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the offence of remaining in forcible occupation of
land or a vehicle. There is no definition of what
constitutes "encouraging" or "advocating"; nor is
it necessary that the other offences should have
taken place to secure a conviction.
Nor does the section stop there. It goes on to
create a new category of guilt by
associations.
"(2) Where a statement in contravention of sub
section (1) of this section is made by or on behalf
of a group of persons, each member of the group
shall be guilty of an offence.
"(3) Where a person is charged with an offence
under subsection (2) of this section it shall be a
defence to the charge to show: —
"(a) That as soon as possible after the state
ment was made he took all reasonable steps to dis
sociate himself from the contents of the state
ment, or
"(b) that the statement was made without his
knowledge, or
"(c) that the statement was made without his
consent."
Novel extension
In effect
then, the member of such a group
would be guilty unless he took active steps to dis
sociate himself from, or plead ignorance of, state
ments made by or on behalf of such group. This
is a strange and novel extension of the concept
of
mens rea,
that a person must have a "guilty
mind" in order to commit a criminal offence.
Passive conduct or loyalty to a friend or leader
of a group, would be quite sufficient to amount
to the offence under this section. Also, there is no
definition of "group." It could include a political
party, a body such as An Taisce, a newspaper,
a radio or television programme, an
ad hoc
group,
a public or private meeting or even members of a
religious denomination!
It is a fundamental principle of the criminal
law that it should be possible for a person to
ascertain whether his conduct or statement would
amount to the commission of a criminal offence.
This is the necessary corollary to the maxim that
"Ignorance of the law is no excuse." Since a per
son cannot raise the defence of ignorance of the
law, this presupposes that he is able if he chooses
to find out what the law is. However, where the
definition of a crime is so vague that a person
cannot be sure of its ambit or scope, then he is
being deprived of one of his personal rights as a
citizen, and that definition of the crime in the
section of the Bill is unconstitutional.
Article 40, 3, 1° of the Constitution states that:
"The State guarantees in its laws to respect, and,
as far as practicable, by its laws to defend and
vindicate the personal right of citizens."
Article 40, 4, 1° provides that:
"No citizen shall be deprived of his personal
liberty save in accordance with law."
Article 40, 6, 1 ° continues:
"The State guarantees liberty for the exercise of
the following rights, subject to public order and
morality:
"i. The right of the citizens to express freely
their convictions and opinions .
.
."
There follows a qualification on freedom of ex
pression by news media, such as radio, press, etc.,
that they "shall not be used to undermine public
order or morality or the authority of the State."
Personal rights
Subject to
these legitimate qualifications, the
Constitution thereby guarantees the fundamental
personal rights of liberty and freedom of expres
sion.
The citizens has the personal right to his liberty,
which includes the personal right to know (if he
chooses to find out) exactly how and when his con
duct would amount to a criminal offence. The duty
on the Government under Article 40, 3, 1°, is not
a passive but an active one, to "respect" and
"vindicate" such personal rights. If a newspaper
editor or a member of An Taisce or Father
Michael Sweetman does not know whether his
conduct, or his association with a group, amounts
to a criminal offence, then the Government is fail
ing to respect and vindicate such personal rights
and the section should be ruled to be unconstitu
tional by the courts, following the principle laid
down by Mr. Justice Kenny in Macauley v. Min
ister for Posts & Telegraphs & Attorney-General
(1966) I.R. 345. The Irish courts have held that
the category of personal rights which the State
must respect and vindicate is not limited to the
personal rights set out and described in the Con
stitution, but includes other personal rights, such
as the right of "bodily integrity." (Ryan v. Attor-
211