RENUNCIATION OF WAR. - COURTS OF JUSTICE BILL, 1928—SECOND STAGE.

I move the Second Reading. This is a Bill to amend the Courts of Justice Act, 1924, in some details which are of a somewhat technical character, since they deal principally with matters affecting procedure. It also makes provision for the establishment of two additional Circuit Court Judges and for the appointment of four Assistant District Court Justices to take the place of those who are now doing the work temporarily during the illness or absence on leave or holidays of the regular District Justices.

I will briefly go through the Bill, section by section, and explain, as concisely as I am able, the difficulties which this Bill is meant to meet. Section 1 is purely interpretative and nothing arises upon it. Section 2 is a section which enables the business, when the Chief Justice is either unable through illness or through absence from the Saorstát to transact it, to be transacted by the President of the High Court or, in the event of the President being prevented by illness or absence, then by the senior ordinary judge of the Supreme Court and if neither is available by the junior ordinary judge of the Supreme Court. The necessity for that section arises owing to the fact that a Chief Justice has certain powers such as those in lunacy or infancy matters in which he has sole control. In the original Act no power was given to anybody except the Chief Justice to decide these matters and make rulings thereon. It is impossible, without hindering the carrying out of these various matters, that a Chief Justice should leave the country or get any holiday at all. I might mention that the Chief Justice has not, I think since 1924, taken any holidays. This enables the authorities to be delegated and exercised by the other persons I have mentioned. Section 3 is this. In the Lunacy Regulation Act of 1871 certain powers in making rules are transferred to the Lord Chancellor. This simply gives the powers of making rules of that nature, powers which were formerly exercised by the Lord Chancellor to the Chief Justice. Section 4 enables the Chief Justice, instead of describing people who are in the custody of his court as lunatics or as persons of unsound mind, to style them "Wards of Court." I might say before leaving that there has been a slight transposition of words in Section 2 where there is a typographical error. In Section 2 of the Bill as it stands it reads "in the event of the said President being prevented through illness or absence from Saorstát Eireann from exercising the said jurisdictions and performing the said authorities and functions." It should be "exercising the said jurisdictions and authorities and performing the said functions."

Section 5 deals with the Court of Criminal Appeal in respect of three matters. The first is that the Court may, notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the applicant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. If I might give an illustration to the House it might happen that a Judge at a trial might allow in some evidence against the prisoner which was not according to the technical rules of evidence, strictly admissible, but if that evidence was of a very trifling nature and there would be plenty of evidence upon which the prisoner should be convicted apart from that, it would be quite wrong that a ruling of that nature on an unimportant matter should affect the administration of justice so that an obviously guilty man should escape the punishment which he deserves for his offence. Of course in that section it is perfectly clear that the court must be satisfied that there could not be any miscarriage of justice when they put the section into operation.

The meaning of (b) is this: It sometimes happens that a prisoner might be found guilty on various counts. He is found guilty on one count by a jury and the court is of opinion that there is not sufficient evidence to justify a verdict of guilty on that particular count, but that there was abundant evidence to find the prisoner guilty on another count. This section, then, enables the court to discharge the finding of the jury upon the count upon which they found him guilty and to enter a verdict of guilty and sentence him on the charge which there is evidence to support. I might take an example such as this: A man is charged with larceny and with receiving goods knowing them to have been stolen. Suppose the jury finds him guilty of larceny and the court comes to the conclusion that it was not clear that the man had actually stolen the particular goods, but that it was perfectly clear he had received them, knowing them to have been stolen, under this section it would be open to the court to discharge the finding of larceny and to enter a verdict of guilty of the lesser offence, that is, of receiving the goods knowing them to have been stolen. I would suggest to the House that that is a very right and proper power for the Court of Criminal Appeal to have. Sub-section (c) enables the Court of Criminal Appeal to order a new trial. If I might take the illustration which I gave a few moments ago, in dealing with sub-section (a), suppose some evidence has been wrongly admitted and the court cannot make up its mind as to whether the jury would have found the prisoner guilty or not guilty, if this evidence had been excluded, then the Court will order a new trial and the matter will go before a fresh jury without this illegally admitted evidence coming before it. The House will understand, of course, that these illustrations are not very exhaustive.

Section 6 simply says that in the case of a sentence of death or corporal punishment the sentence shall not in any case be executed until the decision of the Court of Criminal Appeal has been made known. That is common sense, and, of course, has been acted on without any section of this kind. Section 7 says that interlocutory applications to the Court of Criminal Appeal may be made to one judge and not necessarily to the whole court. The court consists of three members, and questions of giving leave to appeal or of finally deciding the appeal will still be heard by the whole court. Applications such as to get the notes free of charge, to have the prisoner present in court or something of that kind are interlocutory applications, and not final applications. These will be heard by one judge instead of by three.

Section 8 deals with a matter coming up under the Courts of Justice Act. Rules were made for the High Court, and two interpretations of these rules might have been taken—one giving a considerable amount of power to the Master and the other a lesser amount of power. The Master and various members of the legal profession thought that the Master had wider powers. However, after he had exercised the wider powers, after some short period of time, the extent of his jurisdiction was raised by the court, and it was discovered that he had made certain orders—plain, ordinary, straightforward, matter-of-fact things, always undefended cases, which were really beyond his jurisdiction. This section simply puts matters right. The orders were the same as would have been made by the judge. There was always an appeal from the Master to the judge, but these were cases in which no appeal was taken.

Section 9 deals with the appointments of two additional Circuit Court judges. The necessity for this arises owing to the fact that in certain circuits judges have not been able to keep up with the work which has fallen considerably into arrears. Under the original Act power was given to appoint two temporary circuit judges. The period during which the temporary circuit judges could act has now elapsed. We come now before the House asking that two permanent circuit judges shall be appointed in addition to the existing one. One of the principal areas in which arrears of work have arisen is the city of Dublin. The arrears there are very urgent at present. There are considerable complaints, justly founded, by litigants that they cannot get their cases heard. These cases cannot be heard until we increase the number of judges. In the northern and midland circuits there are also considerable arrears of work, and there is naturally discontent amongst practitioners, and especially amongst the litigants, in these courts. These judges will not be attached to any particular circuit. They will be available to go round from circuit to circuit. It is a matter to which I gave very careful consideration—there is a good deal to be said on both sides—as to whether it would be better to carve out new districts and appoint judges to them or whether it would be better to adopt this procedure by which these additional judges might take up work in different districts. After very careful consideration and weighing the pros and cons as well as I could, I came to the conclusion that it would be better not now to carve out new districts, but to work the existing districts with this additional aid.

The reasons which operated upon my mind were probably this: At one time, in one area, there might be a great glut of work, and an assistant judge might be wanted there. At another time, in that particular area, there might be very little litigation, and possibly the spirit of litigation might have descended upon some other part of the country. For instance, let me say, at one time the courts in the western area might be very full of litigation, at another time they might be empty, and the northern courts might be full at one time and empty at another. The two periods might not coincide. As well as that, the amount of business transacted will be, to a certain extent, dependent upon the personality of the particular judge who is hearing the case. Some judges hear cases more quickly than others. It does not always follow that the quickest judge is the best judge, but, in fact, some judges are quicker than others. That, too, might lead to there being a varying requirement of judges in different districts. If it turns out that the original eight Circuit Judges are able to do the entire work without these two additional ones, it is not obligatory under the Bill that these two additional ones should be appointed. In fact, they are badly required at the moment, but possibly it might happen that they would not be required in the future, that eight would be sufficient. If that be the case, when one of the existing Circuit Judges retires the vacancy need not be filled up. I want to make it clear that power is given, but it is not obligatory that the entire number of judges should always be filled.

