Seanad Éireann - Volume 81 - 11 June, 1975

Air Navigation and Transport Bill, 1974: Committee and Final Stages.

SECTION 1.

Question proposed: “That section 1 stand part of the Bill.”

[1122] Dr. West: The definition of “aircraft” on line 12 reads: “aircraft” includes any aircraft other than state aircraft. By “State aircraft” I presume is meant a State military aircraft because our normal use of the terminology would include Aer Lingus but it means any aircraft other than a military aircraft of the State.

Mr. P. Barry: Yes.

Dr. West: This includes privately-owned aircraft as well as aircraft owned by State companies such as Aer Lingus, so privately-owned aircraft which are hijacked would come equally under the scope of this Bill.

Mr. P. Barry: It includes every aircraft except those operated by the Garda, or by the Customs, where there is a State involvement. The words “State aircraft” are very loose in their normal usage. This is rather tight and includes all aircraft used in civil aviation.

Dr. West: The words “State aircraft” are defined carefully somewhere else because there is no point in defining aircraft——

Mr. P. Barry: Line 20.

Dr. West: Line 20, yes. It is a wonder they did not define State aircraft first and then aircraft afterwards.

Mr. Markey: Paragraph (b) refers to a period of 24 hours after the aircraft has landed. That seems quite a lengthy period. I was wondering why.

Mr. P. Barry: It would appear so, but the purpose here is to allow sufficient time because it is possible that an aircraft would be delayed on the ground in transit waiting for either an aircraft to be free of fog somewhere else or something like that. It is to cater for that kind of eventuality that there is a fairly flexible amount of time given.

Question put and agreed to.

SECTION 2.

Question proposed: “That section 2 stand part of the Bill.”

[1123] Dr. West: This is the section which, as the Minister has just explained, provides for people to be tried in a country other than the country of their origin or other than the country in which the flight originated. This is a crucial section of the Bill, in that it allows for trial in any State ratifying the convention where the aircraft may land. This is the extra-territorial section essentially. This was discussed at some length in The Irish Times this morning by Dr. Asmal in his comparison of extra-territorial law being put into effect by means of international conventions or by other means. The point he made was that the way to arrange for extra-territorial jurisdiction is precisely the way it is done in this Bill, by means of a treaty which is ratified by the various countries, rather than by the methods by which we are trying to do other things. This is really the way to do it. Get a treaty ratified by the countries and then pass enabling legislation as we have done here. I think that is the point of this section.

Mr. P. Barry: In this case the hen came before the egg inasmuch as the convention was signed and now the Bill is here.

Dr. West: We have both the hen and the egg. In the other situation we have only got the hen and no egg.

Mr. P. Barry: I do not want to enter into another Minister's province but I would suggest that there is no convention catering for the other crimes which the legislation the Deputy speaks of is seeking to cater for in this country.

Mr. Lenihan: The basis of it is that extra-territoriality cannot be enforced as a principle unless there is a convention which free states enter into, and they will only enter into that if there is confidence on the part of each subscribing party that the other subscribing party or parties will have their security and police forces so organised that there is a complete mutuality of confidence and good faith. That exists in regard to this [1124] offence. There is no question about it. Therefore it can be done.

Dr. West: It is not just as simple as Senator Lenihan makes it out, because a car could be hijacked in Belfast, which is part of another territory, driven South, and no prosecution could be taken because of the problem of the political offence. The man could not be tried here. Exactly the same man, for exactly the same reasons, travelling in an aircraft from Belfast, if he landed here, would be eligible for trial under section 2 of this Bill, so it is not just as simple as that.

Mr. Lenihan: Because of the all-pervading principle of the safety of aircraft. That is acknowledged by all the civilised countries to be so paramount that you can get a convention and agreement.

Dr. West: The point I am trying to make is that there is a subtle political point which we are missing here. That is a pity. It is very important to underline that at this stage. I am rather surprised that certain subversive organisations have not—they may have tried—appeared in airplanes threatening people. The whole point of this Bill is that, if they do, no matter where they land they are eligible for trial. There is no problem about extradition. They do not have to be extradited. They can be tried in the country where they land. It is very important to underline this and to establish unequivocally that it does not matter whether the offence is a political offence, or connected with a political offence, the person will be tried here. I wish this applied more widely. The fact is that it applies here in this section and we should publicise that fact. It is very important and it will discourage any activity of this nature.

Mr. P. Barry: Senator West is quite right. Any subversive organisation who decided to do with an aeroplane what they now do with a car, and which they can get away with in a car because they take themselves out of the jurisdiction, should they apply the same principle of bombing and wrecking with aeroplanes cannot [1125] do that when this legislation is passed. No matter where they commit their crime, even if they hijack a plane between Belfast and Derry and come down here, and are caught down here, they can be tried under this legislation here irrespective of the other Criminal Law (Jurisdiction) Bill.

Question put and agreed to.

Sections 3 and 4 agreed to.

SECTION 5.

Question proposed: “That section 5 stand part of the Bill.”

Dr. West: This is the section in which the Extradition Act of 1965 is quoted. I should like to ask the Minister to explain this section to me. I cannot figure out situations in which section 14 and section 49 of the Extradition Act, 1965, would or would not apply. Again, I do not see why section 15 of the Extradition Act shall not apply. Perhaps the Minister could elucidate.

