Dáil Éireann debate -
Tuesday, 4 Dec 1923

Vol. 5 No. 17

THE DAIL IN COMMITTEE. - FISHERIES BILL, 1923.—THIRD STAGE.

Section 1 put and agreed to.

SECTION 2.

(1) Every person who shall wilfully take or fish for, or aid or assist in taking or fishing for, any salmon or trout from or in any river, lake, or estuary, or from or in any part of the sea during the annual close season for salmon or trout respectively in that river, lake, estuary, or that part of the sea, shall be guilty of an offence under this Act, and shall on summary conviction thereof be punishable by a fine of not less than two pounds nor more than twenty-five pounds, together with a further fine of two pounds for every salmon or trout so taken or caught by him, and shall also forfeit every such salmon or trout and the net, engine, or instrument by which the same was so taken or caught.

(2) Every person who shall buy, sell or expose for sale, or have in his custody or possession any salmon or trout, or any part of any salmon or trout, taken from or caught in any river, lake or estuary, or any part of the sea during the annual close season for salmon or trout respectively in that river, lake, or estuary, or that part of the sea, shall be guilty of an offence under this Act and shall on summary conviction thereof be punishable by a fine of not less than two pounds nor more than twenty-five pounds, together with a further fine of two pounds for every such salmon or trout or part of a salmon or trout so bought, sold, or exposed for sale by him or so in his custody and possession, and shall also forfeit every such salmon or trout, or part of a salmon or trout.

(3) In any proceedings under the next foregoing Sub-section, proof that a person bought, sold or exposed for sale or had in his custody or possession any salmon or trout or any part of any salmon or trout during the annual close season for salmon or trout respectively, in any river, lake, or estuary in Saorstát Eireann, or in any part of the sea adjacent to the coast of Saorstát Eireann shall beprima facie evidence that such salmon or trout was taken or caught during the annual close season for salmon or trout (as the case may require) in the river, lake, estuary, or part of the sea from or in which the same may have been taken or caught.

Mr. JOHNSON

I have a series of amendments to propose to this Section, as well as to other Sections. My amendments to this Section are:—

In Sub-section (1), line 36, to delete the words "less than two pounds nor."

In Sub-section (2), line 48, to delete the words "less than two pounds nor."

Indeed, there is a long string of amendments in my name, and as it is now five minutes to eight, I do not propose to trouble the Dáil with divisions on every one of these amendments. The same principle is involved in every one of them. It is that we should not insert in this Bill a clause which would provide for a minimum penalty on the offender. The matter was discussed on the Second Reading Stage, and it was pointed out that under the provisions of the Bill the magistrate was obliged to sentence offenders to certain minimum penalties. The offence of taking a salmon or trout from any river is to be punishable on summary conviction by a fine of not less than £2 and not more than £25, together with a fine of £2 for every salmon so taken. So that no matter what the conditions under which this offence had been committed, no matter what circumstances might mitigate the guiltiness of the offender, the magistrate would be obliged to fine not less than £2 or £4, if two fish were taken in addition to the forfeiture of the net or instruments. The objection that I have is to the principle of imposing a minimum penalty and putting it upon the magistrate the duty of seeing that he will be obliged to punish by a minimum penalty, no matter what the circumstances may be. This obligation simply tells the magistrates that they do not know their business and that they are liable to be influenced by local considerations, or friendliness to the culprits. You are practically telling the magistrates, who were raised to the level of Judges and hold very important offices of State, that they cannot be trusted to impose a penalty or to take into account the circumstances. In certain other clauses it deals with periods of imprisonment, but the same principle is involved in every case, and I submit it is not a good policy to tell a magistrate or Judge, for that is what you are doing, that no matter what the circumstances might be, he must impose a fine or a certain period of imprisonment on the culprit.

It is contended that he may submit case for consideration to the Minister for Justice or he may plead with the Governor-General for leniency, and request him to exercise certain prerogatives, but I think that is a very undesirable course to adopt. I move the amendment, and I will accept the decision of the Dáil on it as applying to the other amendments in my name which seek to remove this minimum penalty from the Bill.

