I move amendment No. 290 :—

In paragraph (a), lines 19 and 20, to delete " or absent himself without leave ".

It would be a serious offence to procure or persuade a person to desert, but I do not think it is a serious offence to persuade a man to absent himself without leave. It is often done, where a group of people, including some soldiers, go in a car for a few drinks and when a soldier says he is due back at 10 o'clock and another man says : " Let us carry on," and they come home some time next morning. Under the section, he has persuaded the soldier to absent himself without leave. I do not think that is an offence at all. I would ask the Minister to make the serious offence that of persuading a person to desert and leave " absence without leave " out of it.

Everyone will agree with Deputy Cowan's argument in the case of the mixed party he mentions, where the soldier takes a chance on it. It would come within the section and would be severe. There is another case, where a man may go home to his wife and family and the wife may be nervous and may persuade her husband to stay at home for a few nights. Under the section, that is absence without leave and the good lady would be guilty of a serious offence.

However, a person might procure a soldier to be absent without leave at a critical time, for no such relatively common sense motive. It could arise in time of emergency or in other cases, or by virtue of an organisation, as the Minister suggests. That would be serous. Desertion does not cover it, as the word " desert " has a technical meaning and involves intention to return. If he were charged merely with procuring the man to desert and it was shown that he was not doing that but was persuading him to be absent without leave, the man would be acquitted, though it may be a case where it would be very proper to have control and where the man should be punished. I feel it hard to see how the section could be drafted to differentiate there and it brings us back to the commonsense interpretation of the law.

I admit that Deputy Cowan's case is stronger on this than on Section 249. Nevertheless, the borderline between the two types of case is so nebulous that if you are going to catch the case that should be caught I do not see how technically you can avoid catching the case that should not be caught. The danger of abuse is such that you cannot take the risk.

I think the section is absolutely necessary. That is shown in the penalty to be imposed.

I hate being thrown back on this argument, which is one I have set my face against, but I do not see any administration that would charge the ringleader of a " hooley " or the wife in the cases I have mentioned— though that is dangerous ground on which to approach a legal argument.

Here we are creating crimes or offences not for soldiers at all, but for ordinary civilians. It is the easiest thing in the world and happens every day of the week where some civilian will say to a soldier : " Do not go back ; you will be all right ". This makes that an offence. I do not think that is right. It should not be an offence. The answer, of course, is that the offence has been there for 30 years, although no one has ever been charged with it.

Yes, it is in Section 188 of the 1923 Act. That is not an argument, surely, for deleting it from this. It is a provision to prevent these things happening, if possible, by the fact that it is there, and apparently it has been successful. It is essential that desertion and absence without leave should be kept together.

I cannot follow that. Desertion is serious, and should be dealt with drastically, but everyone knows that routine orders show soldiers as being absent without leave every day. They are dealt with locally by the commanding officer or the company commander. Anyone who says to a soldier : " Why go back tonight when there is a hooley on?" is guilty of an offence under this section and may be sentenced to imprisonment for up to three months or fine £50, or both. It is too serious a thing to do in regard to simple absence without leave.

The soldier would be a poor pal if he gave him away.

That is not ad rem.

There might be a third party present who heard the fellow say " to hell with the Army ".

I would agree with Deputy Cowan except for the possibility of a serious case. The argument which Deputy Cowan has advanced that it has not been used is an argument, as the Minister says, that you need not fear its abuse. You must cover the case of an organised group who might, for political or social reasons, induce soldiers not to report to barracks. That would be an entirely different kettle of fish. Take somebody trying to organise a strike among soldiers, telling them to keep out of barracks for a week. Certainly they would not be guilty of desertion, but it would be a serious situation.

Will the court not determine the gravity of the offence?

Yes.

The routine offence of absence without leave is usually dealt with by the company officer.

That is the case of the soldier, not of the person outside who persuades him to be absent.

Somebody would have to initiate the proceedings.

A thousand and one times the excuse used by the soldier is : " I was asked in by So-and-so and he delayed me," and it is never followed up.

He is often telling the truth. Another argument which Deputy Hilliard raised is that although he may be technically guilty it is not absolutely necessary to punish him. The civil courts operate on the principle de minimis non curat lex. Although the case may not be trivial it might still not merit a punishment, but in a trivial case the court would not convict. Because of the serious case we must enact something.

