Wednesday, 30 July 1975
Seanad Eireann Debate
This amendment, although it is to the definition section, of section 1, relates really to the situation which arises where an accused person is undergoing the process of the evidence in his trial being heard on commission.
It is provided, in section 11, that where a court, which would be in fact the Special Criminal Court, makes an order for the hearing of evidence on commission in Northern Ireland, the accused will be informed by the court that among other things subsection (d) states:
while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid.
There was a good deal of discussion of this matter on Committee Stage. We on this side of the House attempted to persuade the Minister to add to the prohibition of any kind of suit or legal process the interrogation of the accused. We were afraid that, under the kinds of conditions which unfortunately obtain in Northern Ireland, the police or military in whose charge the accused was, could well take the opportunity of interrogating him about his activities. These persons are, rightly or wrongly, essentially people who are accused or suspected of being members of illegal organisations, organisations dedicated to the use of violence in various forms. Such a person on his arrival in Northern Ireland would obviously be of great interest to the security forces. Indeed any person in charge of them who failed to take such a step would be, from the point of view of his superior officers, failing in his duty. It would be an obvious opportunity for such people to embark on  a process of interrogation of the accused.
When I raised this matter with the Minister he said he did not think this would happen. In that respect perhaps he is a little innocent. Besides that the Minister suggested this could not happen because interrogation would be included in the phrase “legal process”. I am not sure that that is so. But, if it is so, it would seem desirable to state that fact. Therefore, I propose that a further definition should be added to section 1 saying “In this Act, `legal process' includes interrogation.” It would then be made absolutely clear that in the case of an accused who travels to Northern Ireland to have the evidence of his trial heard on commission he could not be interrogated either in respect of other matters outside the scope of the trial, or in respect of the matters concerned in the trial itself. It seems to me that as the Bill stands, the accused would be open to such interrogation, whatever form it might take.
I suggest to the Minister that, in order to ensure that his intention is achieved, he should accept this amendment, which would mean that an accused in such a case, could not be interrogated. It would have the effect also under section 12 that where an accused from Northern Ireland was present in the Republic for the hearing of evidence on commission, he could not be interrogated here either. It works both ways. This is an amendment which the Minister could very well accept and which would make absolutely clear what he intends should happen.
Minister for Justice (Mr. Cooney): I sympathise with Senator Yeats in what he is trying to achieve. I submit that what Senator Yeats is trying to achieve is unnecessary and probably would only confuse the issue. Perhaps I may put it this way. Senator Yeats is worried about the possibility, the danger, or, as he sees it, the live probability of a person being questioned while in the custody of the other jurisdiction for the purpose of hearing evidence on commission. How  do we protect against such a situation arising?
This questioning can be of two kinds only. It can be either compulsory or non-compulsory. There can be occasions when a person is compelled to answer questions. We have examples of it under the Offences Against the State Act. When a person is in such a position, such questions are part of the legal process. Immunity from any part of the legal process is already written into the Bill. Therefore, to add the phrase “legal process includes interrogation” in the case of compulsory interrogation is unnecessary and merely adding superfluous words which do not mean anything because immunity from legal process is already guaranteed. In the rare cases in which questioning is part of the legal process, then immunity is already guaranteed.
We must then consider the other area in which questioning might arise where it would be non-compulsory. The amendment would be superfluous in that case also because it does not arise. If there is no compulsory legal right to ask questions, there is no obligation to answer questions, and no protection needed. If there is to be abuse of that position, merely having words inserted in a statute will not alter the position one way or the other.
I suggest there is no need for this amendment; it would only add confusion to the scene. If the odd case arises where there is a compulsory right to ask questions—a right to engage in compulsory questioning— that is part of the legal process. It cannot arise except by specific legal process and immunity from that is guaranteed. The only other way in which it can arise is where there is what might be called casual interrogation but that is non-compulsory. A person cannot be interrogated against his will and need not answer any question against his will. Therefore, it would be inappropriate to provide that nobody should be allowed to ask the accused any questions at all during the time he is in the other jurisdiction because that person is  under no obligation to answer them. If there is a mind to engage in something unlawful or not quite correct mere words in a statute here will not change that position. I am perfectly satisfied that what Senator Yeats wants to achieve is achieved already by granting immunity from legal process. The law, as it stands at present, grants immunity from non-compulsory questioning or interrogation that does not form part of a legal process.
Mr. Dolan: I appreciate what the Minister says. But I am not clear as to how this legal process will operate. What guarantee will any accused in the custody of the other jurisdiction have that he will not be tortured and information compulsorily extracted. After all, we have instances of people being left standing at walls for 24 hours, being tortured and information extracted from them. Can we guard against such a situation?
Mr. Yeats: The Minister takes too lightly the strong prospect that accused person who are brought to Northern Ireland to have evidence heard on commission at their trial may be cross-examined by the police or military authorities in what the Minister would describe in a non-legal way as not part of any particular judicial process. The Minister says that in such a case an accused need not reply. It is all very well to say that but for an accused person who is put into a room surrounded by policemen, skilled cross-examiners, throwing questions at him from all sides, it is not easy for him to remember that the Minister who introduced the Criminal Law (Jurisdiction) Bill, 1975, says he need not reply. His position is a little more difficult than that.
There is the point also that we discussed on an earlier stage, to which the Minister agreed on at least one occasion, that there can be situations in which under this Bill a refusal to reply could be an offence. It is not good enough simply to say, as the Minister says, that after all if he is questioned he need not reply. His problems in not replying could be very great. We know the extent to which  interrogation can take place in Northern Ireland. We know the problem in any relationship between an accused and the police, the difficulty he would have in just sitting there and refusing to reply. One can be absolutely certain that if the Northern Authorities did get in their temporary possession an alleged well-known member of the IRA, we could take it certainly that they would endeavour to get as much information out of him as they could before he went back across the Border. It is one of the reasons why it seems absolutely clear that no one will exercise the choice, so-called, of travelling North in order to have the evidence heard. On the basis that they do go, they would certainly be questioned. The Minister ought to accept this amendment in order to guard against that.
Mr. Cooney: Senator Dolan asked a specific question about what happens to a person who may be subjected to unlawful procedures when he goes North. This ignores the fact that a person going North is going North on behalf of the court down here. It is inconceivable that such a person would be subjected to any improper procedures. As I have indicated the operations of this Bill depends on its being worked properly and in a truly reciprocal way. There will be administrative sanctions available should there be any abuse of a person who is going North for the purpose of attending at the taking of evidence on commission. That person is in the custody of the court here, temporarily in the custody of the other jurisdiction for this specific purpose. It is inconceivable, with the glare of publicity that would be on that person, that anything improper would be done in relation to him. It does not make sense.
Mr. Dolan: I am thankful to the Minister for answering that question. I still fail to see—by virtue of the fact that such a person would be living out of the jurisdiction—unless the Press or somebody else was present, I cannot see how this could happen.
The aim of this amendment is not, in any way, to change the direct meaning of the text of the Bill. It is intended to cover an unintended effect, shall we say, of subsection (2), section 1. This subsection says:
We had discussion at an earlier Stage about these omissions when the Minister introduced a metaphysical concept of a positive omission and so on. I was satisfied from what the Minister said that, in certain instances—in the case of, I think he mentioned, man-slaughter—there can be certainly omissions which, in themselves, are a criminal act. In certain other sections —the ones I seek to amend—there can be an unintended effect which one certainly would not like to see introduced in the Bill and which I think the Minister does not intend.
Where a person has committed an offence under subsection (1) or section 3 or attempted to commit any such offence, any other person who, in the State or in Northern Ireland, knowing or believing him to be guilty of the offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension or prosecution in the State or in Northern Ireland shall be guilty of an offence.
 In other words, if one attempts to impede the apprehension or prosecution of any other person whom one believes to be guilty, if one does any act with this intent, one will be guilty of an offence. We do not object to that. Allowing for the context of the Bill it is a necessary section to have. The problem is that because of the Minister's definition that the meaning of the Act includes the word “omission” we have to read, therefore, into subsections (4) and (6) of section 2 that where anybody does, without any reasonable excuse, any omission with intent to impede the apprehension or prosecution of somebody, they shall be guilty of an offence.
In the course of Committee Stage I suggested that this could mean—and certainly under certain circumstances would mean—that where the police came up to a man and said “Do you know where So-and-So is,” or asked him other questions related to somebody who was accused of some offence, I said refusal to answer would be an omission which, under this subsection, would justify his arrest for an offence on the ground that because he refused to answer these questions he had done, without reasonable excuse, an act with intent to impede the apprehension or prosecution of someone. I do not think this is what the Minister intends. Certainly one would not like to see it happen. As the Minister knows, and it is a matter that one must regret, there are, in certain parts of Northern Ireland—one thinks, for example, of parts of Derry City— there is a situation where, much as we may regret it, large sections of the local population simply do not recognise the authority or indeed the existence of the police forces. The likelihood is that if a member of the RUC went into this area and asked somebody questions about other people who were accused of offences or who have been known to commit offences and he got the dusty answer that he would be likely to get, in certain circumstances, a refusal to reply, or perhaps even a refusal to talk to him, under these circumstances under these two subsections, he could be  guilty of an offence. He would not have committed an act but he would have committed an omission which is inserted into the word “Act” by the definition clause in section 1.