Section 10 is a very simple section. It states that whenever a Circuit Judge is personally interested in a matter which comes before his court, or knows parties well, another Circuit Judge may be assigned to hear that particular case. Section 11 deals with the question of Circuit Court appeals. It has become necessary owing to the fact that the original Act stated that an appeal should be grounded upon shorthand notes. Section 11 states that it shall be grounded on the evidence. Sub-section (3) gives certain power to the court in case an official stenographer's note is lost. At the present moment, if an official stenographer's note is lost, accidentally destroyed, or if anything of that kind happens, no appeal can be taken. That, I may say, did happen in one case. This section simply makes provision where a stenographer's note is not available, where it has been lost or destroyed, that the court shall have power to hear the matter. That is all this section does:

"The court may either determine an appeal by re-hearing the case, either on oral evidence or by affidavit or partly on oral evidence and partly by affidavit, or may order a new trial of the case to be had."

Sub-section (2) is, except for (b), merely the old section—Section 62 of the Principal Act—repeated. That is, power is given to re-hear the evidence of any witness whose evidence was contained in such report. It is very doubtful if a witness, having been examined once in court, could have been, as the law stood, examined again by the Court of Appeal. This section gives that power. Only additional evidence could have been given. It would be very doubtful if further questions could be put to a witness who had already been examined. B makes it perfectly clear that they can. It may seem to Deputies that some of these are very small alterations, but they are things which have actually occurred in practice.

Section 12 enables four additional Justices of the District Court, to be termed Assistant Justices, to be appointed. Under the Court of Justice Act there are a certain number of Assistant Justices, with certain areas assigned to them. When they are sick or when they go on vacation gentlemen are appointed temporarily to take their place, either barristers or solicitors. It is probably not a very good arrangement. It is not always very easy to get at very short notice a competent practitioner who will take up these appointments. It is better that men who can be appointed permanently should be appointed because, naturally a person who is doing business at a profession would take a permanent appointment more readily than he would take a temporary one which would interfere with the ordinary work of his profession. Also the District Justices would become specialists in that particular kind of work. There are a great number of people, both solicitors and barristers, who would know very little about this class of work. A man might be a very admirable barrister in a great number of ways and yet not know a single line of the Licensing Acts. Quite possibly a chancery lawyer would not know anything about the licensing laws or those sort of things which District Justices have to be very familiar with indeed. The salary of these Assistant Justices is to be £800 a year. They are eligible to become on promotion full District Justices.

Section 13, in the case of District Justices, does exactly the same as Section 10 in the case of a Circuit Judge. When there is a matter in which a District Justice is personally interested another District Justice can be called in to hear the case. Under sub-section (2), in the case of illness or absence of a Justice of the District Court, a neighbouring District Justice may be assigned to do his work.

Section 14 is necessary owing to a very ingenious and successful argument which was put up some time ago before one of the District Justices. It succeeded in ousting a very considerable number of houses from the jurisdiction of the District Court. It was this: £26 is the limit of the jurisdiction at the present moment of the District Justice. It was discovered that a house let at 10/- a week—and of course there are a very considerable number of houses let at 10/- a week—exceeded £26 a year. There being 365 days in the year the rent became about £26 1s. 5d. This section raises the figure from £26 to £27 and it gives jurisdiction under the section to District Justices in cases where the rent was 10/- a week. Ten shillings is rather a common figure.

Section 15 gives to the District Court the powers which the Civil Bill Courts exercise under Section 82 of the Civil Bills (Ireland) Act, 1851. That is in the case of permissive occupants. Under Deasy's Act, ejectment only lies in the case of a certain class of permissive occupants—herdsmen, caretakers or servants. The ordinary permissive occupants, or tenants solely at will, were dealt with by the Civil Bill Act, 1851. This section enlarges the powers of the District Justice in hearing permissive-occupancy cases.

Section 16 alters the appeal from the District Court very materially. There were various appeals from the magistrates sitting at Petty Sessions under various Acts, the principal one of which was the Petty Sessions Act. There were limits where an appeal lay. By the Criminal Justice Administration Act, 1914, these limits were taken away, and an appeal lay in every case. The Petty Sessions Act procedure was restored by the Courts of Justice Act, but I do not think that was a wise step. I would ask the House to hold that that was not a wise step, and that the giving of an appeal to a convicted person in every case is right. It is rather unfair, I should say, that somebody is sentenced to a fortnight in prison and that he cannot appeal unless he goes to the magistrate and adopts a rather foolish sort of fictitious procedure—that is to say, gets the sentence of a fortnight increased to a month. Under this section, an appeal will lie from a day's imprisonment. At the present moment, in order to appeal from a fine, the fine must exceed £1. It is quite possible that a man's reputation and character would be very seriously injured by a fine of even 1/- or 2/-. Somebody's reputation might be very much injured by a fine of 1/- for being drunk and disorderly on the public street. I would submit to the House that it is right in a case like that that there should be an appeal from the decision of the magistrate. Therefore, we purpose giving, as was the law prior to the Courts of Justice Act, a right of appeal in every case.

Sub-section (2) of Section 16 restores —or probably restores—the old procedure on appeal in the old class of cases in which an appeal lay. It is doubtful —I cannot say it is clear whether or not, under the Courts of Justice Act, appeals which are given by special Acts survive. The complainants in fishery cases, excise cases and illicit distillation cases can appeal from—from their point of view—an unsatisfactory decision of the District Justice. Whether the special sections of these Acts to which I have referred, which confer these special appeals, have or have not been swept away by the Courts of Justice Act, is not quite clear. One Circuit Judge has held that, in fact, they were. This section makes it clear that these rights of appeal still lie.

Under Section 17 the word "indictable" is taken out of Section 88 of the Principal Act. The reason of that is that under Section 88 of the Principal Act a Peace Commissioner has power to remand on bail a person who is charged with an indictable offence. He has no such power with reference to a person who is charged with a non-indictable offence. In the latter case, he can only remand in custody. An indictable offence is one which would be tried at the Central Criminal Court or at the Circuit Court. A case which is tried before a District Justice is not an indictable offence, with the result that a man might now be charged with manslaughter and a Peace Commissioner would be able to admit him to bail, whereas if he were charged with some offence against the road laws, or anything of that kind, the Peace Commissioner would simply have to remand him in custody. This enables the Peace Commissioner to grant bail in every case.

Section 18 deals with a matter of High Court procedure. A certain class of case, according to the present procedure, is tried without a jury unless the judge shall consider a jury to be necessary or desirable. The present practice is that application is made at the trial to the judge for a jury and he grants it, or does not grant it, according as he thinks right. If he grants it, it means that a jury has to be summoned. There is great delay, and witnesses are kept in court until the jury has been summoned. This section enables the application to be made to the court before the trial and before the date fixed for the trial. The court will decide as to whether a jury should be allowed or should not be allowed.

