Skip to main content
Normal View

Dáil Éireann debate -
Wednesday, 6 Jun 1928

Vol. 24 No. 1

IN COMMITTEE ON FINANCE. - COURTS OF JUSTICE BILL, 1928—THIRD STAGE.

The Dáil went into Committee.
Section 1 agreed to.

As I already intimated to the House, I purpose making a formal verbal alteration on the Report Stage in regard to Section 2.

Section 2 agreed to.

I take it that amendment 1 aims at amending the law relating to the retirement age of Judges of the High Courts. No such principle was included in the Bill as it was read a second time. Therefore, amendment 1 is outside the scope of the Bill and so are amendments 3 and 7, for the same reason.

Sections 3 and 4 agreed to.
SECTION 5.
(1) In addition to the jurisdictions conferred on the Court of Criminal Appeal by Section 34 of the Principal Act, the Court of Criminal Appeal or, on appeal, the Supreme Court shall have the following jurisdictions, that is to say:—
(a) 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;
(b) 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;
(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 retried 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.
(2) Whenever an order for a re-trial is made under this section by the Court of Criminal Appeal or the Supreme Court the person in respect of whose conviction the order was made may, notwithstanding any rule of law, be again indicted and tried and, if found guilty, sentenced for the offence which was the subject of such conviction.

On behalf of Deputy Ruttledge, I beg to move amendment 1 (a): "In sub-section 1 to delete paragraph (b)."

On the Second Reading of the Bill I indicated the objection that we have to the inclusion of that particular paragraph. We think it is a wrong principle. I do not think there is to be anything gained by repeating what I said on the last occasion.

I would like to add that this deals chiefly with errors that may be made either by the prosecutor on pleadings, because he has made the charge wrong, or else that the judge has charged the jury wrong. If these errors are made, the person who is charged should get the benefit of the doubt in the matter.

The whole of this Section 5 hangs together. The object of Section 5 is to prevent persons who have been found guilty by a jury and who have appealed to escape the consequences by making use of pure technicalities. I submit to the House that that is wrong. I submit that the proper course for us to adopt is to have a code of administration of the Criminal Law which will be perfectly fair to the prisoner, and, at the same time, will not unduly load the dice in the prisoner's favour. There may be a mistake made by a jury, because that is really what paragraph (b) deals with, and not a mistake, as Deputy Little suggests, made by the judge. That would come under (a) or (c). But this is a mistake made by the jury. Take a case where the jury has evidence before it that a man is guilty of a particular crime. He is charged with two offences, and the jury find him guilty of one which, as a matter of law, the Court thinks they should not have found him guilty of on the facts as found to be proved; and they have acquitted him or disagreed upon the charge which in the opinion of the Court of Criminal Appeal is a charge upon which they should have found him guilty. I think because a mistake of that nature has been made —and I submit this to the House—that it would be unfair to the community if that man got free.

Let me take a case. Suppose a man is indicted, let me say, for rape, and that he is indicted at the same time for indecent assault. The jury can find him guilty of one or the other according as the facts before them justify finding him guilty of one or the other. Suppose the jury find him guilty of rape in this case and the Court of Criminal Appeal is of opinion that he was not guilty of rape, but that he was, in fact, guilty of indecent assault, then they would have, as the law stands now, to quash the finding altogether. That means that a man who would be a menace and a danger to society would go scot free and unpunished through what is nothing more than a mere technicality. It might happen in a huge number of cases, for instance in the case of larceny and false pretences. There is no doubt, let us say, that the man did a criminal act in the case to which this section refers. It is perfectly clear that the man did a criminal act. He has been found guilty. The facts have been found by a jury and the Court then rather on a question of law says that the jury found him guilty of crime A and not crime B.

I would ask the House to reject this amendment. I consider, however, that this Section 5 and the whole thing which lies under Section 5, is a matter of great importance. I do not think that it is our Party and our Party alone which should be interested in the clean administration of justice in the country and in the punishment of guilty persons. What I said on the debate on the Rules of Court I am going to say again here. The responsibility of administering the law is the responsibility of the whole House and the whole House should be interested in it. I am not going to make this a Party question in the slightest. I am going to leave this entirely to the mature judgment of the House. But I leave it to their judgment with the strongest recommendation that I can give and perhaps the House will pardon me for a moment if I say that at one period of my life the atmosphere of a criminal court was not completely strange to me. I leave it with the strongest recommendation that I can give to the House, knowing that nothing could be worse in the matter of the administration of justice in this country than that a guilty man should escape on a mere technicality.

I am sorry that the Minister is taking up this attitude on Section 5, because we on this side are also keenly interested in the administration of justice. We are interested in having the law administered in the most perfect manner that is possible. We consider that if sub-sections (b) and (c) of sub-section (1) are omitted and sub-section (2) left out that the Bill would be improved, because the courts have power under paragraph (a). Under paragraph (a) the court may, notwithstanding that they are of opinion that the 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. So that the judge has power to decide the question on a substantial miscarriage of justice without going any further. We say that the Bill should not give to the judge the power which belongs to a jury. It is a wrong principle to give a judge the power which is the power of a jury and it is because we are interested in the fundamental principle of law that we object to paragraphs (b) and (c). We believe that the Minister would get all he wants without these two paragraphs. The judge has full power, for if the judge considers that it is a case where a substantial injustice would be done and that there would be a miscarriage of justice he may dismiss the appeal.

I cannot agree with Deputy Little's interpretation. Deputy Little seems to think that sub-section (a) would cover sub-section (b). That deals with a completely different subject-matter. I would point out to Deputy Little and to the House generally that sub-section (2) is at present in the English Act and that it is at present in the Scottish Act. As a matter of fact, I have the Scottish Criminal Appeal Act, 1926, and it is, word for word, the same as this section which we are asking the House to introduce into this Bill.

"Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence and on the finding of the jury it appears to the Court that the jury must have been satisfied of 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 the 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."

So there is no wonderful departure here. It is the experience of other countries and the experience of our own courts we are going on when we ask the House to pass this sub-section. I promised on the Report Stage that I would add certain words to that sub-section. Deputy Rice has an amendment to this sub-section which I purpose to accept. On the Report Stage I will, myself, add those particular words. I mentioned that, I think, in my reply speech, on the first day. Perhaps the House would permit me to draw their attention to the words:

"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."

The court sees the facts which the jury found and nothing else, and they say those facts in law do not amount to the offence, either greater or lesser, that the jury found him guilty of, but they do refer to another offence. It is really a question of law they decide. They decide no new facts; they act simply on the finding of the jury.

The Minister said sub-sections (a) and (b) dealt with different subject-matter. I would like him to show the distinction by citing any case which would escape under (a) if (b) were not passed.

Certainly. Take the example I had. Suppose a man were properly found guilty of larceny, but a certain amount of illegal evidence had been admitted of matter which was not very relevant or important. Then under (a) the court would say no substantial miscarriage of justice has been done. But if instead of being found guilty of larceny he had been found guilty of false pretences though he should have been found guilty of larceny, then (a) would not apply at all, (b) would apply. I suggest to Deputy Little if (a) contains (b) what is the objection to having (b) in the Bill?

Because (b) contravenes a principle of law. It usurps the power of the jury. The other attitude under the case is—the jury has made a technical mistake, if you like, though I think the jury would not make a mistake if the charge were not wrong. In any case, I think in the case of (a) the judge would decide that there was not a substantial miscarriage of justice and would let the matter rest. By letting it rest it is not interfering with the jurisdiction of the jury.

Under (b) the judges are not using their judgment as far as facts go; they are taking the facts as found by the jury entirely. Under (a) they are, to some extent, exercising their judgment as to facts, because they decide whether or not the mistake which was made at the trial was an insignificant mistake. They decide that as a fact; under (b) they do not decide any facts at all.

It encompasses (b).

I cannot agree with the Deputy; (b) is not covered by (a) at all.

I think there is still a way of protecting the situation if one cannot save the whole business. I suggest that some words to this effect should be inserted. After the words "and pass such sentence" in the second last line insert the words "not more severe than the original sentence."

That is Deputy Rice's amendment.

I am not satisfied that this section should pass. I am looking at it simply as a layman and I think the only protection for the citizen is the protection afforded by trial by jury. I see here a means by which the judges would be able to say, by inference, that the jury thought so and so or must have thought so and so. I think that is a wrong principle. The point is that it is set out here "on the finding of such jury it appears to the court that the jury must have been satisfied of the facts which proved him guilty of that other offence..." There is inference there by the judges with which I do not agree. As to the question of prisoners getting off on technicalities, I take it that the technical processes of law have been built up in order to make it possible to administer justice properly and to prevent injustice. I take it that these technical processes have been developed from that point of view and I am not prepared to say that we should simply set those aside because a man might get off on a technicality. If these technicalities exist, I take it there is some good reason for their existence. The reason, in effect, is that there have been abuses or that it is foreseen that abuses would occur if these technicalities were not observed. Unless a better case is made by the Minister, I propose to oppose this sub-section.

Nobody in this House has a higher respect for the knowledge and experience in criminal law of the Minister for Justice than I have. I am exceedingly grateful that he is giving Deputies on his benches, and those allied with him, an opportunity of supporting this amendment. I propose to support the amendment in the name of Deputy Ruttledge. I can claim some slight experience in criminal courts in a number of capacities and in a variety of places. My experience is how what it was thirty-five years ago when I started in the humble position of an advocate defending the dock. My experience is now, as it was then, that it is a very dangerous thing to tamper with the existing principles of the criminal law. I entirely agree with what Deputy de Valera has said. When a man is tried by jury, the jury, let us say, finds him guilty of an offence. The Court of Criminal Appeal finds that that conviction is unsustainable. But that Court of Criminal Appeal, before whom he has never appeared in person, find him guilty of another offence and he is sentenced behind his back. I do not think that is fair. It would be introducing entirely unconstitutional procedure. I, with full conviction, support the amendment standing in the name of Deputy Ruttledge.

In reply to Deputy de Valera and to Deputy Wolfe, I should like to point out that this is an entirely new matter. The Court of Criminal Appeal is quite a new court. These are not technicalities that have grown up through the ages. Up to the passage of the Act which set up the Court of Criminal Appeal here, the finding of a jury was, for practical purposes, final. There were possibilities of a case being reserved on a question of law for the Court of Crown Cases Reserved. But that seldom happened and, on mere questions of fact, the finding of the jury was final. Prisoners were later given a right of appeal and you must bear in mind that it is only the prisoner, and not the prosecutor, who has the right of appeal. I submit to the House that that right of appeal which was given should be so safeguarded that it will not afford an avenue of escape for a guilty person but that it will carry out what was in the minds of those who framed it and will be an avenue of escape for the innocent and for the innocent only.

