Seanad Éireann - Volume 82 - 31 July, 1975
Criminal Law (Jurisdiction) Bill, 1975: Report Stage (Resumed).
Debate resumed on amendment No. 4:
In page 4, line 48, to delete “lawful custody” and substitute “the custody of the police.”
Mr. McCartin Mr. McCartin
Mr. McCartin: I was just pointing out that I could not see the reason for the Fianna Fáil attitude to this section. The question of lawful authority in regard to the police force in Northern Ireland is only a quibble and does not stand up to examination. I was in the course of pointing out that lawful authority is lawful authority. If people in control in the jurisdiction into which a prisoner is handed over are not a trustworthy authority, then I can see no reason why any police force, whether it be a police force, an auxiliary force or an Army, can be trusted any more than another. The Minister has done all that can be done from this side to ensure the immunity and safety of a prisoner. I am completely convinced that his measure has done everything  that a responsible legislator can do to ensure their safety. I do not think that any change in this section will add one iota to the safety or confidence of the prisoner being handed over.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: We are against a person who goes up to the North to hear evidence against him, being in custody at all, although there may be certain circumstances in which it would be necessary. We have spoken against the provision in the Bill which makes it necessary in all circumstances. Having accepted the fact that the Bill as it now stands provides for custody, we think it better that it should be the custody of the police rather than some other vague body, the British Army, SAS or some other body of that kind. There is no limit to whose custody the accused would be in when we talk about “lawful custody.” “Lawful custody” has a very wide meaning.
It is true that the RUC have been guilty of many misdeeds. Nevertheless, there are worse bodies. The proceedings that are at present before the Commission on Human Rights are principally, if not entirely, in relation to military bodies of one kind or another. For that reason, although I have no great enthusiasm for the RUC, certainly no great enthusiasm for some members of it regarding their deeds in the past, it seems to be better that this section should talk about the custody of the police rather than lawful custody.
I should like to draw attention once again to the fact that section 11 (2) is the section we are dealing with. In this case we are dealing in this amendment with the case of a person who merely goes to the North to hear evidence that will be given in the case with which he is concerned. He is an accused person. The Minister, in the course of his long filibuster last night, talked about this terrorist going to the North and being in custody. He talked on several occasions of the way in which we were dealing with a terrorist. It is rather shocking to hear the Minister for Justice talking about a person who merely goes to hear evidence against  him, who is merely an accused, being loosely referred to as a “terrorist”, where no crime has been proved against him. In the circumstances, which are envisaged in this section, he is a person who voluntarily, goes to the North of Ireland to hear evidence against him, presumably because he believes he is innocent of the crime, wants to hear the evidence and to defend himself. It is rather shocking to hear the Minister for Justice loosely referring to this person as a “terrorist”.
Minister for Justice (Mr. Cooney) Patrick M. Cooney
Minister for Justice (Mr. Cooney): I think the Senator should check the Official Report before he quotes me.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: That is exactly what the Minister said.
Mr. Cooney Mr. Cooney
Mr. Cooney: I spoke of people going North and I spoke of the fight against terrorism.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: I know the Minister was rambling on taking up as much time as he possibly could and being as irrelevant as he possibly could. In the course of his long, rambling speech, his deliberate filibuster last night, he referred to the person: the only person referred to in this subsection and this amendment is the person who voluntarily goes to the North to hear evidence so he can defend himself—an accused person, not a terrorist. It is rather shocking to hear the Minister making these kind of loose references.
Mr. Cooney Mr. Cooney
Mr. Cooney: We will wait to see the Official Report.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: We are talking about a very different person in this subsection. We are not talking about a person who is in custody in the North of Ireland, who is perhaps convicted as a result of a trial in the North of Ireland. One might feel that that person's escape was not something of which a very serious view could be taken for one reason or another. I leave that aside. We are not dealing with that. We are dealing with a specific situation of a person who goes North, who is within the jurisdiction of this part of the country. who is being dealt with by a court down here. The  court down here is giving him the option of going to the North and has responsibility for him, responsibility to ensure that if he goes to the North he is properly dealt with, that he is in proper custody and that he has some chance of getting back without being interrogated or without being subject to the kind of treatment that many people have met when in the North of Ireland. It is not just any case. It is a specific case in which the court, the Government and the Oireachtas down here have a very special kind of responsibility. That is why we must treat it in a very special way.
Section 11 specifies the custody of the police. It talks about the person being given into the custody of the police. All along it is quite clear that it is not just given into lawful custody but the custody of the police. Why does this subsection say otherwise? If there is no special reason, if there is no sinister purpose, then why talk about lawful custody here and the custody of the police in section 11? If there is no sinister purpose why not accept the amendment to make the situation quite clear? I can understand that the people drafting this Bill might, inadvertently, have put in “lawful custody” here, whereas they put in “the custody of the police” in section 11, just not noticing the difference. It is quite understandable it might be done inadvertently but once the position has been pointed out, once the Minister's attention has been drawn to it, once the Minister says, as he has said, that the custody of the police is what is intended in these circumstances, why not say so in this subsection? There is no reason, no excuse at all, for not changing the words if the Minister's intention is that the accused person should be in the custody of the police, should remain in the custody of the police and as long as he is in the North of Ireland should be in that custody and no other. Why is there the reluctance to put in these words if that is what is intended and envisaged, and if that is the kind of custody in which the person should be when he is in the North?
 One finds it difficult to understand why the Minister is so stubborn about this, apart from the fact that he has refused to accept virtually any amendment to this Bill. Why is he so stubborn? Does he want to provide for some situation in which the person will no longer be in police custody? He goes up there for a very specific reason. He will only be up there for a very short period. It is quite clear that in these circumstances he should be in the custody of the police. That is what it states in section 11. Why is the Minister digging his heels in on this and allowing a situation where the administration in the North, in certain circumstances apparently, can hand over the person from the custody of the police to what is loosely referred to as “lawful custody”? “Lawful custody” could, of course, be the British Army, the SAS and, in the future, it could be any one of these fringe organisations, organisations which are not even the British Army or the police, but which are somewhere between the lawful security forces and the quite clearly unlawful security forces. Why make the provision? Why insist on leaving this loophole if the intention is that the person in question should be in police custody and if it is in section 11? I cannot see any reason why there should be this reluctance to close the loophole unless the Minister has some reason which he is just not telling us.