Section 19 puts the District Court in Dublin on the same footing as the District Courts in the rest of Ireland. Dublin, at one time, was under a completely different system from the rest of Ireland. It is now being brought into line with the rest of the Free State, and, accordingly, limitations which do not exist in the country are by this section done away with in regard to Dublin.

Section 20 merely mentions the name by which the Act can be cited. These are the entire provisions of this Bill. I am afraid that in explaining them I must have appeared rather dull to the House; but many things which are in this Bill are rather of a dull nature. I commend the Bill for Second Reading to the consideration of the Dáil.

Question proposed: That the Bill be read a second time.

The Minister was not a member of the Dáil when the Courts of Justice Act of 1924 was passed; but he was at that time a practising barrister and had considerable knowledge of how that Act would be likely to turn out in its working. We have him now coming forward three and a half years after the passage of the Courts of Justice Act proposing a Bill to amend that Act. I am sure no one realises the necessity for the amendment of the Principal Act more than the Minister, but I fear that the Bill as it at present stands will not meet the requirements of the case. As the Minister will recollect, and as the House will recollect, the original Act was passed largely, not altogether, but largely, upon the report of a judicial committee consisting of lawyers belonging to the two branches of the legal profession. I doubt very much if many of the signatories of that report would sign a similar report to-morrow from their experience of the working of the Act. I would like, for the sake of information, to know upon what basis the Minister now brings in this Bill. Has he set up a similar committee, or has he consulted either the Bar Council or the Incorporated Law Society? Judging by the omissions in the Bill, I would be inclined to think not.

This Bill purports to amend the Act of 1924, and it goes, in some respects, very far indeed, too far, in my opinion, and in other respects not far enough. Take the section dealing with the administration of criminal law. I refer to Section 5. Section 5 is a tremendously drastic section. It may be founded, to a certain extent, if not altogether upon the existing British criminal law, but at the same time it requires very careful consideration indeed before it should be passed by this House. In effect it takes away a great deal of what remains or what is left to the accused man of his rights and liberties within the Constitution. In sub-section (a) of Section 5 the Court of Appeal, even though they find some technical errors in the verdict of the court below or in the means of arriving at that verdict, is to be allowed, if they consider that in substance the prisoner is guilty, to return that verdict. I think that requires very grave consideration indeed from Deputies in this House. A man is put upon his trial, and he is an innocent man until he is proved to be guilty, and if there is any fault in the exercising or the functioning of the State either by a judge or by those prosecuting in the name of the State, or in the manner in which the trial has been conducted, even by the jury itself, that man, according to all recognised standards of justice, should be allowed to go free. Take sub-section (b). That goes even further. Under sub-section (b) the Court of Appeal is to be allowed in effect to change the charge against the man.

Well, if not to change the charge, to find him guilty upon a different charge. That may be found not to be exactly the same thing, but as far as the man is concerned it amounts to this, that he may have been returned as innocent; he may have been entitled to a verdict of not guilty because the case has not been proved against him—on a certain charge—and the Court of Appeal may say: "No, you have not been found guilty of that, but we will find you guilty of this." That is a matter that requires exceedingly careful consideration by this House. When the Minister was explaining that sub-section he said, I think, that the man might be obviously guilty. Perhaps I am wrong. That is in regard to the next sub-section. I think it was in regard to sub-section (a) where he said that that man might be obviously guilty and that the ruling that they made might be only on an unimportant matter. But who are to be the judges as to whether the matter is unimportant or whether the man is obviously guilty? In that matter, where once a trial has taken place and once a man by any means was not found to have been properly convicted, then, in my view, that man should be returned as not guilty.

I do not want to interrupt the Deputy but might I remind him that there is no appeal except in a case where a man has been already found guilty by a jury.

I quite accept what the Minister says. Of course I agree with him in that. What I am trying to get at is this: that where a man has been found guilty of a certain charge and appeals, and the Court of Appeal find that they are bound to upset the verdict of guilty on that charge, then according to this proposal the Court of Appeal can turn round and say—and they are not a jury—"we found that he was not guilty of the charge on which he was found guilty, but we also find that he is guilty of some other charge." I say that is an exceedingly drastic proposal to make and it requires consideration. I come now to sub-section (c). There is the case where they shall have jurisdiction to make an order for a new trial, a re-trial. To that I certainly cannot subscribe. That is a section to which I cannot subscribe even, as I say, though this may be the law in other lands. When a man has been charged and found guilty, it is true in the first instance by a jury, but subsequently found not guilty owing to the interpretation of the Court of Appeal, then he has been found not guilty. Once a man is found not guilty, it should not rest at any rate with the Court of Appeal to direct a new trial. If a new trial is to take place it should be by direction of the authorities who instituted the original proceedings.

We come now to certain other sections. Take Section 8. With the provisions of Section 8 I have no quarrel. But Section 8 merely touches on the fringe of the question which has been exercising the minds of both the courts and the members of the legal profession for a considerable time. That is the position of the Master, and I do suggest to the Minister that the whole question of the Master's jurisdiction should be seriously gone into because it is a matter that is seriously affecting the practice and procedure of the Courts. At the present time the conditions are such that very few practising members of the Bar can tell you what the Master's position is; I doubt very much even if the Master himself knows. There is subject-matter contained in the section which should have been the subject-matter of a very careful and complete inquiry before a Bill like this was introduced.

As far as the additional judges are concerned, I will spare the Minister any pains. He was not here during the discussion on the Courts of Justice Act, but if anyone cares to peruse the volume containing those discussions he will see that over and over again I suggested, among other things, that if they were going to have this new system—if they were determined to do away with the existing system and were determined to change for the sake of change, which they seemed determined to do—they must have more than eight Circuit Judges. I dwelt at length upon the position in the city of Dublin. I showed how the ex-Recorder in the city of Dublin did more than one man's work, and, with increased jurisdiction, a man would require to be a superman to do the work that the new Circuit Judge of the city of Dublin would be asked to do under this Act. Now we have, of course, this acknowledged by the proposal to create two new Circuit Judges. It is time they were created. I protested every time that it was proposed to appoint temporary judges to assist the Circuit Judges; I protested against the principle of temporary judges, and I appealed to the Government to appoint extra permanent ones. Now they are about to appoint two permanent judges. The Minister rather naïvely suggests that it might not be necessary to keep on filling the vacancies that may occur for these two extra Circuit Judges. I can tell him now, as I told the House four years ago, that even with their ten Circuit Judges they will hardly have sufficient to meet, not only the work, but the nature of the work which they themselves have created by the Courts of Justice Act of 1924. This Act of 1924 was going to revolutionise legal proceedings in this country; it was going to cheapen proceedings for the litigants and was going to make law almost a cheap pastime for the people. Everyone knows that the contrary has been the case, and everyone knows that the methods of Circuit Court appeals have not cheapened litigation, but have added considerably to the expense. Now we have these two judges proposed. I do not intend to oppose that section.

Hear, hear!