I sought to re-write the wording of these two subsections in a manner which I hope leaves them with precisely the same ultimate result but omitting the word “Act” so that there should be no question of a possibility that somebody can be guilty of an offence merely because they had refused to reply to questions by the police. To say the least of it there is some doubt in the matter. It is a doubt to which the Minister, on a previous occasion, subscribed. Under these circumstances, the Minister would be well advised to accept these two amendments. It does not alter the wording of the two subsections. But it makes it absolutely clear that a mere omission, a mere refusal to answer questions, would not render one guilty of an offence on the ground that one had impeded the apprehension or prosecution of someone.
Mr. Cooney: We debated this at considerable length on earlier Stages. I suggest that Senator Yeats's worry is unnecessary. What he is worried about cannot arise because it is well settled that mere refusal to answer a question is not an offence. It is not the positive omission—if I might revert to the realm of metaphysics— that might arise under the definition section. There is a leading English case which I have no doubt will be followed in this country, a binding precedent to the effect that a refusal to answer a constable's questions, though it would undoubtedly make it more difficult for the police to carry out their duties, does not amount to wilful obstruction and therefore does not amount to an offence. There is no doubt that this is the position. To go further and ask what would be the position of a person who, when asked a question, gives a misleading answer, the law on that is not settled, although the burden of the authorities is that that would be a wilful act of obstruction  and therefore an offence. It is well settled that mere refusal to answer a policeman's question is not an offence even though the person refusing it might be expected, in the context of the question, to be able to answer it, and to be able to answer it accurately and fully and in such a way as to lead to the apprehension of a criminal or even to the prevention of a crime. Mere refusal to answer a question is not obstruction and, therefore, is not an omission and cannot be an offence under the law, or indeed under this Bill. Therefore, Senator Yeats can be assured on that particular point.
I do not like Senator Yeats's amendment because it introduces what I might call a non-legal word into a statute. It introduces the word “endeavour” when what is meant is “attempt”. It is not a good principle to introduce new words because they leave themselves open to interpretations. They lead to a certain amount of uncertainty on the part of lawyers and courts as to what precisely is meant by the word in question. I do not see any good reason for substituting the idea of “endeavouring to impede” for “doing an act with intent to impede.” To do so would introduce confusion into the criminal law because this word “endeavour” would be a new word. The idea of “doing an act with intent to impede”—which is what is in the statute—would be wider than the general concept of “endeavouring to impede.” For example, to arrange in advance for the provision of a car to enable a fugitive from justice to escape arrest might not be sufficiently proximate to the offence so as to amount to “endeavouring to impede” his apprehension but it would certainly be “doing an act with intent to impede.” That is an example of how confusion could arise. It would be a question of judicial subjective interpretation. So far as possible we try to have the law objective in its interpretation and application.
Regarding this question of omission, perhaps I might take another example, a good example and a thing that one could envisage happening, to show  what “omission” is meant to cover here. Take the case where it is a person's duty to shut a particular door or gate at a particular time. If a person had a positive duty to shut a door or gate at a particular time as part of his duty and that person deliberately left the door or gate open so as to facilitate an escape that clearly would be an omission. I think I could call it a positive omission without offending against language. Of course it would have to be done “with intent to impede” in accordance with the wording of the subsection. A person might refrain from opening a gate at a level crossing which was his duty, for the purposes of say, “impeding pursuers” so as to aid an escape. Again, this must be done with an intention. It is not sufficient that the duty to close or open the gate, as the case might be, was accidentally overlooked. It must be done with the intent to impede. Again, that is a matter for the prosecution to prove. Therefore, one might say there is no burden or great hardship imposed on any person as a result of this definition.
If I may repeat it, it is quite certain that a refusal to answer a question is not an omission so as to constitute an offence. That is well settled. There is the further point which Senator Yeats raised. Where a person remains silent, even in the absence of a question, even in the absence of any deception, could this be an act done with an intent to impede apprehension? Again, having regard to the authorities, mere refusal to answer a question, a fortiori, where there is no question, a mere silence could not possibly be held to be an offence of omission with intent to impede apprehension. A person has no legal duty to give information to the police. It is so fundamental a rule of law that there is no duty to give information to the police—it may be a rule of good citizenship to do so— that there can be no question of subsections (4) and (6) changing that fundamental legal position, worded as they are. It would take a very specific and clear-cut provision in the subsections to ensure that the change  was being effected before it could be brought about. For an offence of omission to be within these subsections it must be—to get back to this “metaphysical” thing—positive, in the sense of leaving the gate shut or, alternatively, leaving the gate open, because, before an offence can be prosecuted, there has to be an indictment and, to be a good indictment, it must be specific as to the act or omission at a particular time which impeded the arrest. You could not have an indictment that “AB omitted at all times, when such information might have been available to him, to give it to the police.” That indictment could not stand. To illustrate the point by attempting to frame an indictment shows how the matter could not arise in practice.
Therefore, Senator Yeats can be reassured that the inclusion of “omission” under the definition of “act” will not lead to any hardship as a result of mere silence per se, a mere silence in the face of a question. There is no legal obligation to answer a question. There is no legal obligation to volunteer information. The omission before us to be an offence under this Bill must be something of the type of a person with a duty to do something who fails to do it. Mere accidental failure is not sufficient. In the context of subsections (4) and (6) the failure must be deliberate “with intent to impede”. Mere accidental failure, in the context of man-slaughter—if the negligence was of sufficiently grave a nature—might sustain a charge of manslaughter. But that does not arise under subsection (4) or (6). They are quite specific. They deal with interfering with a person escaping and impeding the apprehension of a person escaping. Therefore, there has to be not merely the omission but the omission must be with intent. Senator Yeats can be assured that the position he fears— that mere silence could lead somebody into an offence under this Bill— cannot possibly arise.
Mr. Yeats: I thank the Minister for the full reply he has given to this point. He has clarified considerably  the state of the law as to positive omissions. I raised this point originally not thinking there was any substance to it. I was considerably worried by the Minister's first reaction to the position on Committee Stage when he suggested, at column 904 of the official Report of 10th June, 1975, that one could be convicted of an offence for refraining from disclosing one's knowledge. Later on he suggested that one could be convicted of an offence for saying nothing at all.
For example, if a person offered himself to the Garda as being in a position to convey certain positive information that came his way that arms were put in a certain house, and indicated that when he would get that information it would be available to the authorities, he would be a good citizen, this is what a good citizen would do.
On the main point, of the refusal to answer questions, I am happy, from the Minister's reference to this English court case, that it would appear that it could not happen.  Therefore on that basis, I am glad to withdraw these amendments.
This deals with the situation which we considered on various occasions during the Committee Stage of the custody of the accused while in Northern Ireland for the purpose of hearing evidence in accordance with the provisions of section 11 of this Bill. It has been our constant worry on this side of the House and, indeed, that of independent Senators also that, while in Northern Ireland, the custody in which the accused is held for the taking of evidence might not be that of the police in Northern Ireland at all—not that we stand over everything the Northern Ireland police may say or do on occasion—but of the military forces of various kinds and stamps that exist in Northern Ireland.
I do not need to remind Senators that there have been many fully justified complaints about the behaviour of certain military forces in Northern Ireland and, indeed, the Minister's Government at present are actively conducting proceedings in Strasbourg in connection with these activities.
We have been concerned all along that, under this Bill, after the accused is delivered into the custody of the police of Northern Ireland he would be transferred either immediately or in due course into the custody of the military or some other force. Our suspicions about this are particularly strong because the British parallel legislation, which is supposed to be on identical lines to this, says nothing about the accused being held in the custody of the police. It says merely that he should be held in custody. The Minister's own Bill is quite specific on these matters. In section 11 subsection (2)  it provides that where the Special Criminal Court decides to send an accused for trial and some of the evidence is to be taken in Northern Ireland,
he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence... and if he exercises the right he will be delivered in custody into the custody of the police of Northern Ireland,
... if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.
(a) shall be brought when and so often as may be necessary by the Garda Síochána to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland...
The intention right through the Bill and the expressed intention of the Minister is that, not alone should the accused in such cases be delivered into the custody of the police of Northern Ireland but that, while in Northern Ireland, he should be held in the custody of the police. Unfortunately, as I said, the British Bill which is supposed to be identical with this Bill before us today does not say this. It is at pains in several sections to say merely that the accused shall be held in custody, and I do not think this is only a chance. Be this as it may the intention certainly is that the accused should be held in custody. It is stated in the Bill that he is to be delievered into the custody of the  police and the Minister has expressed full confidence that he will, in fact, he held in the custody of the police. Now we get to the section that we seek to amend, which is, subsection (2) of section 3 which says:
As this Bill specifically states that the accused is to be delivered into the custody of the police in Northern Ireland, as the accused is told by the court of trial that, while in Northern Ireland, he is to be held in the custody of the police in Northern Ireland, and as the Minister has made it clear on a number of occasions that, in his view, the accused must be held in the custody of the police in Northern Ireland, I cannot see why an offence should be committed if, under subsection (2) for example, a person escapes from the custody of the military in Northern Ireland. In such a case I do not think that this is an offence we should try in this State. The circumstances will be this, that the accused had been told by the Special Criminal Court that he had a right to travel to Northern Ireland to hear the evidence, that while there hearing the evidence he would be in the custody of the police. The Bill further provides that he is delivered by the Garda Síochána into the custody of the police of Northern Ireland. Under these circumstances if he is transferred to military custody and escapes from military custody we should not, under this Bill, try him for an offence. As far as we are concerned, the only custody the Bill recognises is the custody of the police of Northern Ireland.
