In so far as the Minister's amendment seeks to limit the operation of this section it can be received without any great objection. However, in the opinion of this party it does not go far enough. When the House adjourned at 10 p.m. it was for the purpose of enabling discussions to take place between the Minister and spokesmen of the Labour Party and myself on the subjects of amendments. In the course of that discussion we indicated to him certain amendments which we regarded as important. I understood that adjournment took place in the spirit of the statement from this party with regard to our reasoned amendment on Second Stage.
We indicated the withdrawal of that reasoned amendment was being moved having regard to the terrible exigencies that now exist and in an effort to show our co-operation with the Government in the present national difficulty. It was in that spirit we withdrew our amendment. It was in that spirit of co-operation that we answered the Minister's invitation to discuss amendments to the Bill with him. Regrettably, the invitation was a hollow one because the Minister's attitude—if I might use a phrase from another part—was "not an inch".
We offered an amendment to section 3 (2). This is the subsection that has caused most controversy. I should like to remind the House that this is the subsection that permits an officer of the Garda Síochána not below the rank of chief superintendent to state his belief that an accused was at a material time a member of an unlawful organisation. It says that this statement shall be evidence that he was then such a member.
I can well conceive the motives which prompted the drafting of that section. I can well conceive the difficulties the gardaí might have in proving that fact. The type of person this section is aimed against is not the kind of person who will make evidence readily available, is not the type of person who will have incriminating documents in his possession, nor will he make voluntary admissions if he is in custody.
I concede that these difficulties inspired the drafting of this section but, even in a crisis situation, the section as drafted permits a person to be convicted of a serious criminal offence, and an even more serious political offence in this climate, on hearsay evidence of a garda officer. I do not impugn the integrity of the officer who will offer that evidence but I dispute the principle of introducing hearsay evidence without, in the same section, giving an accused a right to rebut it conclusively and absolutely.
The amendment which I had hoped the Minister would take from me read as follows:
On page 3, line 6, to add after the word "member"—
"provided however that the accused may on oath and without being liable to cross-examination deny the statement of the chief superintendent as aforesaid and such denial shall of itself be conclusive".
Bearing in mind that the evidence is hearsay and that the person giving it is a chief superintendent, should the defendant attempt to cross-examine the chief superintendent he will find himself met by the plea of privilege, a normal plea by a garda officer when he is asked for the sources of his information. In common justice the defendant should be put in the position where, if he makes a rebuttal on oath, that should be conclusive. If he is innocent he will not have any trouble in making the rebuttal on oath; if he is guilty he will fail to make this rebuttal and the evidence of the chief superintendent will be coercive.
The amendment was offered to the Minister in the spirit not in any way of damaging what he wanted to achieve but in the hope that it would restore some of the balance which should be in our legislation and in our courts but it was rejected. The amendment the Minister has offered —it is small but is acceptable—is to limit the time during which the section would operate. If the chief superintendent had other positive evidence other than his own hearsay, the rebuttal by the defendant would not be sufficient to excuse him from answering in cross-examination whatever facts might be adduced.
I should like to remind the House of the dangers of hearsay. Hearsay can come from fourth, fifth or sixth-hand and in its journey from the original source to the person giving the evidence it can become garbled. The status of the original information can become diminished in its progress through three or four persons. There is a lively possibility of mistake and equally there is the possibility of fraud if the originator of the information should be somebody wishing to work off a grudge. He might be a person of status using his status to work off a grudge and, when that grudge arrives on the desk of the chief superintendent, it becomes evidence that can come into a court of law.
In fairness this demands that the section should be softened by giving some rights to the accused. The minimum right he can and should have is the right to rebut on oath the hearsay evidence of the superintendent. In his opening statement the Minister alleged the courts would not necessarily take the evidence of the superintendent and that in any event it was not conclusive. The Minister knows as well as I do that if an officer of the status of chief superintendent is prepared to give evidence on oath of his belief and if that evidence is not controverted the court is coerced into accepting it. The Minister sought to suggest in his opening statement that this subsection merely extends the common law rules of evidence under which a witness's opinion as to a fact is admissible and he quotes the case of an expert witness.
Of course, that is a complete misstatement of the law. In that context a superintendent is not an expert witness. An expert witness is a doctor or engineer giving technical evidence in their particular field of work but a chief superintendent giving hearsay evidence of his belief that a person is guilty of a crime is not an expert witness in that sense. It is for these reasons and in the spirit in which we withdrew our amendment to the Second Stage that we put to the Minister that common justice demanded—and he could concede that demand without in any way taking from the efficiency of the Bill—that he accept our amendment.