Amendment put.
The Committee divided: Tá, 58; Níl, 57.

Tá.

  • Frank Aiken.
  • Denis Allen.
  • Richard Anthony.
  • Gerald Boland.
  • Patrick Boland.
  • Daniel Bourke.
  • Seán Brady.
  • Robert Briscoe.
  • Daniel Buckley.
  • Frank Carney.
  • Archie J. Cassidy.
  • James Coburn.
  • James Colbert.
  • John James Cole.
  • Hugh Colohan.
  • Eamon Cooney.
  • Richard Corish.
  • Martin John Corry.
  • Fred. Hugh Crowley.
  • Tadhg Crowley.
  • William Davin.
  • Thomas Derrig.
  • Eamon de Valera.
  • James Everett.
  • Frank Fahy.
  • Andrew Fogarty.
  • Seán French.
  • Patrick J. Gorry.
  • John Goulding.
  • Seán Hayes.
  • Patrick Hogan (Clare).
  • Samuel Holt.
  • Stephen Jordan.
  • Michael Joseph Kennedy.
  • James Joseph Killane.
  • Mark Killilea.
  • Michael Kilroy.
  • Seán F. Lemass.
  • Patrick John Little.
  • Ben Maguire.
  • Seán MacEntee.
  • Séamus Moore.
  • Daniel Morrissey.
  • Thomas Mullins.
  • Thomas J. O'Connell.
  • Patrick Joseph O'Dowd.
  • John F. O'Hanlon.
  • Seán T. O'Kelly.
  • William O'Leary.
  • Matthew O'Reilly.
  • William Archer Redmond.
  • James Ryan.
  • Martin Sexton.
  • Timothy Sheehy (Tipperary).
  • Patrick Smith.
  • Richard Walsh.
  • Francis C. Ward.
  • Jasper Travers Wolfe.

Níl.

  • William P. Aird.
  • Ernest Henry Alton.
  • James Walter Beckett.
  • George Cecil Bennett.
  • Ernest Blythe.
  • Martin Conlon.
  • Michael P. Connolly.
  • Bryan Ricco Cooper.
  • William T. Cosgrave.
  • Michael Davis.
  • Eugene Doherty.
  • James N. Dolan.
  • Peadar Seán Doyle.
  • Edmund John Duggan.
  • James Dwyer.
  • Osmond Thos. Grattan Esmonde.
  • Desmond Fitzgerald.
  • James Fitzgerald-Kenney.
  • John J. Hassett.
  • Michael R. Heffernan.
  • Thomas Hennessy.
  • John Hennigan.
  • Patrick Hogan (Galway).
  • Richard Holohan.
  • Michael Jordan.
  • Myles Keogh.
  • Hugh Alexander Law.
  • Patrick Leonard.
  • Finian Lynch.
  • Séamus A. Bourke.
  • Seán Brodrick.
  • John Joseph Byrne.
  • Edmund Carey.
  • Mrs. Margt. Collins-O'Driscoll.
  • Arthur Patrick Mathews.
  • Martin McDonogh.
  • Michael Og McFadden.
  • Patrick McGilligan.
  • Joseph W. Mongan.
  • Richard Mulcahy.
  • James E. Murphy.
  • Joseph Xavier Murphy.
  • Martin Michael Nally.
  • John Thomas Nolan.
  • Timothy Joseph O'Donovan.
  • Daniel O'Leary.
  • Dermot Gun O'Mahony.
  • John J. O'Reilly.
  • John Marcus O'Sullivan.
  • Vincent Rice.
  • Martin Roddy.
  • Timothy Sheehy (West Cork).
  • William Edward Thrift.
  • Michael Tierney.
  • Daniel Vaughan.
  • Vincent Joseph White.
  • George Wolfe.
Tellers—Tá: Deputies G. Boland and Allen. Níl: Deputies Duggan and P. Doyle. Amendment declared carried.
Amendment put.

I move amendment 2 (a) on behalf of Deputy Ruttledge: "In sub-section 1 to delete paragraph (c)."

On the Second Reading I pointed out the objection I had to paragraph (c) as to paragraph (b), and I dealt with the reasons very fully. Here is a very fundamental principle of law being violated again. This is one which I think the Minister for Justice translated by saying that a man is not to be put in danger twice. That is a fundamental principle, and for the reasons I advanced with reference to paragraph (b), namely, that these principles have grown up with a view to protecting the private citizen against the organised powers of the community, I suggest that it ought not to be violated without very good cause shown. If a man has been tried and the Court of Appeal find that he has been wrongfully convicted, and the conviction is quashed on that account, that man should be allowed to go free.

Deputy de Valera repeated very much the same argument that he put on the Second Reading. I think that Deputy de Valera has misunderstood the Latin maxim, "Nemo debet bis vexari": that no man should be put in danger twice. The law, as it stood before the introduction of the Courts of Justice Act, which set up this Court of Criminal Appeal, was that a man after the final determination of the charge brought against him could never again be tried upon that charge. He had the right to plead in the old form of pleading in Anglo-Norman French: "Autre-fois acquit," if he had been acquitted; and "Autre-fois convict," if he had been convicted. That was a complete answer. If a man had been convicted and served his sentence, he could not be again charged with the same offence; and if he was acquitted of the charge, he could never again be charged with it. In Scotland there is a kind of half-way house—there is a verdict of "Not proven." That does not exist here. That principle still exists, and, as I understand that principle, it will exist whether the man is guilty or not guilty, whether this sub-section becomes law or not. The maxim does not mean that no man should be ever tried twice. Men are tried very often a second and third time. Whenever a jury disagrees—when there has been no final determination of the case—a man can be tried another time; or, if a nolle prosequi has been entered by the State, a man can be tried another time. It is only when there has been a final decision. Winding up the proceedings, so to speak, that he cannot be again tried.

What happens under this section, if this becomes law, will be: there is a verdict of "guilty" by the jury—that would be the final verdict at one time; it is not now—it goes to the Court of Criminal Appeal and they can say, if this becomes law, that the trial was unsatisfactory. The man may be guilty or he may be innocent, but, according to the course of the trial, it has not been satisfactory, and he will be sent down to be tried a second time. He is in exactly the same position as if a jury had disagreed. That is precisely what happens. He is no better or worse off than if the jury had disagreed. Deputies will notice that in case there may be any hardship upon the prisoner the question of costs is left to the discretion of the courts.

I submit that that is a badly-needed reform, and I ask the House, at any rate, not to defeat it by a "short head" as in the last race which we had. This is the considered opinion of the Chief Justice upon this matter—I am quoting from the "Irish Law Reports," of December, 1927, in a case called the Attorney-General v. Smith:—

"This appeal suggests a question whether it would not be desirable that the Court should have power in certain cases to order a new trial. It appears sometimes unfortunate that we have no alternative to quashing a verdict, where the complaint is simply that the real issues have not been tried at all, or that the manner of trying them has been so unsatisfactory as not to lead to a well-founded verdict."

That is not the opinion of an amateur; it is the considered opinion of the Chief Justice, who was, of course, giving judgment for three members of the Court—he was giving a judgment in which Mr. Justice Johnson and Mr. Justice Hanna concurred. That is an expression of the opinion of our judges who find defects in the working of this code as it is. It is a new code. If you are breaking through any old-established principles, they were broken through when an appeal was given in criminal cases. That was the breaking through —not anything we are doing now. We are dealing with a new Act passed in 1924 and we are dealing with it because we have found flaws in it, and, in the opinion of the judges who are administering it, this is a flaw. I would ask the House to pass this and I submit that it is a perfectly fair and proper provision. Our object ought to be to have the law perfectly fair, but not to have it in such a condition that it enables obviously guilty people to escape and dangerous criminals often to be at large—men who are a source of menace to the State to be at large— because there has been some slight error made in the trial of their case.

The Minister has said that the accused would be in exactly the same position as if the jury had disagreed. With great respect to the Minister I think that statement is entirely erroneous. If the jury disagreed surely the court has not power to order a new trial. If there is to be a new trial it is not the Court that determines whether there shall be a new trial or not. Rather it is the authorities, perhaps the Attorney-General or perhaps the Minister for Justice who will have to say whether when the jury disagrees the prisoner shall be brought forward once more upon the same charge. Therefore I think that the accused is in an entirely different position where, as is proposed by this section, the Court itself shall be given the power to order a new trial. The Court has not that power at present, that discretion rests entirely with the judicial authorities. But apart from that this is, in effect, introducing the Scottish system of "not proven." It is questionable whether that is a wise course or not.

When a citizen of this State has been convicted on a criminal charge and he has appealed against that conviction and the Court of Appeal determines that it was not a proper conviction, I admit, that that may not be exactly tantamount to acquittal but it should not be, I submit, for the Court to determine whether there shall be a new trial, or not. It should not be for the court to say this man should be brought forward again on the same charge. It should be rather as it was before the introduction of the system of the criminal appeal, a matter entirely for the Attorney-General or for the Minister for Justice. In that case he must be guided by the nature and character of the charge and the evidence that was adduced at the original trial and also by the conduct of the court in both instances. I do submit that it should not rest with the court itself to say that a man should be brought forward for re-trial upon a charge that the court has determined was not properly brought against him in the court below. The same argument, only to a greater extent, applies against this sub-section as against the previous one. It is no use repeating the statement made by myself and others on the occasion of the Second Reading of this Bill against these proposed incursions as I might describe them into the existing liberty of the subject in the State. I for one certainly if this matter goes to a division will vote in favour of the amendment.

I take it that as the Minister for Justice has left the last sub-section to the free vote of the House he will allow the same vote in regard to this present one. Deputy de Valera told us that all the arguments used against the last sub-section could be repeated against this one. I go, with Deputy Redmond, a step further than Deputy de Valera has gone, because not only can the arguments used against the last sub-section be used against this sub-section, but I go so far as to say this sub-section, creates such an innovation in the criminal law that the arguments are quadrupled against it. The Minister for Justice most fairly told the House that what it was proposed to do was to take away one of the oldest planks in the liberty of the subject, the right of pleading autrefois acquit or autrefois convict.

I do not take that away.

Mr. WOLFE

But you leave it in such a crude state that it is no good to the subject.

I beg your pardon, it is.

