to the section.
An Cathaoirleach: The creation of the offence is what we are concerned with in section 2. All questions in regard to trial, custody and evidence arise on later sections. There cannot be a repetition of the Second Stage debate, even on section 2, which, it can be conceded, is the heart of the Bill. Senators must confine themselves to the question of the principle which, in fact, creates offences under section 2. Other matters should be left for the appropriate section.
Mr. Killilea: I submit that in section 2 if he is to be guilty he may be guilty on rigged evidence. That is the only point that I have made although the Chair said I was repetitious. I have been trying to explain what I find in section 2 to be obnoxious. The words in section 2, “he shall be guilty”, could mean that a person would be found guilty on rigged evidence. I am trying to explain that point.
An Cathaoirleach: The Chair would like the Senator to understand that the Chair's intervention was not in any way  concerned with repetition. The Chair was concerned only with relevance. The Chair has not suggested that the Senator was repetitious, and if there was any suggestion of that it was quite inadvertent. The Chair is ruling on a question of relevance.
Mr. Killilea: Thank you, that is the point. One can see how section 2 originated. It came from the Sunningdale that fell through. It has come from the British injustice that has applied to Northern Ireland since the division of this nation. I am a young person and I was not here in the historic times of this nation, but I have seen the British application of justice. I have seen the application of justice as has been applied by those representing the British Government in Northern Ireland. I say that unequivocally.
We do not have to go past 1969 for the reasons for this massive upsurge of violence in Northern Ireland. If we want to think of the Brookeboroughs and the people who applied British justice in Northern Ireland for years we know the reasons for the situation. Yet we differentiate still between the so-called terrorists and the so-called paramilitaries, defining specifically on whose side either sections work for or are supposed to work for.
I cannot see this Bill, or section 2, doing anything that is meaningful, progressive and positive other than being at the whim, the inspiration and the pressures of a British Government that has done little towards solving the problems of Northern Ireland. I would not dare be an optimist to think that this Bill will do an iota of good, to think that this section would be of any significance in its application, I fear that those who shall be declared guilty by the courts shall be declared guilty by rigged, written or so-called evidence, by those who fear to come to our courts or fear to go to their courts.
This section is the kernel of the matter. Apart from this Bill, the Government have not tried to put a stop to the abnormal situation existing in the Six Counties. Talk is cheap, but the Government are not dedicated to Articles 2 and 3 of the Constitution which are sacred to the people. At  certain times throughout their term of office the Government have questioned these two sections, but on each occasion they realised that they could not make these changes. When they failed in that respect they introduced this Bill, section 2 of which is supposed to be the answer from this Government who, themselves have been unable to put forward any ideas. The fighting between the majority and the minority continues. Hatred is as much in evidence today as it ever was but there has been no move by this Government to quell the violence and bring about the unification of this land which is so dear to many people.
I suggest that the Minister withdraw the Bill. It may appear to be late but it is important that it be withdrawn so as to avoid a situation in which our courts would regard as truth, written evidence from people who funk their responsibility of appearing before a court. Indeed, the evidence of witnesses from some sections of that community would be in question in court.
The Government have failed in this Bill. I would suggest to Senators opposite that when they speak of tackling the problem of the terrorists they should not distinguish between one section as against another. The sad situation of Northern Ireland has been created by the application of British justice. It has been created by men like Brookeborough whose history is well known. Terrorists stem the application of British justice in Northern Ireland but we are now asking those people to give written evidence where the wording specifically says——
Mr. Killilea: “...shall be liable on conviction on indictment to penalty”. I ask the Minister for Justice to have another look not only at this section but at the entire Bill. Justice begets justice as violence begets violence. If we are unable to apply justice here we should not try to put something on the Statute Book which will create violence. I should like to quote from column 963 of the Official Report of 10th June, 1975, where Senator Lenihan said when he was speaking about subsection (1) of  section 2, which introduces the principle of extra territoriality:
This is law as we see it. We should not accept the word of hooded men, of those who have created oppression and who are continuing an injustice against Irish men and women in this land. Do we not all remember that up to three or four years ago no Catholic could get a job in Northern Ireland? I am reminded of the story of two people, one a Catholic and the other a Protestant, being interviewed for a job. Each was asked how many people Our Lord fed as a result of the miracle of the loaves and the fishes. Each replied “Five thousand”, but the Catholic was asked to give the names and addresses of those five thousand. That is the justice that was applied in Northern Ireland. We must try to create a situation where there will be no difference of opinion between one group of Irishmen and another. Let us try to solve the problem as we see it, to solve the problem our way and not under the pressures of a Government outside this land. I suggest to the Minister that this Bill, being so obnoxious and, as was stated in this House, being so much away from the point, will not go one inch of the way towards solving this great national problem. Let us forget about a Bill or a section in a Bill that creates a situation that puts into the minds of the people of this land that we are not making progress but that we are implementing another Government's law, a law which we know as a nation has been wrong and has been applied wrongly in the six northern counties of this country.
Minister for Justice (Mr. Cooney): There were one or two things said in regard to section 2 that I would like to take issue with. The old arguments were produced that it is untimely to have such an offence as that created by section 2. This raises the question of what is meant by untimely, of what would be a timely time for doing what we are doing in this Bill.
It is important to keep reminding  ourselves of what this Bill is designed to do. It is designed to bring to justice people alleged to have been guilty of the most horrible crimes against fellow-Irishmen or against their property in another part of this island. The Bill seeks to remove the shame of harbouring in this territory persons guilty—some of them have admitted their guilty—of the most foul crimes against fellow-Irishmen, but we are told that it is untimely. When would it be timely? Would it be timely when there is total peace in all of this island? There would be no need for the Bill if that was the situation.
Senator Martin, a Senator representing the National University, talked about the present time as being one of menace and threat, talked about the air being alive with gunpowder, and in that context he said that the Bill was untimely. It would seem to me that that would be the very time for a Bill such as this, a Bill adopting this principle of extra-territoriality, an extension of the criminal jurisdiction of the State. The Opposition, and I include Senator Martin in this, are afraid of a situation where they might see being tried in our courts a member of the IRA for a crime he committed in Northern Ireland, notwithstanding the fact that that may be the blowing up of a fellow-Irishman's property or the murder of a fellow-Irishman, or the hijacking of his car, or the kneecapping of a fellow-Irishman. The Opposition are not prepared in this year of grace, 1975, to face the thought of an IRA man being tried in a court in Dublin for something done in Northern Ireland and this is what they mean when they use the word “untimely”. It is a euphemism for funking the issue. Conversely, when does it become timely? Is there ever a time when it does become timely? If so, the Opposition have not said so. Senator Martin suggested too that this section would stifle protest. The word “protest” is a travesty of language from a person whose professional training should make him extremely skilled and careful in the use of language. This section does one simple  thing—it extends the criminal jurisdiction of this State to enable us to punish in this jurisdiction people who flee here after committing the most vile crimes against fellow-Irishmen. There is nothing to be ashamed of in that. It is a mark of civilisation that we are prepared to do it.
Mr. E. Ryan: The Minister is wrong in saying that Fianna Fáil have never said when this Bill would be timely. One of the points made by us again and again is that the Bill is untimely because there is no regime in the North of Ireland that would enable this Bill and the reciprocal Bill to be carried out in a way in which we would have any confidence. I said on the Second Stage that if the Sunningdale Agreement had been put into operation and operated successfully, that in circumstances in which we would have a power-sharing Government there and some kind of a Council of Ireland, it would certainly have to be seriously considered whether a Bill like this would be acceptable. In these circumstances, there would be a regime, a Government which was widely representative of the people and which would have certain very definite ties with this part of the country. In such circumstances it could be argued that the Bill was timely, but it is certainly untimely in a situation where nobody knows what kind of an administration or a Government we are to have there. At present it is partly in the hands of the British Government and partly in the hands of various para-military organisations which seem to be taking over up there, and in these circumstances it is quite clear that it would be very untimely and imprudent to enter into the kind of agreement and into the kind of arrangement that is suggested in this Bill.
Whatever criticism the Minister may make of the attitude which is taken at this time, it would be incorrect for him to say that we have not said why this time is untimely or have not suggested circumstances in which the Bill might be timely. The Committee divided: Tá, 19; Níl, 10.
Lyons, Michael Dalgan.
Mannion, John M.
O'Higgins, Michael J.
Prendergast, Micheál A.
Russell, George Edward.
Sanfey, James W.
|Brennan John J.
Browne, Patrick (Fad).
Eachthéirn, Cáit Uí.
Government amendment No. 11:
In page 4, subsection (1), lines 38 to 45, to delete paragraph (c) and to substitute the following paragraph:
“(c) The reference in paragraph (a) to lawful custody is a reference to any lawful custody in which the person concerned is held, for the purpose of the proceedings in relation to the offence under the law of Northern Ireland referred to in paragraph (a), at any time between the bringing of a charge in relation to that offence and the conclusion of his trial (including any appeal or retrial) for that offence or in which he is held while serving a sentence imposed on his conviction for that offence.”
Mr. Cooney: This is a drafting amendment. It is to make absolutely clear that the offence under section 3, subsection (1), of escaping from custody in Northern Ireland when charged with or convicted of an extra-territorial offence will apply only to a person who is in custody for the purpose of the proceedings against him for the offence or a person who is serving a sentence passed on him for that offence.
During the Second Stage debate Senator Robinson suggested that the offence might apply to a person escaping from internment under a detention order made by the executive. I understand that her point was that a person might be in custody on remand for the offence, that a detention order might then be made against him and that the authorities might decide to hold him indefinitely as a detainee and not proceed with the charge for the offence. She spoke of a sort of “grey area” as between custody because of the charge and internment. As drafted originally I do not think the section is open to that construction but in order to avoid any doubt or argument the amendment proposes to redraft the definition of “lawful custody” in subsection (1) paragraph (c) so as to limit it to where custody is for the purpose of the proceedings in relation to the offence under the law of Northern Ireland, referred to in paragraph (a), that is, the offence of escaping or as custody while serving a sentence for that offence. It is a drafting amendment to make crystal clear what was clear already but, as the doubt was raised, I felt it better to introduce this by way of reassurance.
Mrs. Robinson: On the amendment, I should like to thank the Minister because I think there is an improvement on the original wording of the section. I should also like to ask him whether he would consider bringing in some easy way of terminating the operation of this section in case there were to be a change in the political situation in Northern  Ireland which might justify that. The provision for the offence of escape from lawful custody in Northern Ireland is only tolerable and justifiable in circumstances where there is confidence here that the rule of law does operate in some measure in Northern Ireland and that charges will only be brought for genuine reasons and not either for political motives or in order to subdue a minority of the population.
I want to make this point as un-provocatively as possible. It might be regrettable if there were—all of us hope that this would not be the case—a sudden change in the political status of Northern Ireland, if there were to be some sort of unilateral declaration of independence. In those circumstances we would be left with this provision on our Statute Book, where it would be only by a further Act of the Oireachtas the section could be changed. It might be wise to have an easier way of terminating the section so that the Government could, by Order, terminate it, like the mechanism available in bringing into operation, for example, Part 5 of the Offences Against the State Act, 1939. Similarly the Government can, by order, declare that Part of the 1939 Act to be at an end.
I appreciate the fact that the Minister has brought in this amendment to make it clear that it is a person charged with or convicted of a scheduled offence in Northern Ireland only who is involved. Would the Minister also consider introducing, on Report Stage, a mechanism for terminating this provision if the political situation in Northern Ireland were to change radically in the way I mentioned?
Amendment agreed to.
Question proposed: “That section 3, as amended, stand part of the Bill.”
Mr. Lenihan: On Second Stage I voiced very strong objection to subsection (2) of section 3, which provides that a person who escapes from lawful custody while in Northern Ireland pursuant to an order under section 11 (2) shall be guilty of an offence. Section 11 happens to be one of the most obnoxious sections in the Bill particularly having regard to the European  Convention on Human Rights which, it contravenes in my view, in very specific instances.
Section 11 (2) is relevant to subsection (2) of section 3 because that section seeks to incorporate and make an offence the escaping from lawful custody while in Northern Ireland pursuant to section 11 (2). Section 11 (2) relates to the taking of evidence in Northern Ireland for criminal trial in the State here and empowers the court—with the agreement of the accused, I agree—to be placed in custody in the North of Ireland prior to and for the duration of the hearing of evidence against the accused in the North of Ireland. This is a section in regard to which we put down a number of amendments relating to the protection of the accused while in custody, prior to, during and in the process of his being handed back to the Republic. Under section 11 we have put down amendment No. 15 providing that, while in Northern Ireland for the taking of evidence, the accused should be in the custody of a member or members of the Garda Síochána.
We have also other amendments to section 11 which we shall take in due course. They are all related basically to the reason why I suggest that on this section it would be desirable to delete subsection (2) altogether. Taken in conjunction with our amendments to section 11 it emphasises the spirit and meaning of our amendments and our objection in particular to subsection (2) of section 3.
The point I am making can be emphasised by quoting a specific example. It is often the best way to get a point across in dealing with a complex issue of this kind. I am thinking of the alleged offender in the Republic who is granted bail by the Republic's courts and is a free man in that respect. That man—a free man under bail order of our courts—may then be informed under section 11 that he may be present at the taking of evidence in Northern Ireland in respect of the offence with which he is charged but his only right is “to be present in the custody of the police of Northern Ireland at the taking of the evidence.... If he exercises the right `he will be delivered' ”—I am quoting from subsection (2) of section  11—“in custody into the custody of the police of Northern Ireland,...” The combined effect of section 11 and section 3 is that a free man, if he wants to be present at the taking of evidence in Northern Ireland against him, must take himself out of a state of freedom granted by the Republic's courts and put himself into the custody of the police in Northern Ireland once he crosses over from the jurisdiction of the Republic into the jurisdiction of Northern Ireland. He must present himself in custody prior to the hearing and can only be present at the hearing in the custody of the police in Northern Ireland. He must remain in that custody until he is dispatched back to the Republic.
In the event of any inhuman or degrading treatment on the part of the Northern Ireland police while in their custody before, during, after the hearing and prior to his despatch back to the Republic, he makes an attempt to escape from that sort of treatment or control, that escape is specifically made an offence by section 3 (2). I question, at Common Law, under the Constitution and under the European Convention on Human Rights how the Republic's courts can deprive a man of his liberty while he is on bail under an order of the Republic's courts.
An Cathaoirleach: Before the Senator develops that further, he has—as a background to subsection (2) of section 3—indicated the import of subsection (2) of section 11. It would be wrong if he or other Senators were to develop a detailed argument about the section 11 part of the argument the Senator has just made. It would not be proper to have a substantial debate on subsection (2) of section 11 at this point and again a substantial debate on section 11. The House can exercise its choice but I think it would be more appropriate if in fact the merits of what is done under subsection (2) of section 11 were discussed with the amendments and on the section at that time. I would urge the Senator, while necessarily having to refer to the background of section 11, to endeavour to focus his remarks on the question of escape from custody which is in this section.
Mr. Lenihan: I appreciate what the Cathaoirleach has said. I am, as it were, firing a warning shot across the bows in this matter, in that I am indicating——
An Cathaoirleach: As long as it is not followed by a complete cannonade, it would be perfectly in order.
Mr. Lenihan: I am indicating why we have a very profound objection to section 11. On that section I will go into greater detail in quotation from Articles 5, 6 and 7 of the European Convention on Human Rights. I take it the Chair would regard detailed argument on human rights as more relevant to section 11 and I take the Chair's point in that respect.