Major COOPER

There is reason in all things, and there is a certain reason why the minimum penalty is mentioned in the Bill and why it has appeared in all previous Bills. The reason is that the profits that can be made from the poaching of salmon can be so very large that it is necessary to have a serious deterrent. One night's work and one lucky sweep of a net in a crowded pool may bring in from £200 to £300. That can be done by two or three men, and that is the reason why there is a strong case for the minimum penalty.

Mr. JOHNSON

The maximum is £25.

Major COOPER

I am aware of that, but let me point out that the minimum penalty here acts as a deterrent. There are individuals who have peculiar views on poaching. A relative of mine tool some shooting in Scotland from a noble man who was Lord Lieutenant of Ire land at the time. He was rather surprised to find that the landlord paid the fines that were imposed upon persons who were caught poaching. He asked him why he did so, and the reply was, "I think the birds are as much theirs as they are ours." Then my relative said, "What am I paying you rent for?" Suppose you get a man of that peculiar mentality as a District Justice, it is desirable to have a minimum fine. It would not be desirable to introduce a minimum penalty where there had not been one already, but in cases where there are things of great value at stake, a minimum penalty is necessary. I wonder if Deputy Johnson recollects George Bernard Shaw's play, "The Showing Up of Blanco Posnet?" In that it was argued that the stealing of a horse in Western America sometimes meant life or death. Similarly, there is a minimum penalty of death where a verdict of murder is brought in. Taking all those things into account, I do not think that the minimum penalty of £2 is too high. I agree that it is ridiculous to have a very high penalty like £100 for the manufacture of poteen. There have been cases where that fine has been commuted to £5, or maybe £2. In this case I think £2 is not an unreasonable minimum.

Mr. HEFFERNAN

I would like to support Deputy Johnson in his amendment. On the Second Stage of the Bill I supported him in regard to the minimum penalty. I think the principle is a bad one, and it should not be maintained in our laws. I think we are all familiar with the custom regarding poaching in the past. We are aware that it was one of the crimes very heavily punished. There were many other crimes which were much more objectionable than the crime of poaching. The curious thing about poaching is that by a great number of people it was regarded as an honourable thing— a thing to be proud of rather than to be condemned by the public.

I am of opinion that the minimum penalty would place the District Justice in an awkward position. If young people, hardly aware of the crime they are committing and are merely following the example of their elders, are brought before a District Justice, he might find himself in the position of finding these young people guilty, and imposing the minimum penalty either in fines or imprisonment. He would be liable, if he were a humane man, to let the offender off, whereas if there was no minimum penalty he might impose a nominal fine. The only other alternative would be to impose a penalty and forward a memorial to the Ministry of Home Affairs, which was a very common thing in the past in poaching cases. I think it would be more important that there should be an adequate police force capable of catching practically all the offenders. If poachers were aware that they were practically certain of getting caught, that would be a great deterrent, and in such cases the imposition of a fine, lower than the minimum here set out, would be just as effective as a large fine.

Whenever the law insists on the severe penalty it is an indication that the Government feels itself in the position that it cannot catch offenders. Deputy Cooper referred to cases in America. We know that at one time people were hanged for stealing horses in America. That ought not to be necessary, and I feel sure that if there were a feeling that poachers would be caught we would not find it necessary to maintain so high a minimum penalty.

Mr. McGOLDRICK

I feel that for a number of years, at least as long as I can recall, the magistrates and justices dealing with this class of offence were most particular in penalising these delinquents and that they had no alternative. Under the British law, if there was anything in particular that stress was laid upon, it was upon infringements in the poaching or gaming laws and it was painful to see people who committed trifling offences ordered to pay heavy penalties. If I were certain that the permanent officials have nothing to do with the ordination of penalties in this Bill and that it be left to the discretion of the District Justices I would be more or less satisfied with this Bill, but I can only vote for it with that reservation. I would ask the Minister although he may carry this proposal in the Bill, to see that it is carefully guarded and not allowed to be used against people who have committed a trifling offence but who may be subject to heavy penalties.