Mr. WOLFE

You are taking away what was always understood by the plea of autrefois that no man should be tried twice for the same offence. If that is not taken away by this sub-section, then I do not know what is. It takes away from the subject the right, to a great extent, to the main principle of liberty which has been enjoyed for hundreds of years by the subject, namely, that no man can be put on trial twice for the same offence. These principles are being taken away by the sub-section.

Mr. WOLFE

Of course they are. It is a fact that a man can appeal against his conviction and if he successfully appeals what this sub-section attempts to do is to take away from him the right which he has always enjoyed that he cannot be put on trial twice for the same thing. He has been tried once and if he appeals and is successful this sub-section gives power to have him put on trial again for the same offence. I submit to the Minister that in the interests of justice and constitutional freedom and in the interests of the liberty of subjects in the Saorstát nothing could be more prejudicial than to make an innovation entirely unknown to the criminal law and to destroy one of the oldest planks in that system, and any such inroad should be resisted by every citizen of the State.

The suggestion is made that because a man escapes by a technicality he should not be put on trial again. Technicalities form portion of the rights to which a man charged with a criminal offence is entitled and if you take that right from him you will be interfering with his liberty. This is a sub-section which no criminal lawyer could for one moment defend. I cannot understand what induced the Minister for Justice— himself an able and experienced criminal lawyer—to try and put on the Statute Book such a law as this. He tried to get some authority, but the only authority he could get was a judge who never saw the inside of a criminal court. I do not want to criticise judges but I ask the Minister to give some authority from anyone experienced in criminal law in favour of this. I do not think he will find any book or any such authority. He has said something about having dangerous criminals abroad. Criminals are not the only cause of danger. Judges who sit in criminal appeal without any experience of criminal law are, themselves, a danger, and it is left to a court such as this to say whether a man is to be twice imperilled. I am opposed to that and I shall continue to oppose it.

I agree with every word which Deputy Redmond and Deputy Wolfe said in connection with this amendment. The arguments which held good in the last case hold good in this even with greater force. When the Minister was reading the quotation from the Chief Justice it became quite clear to me that he was referring to cases in which mistakes were made by those who drew up the indictment. There is, however, another principle involved. The whole machinery of justice is there against a man who is being tried. The law authorities have ample opportunity of making the charge against him absolutely correct, so that if they make a mistake they must stand by it. There was a judgment in the courts recently which was of a political nature and in which Mr. Justice Wylie gave a decision against the law authorities, pointing out that if a mistake is made on the pleadings the authorities had ample opportunity of doing the thing properly, and so they were not going to get an opportunity of going back and mending their hands —that the man must be tried there and then on the merits of the case as presented. It is unfair to the individual that the machinery of the law could be used so that frequent changes could be made by the authorities. The reference to new trials after disagreement by the jury is, in my opinion, unfortunate from the point of view of the Minister, because anybody with a knowledge of Irish history knows very well how that power of the law officers has been abused in the past, and how when disagreements of juries took place in agrarian and political cases the prisoners were put back time after time to be re-tried simply because it suited those in office to do so.

That is an unfortunate precedent to quote in a case like this, where it might be argued that similar prejudice might be used to put prisoners back for re-trial. Although I admit that it may be a good thing to follow the experience of a country like England or Scotland on a particular point of law, and no one will deny the capability of lawyers there, we must take into consideration that conditions in England are different to those prevailing here. The amount of crime in England, possibly owing to the large industrial population, is considerably greater than here. Undoubtedly there is more crime in England within a week than there is in a year in Ireland. We are not on all fours with the position which exists in England, and it is not necessary for us to be as severe as they. For that reason it is just as well that we should act on the principle of giving the greatest possible amount of mercy, and, in my view, it is better that ten criminals should escape through technicalities than that one innocent man should suffer an injustice in Ireland. If it were otherwise, and if Ireland were a country where crimes of various kinds were very numerous and where a particular situation had to be dealt with, it might be a different matter. That, however, is not the case, and I suggest to the Minister for Justice, in view of the temper of the House and the vote recorded on the last amendment, that he ought to withdraw the amendment.

The attacks made on this section started off with a most extraordinary attack made by Deputy Redmond. He said that the courts had power to order a new trial and that it rested with the Department of Justice or with the Attorney-General to say whether there should be a new trial. I was astonished to hear such a statement from Deputy Redmond who, after all, ought to know something of the existing powers of the Attorney-General. Whether under this section a new trial is ordered by the court or not, the power of entering a nolle prosequi remains with the Attorney-General, and Deputy Redmond ought to be aware of that fact. Deputy Wolfe was tremendously eloquent about the liberty of the subject and made a very moving speech, but it appeared to me that he was shedding tears about a danger which exists entirely in his own imagination. He started off by talking about the sanctity of the liberty of the subject. We have extended by our legislation the cloak of liberty which is put around the subject to protect him. We have given this Court of Criminal Appeal, which at common law did not previously exist, and it is because we have extended it that we do not want to see the extension which we have given, the added safeguards we have given, to the liberty of the subject, abused. We want to see that the added safeguards, the added protection which we have given to the liberty of the subject shall be properly used and shall not be abused. Deputy Wolfe said that we were taking away the old sacred plea "autrefois acquit, autrefois convict." We are not. When there is final determination of a case, when ultimately and finally the jury hear a case, and when on a new trial they come to a conclusion that a man is either innocent or guilty then such case is finished. In the old time the moment a jury found a man guilty he had to suffer whatever sentence the law imposed on him. That does not necessarily happen now. He has this Court of Criminal Appeal to go to. He has not been convicted. His sentence, so to speak, is in the air. He has been convicted on paper, perhaps, but not in fact. He does not go to prison or pay a fine. He remains in the position of a man about whose case the jury had disagreed.

I do not like to interrupt the Minister, but I must ask him whether, in a case where there has been disagreement by a jury, the judge presiding over the court has power to order a new trial?

Of course he has not, but automatically, without any order of the court, the Attorney-General can put him on trial.

He can, but he need not.

No. He can enter a nolle prosequi if he likes. If Deputy Redmond will read the Courts of Justice Act he will see that the Attorney-General could at any time enter a nolle prosequi.

I am quite aware of that, and do not require to be lectured by the Minister, or anybody else, on that point, that the Attorney-General has power to enter a nolle prosequi. That is not my case. The Minister says that the prisoner is in the same position as if there had been disagreement by the jury. If that is so, can the judge of the court in which the jury has disagreed order a re-trial or can he not?

Of course he cannot, and the Deputy ought to know that.

Then how is he in the same position?

I think counsel on both sides ought to keep their tempers.

How can the Minister justify his statement that the man is in the same position where a jury disagrees as in a case where the court quashes the conviction?

I thought I made that clear to the House. As to Deputy Little, he talked a considerable amount about political cases, and his whole speech seemed to be inspired by some political view. We must bear in mind the fact that political cases are a very small proportion of the cases tried. There might never be a political case to be tried under this section which we are now discussing.

We are not dealing with political cases. As I say, we are dealing with the ordinary administration of justice and ordinary crime. We want to have a good and a fair system of administering justice. Deputy Little says that the authorities have got great power, that they make mistakes and should stand by them and that they should not be allowed to mend their hand. That has nothing to do with this sub-section. This sub-section does not deal with mistakes made by the authorities. This sub-section deals entirely with mistakes made by a judge or jury. The particular case that I mentioned is the case of a judge, speaking of his own knowledge of matters that should have been proved, a relationship of certain trades he happened to know and which he happened to state to the jury without calling evidence. The whole verdict was quashed. Whether the man should have been convicted or not, I do not know. It was only a case of larceny and was not important. Deputy Wolfe made an attack on the court which decided this particular case and he said that the Chief Justice had never been inside a criminal court. I do not know whether he was or not, but I know that he is a judge of very great eminence, and I believe he has the entire confidence of the community, whatever remarks Deputy Wolfe might make about him. To say that Judge Johnson and Judge Hanna had never been inside criminal courts, as Deputy Wolfe said, is going a little too far, because I fancy few men have defended more prisoners in the country than Judge Hanna.

The Minister for Justice quoted the Chief Justice in regard to this matter. I would like to hear the quotation again, because I do not think it could be taken as a definite judgment.

The quotation reads: "This appeal suggests a question whether it would not be desirable that the court should have power in certain cases to order a new trial. It appears sometimes unfortunate that we have no alternative to quashing a verdict where the complaint is simply that the real issues have not been tried at all, or that the manner of trying them has been so unsatisfactory as not to lead to a well-founded verdict."

I would suggest to the Minister for Justice that the fact that the Chief Justice raised this particular query, in which he suggests that it is a question that could be considered, is a very different thing to giving a definite opinion. He may be suggesting that we have not got these particular powers, but I do not think that we ought to take it as a definite opinion of a court of law.

He could not make the law.

I know. He does not state it in such a way that it should be quoted here as a definite expression of opinion by the judge. That was why I was anxious to have it re-read. The Minister for Justice spoke about a final determination in these cases. I take it that the object is to get some final determination. By putting them back for re-trial, then, you are defeating the principle that there must be some final determination, and I think the Court of Appeal ought to be the final determination in this case. I need not repeat what I said about legal technicalities. It would probably be all right for a layman to sneer at legal technicalities because he would not understand them, but it seems to be wrong for a lawyer to sneer or to talk slightingly about legal technicalities in that way. We all know these technical processes have been built up for the definite purpose of seeing that justice is properly served, and that a lot of the dangers in connection with the administration of justice have to be prevented by these legal technicalities and by being rigid in their observance. Where a layman attempts to try a case he is not conscious of the dangers which lawyers throughout the centuries have been trying to avoid. I take it that if a person is guilty of a crime that the community, through its organisation, has the power and the authority to pursue such an offence in a proper and legal manner, and, if the person is guilty, to go through the legal way of finding him guilty. In the first instance, if he has not been properly proceeded against, I think it is most unfair that the door should be open to the vexatious continuation of a prosecution in this manner.

It seems hardly fair to Deputy Wolfe's argument to argue about the present personnel of the Courts. It may be that at the present time one or two judges have a considerable knowledge of criminal work but the law is not going to be made for these judges only. This thing is going to be here for all time. It is conceivable you may have good judges, but they may not be suitable for criminal work.

Is not that an argument for a re-trial?

It is an argument against giving them any extra powers whatsoever, as they have not experience in that kind of work.