Section 11 purports to deal with Circuit Court appeals. This was the whole kernel and crux in the discussions on the Act of 1924—the complete change that was made in the nature of appeals from what were then the County and are now the Circuit Courts. There was a system in vogue, faulty, it is true, in many respects, but one which on the whole worked and could be worked satisfactorily; it was a system of appeals which, in effect, amounted to something in the nature of a re-hearing. That system was scrapped in face of forebodings and in face of the more or less general view expressed by both branches of the legal profession. What has been the result? The result has been that the Minister has to come along now and has to tinker with this new system as he does in Section 11. Why can he not scrap it altogether? What is the use of tinkering with it? The Minister starts off by saying that the Courts of Justice Act is the Principal Act. The appeals were grounded on notes. Now, according to this section, they are to be grounded on evidence. I would like the Minister to explain the position a little further. I cannot altogether follow——

Perhaps the Deputy will allow me. I tried to be clear, but this section deals only with and has no operation except in cases where the stenographer's notes have been lost. The change of the word "notes" to "evidence" is necessary in order to effectuate that intention. It is only when the stenographer's notes are lost or destroyed through no fault of the parties that this section becomes operative.

I am very glad that the Minister has further illuminated this point for me. I do not think "tinkering" is the word I should use.

I think the Minister has not even touched upon the fringe of tinkering with the question of appeals.

That is quite so.

The Minister glories in the fact that that is quite so. Before he is very much longer in office, if he continues in office, he will find himself coming here making a very serious alteration in the system of appeals.

That is not under consideration in this Bill.

The Minister says that that is not under consideration in this Bill. That is exactly my complaint—that it is not under consideration in this Bill. I say it is absolutely tinkering with the question for the Minister to propose a serious amendment to the Courts of Justice Act and not have anything whatever to say to the working of the existing system of Circuit Court appeals. Let the Minister go to the Library and ask any of his fellow practising barristers, and let anyone who has anything to do with the Circuit Courts say that the Circuit Court appeals under the present system is working well and is suitable to the country. He says the section only deals with cases with regard to which the stenographer's notes have been lost. I think the pity of it is that the stenographer's notes are not lost in all cases, because the whole system is so ridiculous. You have a case tried in the first instance at the Circuit Court, and then, for months upon months, you have an appeal waiting to be heard—I believe appeals have again accumulated since the Commissioners finished their previous work—and when the appeal does come on it is taken on the notes of the stenographer. It really, in many cases, amounts to nothing short of a farce, so much so that appeals which would be taken in the ordinary course are not being taken, but, on the other hand, more appeals are being lodged, and in that way justice is being frustrated, because the time has been so great during which these appeals have been delayed.

The Minister said nothing about the creation of extra High Court Judges. At the time of the passage of the Courts of Justice Act I suggested that if the Government were bent on having this new system they would have to have more High Court Judges than they proposed. What is the state of affairs to-day? With the Central Criminal Court fully occupied as, unfortunately, it is, and one judge being away from the High Court for that purpose, with the enormous number of these appeals that have accumulated from the Circuit Courts, and with the necessity for High Court Judges to hear these appeals, I say deliberately that there are not sufficient High Court Judges available for ordinary High Court work. I do not know whether the Minister has investigated that matter or not.

Now we come to certain other sections. With most of them I am in agreement, especially Section 16. That is an admirable proposal and an amendment that was particularly required. I only wish that the principle underlying that section had been applied to Section 5. It seems to me to be diametrically the opposite. Under Section 16 a man found guilty is to get every possible advantage by way of appeal. Under Section 5 a man found guilty is to have a great many of the advantages that he now enjoys, when a Court of Appeal has decided in his favour, taken away from him.

What I object to mostly in this Bill is that it has not gone to the roots of the working of the Courts of Justice Act. I do not know whether or not the Minister has considered the working of the whole Act in itself, or whether he has only just gathered together a few matters which have been brought to his notice and strung them together in the Bill, which he seriously calls a Bill to amend the Courts of Justice Act, 1924. I say to the Minister that no one will be satisfied—litigant or lawyer—until something is done to amend or improve the working of the Courts of Justice Act, especially in regard to Circuit Court appeals. He knows that as well as I do. That being so, it is disingenuous, to say the least of it, for him to produce a Bill like this and style it seriously as an amendment to the Courts of Justice Act.

We purpose opposing this Bill. Other Deputies of my Party will speak later, but as a layman I want to say that I cannot imagine anybody bringing forward a Bill pretending to be a Justice Bill with Section 5 in it. Deputy Redmond has already pointed out the dangers of that section. The first sub-section (a) says:

The court may, notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

In other words, although they are convinced that the appeal should go in favour of the appellant, they are at liberty, if they want to, to dismiss the appeal if no substantial miscarriage of justice has actually occurred. I should imagine that the object of a Court of Appeal mainly would be to decide a question of law, and you are now going to turn them into a general jury.

Sub-section (b) says:

Where an appellant has been convicted of an offence and the jury by whom he was so convicted could on the indictment have found him guilty of some other offence, and on the finding of such jury it appears to the court that such jury must have been satisfied of the facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence.

In other words, they set the jury aside because they choose to think——

That is what it amounts to; they are to be the judges of whether a jury would in certain circumstances have found a person guilty.

The jury finds the facts.

The point is that the judges, if they think that on the facts before them the jury would have found him guilty of this other offence, can find him guilty. That is what it comes to, in practice, anyhow. It means definitely, if words mean anything, that the Court of Appeal in examining the case will say to themselves: "The verdict as found by the jury indicates that in their minds certain facts were proved," but that matter was not before the jury and they were not definitely finding these facts as such—it only comes in by a side-wind. You are going to give the Court of Appeal power to make all these deductions from a verdict found by a jury. I think that is absurd.

Then we come to sub-section (c):

"... where the Court reverse a conviction in whole, the Court shall have jurisdiction to make an order (in this section referred to as an order for a re-trial) authorising the person in respect of whom such conviction was obtained to be re-tried for the same offence as that which was the subject of such conviction and may by such order give such directions as to costs as they may consider proper, and may by such order or any subsequent order direct the person in respect of whose conviction the order was made to be retained in custody or to be admitted to bail on such terms as they think proper."

That is the sort of thing you would imagine would be brought up by somebody who had never heard of any general principles of law. There is a well-established principle—and there are very good reasons as a rule behind those principles—it is usually put in the Latin form—Nemo bis vexari debit. In other words, that a person is not to be pursued in this particular manner and tried twice for the same offence. If he has been acquitted, he has been acquitted. If the Court of Appeal finds that he is not guilty, or that he has not been properly convicted, he ought to go a free man and not be all the time subject to being pursued in this particular manner and told that he will be brought up for retrial and held in custody. That is what appears to a layman on reading this. Certainly I expected, having read it, that we would get from the Minister some explanation for his turning the law. as it has been turned, topsy-turvy in this matter.

There are a few other matters I wish to refer to by the way. The Minister referred to Section 6 (a), which reads:—

"The sentence shall not in any case be executed until after the expiration of the time within which notice of appeal or of an application for leave to appeal to the Court of Criminal Appeal may be given in accordance with Rules of Court."

He said that that was always the practice—that it was a practice always acted upon. I draw attention to the fact that that was not acted upon on a certain occasion when Erskine Childers was put to death while an appeal was pending.

You are looking for further District Justices. I think a certain case has been made out for two extra judges. You are looking for four extra justices here and I think we are entitled to hear a better case made out for the increase in the number than has been made out up to the present. If there is any increase at all and if it can be proved that an increase is necessary—to my mind it has not been proved so far —but if it is proved then I suggest a knowledge of Irish should be taken into account. However, I am assuming that we are going to be beaten in a division in this case again. It occurred so often irrespective of common sense—no matter what common sense is put forward we have been defeated—but I hope, at any rate, that if a case is made out, and if there should be an increase of any kind in the number of District Justices that the importance of a knowledge of Irish will be borne in mind.

