I would like to mention that there are a good number of amendments postponed to this Stage and I do not see any mention of them in the Agenda.

I am afraid as far as the Agenda would suggest, the Minister has not accepted any of the amendments.

I have kept a note of any of the undertakings I gave on the Committee Stage.

My recollection is that you did not go further than say that you would consider the matter.

The Minister accepted some of them, but did not accept the most of them.

To sub-section 3 of Section 1, Senator Moore moved an amendment, to insert after the word "who" in line 35, the words "with a view to aiding the treason." After some discussion you, sir, suggested as an alternative the insertion in line 36 after the word "treason" the words "whom he knows or has reason to believe." I promised that I would give the matter consideration before the Report Stage, and, having done so, I am not inclined to accept the amendment. The purpose of the Senator, as I understand it, is already achieved by the sub-section as it stands. A person cannot be guilty of a crime unless he has committed an overt act capable of being seen by someone else or has made default in doing such act, or unless a wrongful intention or some other guilty intention of the mind is present; what is called the mens rea. That guilty frame of mind will not be imputed to a person who does an overt act unless the act is voluntary. A voluntary act or action is one which is definitely willed, and an involuntary act is one which is not willed. Accordingly under the sub-section as it stands if the defendant could prove that he was constrained by overwhelming force to harbour or comfort a person engaged in levying war against the State, or, having taken every step which a reasonable and prudent man could take in the circumstances, he believed that the person whom he was alleged to have harboured or comforted had not been engaged in levying war against the State, a defence would be afforded to him to a charge preferred against him under the sub-section.

The onus would, of course, be on the person charged to satisfy the jury as to these facts. In that connection I would like to remind the Senator that, under the Criminal Justice (Evidence) Act, passed last year, a person is now entitled to give evidence on his own behalf, and can rebut the presumption of guilt. It is open to him to show that, in fact, there was no guilty frame of mind, that he had not, and could not, from the nature of the case, have the knowledge essential to constitute a guilty mental condition.

I think the Minister must know that it is doubtful whether the provision is in favour of the prisoner or not.

It is not compulsory on the prisoner to give evidence. It is a matter for himself and for his solicitor to decide whether it would be to his advantage to do so. What I am saying is that he can now give evidence, and that it is open to him to rebut the presumption of guilt by showing there was no guilty state of mind.

In Section 2, of sub-section 1, the Minister actually accepted an amendment.

I did accept that on the Committee Stage, and it was passed here.

I do not like to embarrass this Bill in any way, but I find a difficulty in following the Minister when he says that, under sub-section 3, the accused would be entitled to be acquitted if he showed that he acted under compulsion and not with knowledge. I cannot find anything in the section to that effect. Apparently, under the section, the offence would be complete the moment the fact was proved that he harboured, comforted, or encouraged a man. In the absence of some word like "willingly" or "knowingly," I do not see that want of knowledge could afford him any defence.

I grant that there is nothing written in the sub-section. The idea was—I was stating the general principle—that a person would not be convicted of a crime if he could show that his mind and will did not go with the crime; if he could show that there was no guilty frame of mind on his part; and that he was acting either under compulsion or without that knowledge which would be essential to him.

If you have been so advised, I shall say nothing more. It is not my business.

The Minister leaves it to the jury to decide what is actually wrong. In the past we know that in many cases judges and juries have been so prejudiced in these matters that they have not given the prisoner the benefit. We all know the case of Alice Lisle, who was condemned and beheaded for sheltering a refugee, although she denied that she knew there was anything wrong about it. That was in the days of the Bloody Assize. We know also the case of those called the Manchester Martyrs, who were hanged, and whom nearly everyone believes now should not have been convicted. Within the last three months an English judge, who has now retired, has publicly stated that they should not have been hanged, as there was not sufficient evidence against them. I do not think it is wise to leave these presumptions to the jury to decide what they may or may not do. It should be laid down, one way or the other, and I am fortified in that view by the statement that you, A Chathaoirligh, have made.

I think some more words are essential to make a man liable to the penalties laid down in the section. I do not think that should be left to a jury. It is quite possible that a treasonable person may come to any man's house for a night or two and remain there without the knowledge of that man. I do not think that should be a crime or that in such a case a man should be made amenable under this section. Some words should be put in to indicate whether a man was a willing party or not. I do not think the safeguard of the Minister would entirely cover the position.