The worse the judge is, the more necessary it is to have the sub-section, because if the judges are as bad as Deputy Little says—he is talking about a theoretical case, of course—then it would be very dangerous to have them finally determine a case at all. It would be much better to have the facts found again by a jury.

resumed the Chair.

The only thing to do after you pass this is to appoint as bad judges as you can.

The Committee divided: Tá, 51; Níl, 58.

Tá.

  • Frank Aiken.
  • Denis Allen.
  • Gerald Boland.
  • Patrick Boland.
  • Daniel Bourke.
  • Seán Brady.
  • Robert Briscoe.
  • Daniel Buckley.
  • Archie J. Cassidy.
  • James Coburn.
  • James Colbert.
  • John James Cole.
  • Hugh Colohan.
  • Eamon Cooney.
  • Richard Corish.
  • Martin John Corry.
  • Sir James Craig.
  • Tadhg Crowley.
  • William Davin.
  • Thomas Derrig.
  • Eamon de Valera.
  • Frank Fahy.
  • Andrew Fogarty.
  • Seán French.
  • Patrick J. Gorry.
  • Patrick Hogan (Clare).
  • Samuel Holt.
  • Stephen Jordan.
  • Michael Joseph Kennedy.
  • James Joseph Killane.
  • Mark Killilea.
  • Seán F. Lemass.
  • Patrick John Little.
  • Seán MacEntee.
  • Séamus Moore.
  • Daniel Morrissey.
  • Thomas Mullins.
  • Thomas J. O'Connell.
  • Patrick Joseph O'Dowd.
  • John F. O'Hanlon.
  • Seán T. O'Kelly.
  • William O'Leary.
  • Matthew O'Reilly.
  • William Archer Redmond.
  • James Ryan.
  • Martin Sexton.
  • Timothy Sheehy (Tipperary).
  • Patrick Smith.
  • Richard Walsh.
  • Francis C. Ward.
  • Jasper Travers Wolfe.

Níl.

  • William P. Aird.
  • Richard Anthony.
  • James Walter Beckett.
  • George Cecil Bennett.
  • Ernest Blythe.
  • Séamus A. Bourke.
  • Seán Brodrick.
  • John Joseph Byrne.
  • Edmund Carey.
  • Mrs. Margt. Collins-O'Driscoll.
  • Martin Conlon.
  • Michael P. Connolly.
  • William T. Cosgrave.
  • Michael Davis.
  • Peter de Loughrey.
  • Patrick Hogan (Galway).
  • Richard Holohan.
  • Michael Jordan.
  • Myles Keogh.
  • Patrick Leonard.
  • Finian Lynch.
  • Arthur Patrick Mathews.
  • Martin McDonogh.
  • Michael Og McFadden.
  • Patrick McGilligan.
  • Joseph W. Mongan.
  • Richard Mulcahy.
  • James E. Murphy.
  • Joseph Xavier Murphy.
  • 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.
  • John J. Hassett.
  • Michael R. Heffernan.
  • Thomas Hennessy.
  • John Hennigan.
  • Martin Michael Nally.
  • John Thomas Nolan.
  • Bartholomew O'Connor.
  • Timothy Joseph O'Donovan.
  • Daniel O'Leary.
  • John J. O'Reilly.
  • John Marcus O'Sullivan.
  • Martin Roddy.
  • Timothy Sheehy (West Cork).
  • William Edward Thrift.
  • Michael Tierney.
  • Daniel Vaughan.
  • Vincent Joseph White.
  • George Wolfe.
Tellers: Tá: Deputies Allen and G. Boland. Níl: Deputies Duggan and P. Doyle.
Amendment declared lost.

I am not quite certain if the next amendment in Deputy Ruttledge's name is not purely consequential.

If I may say so, I think the amendment is entirely dependent on the amendment we have just voted upon.

Then I do not see what we can do except withdraw it, unless you want a retrial. On the other hand, legal members of the House might have something to say on the matter.

Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
Sections 6 to 8 agreed to.

As regards Section 9, I would like some information as to the necessity for appointing two extra Circuit Judges. I have been making inquiries and I find that there are Circuit Judges to spare half the year who could come to Dublin and do some of the work in arrears there. I have been told, and I have taken the opportunity of verifying it, that there are districts where the Circuit Judges work on an average four months in the year.

Mr. HOGAN

That is just what I do not want to say.

Do not give them away.

Mr. HOGAN

I did not expect the Minister would ask me that question, but anyhow I was prepared for it. The position is that civil bills in most districts are under £25, and they go to the District Courts, and for five or six months of the year there are Circuit Judges idle and they could take up this extra work. Could the Minister give us some information upon that point? I am not making this statement offhand. I have taken the trouble to find out whether it is true, and I am satisfied that it is true.

There is a very considerable amount of arrears in Dublin, and there is also a considerable amount of arrears in the North-West, and in what is called the midland counties. These are the only places where there are arrears. In the western circuit I know myself that the judge there works very hard. It is very difficult for him indeed to cope with all the business, and I think it is exactly the same with all the other judges. I certainly have satisfied myself that it would be impossible to ask any of the Circuit Judges to do more than they are doing. If you take Deputy Hogan's area, you will find that that is what used to be the area of the County Court Judge of Clare. The one Circuit Judge is now doing the County Clare, the County Kerry, and the County Limerick. In each of these areas there used to be a County Court Judge, and now there is a Circuit Judge doing the work of the three counties. That is an example of the extra amount of work that is put on the Circuit Court Judges. Every one of them is hard-worked, and to add to the jurisdiction of any of them would be quite impossible.

I am not arguing in favour of the County Court Judges or that we are justified in having one in each county. What I am arguing is—and the Minister has not denied it so far—that there are Circuit Judges who do four or five months' work in the year, and in some large towns with three or four thousand of a population they finish in two hours.

I do not know where that unhappy place is, but it must be rather a lean area for persons of the legal profession. I must, however, assure the Deputy that I am perfectly satisfied that the Circuit Judges are working full time, and I must categorically deny the accuracy of the statement that there are any judges who are working only four months in the year.

CAPTAIN REDMOND

I beg to support that.

The work of the Circuit Judge is going to be increased considerably, owing to the recent decision and to Section 8. The recent decision will result in the judge having to do the work which the Master of the Court did previously. It has not yet been defined what the jurisdiction of the Master of the Court is going to be.

We have finished with Section 8.

As a matter of fact, Section 8 was passed rather quickly. I happened to be looking up another matter when it was passed—that the Minister would find some other way of meeting the difficulty caused by a recent certain decision of the court, and it is a very serious difficulty—this question of what is a judicial decision. It is only a judge can define that. The Master of the Court, under the recent decision, can only decide certain matters where questions of law are not involved. Questions of law may be involved in any matter and will be pleaded in any case. The practical effect of that decision is to take away the whole jurisdiction from the Master of the Court. What would happen then is—his functions are gone. The object here, however, was to save the time of the judges. That business is going to be thrown back on the judge. I would like to ask the Minister what way he proposes to deal with that.

My answer is that until there is a real determination by the court of what is the meaning of the words "judicial act" it is impossible to do anything. The courts have not usually decided. They have given no definition. Perhaps the judgment of Mr. Justice Murnaghan is the most enlightening of them, but still it does not lay down any general principles from which it is possible to infer what powers are to be given to the Master at the moment. But if you assume that the sort of questions he had been dealing with are questions which he cannot, according to the Constitution, deal with, then either one of two things will have to be done; you will have to amend a section of the Constitution or else the Master is not to exercise these powers. For the present, at any rate, we will not amend the Constitution; we will simply have to try and carry on for the present, at any rate, giving the Master only subordinate powers. I do not think at the moment the difference would be sufficient for the convenience of parties to bring in a Bill—though I daresay it would be non-controversial—to amend that section of the Constitution by putting in a few words. That is our attitude.

This is really a bona fide matter of doubt. Could it be dealt with by a further definition as to the powers.

I do not think so, because the powers are laid down by the Rules of Court and the question is whether the Rules of Court are or are not ultra vires the Constitution.

Supposing we were to say by a further definition that the Rules of Court are not ultra vires?

No. We can only exercise our powers to the full; we cannot add to them.

This is purely an abstract case; no one has an axe to grind. It is merely a matter of classification and if a clause in this Act stated that we were to draw the line there by way of a further definition I think that would meet it.

I gather the same question would arise on this Act as would arise on the Rules as to whether this Act was ultra vires the Constitution. There would have to be a section put into that Act such as "notwithstanding anything in Section so-and-so in the Constitution judicial powers shall be exercised by the Master in the following cases." That would be an amendment to the Constitution. I do not think this question sufficiently pressing at the moment to amend the Constitution; if it becomes more pressing I am sure we will be able to deal with it.

So long as you do not appoint another judge to deal with the accumulation of work.

Question—"That Sections 9 and 10 stand part of the Bill"—put and agreed to.
SECTION 11.

Amendment 3 is out of order, it being outside the scope of the Bill.

Amendment 4 not moved.
Question—"That Section 11 stand part of the Bill"—put and agreed to.
SECTION 12.
(1) In addition to the number of Justices of the District Court (in this Act referred to as ordinary justices) prescribed by section 68 of the Principal Act, there may be appointed not more than four additional justices of the District Court (in this Act referred to as assistant justices) to discharge the duties imposed by this Act on assistant justices.
(2) An assistant justice shall be a Justice of the District Court within the meaning of the Principal Act and accordingly all the provisions of the Principal Act in relation to Justices of the District Court shall, so far as they are not inconsistent with this section, apply to assistant justices.
(3) The age of retirement of an assistant justice shall be 65 years.
(4) Every assistant justice shall receive a salary of £800 per annum, and such salary shall be charged on and be payable out of the Central Fund or the growing produce thereof.
(5) An assistant justice shall be eligible to be appointed an ordinary justice.
(6) An assistant justice may be temporarily assigned by the Minister from time to time as occasion requires as an additional justice for any district and every assistant justice while so assigned to any district shall have in relation to such district and concurrently with the ordinary justice permanently assigned to such district all the privileges, powers and duties for the time being conferred or imposed by law on the Justice of the District Court assigned to such district.

I move amendment 5:—

Before Section 12 to insert a new section as follows:—

(1) Sections 87, 88 and 89 of the Act 30 and 31 Victoria, chapter 114, are hereby repealed.

(2) An appeal from any judgment decree order or decision of the Circuit Court in an Admiralty cause shall lie under the provisions and subject to the terms and conditions of Section 61 of the Principal Act.