...if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.
This is the order of the court, not that he should be delivered to the military or anybody else but that he should be delivered into the custody of the police in Northern Ireland. This is the order that he is, in effect, in breach of should he escape and in accordance with subsection (2) of section 3. If he is transferred to the military and escapes from military custody he is not, I would maintain, in lawful custody as far as we are concerned.
Mr. Yeats: Yes, but I think this should be made clear. This is a point that the Minister has not referred to on previous occasions. The Minister has expressed confidence that he would not be transferred to the military, but I am not certain. It seems to me at the very least ambiguous. Bear in mind that essentially the offence of escaping from custody is not committed here but in Northern Ireland. Therefore “lawful custody” in this case would relate to the law of Northern Ireland, which, of course, is the British Bill which only provides custody and under which, he could be transferred to the military. If he escapes from military custody, he commits an offence under British law in Northern Ireland.
As far as we are concerned he has been transferred under section 11 (2), to the Northern Ireland police, and if he is taken over by the military and escapes from them, I do not think we should consider him guilty of any offence. I think the matter can be dealt with very simply by the insertion of this amendment, so that if his  escape is from the police, to which we have delivered him, to which the court has ordered him to be delivered, in that case he is guilty of an offence. I would suggest to the Minister that it would be very wise for him to accept this amendment.
Mr. Lenihan: I wish to support Senator Yeats on this amendment. The Minister and the House are well aware of my views on this difficult section, more particularly in regard to how it relates to section 11 (2). We have discussed all this on Committee so we cannot go back into that area. What we are seeking to do on Report is to help the Minister by introducing a degree of logic in the treatment of this offence under section 3 (2) as it relates to section 11 (2). The logic is quite clear and has been spelled out by Senator Yeats. Section 11 (2) is the governing section and subsection in so far as section 3 (2) is concerned. The House is entitled to a reason from the Minister why the wording is different in the two very closely related subsections of the respective sections. Section 11 relates to the court in the Republic making an order providing for the accused being present in the custody of the police in Northern Ireland at the taking of evidence against him. That is a basic human right. At least an appearance of giving the accused that right had to be written into this Bill. The appearance is quite clearly set out in section 2 generally. Where, under subsection (2) of section 11, the court makes an order 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.
What is envisaged quite clearly here is that the police force of the Republic, the Garda Síochána will exchange the prisoner into the custody of the police force of Northern Ireland. Section 11 goes on consequentially to enumerate the various  rights the accused has at the hearing on this handing over from one police force to the other.
It is rather interesting that right through the whole of section 11— Senator Yeats referred to this—the phraseology used in dealing with the accused's rights at the hearing and his rights in being brought back to the Garda Síochána to a convenient point of departure is the phraseology which we have incorporated here in this amendment. Apart from subsection (2) (a) of section 11 which is directly related to the amendment where the phrase is used “to be present in the custody of the police of Northern Ireland”, it is repeated right through the section. It appears again in subsection (2) (d) of section 11.
(a) shall be brought when and so often as may be necessary by the Garda Síochána to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland and, if he is on bail, shall be taken into the custody of the Garda Síochána not more than 24 hours before the time of any such delivery...
What I am talking about fundamentally here is the exchange arrangements between the respective police forces. It is quite clear from 2 (a) and 4 (a) that what is envisaged in regard to the accused in this situation is that he will be passed from the police force in this jurisdiction to the Northern Ireland police force. I was put off my track for a second in regard to (d). I am right in regard to (d) as well.
while he is in custody in Northern Ireland for the purpose of the taking of the evidence... and, if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.
Mr. Lenihan: Senator O'Higgins is technically right. I was reading it with subsection 2 (d). The point is valid that in section 2 (a) the reference is to the custody of the police in Northern Ireland and in the conclusion to subsection (2) the reference is to the custody of the police in Northern Ireland and in subsection 4 (a) the reference again is to the custody of the police in Northern Ireland.
We have this phrase used consistently under the only section of the Bill which has a colour of human rights about it. The phrase used right through is the phrase which we have incorporated in this amendment. “The custody of the police,” we say, in order to provide for a situation where it might be the Garda Síochána. I know if this amendment was rejected on Committee, it might hopefully be the Garda Síochána. If not, it is the custody of the police in Northern Ireland.
The amendment proposes that the accused, whether under the Garda Síochána, the police force of the Republic or the police force of Northern Ireland, will be in the custody of a police force rather than “lawful custody”.  I will go back to the relevant subsection to which the amendment relates—subsection (2) of section 3. It says:
We have a situation here where we are putting an accused person here into custody in Northern Ireland, the custody of the police of Northern Ireland. It is specified three times in the section —so there is no doubt about it—that in regard to the taking of evidence in Northern Ireland or in a criminal trial in this State the accused, and rightly and carefully so if he is going to be put into that jeopardy in going into Northern Ireland, while he is in custody is in the custody of the police in Northern Ireland. If that person who is in the custody of the police in Northern Ireland escapes from that custody, which is described in subsection (2) of section 3 as “lawful custody” he shall be guilty of an offence. There is an obvious lacuna or gap here. It is quite clear that the subsection we are discussing relates to a person escaping from custody. Why is there a different description in this subsection? Under section 11 if he goes to Northern Ireland, he goes into the custody of the police in Northern Ireland in order to hear the statements that are being adduced against him in court or on commission, but under this subsection it is “lawful custody”.
The whole logic of the situation would appear to be strongly in favour of using the very same phraseology in this subsection as exists right through section 11. Why “lawful custody”? Surely it is not just slavishly following the relevant section in the British Act? That is not good enough because we all know the various security and military forces that operate at the moment and have operated for some years in Northern Ireland that do not come under the umbrella description of the police of Northern Ireland. On the record so far of the military and security forces of the Crown and against whom we have charges pending before  the Commission on Human Rights in Strasbourg, I would hesitate to regard them prima facie as representing lawful custody. Indeed, our whole case is that their actions in regard to a number of specified and itemised cases amount to an attitude towards and an administration of custody that is a frustration and a perversion of the whole civilised idea of lawful custody. If we put ourselves into the contradictory position of incorporating as lawful custody, in a section passed by this Oireachtas, these particular forces, military and security, against whom we have as a State very sustainable allegations which have been so proved heretofore, I think we are bringing this Oireachtas into disrepute and giving away our own case in Strasbourg before the Commission on Human Rights.
Unless the Minister has a better explanation why lawful custody is included here while the police of Northern Ireland is included in the basic governing section, I can only surmise that he is either (1) slavishly copying the British precedent and the British Act without any thought or (2) does not view this situation with any alarm. That “lawful custody” might include and does include if this subsection is passed forces other than the Northern Ireland police force.
I do not have to envisage a situation where a person going to Northern Ireland is handed over, under section 11, from the Garda Síochána here to the Northern Ireland police force, finds his way by one route or the other by deliberate omission into the hands of other security forces than the Northern Ireland police force and may become subjected to the same sort of treatment about which we have made allegations against the same security and military forces before the European Commission on Human Rights. If this particular person lawfully tries to escape from that sort of treatment, he thereby commits an offence under subsection (2) of section 3 because he is escaping from what is euphemistically called “lawful custody.” Lawful custody is a very global phrase. I do not have to  emphasise that here. Such phrases are used by police states all over the world. That is the sort of phrase that is well hallowed by human experience in every dictatorship since mankind started; lawful custody, in other words, covers a multitude.
The phraseology in the amendment put down by Senator Yeats is far more careful and specific. If there is to be this sort of an exchange of offenders—with which we totally disagree—then at least have it on the basis that it is an exchange between police forces. Whatever criticism we have—and they are considerable—in regard to the Northern Ireland police force, they have been dealing with their fellow professional force, the Gárda Síochána, of whom we are proud here and it will be an exchange of an offender from one professional police force to another professional police force. Surely we can bring into this section, which makes the escape from custody an offence in our law, the provision that the escape should be escape from the custody of the Northern Ireland police force and not escape from some Kitson-inspired security organisation or some of the weird security outfits that the British Government have always been spawning over the centuries and still are spawning in every country with whom they have any association.
We do not want escape from Kitson-inspired security organisations or from the British military to be equated with escape from lawful custody because we happen to be a civilised State here and this offence that is written here will be an offence under our law. What we are seeking to do in this amendment is to have human rights guaranteed as they are under our Constitution and law. What we are seeking to do is to prevent a departure from what is or can be regarded as an acceptable principle of exchanging prisoners between recognised police forces.