As far as this subsection is concerned, which is directly related to section 11, the fact is that we are making escape from custody—custody which I will seek to prove on section 11 contravenes specific articles in the Convention on Human Rights, custody that is at present being challenged in regard to aspects of its administration by our Government before the European Commission on Human Rights—more particularly outrageous in the case of escape from that type of custody on the part of a man who has secured a bail order from the Republic's courts. We seek to make that escape, under this subsection, a specific offence. I will not go into the merits of the other escape offences specified in section 3. Of course, we are opposed to them. But at least they relate to escape from custody in Northern Ireland in respect of a charge or conviction in Northern Ireland. Now that that aspect has been clarified by the Minister's amendment in answer to the case made by Senator Robinson it is quite clear that it does not relate to internment; it is quite certain that it relates to section 1 and its subparagraphs relate to a person in Northern Ireland charged or convicted with an offence under the law of Northern Ireland. The Minister proposes to make it an offence in the Republic for anyone who escapes from that type of custody, outside internment. I would have very real objections to that as well, particularly in the context of the case pending in Stras-bourg, particularly in regard to the  inhuman and degrading treatment that has been meted out to prisoners and offenders in custody in Northern Ireland, in regard to our whole stance which, rightly, at Sunningdale was concerned about having a respected police authority in charge of police administration in Northern Ireland. What we are doing under subsection (1) of section 3, in effect, is admitting the competency, the bona fides, the capacity of the Northern Ireland police force, to treat offenders and prisoners as a civilised police force should do. Make no mistake about it, that is the meaning of subsection (1) paragraphs (a), (b) and (c) of section 3.
That is bad enough but, in my view, is nowhere nearly as outrageous as subsection (2) which brings in the point I am making. It brings in the question of an offender who is apprehended in the Republic. While we have grievous objections having regard to the nature of the police force in Northern Ireland, we have grievous objections to escape from that custody being regarded as an offence here, what we do under section 2 compounds and makes more manifold what has been sought to be done under this section generally. Not alone is an offender or prisoner convicted or in course of being charged with an offence in Northern Ireland but subsection (2) extends that principle to offenders apprehended in the Republic and who may have been given freedom in the Republic, as I have mentioned, by order of the Republic's courts; who, in order to be present to hear the evidence against them under section 11, must transfer themselves into custody before, during and after the hearing of evidence in the North of Ireland, the custody of the Northern Ireland police. What subsection (2) seeks to do is to put a free man, under order of the Republic's courts, into the jeopardy of the Northern Ireland police forces which we, as a State, regard as suspect and against whom we, as a State, have now raised specific questions and specific issues in the European Commission on Human Rights.
The Minister may put a gloss of defence on subsection (1) of section 3,  in that it relates at least to people apprehended or convicted in the North of Ireland in relation to offences in Northern Ireland. But seeking to extend that principle, in subsection (2), to people apprehended in the Republic, and conceivably in instances transferred from freedom in the Republic, freedom guaranteed by court order in the Republic, into the custody of Northern Ireland police in order to—and this is where the European Convention on Human Rights enters in under its Articles 5, 6 and 7—exercise their right, given under section 11, to be present at the taking of evidence in Northern Ireland they must transfer themselves into Northern Ireland police custody. That custody obtains from the time they cross into the jurisdiction of Northern Ireland before, during and after the hearing of evidence. Presumably then they are transferred back here into freedom. If it is regarded as, a basic human right—and this is the point under the Convention—to guarantee a man's right to be present at the taking of evidence against him, in my submission it is an infringement of that right if a free man is forced into custody in order to obtain his right. A free man is being forced into custody so that he may obtain his basic human right of being present to hear evidence against him. That is the point in a nutshell. Under section 2 if that man or woman seeks to escape from the type of custody against which we have complained in the European Commission on Human Rights and comes down to the Republic, we make his escape from the sort of custody against which we have objected, as a State, an offence here under subsection (2) of section 3. That is the essence of our objection to section 3 as a whole but more particularly and seriously to subsection (2). I ask the Minister to have another look at subsection (2). He may put a gloss of legitimacy on subsection (1), (a), (b) and (c), although I disagree with him.
No Minister for Justice in the Republic can put any gloss of legitimacy on a situation where a free man, by a court order in the Republic, is transposed into custody in Northern Ireland, particularly when that type of custody is highly suspect and at present  under investigation by the European Commission on Human Rights at the instigation of this State; furthermore, to make escape from that unlawful custody warranting ill-treatment of some sort, an offence in the Republic, so that if a man rightly escapes, by reason of the type of treatment against which we as a State have complained that man or woman can be transferred back because under subsection (2) of section 3 we deem it an offence in the Republic.
Mr. M.J. O'Higgins: I cannot understand why Senator Lenihan distinguishes so rigorously between a person who is charged and held here in custody and a person who is charged and allowed bail here. So far as the courts are concerned, the position is that they are dealing with an accused person. They may or may not allow bail. The fact that bail is allowed does not form a judgment on the part of the court or anyone else as to the innocence or guilt of the accused person. The fact that an order allowing bail has been made does not promote this free man about whom Senator Lenihan speaks into a category completely different from a person accused of one of the scheduled offences here who has not been granted bail. I do not think there is a valid distinction. It is quite emotive to be talking about a free man, under order of the Irish courts, being forced to put himself into custody in order to hear evidence in the North.
If there is such strong objection to the procedure set out in section 3 of the Bill, I find it rather surprising that Fianna Fáil, having reversed their decision not to endeavour to amend the Bill at all, did not put down a single amendment to section 3. It is fair to draw the inference from that that Fianna Fáil concede it is proper that to escape from custody should be regarded as an offence. They have not endeavoured to delete that subsection from section 3.
Mr. Lenihan: We dealt with it on section 11.
Mr. M.J. O'Higgins: The Senator should follow me now as carefully as I followed him. Apparently they agree that it is proper that it should be regarded as an offence to escape from custody—leaving aside for the moment whose custody—and, consequently,  have not endeavoured to amend section 3. It is section 3 that creates the offence of escaping from custody. Presumably they are satisfied that it should be an offence to escape from custody.
Mr. E. Ryan: The Senator will know that when we either oppose or agree with it.
Mr. Lenihan: We are opposing it and have amendments down on section 11.
Mr. M.J. O'Higgins: It is difficult to follow Fianna Fáil tactics in relation to this Bill. We were assured that the Bill was one which could not be amended, there would be no Fianna Fáil amendments put down. But, of course, there were. But there were none put down to this section. Consequently, I am endeavouring, in my own innocent way, to draw some conclusions therefrom. The conclusion I have drawn is that Fianna Fáil see no objection, regard it as proper that to escape from custody when charged with one of the scheduled offences, that in itself should be——
Mr. Lenihan: It is escape from “lawful custody” pursuant to the law under section 11 (2) which we are amending.
Mr. M.J. O'Higgins: Fianna Fáil have sought to amend it by dealing with the particular form of custody and have not sought to amend it by saying that to escape should not be an offence.
On the question of a free man and bail the question of escaping from custody under section 3 arises only when the trial has commenced, when the person who is endeavouring to escape is a person who is before the court. From what is he endeavouring to escape? In the first instance, from whatever custody he is in but, essentially, from the proceedings before the court, for having to answer before the court in respect of the charges brought against him. That occurs regardless of whose custody he is in. He is endeavouring by escaping, to avoid answering to the court.
Having regard to the fact that the only effort by Senators in the Fianna Fáil group to amend the procedure being laid down in relation to this  question is by way of their amendment to section 11, the conclusion I drew from that is that there is no objection to escaping from custody being an offence, but they have an objection to escaping from the custody of the police in Northern Ireland being an offence. They have no objection to the man who continues to be in the custody of the Garda Síochána north of the Border and tries to escape, being guilty of an offence. He is charged with a particular offence and Fianna Fáil solemnly say: “All right. As long as he is in Garda custody, let it be an offence for him to escape. But put him into any other custody and then he is as free as the air to escape without attracting any sanction.”
I do not see the logic in that. What we are dealing with in section 3 is whether or not it should be an offence for a person to escape from custody. Other kinds of consideration can arise in relation to the general question of custody, but if there is agreement in principle on the fact that it should be an offence to escape from custody when one is before the court, then I would suggest, with respect, that there should be no strong objection to section 3, particularly having regard to the amendment which has been agreed to to by the House and proposed by the Minister.
The other remarks I wanted to make would possibly be more relevant to section 11 because their purpose would be to object again to what I regard as being emotive language in dealing with this subject. We all know it is a subject on which emotive language can kindle very inflammatory feelings—this talk of a free man being forced into custody to obtain his right. The provision spelled out in section 11, when we view it in the framework of this Bill, goes as far as anyone could reasonably expect a civilised state to go to protect the rights of the individual who is charged. The last thing it does is to force him to go into custody. The option of not going into custody is left wide open to him, unless he wishes it himself. That is the keynote of section 11, but I am not going to anticipate any further discussion on that. There seems to be  agreement in principle as regards section 3, the provision that a person who escapes from custody should be chargeable with that as an offence. The only dispute apparently is, from whose custody?
Mr. Cooney: I wish to make one or two brief points in regard to Senator Lenihan's submission on this section. First of all, may I make the point that bail does not guarantee absolute freedom? We will go into this in more detail on section 11 in the context of the European Convention, but at this stage may I say that all that bail does is give a conditional freedom? The inevitable condition attached to bail is that the person surrender himself for his trial. Bail may have other conditions attached to it also limiting freedom, conditions requiring an accused to keep himself in a certain area, report to certain places at certain times, and refrain from interfering or associating with certain persons. To suggest that bail gives absolute freedom is a misstatement. It is very much a conditional freedom, and, as I say, the basic condition is the obligation to surrender for trial. Going to the other jurisdiction to hear the evidence being taken on commission is completely analogous with the surrendering for trial. There is no question of interfering with any right here.
The second point is the question of the person going in custody into the other jurisdiction. It is naïve of the Senators on the other side to suggest that there is something unusual about this. We should debate this Bill in terms of the real Ireland that we have at the moment. The people who will be going to hear evidence on commission and the persons who will be apprehended under this Bill are not honourable boy scouts who can be trusted to go into the other jurisdiction and not escape. If they went into the other jurisdiction otherwise than in custody, of course they would escape, because they are not honourable boy scouts and far from it. To suggest that there is something wrong in handing them over in custody is unreal. It is time we faced the reality of this island as it happens to be at the moment. Immunity is guaranteed under the Bill. This answers the point Senator  Robinson made. If we find that the regime is abusing the reciprocation which this Bill requires and the co-operation which this Bill is offering, then unilaterally and administratively and without any need for a terminating section in it, there can be executive action to correct that situation so that the reciprocation and the co-operation will cease until such time as a house is put in order should that need arise. Hopefully it will not arise.
Senator Lenihan made the point with regard to the first subsection of this section that the escape would be in respect of a person who is charged in the North with an offence against Northern law. I think it is only proper that such a person would be subjected to arrest. It would be wrong that such a person should be able to escape and find a haven here. It should be an offence against our law extra-territorially, as provided for in this Bill. It is not for me to defend or attempt to defend—and I am not going to do it— the regime operated in any particular area, but I repeat the point that if the Government here are not satisfied that it is one that we can co-operate with, co-operation will not be forthcoming.
I am sure the House is aware that past excesses have been punished by the courts, that damages have been awarded for past excesses. Certainly, if there was any question of ill-treatment or improper treatment of any person going North for the purpose of hearing evidence on commission, appropriate action will be taken by the Government here.
Mr. E. Ryan: Senator O'Higgins has suggested that because we did not put down an amendment to this section we do not see any harm in it. There are several ways that one can show ones disapproval of a section. One is to put down an amendment. The other is simply to oppose it and vote against it, which is what we will be doing. It is true that a view was expressed originally that this Bill was so unacceptable in principle that it might be a waste of time to try to put down any amendment, that it might give it some credibility to suggest that it could be improved. That was a point of view that was expressed. In the long run, we  decided we ought to try and make it even a little bit better than it was, and consequently we put down amendments. There are sections in it which are not capable of being amended satisfactorily, and consequently the fact that we do not put down an amendment to a particular section does not necessarily mean that we approve of it.
To be consistent we must oppose this section. If we have a lack of confidence in the present administration in the North of Ireland, if we have a lack of confidence in some of the judicial decisions in the North of Ireland, if we have a very definite lack of confidence in the security forces in the North of Ireland, who are the people who will give evidence in most cases, then we must have very grave reservations about people being put into custody as a result of the action of the administration. If people are put into custody for the wrong reasons, if their being in custody is an injustice, then to be consistent we cannot regard it as an offence for anybody to escape from custody if they were not in custody justifiably in the first case.
Not only are we against this section but to be consistent we must be against this section, because in certain circumstances people are going to be in custody for the wrong reasons because of evidence, because of the administrative machinery which will not be acting in a fair proper way because of statements made by the security forces which may not be justified. Consequently there is a whole attitude of bias in Northern Ireland which is quite likely in many cases—I am not saying in all cases by any means—to lead to people being in custody for reasons which are not justified, which in themselves represent an injustice. If that situation exists or is likely to exist then, to be consistent in our whole approach to this situation, we cannot regard escape from custody, which is unlawful custody in the circumstances, as being an offence. For that reason I must be against the section and, in particular, against subsection (2).
There is a second possibility. Not only may a person be in custody for reasons that would not be justified, but again we have to look at this from the  point of view of people who may be in custody, either awaiting trial or as a result of conviction, in circumstances where one could not say that an injustice had been done, where the offence was properly proved and where the person was properly serving a sentence. However we must have regard to the fact that many people in custody in the North of Ireland have been treated in a degrading and inhuman way, and this is not just a figment of my imagination or something brought in to colour this debate. As we all know, these proceedings have been going on in Strasbourg for a considerable time. They are being prosecuted by the Government, who adopted the proceedings that were started by the last Government. The present Government quite obviously regarded the accusations as being justified and worth proceeding with and they are in fact bringing these matters before the court in Strasbourg.
In these circumstances, even those who are properly in custody in Northern Ireland may become subject to treatment which is so degrading, so inhuman, that they would be quite justified in making an attempt to escape. What will be the position down here if you have somebody who escapes from custody in Northern Ireland and who is brought into court here and says he was tortured, he was treated in a degrading or inhuman way and that that is why he escaped? How will public opinion regard that kind of situation, and what is a court to do? A court will be in an impossible situation. They will have to administer the law as it appears before them. They will have to administer this section of the Act as it stands now, and they will be in the position of having to ignore the reasons which a person might give as to why he escaped from custody, reasons which most people would regard, in the circumstances, as being quite justifiable, even though a person was, in the first instance, properly convicted in so far as that can be said of the situation that exists at the moment in the North of Ireland.
I fully agree with the points that have been made by Senator Lenihan in regard to aggravated injustice which can be done in respect of subsection (2)  of the section. A person who is presumed to be innocent, who has been down here for some time and whom the security forces in the North are anxious to interrogate may go to the North voluntarily. If he is maltreated in some way while he is there merely for the purposes of this trial and he escapes, who is going to say that is an offence which should be prosecuted in this country and that he should be convicted for it? Again the courts in this country will be put in an impossible situation.
This is merely one feature of the whole Bill to which of course we object, and the fact that these points can be made, the fact that these situations can be brought about and that the section can be criticised because of these possibilities, merely illustrates the fact that it is a Bill which, in present circumstances, should not be brought forward because it could not be administered with any degree of justice.
Senator M.J. O'Higgins made the point that to be consistent we should object to somebody escaping from Garda custody. He does not seem to understand why we would not take the same view of that. He seems to fundamentally misunderstand or fail to understand our objection. The fact is we have confidence in the Garda. We have confidence that they will not abuse somebody in custody. We do not have it in regard to some sections of the security forces in Northern Ireland, and that is why we have particularly objected to subsection (2) of this section. I hope he understands the distinction we make between the two. If he does not understand that distinction, I am afraid he does not understand much of our basic approach and opposition to this Bill.
