The Gazette 1976

GAZETTE

J U NE/J U LY

1976

be conduc ted in accordance with the presumption of Constitutional Justice. (See East Donegal Co- operative Society v. Attorney-General — (1970) I.R. 317. This presumption does not apply to proceed- ings or procedures required by legislation to he per- formed outside the State. The rights of the accused can he protected by the Court of trial or, on appeal, by the Court of Criminal Appeal. The judgment was signed by the Chief Justice (The Hon. T. F. O'Higgins), the President of the High Court (Mr. Justice Finlay), Mr. Justice Griffin, Mr. Justice Kenny and Mr. Justice Parke, who constituted the Court. It is understood that the Commission of the Euro- pean Communities, with the consent of the Ministers of Justice of the nine Member States concerned, will probably issue a Directive probably applicable as from 1st January, 1977, to all the Member States which will define acts of terrorism in detail, and will put forward joint remedies by all the Member States to endeavour to take effective measures to end all acts of terrorism. It is understood that, as soon as this Directive is fully applicable, the Irish Criminal Law (Jurisdiction) Act, 1976, and the British Criminal Jurisdiction Act 1975, will in effect be repealed and superseded bv the new legislation. suggested that the Section, if enacted, should be incorporated into the Emergency Powers Bill, 1976, or applied only to the Sections mentioned in the Explanatory Memorandum. (2) Fhe Section as drafted may be deemed to restrict the operation of the Judges' Rules, relating to the rights of persons in custody and should not Ijecome part of the normal Criminal Law, without full consideration of the issues independently of any state of emergency. The Society is very concerned with the pro- visions of Section 6 when read in conjunction with Section 9. Section 6(2) provides that any person who conveys or attempts to convey any article or thing into or out of a prison or to a person in prison in certain circumstances is guilty of an offence. Section 6(3) entitles a prison officer to search any person, while he is in a prison or while in the custody of the governor of a prison. Section 9 empowers a person authorised to make a search to seize and retain for use as evidence in any criminal proceedings, anything which he believes to be evidence of any offence or suspected offence. The combined possible effect of these two sections is to give a right to seize and retain for use as evidence in any criminal proceedings, docu- ments which may he confidential or privileged communications between a person in custody and his legal adviser, seized either from a person in custody, or from a legal adviser while "he is in prison". The Law Society is making urgent representations to the Government on these matters. Dated this 30th day of August, 1976.

this question as relevant to the constitutionality of the section. (8) It was urged that this would mean that the evidence in Northern Ireland would he taken with laws regarding the exclusion of evidence and the with- holding of documents which might not accord with Irish Law. It is for the Court of trial, or, on appeal, for the Court of Criminal Appeal to determine whether a statement made under Schedule 4 of the correspond- ing British Act ought to he admitted in evidence. This Schedule states that he is entitled to the same immun- ities as if he were on trial in Northern Ireland. It is suggested that these laws are more elastic than Irish Law. Nevertheless this submission fails. (9) It was finally submitted that, with regard to the rights which, under S . ll (2), paragraph (a) to (d), the Court has to inform the accused of, these rights are to he accorded as a matter of course. The Court does not consider this a sustainable objection. However it is the opinion of the Court that a statement taken in such circumstances without these safeguards would not he taken in compliance with the section and would on that ground not he admissable at the trial. It is contended that there is an implication that all proceedings and procedures permitted under the legislation were intended to and would EMERGENCY POWERS BILL, 1976 The Law Society has noted the provisions of the Emergency Powers Bill, 1976. While it regrets the necessity for its introduction, even for a limited period, the Society accepts that the enactment of such legisla- tion is a matter for the Oireachtas of the day. The Society, however, is concerned to ensure that persons detained in custody under emergency legisla- tion will have the usual right of access to their legal advisers. Dated this 30th day of August, 1976. • CRIMINAL LAW BILL, 1976 The Law Society has considered the provisions of the Criminal Law Bill, 1976. This Bill proposes legisla- tion of a permanent rather than of a temporary nature. This being so the Society is very concerned by the following points:— (1) Section 7 gives wide powers to a member of the Garda Siochana when dealing with a person who is in custody "under the provisions of any enact- ment for the time being in force under which persons may be arrested, kept in custody and ques- tioned", such as searching, photographing, finger- printing, or chemical testing. The Explanatory Memorandum indicates that these powers are in- tended to apply only to persons in custody under the provisions of Section 30 of the Offences Against the State Act, 1939, and Section 2 of the Emer- gency Powers Bill, 1976. This is not clear from the Section, which in its present form could apply to other existing or future legislation. Hence it is

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