In regard to the whole weird, subterranean, grey-to-black area of British espionage, British security, British MI5 activity, British military activity, the Bill seeks to incorporate all that area of control existing in  Northern Ireland at present as “lawful custody”. Control within that type of umbrella is regarded under this subsection as lawful custody. This means, in plain fact, if any person who legitimately goes to Northern Ireland to be present when evidence is heard against him, and by some means or other—I do not want to inquire into the murky area where this can happen —finds himself under the control of any of these quasi-military, military, quasi-security, security or quasi-police organisations, which have been brought in through the various machinations and activities of the British Government, and tries to escape from that situation by reason of undue interrogation or torture, and finds himself in the Republic, he is liable to prosecution by reason of an offence in the Republic. We are now, under this subsection declaring that action to be an offence. The Republic, which has a reasonably unsullied record in regard to our criminal law legislation will now prosecute that person.
In this amendment, we seek—again coming back to section 11—to adopt the language of the Minister's drafting and insert the phrase “in the custody of the police”. It is quite clear that the euphemistic phrase “lawful custody” covers a multitude. It has been used in every totalitarian state since history began. We seek to have that phrase deleted and have incorporated instead the practical and specific phrase “the custody of the police”. We do not accept the global phrase “lawful custody”. Therefore, it is quite clear that, if an offence is committed under section 3 (2) it is one of escape from a police force, whether it is the Garda Síochána or the Northern Ireland police force.
There is much merit in this amendment and I ask the Minister to see the logic in our position. There is no point in slavishly following the British pattern. If that is the reason why it is being done for drafting or other purposes, it is rather pointless. The Minister should make it quite clear that, as far as the Republic is concerned, in enforcing such escape offences, we  only regard these as wrong or illegal escape offences when they relate to escape from a police force.
Dr. Martin: I share a good deal of the misgivings expressed by Senator Lenihan with regard to section 3 (2). On the other hand, I must admit that I would draw the opposite conclusions from those drawn by Senator Lenihan. I would be happier with the Minister's formulation of “lawful custody” than with the formulation of “the custody of the police”. The Minister could be interpreted as having drawn a very important, substantive distinction. I do not think “lawful custody” and “custody of the police”, as the police are constituted in Northern Ireland now, or as they may be constituted in the very changing situation there within the next few months or years, mean the same thing. I am not too sure that “custody of the police” could be depended upon to form an adequate equation with “lawful custody”.
One of the most burning issues in the North at present is the issue of policing. Anybody who listens to radio and television utterances of the SDLP and who has read their newspaper statements has to be aware that one of the issues which divides the communities in the North there at present is the whole question of policing. The police are profoundly suspect there. They are profoundly suspect of the one party in which the South can repose some trust, that is the SDLP who have devoted themselves strenuously and courageously to the rule of law and to the constitutional solution of the problems in the North. They have more or less consistently tended to regard policing as an extremely dubious affair and with good reason.
Of late, several spokesmen from the Loyalist political area, notably Ernest Baird, have said over and over again that a time may come in the North of Ireland when the UDA may be called upon to defend the province. They have been asked publicly to repudiate the UDA and they have refused to do so. On at least three occasions, Ernest Baird made it clear that he has no intention of repudiating the UDA. His  reason for failing to repudiate them is that they may be called upon to defend the province.
In a circumstance like that, it is extremely likely that, if UDA rule should become the order of the day, the police would slide into the bosom of the UDA and into the bosom of what we are pleased to call over and over again the para-military organisations in Northern Ireland. The term “para-military” is used exclusively of Protestant organisations and the word “terrorist” is used exclusively of Catholic organisations. As far as I am concerned they are all terrorist organisations. The IRA is a terrorist organisation at present although it may not have been so at the beginning. The UDA is a terrorist organisation and so too are the Red Hand Commandos and all these para-military organisations.
The disquieting thing is that an elected representative like Ernest Baird can make a statement of this kind and can make it in a context where the leaders of his faction— whether those leaders be identified as Ian Paisley, Harry West or William Craig—have at no stage found it necessary to repudiate what he said. This is my objection to the Bill. It is being brought forward against a changing situation in the North of Ireland, a situation which is changing in a rather sinister way towards a militant—call it para-military if you like—alliance of the right or of the Loyalist interest.
Against that background I would prefer the Minister's formulation. If Senator Yeats' substitute clause “custody of the police” is accepted, the chances are that in six months' time the police may be the agents of those rather sinister alliances of the Loyalists interests. If the phrase “lawful custody” survives the South will be in a position to decide what is lawful and what is unlawful custody. If the phrase is limited to “custody of the police”, then it is the custody of the police. There is the danger that it is any police in the North of Ireland. I should like to compliment the Minister in drawing this distinction between “lawful custody” and “custody of the police.” Even at  present, the two things cannot be equated. Police custody has, as is evidenced in the whole Strasbourg affair, not been synonymous with lawful custody. Therefore, in this changing situation in the North, where custody of the police could very quickly come to mean custody of the most draconian forces of the Unionist philosophy, I would much prefer to retain the phrase “lawful custody”, which would leave with us the right of deciding whether the regime in the North of Ireland at a given moment was lawful or not. If we deemed it to be unlawful we could then repudiate it. That seems to be far more satisfactory although I am, by and large, in sympathy with what Senator Lenihan and Senator Yeats have said. It seems to leave us with a great deal more room for legitimate and moral maneouvre than the more limiting phrase “custody of the police”.
Mr. Dolan: I cannot say that I share the subtle difference between the meaning of both phrases because to me it seems to be from the frying pan into the fire. As far as I am concerned, I cannot see much difference between Sir Francis King and Sir James Flanagan. Both are Sirs of the British Empire residing and operating in our country. I have less regard for their ability to mete out justice to us pure natives of the country. We tried to do something by putting down an amendment, reluctant as we were to put down any amendments. We feel it is the fundamental right of a prisoner to be present when evidence is being tendered against him, wherever that takes place. If the Minister says that the prisoner will be allowed to go to the Six Counties, that he will be escorted as far as the Border by the Garda and then will be handed over to what he calls lawful custody, that means that that prisoner from here can be handed over to the FourSquare Laundry unit, to the Green Jackets, to the UDF, to the UDR and to the many other variations of para-military groups.
Mr. Dolan: I have not the legal training of Senator O'Higgins but I am an Ulsterman, I live close to the Border and I have a fair idea of what happens there. If Senator O'Higgins would take a trip up there he might educate himself. It is no harm to remind him that such units as the SAS, the Green Jackets and the UDA exist up there, that they are para-military units and they take on the duties of policemen on occasion.
Mr. Dolan: I do not think I ever interrupted Senator O'Higgins. Perhaps he might allow me the courtesy of finishing this small bit I have to say. I will not detain him too long. I was making the point, in regard to the subtle difference between these two phrases, that it might mean that the devil you know is better than the devil you do not know. I would have pity for the prisoner who would find himself being handed over at the Six-County Border to some of these British outfits, whose sole aim is to maintain British domination and British law in this country. They are holding on to our Six Counties against the wishes of the majority of the people. These are the people who have got their British titles handed out in the New Year's honours list because they were traitors to their own country. These are the people this prisoner will be handed over to. The people taking custody of this prisoner at the Border will be some of these units of the British Army who operated in many countries abroad and left a trail of woe and destruction behind them. These are the people who will be here taking charge of some prisoner who is handed over and who expects to get justice. I have no hesitation in saying that I do not believe there will be any justice for him. He will be taking a grave risk. He would certainly be a very brave prisoner who would attempt to go to the Six Counties  under conditions such as that. When you have all these various units in the Six Counties prolonging and perpetrating British imperialism in our land, you cannot expect to get justice. How can any prisoner face into the Six Counties and find that he will be handed over at the Border to people who have no connection with any police force? How is he to know?
Mr. Dolan: How can he know it? The Garda are not allowed to go with him. How can one trust Sir James Flanagan or Sir Frank King? Can one trust these Sirs who mete out justice to people in this country? I certainly would not trust them. The prisoner is handed over to somebody.
Mr. Dolan: As he moves along in the train or wherever he is a hood is put over his head, he is pulled into some corner, put up against a wall and questioned for 24 hours or 48 hours. They will use him as an ash tray as they did before with prisoners and torture them. What can we do down here about it? If the prisoner escapes or tries to escape down here from that custody or from these hooded gentlemen, who are interviewing him, we will be expected to arrest him saying that he escaped from lawful custody. That is no justice. We will not do ourselves any good in trying to co-operate with the British in any way. You cannot make a good Bill out of this. It is rotten from top to bottom. What it seeks to do here is just a pure sham, pretending it is protecting the prisoner. It is doing no such thing.
I have been referring to the difficulties a prisoner would encounter were he to submit himself to the ordeal of saying Slán to our Garda at the Border and delivering himself into the custody of the unknown, which will happen when he goes into the Six County territory, because of the multiplicity of the various organisations there that could, so far as I know, take care of him and we  could do nothing about it. They could take care of him in many different ways. They could use him as an ashtray. They could put a hood on him. They could confine him for 24 hours or 48 hours and deliver him back when they wished. These are all things he would have to face. If he tried to escape he could be shot, and if he did not try to escape they could say he made the attempt. All this is not beyond the possibility of what might happen there. We have no faith whatever in the regime in charge there. Indeed, their idea of justice is contrary to all elements of simple justice. They have maintained that position over the past 50 years.