This is an amendment the object of which is to get rid of some confusion and doubt which at present exists with regard to the right of appeal in Admiralty cases. The sections which I seek to repeal, Sections 87, 88 and 89 of the Act 30 and 31 Victoria, chapter 114, give a right of appeal from the Local Admiralty Court to the Admiralty Court of the High Court. There is also a general right of appeal given by Section 61. My proposition is that the confusion and doubt which now exists should be got rid of by repealing these sections and making it clear that "an appeal from any judgment decree order or decision of the Circuit Court in an Admiralty case shall lie under the provisions and subject to the terms and conditions of Section 61 of the Principal Act." In other words, put all appeals on the same footing and get rid of the doubt that exists where there are two statutory rights of appeal, one to one court and one to another.

I think it is pretty plain under the Act that the ordinary appeal lies in the Admiralty cases as well as in the other cases, but if there is any doubt I will accept the Deputy's amendment.

Amendment put and agreed to.

Tairigim leasú a sé:—

To insert before sub-section (2) two new sub-sections as follows:—

(2) Of the first four Assistant Justices appointed under this Act two at least shall be persons in regard to whom the Minister certifies under his hand that they have a competent knowledge of the Irish language, and in case the said Justices shall die, retire or otherwise cease to act they shall not be replaced except by persons with a like qualification.

(3) After the 1st January, 1935. no person shall be appointed as Assistant Justice unless the Minister shall certify under his hand that such person has a competent knowledge of the Irish language.

Is dó liom go bhfuil gá leis an leas-rún so. Tá obair mhór ghá dhéanamh ins na cúirteanna i dTír Chonaill agus i nGaillimh. Dá mbeadh na breithúin ar a laetheanta saoire ins na háiteacha so, cé a dhéanfadh an obair? Dá gcnir fí Béarlóir chun na n-áiteanna úd, bheadh sé mar droch-shampla do na daoine annsin. Is é mo thuairim go mba cheart, agus gur mithid, a thuille Breithiún go bhfuil Gaedhilg acu do thogha. Níl aon mhaith a bheith ag cainnt mar gheall ar an nGaeltacht do shabháil agus an teanga do shábháil má thoghaimíd Breithiúin chun dul isteach san nGaeltacht i rith na laethe saoire agus gan aon Ghaedhilg acu. Mar adubhart cheana, tá obair mhaith ghá dhéanamh agus is ceart leanúint di agus a thuille Breithiún do thoga ag a bhfuil an Ghaedhilg. Isé sin an fáth go gcuirim an leas-rún so os cóir an Tighe.

I regret that I cannot accept Deputy Fahy's amendment because it is not practicable at the moment. It is highly desirable, as the Deputy said, that in the Gaeltacht—in Tirconaill and Galway and other counties—there should be judges able to speak Irish. As a matter of fact, the permanent District Justices in both Tirconaill and Galway are able to speak Irish. But the difficulty is that the number of Irish-speaking persons who would be qualified and suitable for this position is very small. As a matter of fact, I do not know of even one—that is, a person of good standing and ability with a knowledge of Irish, who would be willing to accept the position. It is of the utmost importance that in the Gaeltacht the poor people should have their cases heard by competent judges —by men of ability and standing. It would be a cruelty to the Gaeltacht and a serious injury to the Irish language if an incompetent person were appointed solely because he knew Irish. It would not help Irish at all; it would do harm. While I have the utmost sympathy with Deputy Fahy's amendment, I am afraid that, on practical grounds, I cannot accept it. The amendment is divisible into two parts —one part has reference to the present and the other to the future, from 1935 on.

I dealt only with the first portion in my speech.

They hang together. As far as the future is concerned. I might possibly be able to help the Deputy to some extent. But 1935 would be too near a date. We would probably have to put it off until 1940, or later than that. Before we can have barristers and solicitors who are qualified and competent to speak Irish and who also have spent a sufficient length of time at the Bar, a considerable time will elapse. I would venture to suggest to the Deputy that this is a matter which could come up again on some future occasion. The general view of the Executive Council on this whole question, as the Deputy knows, is contained in their comments upon the recommendations of the Gaeltacht Commission. They set out there that in view of the fact that the use of Irish in the courts is handicapped because of the few solicitors or barristers who are capable of doing their work in Irish, the Government is of opinion that no person who is under the age of 16 years at the date of the issue of the White Paper should be admitted to be a barrister or solicitor without a competent knowledge of Irish. That is the Government policy—to try and secure that that be carried out. At the moment, there are not a number of qualified persons who could be appointed to the positions. If you take the Dáil, there are very few persons who can really carry on debate in Irish. I most frankly confess that I found it difficult to follow portions of Deputy Fahy's speech, although he is very clear. There are not, at the moment, sufficiently qualified people with a knowledge of Irish to make this amendment practicable.

I spoke only on the first portion of the amendment. I did not refer to paragraph 3 at all. We are told that 1935 is too near a date. We are told, in the Gaeltacht Report, that one of the obstacles to the advancement of the national language is the law. I do not know that the Incorporated Law Society or the Benchers have ever been great advocates of the Irish language. I know that there are charters, and that it is very difficult to make Irish compulsory for the examinations. But it could be done indirectly by a definite enactment that no appointments be made unless of persons with a knowledge of Irish. That might speed up the learning of Irish by the two branches of the legal profession. I should like to see some definite date fixed from which this amendment would be operative. If it is not to be 1935, then what date is it to be? I should not think 1935 too soon, considering that Irish is being taught so well in the primary and intermediate schools and that we have compulsory Irish in the National University. I wonder what the National University has been doing if, during the last 13 years, it has not turned out men who, by 1935, would be competent to discharge the business of the courts in Irish, either as justices or as advocates. If the year 1938 were fixed, it would give the ten years which is generally required at the Bar before a barrister is appointed to the bench, and it would give ten years to qualify in Irish. But some definite date should be fixed. If the Minister cannot find two or four assistant justices qualified in Irish, would he even give a promise that he would appoint one Irish-speaking Justice out of the four?

I am afraid I could not give that promise.

Members of both branches of the legal profession are eligible for these appointments. The Minister could surely find one Irish-speaking practitioner in the 26 Counties who would be qualified? Of course, I know that the Irish-speaking lawyers are all such able men that there are very few of them anxious to take up these posts. They are too well off already. I should like to have some statement from the Minister as to what date the second portion of my amendment would come into operation.

I happen to know one very good Irish speaker at the Bar. He is a man of considerable standing at the Bar. He was approached and asked to take a District Justiceship but he refused. That was when the first appointments were being made. The same gentleman would still refuse. I would find it very difficult to fix upon an exact date. I do not think I could fix it for the immediate future because some time would be necessary. There are people already at the Bar who are now too old to learn Irish. It would be unfair to cut them out for all time—men who have already been called and who would be the next persons to go on. Such a provision would require very careful thinking out. It would have to refer to persons called to the Bar after a certain date and to state that such persons would not be appointed to these positions unless they had a competent knowledge of Irish. That is the only way we could work it out. When I say "called to the Bar" I include admission as a solicitor. That is the only way the matter could be worked out in actual practice and something of that kind could be done.

I support Deputy Fahy in this amendment. As I said on the Second Reading, we ought to be able to get along without having to appoint four Assistant District Justices. Even at the start, if you were not able to get two Irish speaking justices, as Deputy Fahy suggests, I think if you were able to get one, you should only appoint three justices. That would get over my objection to appointing the whole four. The question is: what is going to be the policy of the Government with respect to Irish speaking justices? It would appear from what the Minister for Justice stated that there is very little hope, in our lifetime, of seeing the law administered mainly through the Irish language, even in those areas in which the ordinary language of the people is Irish. If one of the justices in these areas requires to be replaced and you do not appoint one at least of the assistant district justices who will be an Irish speaker, it will mean that the work in that area will have to be put aside until such time as the permanent justice returns.

The whole object of this Bill is to meet the case of justices going on vacation, accumulation of work and so on. The situation in the Irish speaking areas is not going to be met by this Bill unless at least one of these justices is an Irish speaker. I do not see any reason why we should not insist on having two of these justices Irish speakers at this stage. I have not examined the names of persons who would be eligible for these appointments but I cannot satisfy myself that there are not outstanding men of ability at the Bar who know Irish and who would be prepared to take these positions. I have to take the assurance of the Minister that he has tried to get these men. At least, he has suggested that he has tried, and I take it that he has gone through the list and endeavoured to ascertain whether there were such men available or not.

No, because I know the conditions at the Bar generally. I know the solicitors also—so far as any applications have come in for the position.

A priori, I for one, believe it is not so—that you cannot get suitable people for these appointments who know Irish. Until it is proved to me satisfactorily, until I have no doubt in my mind on that matter, I think we ought to insist on getting two of these proposed Justices who know Irish. The present condition is bad as far as the administration of the law is concerned, as is admitted by the Government. Are we not going to take some steps to amend that condition of things? I think we ought to do it now, and I hope that Deputy Fahy will hold firmly by his amendment.

The Minister has thrown out a very ominous suggestion as to an amending clause which might be brought in providing that the appointment of an Assistant Justice should depend upon the date of his being called to the Bar.

Or admitted a solicitor.

Mr. WOLFE

Or admitted a solicitor. The Minister must remember that on the passing of this Act in 1924 an honourable arrangement was come to with his predecessor, which was honourably carried out, that these positions should be divided "fifty-fifty" as between the barristers' and solicitors' professions. That arrangement was carried out in the first instance, and I think I can claim, and that the Minister will bear me out in saying, that the members of the solicitors' profession who were appointed District Justices have been an ornament to it, and that they have discharged their duties with the full advantage that their previous practice and knowledge of the old justices' jurisdiction gave them. They had unusual opportunities as solicitors of learning the duties of District Justice. I hope that that honourable undertaking, at the end of four years, is going to be carried out and that in future, as in the past, these positions will be divided "fifty-fifty." Looking back at the appointments made of temporary justices since 1924, I am afraid, perhaps unintentionally, that there has been some breach of the undertaking and that for some years past, at all events, the positions of temporary justices have largely, if not entirely, been filled by barristers. I do not think that is fair, and I hope we shall get an assurance from the Minister that that, which I regard as a much more serious objection than the one raised by Deputy Fahy, will be put right.

There is also a further objection. Cork boasted that it was one-eighth of the entire of Ireland, and so far as the partitioned portion of the country is concerned, you may say that Cork is practically the entire of Ireland. Yet, from the city of Cork, and from the great West Riding of the county, I do not think a single District Justice has been appointed. I hope that that also will be put right and that the Minister will learn the geographical position of Cork.