I have no objection to making provision for the serious offence. If a man is absent without leave wilfully and treacherously I will agree with these provisions but I will not agree with them in the simple form they are in at present.

Somebody would have to initiate proceedings against the person who persuaded the soldier. According to Deputy Carter the company commander deals with the man who is absent without leave. If the case were serious he would have to report the matter to a higher officer and say : " This man was procured by somebody else to be absent." Then the legal officer would have to be satisfied that this was a case to which the section applied before he initiated proceedings.

Suppose you put into the first line " any person who ‘ with malicious intent ' by any means whatsoever " I am only recommending that for consideration. I myself would not commit myself to it at the moment because of all its implications. A person might innocently incite. I do not know whether " knowingly " would do it. The old word " improperly " might come in very usefully since you have got that new one.

It could happen that a Guard overheard a civilian in a pub saying to a soldier : " Do not bother going back to-night. It will be all right." That Guard, if he felt like it, could have that man charged. The civilian might not realise how serious it was. I know that it is a trivial thing but if you have an enthusiastic or officious Guard he could get after it.

I agree with the section as it stands with regard to desertion but not with regard to absence without leave.

I would insist on absence without leave being retained.

Would the Minister consider qualifying the words in the opening line ? That would meet. Deputy Cowan's point.

" With malice aforethought."

It would be the correct legal term.

Who would interpret that?

That is very well interpreted.

The jury would have to be advised : did this man do it maliciously ?

Would it be malice aforethought if a couple of individuals induced a number of soldiers to absent themselves from barracks in order to attend a dance and remain out all night ?

It would.

Suppose their idea was to reduce the barracks to such a state that it could be very easily raided then I would say that it was malice aforethought. It is not the question of the single soldier but of nine, ten or 20 who would individually be prevailed upon with that ulterior purpose in mind.

We want to prevent a soldier being induced to absent himself without leave or to desert.

Leave that to the Minister. He has heard our views.

If a civilian can induce a soldier not to go back to barracks but to go to a " hooley " the soldier must be a very weak-minded individual.

That happens often but it is not the case we have in mind.

Unfortunately that is the case you have covered.

Ordinary commonsense will govern its operation.

I cannot see the civilian being found guilty of anything.

Can we not leave the matter now to the Minister ?

If it were left to me I would insist on its going through as it is. All I would undertake to do is to consider the insertion in the first line of " with malice aforethought " or " improperly " or some other word.

I do not want " malice " with regard to desertion. It is an offence to persuade a man to desert no matter what the motives may be.

" By any means whatsoever " includes malice aforethought.

All I want is that the Minister should consider it.

When I say that I will consider it, what I mean is that I will submit it for re-examination to the legal authorities.

I move amendment No. 297 :—

In paragraph (e), line 32, to delete " or assist in his rescue".

I want the Minister to explain what is meant by these words.

The words are already contained in Section 188, sub-section (3) of the 1923 Act, and this merely retains them.

I do not know what it means. I do not think it means anything. What does " rescue " mean ?

From custody.

The words have no relation to the rest of the section. What is meant apparently is anybody who assists in a man's escape from custody. To rescue a man is to do that man a good turn. If he is drowning——

If one knew a man to be a deserter and saw him drowning in the Liffey and pulled him out one would be guilty of an offence under the section. That is what Deputy Cowan says.

Suppose that he is in custody and you take him or help to take him out of it. That is not rescuing him. If he were in unlawful custody and took him out that would be rescuing him.

I do not see anybody succeeding if he prosecuted a man under the section for rescuing a deserter from drowning.

I would like the Minister to look it up.

That is what it means ; there is no question about that. Supposing you have a group of individuals, friends of an individual who is in custody, and they rush to his rescue, take him from his guards, and bring him back to themselves. That is the meaning.

If that is so the section should be amplified to provide that. If you aid a deserter or assist in concealing him, then you are guilty of an offence. Some words would have to be added, whatever the words are, in order to clarify it. Then I will be satisfied. In my view, it is not an offence as it stands.

In civil law, if a man who is being taken to the station by the Guards is rescued by a crowd, is not that an offence ?

Yes.

There would be a charge of interfering with the officers of the court on duty.

If you were drawing a charge up against Private B that he assisted in the rescue of Private Brown you would have an awful job in knowing what exactly that meant.

I will have the actual wording examined, anyhow.

I am satisfied with the Minister's undertaking.