No prisoner could have any confidence in British justice, no confidence in an outfit that cannot mete out reasonable justice to the people there. We know they have over 50,000 troops packed in there. They have various regiments, various breeds, and any one of those units could take custody of a prisoner. The record of the Green Jackets and the other organisations is well known. I would certainly have tremendous pity for any poor prisoner, who may not be guilty at all, but who, to clear his good name, would have to enter into these halls of the unknown where the ashtrays and the hoods and the jackboot are waiting for him. In most cases, if not in all cases, he will prefer to remain where he is rather than take that chance.
Mr. M.J. O'Higgins: I am sorry if I upset Senator Dolan in any way. All I was trying to do was to suggest that it would be worth his while, before making the type of argument he has made, to do one of two things, either to have listened to Senator Yeats speaking on the amendment or to have read section 11, subsection (2) to which indirectly this amendment is directed.
The weight of Senator Dolan's complaint and argument in support of the amendment was to suggest, as I understood it, that the prisoner or the accused, would be taken to the Border by the Garda Síochána and handed into the custody of any one of several different organisations. That specifically is not allowed by section 11 subsection (2). This was emphasised by Senator  Yeats and again by Senator Lenihan. It specifically provided that the handing over will be into the custody of the police of Northern Ireland, and to nobody else. Senator Yeats in this amendment argues on those grounds, that as that is provided in section 11 (2) therefore the provisions of section 3 (2) should similarly be altered so as to provide that the offence of escaping should be the offence of escaping from the custody of the police of Northern Ireland and not escaping from anybody else's custody.
I should like to say that in order to clear Senator Dolan's mind of any doubts he may have as to the procedure laid down in section 11 (2) of the Bill. The Senator's contribution to the discussion on the amendment has rather confirmed the view I have expressed on a number of occasions that a great deal of the opposition to this Bill has been based on a misunderstanding of what is in the Bill, and I hope that that misunderstanding is now cleared up.
As regards the case made by Senator Yeats and Senator Lenihan, I think Senator Martin has to a great extent answered that effectively. We are dealing here, remember, with proceedings brought before our courts where the people who are to adjudicate are judges, and they will be approaching these problems with their own legal traditions and their legal knowledge. I do not want to belittle the amendment. I hope Senator Yeats will not think I am trying to do that. I can see —justification is not the word I am looking for—the reason why an amendment of this sort should be urged, but I think it would in many ways be dangerous to accept it. It would create the kind of complications which we certainly wish to avoid. The most substantial complication which might be created is that of which Senator Martin spoke.
We are talking of a person being accused of this particular offence of escaping and being charged here before our courts. As the section stands at the moment, it rests entirely with our courts and with our judges to decide whether or not the custody in which the accused person had been held and from which he  escaped was lawful custody. So long as that position remains, it seems to me that the position is very much safer from the point of view of the accused person than if that wording were altered. It rests entirely with our courts to decide whether or not the custody was lawful. I imagine most of us could think of various horrifying examples, the kind of thing Senator Dolan was talking about, any one of a number of organisations grabbing the accused person, putting him up against a wall, hooding him, and so on. Everyone would feel, as Senator Lenihan felt. Of course, if he can escape from that, who will blame him?
It is a matter for our courts to decide whether or not the custody was lawful. It is only in the event of escape from lawful custody that the question of an offence arises at all. If the courts decide that the custody was unlawful, then no offence is committed, and the accused is entitled to be acquitted and discharged. Minor complications could arise also from acceptance of Senator Yeats amendment. It is true, and it is clear beyond any doubt, that the handing over of the accused who wants to be present in the North for the purpose of hearing evidence taken on commission, is into the custody of the police of Northern Ireland.
I can visualise a situation where quite possibly the sitting of the commission in the North of Ireland to take evidence might be a lengthy affair going on from day to day, possibly even from week to week, and it may be preferable from everybody's point of view, including the point of view of the accused, that it should at least be possible under the provisions of the Bill, that he would, for example, be put in custody of the prison authorities, or some of the prison authorities, in the North rather than that the custody whole time should be that of the Northern Ireland police.
As regards his return here, it is clear that a distinction is made in section 11 between Garda custody and other types of custody. In section 11 (4) (b) reference is made to the return to the State of the person  being taken into the custody of the Garda Síochána and then if he is required, pursuant to an order of any court, to be kept in custody, to be returned as soon as may be to that custody. That custody, obviously, could be the custody of the prison service rather than Garda custody as such. From the point of view of the person charged with this offence, it is in case of him, to my mind, that the Minister should stand firmly in favour of the phrase “lawful custody” rather than that he should accept the more restricted definition of custody of the police of Northern Ireland which Senator Yeats is urging in this amendment.
Mr. Cooney: This amendment has taken us over a wide field. Many points have been discussed in the debate generally. On Second Stage and Committee Stage we had discussions on the various forces maintaining law and order in Northern Ireland. We had reference to the RUC, the UDR, the British Army, the various para-militaries and the terrorists. We had references to Strasbourg and the proceedings being taken by the Government there, proceedings, I think it is correct to say, which were initiated by our predecessors following constant promptings by the then spokesman for the Opposition on Foreign Affairs, now the Minister for Finance. It is important that it be said for the record that the first promptings for those proceedings came from this party.
The discussion on this amendment has ranged over the question of unity. Senator Dolan talked in disparaging terms of the head of the RUC and sneered at a recent title he received. He differentiated between himself as a pure native in contra-distinction to the head of the RUC who, incidentally, is an Irishman but whose allegiance lies elsewhere. Senator Dolan was prepared to sneer at this man because his allegiance lies elsewhere. He used the racist term “pure native”.
The debate also raised the question of the unity of the country and  national policy on that. I understood that it was a common case between all parties in this Oireachtas that what we desire is unity by consent, consent in that context meaning the consent of the majority in Northern Ireland. Senator Dolan raised the old catch-cry of the anti-partition campaign of the 30s, 40s, and 50s of the consent of the majority of the people on this island. I thought that was something we had put behind us a long time ago and that we had come now to recognise that unity cannot mean anything unless it is voluntarily agreed to by the people with whom we wish to be united, and those people happen to be the majority in Northern Ireland, a minority within the island. The reality of the situation in which we find ourselves is that they are the majority in Northern Ireland and, until they wish to be united with us, unification cannot take place.
I cannot fathom the obscurantist attitude that still lingers in the benches opposite as expressed by Senator Dolan when he sneers at this majority and sneers at all the things they hold dear, albeit misguidedly. Nevertheless, they hold them dear and we must recognise that there are differences up there, and accept that these people are entitled to their differences. We cannot force them. That is the essential thing. We can only try and pursuade them by peaceful means and, of course, without violence to have a different constitutional arrangement on this Island.
It puts back a long way any moves that might be happening in that direction for a Senator who is a member of the largest political party in this State to utter such sentiments without contradiction from his leaders. It is not the first time they have been uttered in the course of this debate. They have been said over and over again from those benches, and they have not been repudiated. Can one blame the majority in the North if they look with some scepticism on us down here and our professed desire for unity by consent which will give them a fair and full say in the new community? Can you  blame them for looking a little askance at the establishment down here when an establishment figure— and a Member of the Seanad is per se, by definition, an establishment figure —talks of pure Irish men in contradistinction to the people of Northern Ireland?
It is regettable that these sentiments should be expressed. They reveal a certain situation which we must recognise still exists, and we can only continue the process of education and hope that the process which has begun in certain levels of the Opposition party will finally find its way down to all levels and that when we all say here that what we want is unity by consent, and without violence, this is what we all mean and when we talk about having the consent of the majority we do not mean the majority on this island because, of course, that majority is for unity, but we mean the majority of the people with whom we wish to be united.
We have to show goodwill to these people in our actions and by our words. Sometimes there is an opportunity to act and by our actions to show goodwill and show our desire to meet them, show our desire to have a state of affairs, a regime on this island, which would be conducive to unity and harmony. Sometimes we do not have an opportunity for action and we have to express our desire and our goodwill by words. This Bill is an opportunity to show by action our desire to be united with the people in the North because it makes a common case with them in fighting a common terrorist enemy, an enemy who has done immense harm in both jurisdictions. We are inclined to overlook the harm that he does in this jurisdiction because we do not have the visible evidence before our eyes of bombed towns. We do not have the unhappy experience of being personally acquainted with widows and orphans of men who have lost their lives in sectarian murders. We do not read about our neighbours having their knees shot off with bullets, and the hijacking of cars and all the paraphernalia of terrorism are absent by and large from——
An Leas-Chathaoirleach: I assume the Minister is replying to a remark Senator Dolan may have made. I am at a disadvantage. I was not in the Chair for Senator Dolan's contribution. However, I would ask the Minister to relate his remarks to the amendment and the debate that took place.
Mr. Cooney: I am sorry if I seem to be straying, but the debate on this amendment was very wide. It brought into issue the matters on which I am now speaking. It brought into issue the efficacy of this measure in doing what it sets out to do. It brought into issue its appropriateness, and it was said this particular matter was the kernel as regards its appropriateness. I am, I think, entitled to deal in the full round with how appropriate the Bill is, and that is what I was leading up to.