In rising to support the Second Reading of this Bill I desire to do so with this reservation: that I do not desire my support of it to be taken as any support of the system of appeal under the Courts of Justice Act under which we are working at the present time. In my opinion and in the opinion I must say of the whole of the profession, the Act and the present system is unworkable. I support this Bill because I take it that it is brought forward by the Minister for Justice in order to carry on the present system for the purpose of giving it a more complete try out than it has had up to the present. For that reason I support it. As to the criticisms passed by Deputy Redmond and Deputy de Valera I do not wish to go into them at the present moment. As regards Section 5 I am not satisfied as to the terms of that section and at the proper time if an amendment is not put down by some Deputies or the Minister I shall put down amendments. I do not agree with Deputy Redmond's criticism of Section 8 which is the one dealing with certain orders of the Master of the High Courts which are not to be impugned. I take that to be a retrospective section that validates certain orders made by the Master before his jurisdiction was ascertained. It was uncertain what his jurisdiction was.

I said I was in practical agreement with that section as far as it went.

I understood the Deputy to criticise the section, and to say that it should not be there.

Not at all; I never said that.

The section is one to validate the orders made already. I still consider that the Deputy did not convey himself clearly, if my impression of what he said is accurate. As regards the appointment of further Circuit Court Judges, undoubtedly the work of the Circuit Court is in arrears, and if we are to carry on the present system for any time it is necessary that those additional Circuit Court Judges should be appointed. And therefore I support that portion of the Bill also.

Perhaps if I may be allowed to convey myself clearly I may say that so far as this section is concerned I am in complete agreement with it. I do not think it goes far enough. I think the whole question of the Master's jurisdiction should be gone into.

Section 5 has been criticised by Deputy de Valera and Deputy Redmond, and I think that while Deputy de Valera was speaking the Minister for Justice tried to join issue with regard to sub-section (b) of Section 5. The sub-section says where an appellant has been convicted of an offence and the jury by whom he was so convicted could, on the indictment, have found him guilty of some other offence, and on the finding of such jury it appears to the court that such jury must have been satisfied of the facts which proved him guilty of that other offence—and so on.

I think there can be no ambiguity about that, that you are putting the judges in the position of endeavouring to find out what was in the jury's mind. The jury pronounced on a certain indictment, and that is the only indictment they have pronounced upon. According to this sub-section the judges are to read into the jury's mind something that could not be and would not be in the jury's mind at all. There can be no other deduction from the wording of that section. In other words, you are substituting for the jury two or three judges who compose the Court of Criminal Appeal.

Coming to Section 8, perhaps the necessity for that could have been obviated. I do not know who the Rule-making Authority is, but I suggest to the Minister that if the Rule-making Authority had been supplied with some legal advice the necessity for this would not arise.

It was the judges themselves.

The Rule-making Authority may consist of some legal men, but apparently when drafting the rules they were unable to draft them so that they did not run roughshod over the Constitution. Subsequently when bringing in further rules they again ran across the Constitution, although they had three decisions before them to guide them as to the jurisdiction of the Master. They came along and they gave jurisdiction to the county registrars and imposed judicial functions upon them. They have had a lesson two or three times. I suggest that the Minister might get some barrister in the library, someone who might not be too busy to give assistance.

Such a man could not be found.

The Minister asks under this Bill that two additional Circuit Judges be appointed. On the day that the Minister was himself appointed a member of the Executive Council it was stressed in this House by me and other Deputies that the cause of the delay with appeals in the Circuit Courts, generally, and the unsatisfactory condition they were in, arose mainly from sticking to the system that appeals were based on the stenographer's notes. I do not think that the Minister could be under the impression, no matter how, elastic his imagination may be or no matter how he would shut himself off from the views of the outside world or the Bar library or legal profession, or convince himself that he could be under the impression that that system under which the Courts of Justice Act is still operating, and the system of appeals could have given any satisfaction. I believe if that system had not been adhered to it would not now be necessary to be asking for further judges.

After all, you have only to consider the position in the Circuit Courts to-day. Witnesses are brought up there. Every word spoken in the court has to be taken carefully in the notes, and instead of disposing of eighteen or even a dozen cases in the day, as in the old County Court system, you now make wonderful headway if you dispose of two cases in the day, as the Minister for Justice knows himself.

A DEPUTY

It would depend upon whether Deputy Ruttledge was engaged in them.

Ca'canny by the Trade Unions.

The judge finds himself in the position to-day that he can only deal with two or three cases; hence you have an accumulation of arrears, and then when you go on appeal you have this unsatisfactory system of stenographers' notes being read through, the judges not having the advantage of seeing the witnesses before them. The Minister pretends to make some improvement on that system, universally attacked, in Section 11. The only portion which I can see that can be construed as any slight amendment of the system as it exists is sub-section 2, Clause (a). It admits additional evidence, either orally or on affidavit. That has been done already.

That is in the original Act.

That has been done already. In a number of cases appeal commissioners have called for witnesses examined before the Circuit Court Judge and brought them up before them. That has happened. I can give the Minister cases if he wishes. What is contained in sub-section (c) and all those other things have been done under the other Act.

That I stated was that we have repealed Section 61 of the Principal Act, and this is a re-enactment, word by word, of that section, except that it enables the court to proceed to hear an appeal where the stenographer's notes have been lost.

I was not here when the Minister was speaking. Clause (b) was dealt with already by the Appeal Judges in certain cases. The question that does not seem to me to be of any importance to the Minister, and which might be considered, as has been pointed out already in this House, is the enormous expense to litigants to prosecute those appeals. It is a barrier to justice, because in some cases it transpires that subsequent to the hearing before the Circuit Court Judge evidence can be brought before the Appeal Judges which might be able to prevent a wrong or injustice from being done. As I pointed out previously, a very conservative estimate of a trivial appeal from the Circuit Court Judge is £80. Hence at present, when you have not sittings through the country of the appeal divisions, it means that you bring down a senior counsel from Dublin to another part of the country. The unfortunate client has to pay a fee of 25 guineas. Under the old system you had the judges going on circuit and senior and junior counsel to select from. I am not suggesting that system was admirable, but I am saying that a system on some lines that would avoid this unnecessary expense would be more in keeping with what should be put forward from this House. I contend if some such system as that were devised that it would enable the cases coming before the court to be dealt with more speedily, and would avoid all this unnecessary delay. Some time ago you appointed appeal commissioners when there was an accumulation of work. At that time this House was told it was to wipe out arrears, and once that was done this system would work smoothly. Now the House is told that the arrears are as bad as when they appointed commissioners. They ask now for four additional assistant district justices. We were to assume that there would be certain economies in this system, but if the Minister wants to put side by side with the cost and expenses that obtained in other days when, as everyone knows, expenditure was on an outlandish scale, the rate at which the Executive Council is appointing justices, it means the judicial system will be as costly here to-day as it was under the other régime.

I do not know what case the Minister can make for the appointment of four assistant district justices; so far as I have been able to ascertain the district justices have been able to deal with the work in the country. In Dublin there may be necessity for an additional district justice.