Senator Robinson asked the Minister if he would consider having a subsection which could make this section inoperative in certain circumstances, if the situation in the North deteriorated and —as I understand it—some kind of declaration of independence took place where the rule of law no longer applied. I do not disagree with the suggestion, except in so far as it seems to suggest that the situation is all right now and we only have to be worried about what  might happen in the future. I could not agree, of course, that the position is all right now. I think the position is very much the opposite now, that it is very far from all right, that the injustices which make this Bill an impossible Bill to operate fairly exist now, that they are, if anything, getting worse all the time and are quite likely to deteriorate to the kind of situation which Senator Robinson envisages.
It is because they are all wrong now that I am against this Bill and against this section. It is because the position has been all wrong from the point of view of any chance of having this Bill acceptable and because the position has been wrong from the time the Sunningdale Agreement collapsed, that I have been against this Bill since it was first suggested. Consequently, whereas I would not be opposed to the kind of subsection that Senator Robinson suggests the Minister should have available when he realises how impossible this Bill is to implement so that he can make it inoperative, my point is that the situation for the successful operation of this Bill does not exist at present, has not existed for the last year or more, and is most unlikely to exist in the future and for that reason the Bill and, in particular, this section are unacceptable.
Mr. Lenihan: There is one aspect of the Minister's approach that disturbs me a little. This is going to be part of the law of the Irish State, in particular the Criminal Law of the Irish State, and it is not good enough to speak subjectively or, to use Senator O'Higgins's word, emotively about offenders not being honourable boy scouts. The Minister may say that is being realistic, pragmatic and so on, but that is not the approach to a substantial amendment of the criminal law which is involved here. It should not be the approach of a responsible Minister for Justice. If one does not proceed on the principle that everyone is presumed innocent until proved guilty according to law, then one is abandoning the fundamental principles of criminal law. It is written into our Constitution and it is written into the whole Common Law tradition as being the basis of the criminal jurisprudence for hundreds of years, and  Article 6, section 2, of the European Convention on Human Rights specifies that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
The question is not whether they are honourable boy scouts, ruffians or any other subjective assessment that one will make. We are dealing here with offenders alleged by the administrators of justice here or in Northern Ireland to be committing offences against the respective laws in each of the two jurisdictions, offenders who have been brought before a court in accordance with the law and against whom no subjective assessment should be made by anybody prior to their conviction in accordance with law. That fundamentally is what criminal jurisdiction is all about.
In this Bill we are extending basic criminal jurisprudence in an extraterritorial manner for the first time in relation to serious offences involving the liberty of people for a substantial period of time, if convicted. This Bill is going to be a permanent statute in our legislation. It is certainly not a Bill to be looked at or spoken about in this House by the Minister, or any Senator, or Deputy in the other House, in a light or facetious manner that would seem to indicate a predetermination of attitude in regard to all people apprehended under the legislation. There are people apprehended who cannot be described as honourable boy scouts; they may also be people who should not be apprehended; they may be people who are being wrongly pursued by the police and forces of Northern Ireland, people who are entitled to take their place before the courts here if apprehended, people who are to be presumed innocent until proved guilty. In particular, if I may go back to the section, they may be people who justifiably escape from the type of custody which we have indicted in Strasbourg before the European Convention on Human Rights. The attitude of the Minister and the House should be a strictly legal one with concern for criminal jurisprudence, concern for the rights of people who are charged particularly with serious offences that are set out in the Schedule here, and an abiding concern that they  are innocent until proved guilty. It is not enough to dismiss everybody charged with the offences referred to in the Schedule as if they were guilty on apprehension, particularly presuming that they are guilty on apprehension by the security police and army forces in Northern Ireland.
In this very sensitive area, to put it mildly, it behoves everybody in this House, the Minister and Senators, to keep a guard on what we say and to remember that we should, as far as possible, concern ourselves with basic rights and the appropriate remedies where those rights are infringed upon. While I recognise, of course, that the whole crux of the Bill is efficient apprehension of offenders, the timing of this Bill is wrong and any lack of sensitivity in regard to the drafting of it would be wrong. Any draconian administration under legislation of this kind would lead only to the sort of situation that nobody wants in this island.
The movement of political events is in the right direction at present and again, to relate this Bill to reality, may I say that, although I am in a political rather than a legal area, events in the Convention have been working reasonably well when one considers the cloud under which the Convention started. There is a growing realisation on the part of people who hitherto have been Unionist supporters in Northern Ireland that the game is up, and the introduction of this Bill can only have an incendiary effect and add further fuel to a situation that we want to dampen down. A provision of this kind that escape from custody, which is under severe criticism in the North of Ireland, is an offence in respect of a person who has been apprehended down here, transferred into custody up there, and who may escape from such custody down here again, is highly emotive, given certain situations and certain circumstances. To regard such escape as an offence and to apprehend the person committing the offence in the Republic is certainly adding more fire to the tinders, creating the type of situation that nobody wants.
This comes back to the basic question  of the Government timing in this whole matter, the timing that now seems to be quite irrelevant and wholly unnecessary, particularly in regard to the gradual progression of political events in Northern Ireland at present this Bill is totally unrelated to the reality of what is happening. It is related to the historical events, and they are only historical at this stage, of Sunningdale; they are totally unrelated to the events that are now proceeding in July, 1975. In particular subsection (2) of section 3 is just one of the offences specified in this Bill that will cause nothing but trouble in the years ahead.
Mr. McGlinchey: Nobody in this House could possibly forecast what the political situation in the six northeastern counties will be in three months from now. It could well be that we could have an independent Six Counties with Mr. Craig back in his old position as Minister for Home Affairs and that we could have a repetition of the political situation in the Six Counties that existed five or six years ago.
I am not opposed to the arrest of someone in the Republic who escaped from custody in the Six Counties after committing murder or most of the offences specified in the Schedule, but I can see that section 3 could, unwittingly, punish people who do not deserve that punishment. I could see a situation arising again that arose five or six years ago where it was necessary for people to seize a vehicle. For example in the Schedule, paragraph 13, an offence under section 10, there is an offence for unlawful seizure of vehicles. It could well be that someone could seize a vehicle, escape to the Republic and, in accordance with section 3, find himself arrested here. In circumstances such as this the only evidence the judge trying the case would have would be the evidence of actual escape from lawful custody and, possibly, the hijacking of a vehicle. No matter what the feelings of the judiciary as to the motives behind this action, in accordance with the terms of this section they would have no option but to find that person guilty.
There is also reference in the Schedule  of offences to causing grievous bodily harm. It could happen that in three months from now, under another Craig situation, public meetings could be banned in certain parts of the Six Counties and that an organisation, such as the Civil Rights Organisation, could persist in defying those bans. People may be subject to attacks from the RUC, and the UDR, just as they were subject to them in 1968. Now, if charged with grievous bodily harm, and if by chance they should escape to the Republic under section 3 these people could be arrested. One could give many examples of how innocent people could suffer as a result of this section. Those who tell us that it is designed to deal with murderers, arsonists, and so on, try to give the impression that we on this side of the House are opposed to the arrest of criminals of this kind.
I wish to re-emphasise that we have no sympathy for anyone guilty of most of the offences specified in this Schedule. However, there could be situations arising in the Six Counties, as they arose in the past, whereby people, in order to get a certain amount of justice, could be guilty of some of the offences mentioned in this Schedule. It could be necessary for them, if the opportunity presented itself, to escape from the Six Counties.
In the past people of this kind were not looked upon as criminals but under section 3 the bus driver who hijacked a bus in Derry in 1968, brought a bus-load of people to Donegal looking for food, clothing and medical equipment and all those who travelled on that bus, are now criminals in the eyes of the law and the Irish Republic. That is why I am opposed to this Section. It is wrong and it could create difficult problems for the Government in time to come in the event of a repetition of hostilities at some stage in the future.
Mrs. Robinson: I can understand the Minister's frustrations in steering this Bill through the Oireachtas but I was a little surprised to hear him undermining the principle of the presumption of innocence in relation to any accused charged with any offence. I am sure it was something said more in frustration  than a genuine intention to undermine that principle.
We have to have it before us in relation to this Bill as with any other Bill which creates serious criminal offences. I asked the Minister whether he would be willing to insert some mechanism to terminate this provision without needing new legislation. I am not satisfied with his response to that by saying that it would be possible for an administrative response, presumably ceasing to prosecute for offences under this section. We would have to go further than that. There should be a clear provision. I propose to put down an amendment for Report Stage if this section is carried now.
I am not happy with the section and I will vote against it for reasons I made clear on Second Reading. In the present circumstances in the absence of a Bill of Rights there it is difficult to lend the full support of the courts and the administration of justice in the Republic to the administration of justice in Northern Ireland in view of serious research studies which have shown that there is discrimination and inequity. Standards may vary at times but doubt exists not only in relation to the system of detention without trial, of internment, but also in relation to the bringing of prosecutions or criminal charges and the length of sentences which may be imposed. On Second Reading I made reference to a study which is recognised as being an impartial, balanced and completely un-hysterical and non-political study of justice in Northern Ireland.
It was a study for which resources were provided by the Cobden Trust, carried out by Dr. Tom Hadden and Dr. Paddy Hillyard. The report was brought out in June, 1973. I should like to quote briefly from Chapter 5 of this Report, entitled The Courts in Emergency Conditions. A study is made of the number of prosecutions brought for various offences. Firstly, I should like to refer briefly to the conclusion and then look at a table which examines the average sentences imposed for firearms charges against Protestants and Roman Catholics by the Belfast City Commission from January to June, 1973. The language of this report emphasises  that it is not trying to draw any easy conclusions, it is not dogmatic, it is not trying to see discrimination where it does not exist. It is a thoughtful and careful study of the situation which comes to the conclusion that there is, to a limited extent, in prosecutions for criminal offences and in sentencing, discrimination in the context of the administration of justice in Northern Ireland. Under the heading “Conclusion” the report states:
It would be wrong to draw any firm conclusion from the material in this chapter on the question of discrimination or bias on the part of the judiciary in Northern Ireland. The survey made of decision-making in the magistrates' courts and higher courts has not been comprehensive, and we have not had full access to all the information which might properly affect decisions on the selection of charges, the granting of bail, conviction or acquittal, and sentence. A researcher in this sphere would ideally like to be present at, or at least informed of, all the stages in the decision-making process and to have access to all the material available to the decision-makers, whether the police, the prosecuting authorities, counsel and the court before passing his own judgment on the merits of any particular decision or on the existence or absence of conscious or unconscious bias. At the best of times, this information would be difficult to obtain and the analysis would be very time-consuming.  When, as in Northern Ireland, there are genuine problems over security, to add to the standard official attitude on the confidentiality of pre-trial proceedings, the likelihood of anyone being permitted to carry out a fully satisfactory research study is still further reduced.
Nonetheless the surveys which we have been able to make of the working of the courts under the present emergency conditions in Northern Ireland, with all the imperfections which have been referred to, do suggest that there is a small but cumulative measure of (perhaps unconscious) sympathy with Protestants and Loyalists. This applies particularly to the decision to prosecute and the selection or withdrawal of charges by the police and the prosecuting authorities. It also applies to some jury verdicts. The judges themselves appear to have gone some way to correct these prior inequalities through their power to direct acquittals but there was some evidence of inequality in sentences for firearms offences.
That is a conclusion based on a fairly thorough study of the situation. In particular, it might be relevant here, when talking about escaping from lawful custody after charging or sentencing, to look at the table I referred to which indicates the average sentences imposed for firearms charges against Protestants and Roman Catholics before the Belfast City Commission from January-June, 1973. The table is as follows:
|No certificate for firearms||9 months||12 months|
|No certificate for ammunition||11 months||11 months|
|Firearms-ammunition in suspicious circumstances||2.3 years||3.3 years|
|Carrying firearms in a public place||2.3 years||3.4 years|
|Carrying firearms with criminal intent||4.2 years||6.3 years|
|Possession of firearms-ammunition to endanger life||6.4 years||6.8 years|
Immediately following this table there is a careful qualification by the authors of this research work that there are many possible explanations for differences in the length of sentences imposed for, apparently, similar offences. I, as a lawyer, accept that tables of average sentences for offences of this nature can be quite misleading and can be explained by many circumstances. Nevertheless, it is relevant that in every case where there is variation it is  adverse to the Roman Catholic. In all cases the Roman Catholics' average sentences are heavier than the average for Protestants. This was one of the factors which led to the tentative conclusion of the researchers that there is, in the operation of the courts system, including the decision to prosecute, and the length of sentence, evidence of some bias against the minority.
As a country we have brought the United Kingdom before the Commission on Human Rights for alleged malpractice, torture and for breach of the Convention on Human Rights and Fundamental Freedoms, while persons were in custody in Northern Ireland. Apart from the proceedings brought by this State against the United Kingdom there are also other prosecutions or cases brought by individuals before the Commission on Human Rights. We cannot be unaware of this situation. In all these circumstances, and in the absence of a willingness by the Minister to bring in a provision introducing a possibility of terminating this section, I feel it is not a section which I could support. I propose to oppose this section.
Mr. Cooney: Senator Robinson bases her opposition to this section on her readings from the booklet, Justice in Northern Ireland, on the ground that it discloses a biased judicial system— biased in favour of one side or the other. This is the gloss she puts on the findings of that book. Senator Robinson opposes this Bill not on the earthy atavistic grounds that Fianna Fáil are honest enough to put forward as their grounds of opposition. She opposes the Bill on so-called academic grounds. Nevertheless, her opposition is less to be commended because it poses as being honest and academic and it is quite the contrary.
Senator Robinson quoted this book as saying that it draws the conclusion she announced to the House; that the findings show bias and she quoted the figures. I should like to read also from this booklet on this question of bias. On page 63, second paragraph, it states:
There is a good deal less doubt that the extent of bias in the courts in the  eyes of the minority community has been greatly amplified by a process of selective reporting. It is relatively easy, as the surveys we have made show, to select from the range of cases dealt with in the courts a few individual comparisons in which a Republican has been much more harshly treated than a Loyalist in respect of what appear on the surface to be similar cases. Similar selective comparisons have also been made by Loyalists. The widespread and continued reporting of such adverse comparisons has fostered the view among Roman Catholics and to a lesser extent among Protestants that the whole system of courts is structurally biased against them and in favour of the other side. On the basis of our surveys we do not think that such a judgment would be justified.
Senator Robinson did not read out that quotation. Again I quote from page 65, the last sentence in the first paragraph:
It must be remembered, however, that the material available to us does not justify more than tentative findings and that our conclusions must accordingly be treated with some caution.
These conclusions were presented to us as categoric findings which justified this opposition to the Bill. I reject that type of opposition.
Mrs. Robinson: I am surprised at the Minister's tone. I had made it clear that I was not being dogmatic and that the study was not being dogmatic. I do not think I have been selective. If the Minister cares to look at the Official Report when published he will find that I have given very fair and full quotations from this book. I have also, in quoting the tables, explained that I would agree with the findings.
Mr. Cooney: The Senator used this to justify her opposition to the section and it does not justify it at all.
Mr. Lenihan: A little more politeness from the Minister; it does not cost the Minister anything.
Mr. McGlinchey: The Minister is getting very arrogant after two years and three months.
Mr. Cooney: I dislike hypocrisy and dishonesty.
Mrs. Robinson: The Minister is accusing me of dishonesty and hypocrisy and I resent this. I am neither hypocritical nor dishonest.
Mr. Cooney: I withdraw that and say that I reject opposition to a Bill based on inadequate quotations.
Mr. McGlinchey: Or does the Minister resent opposition to the Bill, full stop?
Mr. Cooney: I can understand the Senator's opposition.
Mrs. Robinson: The only response I can make to the allegation which the Minister makes that I have been quoting selectively from the study is that it certainly was not my intention. I wish I had time, and the House had patience enough to listen, and I would put the entire report on the record of the House because it would be very useful. I have been accused of being too academic. It seems to me that politicians sometimes—and I say this to politicians generally across the board—almost resent research about matters we are inquiring into in this House. I have seen this in relation to other subject matters.