Mr. P. Barry: The significance of this section in providing that persons may additionally be deemed to have been arrested under section 27 or section 49 of the Extradition Act, 1965, is that it creates the basis upon which the extradition procedures under the 1965 Act may be invoked. From the moment of invocation the procedures laid down in the 1965 Act govern the case. Part 2 of the Extradition Act applies to countries other than the United Kingdom with which Ireland has an extradition treaty or who are parties to the European Convention of Extradition and Ireland is a party to this convention. Part 3 of the Act applies to the United Kingdom. Section 14 of the Extradition Act provides that extradition shall not be granted where the person involved is an Irish citizen unless the extradition treaty provides otherwise. Under this Bill an Irish citizen who hijacked a plane flying between two countries outside the jurisdiction cannot be extradited by either of those countries. We have to try him here under this Bill for that crime.

[1126] Dr. West: From what the Minister said, if a prosecution is envisaged here under section 2 of this Bill, and another country applies for extradition under the Extradition Act, and it is not prohibited by section 14 of that Act, then the trial here automatically lapses. If the person is to be extradited the trial proceeds no further. Is this the point?

Mr. P. Barry: Yes, in practice that is the way it would work. If we had not a direct interest in the case, if we just happened to catch the person involved in a crime on our territory, then we would allow the Extradition Act to apply. If we had a direct interest, suppose it was an Aer Lingus aeroplane which was hijacked in another country, and the person who hijacked it came here, it would be in our interest to invoke this legislation and try him under this legislation here because it was a crime against one of our aeroplanes. We have the choice in this regard. Even though we have the choice, we have the duty also to either extradite him to the country which demands him or try him ourselves so that he will not get off scot free.

Question put and agreed to.

SECTION 6.

Question proposed: “That section 6 stand part of the Bill.”

Mr. Yeats: I have a certain number of worries about this section. First of all, no one could object to the severity of these penalties for people who are normally described as “hijackers” or people who deliberately seek to destroy or damage an aircraft in flight, and so on.

On the other hand, one can exaggerate the deterrent effect of long sentences such as this. We all know of the problems that have arisen in a number of countries in keeping people of this kind in jail. The mere fact that a man is sentenced to life imprisonment does not mean that, under present circumstances, he has not got a fairly good chance of getting out much earlier because of the constant efforts by his compatriots by means [1127] of violence of various kinds to get him out of jail. Unfortunately only too often they do. I would not exaggerate the deterrent effect of sentences such as this. The only real deterrent, I imagine, would be if you could shoot him out of hand when you have got him. But, of course, in a civilised society one cannot use uncivilised means to deal with this kind of thing, so the most we can do is to sentence people for long terms of imprisonment.

While saying that no one could object to the severity of the penalties, I think the provisions of subsections (2) and (3) may be mistaken. Subsection (2) provides that a court shall not suspend a sentence imposed under this section. Subsection (3) provides that the court will not have the power to use the Probation of Offenders Act. One can quite see the point about this where you have genuine political hijackers involved, people of that kind, obviously men of violence who are endangering people's lives.

It seems to me that, if one goes back to section 3, some of the offences which come under this section might not come under these categories. Paragraph (a) of subsection (1) provides that a person shall be guilty of an offence if he commits on board an aircraft in flight any act of violence which is likely to endanger the safety of the aircraft. Somebody could start a fight with someone on an aircraft of such a nature that the safety of the aircraft was endangered. He might even, perhaps, fire a gun in the course of this operation and risk the safety of the aircraft by boring a hole in the outer skin. Such a person might be very drunk, for example, or he might be simply a violent person who had no specific intention of hijacking.

Paragraph (e) provides that it is an offence to communicate any information he knows to be false where the communication of the information endangers or is likely to endanger the safety of an aircraft in flight. There might be some irresponsible person who was engaging, in the curious way such people do, in some kind of hoax which could undoubtedly endanger an [1128] aircraft. This is not the type of person envisaged in this Bill.

The Minister may tell us that in such cases the Attorney General would advise using the ordinary machinery of the law against him and not proceeding under this Bill, but nonetheless it could be that when the prosecution was launched the case seemed more sinister than it had appeared to be. Under these circumstances it is unwise to take away from the court any power to suspend a sentence or to use the Probation of Offenders Act. It seems very drastic. Our courts are perfectly capable of imposing severe penalties if these severe penalties are needed. At the same time, in cases which could arise where the person before the court was not in any sense of the word an ordinary political professional hijacker, it seems unnecessarily severe to have these provisions. Incidentally, the convention and the schedule of course do not require this. If they did, we would be stuck with it. Article 3 says that each contracting state undertakes to make the offences mentioned in article 1 punishable by severe penalties. One could certainly do that in subsection (1) of section 6 without having the remaining two subsections.

Mr. P. Barry: The severity of a sentence is sometimes a matter of opinion. Life sentence here generally means a maximum of nine years. Of course the court would impose anything from six months to nine years in that bracket. Section 3 is governed by “For the purpose of giving effect to the Montreal Convention, a person shall be guilty of an offence if anywhere he unlawfully and intentionally...”. The word “intentionally” governs the four subsections to that section. The drunken person Senator Yeats referred to was presumably not intentionally endangering the aircraft. The person in question here intentionally does these acts.

I am not a lawyer, but I think there is an element of premeditation. He would intend to do these things. In the case of a person who had a few drinks too many and started a fight aboard a plane, the Attorney [1129] General and the courts would consider that he did not intentionally set out to damage or hijack the aircraft. The four subsections would be governed by the word “intentionally”. I understand that the provisions for not allowing probation are not unusual. They are also contained in the Road Traffic Act, 1961. They are not uncommon in our legislation.

Mr. Yeats: For what offence?

Mr. P. Barry: Drunken driving.

Question put and agreed to.

Sections 7 to 9, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.