When the House adjourned last night I had endeavoured to show that the Probation of Offenders Act was applicable in law at present to licensing cases, and I had quoted the most recent case upon the subject. I also drew the attention of the House to the provisions of the Probation of Offenders Act, which, briefly, are these—that under three separate and distinct heads a judge may exercise his discretion. It has been suggested, and I cannot conceive the suggestion serious, that the Probation of Offenders Act does not now apply. In passing, may I ask if it does not apply, what is the purpose of setting down a section of this Bill to repeal it?
I draw the attention of Deputies further to the fact that the offences to which this Probation of Offenders Act applies are those other than trivial ones. Hence, as far as I can see, the combined result of the Minister's present amendment, plus his proposed repeal of the Probation of Offenders Act, will limit the discretion in future to trivial cases, and extenuating circumstances can in future, under this proposal, only be taken into account in regard to trivial offences. The net result of this is, first, that it gives the discretion in regard to trivial offences, a gíft which personally I consider, and which I hope to show later, to be of very questionable value; and, second, it takes away already existing benefits under the Probation of Offenders Act in other cases. In fact, I think it would amount to taking something for nothing. Further, may I point out that if this amendment, as it is at present before the Dáil, is carried, the wording of it, undoubtedly, must, according to all the canons of legal construction of Parliamentary statutes, govern the construction of similar words in a subsequent section?
It is proposed in Section 22 that there shall be an appeal to the Circuit Judge, and that the Circuit Judge, if satisfied that by reason of extenuating circumstances such conviction ought not to be recorded on such licence, can make an order declaring that such conviction shall not be recorded. I say that if extenuating circumstances are defined as they are proposed to be defined by the words in brackets in this amendment to this section, which confine them entirely to trivial or technical offences, that definition will also govern Section 22; and the proposed appeal to the Circuit Judge on the question of endorsement will then have no effect except in regard to extenuating circumstances, as defined in the earlier section, which means trivial or technical offences. In effect, therefore, the Minister's proposal in regard to this section is actually taking away some of the benefits which he proposes to confer by Section 22. It proposes actually to whittle down the rights already given under that section to the Circuit Judge; and under Section 22 there was no limit proposed to the judge's discretion in regard to the nature of extenuating circumstances. Now, if this section passes as proposed to be amended by the Minister, there will be a limit according to the construction placed upon the meaning of the words "extenuating circumstances" in his proposed amendment.
We are at present engaged in passing an Act of Parliament, the wording of which will have to be construed by the courts, and when it is proposed that certain discretion shall be given in regard to certain types of cases only, and those types of cases are mentioned or designated by certain terms, one has to inquire into the legal meaning of those terms. What is the legal construction at present obtaining of the term "trivial"? Is it suggested that any offences under Schedule 1 of the Courts of Justice Act, 1924, which are the endorsable offences referred to, are trivial, or could be construed as such?
Now, the offences I have referred to contained in Schedule 1 of their nature must be, and up to this have been, regarded as very serious offences, so much so, that they have been so far made compulsorily and automatically endorsable. They include permitting drunkenness on the premises, keeping disorderly house, harbouring constables, permitting gaming, selling or exposing for sale and so forth, drinking during prohibited hours and also refusing to admit a constable. Is it suggested that any court would construe those offences as in their nature trivial?
Now, there are numerous cases and it would be impossible for anybody to foretell what number of the nature of such cases might arise which would not be considered trivial, but which would be covered by the existing Probation of Offenders Act. Take the case where a person is on licensed premises and he is there against the expressed instructions of the licensee; but he is permitted to be there by the action of the servant who directly disobeys his master.
Under the present law if the Courts were satisfied with the defence made by the licensee, that he had given instructions and that he had done everything possible to see them carried out, they would have power to exercise their discretion even though the offence in itself could never be regarded as a trivial one.
Similarly if an employee were to act from any motive, dishonestly or negligently; say he was to sell liquor for consumption under the standard required by law, and he was to do this expressly against his master's instructions; those extenuating circumstances could be considered under the Probation of Offenders Act, though the case itself and the nature of the offence was undoubtedly a serious one. Suppose a servant was under notice of dismissal, and from some motive of spleen or otherwise, committed a gross breach of the law; suppose in the absence of the licensee, through illness, the servant was to open the licensed premises for the sale of intoxicating liquor on Christmas Day or St. Patrick's Day, that undoubtedly would be a gross breach of the law and a serious offence. But the judge now under the Probation of Offenders Act could take into consideration the extenuating circumstances surrounding it, namely that it was done without his master's knowledge and from motives otherwise than those of the licensee.