This is research into the subject we are talking about. We are talking about creating in this jurisdiction the criminal offence of escaping from lawful custody in Northern Ireland. With great seriousness and with awareness of all the difficulties and all the aspects of this, at this point in time I will oppose this section because I am not satisfied that when one talks about lawful custody in Northern Ireland there is a sufficient level of the operation of the rule of law, that there is a sufficient level of proper treatment of people in custody for it to be in genuine terms lawful custody in Northern Ireland. The Bill itself is a cumbersome, unsatisfactory and provocative way of dealing with what I have never denied is a serious problem. I do not think that is academic  hypocrisy and I resent the suggestion that it would be.
Finally, if I may put another quotation, again from the general conclusions of this report, which refers to what the Minister was talking about: the impact of selective reporting and the inevitable possible distortions of that. I think it gives the conclusion of the researchers and their view on balance of the situation and of the question of the operation of justice in Northern Ireland. I have already referred in passing to part of this but I will, nevertheless, put it on the record so as to ensure that I have not been selective in the quotations. The quotation is:
Since the introduction of internment without trial in August, 1971 the Northern Ireland judges have taken a more direct approach to their responsibilities as guarantors of justice and civil liberties. But this welcome trend has been effectively cancelled out by the super-imposition of “executive justice” on the decisions of the courts. The numerous cases in which the security forces have used their powers under the Special Powers Act to rearrest persons acquitted or ordered to be released by the courts, and the failure to pursue cases arising out of alleged misconduct by members of the security forces with the same vigour as those against suspected terrorists, have been extremely potent factors in the continuing lack of confidence among the minority community in the judicial system as a whole.
The impact of all these factors has undoubtedly been amplified by a process of selective reporting by those whose objective it has been to discredit the institutions of a state whose legitimacy they reject. Nonetheless there has been in our view sufficient cause for complaint over the ineffectiveness of judicial guarantees against discrimination, over bias in the enforcement of the criminal law in terrorist offences, and over the super-imposition of “executive justice” on court decisions to nullify the continual appeals by both Ulster and British politicians for trust in the judicial system.
 The Committee divided: Tá, 21; Níl, 13.
Higgins, Michael D.
Lyons, Michael Dalgan.
|Mannion, John M.
O'Higgins, Michael J.
Prendergast, Micheál A.
Russell, George Edward.
Sanfey, James W.
|Brennan, John J.
Browne, Patrick (Fad).
Eachthéirn, Cáit Uí.
Tellers: Tá, Senators Sanfey and Halligan; Níl, Senators W. Ryan and Garrett.
Question declared carried.
Business suspended at 5.30 p.m. and resumed at 7.15 p.m.
Question proposed: “That section 4 stand part of the Bill.”
Mr. McGlinchey: I notice a change in section 4 of the Bill as circulated to the Dáil before Christmas and as circulated to the Seanad some time in the spring. The section before us tonight reads:
The Explosive Substances Act, 1883, is hereby amended by the substitution for sections 2 and 3 of the following sections:
2. A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously causes by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, shall, whether any injury to person or property is actually caused or not, be guilty of an offence and, on conviction on indictment, shall be liable to imprisonment for life.
When this Bill was circulated to the Dáil this paragraph was not included. Would the Minister explain the change that took place between the circulation of the two Bills to both Houses?
Mr. Cooney: The reason for the change is because there was a decision to extend the operation of this section to Great Britain. As drafted originally it was intended to apply only to extra-territoriality on this island but in the aftermath of the Birmingham outrage it was felt and the British authorities were anxious that the offence of causing an explosion would become an extra-territorial offence not only in this country but in Great Britain as well.
Mr. McGlinchey: Do I take it, therefore, that this paragraph was inserted at the instigation of the British?
Mr. Cooney: No, not at the instigation. If the Senator thinks that the Birmingham bombers should be allowed to escape without suffering the consequences of their acts, he should say so, if that is what he means by the word “instigation”. It was by agreement between the two Governments that it was introduced.
If the Senator refers to the next subsection he will see that there is a provision for committing an act with intent to cause an explosion. He will see that that was in the original Bill as circulated which provided for making it an extra-territorial offence to conspire to cause an explosion, whether the act took place here or in Britain, or indeed, anywhere in the world. We then had the anomalous position that in the Bill as introduced in the Dáil the offence of  conspiring to cause an explosion was made extra-territorial but the substantive offence of causing the explosion was not made extra-territorial. In consultation with the British Government I was of the opinion that this was an anomalous situation and the section to which the Senator has referred was to cure that anomaly. In other words, both the substantive offence of causing the explosion and the ancillary offence of conspiring to cause an explosion were both made extra-territorial.
Mr. McGlinchey: At the request of the British?
Mr. Cooney: By agreement.
Mr. McGlinchey: Neither I nor anybody else on this side of the House believes that the Birmingham bombers should go free.
Mr. Cooney: If they took refuge here would the Senator like to see a situation where they could be punished?
Mr. McGlinchey: By all means.
Mr. Cooney: This is what the section does.
Mr. McGlinchey: But I believe that an Irish Government should draft their own legislation. I thought that the day was long gone when the British dictated what should and what should not be in our legislation. It would appear to me that in this instance this paragraph has been added at the instigation of the British Government. When the Bill was circulated to the Dáil the first paragraph of section 4 was not included in that section but when it was circulated to the Members of this House in March or April of this year that paragraph was included. The Minister now admits that this section was added following consultation with the British authorities. If that is not collaboration with the British I do not know what is, and I fail to understand why supporters of the Government become indignant when I suggest that they are collaborating with the British. The best example of collaboration can be found in this section.
Mr. Cooney: The whole Bill was prepared in joint consultation with the  British authorities because there is a reciprocal Bill going through their Parliament. It had to be done by way of joint consultation.
Mr. McGlinchey: Why become upset when it is suggested that——
Mr. Cooney: The stupidity of the suggestion upsets me, nothing else.
Mr. McGlinchey: Why become upset at the charge made against the Government that they have been collaborating with the British. Why not admit that they have been collaborating with the British?
Mr. O'Toole: What is the meaning of collaboration?
Mr. Butler: He does not understand it.
Mr. McGlinchey: It means that you behave and you negotiate with the British now just as you did 50 years ago with a similar sell-out.
Mr. O'Toole: To what end? That is the important point.
Mr. McGlinchey: As you negotiated with them 50 years ago.
An Cathaoirleach: The Chair did not negotiate with the British 50 years ago. The Senator should address the Chair.
Mr. McGlinchey: I have no doubt but that the Chair would not negotiate with the British. We find that not alone do the Government collaborate with the British but that the British boast about it. In the House of Commons on June 19th, Mr. Merlyn Rees said that the original Irish Bill introduced in the Dáil in November, 1974, did not include a provision regarding the substantive offence under section 2 of the 1883 Act. He went on to say that, accordingly, the Irish were invited to reciprocate, which they did in the newly presented Bill introduced in the Seanad on 10th April, 1975.
It would appear to me that not only has Mr. Merlyn Rees considerable influence in the six north-eastern counties of this country but that he has considerable influence also with the members of the National Coalition  Government. What we have in this section is clear evidence of British collaboration at its worst. I should imagine that this Government of the so-called talents would be able to draft their own legislation without depending on the British to do it for them.
Mr. M.J. O'Higgins: I do not know whether it is worth while replying to the kind of contribution which Senator McGlinchey has made. When he gets the opportunity, if he would reread and study the remarks when they appear in the Seanad debates, it will probably occur to him, as it occurs to everyone on this side of the House, that the remarks are childish in the extreme. For years Fianna Fáil Governments quite rightly negotiated with their counterparts in Britain in arranging trade agreements, free-trade area agreements and so on. Were these all to be classed as collaborating with the British in the sense in which Senator McGlinchey uses the term?
This kind of thing is nonsense. It is helping no one. It is not helping this House or its reputation. It is certainly not helping the reputation of the Fianna Fáil Party: Whatever charges of irresponsibility can be levelled against Fianna Fáil, Senator McGlinchey by this kind of effort will hoist that banner higher and if Fianna Fáil ever hope to come out of the wilderness in which they are placing themselves they will have to “cop on” and treat legislation seriously and not treat this House as though it were composed of foolish little children. Of course this Government in introducing reciprocal legislation will have discussions with the British, just as Fianna Fáil Ministers had discussions time and again with their counterparts in England. Collaboration my foot.
Mr. McGlinchey: If Fine Gael lose the tail they will be in the wilderness.
Mr. Cooney: Fianna Fáil have lost the dog—
Mr. McGlinchey: The Minister will have trouble enough in his own constituency next time.
Question put and agreed to.
 NEW SECTION.
Mrs. Robinson: I move amendment No. 11a:
To insert the following new section before section 5:
“For the purposes of sections 5, 6 and 7 of this Act, the Larceny Act 1916 is hereby amended by the substitution for section 1 of the following sections:—
‘1A.—(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.
(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).
1B.—(1) A person's appropriation of property belonging to another is not to be regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf o himself or of a third person; o
(b) if he appropriates the property in the belief that he would have the other's consen if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as a trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
 1C.—(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property.
1D.—(1) “Property” includes money and all other property, real or personal, including things in action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.
For purposes of this subsection “land” does not include incorporal hereditaments, “tenancy” means a tenancy for years or any  less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.
(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.
For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.
(4) Wild creatures, tamed, or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed not ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
1E.—(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the  property or proceeds shall be regarded (as against him) as belonging to the other.
(4) Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.
1F.—(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights.’”
This amendment proposes to deal with the rather illogical situation to which I adverted on Second Reading: that the Minister has chosen in this Bill to make substantive amendments to our criminal law which will amend it by amending the Larceny Act, 1916, and that this  will be the position for any person charged with these offences, which are “robbery”, “burglary” and “aggravated burglary”. He has chosen to amend the Larceny Act by borrowing the description of these offences as contained in the Theft Act, 1968, in England, and the Theft Act, 1969, in Northern Ireland but has failed to take over the definition section of “to steal” which is an element of “robbery” and which is a likely element in both “burglary” and “aggravated burglary” as so defined. So the result is the worst of all possible worlds in that we have a sort of hybrid where we have a description of an offence in identical terms to the description of the Theft Act but the meaning is different because you have to refer back to a definition section in the Larceny Act, 1916, rather than to a definition which corresponds to the definition of “theft” and “to steal” in the equivalent Theft Act in England.
I referred to the fact that in the explanatory memorandum circulated with the Bill the Minister seemed to be of the view that the three offences—“robbery”, “burglary” and “aggravated burglary”—would be the same in the three jurisdictions and he seemed to want to achieve this objective. For example, in the explanatory memorandum there was reference to section 5— to the offence of larceny—which stated that:
The present section follows both these enactments——
that is section 8 of the Theft Act, 1968, in England, and section 8 of the Theft Act, Northern Ireland, 1969
——so that the law will be the same in all three jurisdictions.
Then in the explanatory memorandum, in reference to section 6, it is stated that the new section, 23(a), of the Larceny Act is exactly similar to section 9 of the English Theft Act, 1968, chapter 60 and section 9 of the Theft Act, Northern Ireland, 1969, chapter 16. Similarly, under section 7, which relates to aggravated burglary, at the end of the explanatory memorandum it says that the new section, 23 (b), is exactly similar to section 10 of the English Theft Act, 1968, chapter 60, and section 10 of the Theft Act, Northern Ireland Act, 1969, chapter 16.
 I ought to explain, since this amendment is extremely long and involved, that it is also borrowed word for word from the Theft Act, 1968, in England. It is the definition there of what is meant by “to steal” and then each of the words used is analysed, the word “dishonestly”, the word “appropriate”, the word “property”, the word “belonging to another” and “with the intention of permanently depriving the other of it.” As originally drafted this was a section to insert the new definition for the general purposes of the criminal law as these offences of “robbery”, “burglary” and “aggravated burglary” and for the general purposes of criminal law, but I was advised—and I accept this—that in the context of this Bill it is not possible to introduce major reforms of definitions of the criminal law and that I am confined in this amendment to amending the three offences as set out in section 5, 6 and 7 of this Bill.
I am not very happy with this result because one reaches the rather illogical conclusion in the end that for the purposes of this Bill these three offences of “robbery”, “burglary” and “aggravated burglary” will be the same as the corresponding offences in the Theft Acts in England and in Northern Ireland, but for all other purposes the three substantive offences will still be these strange hybrid offences where they will have the same description as in the Theft Act but they will have substantially different meanings by reference to the definition of “to steal”. I read carefully what the Minister said on Committee Stage in response to this point and I am surprised that he seems to underestimate or to minimise the difference which this makes. He said, as reported at column 420 of the Official Report, having mentioned that there was a further point raised in regard to changes in substantive criminal law in the Bill, that:
There has been some criticism from Senator Robinson that by reason of our failure to change the definition of a larceny to comply with the definition contained in the Theft Acts of Northern Ireland and England we failed to achieve what we set  out to achieve—uniformity between the laws here and Northern Ireland in regard to robbery and burglary. Here in the State the meaning of stealing is governed by the definition of stealing in the Larceny Act, 1916, but stealing only becomes relevant here when it is an ingredient of robbery or burglary. We have not sought to amend the law regarding larceny as an offence. We are seeking to amend the law as regards robbery and burglary. Stealing is one element of it.
He then goes on, in what I find a difficult line of reasoning to follow, to say that despite the fact that the elements of the offence would not be the same, the offences were to his satisfaction identical in the three jurisdictions. I may be accused of being academic, but I at least have a very genuine and I hope unacademic zeal for law reform. I am very firmly of the view that we need a reform in our criminal code and we need it in this area now governed for this country by the Larceny Act, 1916. I regret that the Minister has decided to take just three offences out of the Larceny Act—the offences of “robbery”, “burglary” and “aggravated burglary”—and put them into this Bill, which would not be the obvious source for somebody seeking to know what the law is in this area of criminal law.
Nevertheless, we should reform our criminal law, and I am very much persuaded by the report of the Law Reform Committee in England which preceded the Theft Act there. They made substantial and unanswerable criticisms of the Larceny Act, 1916, and in particular of the definition of “to steal” under the Larceny Act, which the Minister appears to be happy to continue as the basic definition of “to steal” for the purposes of that element of the offence of robbery and that element of the offence of burglary or aggravated burglary where the felony which the person intends to commit or has committed is the offence of stealing.
There are very obvious defects, which I do not need to go into at any great length at this stage, in the definition of “to steal” under the Larceny Act, one obvious definition being the fact that it is basically a deprivation of possession  and that the intent to deprive the owner permanently of his property must coincide with this physical deprivation of possession. There has been a number of examples of where a person takes something belonging to another and at the time he takes he intends to hand it over to the police or to turn it in to a lost property office and then later, when he has had it in his possession for some time, he becomes tempted and he realises that nobody saw him take it and decides to keep it, to misappropriate it. Under the definition of “to steal” under the Larceny Act, 1916, that would not be the offence of stealing nor would it be an attempt to steal, because the intent did not exist at the time of the taking of possession of the thing. This means that it is much more difficult to convict of “burglary” or “aggravated burglary” under the definition contained in sections 6 and 7 of the Criminal Law (Jurisdiction) Bill because the definition of “to steal” is much narrower, much less flexible, much less in line with modern theories of criminology, modern theories of dishonest appropriation. Apart from an irritation and a genuine annoyance at seeing what I must confess I regard as hamfisted amendment of our criminal law by just borrowing a description without a definition, it is a great pity because it is likely to be a minor amendment of a hybrid nature which will delay the genuine reforms not just of the description of various offences but of the elements of those offences, of the definitions of those offences.