The Minister has said, quite categorically, on the one hand that the accused person is perfectly safe, that section 11 (2) (d) protects the accused. It 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.
The Minister is categorical about that. On the other hand, when we press that he should be kept in the custody of the police he suddenly changes his attitude entirely and says  “I have no control over that. I cannot provide that he should be kept in the custody of the police. I cannot say what will happen to him once he gets up there. I have no power up there.”
Which is it? Either he has the very simple and comparatively limited power of saying when the person is up there at least he should remain in the custody of the police—that does not seem to be asking very much—but he says he cannot do that. The man is out of his hands and he cannot provide for that. On the other hand, he can state quite categorically that the accused person will be quite safe and that he will not be abused in any way. The two statements are completely inconsistent. If he can provide that nothing will happen the person while in the North of Ireland, he should be able to make one stipulation: that he should be kept in the custody of the police.
It is difficult to understand the Minister's inconsistencies on this point. It is difficult to understand why he will not accept a very simple amendment. An accused person goes North to hear evidence in a case in which he is the accused person, not the person who is already convicted, not an escaped person who has been convicted of some serious crime; but a person who in all possibility is not guilty of any offence. This is a person who goes voluntarily to the North to hear evidence so that he can defend himself. He is more than likely a person who believes he is innocent and wants to fight the proceedings. All this amendment asks for is that it be ensured that when he is in the North he is in police custody and not in “lawful custody,” which is much too wide a term in relation to the circumstances which exist in the North of Ireland at the present time.
It is difficult to understand the Minister's reluctance to accept this amendment unless he has some reason, of which we are not aware and of which he will not inform the House, why he wants to allow this loophole. Or perhaps it is a case of the Minister being as stubborn about  this amendment as he has been about every other amendment which has been put down on this Bill? If it is a case of the former, then the House is entitled to know the reason. If it is the latter we cannot do much about it. The Minister has a majority in the House. He can refuse to accept any amendment, no matter how reasonable or how well grounded, if he wants to dig in his heels and say: “I am not accepting it.” I do not know which one is the reason, but it must be one or the other.
Mr. Yeats Mr. Yeats
Mr. Yeats: One can only regret that the Minister is apparently not willing to accept this amendment. In the course of his very long dissertation last night, in which he referred occasionally to this amendment, he asked why I had not put down a similar amendment to the reference earlier in the section to “lawful custody”. I would point out to the Minister that this raises a completely different issue, both in fact and in principle. The reference earlier in the section is to people who are charged or are in most cases convicted of offences in Northern Ireland and are therefore in the custody of the lawful authorities in Northern Ireland. Ninety-nine per cent of the cases which could arise under that part of this section would be people who have been convicted of offences. Therefore a totally different situation arises. I considered putting an amendment down and then I decided not to. A totally different situation arises from the situation with which we are dealing in this amendment. As Senator Eoin Ryan has just reiterated, this amendment relates solely to people who are not convicted of any offence. They have been charged with an offence and are being tried for an offence. They are innocent until they are convicted. They are therefore, innocent while they are in Northern Ireland for the hearing of the evidence.
The point I should like to put to the Minister is this. He has provided certain safeguards in section 11. He is anxious, as we all are, that there should be a genuine choice available  to the accused in a case such as that envisaged in section 11, where a person is charged for an offence committed in Northern Ireland, where all or part of the evidence is being heard on commission in Northern Ireland. We are all anxious that a choice should be given to the accused to go to Northern Ireland to hear the evidence given against him. The Minister would agree that it would be highly undesirable that evidence should be heard in the absence of the accused. It is vital that every possible chance should be given to the accused to travel to Northern Ireland to hear the evidence given against him. I do not think there is any difference of opinion on this matter.
In order to try and ensure that the accused shall have the genuine option of going to Northern Ireland to hear the evidence against him, the Minister has provided in subsection (2) of section 11 that the court, before making an order for the hearing of evidence, will point out to the accused that he has certain rights, which are listed in four paragraphs.
The second, third and fourth paragraphs say that the accused has a right to be represented by counsel, that he be immune from detention, suit or legal process and so on. In paragraph (a), the one we are dealing with, the court will tell the accused— this is an Irish court, sitting in the Republic of Ireland under our Constitution and trying an accused for an offence under this Bill—formally from the bench that 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 that right he will be delivered in custody to the custody of the police in Northern Ireland. This is categorically stated to the accused by the Irish court, from the bench. It is on this undertaking that the accused is asked to travel North into Northern custody in order to hear the evidence.
The Minister has provided for this most formal undertaking by the Irish court in section 11. This is a vital and important matter. It is vital for the proper administration of justice, for  the maintenance of public respect for the system of justice and for their confidence in the system of justice that the undertakings given by the court to the accused shall be carried out. It would be outrageous and a complete breach of confidence in the entire system of administration if, having been told by the Special Criminal Court that if he travels North to hear the evidence he will be in the custody of the Northern Ireland police and then he ends up perhaps in Long Kesh under the charge of the military or in some military barracks.
Surely the Minister can appreciate that it would be a terrible thing if a judge of the High Court, sitting as part of the Special Criminal Court, were to give this kind of formal undertaking to an accused in order to persuade him to go North to hear the evidence against him—the accused being still innocent until convicted— and having travelled North the accused would find himself in the custody of the military. Can the Minister not see the point we are making?
The Minister has pointed out at various times in this debate that he cannot control what happens in Northern Ireland. One is entitled to make the point that, while the Minister cannot control the situation, he should ensure that the corresponding British legislation relating to these matters, the hearing of evidence in Northern Ireland, will correspond with his. That is another story which we have had before and will have again.