Mr. Cooney: Yes, indeed. I was leading up to demonstrating that this is an appropriate Bill in the context of dealing with the common terrorist enemy, the terrorist who is an enemy of this State as well as the State of Northern Ireland. This Bill is only half of a reciprocal measure. The terrorist is our enemy and, I was making the point that while there may be an absence of physical evidence of bombings here and while we may not have suffered the murders, the assaults and all the other paraphernalia of terrorism, we have suffered a considerable amount of tragic spill over. We have had that here. We are also suffering in our economy, to put this human tragedy on a very material plane. Our economy has suffered grievously from the activities of terrorists in this island. This Bill is designed to tackle one aspect of terrorism. It is designed to tackle that aspect where terrorists flee from Northern Ireland.
Mr. Cooney: I do not want to be out of order. When this amendment was being moved the speeches made in support of it emphasised how much it related to the kernel of the Bill. It raised all the questions of custody and escape from custody. That is what I was moving to when I was interrupted. The primary object of the Bill is to deal with the terrorist who is fleeing from custody. This ties in with the amendment which deals with what type of custody is involved.
I wanted to indicate the background to the type of person that the Bill has to deal with, that is the fugitive terrorist. He may be fleeing after committing a crime in Northern Ireland and taking refuge down here. His very presence is anathema to the people here. His presence here, as a person wanted for a serious criminal offence, is harmful to our society and to our State. That is irrespective of whether he is fleeing from facing justice or whether he is fleeing after having escaped from custody. The point is that his presence here is anathema as far as we are concerned. This goes to the root of this amendment.
The other side have endeavoured to suggest—and this has been the burden of their case in support of their amendment—that there are certain parts of the regime of Northern Ireland so obnoxious that a person escaping from them could not be faulted for taking an opportunity to escape. In describing why these parts of the regime in Northern Ireland are obnoxious we had a wide ranging description by Senator Lenihan. He said he would not be emotive. But he gave us, to a lesser degree, some of the blood curdling descriptions of things up there which we have had from Senator McGlinchey, in gory detail, over the past number of months. We have had  also similar descriptions from Senator Dolan, in describing the regime in Northern Ireland. Senator Dolan painted the picture of people being handed over for the purposes of section 11 and finding themselves immediately hooded and tortured.
Senator Lenihan, in support of the amendment—in its wish to restrict custody to the custody of the police— painted similarly horrifying pictures. Of course, both pictures are wrong, inaccurate and completely unreasonable. They are horror stories to try to intimidate people into supporting the amendment. They do not represent what could take place, or what could be the position, following the passage of the Bill, following the transfer of people into custody in Northern Ireland for the purposes of examination on commission of the witnesses in the cases against them. That is not what the Bill says at all. The Bill very specifically sets out to ensure that the like could not happen.
Section 11 is the section that provides for the taking of evidence on commission. It is relevant to this amendment because this amendment seeks to amend subsection (2) of section 3. Section 3 is the section which makes it an offence to escape from custody in Northern Ireland in the case of a person who, in Northern Ireland, is charged with or convicted of an offence under the law of Northern Ireland consisting of acts that also constitute an offence specified in the Schedule or an offence under section 2 or an offence under the law of Northern Ireland corresponding to this section, that is the escape section in the corresponding Northern Ireland Bill. The last part of subsection (1) (a) of section 3 reads:
In the substantive part of that section there is a reference to an escape from lawful custody by a person who has been charged with, but not convicted, of an offence under the law of Northern Ireland that also constitutes  an offence specified in the Schedule. Yet, no objection has been taken to the use of the bare words “lawful custody” in section 3 (1). If the arguments that are being advanced to build an objection to those bare words in subsection (2) have relevance, they have equal relevance to the use of those bare words in subsection (1). These arguments were, essentially: “Who can blame a person from escaping from the bloody hands of the British Army?” Why was an amendment not put down in regard to section 3 (1), and indeed all the other sections where the words “lawful custody” are used? Subsection (2) of Section 3 says:
Apparently the Opposition draw a distinction between a person who has been arrested in the South, charged with an extra-territorial offence, is going North for the taking of evidence on commission and escapes from lawful custody there, and a terrorist who is arrested even within the North, has been convicted and escapes down South. I do not see the distinction. However, let us assume there is a distinction. Senator Yeats says it is a basic distinction. Possibly he has in mind that because the person is going North from here he is being in custody——
Mr. Cooney: The basic point is the nature of the custody from which he escapes. That is the point of the amendment—to try to alter the custody in which he is being held. I would respectfully disagree with Senator Yeats when he says that the basic point is the fact that the person is going from the South to the North for the hearing of the evidence, as opposed to the other case where he has been convicted in the North. The  basic point is the quality of the custody in the North because that is the whole point of the amendment. The amendment seeks to alter the definition of “lawful custody” and give it a new meaning. The point I am making, as a deduction from that, is that the amendment should lie for subsection (1) as well as section 3.
Section 3 (2) relates then to section 11 and, in particular, to subsection (2) of section 11. Section 11 is the section that provides for the taking of evidence on commission. Subsection (1) merely sets out the procedure to be followed when the court of trial, unless it is satisfied it is not in the interests of justice to do so, can, by order, provide for the issue of a letter of request to the Lord Chief Justice of Northern Ireland, to take, in the presence of the members of the court, which would be in effect the Special Court, evidence in Northern Ireland by a judge of the High Court of Northern Ireland who then would be the commissioner. That provides for the setting up of the commission. How it is to be set up is to be the letter of request to the Lord Chief Justice of Northern Ireland. Then, he appoints one of the judges of the High Court as the commissioner.
Subsection (2) of section 11 sets out what happens when the court makes an order. The court is directed to inform the accused of a number of things. It informs the accused that 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; if he exercises the right he will be delivered in custody into the custody of the police of Northern Ireland. Paragraph (b) of subsection (2) provides that whether or not he is present at the taking of the evidence, he can be represented by counsel and solicitor, or solicitor only, or by another counsel and solicitor entitled to practise in the State or entitled to practise in Northern Ireland. That provides for his representation. Paragraph (c) says that if he is not represented by counsel or a solicitor he himself may question any witnesses giving evidence before the commission. Paragraph (d) is the  fourth matter of which the accused is to be informed. Senator Lenihan sought to read paragraph (d) with the concluding paragraph of the subsection. Of course, it is clear that paragraph (d) stands by itself. Paragraph (d) says that the accused is to be informed that while he is in custody in Northern Ireland for the purpose of taking of the evidence...; there is no mention here of the persons in whose custody he is to be in Northern Ireland. It says merely:
while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid.
This is a critical paragraph. It is critical first of all because it does not specify the nature of the custody in terms of the personnel keeping the custody in Northern Ireland. It merely says: shall be in custody in Northern Ireland. It also provides the immunity of that person in Northern Ireland. Immunity is spelled out. “He will be immune from detention”— that would be detention under the internment powers—“and any kind of suit or legal process.” They are extremely wide words covering the entire ambit of legal proceedings—“In respect of any cause or matter”—again very wide and general words —“civil or criminal, arising before his arrival in Northern Ireland.” Therefore, no matter what that man had done in Northern Ireland prior to his arrival there, he is immune from any proceedings in respect of those actions.
Senator Lenihan attempted to tell the House there was hardly a scintilla of human rights about this Bill, that this amendment would provide the only scintilla of human rights for a person going North to hear evidence being taken on commission. That is a complete misreading of the subsection in question. I have demonstrated by reading it that it could not be couched  in wider terms—to grant complete and total immunity and protection to the accused person going North. Those wide terms, granting this complete and total protection from “any kind of suit or legal process, in respect of any cause or matter, civil or criminal”, I submit is the clearest of directions to any court, to all arms of the Executive, that such a person is inviolate when in the other jurisdiction for the purposes of taking evidence on commission. That clear and wide direction, that complete and total protection makes nonsense—and shows them up for the deceitful arguments they are—that a person going North is liable to suffer indignities, brutalities, illegal questioning, hooding, searching, or all the other horror points that have been adduced by the Opposition in support of their amendment.
That was a very strong part of the case in support of the amendment, that a person going North could find themselves in the custody of people who have a bad record with regard to the treatment of people in their custody. Senator Lenihan instanced in support of this the fact that this Government is taking action against the Government of the United Kingdom for ill-treatment of people in Northern Ireland. That is so. These people have a bad record. It is precisely because of that dubious record that this total and complete protection is spelt out in the greatest of detail in this statute and is reciprocated in the corresponding British Bill, that there will be that total protection for the person going North. Once there is this total protection for the person going North, that is where his security and safety emanates, and not from trying to limit or narrow the class of persons who may have custody of his person while in the North.
This argument of concern for the person as to how he would be treated by the forces in the North was made at considerable length and was one of the major planks on which this amendment was based. It was maintained that it was necessary in order to protect the unfortunate accused going North from being put into the  ruthless hands of certain forces up there who would illtreat him. Senator Dolan said he would be no sooner over the Border than there would be a hood put over his head, he would be put up against a wall and questioned for X number of hours. Of course, that cannot happen because his immunity is spelled out in the clearest of words. To protect against that happening what is the Opposition's amendment? It is that when he goes to the North he can only be in the custody of the RUC.
Mr. Cooney: No, my Bill does not say that. With respect to the Senator he is becoming confused. He should read section 11, subsection (2), paragraph (d). The Opposition say it should be no offence for a person to escape unless he is in the custody of the RUC, on the grounds that if he was in any other custody he would be so brutalised and so treated it would be only right and proper that he should escape.