Therefore I hope that the Minister will take this amendment in the good faith in which it is offered and that he will either take it in the narrow form in which it is framed here or, better still, introduce the wider definition of “to steal” under the Larceny Act and broaden it to cover the scope of that Act. I am not sure whether, as the author of this Bill, he gets more leeway in that respect under the Long Title of the Bill than a Member of this House wishing to amend the Bill. We have the worst of all possible worlds here in relation, not to anything political, not to fugitive offenders; not to terrorism, but to the reform of our substantive criminal law about which I care very deeply and which I think we must do  logically and, preferably, in a comprehensive criminal code.
If we do bits of it in a Bill such as this, let us not only change the description of offences but let us also adopt the appropriate definitions of the elements of the offence so that we create a genuine modern definition of the particular anti-social activity which we wish to designate as criminal and achieve the simple objective set out in the explanatory memorandum. Since it is desirable in the circumstances, let us have identical offences in the three juristictions in respect of robbery, burglary and aggravated burglary. It is for that purpose I introduced this amendment.
Mr. Cooney: May I say, before going to the amendment, that over teatime I had time to reflect on the criticism I made of the Senator immediately before teatime. My criticisms of what she said and of her motives were unfair and unjustified and, to that extent, I offer her apologies.
Mr. McGlinchey: It takes a good man to apologise.
Mr. Russell: It is the “in-thing” now.
Mr. Cooney: To deal with this amendment, Senator Robinson says that we have the worst of all worlds in the Bill, as drafted. I would respectfully suggest that were we to accept her amendment we would be making what she alleges to be bad even worse. I do not accept that it is bad. The amendment was introduced in the first instance to seek to avoid anomalous situations in the criminal code as between here and Northern Ireland, the anomaly being, for example, that a person might be triable before our courts for something done in Northern Ireland which, if done here, would not be an offence at all. Clearly that would be an anomalous situation. We were anxious to ensure, in the drafting of the Bill, which was a reciprocal arrangement and was done in consultation with the UK authorities, to eliminate these possible anomalies. That is why the definitions of “robbery”, “burglary” and “aggravated burglary” have been changed. We are taking this opportunity to amend our substantive  criminal law in that rather narrow respect.
I agree with Senator Robinson that the Larceny Act of 1916 needs up-dating, that the social conditions that motivated its up-dating and modernisation in the UK are present here too. It needs change and reform. But I do suggest that the seriousness of that reform—and it is important in our criminal legal code as such—would render it dangerous to do more piecemeal reforming than is absolutely necessary for the sake of having uniformity between the law here and the law in Northern Ireland so that this Bill will not produce the anomalies of which I have spoken. That is why the amount of amendment of the law relating to theft has been kept to the limited degree that appears in the Bill.
Senator Robinson suggests that her amendment should be accepted so that the definition of “stealing” in the Larceny Act of 1916 would be repealed and substituted by the definition of “theft” in sections 1 to 6 of the Theft Act, 1968, of England and the Theft Act of Northern Ireland of 1969, and she seeks to confine that to the operation of the Bill before the House. As she put down the amendment originally it was to apply to the Larceny Act of 1916 generally, including the offence under section 2 of simple larceny and the various other offences of larceny under the 1916 Act. But the amendment, as now introduced, confines the proposed new definition of “stealing” only to the offences of robbery, burglary and aggravated burglary created in the Bill. I would suggest at this stage that there is no significance in the fact that the English and Northern Ireland Acts speak of “theft” whereas the 1916 Larceny Act, the one which governs our law in this regard, speaks of “stealing”. In my opinion the terms are synonymous though the ingredients of the offence of larceny under the 1916 Act and theft under the 1968 and 1969 Acts are different.
Apparently the point of the amendment is that the new offences of burglary, robbery and aggravated burglary, introduced in the Bill, depend in part on an intention to steal. The  sections in the Bill substitute new sections 23, 23A and 23B in the Larceny Act 1916 creating the three new offences, that is robbery, burglary and aggravated burglary. The three new sections of the Bill are exactly the same as sections 8, 9 and 10 of the 1968 and 1969 Acts, as is set out in the explanatory memorandum. Senator Robinson argues that, until the definition of “stealing” is put on all fours, the offences of robbery, burglary and aggravated burglary under the law of the State here and the similar law in England and Northern Ireland cannot be the same, because the definition of “stealing” has not been replaced. Under our law as it stands at present the definition of “stealing” will be that of the 1916 Act, whereas, with regard to the offences of burglary and robbery in Northern Ireland, “stealing” will have the meaning given it by the Theft Act of 1969.
My answer to that point is that there is no need to replace the definition of “stealing” in the 1916 Act for the purposes of the offences of the burglary, aggravated burglary and robbery because the only kind of stealing that would be relevant for the purposes of these offences is the ordinary kind of stealing which is covered by the definition in the 1916 Act, that is, stealing consisting of taking and carrying away. It is unreal to think that the wider type of stealing referred to in the Theft Act would ever be relevant to the offence of robbery or burglary. The main purpose of the definition in the Theft Acts is to widen the offence of theft so as to include misappropriation of property by a person already in possession of it, and bring conduct at present covered by such offences as say, embezzlement or fraudulent conversion within the offence of theft. All kinds of conduct of that sort which are made theft under the Theft Acts of 1968 and 1969, because of the wider definition, are mainly irrelevent in relation to robbery and burglary. The offences are as defined in the Bill. If you like stealing is an incidental part of them; it is not their main ingredient; it has to be present before they are committed. But it is not the definition of “stealing” which constitutes the offences of robbery, burglary or aggravated burglary.  There are other incidents which make these offences apart from the question of stealing.
I submit to the House that to introduce six new sections in the 1916 Act, which is what is sought to be done by this amendment, merely to provide for imaginary varieties of robbery and burglary would be absurd. The position then would be that the 1916 Act would contain one definition of “stealing”— section 1—for the purpose of simple larceny, as defined in section 2, and of the other offences of larceny under the Act, and another definition of “stealing” for the purposes of robbery and burglary. That is what the effect of the amendment would be. The six new sections are unimportant in regard to robbery and burglary but are very important in relation to stealing. Therefore, the provisions of these sections will certainly have to be considered when we get around to changing the substantive criminal law in regard to theft. It may be appropriate to adopt them as they are, if for no other reason than to ensure ease of extradition in cases where extradition is not a problem and where there would be no difficulty of the type adverted to in the Furlong case.
That is a matter that will require a lot of examination by this House and possibly by some outside commission in advance of a Bill coming to this House to make such serious and fundamental changes in our criminal law in regard to theft and dishonesty generally. Therefore, to attempt to make what would be a very fundamental change in our criminal law in the manner proposed by this amendment would be altogether wrong.
If we look at the amendment we see the definition of “property” which can include wild creatures, wild flowers and such things and there are special provisions to cover that. It makes the proposed amendment somewhat ludicrous in the context of the Bill with which we are dealing and the type of crime with which it is sought to deal. The question of wild flowers and wild animals may be very important in the general law of larceny, but to raise the question with regard to robbery, burglary and aggravated  burglary, in the sense in which we are talking in this section, would be completely inappropriate.
There are a number of other technical, legal defects in the proposed amendment which would make its acceptance impossible. The proposed new section 1D defines “property” for the purpose of stealing as an ingredient of the new offences of robbery and burglary. Yet nothing is proposed to be done about the existing definition of “property” in section 46, subsection (1), of the 1916 Act, which applies generally and, as the amendment stands, would continue to apply side by side with the definition of “property” in section 1D of the amendment. The result then would be that there would be two different definitions of “property” for the same purposes in the same Act.
Section 1A of the amendment contains the basic definition of “theft”. It provides, in subsection (3):
The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).
The words “except as otherwise provided by this Act” are included in the 1968 and 1969 Theft Acts because section 34 of the 1968 Act and section 32 of the 1969 Act provide that parts of the definitions in the early sections shall apply for the purposes of the Acts generally. With the amendment, as put before us, the words “except as otherwise provided by this Act” would mean “except as otherwise provided by the 1916 Act” and that Act nowhere otherwise provides. I mention this as an indication of the anomalies, that can follow in overdoing the necessary patch-work amendment which has been done. While none of us is happy seeing the substantive criminal law being amended in a piecemeal fashion, there is a minimum which was necessary in this Bill to avoid anomalies between here and Northern Ireland—the anomaly of a set of facts being no offence here but being an offence in the North, the alleged offender being triable here for something which, if he did it here would not be an offence at  all. We had to go a certain distance to avoid that position.
I suggest to Senator Robinson, while bearing in mind that “stealing” is incidental to the offences with which we are concerned, that it is not the main part. It is not the only ingredient which makes them the offences of robbery, burglary and aggravated burglary. Attempting to go further and introduce the definition of “stealing” from the Theft Act into this Bill—the piecemeal definition with its dangers: I have illustrated some of the dangers and ludicrous consequences—is an even greater anomaly and makes the position worse, if bad it is. I suggest it is not bad because the minimum that has been done constitutes good reforms and is necessary to avoid the anomalous situation I have mentioned.
For those reasons I cannot accept the amendment though I appreciate the spirit in which it is offered and I sympathise with the Senator's desire to see our substantive criminal law amended. I suggest that a much more satisfactory way to do that is to wait until we have an Act specially designed for that purpose. We should look on this Bill as necessitating a certain amount of reform of substantive law to avoid anomalies. It is for that rather narrow reason the amendments to our substantive law have been introduced. Desirable though such amendments may be in their own right, we have to look at them in that narrow light. To go further than that is to court the danger of unknown legal anomalies and rather ludicrous consequences.
Mrs. Robinson: I should like to begin by thanking the Minister for his generous retraction of some remarks earlier this afternoon and to regret anything I might have said that could have led to them. I agree with him that in the amendment as drafted the technical defects that he pointed out are there. I was, in fact, aware of them. They are drafting matters that could be cleared. If the principle of accepting the amendment were passed, it could be cleared up rather easily on Report Stage. Despite the patience and effort the Minister put into his reply, I do not  think he has got over the major anomaly he has created. He has done exactly what he says he does not want to do. He has created different offences of “robbery”, “burglary” and “aggravated burglary” in this jurisdiction than in Northern Ireland or England despite similar descriptive sections. He is wrong in law simply in saying that theft is incidental to the offence of robbery. If I might quote from the latest edition of Smith and Hogan on Criminal Law, the third edition of the standard textbook on criminal law, under the heading of “Robbery”, at page 434. First of all, it recites section 8 of the Theft Act, 1968—the same definition as in section 5 of this Bill—and immediately it goes on to say:
As defined robbery is essentially an aggravated form of theft; and if there is no theft, or attempted theft, there can be no robbery or attempted robbery.
In other words, it is essential and basic to it. The Minister may very well say, and I would agree with him, that in many instances robbery is a physical deprivation of possession and therefore the Larceny Act of 1916 will cover it. I agree that that would be the case in very many instances. But I can also think of examples under the definition in this Bill where activity would not amount to robbery in this jurisdiction but would amount to robbery under the broader definition of theft in the Northern Ireland Theft Act and in the English 1968 Act.
Looking at the definition in section 5, it is provided that a person is guilty of robbery if he steals and immediately before, or at the time of doing so and in order to do so, he uses force on any person or seeks or puts or seeks to put any person in fear of being then and there subjected to force. If a person puts another person in fear, either by physically assaulting them or by threatening them, and does not at that stage intend to take property from the person and the person falls to the ground, a purse falls out of the person's pocket and the person who was assaulted runs away and subsequently the other person pockets the purse and makes off, then it might be a difficult  problem of proof but that would not be an intent to steal within the Larceny Act definition because the intent would not have existed at the time of the actual deprivation. It would have come later when the person subsequently noticed the purse. The person might even intend, at that stage, to hand over the purse; might not intend to have stolen it. None of the difficult and technical problem—because of the unsatisfactory nature of the Larceny Act definition of steal—would arise in the case of the Theft Act in regard to any dishonest appropriation; the intent to deprive a person of their property need not coexist with the physical activity.
It is even easier to illustrate in relation to “burglary” or “aggravated burglary” because, looking at the definition in section 6 of this Bill of “burglary” it says:
A person is guilty of burglary if— (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2)—
and one of these offences is an offence of stealing anything in the building or part of a building—
(b) having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it....
Again, if a person enters the building as a trespasser without the permission of the owner, being unauthorised to do so enters as a trespasser but intends to seek shelter for the night and when there sees something and is about to steal it and is apprehended, then that person did not have the intent to steal or have the intent permanently to deprive at the time of entering the building.
Mr. Cooney: But having entered the building he is still guilty, paragraph (b).
Mrs. Robinson: What I am saying is that if the person took something without intending to deprive a person of it permanently, took it away and subsequently decided to keep it and deprive a person permanently of it, he would not be coming within the Larceny Act definition of “to steal”.
Mr. Cooney: Nor within the Theft Act definition.
Mrs. Robinson: Yes, it would come under the Theft Act.
Mr. Cooney: But see the basic definition of “theft”. If I may read it, it says that a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it——
Mrs. Robinson: Yes, but the intention does not have to coincide with the——
Mr. Cooney: Oh, it must; it cannot be otherwise.
Mrs. Robinson: No. Perhaps I may look up some authority on the point.
Mr. Cooney: The definition cannot mean anything then.
Mrs. Robinson: One of the real problems with the Larceny Act is that the intent to steal has to coincide with the act of taking, whereas in the case of the Theft Act, that is not so.
Mr. Cooney: It would be a different kind of stealing. It would be the stealing by misappropriation which would take place at the time the intention was formed. It would not be a burglary. But then burglary and the question of a corresponding offence would not arise, see section 1C of the amendment.
Mrs. Robinson: I am looking for the precise statement in Smith and Hogan where it is made very clear that the effect of dishonestly appropriating is that it does not have to take place at the instant of the physical taking, or there need not be any physical taking.
Mr. Cooney: That is a separate offence. That could not be part of “burglary” in the example the Senator has given—the example the Senator gave was of a person entering, seeing something and subsequently misappropriating it. The offence there has nothing to do with the entry. There would be no burglary under the British law, as it stands, or under our law even prior to amendment. The  offence there would be the new British offence of theft by appropriation under section 1C of the Senator's amendment. It would be a separate criminal offence would have nothing to do with burglary in either sense.
Mrs. Robinson: But the whole offence of “burglary” under the Theft Act relates, and only relates, to the definition section that I have inserted. That is the only context in which one talks about—“burglary” where the felony concerned is an intent to steal. That is really the basic point I am making. For that reason they are not the same.
Mr. Cooney: The point I am making is that, in order to have burglary under the present English law, the asportation must take place at the time of the burglary, which is the present position under our law.
Mrs. Robinson: In the sense that physical asportation is not needed that need not necessarily be so.
Mr. Cooney: Yes, it has to be so because there has to be physical asportation, though even lifting is enough.
Mrs. Robinson: Under the Irish Act?
Mr. Cooney: Yes, and under the present British Act, because there has to be the intention of permanently depriving the other of it and in burglary one cannot have that unless there is some form of asportation. Otherwise it would be impossible to prove the intent.
Mrs. Robinson: There might be difficulty of proof but, on the fundamental principles of it, there does not have to be asportation, meaning taking and carrying away. That was precisely why the Theft Act definition was introduced, to get away from that concept, because there are loopholes in it.
Mr. Cooney: Taking and carrying away has been defined by the courts. You do not have to depart with the thing wrapped up.
Mrs. Robinson: You must have some asportation. Technically they still insist  on that, some movement of the thing from where it is and that is not an ingredient of the English one.
I do not want to take up the time of the House on this. I am firmly convinced that the sections as drafted, without embodying the definition section, continues precisely the anomaly the Minister has stated he wants to avoid here. We will have the situation that the offences under sections 5, 6 and 7 of this Bill—the offences of “robbery”, “burglary” and “aggravated burglary”—do not mean the same thing—I would differ from the Minister in regard to the extent to which the aspect of “theft” enters into robbery. It is an essential aspect of it, and the aspect of “to steal” in “burglary” or “aggravated burglary” could and very likely would matter. As the Minister knows well, it is the business of clever lawyers to seek out these loopholes we have created—and unnecessary loopholes, I believe—by not embodying in this the definition section which is identical to the definition section in the Theft Acts of 1968 in England and 1969 in Northern Ireland.