The Minister seems to be opposed to this amendment merely on the ground of expediency. He says that at the moment he is not in a position to find barristers or solicitors who have a competent knowledge of Irish.

And are competent to do the work.

And willing to take the posts.

I accept the corrections. I oppose this amendment, not on the ground of expediency, but on the ground of principle. The Minister may find it easy to ride upon two horses; I do not. The Minister voted— at least I presume he did—with his Party for the appointment of an official of the House who, admittedly, did not claim to have a competent knowledge of Irish. I do not think that it would have been impossible to have found someone in this House who had a competent knowledge of Irish to occupy that post. I voted in favour of one who had not a competent knowledge of Irish. I did so because, as I said then and as I say now, I do not believe that compulsion in any class of appointment in the way of knowledge of Irish is the best means of furthering a knowledge of Irish. In order that a Judge or District Justice should be a proper person to occupy any of these positions, is it seriously contended that, at any rate, in nine-tenths of the country, a knowledge of Irish will make him a more competent Judge or Justice I presume it is not. I presume that the whole object of this amendment is, as the movers of it think, to propagate a knowledge of and the use of the Irish language. I believe that it not only will not succeed in that direction, but that it will actually have the opposite effect. I am against the compulsory principle in regard to the appointment of Judges or Justices, just as I am against it in regard to the appointment of a dispensary doctor or a Leas-Cheann Comhairle. For that reason I oppose the amendment.

It would have been far more honest on the part of the Minister if he had followed the course he adopted in voting for the Leas-Cheann Comhairle and said that it was not to be the future Government policy that positions should be filled by people who had a competent knowledge of Irish in preference to those who might perhaps have a more competent knowledge of the subject under which they would have to exercise their functions in their new appointment. That being my position. I think that the suggestion of the Minister, that at some future date it might be possible to accede to the request of the mover of the amendment, is all moonshine. He might have made the same suggestion in regard to the appointment of the Leas-Cheann Comhairle, but no such suggestion was made. Why should it be made in regard to these appointments? I do not know what a competent knowledge of Irish means. Who is to judge the competency of that knowledge and to say whether a barrister or solicitor who applies for one of these positions has a competent knowledge of Irish? Will he have to pass an examination, and what will be the character of and who will be the examiners in that examination?

To my mind, a competent knowledge of Irish would be a very good thing in Irish-speaking districts. It might be possible to get people qualified in other directions who have that knowledge. At the same time, when one realises that there is practically no one in this country who cannot speak English, and that there are few who can speak Irish, the proposal to make Irish compulsory for judicial offices, any more than in any other office, is, in the first place, a wrong principle in regard to the particular appointments to be made, and, in the second place, a wrong way of bringing the Irish language into more prominence in the daily life of the people. I wonder when these gentlemen who might have a competent knowledge of Irish are appointed, how often they will use the Irish language from the Bench. How often is it used in the Dáil? I do not know whether there are any Circuit Court Judges with a knowledge of Irish, but I know that there are District Justices. How often is it used by them? It may be used in Irish-speaking districts, but when they are appointed to districts which are not Irish-speaking, how, I ask, is that going to advance the knowledge and learning of Irish in those districts? How often is the Irish language used by those District Justices when administering the law? I feel that in the first place, on principle, and even if the principle were not there, in the matter of expediency, I must oppose the amendment.

May I ask the Minister did he give an undertaking that he was going to institute the principle in another form?

No. I did not give any undertaking; I simply flung that out as my view of the only way in which the principle that Deputy Fahy was advocating could be carried out, without injustice to the present men who are members of the Irish Bar or who are qualified solicitors in this country.

Would the Minister tell us how he proposes to meet the case where the Assistant Justice is required in an Irish-speaking district?

I am going to deal with that together with other points when I come to speak.

I oppose this amendment, and for this reason—that the amendment, if adopted, will leave the Minister no area of choice from which to appoint District Justices. The number of persons, so far as my knowledge goes, who are competent to speak Irish —that is to say, those who have such a knowledge of Irish that they can conduct proceedings in court in Irish—is so restricted that he has no area of choice. To my mind, the Minister, who considers his responsibility and considers the extremely onerous duties that a District Justice has to discharge, must take gravely into consideration the qualification by temperament, by training and otherwise, of the person he proposes to appoint. The rights of poor people are very gravely affected by the qualities of the Justice. As things stand at present, there is no area of choice. To my knowledge there is not a sufficient number of persons who have a knowledge of Irish and who can show at the same time that they are persons who could decide judicially as between man and man in those cases that come before the District Courts. For some reason or other I do not think that Irish is used to a great extent in the courts, even by persons with a knowledge of Irish. I do not pretend to know why that is so.

I am aware of the fact that in Clare, which Deputy de Valera represents, and where there is a considerable number of persons who speak Irish, there was, for a number of years, an interpreter who received a salary as interpreter—he only died recently—and attended the sittings of the County Court regularly, and it did not happen sometimes that he was called on even once in the year to do his duty as an interpreter of Irish. The people who were native speakers of Irish and came into Court had a right to use the Irish language in the Court, but they preferred to speak English.

Because the judge did not know it.

The judge did not know it, but after all the judge did not know whether they could speak Irish or not.

No. My point is this. People do not like to plead through an interpreter, and even though it might be only their second best language, if able to speak English, they are inclined to use it in a case of that kind; that is to the detriment of the Irish language.

If Deputy Rice had experience in Donegal he would know that the people insist on speaking Irish to the Justices who understand Irish.

I am one of those people who confine themselves to facts of which they have some knowledge. I am referring to the fact that in Clare there was an official interpreter of Irish. He attended at session after session, and he was not called upon on an average once a year to interpret the Irish language. I do not think that Deputy de Valera's explanation is quite satisfactory. It is true the judge in Clare did not know Irish, but that does not appear, to my mind, to be any answer to the point, because there was an interpreter who knew both Irish and English, and if any witness or litigant desired to make his case in Irish he was entitled to do so. The necessity did not arise, because the people were willing to carry on in English. I would accept entirely the principle of the amendment if I thought there was a demand for it and if I saw any prospect of the Minister being able to select justices who could speak both languages. I would support the amendment strongly if I thought the Minister had the choice of people suitable through their training and whom the Minister was satisfied were persons of judicial temperament as well as having a knowledge of the Irish language. But I do not know of any such persons, and I do not see that he should be restricted in the way proposed where the choice would be from an extremely limited number of persons. At the present moment, unfortunately, there is no demand for Irish speaking in the Courts that the amendment appears to suggest. For that reason I do not intend to support the amendment.

Before the Minister speaks, the remarks made by Deputy Rice and Deputy Redmond suggest that it would be no harm to say a few words more about the appointment of Irish speakers for these Courts. Deputy Rice may not be aware that there are large areas in this country in which the people use Irish as their everyday language.

I am aware of it.

And that there are districts in which it would be very difficult, and in some cases impossible, for the people to speak any language but Irish. Are you going to leave these people to an interpreter as they had in Clare, apparently, in those times referred to by Deputy Rice, to plead their case? I think that is wrong.

The explanation as regards Clare is very simple. There are several possible explanations that would fit in. One is that people who speak Irish do not go to court as often as other people. I am, however, leaving that aside. It ought to be obvious to Deputy Rice that, with solicitors and justices who speak English only, a man who did not know English and who had to deal with an interpreter all the time would feel badly off. He would not understand what was happening. I think litigants in cases of that particular kind would try to keep out of court as much as possible, and would be inclined to allow matters to go by default if handicapped in their efforts to get redress. There are areas in which Irish only is spoken. We believe that the national policy should be to preserve and extend the use of the language in such areas. These official channels are means by which the English language is interfering with that policy and is making inroads on the language in such areas. We want to see that stopped, and to see that in areas where the ordinary language is Irish the court proceedings will be conducted in Irish. This Bill is intended, so far as I understand, to give assistant justices to areas in which the work has accumulated or to provide deputies for existing justices when on holidays. How could you send justices who speak only English to Irish-speaking districts unless you are going to use the courts as a means of introducing English into such areas? I think that anyone who is anxious about preserving and extending the use of the Irish language should insist that a certain proportion of justices should know Irish.

The Minister in his reply to me indicated that he had not surveyed the whole ground regarding the possibilities of getting suitble justices who know Irish from the Bar or the solicitors' profession. Those of us who know the country well believe that, if a proper effort were made, suitable persons could be found, and, in my opinion, a certain proportion of the places should be kept open until such persons are found. The Minister should make a proper search and study the ground carefully in that respect. An inducement should be held out to such persons by keeping two places open out of the four assistant Justices to be appointed. Surely Deputy Redmond will not hold that Irish is not essential in the cases I have indicated. He gave a very unfortunate example in the vote he gave on the last occasion. It could be made very awkward for An Leas-Cheann Comhairle if those of us who speak Irish did so constantly because he would not understand us. I held on that occasion that a knowledge of Irish was essential for such a position as his, and is also essential to that of a District Justice. You might as well send people with a knowledge of the Czech language to administer justice here as to send English-speaking justices to Irish-speaking districts. From the larger point of view of national policy I cannot understand how anybody can advocate an appointment of four assistant justices at this time of day none of whom has a knowledge of Irish. I think there are very few of the existing justices who know Irish.

There are quite a number.

Then if quite a number of them were available, as things were then, I think you ought to be able by a process of gleaning to get half the number you now require. I hope that the Minister will do this act of justice to the Irish language and to the Irish-speaking community in areas in which their cases will be tried by such Justices.

In reference to what Deputy Rice has said, I may mention that in Donegal there is a Justice who has a very competent knowledge of Irish, and who insists that the people who are Irish speakers shall present their case in Irish before him. This is not a joke, though it may sound like one; the people in that area who are Irish speakers are under the impression that if they are guilty of a misdemeanour they will receive a lighter sentence if they go before him. I need not say that there is no truth in that impression. The fact is that it is impossible to translate the idioms of one language into another. If there were an interpreter he would try to put idiomatic Irish into English, and that is impossible. When appearing before a Justice, such as the one I mentioned, the people are able to plead their own case and the Justice is able to understand them. An interpreter would not be able to put the case before the Justice in the same way as the people themselves do. It is essential where the people are Irish speakers that the Justice should have a knowledge of Irish. A practical illustration of that is to be found in the case of District Justice Walshe in Donegal.

