Dáil Éireann debate -
Friday, 11 Jan 1924

Vol. 6 No. 2

DAIL IN COMMITTEE. - FISHERIES BILL, 1923.—DEBATE ON SEANAD AMENDMENT RESUMED.

Major COOPER

The Minister for Home Affairs told us that representations sent up in the form which the Seanad seeks to prevent are invariably sent to the magistrate for his comments. The Minister did not make clear why the magistrate cannot make his comments at the time of the passing of the sentence. He said that sometimes magistrates imposed exemplary sentences, having regard to their effect locally. The sentence is given apparently because of its effect opinion I was not entirely convinced by the Minister's reference to new facts coming up, because anybody who has experience as a magistrate knows the nature of the new facts brought up. They are not facts, as a rule, bearing on the offence; they are facts referring to the extreme poverty of the man's family or the great respectability of his uncle or his grandfather, and they bring in what is a curse—the curse of canvassing. In the old, days magistrates used to be canvassed, and at the present time I have no doubt members of the Dáil will receive numerous appeals from all quarters of their constituencies. I will do the Minister justice by saying that I do not think he will give way in the slightest to any of those representations; but we must remember that we are not dealing only with the present Minister. We are laying down the framework of government for the future, and we must have regard to any and every Minister who may be attached to future Governments.

The Minister for Fisheries gave us very enlightening figures, from which it seems to me that even now matters outside the view of the Fisheries Department enter into consideration. From the figures given us it appears that whereas the Fisheries Department recommended the remission of 42 sentences, actually 64 were remitted; that is, 22 were remitted by the Minister for Home Affairs against the advice of the Minister for Fisheries.

Mr. LYNCH

On the advice of the magistrate.

Major COOPER

Yes, certainly, but that shows that the Fishery Department's view is not the only view that is taken into consideration. It is not suggested that the Seanad went outside its province in suggesting this amendment. I believe the amendment would improve the Bill because it will get rid of this uncertainty and the curse of canvassing. It will tend to do away with the appeal: "Will you write to the and tell him that I am a poor man?" and other appeals of that sort. Anything that tends to put justice under the control of the Executive, or even remissions, is bad. I entirely endorse what Deputy Figgis has said If it is desired, let there be greater facilities for allowing new facts to be-brought up on appeal, but I urge the Minister to accept the Seanad's amendment, which seems to me to strengthen the Bill.

ATTORNEY-GENERAL

Before dealing directly with the matter in issue, I might make one suggestion that occurs to my mind in reference to the debate in the Seanad. It is that it might be well, on the appointment of Ministries to communicate the facts as to the constitution of such Ministries to the Seanad. I refer particularly to the matter that will be found in Column 280 of the Official Seanad Report. I understood Deputy Figgis to say that when the Bill was going through he objected to this principle of remission; he will correct me if I am wrong——

Mr. DARRELL FIGGIS

I raised objection to an appeal being made to the Executive from the District Justice instead of the appeal being made to the higher courts.

ATTORNEY-GENERAL

The fact is that this Bill does not contain any provision in regard to the appeals to the Executive, and that it does not contain any reference to any power, in any person, to remit, or vary, a sentence, and it is a remarkable fact, because this amendment by the Seanad is not an amendment of anything in the Bill at all. It is an attempt by the Seanad to effect a constitutional position outside the Bill as regards the remission of sentences and penalties. It is an attempt by the Seanad to cut in upon what is recognised, I think, in most countries, namely, that there must be some constitutional authority in the Executive to intervene where wrong is done or where a miscarriage of justice has taken place.

AN LEAS-CHEANN COMHAIRLE

at this stage tool the chair.