I do not intend to press the point any further because I can see that the Minister is not sympathetic to it. But I regret the fact that we have now these three substantive offences completely unrelated to fugitive offenders, to terrorism or to the other mechanics of this Bill.
For the general purposes of the criminal law in regard to any Irish person, any person in the Republic charged with an offence of “robbery”“burglary” or “aggravated burglary”, the description has been changed to coincide with the description of the Theft Act in England and Northern Ireland but the definition of “to steal” is still the definition in the Larceny Act. There will be a curious situation where defending Counsel will try to take the bits out of the English textbook that suit the description of the offences and ignore the other very important bits which deal with the definition section. In the absence of any Irish textbooks they will have a considerable job deciding ultimately what sort of hybrid offence we have created. I accept that this is a piecemeal amendment, that it is highly undesirable but one that has  been introduced in this Bill. If the Minister is not prepared to incorporate the definition of the sections of which he has borrowed the description, then I will not press this amendment.
Mr. Cooney: I regret to say I cannot accept the amendment because I think it would lead to an even worse position. In practical terms it would not improve the position. I cannot conceive of a situation where our present definition of stealing would be inadequate to support a case of, say, robbery committed in the other jurisdiction or of a situation in the other jurisdiction where the wider definition would not also include ours. The Senator attempted to produce examples for me and the difficulty in producing examples having regard to her knowledge and experience shows that what I am saying is in practical terms correct.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 and 7 agreed to.
Question proposed: “That section 8 stand part of the Bill.”
Mr. Dolan: May I ask a question? “In the application of section 2 of the Criminal Law Jurisdiction Act, 1975, to this section it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.” I quote that because of the reference that is often made to the 100,000 guns held in the Six Counties. Has it any reference to this? What does the Minister mean by that?
Mr. Cooney: It is part of the reciprocal nature of the Bill. It is a reciprocating Bill providing the same provisions as in the UK Bill.
Question put and agreed to.
Sections 9 and 10 agreed to.
Mrs. Robinson: I move amendment No. 11 (b):
 To insert the follow new section before section 11:
“A special court established under Article 38.3.1º of the Constitution shall only have jurisdiction to try offences under sections 2 and 3 of this Act in so far as such offences have been declared to be scheduled offences in accordance with the provisions of section 36 of the Offences Against the State Act, 1939.”
I made it clear on the Second Stage debate that I regard the conferring of jurisdiction on the Special Criminal Court in relation to offences committed outside the jurisdiction, in other words, in Northern Ireland, as being contrary to Article 38 of the Constitution and giving rise to very serious constitutional questions. This amendment is introduced in order that the actual scope of the Special Criminal Court is not broadened in some way by this Bill, in a way that I do not quite understand or think would conform with the requirements, both of Article 38 and also of the 1939 Act.
The section sets out to limit the offences committed outside the jurisdiction, that is in Northern Ireland, which can be tried and brought before the Special Criminal Court to scheduled offences under the 1939 Act. This would mean that a person would be tried only for an offence committed in Northern Ireland and before the Special Criminal Court on the same terms and conditions as a person who committed an offence in the South. In other words, there is wider scope of bringing people before the Special Criminal Court who commit offences in Northern Ireland which are scheduled in this Bill. There may be some confusion about the use of the Schedule in this Bill and the meaning of a scheduled offence for the purposes of the Special Criminal Court. It is clear under the only statute which affects this part of the operation of the Special Criminal Court, that is, Part V of the Offences Against the State Act, 1939, that what the Government in order to schedule an offence must do is in accordance with the conditions laid down in section 36 of the 1939 Act. This provides that:
 Whenever while this Part of this Act is in force, the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.
Subsection (2) provides that:
Whenever the Government has made under the foregoing sub-section of this section any such declaration as is authorised by that sub-section, every offence of the particular class or kind or under the particular enactment to which such declaration relates shall, until otherwise provided by an order under the next following sub-section of this section, be a scheduled offence for the purposes of this Part of this Act.
Subsection (3) allows the Government to declare that the offences are no longer scheduled offences and can be tried before the ordinary courts. Since the Special Criminal Court was established at the end of May, 1972, there are two orders, one in June, 1972, and the other in November, 1972, scheduling offences which may be tried before the Special Criminal Court, and these certainly include some of the offences contained in the Schedule to this Bill but by no means all of them. The present list of scheduled offences covers the section under the heading of malicious damage. One of the scheduled offences is an offence under the Malicious Damage Act, 1861. It also includes offences under the Explosive Substances Act, 1883, and under the Firearms Act. It does not include a number of other offences, some serious offences—but nevertheless the principle is a very important one—under the first part of the Schedule: murder, manslaughter, common law offences, arson, kidnapping or false imprisonment. It does not include the offences under sections 18 and 20 of the Offences  Against the Person Act, wounding with intent to cause grievous bodily harm or causing grievous bodily harm. It does not include the two new offences, new in the sense that the description has been changed, robbery and aggravated burglary, that are incorporated in this Bill.
Therefore the effect of section 11 as it stands would appear to be that a much broader range of offences would go automatically to the Special Criminal Court. I may be under some misunderstanding here, but it seems as though the matter has been left rather confused as to whether anything further is to be done. Under the Offences Against the State Act, 1939, it was open to the Government at any time to bring in an order scheduling offences to be tried before the Special Criminal Court and therefore the Minister could reply that it is the intention of the Government, as soon as this Bill is passed, to make such an order providing that all the offences in the Schedule to this Bill will be scheduled offences for the purposes of section 36 of the 1939 Act.
If that is the case, I will be happy to hear it because it will make for clarity and certainty in the position. This would be all the stronger reason for having this provision in the Act itself, because that is a control; it is a control of the type of offences which we allow to come before the Special Criminal Court. It would mean that it would have to be recognised that the scope and jurisdiction of the Special Criminal Court in relation to scheduled offences was being broadened very considerably to take in a whole new range of offences which are not at the moment classified by Government order as scheduled offences and which can only come before the Special Criminal Court if the Attorney General in exercise of his power issues a certificate that in his opinion in relation to a particular offence the ordinary courts are inadequate for the preservation of peace and safety and the administration of justice.
Therefore I would hope that the Minister will accept this amendment and that it will be provided that no person will be brought before the Special Court for an offence under either section 2 or 3 of this Bill unless  the Government have, prior to that, scheduled the particular offence as a scheduled offence under section 36 of the 1939 Act. Obviously one of the very important limited safeguards of the 1939 Act machinery is that at least it can be brought to an end by ministerial order or by a Government order declaring that the ordinary courts are once more adequate. By having the offence specifically scheduled in this way there would be the control of the publicity of the order, unfortunately, because of the weakness of parliamentary control, under the 1939 Act the order would not have to be laid before either House, but it would exist in print and people would realise that a new range of offences can be tried before the Special Criminal Court, that is, the offences as set out in the Schedule to this Bill. But I hope the Minister will be disposed to accept this amendment.
Mr. Cooney: I must say I am not accepting the amendment because I cannot see any need for it. As I said when I was replying to the Second Stage of the debate, the Bill allows the offences here to be tried before any court in the land. The procedure for taking evidence on commission is confined to offences being tried before the Special Court. The Bill allows these offences to be tried before any court, the ordinary criminal courts, but in the unhappy situation that we have here today, where the ordinary courts are inadequate to deal with this type of crime, it has to be referred to the Special Criminal Court. Let us remember that the Special Criminal Court is serving a real need. It was set up because we were apprehensive that juries would be interfered with, that they would be intimidated, that they would be threatened, that they would be assaulted or worse might happen to them. Again we cannot debate this Bill in a vacuum. We know very well that there are evil people abroad in our land who would not stop or think twice about attempting to intimidate or assault or do worse to a jury if it suited their book.
Therefore the need for the Special Criminal Court is a real one, and it still subsists. I anticipate that an order under section 36 will be made in due course  declaring the offences in question to be scheduled offences, and consequently they will come before the Special Criminal Court for hearing. If that is not done the Attorney General has power to certify that the ordinary courts are inadequate to try such offences and the Special Criminal Court could be given jurisdiction grounded on his certificate as to the inadequacy of the ordinary courts. Again if the offences are non-scheduled, he can send people forward for trial for them without the necessity of a preliminary hearing in the District Court.
It is my opinion that the Government will make an order under section 36 of the 1939 Act declaring the offences to be scheduled offences. There is no need for the amendment because the situation would be met in the ordinary course of events. There would be no need to have a provision in the Bill on the lines proposed because it has been emphasised that, as the Bill is drafted, the exclusive jurisdiction over these offences is not given to the Special Court. They can be tried in any court in the land but the necessary procedure for taking evidence on commission, in effect, rules out jury trials. I hope there will be a happy time when jury trials can be resumed. Then, in that event, the Special Criminal Court would not have sole jurisdiction over these offences. But, as I say, we have to have regard to the reality of the situation in this island, and the Special Criminal Court is the only court that is adequate to deal with this type of offence. I anticipate that an order under section 36 will be made in due course.
Mr. Lenihan: This amendment appears to be in line with the principle I was adumbrating before we adjourned, in that this is a very substantive change or inroad into the permanent criminal law jurisprudence of this country. For that reason it should not be looked at in quite the same way as emergency legislation. This is going to be permanent legislation. What the amendment put down by Senator Robinson rightly seeks to do is to ensure, which is indeed the spirit and the intention of the Act, that the Special Court which was established under the relevant Article 38.3.1º of the Constitution and which  will function for the purposes of trial under section 11,
shall only have jurisdiction to try offences under sections 2 and 3 of this Act in so far as such offences have been declared to be scheduled offences in accordance with the provisions of section 36 of the Offences Against the State Act, 1939.
This is helpful so far as the Minister is concerned. I would like if he looked at it in this light, because he may say that there are other amendments and other attitudes adopted here in the Seanad that conflict in principle with what he is seeking to do. We can have our debate about that, but this amendment would appear to me to be one that is in keeping with what the Minister himself is seeking to do. Fundamentally, he is ieeking under section 11 to have the Special Court established under the relevant Article of the Constitution, the court that is in seisin of offences under the Bill. If that is the case surely what Senator Robinson suggests follows as a natural conclusion to what is in section 11 and what is the purpose of the Bill: that we copperfasten the situation so as to ensure that the Special Court established under the relevant Article of the Constitution will be confined to scheduled offences under the Offences Against the State Act, 1939.
What I would like to hear from the Minister is that—I have not the Offences Against the State Act, 1939 in front of me—is if there is any difference in degree or kind between the scheduled offences under this Bill and the Offences Against the State Act, 1939. If the Special Court is there to function under section 11 it would make sense, it appears to me, that the Special Court be confined in this instance to the scheduled offences under the Offences Against the State Act.
In that way we highlight the purpose of this legislation, because we cannot let this legislation appear in any way to be riding high across the whole area of criminal law jurisprudence, and in fact will be in keeping with the whole spirit of the legislation as enunciated by the Minister in dealing with the extra-territorial enforcement in relation  to these offences which are, broadly speaking, offences envisaged by the original Offences Against the State Act as amended in 1972. Therefore I would like to hear from the Minister more practical and concrete reasons why this amendment is not acceptable, because it appears to me to be in line with what the Minister is thinking and furthermore to be in line with the general approach he should have towards this extension of the criminal law on the extraterritorial principle of confining it to what it is intended to deal with.
The Minister is aware that, stripping the whole matter of legal technicality, this legislation, so far as there was any validity in it, is designed to deal with the type of offences originally envisaged by the Offences Against the State Act, 1939, as extended by the Offences Against the State Act, 1972. That is being practical about it. What Senator Robinson's amendment proposes to do is to maintain at least a continuity of principle there whereby the offences that are going to come within the ambit of the Special Court are offences under section 36 of the Offences Against the State Act, 1939. In that way logic and continuity are preserved. These offences in the Schedule to the 1939 Act will be the offences that the Special Court established under the Article of the Constitution and invoked in this section shall have jurisdiction over.
Mr. Cooney: The amendment seeks to give the Special Court seisin of offences under section 2 and 3 so far as they have been declared scheduled offences and come under the provision of section 36. But the Special Court is limited in the offences it can try. Offences can only come to it in a certain limited number of ways—either by declaration under section 36 or by direction of the Attorney General—and what is going to happen in this case is that a declaration will be made under section 36 scheduling the offences under this Act. Some of them may have already been caught by the previous declarations made in respect of offences made under the Explosive Substances Act, the Malicious Damages Act, the Firearms Act, and under the Conspiracy and Protection of Property Act. There might be others in the  Schedule that would not be caught, but the declaration under section 36 will catch any of the others and will give the Special Court seisin of them in the same way that the Special Court is given special seisin of the offences with which it already deals. This amendment is not going to add anything to the position nor is it going to be in any way confining on the powers of the Special Court.
Mrs. Robinson: With respect to the Minister, that is not quite the position. In fact I think almost everything he said in response that time and the previous time, too, reinforces the view that the amendment is in keeping with the framework of the Bill and that it is a necessary amendment, because the amendment would require that the Special Court would only have jurisdiction to try offences under sections 2 and 3 of this Act in so far as those offences were scheduled offences within the meaning of section 36, because a Government Order had so scheduled them. As I pointed out and as the Minister has agreed, certain offences in the Schedule to this Bill are already scheduled offences for the purposes of section 36, but a number of others are not.
The Minister said initially in response to my reasons why this amendment was put forward that he anticipated the Government would probably make a declaration. I submit that is not good enough for the Houses of the Oireachtas. The Government are not bound by the Minister's statement. I am not trying to allege that there is ill-will in what the Minister says or, indeed, that there is not entire good faith, and perhaps they will make a declaration. But there is no obligation, and what a Minister says on the record of a House in steering a Bill through is interesting but not binding on the Government. I believe it is necessary that the Houses of the Oireachtas assert a control in this matter and that they say that, rather than have an intention that the Government will make a declaration that the other offences in the Schedule to this Bill will be scheduled offences for the purposes of section 36, there be a requirement that unless they do that, then persons charged with those offences  cannot be tried before the Special Criminal Court, because of course they can be brought before the Special Criminal Court by another mechanism. They can be brought before the Special Criminal Court by the certificate of the Attorney General under sections 46 (2) and section 47 (2), and in this case it is section 47 (2) which would be relevant in bringing the person directly before the Special Court without coming before a District Court for a non-scheduled offence. Section 47 (2) provides:
Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney General certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which that person is so intended to be charged were a scheduled offence.
So the Attorney General has power to issue a certificate in relation to an individual person charged with an individual offence, a non-scheduled offence, an offence under section 2 or section 3 of this Bill.
What we would in effect be doing is allowing the situation to prevail that it would be executive discretion, the discretion of the Attorney General, administrative discretion, which would decide whether a person would come before the Special Criminal Court when charged with an offence under section 2 or 3, when it is perfectly simple for us to require, as the Oireachtas is reviewing legislation and looking at the text of a Bill, by this amendment that a person will not be brought before the Special Court charged with an offence under section 2 or 3 unless that offence has been scheduled. This is an important matter of parliamentary control, of requiring the Government to bring in an order that whatever offences under sections 2 and 3 are not already scheduled offences for the purposes of section 36 of the 1939 Act shall be so scheduled if it is proposed to use the Special Court and not to leave it on  that individual basis, on what I would strongly maintain is not a satisfactory basis, where it is an individual executive decision made by the Attorney General in relation to a particular case.