If the Minister has no objection——

I have a very definite objection to it, and for good and sufficient reasons. From the point of view of anyone with administrative responsibility, it would be an impossible task to say to the prosecution that they should prove knowledge on the part of the accused. I am asking that the knowledge should be assumed, while it is open to the accused to rebut the presumption of a guilty frame of mind by any evidence he can adduce. Take the situation of a conflict in the country and of persons in arms or in action against the State being harboured. It ought to be sufficient on the part of the State to prove the fact of harbouring. It would be open to an accused person to say that he did not know that Tom or Patrick So-and-So, whom he kept for a fortnight in his house, was in action against the State or had taken part in any hostilities against the State. It would be for the jury, sizing up the situation as best they could, to decide whether there was any Patrick So-and-So who acted as host to the other man, the frame of mind that would constitute the offence of treason and harbouring men engaged in hostilities against the State, to say to the Attorney-General, "You must prove that this man was put up at the other man's house for a period and you must prove that he had knowledge that the other man was engaged in hostilities against the State and in conflict with it." The Attorney-General could not be expected to prove that. What evidence of it could he adduce? He could, of course, adduce evidence that the person might well be aware of it, but he could not prove "the guilty frame of mind." He could only prove the fact of harbouring. I do think it would lie with a defendant to show either that he was an unwilling agent, that he was overawed or acted under compulsion, or to show alternatively that he did not know and had no means of knowing that this person was engaged in hostilities against the State. That a jury would advert and would be bound to advert to such considerations as that might be urged. But to go the length of accepting the Senator's amendment to prove not merely knowledge, but motive, would be out of the question. You might harbour a man from many motives; you might harbour him from motives of humanity. You might take pity on his plight. You might have no desire to aid treason, and yet you might harbour him and so commit an offence. The Senator's amendment, taken literally, would mean that the Attorney-General would have to prove that the harbouring was done not merely out of humanity or pity, but out of a positive desire to assist the treason. If it is a big task, an impossible task, to prove knowledge on the part of an individual, it is still more difficult to ask the prosecution to prove motive.

I believe that having regard to the objects of this Bill and having regard to the necessity of defending the State, that that end is best served by leaving the section as it stands, by leaving it open to any accused persons to convince a Judge and to convince a jury that there was no guilty frame of mind on their part, that they did not know that this person whom they had been harbouring or entertaining in their houses, was engaged in any hostile action. I am afraid you will only find juries too willing to believe cock-and-bull stories of that kind.

I quite see the difficulty that the prosecution would be placed in if they had to prove affirmatively that the individual harboured, encouraged or comforted persons knowing they were engaged in levying war. I quite realise that. But it would be open, under this section, to any accused person to say: "I did not know he was levying war; I was coerced; I was doing it unwillingly." and all that. I do not believe the prosecution will ever get a conviction under this Bill. I believe it would be well worth the Minister's while to consider whether he would add on some such words as these:—

"Unless the accused person satisfies the Court that he did not know and had no reasonable means of knowing that the person or persons alleged to have been encouraged, harboured, or comforted, was or were engaged or had been engaged in levying or waging war against Saorstát Eireann."

That throws the onus upon the prisoner to satisfy affirmatively the court, whereas if you leave it as it is it will be open to the jury to acquit him if he said he did it under coercion. I doubt if you would ever get a conviction under that Clause at all as it stands.

I would be willing to accept an amendment on these lines.

Does that satisfy you, Senator Moore?

Yes.

I was endeavouring to convey the same idea myself in non-legal language.

That confirms me in my opinion.

Possibly, in view of the length of the sub-section——

You need not make up your mind upon it now, Mr. O'Higgins. At a later Stage you can tell us what you propose to do.

I certainly accept the idea and the spirit of the suggestion.

The Minister, when dealing with this particular amendment, mentioned that a person might harbour persons and might not be in sympathy with treason, but that he might harbour them by giving them supper or comforting them in distress. Some words put into the amendment now would meet that particular case. I have no doubt, when the Minister says that no jury would convict, that if he were on the jury himself he would not convict. But we must remember that people are not so broad-minded now as formerly, and they look at things from the point of view of a particular angle that suits them at the moment, and I think that if something were put into the amendment that would deal with that aspect, it would be more satisfactory. I am interested in this from the humanitarian point of view, and I think these words would have a great advantage if put in.

I think the Minister has gone a good way, because if a man knowingly harbours an individual whom he knows to be engaged in levying war, it is difficult to say that that man is to get off because he did it out of charity. I think the Minister has gone a long way to meet that point. However, we will see what form of words the Minister produces on the Fifth Stage. Have you anything to move, Senator Moore, before going on to the Government amendments?

I do not think I have anything before them.