Mr. Yeats: That would be in violation of what the Special Court has told him—that he has a right to be present in the custody of the police from Northern Ireland. That is what the court will tell him. It is because it is a violation of this we claim that there should be no offence.
Mr. Cooney: And the court also tells him that, while he is in the custody of Northern Ireland for the purposes of taking evidence, he will be immune from detention and from all the other things I have described in detail. The argument for substituting for the words “lawful custody” the words “custody of the police” was that it would be in ease of the position of the person going North, to ensure that he would not find himself in the clutches of the British Army. I have already demonstrated that such a person is granted total immunity and that this will have to be preserved and honoured.
In spite of Senator Dolan's poor  opinion of the Chief Constable of the RUC and the distinction he seems to make, that the Chief Constable is not a pure native whereas we are. Senator Lenihan advanced the argument that it would be all right, even though this was a bad Bill and all that goes with that, if the person was in the custody of the RUC; then it would be an offence to escape. That was what he was saying. Senator Lenihan might not have had the experience I have had of listening to Senator McGlinchey here for many hours——
Mr. Cooney: I listened to Senator McGlinchey for many hours and when he was repeating himself for possibly the umpteenth time and showing no intention of ceasing his repetition I left the House. In their hearts I think many members of the Opposition would agree I did the correct thing; they envied me my freedom to leave. Senator McGlinchey for many hours regaled the House with horror stories. He read from a pamphlet by a Father Faul. He regaled us for many hours with horror stories, not by the British Army but by the RUC, horror stories of alleged atrocities and illegal acts. Yet these are the very people whom Senator Lenihan and Senator Yeats would be very happy to see having custody of the accused going North, happy to the extent that if the person escaped from these people, that escape would be an escape from lawful custody so as to constitute an offence under section 3.
I see a great inconsistency between these arguments, a great inconsistency within the ranks of the Opposition. Senator McGlinchey found the RUC so objectionable he could take up the time of the House for many hours and he was supported by Senator Dolan, who also took great exception to the RUC. Perhaps other Senators too; I cannot recall. These case histories related by Senator McGlinchey have not been denied by——
Mr. Cooney: I am replying to the amendment. The point is that one of the justifications for the amendment, argued at some length and quite emotionally by Senator Lenihan—so far as one can ever be sure when Senator Lenihan is being emotional— for substituting the words “the custody of the police” for the words “lawful custody” was that the police would be all right, we might have some reservations but, it would be all right to make it an offence to escape from them but not all right to make it an offence to escape from any other authority up there.
I was making the point that this was an inconsistent argument, a totally illogical one, when we recall the horror stories—and they were nothing short of horror stories—with which Senator McGlinchey regaled the House, for hours on end to the gratification and enjoyment of many Senators on the benches with him at that time. This force, so fortrightly condemned by Senator McGlinchey in such unequivocal terms, is now suddenly acceptable to Senator Lenihan, the leader of the Opposition, as being composed of people who could have custody of a person going North for the purpose of taking evidence on commission, so that, if a person escaped from those people, he would be committing an offence.
Mr. Cooney: I have no riding instructions to keep it going. I was so appalled by the variety and inconsistency of the arguments put forward  by the Opposition in supporting this amendment, I feel they deserve, at this stage of the debate, some detailed reply and that is what I am endeavouring to do. Senator Yeats is a man who makes logical cases in this House, who reads his measures carefully; comes in and, by and large, makes constructive cases in support of his arguments. I know it grates on him when an argument raised by a colleague contains a serious fallacy or inconsistency when put in counterpart with arguments made earlier by other members of the same party. It must grate when these inconsistencies and contradictions are pointed out.
There is a serious difference between the Opposition and myself as to what section 11 means when it talks of “custody”. It has been interpreted by the Opposition as meaning that we in this Parliament, in this statute, can say in what sort of custody a person will be kept when he leaves this jurisdiction. Of course, we cannot.
Mr. Cooney: What we can set out and describe is the force or persons to whom an accused will be handed over when he departs from this jurisdiction. I submit that that is the real meaning of section 11, when it speaks of “the custody of the police of Northern Ireland”. It can speak of such custody only in the context of the handing over of the accused to go North for the hearing of evidence on commission. We here cannot say that from that point on the accused is to be kept in such-and-such a custody because our writ does not run there. Likewise, we cannot be directed as to the type of custody we are to maintain here in the reciprocal situation. All we can do is provide for the custody at the point of departure. The custody we provide at the point of departure is the custody of the police of Northern Ireland. We have to name somebody. That is the true meaning of section 11.
Mr. Cooney: Yes, indeed, including  subsection (2) (a). Subsection (2) (a) merely informs the accused that he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence.
Mr. Cooney: Of course it has to be read in relation to (a) and the whole thing has to be read in relation to our constitutional position and to the reality of international law. Our jurisdiction ends at the Border. We cannot say thereafter in whose custody the accused is going to be. What we do and all we can do is to ensure that he has complete and total immunity from any suit or legal process in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland.
Mr. Yeats: The Minister has said in section 12 that people coming from Northern Ireland to evidence-taking here will be in the custody of the Garda Síochána. The British Bill does not do what the Minister's Bill does. The Minister should have seen that they did, and that is why the problem arises.
Mr. Cooney: I will come to that in a moment. I would refer Senator Yeats to section 13 which contains the “Provisions relating to custody and immunity of persons in the State for taking of evidence under section 12 and to persons unlawfully at large.”
Mr. Cooney: I dealt with this at some length on Committee Stage. We cannot legislate here for what the British Bill says. Our only influence on the position up there is rather sideways influence by virtue of subsection (2) of section 3 dealing with the question of a person who escapes from custody when in the North for the taking of evidence on commission. It is an offence if he escapes from lawful custody. The Opposition seek to make that an offence if he escapes from the  custody of the police in Northern Ireland. In this Bill, when a person from the North is in custody here for the purpose of evidence on commission, that person would be in the custody of the Garda or in prison.
Mr. Cooney: I dealt at some length with the question of custody in Northern Ireland on Committee Stage at columns 152 and 153 of the Seanad Debates on 9th July. I said that I thought Senator Yeats was tilting at windmills, and he still is. He says that because we say in our Bill a person is in the custody of the Garda Síochána or in prison and all that is said in the reciprocating Bill is that he is in custody, that there is some serious difficulty. I cannot see in essence what the difference is. If a person is in custody the important thing is that he is protected while he is in custody, that he has absolute immunity, and this is provided in clear and unequivocal language for the person.
Mr. Cooney: No. Senator Yeats has read the Bill more carefully than that. He knows that a person will be immune from detention and any kind of suit or legal process in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland. Senator Yeats is doing himself considerably less than justice if he interprets those wide words, giving complete and absolute immunity and protection, as meaning just the serving of summonses. There is total protection for the person. The important thing is that there be total protection. I made this point before and I asked: does it matter a whit to a person in whose custody he is when he is guaranteed immunity? This is the critical point. This is the human rights, the civil rights aspect of the section that Senator Lenihan was so disparaging about. I do not think it matters a whit who has custody provided the immunity is present.
 It was argued that under the Bill, as drafted, a person might go North for a hearing on commission, that he might find himself in the custody of the British Army, having been handed over for administrative reasons or any other reasons—even mischievous reasons—and be ill-treated and that if he escaped if the opportunity presented itself to him, it would be intolerable that such a person would then be prosecuted under subsection (2) of section 3 for escaping from lawful custody. Any custody that abused his statutory immunity could not by definition be lawful custody. When it could not be lawful custody there could be no offence of escaping. It was argued here, particularly by Senators Lenihan and Dolan, that such a person might find himself being abused, or interrogated against his will.
Senator Dolan seems to have the question of hooding on the brain. He painted the frightening picture of the man being hooded and interrogated non-stop for many hours and asked, who would blame such a person for escaping? Nobody would. Senator O'Higgins made the point that nobody would blame that person for escaping and it is unthinkable that he would be prosecuted. Even if the unthinkable happened and he was prosecuted, I am saying that he would not have been guilty of any offence because the custody from which he escaped would have been unlawful custody by virtue of the clear breach of his statutory immunity. Any person going North is protected by this immunity. His custody must respect it. If it does not respect it, the custody in which he is held is unlawful. It is no offence to escape from unlawful custody.
The offence provided for in subsection (2) of section 3 is quite clearly the offence of escaping from lawful custody. Senator Yeats proposes to add the words “the custody of the police” so that the subsection would read: “A person who escapes from the custody of the police while in Northern Ireland pursuant to an order under section 11 (2) shall be guilty of an offence.” That does not  improve the position of the accused one iota. I think it possibly disimproves his position. The reality of the situation is that when a person goes to Northern Ireland to seek to leave him constantly in the custody of the RUC is not to take account of administrative difficulties and realities.
It may be necessary to lodge that person in prison overnight during an adjournment of the commission proceedings. If he is lodged in a prison overnight that prison may be under the care and control of the prison authorities and would it not be naive in the extreme to say that he would be committing no offence if he escaped from the prison authorities while lodged overnight with them whereas if he was lodged overnight in a RUC station he would be committing an offence? An amendment which would lead to such a result would make a laughing stock of the legislation in question. The chances are that a person may have to be lodged in a prison overnight or during an interval in the taking of evidence on commission. As I pointed out on Committee Stage that prison may be nominally under the prison authority or it may be nominally under the military authority but run in practice by the prison authority. I do not know how the prisons are organised in Northern Ireland, who controls them or who has legal responsibility for them.