I would maintain that the effect of scheduling the offences, if it is the intention, would undoubtedly be to broaden very significantly the scope of the Special Criminal Court, because as I have already stated—and I think that this has to be taken into account as one of the effects of using the Special Criminal Court as a court—there are a lot more offences in Northern Ireland —robbery, aggravated burglary, murder, manslaughter, arson, kidnapping, false imprisonment, wounding with intent to cause serious bodily harm or causing the serious bodily harm—which are coming within sections 2 and 3 of this Bill. These would be scheduled offences and the Special Criminal Court would have jurisdiction. The only reason I prefer to broaden the scope of the Special Criminal Court in this way is that it is clear that it is intended to use the Special Criminal Court and it is better to do it by scheduling these offences openly than to do it by allowing the Attorney General to take an individual administrative action in certifying that in the particular circumstances of the individual the ordinary courts are inadequate and that person should be tried before the Special Criminal Court.
Nothing the Minister has said in any way seems to take from the reasons the amendment should be accepted. I ask him to reconsider the matter and, perhaps, to reconsider it before Report Stage, because it is genuinely giving some degree of parliamentary control by ensuring that the Special Criminal Court will not be used except for scheduled offences which fits into the framework of the 1939 Act. I am a strong critic in another context of that framework, but at least let us work within the framework when it is there and let us not fall back on the formula of allowing the Attorney General under section 47, subsection (2), to refer individual cases individually before the Special Court for trial there.
Mr. E. Ryan: May I ask the Minister to look at this amendment and consider it carefully, because it deserves careful consideration? I know the Minister does not feel it is absolutely necessary, but he has on a number of occasions talked about grey areas and on a few occasions he said that, rather than leave a situation which is not perfectly clearcut, it is better to amend it. There is a strong case to be made for this amendment.
We are dealing with this situation, whether one accepts the necessity for this Bill or not. Even those in favour of it acknowledge it is going outside the normal law, outside the kind of law we would normally want to have. Those who support it acknowledge that it is only because of unusual circumstances they are supporting it. In any situation where one has a law which is unusual, which is going perhaps further than one would normally like, it is more than ever necessary to define exactly what one is doing, how far one is going, in what circumstances offences can be tried by the courts or by the Special Criminal Court or in what circumstances offences can be tried.
Any amendment, any proposal of this kind, which is trying to define exactly what the powers will be under this Bill, how far they can go, in what circumstances they can be exercised, should be accepted and written into the Bill. It is not, as I understand the Minister, that he objects to what is proposed; it is that he does not seem to think it is necessary. If this is the only objection he has I ask him to give it further consideration, put it in the Bill in the interests of being clear what we are doing, what is envisaged, and what can be done if the Bill finally goes into law.
Mr. Cooney: The triggering of the jurisdiction of the Special Criminal Court is provided for in the 1939 Act and it is clearly set out there as being an executive function. It is triggered either by action of the Attorney General or by way of declaration by the Government. I cannot anticipate how the offences under this Bill will be dealt with, whether the jurisdiction is going to be triggered to deal with these by way of declaration or whether the Government might decide to retain  discretion via the Attorney General in having some offences sent to the Special Criminal Court and other offences tried in the ordinary criminal courts.
But if we were to adopt this amendment there would be no question of any of these offences going before the ordinary criminal courts. It could happen that the decision will be that the situation at present is not such as to make that a realistic thought and that a section 36 declaration would have to be made. Nevertheless, it is an executive function and always has been, as to how the operation or the giving of jurisdiction to the Special Criminal Court in relation to offences is to be triggered.
That discretion should remain, not because of anything draconian about an executive discretion of that kind but because to preserve it enables offences to be sent to the ordinary criminal courts as well as to a Special Court if the Attorney General so decides, if the Government decide he is the person to activate the jurisdiction from time to time.
On the other hand, the Government may decide that a declaration under section 36 is necessary because of the times we live in. This is a prerogative of the Executive under the parent Act and has always been exercised as such and the Oireachtas has never sought to tell the Government how that jurisdiction should be availed of. The need to avail of it is based on knowledge which must necessarily be confidential and peculiar to the Government of the day. I do not think it is necessary, but I imagine that a declaration will be made, and consequently an amendment is unnecessary. It is an executive prerogative and I do not think the Government's hands should be tied in the fashion proposed by the amendment.
Mr. Lenihan: I can understand the need for executive prerogative under the Offences Against the State Act legislation. That is legislation we all understand the need for. It has been there, enacted and supported to deal with particular situations by successive Governments. What we are talking about here is something different. We are bringing in this new principle of  extra-territoriality. We are dealing in a highly sensitive area. Heretofore, under the Offences Against the State Act chain of legislation, we have been dealing with our own citizens who have been apprehended by our Garda force. Our Army have been engaged from time to time, in security operations. All of these matters were under the control of our State, and under the control of institutions in whom we have confidence.
We are into a different area here. I will not argue about the merits or demerits of going into this area of extra-territoriality but in this area it is important that we have as small an element of executive jurisdiction existing in the matter. We are seeking here to establish a new principle of law vis-à-vis part of this country. It would be wise to hasten slowly in the matter and not to have the executive element that exists under the Offence Against the State Act chain of legislation existing in this legislation. For that reason I feel that the offences that the Special Court will be dealing with here under sections 2 and 3 should be defined as scheduled offences under the section 36 procedure of the Offences Against the State Act. That removes any element of governmental or executive discretion or executive or ministerial jurisdiction.
Mr. Cooney: It also cuts out the possibility of sending them to a judge and jury. It is unlikely that will happen but the Senator's suggestion cuts that out completely.
Mr. Lenihan: That is a bit artificial.
Mr. Cooney: It is not artificial. The Senator's suggestion cuts that possibility out.
Mr. Lenihan: It is highly theoretical, in view of the whole tenor of this legislation. That is a theoretical point of view.
Mr. Cooney: I agree it is theoretical.
Mr. Lenihan: The whole tenor of this legislation is just “not on” in practical terms as far as a jury trial is concerned, and the Minister is aware of that. The amendment seeks to ensure, as far as any offences under sections 2 and 3 and as far as the procedure for the  trial of offences envisaged by those two basic sections are concerned, that we are going to have the matter defined by reference to the scheduling of offences under section 36 of the Offences Against the State Act.
In view of the nature of the Bill I imagine that in practice this is the way it will work out: that the Government will circumscribe themselves and confine themselves in that manner. From the point of not alone justice being done but appearing to be done, this amendment is valid. Would the Minister look at it in that context? Can he say in view of the scheduling that exists in this Bill, and that can exist under the provisions of section 36 of the Offences Against the State Act, that he can envisage any situation in regard to offences to be chargeable under sections 2 and 3 that would be excluded from the scheduling procedure of the Offences Against the State Act, 1939, and the Schedule existing in this Bill?
It appears that the Minister has ample power. It appears to be more in accordance with criminal jurisprudence and more logical to accept the amendment and, therefore, have it on the face of legislation exactly what powers exist in regard to particular offences. It is a more desirable procedure in regard to a Bill of this kind, which is outside the Offences Against the State Act chain of legislation, bringing in this extra-territoral principle where we will be relying on security and police forces on whom, let us face it, we cannot have complete reliance at the moment. There is this big difference between the situations envisaged under this Bill and the situation that operates under the Offences Against the State Act.
Under the Offences Against the State Act in regard to the administration, jurisdiction and otherwise of law under it, we are relying for enforcement and apprehension on the security organs under the control of this Parliament, Oireachtas Éireann. Under this Bill we are now moving into a far more sensitive area, and surely it is more sensible to have that aspect clearly defined in legislative form rather than to give the free rein that existed under the Offences Against the State Act chain of  legislation and, in my view, justifiable under that chain of legislation.
The Offences Against the State Act administrators and enforcers, and the security forces of this State, are responsible to this Parliament and to a democratically elected Government here. There is a clear distinction between that situation and the situation envisaged under this Bill, where in various aspects we would be dependent on the security forces of a part of this country, on whom, to put it mildly, we do not have the sort of dependence we have in regard to our own security forces.
For that reason surely the amendment is a very common-sense suggestion. We should have it more clearly defined. We should have definite scheduling in regard to offences under sections 2 and 3 of this Bill and we should not apply the same criteria as applied under the Offences Against the State Act legislation. The way to do this practically is through this amendment. The Minister and the Government would lose very little and it would make sense.
This Act, if it comes to be administered, will be administered on the basis suggested in this amendment. I have that much confidence in the Government. An Irish Government would confine themselves to that area of offences and would not depart outside scheduled offences either under this Bill or under the Offences Against the State Act, 1939. If the spirit of the amendment is what any Irish Government would envisage as encompassing their functions under this legislation, surely the amendment should be accepted. It makes good sense from many points of view and it should appeal to the Minister.
Mr. M.J. O'Higgins: It was worth while having this amendment discussed but it would be a great mistake on the Minister's part to accept it. It is clear that there is no great love or enthusiasm in any part of the House, or in any part of the country, for Special Courts. That is probably true of all of those who have taken part in this discussion, all of us who are lawyers. The general reaction of a person is against Special Courts and a distinct preference for the ordinary courts of the land.
The acceptance of this amendment  in the present situation, the situation which this Bill is trying to deal with, would effectively force the Government to make a declaration under section 36 of the 1939 Act. It may well be that that declaration will be made. The Minister has expressed the view that in the present circumstances, in order to deal with the offences to be dealt with under this Bill, the ordinary courts would not be adequate and that therefore a declaration under section 36 of the 1939 Act will be made. There is no doubt that acceptance of this amendment would compel the Government in the existing circumstances to make that declaration. The making of that declaration immediately effectively rules out the possibility of using the ordinary courts of the land.
All of us would prefer that the ordinary courts be used, if they can be. But if the declaration is made they would be ruled out. If the situation develops where the Government feel it is not necessary to make a declaration under section 36 of the 1939 Act, that will be because they feel that some of the persons who may be charged with scheduled offences, can be tried by the ordinary process before the ordinary courts of the land. At least the discretion would be allowed. What I would regard as the first preference of most people would be given effect to in that situation. If the Government felt that the situation was not such that a declaration under section 36 of the 1939 Act was required and that cases could be dealt with as they came up as individual cases, having regard to the background and so on, each case should be the subject of a decision by the Attorney General as to whether on constitutional grounds, Article 38, the ordinary courts were inadequate or not to deal with it. There would be a fair opportunity that the ordinary court could be used. I have no great confidence that that would be so, but if the amendment was accepted the Government would be forced willy nilly into making a declaration. That would end the possibility of the ordinary courts being used.
Mrs. Robinson: I get the feeling that the Minister and Senator O'Higgins are under some misapprehension that if an  offence is scheduled for the purpose of section 36 of the Offences Against the State Act it cannot come before a trial by jury. There is express provision for that in the 1939 Act, under section 45, subsection (2) which reads:
Whenever a person is brought before a justice of the District Court charged with a scheduled offence which is an indictable offence and such justice receives informations in relation to such charge and sends such person forward for trial of such charge, such justice shall (unless the Attorney-General otherwise directs) send such person forward in custody or, with the consent of the Attorney-General, at liberty on bail for trial by a Special Criminal Court on such charge.
The effect of scheduling the offence is that one says that these offences are designated to go automatically to the Special Criminal Court unless the Attorney General otherwise directs.
The worst situation in relation to sections 2 and 3 of this Bill is to leave it purely to executive discretion to decide whether this person should be tried before the Special Criminal Court. We should not enlarge the area of executive discretion because it particularises individuals. The Parliament has no say as to whether the offences under sections 2 or 3 are going to come before the Special Court or not; it is entirely an administrative decision. Section 47, subsection (2) states:
Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney-General certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing subsection of this section shall apply and have effect as if the offences with which such person is so intended to be charged were a scheduled offence.
That person is charged in the Special Court and is tried by the Special Court. That is a very broad scope of administrative discretion and we should be very wary of creating a system, as we are  doing in this Bill, that it will be up to the Attorney General if he is of the opinion in each individual instance. I do not welcome that. I am not enamoured of the Special Court no more than Senator O'Higgins. I certainly am not enamoured of the lack of parliamentary control in the 1939 Act. It is preferable to actually write in a safeguard into this Bill that the Attorney General cannot send a person for trial under sections 2 or 3 to the Special Criminal Court unless there has been an order scheduling that particular offence as a scheduled offence for the purposes of section 36 of the Offences Against the State Act.
We have already agreed that a number of the offences in the Schedule to this Bill are already scheduled and the person would go before the Special Court. If it is proposed that any other offences under sections 2 and 3 be sent for trial before the Special Court it will not be an individual or particularised exercise of administrative discretion by the Attorney General; it will be because there is a requirement that the Government order that a particular offence be a scheduled offence for the purposes of section 36 of the 1939 Act, that an Order exists scheduling that offence and for that reason a person goes before the Special Court unless in the circumstances there is no reason why the person should not be tried by a judge and jury. The Attorney General, therefore, directs that he be tried by a judge and jury. We would all prefer in so far as possible that persons be tried by a judge and jury.
The Minister emphasises, although this Bill when and if it becomes law will be a permanent feature on our Statute Book, the Offences Against the State Act, part 5, can and hopefully will be terminated whenever it is possible to do so. I urge the Minister, if he is under a certain misapprehension about the effect of scheduling an offence as he seemed to be earlier in response to what Senator Lenihan was saying, that he might reconsider the scope of this amendment. He should reconsider what it intends to do, the safeguard it would have of providing that a person would not be brought before the Special Court  for offences under section 2 or 3 unless these offences had been scheduled by an order as provided for in section 36, that it would not be left entirely to executive discretion. To that extent it would limit the scope of the Attorney General. The Attorney General could not particularise, individualise, and send a person forward for trial to the Special Court for an offence under section 2 or 3 unless there has been an order scheduling the offence as a scheduled offence or unless it was, as some of them are, already an existing scheduled offence under the two Government orders that exist of June and November, 1972, as outlined by the Minister.
Mr. Cooney: One could have a scheduled offence in which the Attorney General would still have discretion if it were a summary offence, as provided for under section 45 of the 1939 Act. It is not correct to say that in all cases of scheduled offences they must go to the Special Criminal Court unless the Attorney General otherwise directs. In the case of indictable offences they must go to the Special Criminal Court unless the Attorney General otherwise directs. In the case of summary offences the jurisdiction is given to and not removed from the District Court, unless the Attorney General requests that they go to the Special Criminal Court. The positive power of the Attorney General is not being interfered with in regard to summary offences notwithstanding the fact that they may be scheduled.
The net point with regard to this amendment is that the Government must retain the power to decide how the jurisdiction of the Special Criminal Court is to be exercised. It is an executive function given under the 1939 Act. This amendment seeks to fetter the Government's discretion by directing the Government to make a declaration under section 36. If the Government do not make a declaration under section 36, the Special Court, under the amendment, would not appear to have any jurisdiction even on a reference from the Attorney General. That would be my reading of it. I do not know whether that is intended or not, but I cannot accept this amendment because it seeks to tie the Government's hands in an area in which the Government are, by  the law of the land, given a discretion.
Amendment put and declared lost.
Acting Chairman (Mr. Brosnahan): Amendments Nos. 12, 13, 15 and 16 are related and may be taken together. They deal with the issue of the delivery of the accused into the custody of the police in Northern Ireland.
Mr. E. Ryan: I move amendment No. 12:
In subsection (2), lines 14 to 18, to delete paragraph (a) and substitute:
“(a) he has a right to be present at the taking of the evidence referred to in the order.”
The purpose of the amendment is a simple one. It is to remove the situation where a person who wants to appear at the taking of evidence should not necessarily be put into the custody of the police in Northern Ireland. There are a number of amendments dealing with this point. So far as this amendment is concerned it is to remove the flat obligation that he should be put into the custody of the police in Northern Ireland if he wants to be present at the taking of evidence.