The point the Opposition make in this amendment is that in the sad event for Irish justice of the undertaking given to an accused person going North to hear the evidence being broken and he finds himself in military custody, at least in our laws there should be no offence committed if he escapes from that custody.
We are perfectly willing to leave the Minister's section creating an offence if he escapes from the custody of the police, which is the custody he is being entrusted to by the Minister's legislation. He is handed over to the police, he has been told by the court  that he should be in the custody of the police. In that event, if he escapes we are satisfied to leave the section on the basis that an offence has been committed. I put it very seriously to the Minister, as Minister for Justice in an Irish Government that the accused having received this most formal and solemn undertaking from a High Court judge off the bench, he should not create an offence of escaping from military custody, into which he can be entrusted in British law as it stands at the moment, which would be a breach of that undertaking, a breach of confidence, a breach of everything the Minister has expected to happen in this Bill. I would press very strongly, at this late stage, that the Minister should reconsider this matter. I do not think the Minister is doing himself justice, I do not think he is carrying out the intention of the Bill. I am certain he is potentially breaching the confidence of the undertaking of the court.
The Minister said last night in the course of his dissertation that a charge such as this would be brought before the court and the court would take cognisance of the fact that the man had been transferred to the military. That is not the point. The court might impose a light sentence or no sentence because he had escaped from the military rather than the police, but an offence would have been committed and the court would have to find the accused guilty. What penalty it inflicts will be a matter for the court. The accused, if he escaped from the military under this subsection as it stands, would have committed an offence and there is no use glossing that over. Whether he was in the charge of the police or the military makes no difference so long as it is in accordance with British law. The Minister knows as well as I do that under British law, as it stands in Northern Ireland, the accused would be in lawful custody whether he was in the charge of the police or the military. It covers both. Therefore, he would have committed an offence. There is no use telling us that the court would take cognisance of this situation and perhaps not impose  much of a sentence. He would have to be found guilty of an offence. I put it to the Minister that, in order to preserve at least this far the integrity of his own Bill and the integrity of an undertaking given from the bench of an Irish court, he should accept this amendment.
Question : “That the words proposed to be deleted stand” put and declared carried.
Amendment declared lost.
Mr. Yeats Mr. Yeats
Mr. Yeats: I move amendment No. 5:
In page 17, line 42, before “be admissible” to insert “and if the court is satisfied that all the provisions of subsection (2) have been observed,”.
This raises a similar issue. It relates more directly even than the previous amendment to the undertakings given to the accused by the court. Under section 11 (2), as I have already mentioned, where the court makes an order for the hearing of evidence in Northern Ireland on commission, it shall inform the accused of certain rights that he will have if he travels North to the hearing of the evidence. Obviously, we would all be in agreement that it is vital that he should travel, and that he should have every reasonable opportunity for travelling.
The first of these rights is the one we have been dealing with. He has the right to be present in the custody of the police in Northern Ireland for the taking of the evidence. If he exercises that right he will be delivered in custody into the custody of the police in Northern Ireland. On a previous occasion we attempted to persuade the Minister to accept an amendment to the effect that that should be deleted and that he should be in the custody of the Garda Síochána. He did not accept it so we are stuck with the position about the custody of the police in Northern Ireland. The problem is that the corresponding British Bill, which is supposed to be identical and parallel but is not, does not say anything about police custody. It says he should  be kept in custody. There is this discrepancy. There is this nagging worry as to whether in this instance the undertaking given to the accused by the court would be carried out.
Under paragraph (b) we have the undertaking that he can be represented by counsel and solicitor, or by solicitor only, at the hearing of evidence. The specific statement in section 16 is that he can be represented not simply by counsel and solicitor from somewhere in Northern Ireland, but that the counsel and solicitor appearing for him in the trial in the Republic can go North with him to the hearing of the evidence. Again there is the discrepancy that the British Bill does not provide for this. The Minister started his discussions a couple of months ago under the impression that it did, but he had to admit in due course that it did not. He said it will be arranged by administrative practice, and so on. Here again, one has one's doubts, particularly because one must assume that, just as the parliamentary draftsman here knows his job and does not put in things or take out things without a reason, the British parliamentary draftsman also knows his job and there is some reason for these differences between the British Bill and the Minister's Bill.
We have no problem with paragraph (c). In paragraph (d) we have the problem of suit or legal process. The basic point is that the Minister has said he cannot control the activities of police, administrative authorities, and so on, in Northern Ireland and that, while the accused can be told by the court that he has these rights, there is no way of enforcing them. This amendment seeks to ensure, as far as reasonably possible, that these undertakings will be carried out. It provides that the evidence taken on commission will only be admissible if the court is satisfied that all the provisions in subsection (2) have been observed. This would mean that if, for example, his solicitor and counsel had not been admitted to the taking of the evidence, the evidence would not be admissible. If he was in  the custody of the military rather than the police, or if he had been faced with suit or legal process or questioned, which the Minister says is included in legal process, or if he was cross-examined by the authorities up there, again the evidence would not be admissible.
The Minister should accept this amendment. It does not water down amendment. It does not weaken its provisions for dealing with accused persons under these circumstances. It means that at least the Irish court has a chance of satisfying itself, before admitting the evidence taken on commission, that these undertakings it gave to the accused have been carried out. It is a fairly clear-cut situation. The court first of all brings the accused before it and says it proposes to make an order for the hearing of evidence in Northern Ireland. It tells the accused he can go up there, that he has certain rights. Then the whole process is gone through. The evidence is heard. The accused comes back. The court is about to proceed to listen to the evidence read from the typescript.
At this stage all the judges need to do is to satisfy themselves—and, after all, the judges will have been present at the hearing of the evidence and so they are in a position to satisfy themselves without any real difficulty— that the undertakings they gave to the accused have been observed. Since the courts have undoubtedly a considerable measure of responsibility for the safety of the accused, for the manner in which their undertakings have been carried out, any court would be more than happy to have this provision that, before actually hearing the evidence read to them that has been taken on commission, they are satisfying themselves that their own undertakings have been carried out.
