The Gazette 1967/71

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