It seems to me that a person has a right to be present at the taking of evidence in many situations. If the accused were being tried in this part of the country he would not be in custody; he would very often be on bail. Again, there seems to be no reason why this legislation should place him in a less favourable position than if he were being tried in this country. Consequently, whatever situations might be dealt with in this Bill in a more detailed way, the purpose of this amendment is to remove the flat obligation that an accused should be present in the custody of the police in Northern Ireland and give him the right to be present at the taking of evidence referred to in the order.
Mr. Cooney: The purpose of these amendments—Nos. 12, 13, 15 and 16— is to dispense with the requirement that if a person goes to Northern Ireland for the purpose of hearing evidence being taken on commission he should have to go in custody and remain in custody. But Senator Lenihan's amendment  proposes that if the person is in custody in the State he should remain in the custody of the Garda even in Northern Ireland. Therefore there is a slight contradiction here between the amendments proposed in this group.
The first difficulty in regard to accepting the amendments is the fact that the Law Enforcement Commission, whose report was accepted both by the Government here and by the Government in the UK, said at paragraph 26, in relation to the taking of evidence on commission, that the person would be in custody at the time of taking of the evidence:
Whether the method at paragraph 22 (a) or at paragraph 22 (b) is adopted, whenever it is decided to take evidence on commission, the accused, on being informed of the decision to take evidence on commission, should also be informed that he is entitled to attend in custody at the taking of such evidence and that he may so elect. Such custody would be the custody of officers of the other jurisdiction and should be made lawful custody there; he should be immune from arrest or charge in respect of any matter while in that jurisdiction for the taking of the evidence on commission. He should also be informed of his right to be represented by counsel or a solicitor at the taking of such evidence, whether or not he is so represented at the trial itself.
The agreed report provides for the accused person to be in custody at the taking of the evidence on commission. For that reason I would be unable to accept the amendment and would have to resist it. Again there is the practical reason—and this is the reason that informed that agreed paragraph in the report—that one could imagine a situation where a person might be arrested down here on a charge of murder in Northern Ireland. Such a person would almost certainly be in custody here. He would not be on bail here. If we were to agree to these amendments the situation would be that a person in custody here on a charge of murder would be delivered across the Border, not in custody. It would be naïve to expect that person to voluntarily  attend the commission and, more importantly, surrender himself again to this jurisdiction on the completion of the commission proceedings. It is quite impractical to anticipate that a person charged with a serious offence and in custody here could be delivered without custody for the purpose of taking evidence on commission and to expect him to surrender himself again on the conclusion of the commission. I have no doubt that that is the good and practical reason that was behind the agreed recommendation of paragraph 26 in the Law Enforcement Commission report, which has been accepted by both Governments. It is the implementation of that paragraph that is reflected in the wording of section 11.
I come now to amendment No. 15 and Senator Lenihan's proposal that if the accused is in custody in the State he should remain in the custody of the Garda Síochána while in the North. This again is no help in dealing with the situation I have mentioned. It might be argued that if an accused is in the custody of the Garda here he could remain in their custody in Northern Ireland, but of course their writ would not run in Northern Ireland. If their writ would not run, the custody they would have for the prisoner would be such that he could escape without any sanction following him. Again, if it is suggested that their writ should run in Northern Ireland, I invite the Opposition to consider the reciprocity that that would encompass.
Mr. Lenihan: These amendments are all on the same principle and come back basically to our considered opinion, which was also the considered opinion of the framers of the Sunningdale document, that a sine qua non before any legislation of this kind could be envisaged and before courts with extra-territorial jurisdiction could function would be the establishment of structures, political, legal and judicial. That is the basic theme that ran through Sunningdale. It was the terms of reference of the Law Enforcement Commission, which brought in the recommendations to which the Minister has referred.
 I will not go into the political structures. Unfortunately, they are now obviously irrelevant. I will confine myself to the basic structure relevant to this Bill—to have a police authority functioning in Northern Ireland and a police authority functioning here in which there would be confidence on both sides of the Border, thereby justifying the exchange of offenders envisaged here under this principle of extra-territoriality. It is as straightforward as that. That is the thinking behind the amendments we have here. This section envisages providing for the handing over of offenders in our jurisdiction, whether in bail or custody, to the police and security forces in Northern Ireland, in whom this Government, no more than the previous Government, do not have any confidence.
Mr. M.J. O'Higgins: This is not the essence. Surely the essence is machinery to take evidence.
Mr. Lenihan: But the essence, surely, of the functioning of the section is that, in order to take the evidence in Northern Ireland, people are handed over to the police and security forces——
Mr. M.J. O'Higgins: If they choose to be.
Mr. Lenihan: ——whether in custody or on bail, under order of the courts in the Republic. Senator O'Higgins has referred to the fact that the purpose of that machinery is to ensure that they can be present and have the right to be present at the hearing of evidence in Northern Ireland. That is an excellent principle provided there is acceptance in this jurisdiction of the efficacy, the bona fides and the equity of the police and security forces in Northern Ireland, provided there is acceptance on the part of offenders in the Republic that the police and security forces in Northern Ireland are to be trusted in regard to guaranteeing fair play and justice to people put into their custody by the police force here or voluntarily, if the offender is on bail in this jurisdiction. This raises a major question mark in the whole Bill because, in order to ensure that the evidence can be taken in the North of Ireland, the offender  under this section is to be put under the disability of having to go into custody under the police and security forces of the North of Ireland in whom——
Mr. Cooney: Under the police only.
Mr. Lenihan: ——he does not have any confidence and in regard to whom this State is at present pursuing—I hope, vigorously—complaints in regard to treatment of prisoners on a widespread scale by those same police forces. It is not enough for the Minister to say that we are not dealing with boy scouts. We are dealing with permanent legislation designed to protect offenders who are presumed innocent until proved guilty. That is basic criminal jurisprudence and is a basic section under Article 8 of the European Convention on Human Rights. This offender, who is charged with a criminal offence and is presumed innocent until proved guilty, is either in the custody of the respected police forces of the Republic or under bail by order of the respected courts of the Republic, in either of which case he is now required by this section, in order to exercise his basic human right, to be present when evidence is given against him. Therefore, he must depart from the protection of the police force for which he has respect and regard and he is taken over at the Border by the police forces of Northern Ireland and remains in their custody during the hearing of the evidence and until he is handed back again into the Republic.
That, in effect, is what is involved here in this offender seeking to exercise rights he is guaranteed under the European Convention on Human Rights and rights he is guaranteed under our Constitution and under the criminal jurisprudence of the Common Law for a long number of centuries. It is important to emphasise this point because it may be forgotten. Section 11, subsection (2), states that:
Where a court order makes an order under this section, it shall inform the accused that—
(a) he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence referred to in the order and if he exercises the right he will be delivered in custody into  the custody of the police of Northern Ireland.
I challenge the Minister here because that right to be present at a hearing of evidence in the North of Ireland is so circumscribed and so hedged in by reason of the offender being transferred into the custody of the police force of the North of Ireland, even if he is a free man in the Republic under a bail order of the Republic's courts, that it is no longer a right in any meaningful definition of that term. To despatch an offender——
Mr. Cooney: An accused.
Mr. Lenihan: An accused or an offender——
Mr. M.J. O'Higgins: Senator Lenihan is assuming that he is guilty by referring to him as an offender. The Bill refers to him as an accused.
Mr. Lenihan: I bow to the better definition of the Minister. The accused, innocent until he is proved guilty, in the likely circumstance, by reason of the very fair approach of our courts, that he may be on bail, by reason of an order of our courts, in order to exercise his right to be present at the taking of evidence has to move himself from being a free man in the Republic into the custody of the Northern Ireland police and subject himself to the possible interrogation and to the possible ill-treatment of which we in the Republic are now indicting the British Government for and being a party to in regard to a substantial number of people and which indictment we are very likely to succeed in proving at the Commission on Human Rights in Strasbourg. It is a strange distortion of values. Paragraph 2 of Article 6 of the European Convention on Human Rights states that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. If the court decides that in the pursuance of that dictum the person charged is a free man by reason of an order made by the court, surely it is iu accordance with that principle that he should remain a free man pending the determination of his alleged guilt.
Paragraph 3 of Article 6 states that everyone charged with a criminal  offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
That is fair enough, and:
(b) to have adequate time and facilities for the preparation of his defence;
An accused is being declared to be a free man on independent bail by an Irish court with a view to arranging his defence, with a view to having time to consult his lawyers and generally have everybody concerned properly briefed in his defence. Instead, he goes up under lock and key under custody of the police force which in 90 per cent of cases would be making the basic allegations against him at the hearing of evidence in the North of Ireland. During and after the trial he remains in the custody of the people who will be the main prosecution witnesses against him. Does that give him adequate time and facilities for the preparation of his defence? Paragraph (d) of Article 6 gives him the right:
To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witness against him;
Is there any equality in regard to the conditions of attendance of witnesses between the accused person in the Republic going either from freedom on bail or going from the respective custody of the Irish police into the custody of the police force making allegations against him, keeping him in custody before, during and after the trial——
Mr. M.J. O'Higgins: That paragraph to which the Senator referred relates to examining or having examined witnesses under the same conditions as witnesses against the accused. It is not the position of the accused but the position of the witnesses and they are the same whether the evidence is taken on commission or in court.
Mr. Lenihan: He must be in a position to procure the presence of witnesses.
Mr. M.J. O'Higgins: Read it again.
Mr. Lenihan: “To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Quite clearly that means that the accused should be in a position of freedom to obtain the attendance of witnesses, should be in a position of equality in regard to the alleged forces of law——
Mr. M.J. O'Higgins: You could never have anyone in custody if that was the interpretation.
Mr. Lenihan: This comes down to the kernel of the case again, which is that until one has a respected police and security situation in Northern Ireland it is fatuous to talk about superimposing this extra-territorial court principle. Basically, what is involved in any accused person leaving the Republic, either from a custody situation here or from a free situation here, is that he or she is landed into custody under the forces who will be giving evidence in 99 per cent of cases against the accused person. He will be in no position to obtain the attendance of witnesses, to have them examined properly or to have adequate time and facilities for the preparation of his defence. It is basically the taking of evidence in the Northern situation that will be the kernel of the whole case against the accused person. It is obvious that the kernel of the case will lie with the State witnesses, who will in almost all cases be police witnesses giving evidence in Belfast against an accused person who will have gone from the Republic into a total state of custody before, during and after the trial or after the taking of evidence, and will not be in a position to adopt the various standards for his defence set out in Article 6 of the European Convention on Human Rights.
That is our thinking behind the amendments. That is why, as Senator Ryan has moved in amendment No. 12, we are seeking to delete paragraph (a), under which the accused's basic human right to be present at the hearing of  evidence, where the witnesses most pertinent to the issue of his trial as to whether he is guilty or innocent, have to be examined and cross-examined, where rebutting evidence has to be prepared and gathered together in the interests of the defence of the accused, is exercised in the custody of the police of Northern Ireland. If he exercises that right he will be delivered in custody, even though he may be free under a bail order of an Irish court, into the custody of the police in Northern Ireland. That is the human right that is given by subsection (2) (a) of section 11. It is such a circumscribed human right that I would submit it has no chance of standing up under the declared criteria written into Article 6 of the most magnificent document that has ever been devised by the human race in the interests of human rights—the European Convention on Human Rights. Under no circumstances would that section, circumscribing the accused's right in the way it does, be accepted as being compatible with Article 6 of the Convention of Human Rights. Indeed, I doubt very much if accused people will in practice exercise the very limited right there. That right is so circumscribed that, in effect, it is not a right at all under Article 6 of the European Convention on Human Rights. It means in practice, on any legitimate interpretation of it, that it will not be exercised and that the accused will be forced to deprive himself of his fundamental right at Common Law and under criminal jurisprudence, which is, to be present at the taking of vital evidence against him.
The wording of amendment No. 12 is more in accordance with the Article 6 of the Convention on Human Rights. Our phraseology sets down the basic right. It suggests that we delete paragraph (a), which circumscribes and restricts his right by spelling out that the right can be exercised only on the basis that he is delivered into custody of the police, that he will be present in the custody of the police during the taking of the evidence. We remove the restrictive elements written into that section and——
Mr. M.J. O'Higgins: Can you not insert that in amendment No. 15?
Mr. Lenihan: That is in regard to our own police force.
Mr. M.J. O'Higgins: It is still “custody”.
Mr. Lenihan: What we suggest here is that basically he has a right to be present at the taking of the evidence referred to in the order.
Mr. M.J. O'Higgins: In custody.
Mr. Lenihan: So we write in that he has the right to be present. That is the amendment as it has been moved by Senator Ryan.
In amendment No. 13 we seek to delete “in custody”, line 27, which is consistent with amendment No. 12. In amendment No. 12 we give the accused person the basic right to be present at the taking of the evidence against him. In amendment No. 13 we seek to ensure that he is present at that evidence but not necessarily in custody. Again, with regard to line 27, which refers to “while he is in custody in Northern Ireland for the purpose of the taking of the evidence” we say that the restrictive words “in custody” should be deleted in accordance with the main principle I have just adumbrated.
In amendment No. 15 we propose to delete lines 32 to 35 and substitute the following:
(3) For the purposes of subsection (2) of this section if the accused is in custody in the State and if the accused indicates to the Court that he wishes to be present at the taking of the evidence he shall remain in the custody of a member or members of Garda Síochána while in Northern Ireland for the purposes of the taking of such evidence.
Either the Minister or Senator O'Higgins said that that custody, in regard to the Garda custody, might not be “custody” within the meaning of legislation in Northern Ireland. That is a technicality that I would accept. Whether one calls it custody the fact that he is under the care and supervision of a member of a respected police force is what is all important in the meaning and the drafting of that amendment.
Mr. Cooney: Would the Senator  allow reciprocity to the RUC coming down here in similar circumstances?
Mr. Lenihan: If expressed by the accused person, I would see no objection to that. That is why we have it phrased, if the Minister would read the amendment:
For the purposes of subsection (2) of this section if the accused is in custody in the State and if the accused indicates to the Court that he wishes to be present at the taking of the evidence he shall remain in the custody of a member or members of the Garda Síochána...
I take it the same situation would obtain on the reverse aspect but that the accused person would be well aware, indicating his desire to be present, that he would then be in the custody of a policeman or policemen in whom he had confidence. Whether it is technically “custody” in one jurisdiction or another it is very important, if this is to have even the colour of legitimacy, or the slightest prospect of being exercised by any accused person—that this amendment be incorporated. It just will not happen that the accused person down here, knowing that the evidence against him in the North of Ireland will be largely the evidence of the police and security forces in Northern Ireland, will put himself voluntarily into the custody of the police force in that jurisdiction for whom he has no respect.
This shows up the shallowness of the Bill as a whole, its total unworkability. The accused person's right to be present is rendered nugatory by imposing that  totally unreal prohibition or imposition on him. The accused person simply will not hand himself over in that sort of situation.
Therefore, I am arguing here on two lines. I am arguing that the section, as a whole, is contrary to Article 6 of the Convention on Human Rights, in the sense of its drafting and as it is presented in practice. My other line of argument is that I do not see the section ever functioning because of the restrictions imposed in it on the accused—that it will merely make it certain that in practice no accused man will allow himself be handed over into that circumscribed situation.
This is a two-tiered operation. We are opposed to the principle of the Bill as a whole, but, as a fall-back situation, we are offering constructive suggestions. The only possible way in which this section could hope to operate is if what we suggest in amendment No. 15 were permitted. Leaving aside the technicality of whether it is custody or not custody, whether our Garda Síochána legally would have custody within the Northern Ireland jurisdiction, I am talking about the practical question of confidence on the part of someone who might want to go up there and exercise his basic human right, as spelled out in Article 6 of the Convention on Human Rights, to hear the key evidence that could send him into jail for ten or 20 years.
Progress reported; Committee to sit again.
The Seanad adjourned at 9.50 p.m. until 10.30 a.m. on Wednesday, 9th July, 1975.
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