ATTORNEY-GENERAL

One's experience will call up cases where, if no such power of remission existed, very grave miscarriage would have been perpetuated, The Judge may, in a particular case, convict or impose penalties that if allowed to stand, may be a grave miscarriage, and he himself may be a most obstinate man. It is not so very long ago since a Judge in this country was put up to try criminal cases for which lie was quite unfitted by temperament and nature, and in several instances, though he himself would have doggedly adhered to the results of these trials, and would have himself advised against any remission, in several cases, in the interests of justice, it was essential that the penalty imposed by him should be relieved and that something in the nature of a pardon for what really were, not offences at all had to be brought in to relieve persons from gross injustice. Now this amendment of the Seanad is not properly an amendment of this Bill; it is an attempt by way of amendment to this Bill to amend the constitutional position as regards the over-riding authority to relief where a miscarriage may have occurred. This is particularly important in the case of a Bill. where the minimum penalties, some of them severe, are imposed. The principle of a minimum penalty is not an agreeable one, and nothing but exceptional circumstances would justify, in the present day, people accepting it at all. It is thought, and it is believed, and I accept the position in relation to Fishery Laws, that minimum penalties are necessary, at any rate for a period, to ensure their rigid enforcement, but if we have minimum penalties it is all the more important we should have some means of relief against miscarriage of justice or injustice.

If that power of relief is to be cut into in that way that the Justice alone is to decide whether the remission is to occur, and that he is alone to decide it on the spot when he is imposing a minimum penalty, created by Statute, then I think the position becomes a very Serious one, and one the Dáil should not assent to. As both Ministers concerned have stated, it would be an unheard-of thing to touch a penalty imposed without reference to the tribunal that imposed it, but to say that it is not to be touched unless the tribunal assents, and assents on the spot, is a principle I suggest that the Dáil should not agree to; and the Dáil should realise that if it were to assent to that, it would be assenting to an invasion of the Constitution and to a principle outside the Bill, and to something that is not really an amendment of the Bill at all.

Mr. SHAW

We have heard the phrase pretty often that doctors differ and patients die, but in this case unless the Dáil and the Seanad come to an agreement in connection with this Bill the result will be that tens of thousands of fish will die. The present time is the height of the spawning season, and by the time this matter is settled or decided the spawning season will be over and the fish will have been destroyed. Therefore, I wish to support the Minister for Fisheries, and I hope the Seanad will see its way to withdraw its opposition in the order that fish in the rivers at the present time and the spawning hanging up of the Bill will cost the country a very large amount in the few remaining fish that will be allowed to return to the lakes and rivers, and, therefore, I hope that this matter may be decided, in order to give the authorities concerned some chance of prosecuting the offenders, because at the present time, owing to the hanging up of this Bill, prosecutions cannot take place.

Mr. JOHNSON

The conclusion from Deputy Shaw's argument is: Accept this motion from the Seanad, and then the Bill will become law almost at once, but apparently, notwithstanding that argument, he is approving of the motion of the Minister for Fisheries. I am without any enthusiasm, and it is really with reluctance that I give support to the motion; but I cannot refrain from Saying that I think the amendment would not have been passed in the Seanad probably had the Minister for Fisheries, accepted the very wise and very sound argument that we adduced from these benches against a minimum penalty. It is all the consequence of his refusal to accept that wise advice. The fact remains that the amendment will prevent a miscarriage of justice being remedied, because there does not exist the machinery for an easy and cheap appeal to a high legal or judicial authority, such as Deputy Figgis would like to replace a political Minister, and I think we have to bear in mind that the men who will, for a time at any rate, be administering the Act will be men who have not had a very long experience on the Judicial Bench, and may not infrequently do injustice, and I think there ought to be some means of remedying injustice that may come about in that way. I do not want to impose upon the offender the necessity for going through all kinds of legal procedure to arrive at a Court of Appeal when the injustice can be remedied. While saying that, I agree most heartily with the intention of Deputy Figgis to do something to prevent Executive interference with the Judiciary, and that is why I say I am not very enthusiastic in supporting the motion of the Minister for Porting the motion of the minister for mind, arises from the embodiment in the Bill of this principle of minimum penalties, and I think that the Minister would have had more success if he had not tried to embody what apparently is generally accepted as an evil principle.