The Deputy was not here when I spoke. What I explained to the House very clearly was this, that district justices are whole-time workers. They are entitled to certain vacations in the year. They also occasionally may get sick, and during the time they are taking their vacations or suffering illness it is necessary for someone to do their work. At present gentlemen have been appointed temporarily for a fortnight or three weeks at a time, sometimes much longer. These four are taking the place of the temporary district justices, and the extra expense, if anything, will be very little indeed.

Will they not be paid at the rate of £800 a year?

And they will be pensionable officers. Does the Minister think this is an economic way to deal with the question? Does he think a system could not operate by which, if one district justice in an area was ill, another district justice in an adjoining area could operate?

That is suggested in the Bill.

It is not in this Bill.

Read sub-section 2 of Section 13.

I am dealing at the moment with Section 12, under which the Minister for Justice intends to appoint four assistant district justices.

In lieu of temporary justices.

Surely when you were appointing Assistant District Justices it was only to deal with a particular emergency? Now you are going to appoint—once the power is given by the House I am sure the Executive Council will act upon it—four additional Assistant District Justices. These are going to be four permanent jobs. They will be four permanent officers, and we will want very strong proof to show that they are absolutely necessary. As regards Section 15, under which additional powers are given to the District Courts, I certainly see no reason to complain of that. I do not think that any Deputy who has had any experience of District Justices in the country will have any reason to complain of giving them extra jurisdiction. I think in a good many instances the District Justices that have been appointed have shown a much greater knowledge of affairs in the country, and that they were not so detached as some of the Judges. In that connection from time to time it has been submitted to the Minister, that in appointing District Justices, he might follow the practice that was followed to some extent when the District Justices were first appointed. That is, that he would not stick to what seems to be the inherited idea in regard to the privileges of the Bar. It has been put forward by the Incorporated Law Society from time to time that solicitors should be considered for those positions. I have no particular reason for saying that except that they are in touch and have been more in touch with the business that comes before the District Courts than persons such as barristers, accustomed to the seclusion of the Law Library.

A number of those appointed were solicitors.

I know they were, but in recent times that has been departed from and the original practice has not been adhered to. My chief objection to the Bill, however, and it is a serious objection, is on the question of appeals. If the Minister would give some indication that he was going to recognise the position with which everybody seems to be dissatisfied in regard to the system of appeals as at present existing, and that he would do something to remedy that state of affairs and do away with the increased expense as shown by the working of the Act, it would go a long way towards removing the present dissatisfaction. If he decides still to continue the practice under which litigants are put to the expense of £80 in prosecuting an appeal in some trivial case whereas under the previous regime it could be done for about £19, it can only result in more delay and a greater feeling of dissatisfaction. These are the facts, and no matter who is responsible for the system of appeals, and no matter what position they occupy, I think the House should look at the matter in a broad, common-sense way and ask itself what is the proper way to remedy a system that has worked so unsatisfactorily during the last two or three years.

I do not want to get myself involved in a dispute between members of the legal profession. I am reminded that the Bar is one of the strongest of Trade Unions. I do not want to get into an argument between the two branches of the Profession but I have to say for myself that until the Minister can give the reasons which influenced him in putting Section 5 into the Bill I will be obliged to go into the Division Lobby against him. I could not, under any circumstances, vote for this section in the Bill.

With the exception of Section 5 there has been no attack made upon the Bill itself. There have been attacks made not for what the Bill contains but for what it does not contain. To deal with these attacks generally and on the whole administration of justice in the country generally, I will commence by making the statement that the Courts of Justice Act was introduced by the then Executive Council following upon the report of a Committee which had been set up. That was a very conservative Committee. It represented the Bar, the solicitors' profession, the commercial and trading institutions of this country. That Committee made certain recommendations which the Executive Council embodied in the present Courts of Justice Act. The Executive Council carried out the recommendations of the Committee of experts, a conservative Committee, which they had set up. Now we are asked to change that Act in its fundamentals. My answer to that is that we are not tied down to that Act and we are not tied down to any single detail in the Act. All we want to do and all we are doing at the present moment is giving the Courts of Justice Act a fair chance. We want to see it working. If after we have seen it working it proves faulty or deficient in principle or in detail, then we will alter it, vary it or amend it, according as experience shows that it should be altered, varied or amended, but until such time as the Circuit Court is operating under the rules, until the system has been working, it is impossible for us to say whether it will ultimately be a success or otherwise. I do not deny for a moment that the opinion of both branches of the profession is that the system of appeals is not good. I am perfectly aware of that fact. I am perfectly alive to the existence of that state of feeling in my own profession and in the solicitors' profession, but I consider it incumbent upon us to see that the system is not too hastily scrapped and not too hastily altered until we have seen that system working, under rules, as the person who designed that system expected it would work. It is not fair and it would not be wise to abolish the system.

Now I come to this much-attacked Section 5. Deputy Redmond used some very strong words. He said that according to all recognised standards of justice there were things in that section which were completely wrong. I would like for a moment to explain the history of that section to the House. I should like from every part of the House reasoned suggestions for the amending of that section.

For its deletion.

Perhaps the Deputy would bear with me. Some time ago there was no Court of Criminal Appeal in this country. The prisoner was convicted, and the verdict against him stood. A Court of Criminal Appeal was set up some years ago in England, afterwards in Scotland, and then it was set up by the Oireachtas in this country. The courts here administer what is practically the same criminal law as is administered in England. The Court of Criminal Appeal had been working in England for a great number of years. It had also worked in Scotland. They amended their Act. They varied and altered their system into a system giving to the judges in England—it is the same in Scotland—the same powers as it is proposed under this Bill to give to the judges in this country. Their experience has been the same as our experience. It is perfectly right and accurate to say that the prisoner must receive the benefit of every doubt, that he is innocent until proved guilty, that he should not be put in danger twice, that he should not be harassed by the accumulation of proceedings against him. All that is perfectly right. Every one of these sentiments is very excellent and very admirable. But this Bill does not injure or destroy any of these nice, pious, excellent sentiments. The prisoner is tried; he is found guilty. He comes to the court and says: "There was one trifling bit of evidence—absolutely of no importance to the issue—let in, one little statement which was not evidence." The whole trial is to go. The whole verdict is to be set aside. It is of paramount importance, in the administration of criminal justice, that no innocent person should be convicted, and that no innocent person should suffer. That is of paramount importance, but it is of great importance to the community too that, notwithstanding pure technicalities, persons who may have committed grave and serious crimes against particular individuals of the community or particular citizens of the State should be punished for the crimes which they have committed. There should not be a door through which guilty persons— plainly and obviously guilty—can escape. The jury find them guilty. They have had the protection of the jury first. They then come before the judges on appeal, and the judges find that a little, trifling mistake which could not have affected the minds of the jury was made. The judges must be satisfied that there could be no miscarriage of justice. Sub-section (b) says that if a man is found guilty of one offence, being charged with various crimes, the judges, if they think that, as a matter of law, there was no evidence to support the finding of the jury——

I do not like to interrupt the Minister, but, as he interrupted me, I hope he will pardon me. He has referred to a case where the accused is charged with various crimes. That is not in the sub-section at all.