Mr. JOHNSON

I would like to say that Deputy McGoldrick is bound to support the amendment because the Minister cannot interfere. We have just passed a Bill saying that the Judges are independent and cannot be interfered with by Ministers. If we pass this Bill without this amendment, the District Justices will be bound to impose in these cases a fine of £2 per fish, and the Minister for Fisheries cannot interfere. Whether it is in response to promptings of the permanent officials or not, the Bill as it stands should not be passed.. It should only be passed if these words are deleted. I could understand Deputy Cooper's reference to Blanco Posnet. I can understand in his mind a salmon being as sacred as a horse to a Western cowboy, and the theft of the salmon being as culpable as the theft of a horse in Western America. Perhaps Deputy Cooper would not oppose the Bill if it said that capital punishment should be applied in the case of a poaching of salmon. I think that Deputy Cooper is not what you might call a free agent in this particular case. He is bound by tradition and the plea he puts forward as to the danger of poachers taking two or three hundred pounds worth of salmon would be equally well met by the maximum penalty plus £2 per fish. If there is a Judge trying a case of a poacher who has taken two or three hundred pounds worth of salmon in a night, such as Deputy Cooper suggests is possible, I think that the Minister for Home Affairs who will have appointed District Justices will have missed his man, if he thinks he is satisfied with a fine of £2. Deputy Cooper's case hardly fits the argument he submits. Deputy McGoldrick must inevitably, from his speech, vote for this amendment.

Major BRYAN COOPER

As a matter of personal explanation may I say that I never caught a salmon in my life, but I lost at least £1,000 worth of salmon by poaching within the last few years.

Mr. WOULFE

I wish to say a few words about the minimum fine. Deputy McGoldrick must have lived in a district where the magistrates were extremely severe, when he talks of high game penalties. I have not heard of them in Ireland, although I have heard of them in England. As far as I know, the penalties were a farce, and might as well not have been brought before the Court at all. For that reason, if they are to bring any revenue to the Government, which I suppose they hope to get, there must be punishments meted out to people who do not carry out the fishing laws, and I think the only way to do that is to have a penalty devised so that there shall be some recognition of the fact that the laws of the country are being disregarded.

Mr. D'ALTON

I wish to support the special clause brought forward in this Bill. We have heard a good deal regarding the question of the fishing industry, that it should be protected, and I am rather surprised at Deputy Johnson referring to it in the cavalier style which he has adopted. If we wish to retain fishing for the benefit of all engaged in it we should support the Minister in any point which is calculated to punish those who poach in the close season. The fish are being poached at a time when they are being protected, and I say that any fine that would be inflicted on those people who help to destroy salmon is a just one and they deserve it. Let it be a deterrent, and then our fishing will be preserved.

Mr. O'CONNELL

It would appear as though some Deputies are conflicting the principle at issue in this amendment of Deputy Johnson. They are rather inclined, from their remarks, to think back to the days of the old magistrates. It must be remembered that we are dealing with a different body today. We are dealing with people who have the status of a Judge, who are trained lawyers, and for whose provision a Bill was passed in this Dáil, men of known worth, who are not subject to anything in the nature of those things which influenced the decisions of the old magistrates. If they are men worthy of the positions they occupy they ought to have sufficient discretion to judge aright on a matter of this kind which comes before them.

I personally do not object to a maximum being put, even if it be higher than the figure mentioned in the Bill. Here we cannot know all the circumstances of such cases as may come up. We know that from time to time cases will come up in which there will be certain circumstances which would be mitigating, and in which the Justice would feel that the infliction of the minimum fine which he is forced to impose would not be in strict accordance with justice. He has, however, no discretion. If these Justices are men of the type we hope they are, they should know when it is necessary to inflict a heavy fine. The principle of taking that discretion from them is bad, and I will therefore support the amendment.

Mr. WOULFE

Am I in order in asking whether in certain cases magistrates could refuse informations?

Mr. FINIAN LYNCH

I am afraid if there is a division on this amendment it will not be possible to finish this debate in the time left at our disposal, and I therefore move to report progress.

Agreed.