I must entirely dissent from certain views put forward by Deputy de Valera. The first consideration in appointing a District Justice should be: is he competent to administer justice fairly and impartially between man and man? It is of much less importance whether he knows or does not know Irish. The first thing is to get a competent man. Deputy de Valera asked me what would happen in an Irish-speaking district if only an English-speaking Justice went there, and if Irish-speaking witnesses went before that English-speaking Justice. I have had considerable experience of practising in a part of this country where at one time Irish was very much spoken. When I went into practice first in the County Court of Mayo, there were around Ballinrobe a great number of purely Irish-speaking or semi-English-speaking people. Nowadays that has completely changed.

A DEPUTY

You have helped to kill it.

There is now nobody there who does not speak English. I have seen the working of Courts with interpreters, and I am satisfied that justice can be, and is, being done through interpreters. The only disadvantage in the administration of justice is—and it is not on the side of the Irish speaker—that it is almost impossible for an advocate to cross-examine through an interpreter, especially to cross-examine a witness who knows English and who answers in Irish, because there is a very considerable amount of time spent in making out the answer. Far from it being a disadvantage to a witness to answer in Irish, I think it is a great advantage to him and a great assistance to him. If the system of interpreters fails to have justice done it fails because it works too much in favour of the Irish speaker.

We are a simple people in the West.

That is my experience.

Would the Minister tell us what check there would be on an interpreter?

It is easy to get honourable people who are sworn to interpret truly to do it. The whole world is not full of rogues. There are a few honest people, even in Donegal.

It is not everyone who can interpret properly.

I think I have dealt with that point as fully as I could. All I can say is that when the Executive Council come to make appointments the first consideration will be efficiency, and we ought not to tie the hands of the Executive Council by saying that two of the appointments should be given to persons who are able to speak Irish, whether they are competent persons or not. It is certainly an amendment I could not accept. Deputy Wolfe made a plea as to the personnel, and said that if this Bill becomes law we should not forget County Cork.

A DEPUTY

West Cork.

Only West Cork? May I, for a moment, take this opportunity of deprecating this county feeling. I think this county feeling is very bad. I am afraid that there are entirely too many persons in this country who belong to certain counties and who recognise that they belong to a certain county and do not recognise that they belong to a country. They seem to forget that Cork is part of Ireland.

A DEPUTY

They think that Ireland is part of Cork.

I would like to deprecate, as strongly as I can, what I think is a most pernicious feeling which seems to be spreading in the country—this county feeling as opposed to country feeling.

The Minister did not reply to the question which I asked. He replied to a different question which he suggested I asked. I did not ask about interpreters. The question I asked was: what is to become of the Irish-speaking districts when any of the present justices are taken away and you have sent down assistant justices who do not know Irish to take their places?

Then the cases must be heard through an interpreter.

Very well. The feeling of those who support this amendment is that the Minister's answer makes our position very much stronger. The Minister is wrong in suggesting that we wish to have incompetent people appointed. We hold that competency and a knowledge of the Irish language could be found in the same person, and until we are satisfied that the contrary is the case, we are not going to withdraw the amendment.

Is it not possible to get a competent Irish-speaking Justice? Who is going to pay the interpreter or to check him as to his competency?

I would like to say that I find some difficulty with regard to the first paragraph of Deputy Fahy's amendment. If the amendment is to be adopted both paragraphs go together. I think there is something in what the Minister says as to the difficulty in getting District Justices who are fully qualified otherwise, and who at the same time are willing to act and have a knowledge of the Irish language. Deputy de Valera does not believe that, but I am only giving him my own personal knowledge for what it is worth. It may not be worth much in this connection. I am inclined to believe that the position is, as stated by the Minister rather than as stated by Deputy de Valera, and that, in fact, it would be very difficult to get two fully-qualified District Justices who would have a competent knowledge of the Irish language. It would be no use their having a reading knowledge or a haltingly-speaking knowledge of Irish. It would be necessary for the District Justice to have such a knowledge of the language that he would be competent to conduct the business of the courts in Irish. No other knowledge would be any good in this connection. If Deputy de Valera said that these four Justices are not necessary, that is another point from the economy aspect. I think when the Minister comes to the House and says that four are necessary, unless we are in a position to show that four are not necessary, we ought not to tie his hands.

With regard to the second paragraph of the amendment, I would be certainly inclined to press that, and to say that a date should be fixed, not 1935, but perhaps 1938 or 1940. If Deputy Fahy were in a position to move these as two separate amendments, I would vote for the second, while I would have some difficulty, in view of what has been suggested, in supporting the first. If I might make a suggestion to Deputy Fahy, it would be that he should withdraw the amendment and put down these two paragraphs as separate amendments on the Report Stage. Perhaps then we would be able to get further along the line which he and many others are anxious to follow. That is, we would have something gained in regard to the position of the language—that after a certain date it would be obligatory on the Executive Council to appoint District Justices who would have a knowledge of Irish. I would suggest to Deputy Fahy the advisability of considering that course.

The position of the Minister and his Government is even worse than we expected. It is not merely that he is opposed to the amendment as it stands, but he is not going to make any effort to assert the principle of the language of Ireland in any way at all. He put up a proposition himself which was extremely moderate, far too moderate from our point of view, but since he put it up he ran away from it.

He is not prepared to bring in on Report Stage an amendment to the effect that all barristers and solicitors called to the Bar after a certain date must have a knowledge of Irish, if they are going to qualify for judgeships.

He suggests that; but he has not stood up to it, and I must confess that I am amazed, because it proves more and more the condition of complete hypocrisy in this matter. It is not merely a question of the Irish-speaking districts. It is the status of the language. There may be reasons as to why it is difficult for men practising to learn the language now. It is very difficult for a man practising now to learn the language, but I cannot for the life of me understand a Government that claims to stand for the language and for national principles in some shape or form, not standing for a principle like this where no one is to suffer. After all, it is a question of the education of the younger generation, and it is as easy for them to get a knowledge of Irish as it is to get a knowledge of anything else. I must say that there is no excuse at all in this matter.

The Deputy completely misunderstands me. I said that possibly something might be done along a particular line. If that had been accepted, then I would consider carefully what could be done and what dates could be fixed. That would be a matter for consideration. But that was not accepted. I understood that the attitude of the Deputies opposite was that that was not sufficient. They wanted it here and now. I think that makes it perfectly plain that I have not run away from my position. I am exactly where I was.

References have been made here to interpreters being employed in the courts in which the Bar and the judge did not know Irish. I think it was in 1917, when I was in a court at Derrynagh, in Connemara, that the services of an interpreter were required. There were only four people present in the court who knew Irish. The magistrate, in my hearing, spent ten minutes abusing two witnesses because they could not speak English. Fortunately, they did not know what he was saying. I would not like to see that spirit continue.

Do you suggest it exists now?

I do not suggest it does. But if in those courts people saw office associated with those who not only did not know Irish but despised it, it is all the more necessary that people in those courts should have a knowledge of Irish, and that whether in the Court, the Bar or the Church in the Gaeltacht, Irish should be used. From the way Deputy Redmond spoke one would imagine that the Gaeltacht was a sort of reservation to keep there the last remnants of the race for all time for show purposes. Is it not the purpose, the alleged purpose, and I hope the genuine purpose of the Government to make Irish the language of the country, spreading out from the Gaeltacht? With regard to the second portion of the amendment I have suggested, if the Minister had agreed to appoint even one of the four an Irish speaker, to have one of the four assistant District Justices appointed a competent Irish speaker, I would not have pressed for the two. But he has held out no such hope. As regards the second, I think it is permissible to raise it on the Report Stage if withdrawn now.

You can withdraw the whole thing.

If the Deputy wishes he can amend his amendment by withdrawing either the first or second, and move the portion withdrawn on the Report Stage.

I will withdraw the second portion of the amendment, and I shall move it on the Report Stage. As regards that, I might say that if the Minister for Justice had considered whether he would be prepared to accept an amendment to my amendment setting out that in 1938 even half the appointments should be given to people with a knowledge of Irish, an understanding might be come to. But no date and no numbers have been mentioned by the Minister; only a vague suggestion has been thrown out, and that is not sufficient. If we are in earnest about reviving the national language, we will have to give some definite effect to our intentions, and make Irish obligatory for all posts within a certain time. Let it be a fixed time, ten, twenty, or thirty years. We would attain our purpose gradually, no doubt, but a beginning must be made some time. It is unfair to have compulsory Irish in primary and secondary schools and possibly in the university, and then, when it comes to a case of an appointment it is dropped. I ask the leave of the House to withdraw the second portion of the amendment.

Amendment, by leave, altered.

Amendment, as altered, put.
The Committee divided: Tá, 45; Níl, 67:—

Tá.

  • Frank Aiken.
  • Denis Allen.
  • Gerald Boland.
  • Patrick Boland.
  • Daniel Bourke.
  • Seán Brady.
  • Robert Briscoe.
  • Daniel Buckley.
  • Frank Carney.
  • Archie J. Cassidy.
  • James Colbert.
  • Eamon Cooney.
  • Martin John Corry.
  • Tadhg Crowley.
  • Thomas Derrig.
  • Eamon de Valera.
  • Frank Fahy.
  • Andrew Fogarty.
  • Seán French.
  • Patrick J. Gorry.
  • Seán Hayes.
  • Patrick Hogan (Clare).
  • Samuel Holt.
  • Michael Joseph Kennedy.
  • James Joseph Killane.
  • Mark Killilea.
  • Michael Kilroy.
  • Seán F. Lemass.
  • Patrick John Little.
  • Ben. Maguire.
  • Thomas McEllistrim.
  • Seán MacEntee.
  • Séamus Moore.
  • Thomas Mullins.
  • Patrick Joseph O'Dowd.
  • Seán T. O'Kelly.
  • William O'Leary.
  • Matthew O'Reilly.
  • Thomas O'Reilly.
  • James Ryan.
  • Martin Sexton.
  • Timothy Sheehy (Tipp.).
  • Patrick Smith.
  • Richard Walsh.
  • Francis C. Ward.

Níl.