Mr. Cooney Mr. Cooney
Mr. Cooney: What this amendment seeks to do is to restrict the court's powers of discretion as to the evidence it will admit before it. It would be wrong to restrict the admissibility of the evidence in this way. Relevant evidence should always be admissible so far as possible in order that the  proceedings should end in the right result. To seek arbitrarily to exclude evidence that might be relevant could lead to a wrong result. That would be an undesirable state of affairs.
Sometimes for strong reasons of policy, evidence is excluded and the court is not given any discretion: for example, induced or extorted confessions or evidence by the spouse of an accused. One can see why in those cases the policy is to exclude such evidence because, obviously, it would be untrustworthy by definition if it is extorted or induced. For reasons of policy it is only right that the evidence of a spouse should be excluded, not necessarily because it would be unreliable but because the giving of it might do immense harm to the marital relationship.
Mere irregularities of procedure do not necessarily mean that evidence taken by procedures must be inadmissible. The court has a discretion. It is well settled, for example, that evidence obtained by means of a breach of the judges' rules, or even obtained illegally, for example, by an illegal search, is not inadmissible. It is a matter for the court's discretion as to whether or not it is to be excluded. That shows how far the law, having provided these rules, permits, even in the case of a breach of those rules, the admission of evidence, because it leaves it to the court to decide on the relevance of that evidence in the circumstances of that particular case whether it is admissible.
This is what judges are for—to run their proceedings so that justice is done. For justice to be done requires all the relevant evidence to come before the judge. Justice being done does not necessarily mean acquittal. Justice being done could also mean conviction. But it must be left—and our system requires that it be left— to the presiding judge or judges to so conduct the affairs of the court at that trial that all relevant evidence is admitted so that a true and proper result can be obtained.
In the case of evidence taken on commission the same principles must apply. It will be open to the judges of trial court, who must all be present  all the time during the commission— that is specifically set out in subsection (3) (a) so that they hear and assess all the evidence verbally given —to exclude such evidence if they so decide in the exercise of their general exclusionary discretion. This is only as it should be. The court is in charge of its own proceedings. If the court thought there were irregularities in the provisions under subsection (2) (a), (b), (c) and (d) mentioned by Senator Yeats, then the court clearly has its own inherent discretion to exclude evidence by virtue of those irregularities. The accused is sufficiently safeguarded by virtue of that.
I am quite content to leave it to the discretion of the court to decide whether evidence should be excluded on the grounds that there has been an irregularity in regard to the matters in subsection (2), paragraphs (a), (b), (c) and (d). It is better than the court should have a discretion rather than giving a mandatory direction to the court so that the court has no discretion, irrespective of the level of irregularity, whether it is a mere technical irregularity or a breach of substance. As worded, the court would have no discretion and the absence of such discretion might prevent justice being done, and might prevent a true result being obtained. So it is only right that the discretion which courts have should be left to them in this instance. We can rely quite happily and with satisfaction on the fact that that discretion will be exercised in the interests of justice. That has been the invariable tradition of our courts.
There is one point which the amendment seems to overlook and it is an important point. It is that the evidence which might be excluded automatically, if the amendment were to be accepted, might be evidence for the defence, or evidence given on behalf of the prosecution which might be favourable to the defence. There could be interference with a true result being obtained by virtue of the evidence being adduced before the court. The courts have discretion, and should continue to have it, to decide whether the irregularities—if there  should be irregularities—in connection with the honouring of subsection (2), paragraphs (a), (b), (c), (d) are of such a nature that the evidence is to be excluded. If we were to have the mandatory exclusion sought by this amendment, the court would be fettered and prevented from carrying out its task, which is to see that justice is done in any particular case.
Senator Yeats and I are agreed that what we want to see is a fair trial in such circumstances, that a true result would be the outcome. His amendment could inhibit that happening, for the reason that it would fetter the discretion of the trial judges, the people who are charged by our Constitution with ensuring a fair trial and, when there is a fair trial, there will be a fair result. The matter is best left as it is, that the judicial discretion be unfettered.
Mr. Yeats Mr. Yeats
Mr. Yeats: This is the end of a long discussion we have had from time to time in different forms on this whole question of the position of the accused when he travels to the North of Ireland for the hearing of evidence against him. The Minister dealt with this amendment as it was related to an ordinary trial. I am well aware of the facts he stated about relatively minor irregularities not vitiating the whole trial, and so on, but he dealt with this as if it were an ordinary trial under the ordinary law. I put it to him that this is not an ordinary trial under the ordinary law. A very special situation is envisaged in this Bill, a unique situation which has never existed in this country before, where evidence is being heard in criminal trials, not merely on commission which has never happened before, but not even within the confines of the State. It is a very special case. It is of absolutely no use to the Minister to deal with it as if it were an ordinary criminal trial. It is not.
I have raised this question on a number of previous occasions, of the undertakings the accused is given by the court in order to persuade him to go to Northern Ireland, to the custody of the authorities there, to hear the  evidence against him. As I have already said, it is quite obvious that the Minister and I would be in total agreement the accused ought to have every genuine fair opportunity of going. I pointed out at a very early stage of these proceedings to the Minister—it was news to him; apparently he had not adverted to it—that the British Bill, which deals with the actual hearing of evidence on commission in Northern Ireland for a trial here, did not comply with the safeguards laid down in the Minister's Bill and did not comply in particular with the undertakings given to the accused by the Irish court.
At a time when the British Bill had passed the British House of Lords, but had not yet reached the House of Commons and therefore was in a position where simple amendments which were required could be made without difficulty, I put it to the Minister that there were these discrepancies, about four or five of them—all, one might say, leaning against the accused, all leaning in favour of the prosecution, in particular that he should be in custody, with nothing said about the custody of the police. We have had all this before. There is no need for me to go into it again in detail. I asked the Minister to write a simple letter. There was no need for him to fight a war or anything like that. All he needed to do was to write a simple friendly letter to whichever Secretary of State of the British Government deals with these matters and with whom he had been in close touch over a long period, a couple of years past, saying that these discrepancies had been pointed out and suggesting that he should remedy them.