I think it would be well to give the Dáil some idea of what, up to this, the Courts have considered to be serious offences. The leading case upon the question is one known as Glasgow against O'Connor. This was a case the incidents of which occurred in the town of Bantry, in the year 1910. A local licensee, a follower of Mr. Wm. O'Brien, then M.P., thought to show his affection by displaying a green flag from his publichouse. He was duly summoned and under the Probation of Offenders Act the then magistrates exercised their discretion. They held that in view of the fact that there was a public meeting, and probably in view of the fact of the popularity of Mr. O'Brien in the neighbourhood, that there were extenuating circumstances. But there was an appeal. The late Lord Chief Baron Palles, probably one of the greatest exponents of common law in his day in any of these countries. held that this was a serious offence, and one of the reasons incidentally that he gave the decision that it was a serious offence was that the flag that was displayed was not the ordinary emblem of the publichouse nor was it an emblem of the order of Freemasons or Friendly Brothers, both of which would, by the Act of 1836, have been exempted. The Lord Chief Baron held that the offence was serious and he said that if extenuating circumstances had to be relied upon to make the matter itself a trivial one, they would have to be stated and proved to be other than those which appeared to exist. But if a similar case came up to-day, under the Minister's present amendment, there would be no question of the exercise of this discretion at all, because we have it now decided that this displaying of a flag in itself was a serious offence and the Minister proposes to limit the discretion only to those cases which are of a trivial or technical nature.
I give these few illustrations to show the limitations that the Minister is proposing shall be placed upon the present existing discretion and further to show that he is not really, in effect, carrying out what would purport to be the intention of the expression he used upon the occasion of the Second Reading. I have been placed in a somewhat awkward position because I had an amendment of my own down and I do not know whether the Minister, in view of the course of the debate, has taken the trouble to read that amendment. My amendment is as follows:—
To delete all words after the word "shall" and to insert "to be recorded on such licence, unless the Justice by reason of the existence of extenuating circumstances"...
And then the following words occur, which I believe the Minister must have overlooked from what he said yesterday:
"in connection with the offence shall otherwise direct."
In acceding to the course suggested by you, sir, I have been willing to move an amendment to the Minister's amendment, which is to omit the words "(which shall relate only to the technical character or trivial nature of the offence)." But to carry out the real purport of my amendment within those brackets I should insert the words "in connection with the offence." That will show the Minister that he was not quite accurate if he purported to describe my purpose as wishing to cover offences of the nature he described yesterday, to cover. I should have said, extenuating circumstances such as he described yesterday, such as the question of the poverty of the licensee. That was never my intention. My amendment does not include this. My amendment expressly says that extenuating circumstances must be in connection with the offence, and it is only in that regard that I am asking for the consideration of the extenuating circumstances. I do not suggest that the question of sentiment should be a matter for discretion by way of extenuating circumstances. I do not put forward a plea that because a man happens to belong to a certain family, or that he has connections in the district, or because he is in bad circumstances, or because he did this or that in the past, that discretion should lie. Nothing of the kind. My suggestion is that extenuating circumstances should be only taken into account in connection with the actual offence. It is interesting in this regard to recall the fact that elsewhere they have made similar provisions. Nobody can accuse the Legislature of Northern Ireland of being particularly lenient towards the licensed trade, but in the Act, entitled "Intoxicating Liquor (Northern Ireland) Act, 1923,." Section 8, which deals with the forfeiture of licences on the recording of convictions, says:
"Such conviction shall be entered in the proper register of licences, and shall be directed to be recorded unless the court by whom the conviction has been made is satisfied that, by reason of the existence of extenuating circumstances in connection with the offence, the conviction ought not to be recorded."
I have practically taken my amendment word for word from the North of Ireland Act, and let me remind the House once again, that the North of Ireland Act in that respect is practically the same as the Probation of Offenders Act. If the Minister desires to carry out his real intention, as expressed in his statement on the Second Reading, namely, that the District Justice shall, unless having regard to the attendant circumstances the offence is of a trivial or technical character, endorse the licence, then the proper method for him to do so is to make it clear that the extenuating circumstances shall not only refer to matters of a trivial nature, but may refer to serious matters, in order by their presence to render them trivial.