Mr. Cooney: I do not think I should know and I do not want to know. I have enough to do watching the prisons down here. I do not know how the prisons are legally organised, as to who has the legal custody of a person imprisoned in them, whether it is the prison authorities, the RUC or the army authorities, in some instances. Indeed, it might be argued that the custody of the person remains in the commissioner on behalf of the trial court. It is a matter possibly of some argument as to who has custody of a person during a trial in this jurisdiction. Is it the warders with whom he sits in the dock? Is it the police who brought him to the court or is it the judge who has  seisin of the trial? The better opinion is that it is the trial judge who has the custody while a trial is proceeding.
Mr. Cooney: I am not saying it is a trivial matter at all. What I am saying is that I do not know. I was coming around to making the point that it can be quite a difficult technical legal point as to who would have seisin or custody of a person in a particular situation. There could be areas in which the legal authority would be doubtful. Even for a person on trial in this jurisdiction there would be some doubt as to the person who would have custody of him in the event of his escaping and being prosecuted and would have a right to order his presence or absence as the case may be. The better authority is that it is the presiding judge, but the person is there possibly with the warders from the prison who brought him down and he has been committed to the care of the governor of the prison. Again, the governor of the prison might be a military man. He might be there having, what we might call, practical control of the prison, but legal control could be vested in a civilian who might be elsewhere. Therefore, it is not a simple matter nor could I be easily or readily expected to know, especially in the nuances of the Northern Ireland situation, who exactly would have legal custody at any particular time in a particular institution.
The point is that before an offence under subsection (2) of section 3 can be committed the escape must be from lawful custody. I submit that that can only be lawful custody within the jurisdiction where the escape takes place. Assuming that such an offence were being prosecuted here as an extra-territorial offence it would be a matter of proof to satisfy the trial court here that the people who had custody of the person up to the time of his escape were the people  lawfully entitled to have him in custody. This would be a matter for positive proof by a prosecution as part of the evidence they would have to adduce in order to secure a conviction.
In answer to the particular argument by the Opposition who had some worries about a situation where because of the British Army's record of treating prisoners it might be that a person escaped because of ill-treat-ment, such an escape could not be from lawful custody because the breach of the immunity given to the person would, in my submission, make the custody unlawful. That might not apply to a person in custody in his home jurisdiction. His remedies would be other because there is, what I might call, no statutory immunity. There is a common law immunity not to be ill treated. That common law immunity is present and it gives rise to remedies, civil and criminal, at the suit of the injured party against the authority responsible. But it does not make the custody in the home jurisdiction per se unlawful. The unlawfulness, if I might use the word, that would arise in this instance arises by virtue of the breach of a statutory immunity specifically given under this Bill and its corresponding English measure.
To seek to confine this offence of escaping to escaping from the custody of the RUC is to put ourselves in quite a ridiculous position. We can imagine a situation where prisoner A is arraigned in the custody of the RUC and is kept overnight in a police station; he escapes and comes down here, and is guilty of an offence if it can be proved against him. If prisoner B, on the other hand, had been in the custody of the RUC during the taking of evidence and there was an adjournment overnight and he was lodged in a prison—or he may be a juvenile lodged in a place of detention—if he escaped and came down here there would be no offence. That would be a ridiculous result and it would be an inevitable result from the amendment which the Opposition are making. We should not put ourselves into the position of passing legislation which could  have a ridiculous result. It would lead to an inconsistency of that nature. It would be bad law and bad for the standing of Parliament to do such a thing.
The objectives sought by Senator Yeats in moving this amendment are laudable. He is anxious to ensure that no injustice will be done to a person who might have to go in custody to Northern Ireland, but the assurance that no injustice will be done is not obtained in trying to define the type of custody into which that person is to be kept. On the other hand, it is assured, beyond yea or nay, without equivocation, by the section providing for immunity. As I said before, and it bears repeating, the immunity is from detention and any kind of suit or legal process in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland. No matter how tempting or how juicy a subject the prisoner might be, his immunity is guaranteed. This is where the real protection is given to the prisoner going North on commission.
Again, as I say, a lot of this arises from a misreading of section 11. Section 11 can only provide for custody at the point of departure. We cannot say in whose custody a person will be when he leaves the point of departure. He can only be in the custody of the authorities in Northern Ireland. If a person is in custody, I do not think it matters to him; he has not got his freedom. This is the whole essence of custody.
Mr. Cooney: I want to deny that I am filibustering or engaging in anything in the nature of a filibuster. This is an important Bill. It is a Bill that has been misrepresented at great length by the Opposition, not merely on this Stage but on the Committee and Second Stages——
Mr. Cooney: Again too, on the inconsistency of this amendment, it ignores the reference to custody in many other sections of the Bill. We would have ourselves in anomalous drafting positions, if it were to be related subsection (2) of section 3. What about section 14, subsections (4), (5) and (6)? If we amended subsection (2) of section 3 we would have to consider section 14, and we would end up in a drafting jungle in which we would possibly produce results even more anomalous and ludicrous than the results I have demonstrated would be produced by the Opposition's amendment.
Mr. Cooney: Here we are on the Report Stage, fighting comma by comma, over this unamendable Bill. They were Senator Lenihan's words: “The Bill is unamendable” and I must say when I heard they would be putting down no amendments my heart jumped, but prematurely, I regret to say——
Mr. Cooney: The Senator knows very well what I mean. By and large, I am satisfied that the arguments which have been advanced in favour of the changing of the words “lawful custody” to “the custody of the police” in subsection (2) of section 3 are not good arguments. I have taken some time and gone to some pains to demonstrate why I think that. I would suggest the Senators opposite who were not here for the whole of my contribution might read the record subsequently and be satisfied and possibly swayed by the arguments.
Mr. McCartin: When the Opposition are finished with their joke I want to remind them that this amendment is an absolute contradiction of what we have heard from the Opposition benches over a long period for many months. For three or four hours we listened to Senator McGlinchey  make the very argument that makes nonsense of the sort of amendment that is being put down here. We have had illustration after illustration, quotations from every book and journal, decrying the actions of the RUC. The Minister is quite right, because it was not once that any of these allegations were made. We hear about a filibuster this evening, but Senator McGlinchey at least on a dozen occasions referred to the RUC, the police force in Northern Ireland, as the “scum of the earth”. We have here an amendment which suggests that it is quite in order, quite respectable, for the authority in this State now to hand over a prisoner into the custody of that very police force which was referred to as the “scum of the earth”. I must say I am proud of the job of convincing that our Minister for Justice has done on the Fianna Fáil Party when he has at last brought them around to saying that they believe it is all right for the authorities here to hand a prisoner over into the custody of the RUC.
The Minister is quite right in pointing out that, regardless of what laws we pass here, what we say in our Bill, if we are ever to make an arrangement of this sort, at some stage our jurisdiction comes to an end and the jurisdiction of another authority takes over. Regardless of how watertight we may propose to make it, we cannot go any further than that. We cannot extend our authority for the moment across the Border whether we hand somebody into the custody of the RUC, the UDR, the army, whoever it may be. That person is no longer in our custody. No matter what laws we make, we are not in any position to say precisely how that person will be handled. What we have done is all that any sovereign State can do. We have laid down our conditions, which is quite normal practice, between two nations. We have a sovereign State here. It speaks for the people of this country with the very same authority as has the British Government, or the authorities in Northern Ireland. Our State speaks with that authority and gives to the prisoner, who is being  handed over all the protection that a sovereign state can give. I am completely satisfied in so far as this Bill has sought to protect and give immunity to any prisoner being handed over. It has done that as far and as well as it could be done. I think it was a great pity that discussion on this section should have again brought forth the sort of emotional tirade——
Mr. McCartin: Yes, but nevertheless, what we are discussing here is an amendment which must necessarily take us back on a lot of the arguments that have been submitted by the Opposition. When one discusses what is at the basis of this amendment, the question of into whose authority we ought to give or ought not to give a prisoner, we must necessarily discuss the reasons. Naturally, the Opposition, I suppose, want to make their case against the particular limb of the authority in the Six Counties and, on the other hand, I feel justified in making a case in reply. They have gone to great lengths to establish an argument against the various sections of the authority in the Six Counties. They have discussed and elaborated on the record of the British forces, the part-time UDR, and quoted to a great extent to make strong their argument that prisoners should not be handed into their custody.
At this stage they recommend that we should give prisoners into the custody of the RUC, although previously they said this was a discredited and disreputable force. Senator McGlinchey went to great pains to point out that these men were the scum of the earth. Therefore I think I am justified in replying that it was unfortunate that these arguments were used.
It is also unfortunate that people who profess to desire a united Ireland, people who profess to believe  that the people of this State, North and South, are one and the same people and should be reunited should then go to great lengths to elaborate on the foulness of a police force, on their complete untrustworthiness, their cruelty and barbarity.
Mr. M.J. O'Higgins: It is proposed that we start tomorrow with the  Criminal Law (Jurisdiction) Bill, and if it is not concluded by 2.30 that we interrupt business then for the purpose of taking the Wealth Tax Bill.
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