The Minister refused to agree this should be done. The problem now is that there is this discrepancy, that the accused, once he crosses the Border, is in a different jurisdiction, operating under a law which does not give him the rights and safeguards laid down in this section, which he has been promised by the court. Under these circumstances, it seems to me that the court should have the right to insist that the undertakings it gave have been carried out. The Minister  apparently will not do it. He is not prepared to write a simple friendly letter to his British colleague asking him to remedy this matter. He has refused to do it.
In the absence of action at ministerial level, the court has a responsibility in this matter. The court has given these undertakings. This is not a matter now of the actual accuracy of the evidence. It is a matter of an Irish court which has given undertakings to the accused on the basis of which the accused has travelled North. From the beginning of the trial, whatever his actual custody may be at any time, the accused is, to a considerable degree, in the charge of the court. The court has promised him these rights. Therefore, whatever about the accuracy of the evidence, the nature of the evidence, the court ought to be in a position to satisfy itself before proceeding any further with the case that, in fact, the undertakings given by it to the accused have been carried out. It is as simple as that.
I would have preferred it if the Minister had done what I suggested long ago and written to his British colleagues. Heaven knows he and his officials must have had endless correspondence with them over the past couple of years. They should have written a short friendly letter pointing out these discrepancies and suggesting they might be remedied when the British Bill reached the House of Commons. The Minister will not do it. That being so, the court quite clearly has a responsibility in the matter. It has given these undertakings. Therefore it has the right and the duty to insist that the undertakings be carried out. This is not a matter of evidence.
Of course, the judges have been present at the hearing of the evidence. They may or may not be satisfied with the evidence, but that is another issue. The court, or indeed the Minister, should not be thinking of one case in a vacuum. If it transpires that an accused has been given these undertakings, has travelled across the Border, and one or more of the undertakings is broken, who else will go? The next time this question arises the accused or his solicitor will say to the  court: “With the greatest respect, we cannot see any point in these undertakings. The last time this happened they were not carried out. Why are you telling us these things when you know they will not happen?” It would put the court in an impossible position.
The court, solemnly, in accordance with this section, tells the accused: “You have a right to be in the custody of the police of Northern Ireland.” He promptly springs up and says: “You are telling lies. Joe So-and-So who went up last month was in the custody of the military.” Where does that leave the court? Where does that leave the Irish administration of justice? Where does that leave public respect for our legal institutions? I really put it to the Minister that he should at least accept this amendment which gives the court the right to supervise, to this extent, the carrying out of its own undertakings. It gives it the right to say: “We cannot control the Northern Ireland authorities but in our view, such and such an undertaking we gave to the accused was not carried out. Therefore we will go no further with this matter. We are not prepared to consider any evidence given in Northern Ireland under these circumstances.”
Mr. Cooney Mr. Cooney
Mr. Cooney: The court may say that as matters stand.
Mr. Yeats Mr. Yeats
Mr. Yeats: It may not. The Minister keeps on misunderstanding.
Mr. Cooney Mr. Cooney
Mr. Cooney: The court has discretion as to what will be included or excluded.
Mr. Yeats Mr. Yeats
Mr. Yeats: The court goes up to Northern Ireland and hears the evidence. If the accused is in the custody of the military, that is one issue not related in any way to the hearing of the evidence as such. The court sits in at the taking of the evidence on commission. It listens to the witnesses. That is the evidence it admits or does not admit, the evidence it accepts or does not accept. Where the accused spent the night has no effect whatever on that. The court has no authority to say:  “We do not accept the evidence because the accused was in Long Kesh rather than the custody of the local police.” It has no authority to do that. The Minister's Bill does not entitle it to do that. Surely the Minister understands that. It is the Minister's Bill, not mine. I am being very specific in pointing out that I am not discussing on this amendment a question of the nature of the cogency of the evidence. That is not the issue. The issue is whether when the court has given these undertakings they should be carried out.
I am putting it to the Minister that, in the interests of the integrity of the Irish courts and the public attitude to the Irish courts, if the court tells a man, for example, that he will be in the custody of the Northern Ireland police, that is where he should be. For the court to tell the man that, and then when the comes back next month,  having been in the custody of the military, to solemnly sit there and listen to the evidence which was taken would be an outrage. Can the Minister not see that? It is not a matter of the cogency or accuracy of the evidence. It is a matter of an undertaking given in open court by a High Court judge off the bench to an Irish person—whether he comes from the North or South is immaterial—who is being accused, and who is in the charge of the court for the purposes of the trial. That is the point I am making. It has nothing to do with evidence.
I put it to the Minister that really in the interests of justice, which after all he is in charge of, he should ensure that, if an Irish judge gives a solemn undertaking in open court off the bench in the public hearing, in the hearing of the news media, that should be carried out.
The Seanad divided: Tá, 11; Níl, 18.
Tellers: Tá, Senators W. Ryan and Garrett; Níl, Senators Sanfey and Halligan.
Amendment declared lost.
Mr. Yeats Mr. Yeats
Mr. Yeats: I move amendment No. 6:
In page 8 to delete lines 21 and 22 and substitute:
“(c) shall hold the sittings in public, except at such times and on such occasions as he directs, but subject to there being no publication of any evidence until it has been presented to the court of trial, and”.
The problem is that the accused, for practical reasons while in Northern Ireland for the hearing of the evidence, has to be in custody. The question arises as to what happens in the event of an adjournment—an adjournment which could last for a week or more? Is the accused to be kept in custody or returned to the Republic? In many cases he would have been on bail. I am sure the Minister accepts it is undesirable that he should be in custody for any  longer than is necessary until such time as he may be convicted.
On Committee Stage I put down an amendment to say that, in any adjournment of more than 24 hours, the accused should——
Mr. Cooney Mr. Cooney
Mr. Cooney: I think the Senator is on amendment No. 7.