They must be in the indictment. The prisoner could not be found guilty of an offence with which he was not charged. He cannot be found guilty under this sub-section of any offence which the jury could not have found him guilty of. That is perfectly clear. If the judges see that the jury believed the witnesses who were called by the prosecution, that is perfectly obvious. The jury believed them, and, because the jury went too far and found the man guilty of a more serious offence than he had committed, because they leaned too much against the prisoner in their finding, the prisoner—a guilty man on the finding of the jury—is to escape scot-free. I ask Deputies to consider that very carefully, to think it over very carefully, because it is important that guilty persons should be punished. That is not as important as that innocent persons should escape when charged. That is of primary importance, but it is also important to the community that guilty persons should be punished. That is a sentiment in which, I am sure, every member of the House will agree with me.

Would not the obvious way out of that difficulty be by re-trial?

Re-trial is provided for by the next sub-section, but re-trial is one of the things which Deputy de Valera attacked most severely. Might I suggest that Deputy de Valera and Deputy Little discuss this matter privately, because the views they express are diametrically opposed. I would ask Deputy de Valera to turn this matter over in his mind.

I do not suggest a retrial for the same offence.

That is what is in the Bill.

Then what is the new trial to be for?

Where there is a second charge. It would be something better than the gross injustice under this provision.

Would the Deputy put down an amendment to that effect and let us have a look at it?

As one of the uninitiated, I should like to ask the Minister whether or not it is shown in that section, as stated by him, that the appellant could be found guilty by the judges of a minor offence. On that point the Minister was very emphatic.

If there is any doubt in the wording of the section, I will make it clear. I stated what I consider to be the interpretation and the intention of the section in my opening statement. If there is any doubt about it, I will put in words making it clear.

I suggest that the retrial provided for in sub-section (c) of this section is for the same offence.

Yes. An indictment, I might venture to point out, as possibly there is some little difficulty about it, contains a count for larceny, a count for false pretences or for something else. Certainly you would not have a count for murder and a count for larceny in the same indictment. You would not be tried in the same indictment on what one would call two sets of facts. You would only be tried on one set of facts, and the jury might find you guilty of having done the act. As to whether the act amounted to one offence or another, the jury might be wrong in law. Say the case is one of larceny or false pretences. An issue paper would be handed up to the jury. They would be asked: Was the prisoner guilty of larceny? Was the prisoner guilty of false pretences? If they found him guilty of larceny they would say "yes" to the first question. Take a case like this: Valuable goods are stolen. A man is found wearing them. They are marked with another man's name, and it is perfectly plain that there has been an offence committed. It might be held that there was no evidence that this man actually stole the goods. The jury may find him guilty. It is perfectly obvious he has them knowing them to have been stolen. Would it not be bad for the community if a man like that, because the jury found him guilty of larceny, when they ought only to have found him guilty of the lesser offence, should go free? Take the new trial. There has been some bit of evidence let in, probably of a serious nature, and the court is satisfied that there was plenty of evidence, apart from this illegal evidence, to go to a jury, but they are not satisfied that the jury would of necessity find him guilty without this extra bit of evidence.

Have judges who know the law.

Could there be anything better in a case like that than to have the man retried? The proceedings are not over. He has been tried for one offence, but there is an indeterminate verdict upon that. He has been found guilty. The court thinks that probably the jury might have acquitted him. They do not preserve the sentence. The court simply say: "Let the case go back and let the jury decide in the case of this particular man whether he is guilty or not guilty upon legal evidence." There is nothing in this section which really can be said to endanger innocent people. This section is simply an attempt, following out what has been done in other countries, to prevent men whom the jury obviously considered guilty, or possibly might consider guilty, from escaping. What we are endeavouring to do is, as I have said before, to safeguard the innocent but not to make escape by mere technicality too easy for the guilty. That is all Section 5 is designed to do.

On a point of personal explanation, there is absolutely no disagreement between Deputy de Valera and me on sub-section (c). It is a most unfair attempt to confuse the issue by mixing (b) and (c).

I am very sorry. I did not mean in any way to be unfair to the Deputy. I must have misunderstood him.

Would the Minister admit that there is some confusion between sub-sections (a) and (c) of this section?

I do not think so. Take sub-section (a). It is perfectly obvious that something immaterial, something which really could not have an effect on the minds of the jury at all, or only to a trifling extent, has happened. It is perfectly obvious that the jury considered the man guilty, and that they must have come to that conclusion quite apart from this evidence. There (a) comes into operation, but (c) comes into operation when it becomes a question of real difficulty. There has been possibly some admission of illegal evidence, or possibly some too-strong statement in the judge's charge or something of that kind— some pure technicality in the first instance, and something more serious than a technicality in the second instance. That is the difference. In one case the judges affirm the findings of the jury; in the other they say a new jury should be empanelled to decide this question. It is not only the experience in this country, but it is the experience of other countries where you have a court of criminal appeal, you must have some clauses of this nature. That is the English and the Scotch experience, and they are particular as to the liberty of the subject in those countries also.

Would the Minister agree to cut out the word "substantial"?

Certainly. I do not think there would be any difficulty about that, because every miscarriage of justice is substantial. Those are merely drafting amendments. Deputy Redmond dealt, at some length, with the decision of the Master. I think Deputy Rice answered him about that. Deputy Redmond attacked the Bill further for what it did not contain. I have already dealt with Deputy de Valera's points, except the point as to the four additional District Justices.

Does the Minister agree with Deputy Rice's answer to Deputy Redmond in reference to Clause 8?

Deputy Rice explained the position. The position is this: The Master made, under the rules, certain decisions which were wider than the rules justified him in doing. He misinterpreted the rules of the High Court. I may as well come to Deputy Ruttledge's argument on this also. Deputy Ruttledge said it was unconstitutional, that it had been decided by the court to be against the Constitution. I do not like being very definite in a question of this nature, because there may be some very recent decision that I have not heard of. But all the cases that I know of, and I think all the reported cases, are to this effect, that the decisions made by the Master were not justified by the rules of the High Court. There has been no decision in which there has been an interpretation given by the courts of what judicial functions mean in the Constitution, and I would very much like to know. It came before the Court of Appeal recently, and they did not decide the question.

Three main decisions came before the Master in regard to this matter. Does the Minister say that in any of those three decisions the judge did not say that the Master had taken to himself, whether under the rules or otherwise, judicial functions, and that under the Constitution nobody except a judge appointed by the Executive Council could exercise judicial functions?

That is very plain, but as to what are judicial functions is not so plain. Take, for instance, an interlocutory application—as to whether that is a judicial function has not been decided, and it is a very important matter, and the real powers of the Master cannot be known until that has been decided. Deputy de Valera raised a question about the four Assistant District Justices, and I was somewhat surprised to hear Deputy Ruttledge upon very much the same lines. I think Deputy Ruttledge himself must really know the position. We have had a considerable number of District Justices in the country, and these district justices are entitled to take a certain amount of holidays in the year. There are not District Justices idling the whole year. There are District Justices who are working the whole year. They have a good deal of work to do, and it is by no means an easy position.

How many hours per day on an average?

I could not tell you how many hours per day on an average. It would be impossible to state that.

How many hours per week?

I could not tell you how many hours per week or per year or at all.

Surely the number of hours does not represent the amount of work done?

When you talk about the Shannon scheme it does.

