The Gazette 1976

GAZETTE

NE/J

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

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.

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

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.

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