Mr. Yeats Mr. Yeats
Mr. Yeats: I am sorry; I jumped one. Amendment No. 6 is a fairly straightforward amendment. The Bill provides that the evidence, on commission, shall be heard in private. This is clearly undesirable because, as I said on a previous occasion, one of the great safeguards of the fair administration of justice is that the newspapers, the media and the public in general have the chance of seeing for themselves how justice works. It is important that these things should be done in open court. It is not that they are necessarily reported. The mere fact that the public can come and go, the newspaper people can come and go, shows the public at large that there is not anything going on. Once one starts having trials or hearing of evidence in secret then people start worrying that maybe something is going on, rumours abound and so on.
The Minister pointed out, when I put down an amendment on Committee Stage, that to have these hearings of evidence in public the problem could arise that evidence might be produced which was later ruled out on some ground or other and this could be damaging to the accused. I have accepted that point. I have put down this changed amendment to provide that, generally speaking, the sittings should be in public but that there should be no publication of evidence until such time as it is being presented to the court of trial, when it would be in public anyway.
I suggest the Minister ought to accept this. It would help to build up public confidence in the fairness of the proceedings on commission. The Minister knows, to put it mildly, that this is a controversial Bill, and, in particular, that the whole question of hearing criminal charges on commission  outside the jurisdiction is very controversial. In the Minister's own interests in the working of this Bill, it would be very desirable to have this done in open court so that people can turn up. I have accepted the Minister's point about not publishing the evidence. The amendments say that there should be no publication of evidence. But if the news media or the public at large want to go to the commission they should be allowed to do so. I can see there may be security problems. But after all the Commissioner, under this Bill, has ample powers to regulate the proceedings of his court, exclude people and so on. It would mean that the hearing would be held in open commission and it would be very advisable from the Minister's point of view to accept the amendment.
Mr. Cooney Mr. Cooney
Mr. Cooney: We get back to a point I emphasised when this matter was debated on Committee Stage, that is, that the tribunal in question is not the court nor, strictly speaking, is it part of the trial. The trial would have started; would have adjourned for the taking of this evidence on commission and would resume when the evidence taken on commission would be presented to the court. The trial, in that sense, would be public. The public would be admitted and the Press would be present to report the proceedings if they thought them newsworthy. In that sense there would be no element of secrecy about a trial of an extra-territorial offence under this Bill. It is important to maintain the distinction between the court and the commission. The commission is merely taking evidence for the court, evidence which will be subsequently admitted and ruled on.
I made the point, and Senator Yeats accepted its validity, that for evidence subsequently ruled inadmissible to be reported could be prejudicial to an accused, not in a legal sense, because it would not be admitted by the court and could not do him harm legally, but could do him harm in an extra-legal sense. That is a real danger because the question of admissibility or relevance will not be matters for the commissioner. His  only discretion will relate to questions of privilege or public interest. Questions that might be prejudicial and have to do with relevance will not be matters for him. Evidence subsequently deemed inadmissible by the court will be given viva voce and will be subject to cross-examination before the commissioner. It would be wrong if evidence were to be adduced in the presence of people other than the parties in the case of evidence which subsequently was held to be inadmissible.
Much of the damage would be avoided by preventing publication. The publication spreads the news and if that is prevented then this danger is largely obviated but not totally and the interests of justice demand it should be totally obviated. If the proceedings are in public, particularly proceedings of this kind—again we are not discussing this Bill in a vacuum—one would anticipate that a large number of interested persons would flock to the evidence on commission. They would form the circle where an accused could be seriously prejudiced, and possibly his family endangered, if the public present became aware of evidence subsequently ruled inadmissible.
Therefore, it is necessary in the interests of justice and the accused, in the interests of parties possibly not before the court at all, to ensure that evidence on commission, because of its preliminary nature—its admissibility has not been ruled on—should be given totally in private and that members of the public would be excluded. In fairness to the accused, in fairness also to people not before the court, it is important if names were mentioned or hearsay adduced, that such would not be reported because it would not be ruled inadmissible by the commissioner, it would not be his function. It would be important that it be stopped immediately, which is what would happen in the court of trial but which would not happen before the commission. A lot of harm could be done. That harm could be avoided completely by ensuring that the proceedings will be in private. The commissioner has discretion  to have proceedings in public if there is a good reason for it. One of the things that would help him to make up his mind would be the attitude of the parties before him. The commissioner's discretion is not totally excluded in favour of absolute privacy. The wording of the statute and the thrust of the statutory provision should be in favour of privacy so that the commissioner's mind would be directed first towards having private proceedings. Only if some exceptional circumstances arise should proceedings be held in public.
The interests of justice are best met by maintaining privacy. By excluding publication, as Senator Yeats has pointed out, they are largely met but not completely. Having regard to the context in which we are debating the Bill, the context in which it will be operating, it is important that they be met completely. Evidence on commission, traditionally, has been taken in private for these reasons, that it is for the court afterwards to rule on its admissibility, cogency and so on. We should be punctilious about this in order to avoid any injustice. The emphasis should be on total privacy.
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: At all Stages of this Bill we have been concerned about human rights in regard to people charged in the Republic with offences committed in the North. We have been concerned that the rules of jurisprudence and the rules of criminal law that have always obtained in the State should apply with regard to the accused person. There is no point in pursuing a law and order objective to the disregard of human rights. I disagree totally with the Minister in this respect, that hearing in camera is in any way beneficial to the accused. Surely the reverse is the case? There will be down here a commission hearing and, except in exceptional cases where directed otherwise, the normal course will be to hold these hearings in camera. One is going to have witnesses from the North down here giving crucial evidence in camera, particularly identification evidence. That will be the crucial evidence subsequently for the open trial in  Northern Ireland. That evidence is going to be given in camera here. That surely puts the accused in jeopardy because the whole purpose of identification evidence, which is the crucial evidence, is that it should be fully tested in open court. The Minister is well aware from legal practice that this is the key evidence in any criminal trial. The key way to test that evidence is that the person in open court points out the accused person and says: “That is the person whom I saw on the particular occasion of the offence.” That sort of basic evidence is fundamental to the whole operation of criminal law and the trial of serious offences. And we are concerned about the serious offences here.