  • William P. Aird.
  • Ernest Henry Alton.
  • Richard Anthony.
  • James Walter Beckett.
  • George Cecil Bennett.
  • Ernest Blythe.
  • Séamus A. Bourke.
  • Seán Brodrick.
  • John Joseph Byrne.
  • Edmund Carey.
  • James Coburn.
  • John James Cole.
  • Mrs. Margaret Collins-O'Driscoll.
  • Hugh Colohan.
  • Michael P. Connolly.
  • Bryan Ricco Cooper.
  • William T. Cosgrave.
  • William Davin.
  • Michael Davis.
  • Peter de Loughrey.
  • Eugene Doherty.
  • James N. Dolan.
  • Peadar Seán Doyle.
  • Edmund John Duggan.
  • James Dwyer.
  • Barry M. Egan.
  • Osmond Thomas Grattan Esmonde.
  • Desmond Fitzgerald.
  • James Fitzgerald-Kenney.
  • John Good.
  • D.J. Gorey.
  • John J. Hassett.
  • Michael R. Heffernan.
  • Thomas Hennessy.
  • John Hennigan.
  • Patrick Hogan (Galway).
  • Richard Holohan.
  • Michael Jordan.
  • Myles Keogh.
  • Hugh Alexander Law.
  • Patrick Leonard.
  • Finian Lynch.
  • Arthur Patrick Mathews.
  • Martin McDonogh.
  • Michael Og McFadden.
  • Patrick McGilligan.
  • Richard Mulcahy.
  • James E. Murphy.
  • Martin Michael Nally.
  • John Thomas Nolan.
  • Thomas J. O'Connell.
  • Bartholomew O'Connor.
  • Timothy Joseph O'Donovan.
  • John F. O'Hanlon.
  • Daniel O'Leary.
  • John J. O'Reilly.
  • John Marcus O'Sullivan.
  • William Archer Redmond.
  • V. Rice.
  • Martin Roddy.
  • Timothy Sheehy (West Cork).
  • William Edward Thrift.
  • Michael Tierney.
  • Daniel Vaughan.
  • Vincent Joseph White.
  • George Wolfe.
  • Jasper Travers Wolfe.
Tellers:— Tá: Deputies G. Boland and Allen. Níl: Deputies Duggan and P. Doyle.
Amendment declared lost.
Section 12, as amended, agreed to.
Section 13 agreed to.
SECTION 14.

I beg to move amendment 8:—

To add at the end of Section 14 the following words "and by the addition at the end of the said clause (iii) of the following words:—

"and where in the case of an ejectment for non-payment of rent such ejectment is now maintainable under the provisions of 23 and 24 Victoria, chapter 154, section 52."

I move the amendment under these circumstances: under the original Act of 1924, probably through inadvertence, a right of ejectment for non-payment of rent, which had been decided by a District Justice, was given in the case of a weekly tenant. I do not think that was ever intended. I do not believe it was ever intended that an ejectment should be given against a weekly tenant. That right did not exist in the case of a weekly, monthly, or quarterly tenant, but it did in the case of a yearly tenant. The present extraordinary condition of things is that in the case of a weekly tenant who owes a week's rent, he can be evicted by the District Justice for non-payment of the rent.

He cannot be proceeded against for non-payment of rent either in the High Court or Circuit Court, and the District Justice has got jurisdiction which is not given to the Circuit Judge or the High Court Judge. In the case of Section 52 of Deasy's Act, as the Minister for Justice will bear me out, there is not only the right of ejectment for non-payment of rent, but there is a period of default fixed, and the period of default fixed is the non-payment of one year's rent. By a thing that I think was a slip in the preparation of the 1924 Act, the right of ejectment for non-payment of rent was extended to tenancies of every kind and description, including those excluded from Deasy's Act, and there was no period of default fixed. If you take the extreme case of a weekly tenant whose weekly rent is payable in advance every Monday, if that tenant pays his week's rent on the following Tuesday week, he would morally owe a day's rent, whereas when 12 o'clock strikes on Monday night he could be proceeded against before the Justice for non-payment of the following week's rent. It is because of the absurdity, and it is to get rid of what would be an act of great oppression to weekly tenants that I move this amendment. The present position was never intended by the original Act.

I think the Deputy has worded his amendment in too wide a fashion, because in Section 52 of Deasy's Act power to grant an ejectment for non-payment of rent is given to the County Courts up to £100, and beyond that to the High Court. Now the Deputy's amendment would give unlimited jurisdiction to the District Court.

I am afraid that is what the effect of the Deputy's amendment would be as it stands. An ejectment is now maintainable under the provisions of 23 and 24 Victoria, chapter 154, Section 52. I am afraid the effect of the Deputy's amendment would be this: that now a District Court would have jurisdiction in all cases, no matter what the valuation of the premises was. I now gather that is not the Deputy's intention, that that Deputy wishes to keep the jurisdiction within the £27 limit, but to cut away powers of ejectment for weekly tenancies.

That is the intention, and that is the obvious reading of it. If you read your amending section and my addendum it will be as follows:—Section 77 of the principal Act is hereby amended by the deletion of the sign and figures £26, now contained therein and the insertion in lien of the said sign and figures so deleted of the sign and figures £27, and where in the case of an ejectment for non-payment of rent such ejectment is now maintainable under the provisions of 23 and 24 Victoria, chapter 154, Section 52. The early part of the section fixes the maximum rent at £27, and the addendum I suggest cuts it down by saying that £27 can only apply in the case where under Section 52 of Deasy's Act, an ejectment for non-payment of rent is maintainable.

I cannot take that view of the interpretation of the section. What I venture to ask the Deputy to do is to withdraw this amendment and I will see that the principle of the amendment is dealt with by the Parliamentary draftsman, because I am afraid I cannot accept the Deputy's interpretation. In my own view, if that amendment is carried as it is, a larger jurisdiction would be given to the District Court. The whole jurisdiction in Section 52 of Deasy's Act would be given.

I am quite content if you carry out the intention, because what has happened was the result of a mistake, owing to the original section being drawn up by somebody who did not understand the provisions of the non-payment of rent code.

Amendment, by leave, withdrawn.
Question—"That Sections 14 and 15 stand part of the Bill"—put and agreed to.
SECTION 16.

I move amendment 9:—

To insert at the end of the section a new sub-section as follows:—

"Sub-section (5)—Section 24 of the Petty Sessions (Ireland) Act, 1851, 14 and 15 Victoria, chapter 93, is hereby repealed."

The general appeal given by this Act deals with all possible cases. But there is still extant in the Petty Sessions Act a special right of appeal under which it is necessary to serve what is called "the seven-day notice of intention to prosecute." Judicial opinion and the opinion of experts varies considerably as to whether or not it is any longer necessary to serve that notice. In order to get rid of any doubt on the subject, I move that the sub-section be repealed.

I think the seven-day notice is not now necessary, and that the sub-section is not necessary. As I said on a previous amendment of Deputy Wolfe, it is better to have the matter cleared up, and I accept the Deputy's amendment.

Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.

Would the Minister tell me whether I am rightly informed that the effect of this section is to give to Peace Commissioners power to remand in custody for any offence whatsoever?

The position at present is that a Peace Commissioner must remand in custody unless the offence is an indictable one— that is, an offence which will be tried finally before a jury. In these cases, he can let out the prisoner on bail or remand him in custody as he thinks right. As the law stands at present, where the offence charged is a minor one—simple drunkenness, for instance—the Peace Commissioner has no power to release on bail at all. He can only remand in custody. That was an obvious slip in the Act. It is grossly unfair that a Peace Commissioner should have to remand in custody for a small offence. This Section enables him to remand on bail when the offence is small. On Report Stage, I propose introducing an amendment to this Section to provide that, instead of having to remand a prisoner to a court which might be a considerable distance away and very inconvenient to the prisoner, he will be enabled to remand to a court in the neighbourhood.

Section 17 agreed to.
SECTION 18.
Section 94 of the Principal Act is hereby amended by the deletion of all words from the words "unless the Judge shall consider" to the words "on the application of any party so order" now contained therein and the insertion in lieu of the words so deleted of the words "unless the Court on the application of any party instituted within seven days after notice of trial or on its own motion at the trial shall consider a jury to be necessary or desirable for the proper trial of the action and shall so order."

I move Amendment 10:—

In line 14 to delete the word "within" and to substitute therefor the words "at any time not later than."

This amendment is designed to clear up what may be only an ambiguity. Under the law as it stands, in the Courts of Justice Act, 1924, parties are not entitled, as of right, to a jury in actions for liquidated sums of money or actions dealing with contracts or actions for the recovery of land. This section is designed to give them the right to claim a jury in certain cases. The words of Section 18 are "unless the Court on the application of any party instituted within seven days after notice of trial..." The word "within" suggests to me that the limit might apply each way. It would appear to me to be open to the interpretation that it would preclude a person desiring to have a jury from serving his notice at an earlier date. To get rid of that ambiguity I propose this amendment. If parties are only served with notice that a jury is required a few days before the trial, it will mean an adjournment until next term. In order to avoid anything of that kind and to make it clear that parties are entitled to serve notice at an earlier date, I move my amendment.

I must admit that I cannot see any substantial difference between the wording of the section and the wording that the Deputy suggests.

I am sorry.

The wording that the Deputy suggests is certainly clear, and I accept it.

Thanks very much.

Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.

I understood from the Minister's speech on Second Reading that it was his intention to bring the City of Dublin into line with the rest of the country as regards the period during which an offence under the Dublin Police Act could be heard. On re-reading Section 19, I have come to the conclusion—the Minister will correct me if I am wrong—that the section as drafted will leave no period of limitation at all. The matter stands thus: Under the Dublin Police Act, 1842, there is a limit of six months fixed for both the hearing and determination of charges of this character. It is proposed by this section to delete entirely that portion of the Dublin Police Act. Section 41 of the Petty Sessions Act, 1851, provides that the period during which these charges shall be heard but not determined shall be six months. It goes on to declare that the Petty Sessions Act shall not apply to the police district of Dublin at all. If this portion of Section 70 of the Dublin Police Act is entirely deleted, the Petty Sessions Act will not apply, and there will be no limit of time for the hearing of those charges. I do not know whether the Minister will agree with that interpretation or not. I do not think that the interpretation I have put on the section is the one that the Minister desired. If, however, he agrees to my reading of the section, I should like to ask him if he would be prepared to introduce an amendment on the Report Stage.

I have already considered the matter which the Deputy has raised. It was my in— tention to put in an amendment making the Petty Sessions Act apply to Dublin city. That is what I said, in my opening statement, was the intention of the section. I agree entirely with the Deputy that an amendment of the section is required, and I purpose bringing in an amendment on the Report Stage Sections 19 and 20 agreed to.

Title of the Bill agreed to.
The Dáil went out of Committee.
Bill reported with amendments. Report Stage ordered for Wednesday, 13th June.
Top
Share