I venture to think that, with the exception of Deputy Davin, Deputies will agree that the District Justices are a very hard-working and hard-worked body of men. They are entitled to their vacations during the year. There must be persons to take their places when they are receiving their vacation or when they get off for any other reason. Under the Courts of Justice Act power was given to appoint temporary District Justices to do that work, because it was recognised that there were only sufficient District Justices each to do his own district. If one District Justice found that he could go in a little on the other District Justice's area and help him during illness or vacation, he is given power by this Bill to do so. It is perfectly clear that if the courts are to be held while these District Justices are on their holidays, or sick, there must be more than the present number of whole-time District Justices. The Courts of Justice Act enables temporary District Justices to be appointed to do the work of the existing District Justices, for a fortnight or three weeks, or sometimes longer. It is in place of these men that these four permanent District Justices are being appointed. I have heard criticism again and again in this House directed against the making of temporary appointments to judicial offices. We have stated that we consider that undesirable. Now when we come forward doing away with the need of appointing temporary men to judicial offices we are attacked and, as far as I can gather, the view of the Opposition is this—that instead of having these permanent men exercising judicial functions we should have temporary men.

Who said that?

We must have either one or the other.

You need not.

I would like to see the alternative. No Deputy on the Opposition Benches pointed out what the alternative was.

I asked the Minister: why not do it as it was done previously—take a District Justice from one place to another. Does the Minister not know that during the summer months there is no litigation and there is no practice at all during that time, and the members of the Bar Library get out of the country because there are no law courts sitting?

There are the Long Vacations of the High Courts, but there cannot be long vacations of the courts which exercise primary criminal jurisdiction. What is to happen supposing there are prisoners charged with an offence and they are in custody?

The adjoining justices can deal with these cases.

What is to happen to the courts in the adjoining district justices' own area in their absence? The Deputy tells me that would happen during the slack period. How many slack periods are there? How long is the slack period? And if District Justice A is doing two men's work during the slack period, how is District Justice B to do two men's work during the whole period?

Are you going to give them holidays for a half-year?

The Deputy should allow the Minister to proceed.

No; as a matter of fact these four deputy-justices will have to work and to work continuously, and work the whole time, and in order that the arrangement may work smoothly it may also be necessary to interfere with the term of choice of the existing justices in the matter of the time at which they would take their holidays, in order that these whole-time men may be able to work full time, and that there may be no district left without a district justice. Deputy Ruttledge's contention would be this—that the present district justices can in fact do their work without any temporary assistance. Well, that is not the general experience, and I think Deputy Ruttledge would be very sorry if that would apply to the districts in which he himself carries out his practice. I think I have dealt fairly exhaustively with the criticisms which have been passed upon this measure. Taking it as it is, this Bill is a genuine and real attempt to improve the administration of the law in this country, and as such I commend it to the approval of this House.

Does the Minister consider that the position in which the rulings of the Master of the Court have been left is a very unsatisfactory one for the future? Could not some way be found in which to define the matter exactly?

That does not arise on this Bill. This Bill validates what has been done in the past by the Master. It simply validates those orders. It does not profess to deal with the future position of the Master at all.

Is not that rather hopeless? The same situation will arise again.

No. The Master acts under the Rules, and this is validating what the Master did under a misinterpretation of the Rules only.

If one raises the question again as to what a judicial decision is, where are we?

I wish someone would raise that matter, and then we would know where we are. At the present moment it is not at all clear what is the meaning of the words "judicial decision" in the Constitution.

resumed the Chair.

Question—"That the Bill be now read a second time"—put.
The Dáil divided: Tá, 68; Níl, 57.

  • William P. Aird.
  • Ernest Henry Alton.
  • James Walter Beckett.
  • George Cecil Bennett.
  • Séamus A. Bourke.
  • Michael Brennan.
  • Seán Brodrick.
  • Alfred Byrne.
  • John Joseph Byrne.
  • James Coburn.
  • Eugene Doherty.
  • James N. Dolan.
  • Peadar Seán Doyle.
  • Edmund John Duggan.
  • James Dwyer.
  • Barry M. Egan.
  • Osmond Thos. Grattan Esmonde.
  • Desmond Fitzgerald.
  • James Fitzgerald-Kenney.
  • John Good.
  • Denis J. Gorey.
  • Alexander Haslett.
  • John J. Hassett.
  • Michael R. Heffernan.
  • Michael Joseph Hennessy.
  • Thomas Hennessy.
  • John Hennigan.
  • Mark Henry.
  • Richard Holohan.
  • Michael Jordan.
  • Patrick Michael Kelly.
  • Myles Keogh.
  • Hugh Alexander Law.
  • Finian Lynch.
  • John James Cole.
  • Mrs. Margt. Collins-O'Driscoll.
  • Martin Conlon.
  • Michael P. Connolly.
  • Bryan Ricco Cooper.
  • William T. Cosgrave.
  • Sir James Craig.
  • John Daly.
  • Michael Davis.
  • Peter de Loughrey.
  • Arthur Patrick Mathews.
  • Michael Og McFadden.
  • Patrick McGilligan.
  • Joseph W. Mongan.
  • Richard Mulcahy.
  • James E. Murphy.
  • James Sproule Myles.
  • John Thomas Nolan.
  • Richard O'Connell.
  • Bartholomew O'Connor.
  • John F. O'Hanlon.
  • Daniel O'Leary.
  • John J. O'Reilly.
  • John Marcus O'Sullivan.
  • William Archer Redmond.
  • Patrick Reynolds.
  • V. Rice.
  • Martin Roddy.
  • Timothy Sheehy (West Cork).
  • William Edward Thrift.
  • Michael Tierney.
  • Daniel Vaughan.
  • John White.
  • George Wolfe.

Níl

  • Frank Aiken.
  • Denis Allen.
  • Neal Blaney.
  • Gerald Boland.
  • Daniel Bourke.
  • Seán Brady.
  • Robert Briscoe.
  • Frank Carney.
  • Frank Carty.
  • Archie J. Cassidy.
  • Michael Clery.
  • James Colbert.
  • Hugh Colohan.
  • Eamon Cooney.
  • Dan Corkery.
  • Richard Corish.
  • Fred. Hugh Crowley.
  • Tadhg Crowley.
  • William Davin.
  • Thomas Derrig.
  • Eamonn de Valera.
  • James Everett.
  • Frank Fahy.
  • Hugo Flinn.
  • Andrew Fogarty.
  • Seán French.
  • Patrick J. Gorry.
  • John Goulding.
  • Patrick Hogan (Clare).
  • Samuel Holt.
  • Patrick Houlihan.
  • Stephen Jordan.
  • Michael Joseph Kennedy.
  • William R. Kent.
  • Frank Kerlin.
  • James Joseph Killane.
  • Mark Killilea.
  • Michael Kilroy.
  • Seán F. Lemass.
  • Patrick John Little.
  • Ben Maguire.
  • Thomas McEllistrim.
  • Seán MacEntee.
  • Séamus Moore.
  • Daniel Morrissey.
  • Thomas Mullins.
  • Thomas J. O'Connell.
  • Seán T. O'Kelly.
  • William O'Leary.
  • Matthew O'Reilly.
  • Patrick J. Ruttledge.
  • James Ryan.
  • Martin Sexton.
  • Timothy Sheehy (Tipperary).
  • Patrick Smith.
  • Richard Walsh.
  • Francis C. Ward.
Tellers—Tá: Deputies Duggan and P. Doyle; Níl: Deputies Allen and G. Boland.
Motion declared carried. Committee Stage ordered for Thursday, 31st May, 1828.