What is proposed here is that people be smuggled down here into some private hearing before a commission, into a private court, without the test of giving their evidence in open court. They are to give their evidence in camera before a commission——
Mr. Cooney Mr. Cooney
Mr. Cooney: And in the presence of the trial judges——
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: I appreciate that.
Mr. Cooney Mr. Cooney
Mr. Cooney: ——who will assess the evidence of identification.
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: I am putting to the Minister that there is missing in that a basic element in the whole identification process in open court, where a man stands up and swears in public, before the public Press, before his peers in the court. This has been a traditional element in criminal law in every civilised country. Now instead of that man giving the key identification evidence in public, he will do it in a secret court behind closed doors. It will make it much easier for him to give easy or soft identification evidence. The Minister is well aware of that—a vital element that brings home to people giving such evidence the seriousness of what they say. A vital element in that is being removed by the section as it stands here.
 The purpose of Senator Yeats' amendment is to shift the balance the other way so that there should be sittings in public. It is a very serious amendment. It goes to the heart of criminal law and the hearing of serious offences. If we introduce this inquisitorial type of star chamber procedure—granted there are safeguards, that there are legal personnel in charge of proceedings—it is a dangerous step backwards from the fine tradition we have upheld in this State with regard to the trial of serious matters.
Mr. Yeats Mr. Yeats
Mr. Yeats: I am sorry the Minister is unwilling to accept this amendment. His comparison with ordinary hearings on commission is strictly irrelevant because this is a unique type of commission—the first time there has ever been in this country commissions in criminal matters and in particular, trials held outside the jurisdiction. There will undoubtedly be public disquiet as to the nature of these proceedings of the commission, as to the manner in which they are administered and the manner in which the evidence is given. If the Minister ever gets this Bill launched, which is highly doubtful, but on the basis that it does come into operation, there will be a great deal of work to be done from the Minister's point of view to persuade members of the Irish public that these proceedings are fair and are in accordance with the type of judicial practice to which we have been accustomed in our democratic society. If the Minister insists that these hearings shall be in private, in camera, with the public excluded, it is very difficult to see how that disquiet can possibly end. However it is the Minister's decision to refuse this amendment, like so many others. I can only tell him that in the light of the fact that, in many cases, practically all the evidence will be heard in camera, in the absence of any member of the public or the news media, he need not expect that there will be any kind of public confidence in the proceedings.
Question: “That the words proposed to be deleted stand” put and agreed to.
 Amendment declared lost.
Mr. Yeats Mr. Yeats
Mr. Yeats: I move amendment No. 7:
In page 8 to delete lines 44 to 47 and substitute the following subsection:
“(4) (a) Upon any adjournment of the proceedings of more than 36 hours, the Commissioner shall authorise the temporary return of the accused to Northern Ireland.
(b) Upon any adjournment of the proceedings of less than 36 hours, the Commissioner may, if he thinks it appropriate to do so, on the application of the accused or the prosecutor, authorise the temporary return of the accused to Northern Ireland.”
In the event of this amendment being accepted, which I hope it will, the position is that it will not be open, as it is now, to a commissioner to keep an accused in custody for perhaps a week, two weeks, or even longer, during adjournments of the proceedings. It will mean that if the proceedings are adjourned for more than 36 hours the commissioner must authorise the temporary return of the accused to Northern Ireland. The reason for inserting it in this way, dealing with the commission being held down here, is that this would put it up to the British authorities to put in a similar clause in their Bill for commissions held in Northern Ireland. The aim of the amendment, though it can only act upon the proceedings as held here, is that each way, whether the commission is being held in the Republic or in Northern Ireland, on an adjournment of more than 36 hours, the commissioner must return the accused to his own jurisdiction. Where it is less than 36 hours then we leave the commissioner the same discretion as he has already in the Minister's Bill.
The Minister has told us many times that the commissioner is not a judge. The Minister has said several times that, in his view, it is quite wrong to give discretion to the commissioner since he is only a type of official, that he should not have any discretion of importance. That being so, it seems  to me quite wrong that a commissioner should have the right in the case of an adjournment of a week or longer to say that the accused shall go free or the accused shall remain in custody. It is giving him a totally exaggerated role in the light of the Minister's reiterated statement that he is not a judge.
I suggest the Minister should accept this amendment, that after 36 hours he must return him; then the accused can go free or into custody, depending on whether he was on bail or not. He must return him where the adjournment is more than 36 hours. After 36 hours we leave it to the discretion of the Minister as already provided in the Bill. If the Minister is to be consistent with his own attitude in regard to the functions, powers and jurisdiction of the Minister he will accept this amendment.
Mr. Cooney Mr. Cooney
Mr. Cooney: I think it is wrong to diminish the status of the commissioner. The commissioner will be a judge of the High Court; he will not be sitting as a judge but as a commissioner. In that sense he will not act as a judge but he cannot divorce himself from his judicial status. Consequently, a responsible, learned and senior person will be in charge of these proceedings. I am quite content to leave to the judgment of such a person the discretion which is given to him by the Bill as drafted. To remove that discretion or to have an arbitrary cut-off point of 36 hours would be wrong. It has to be an arbitrary point. That was the point Senator Yeats picks because it seems reasonable, but we cannot be any firmer than that. The person who will exercise the discretion is a person with the status of a High Court judge, who is a High Court judge in his own jurisdiction. Therefore, it is rather pointless to say to such a person: “You can do such a thing up to 36 hours; after 36 hours you may not do such and such a thing.” There would be an infinite variety of circumstances coming before a judge sitting as a commissioner in this situation and he should be left with an untrammelled discretion as to how  to react to the circumstances in a particular case. It could well be that an adjournment of more than 36 hours would suit the convenience of the parties; it might be, by the agreement of the parties that the accused would stay in this jurisdiction. As drafted, even the accused person would not be able to say: “I want to stay; it is not worth my while going back even though it is an adjournment for 42 hours.” As drafted, the amendment would compel the commissioner to return the person to the other jurisdiction. The discretion should be left to the commissioner, bearing in mind his status and bearing in mind also the fact that either parties can make an application in the normal circumstances and it will be acceded to if it is reasonable; if not it will not be. We cannot decide in advance what is reasonable or unreasonable. We must leave that to the presiding commissioner who makes that decision in the light of the circumstances prevailing at the particular time. To attempt to put in an arbitrary cut-off point is wrong in principle.