Mr. DARRELL FIGGIS

I do not want to labour at any great length what are possibly only apparent contradictions between the arguments put forward by the Minister for Home Affairs and the Attorney-General, although I think there is some, matter of moment in that contradiction, because the Minister for Home Affairs stated that the base of appeal would be that the original penalty might have been imposed with a view to influencing public opinion, and, therefore, for that reason there might be some good ground for varying or amending it, whereas the Attorney-General stated that the good reason would be that there had been a miscarriage of Justice owing to certain facts that had later been brought forward. These arguments are not entirely on all fours The Minister for Home Affairs did use one sentence which, I think, helped very largely to clear the case, and to state the case exactly as I would like to have it stated myself, and it is this that really gives point to the question of new facts, being brought forward since the penalty was imposed. He used this sentence, a very significant sentence because of the use of one word in it. He said: "New facts may have later been substantiated." He did not say that new facts may later have been brought forward, or that they should have been argued, but that they were substantiated.

Now, I say that there should be no sentence varied until such facts are substantiated, but surely the right place to substantiate facts is a court of law. I think that the practice, not only in regard to matters of this kind but everywhere, is a bad practice of allowing appeals from a court of law to the Executive. The Attorney-General replies and say there might have been a grave miscarriage of justice in which there Was a clear case for the Executive to intervene to stop such a miscarriage. I frankly admit that, but only when an appeal has first been carried to a higher court. That is the right method of appeal surely with a possible miscarriage of justice; that there should be an appeal, in the first place, in order that new facts may be brought forward, and should be substantiated, and if in the upshot, as a result of all the legal procedure available, there still appears to be a grave miscarriage of justice, due to whatever cause, then the Executive should step in, but the Executive should not step in the moment the lowest court of this State has given a sentence without an appeal to any higher court. That is the object that, I understand, the proposer of this amendment in the Seanad sought to have achieved, as I have read his arguments in the other Chamber, but owing to the limitations of the Bill, the amendment itself has necessarily been limited to this extent: that when a penalty has been imposed, the person who first heard the case argued on its merits without any personal appeal whatever, is the only person who should be authorised to make recommendations. That, we are told, is the practice.

The only difference then is that any recommendation for such a reduction or remission shall be made at the same time as the penalty is imposed. There is nothing stated here that that recommendation should be made publicly when the sentence is given, although I myself would carry it to that extreme if my own view of the case were to be accepted. But that is not how the amendment reads. There could be a chance for a recommendation to be made but made by a judge after hearing the facts before him and if any new facts are brought forward then these new facts should be taken to another court of law, and a re-trial of the case should be heard.

Mr. HEFFERNAN

I rise to support the action which the Government has taken in this matter. I feel, however, that if the Government had paid attention to the recommendations made here on the Committee Stage of this Bill in regard to minimum penalties, that third point would hardly have arisen, and if it did &rise it would not have been of the importance which it has now assumed. It is all very fine having an academic discussion on the lines taken by Deputy Figgis with regard to this matter, but I think we should deal with the facts that are liable to occur down in the country, and should deal with the possible miscarriages of justice which may take place under this Bill as it stands. As to the points made by some Deputies, speaking about local circumstances, and of the fact that local influences would be brought to bear and recommendations made with regard to a man's character, his relatives, his ability to pay and matters of that kind, I am rather inclined to think that these matters are arguments in favour of having this power of remission retained, and possibly of having applications made by other people besides the District Justices, because I think that local circumstances should be taken into account.

The penalties in most cases under this Bill are of a mandatory character and, therefore, I think it is of great importance that a man's ability to pay should be taken into account when dealing with a remission of fines. To one man, the imposition of a fine of £10 would be a matter of no importance, while in the case of another it might be beyond his ability altogether to pay a fine of £10. These are facts which could hardly be known to the District Justice at the time of the trial, and if he allows that time to pass without making a recommendation, you may have a comparatively poor man in the position of being fined a sum which he is not able to pay, especially when be cannot obtain any redress without resorting to a most expensive system of appeal. On that account, I think it is very advisable that power should be retained by which ordinary people can still make recommendations to the Minister and recommendations to the, Executive for a remission of fines. I would not have taken up this attitude with regard to the matter if the minimum penalty hall not been retained in the Bill, and I think if the Minister had taken the advice given him in that regard, the state of affairs which has now arisen would not exist.

Motion put and declared carried.