I think there is a very serious and distinct difference. The extenuating circumstances in both of these Acts which I have quoted cover both trivial and non-trivial offences, but do not cover extraneous matters, such as those referred to by the Minister yesterday, namely, the poverty of the licensee, or any matters unconnected with the actual offence. That also is my purpose; and, therefore, I propose that, instead of these words which the Minister has inserted in brackets, limiting the discretion to trivial and technical offences, there should be increased words of the nature, or of the purpose, which I have described, namely, "in connection with the offence," thereby making certain that this discretion shall not be extended to the matters which are extraneous, but shall be confined wholly and solely to the circumstances surrounding and connected with the actual offence.
If the Minister does not agree to take that into consideration, I say that his amendment is practically worthless. It is worse than worthless from the point of view of existing licensees; because, taken in conjunction with his proposed repeal of the Probation of Offenders Act, it will put the licensee in the position that in future extenuating circumstances surrounding a serious offence may not be taken into consideration, but only extenuating circumstances in regard to what has been described as a trivial or technical one. That also, taken in conjunction with the wording of Section 22, means that an appeal in future will merely be an appeal on the question as to whether there were any extenuating circumstances in regard to these two limited classes of cases.
I referred yesterday to the judgment in Gilroy v. Brennan, which governs this question, and I quoted some statements of the Court; but, before I sit down, I would like once more to refer the Minister to a statement by the counsel who was appearing for the State, in which he said:
"Extenuating circumstances, to be the basis of application of the Act, must be circumstances connected with the actual offence; and any other circumstances, the licensed premises or applicant, cannot be considered."
That is also borne out by the President of the High Courts, Mr. Justice Sullivan, when he says:
"There are no circumstances connected with the commission of the offence (that is, the offence in question in this case) which could possibly be regarded as extenuating circumstances."
These two statements go to show that, under the Probation of Offenders Act, it was only circumstances which were connected with the offence that could be taken into consideration, and not circumstances of poverty or otherwise, mentioned by the Minister yesterday. So much for the Probation of Offenders Act. Similarly, under the North of Ireland Act, it is only such circumstances in connection with the offences that can be taken into consideration, but there, again, it is not limited to trivial or technical offences.
My proposal is, therefore, that we should follow out what has been the law under the Probation of Offenders Act, and continued in the North of Ireland Act, 1923, namely, that the extenuating circumstances should be wholly and solely in regard to the nature of the offence, but that they should be applicable to an offence which of itself would otherwise have been a serious offence. I hope the Minister will be able to follow the distinction that I have drawn, because it is a very serious one. If this proposal of his is merely to give discretion for trivial offences, it wipes away existing rights. If it is to give discretion to judges to consider extenuating circumstances or, as the Minister himself puts it, attendant circumstances, in connection with any of these endorsable offences, it will be merely carrying out, to my mind, not only the existing law, but also the real intention, as I understood it, expressed by the Minister upon Second Reading.
It may seem that I am somewhat labouring this question, but it is a matter of the utmost gravity to those who happen to hold licences in this country. All this legislation has tended to a sense of insecurity as to the value of licensed premises. Everyone knows that in the past, banks and others advanced money on the security of licensed premises. Everyone knows that it was generally understood that there was a certain amount of fixity of tenure there, and it cannot be stressed too much what the effect of proposals like this would have upon the security of such property in the future. The serious nature of an endorsement is that, after two endorsements, and the prospects of another one, the licence is practically dead. On the first endorsement, at least one-third of the value of the premises is gone—in fact, more than one-third; because, once the first endorsement is there, it only requires two more endorsements actually to extinguish the licence.
I appeal to the Minister on the grounds that I have already stated— that I am not suggesting that offences of the character which he described, and surrounded by extenuating circumstances of the character which he described, such as those of poverty and otherwise, should be the subject matter of discretion; but I am suggesting that all these cases which are endorsable are in themselves, and have been held to be, serious cases, and that, as a result of that, unless he makes a provision whereby extenuating circumstances can be taken into consideration in regard to serious cases, it means that the Courts must hold that offences of the character I have mentioned must result in the endorsement of the licence. That being so, I would earnestly ask him to reconsider the insertion of such words as I have suggested, which will in no way ask him to depart from the proposal he made on Second Reading, but it will, in my humble judgment, be the best and fairest means of carrying the proposal into effect.