Mr. Yeats Mr. Yeats
Mr. Yeats: The problem with the Minister is that his attitude towards such things as commissioners, vary so enormously from day to day. The commissioner now has almost become a judge. This man, the High Court judge, can now be given powers and so on, whereas, on a previous occasion, when I proposed an amendment allowing the commissioner to decide on holding the sittings in public rather than in private, the Minister said this could not be done because it would give an unduly important function to the commissioner. This means that it is far more important to decide the question of whether an accused should be in custody or go free than to decide whether a sitting should be held in public. The Minister's attitude varies from minute to minute on this matter.
I regret again that the Minister has refused to budge in any way on this matter as on so many other matters. The Minister may well find that when the constitutionality of this Bill is being decided upon that his refusal to  accept amendments may well help to shoot down the Bill because it has considerable constitutional implications.
Amendment, by leave, withdrawn.
Government amendment No. 7a:
In page 8, lines 50 to 53, to delete all words from “and it shall be the duty” to the end of the subsection and to substitute “and the Commissioner shall arrange his sittings so as to facilitate their presence and, subject to subsection (6), shall comply with any request by those members to put any particular question or questions to the witness”.
Acting Chairman (Dr. West) Acting Chairman (Dr. West)
Acting Chairman (Dr. West): Amendment No. 7a and amendment No. 8 are related and may be taken together.
Mr. Cooney Mr. Cooney
Mr. Cooney: This amendment deals with subsection (4) of section 12. Section 12 (4) provides that the judges of the Northern Ireland court for which evidence is to be taken here on commission:
shall be entitled to be present at each sitting of the Commission, and it should be the duty of the commissioner to arrnge his sittings so as to facilitate their presence and to comply with any request by those members to put any particular question or questions to the witness.
This amendment proposes to substitute for those words quoted the following words:
The Commissioner shall arrange his sittings so as to facilitate their presence and, subject to subsection (6), shall comply with any request by those members to put any particular question or questions to the witness.
People may ask what is the difference. That is a fair question. It is essentially a drafting difference, a difference of form, because the meaning is essentially the same.
Bringing into this subsection a specific reference to subsection (6) makes it quite clear in regard to the  duty of the commissioner to comply with the request from a visiting judge that the rights given under subsection (4) are subject to subsection (6). That duty was always subject to the provisions of subsection (6) where the commissioner was given power to exclude matters on grounds of public interest and questions of privilege. As drafted subsection (4) declares that: it shall be the duty of the commissioner to act as mentioned in the subsection. The amendment takes the form of providing that he “shall” do so and makes it obligatory to comply with the request, subject to subsection (6), which deals with questions of privilege and exclusion of evidence on grounds of public interest. They are to be determined by the commissioner in accordance with the law of the State. That person will be a High Court judge and will be able to determine such questions. As drafted, all proper requests by a visiting judge for questions to be put to a witness would be complied with. It would be inconceivable that there would be an improper request from such a person. The duty to comply with it was always subject to subsection (6). In practice, there is no difference between the two, but for the sake of presentation it is better to amend the section. Essentially, this meets the sense of the amendments put down by Senator Yeats in regard to this point. Those amendments were amendment No. 21 on Committee Stage and amendment No. 8 on this Stage.
There was a further matter which Senator Yeats raised, and that was the apparent discrepancy between the two Bills. He has raised this point from time to time in regard to other provisions. The two Bills were not drafted by the same hand and one gets differences of drafting techniques. I have been satisfied at all times that the meanings have been the same and that the procedures which will be implemented under the Bills will be the same in all the sections.
In regard to the position of the visiting judges, I was perfectly happy that judges from the South when going to the North would find themselves in exactly the same position as  judges from the North coming to a commission down here. The strict verbiage in the two Bills was different and Senator Yeats was apprehensive about it. I think we would be happy that any differences there might be would be removed before the Bill might be debated in the other House. He can rest assured on that. I was always satisfied that, in spite of the apparent verbal differences, the practice would be the same. As I said, I am happy to be able to assure Senator Yeats that before the Bill reaches the other House any verbal differences will have disappeared and we might look forward to seeing this amendment, which meets his amendment, reflected somewhere else.
Mr. Yeats Mr. Yeats
Mr. Yeats: After three months one can say that Moses has struck the rock: we have one amendment accepted. I am happy not to move my amendment and to agree to the Minister's, which goes slightly further than mine. I gather from what the Minister said that there may be changes needed in the corresponding legislation in Britain——
Mr. Cooney Mr. Cooney
Mr. Cooney: I cannot anticipate what may happen in another jurisdiction.
Mr. Yeats Mr. Yeats
Mr. Yeats: One hopes this will happen. I would suggest the Minister should certainly, whatever about any other matter I have raised on discrepancies, in view of the fact that he is making a change in what has presumably been the agreed scheme of things, drop a note to his English colleagues pointing out that this amendment has now been made by the Seanad. It ought to be of interest to them. However this one small amendment to the Bill has been accepted.
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: It is amendable to a small degree.
Mr. Cooney Mr. Cooney
Mr. Cooney: The Senator never cared about principle.
Amendment agreed to.
Amendment No. 8 not moved.
Bill, as amended, received for final consideration.
Seanad Éireann 82 Criminal Law (Jurisdiction) Bill, 1975: Report Stage (Resumed).