Vol. 24 No. 11
I move:—
In page 2, line 30, to delete the words "performing the said authorities and" and substitute therefor the words "authorities and performing the said".
This is a verbal amendment. Certain words in the draft had become misplaced and this is putting them back in the correct order.
took the Chair.
I take it that on the Report Stage one is entitled to speak to the amendments and afterwards to the general principle of the Bill?
The amendments are put separately and the discussion is relevant to each amendment. Then the main question is put: "That the Bill as amended be received for final consideration."
This is a purely verbal amendment and I should like to draw the Minister's attention to Standing Order 98, which is as follows:—
During the progress of a Bill, corrections of a verbal or formal nature may at any time be made in a Bill by the Clerk, under the direction of the Ceann Comhairle. Versional, and all other correction, shall be made by way of motion, and dealt with as any other amendment.
I suggest that this amendment is quite out of order and that it should have been dealt with purely as a verbal amendment. I want to draw the attention of the House to the contrast between the treatment of this purely verbal amendment and another change that was made in an Act. I drew attention, some time ago, to the fact that the Short Title of the Agricultural Credits Bill was: "That this shall be entitled the Agricultural Credits Bill" and not Act. I took the trouble to look it up afterwards and I discovered that without the leave of the House and behind the back of the House that was changed; the title was changed to read: "That this Bill be entitled the Agricultural Credit Act." This is a serious matter, because if it is done in small things it might extend further. The actual text is to be the authoritative text and is to be signed by the Governor-General. I made inquiries to see it at that time and I found that the whole thing was so definite that it became almost impossible to see it and to this day I do not know how one could see it. There was to have been an arrangement——
With great respect, I would like to know how does this arise on my amendment?
I really do not see how this general question arises on this amendment.
I wanted to bring out the contrast between the meticulousness which is introduced here and which is completely out of order as compared with the slip-shod way in which a disorderly act was committed in reference to another Act.
If the Deputy is going to indict somebody for committing a disorderly act, this is not the place.
I am trying to introduce a sort of double-barrelled indictment.
The Deputy will have to take one target at a time, having taken proper aim. His point is that this is a verbal amendment and is therefore out of order?
Yes.
The amendment is perfectly in order as far as the Title goes, and there is no compulsion on the Minister or anybody to refrain from submitting verbal amendments.
Certain words became transposed, and it was no fault of the Clerk of the Dáil.
In order to show that we are protesting against a wrong method being adopted, a vote should be taken on the matter.
On the point of order?
It is not a point of order. I am not questioning the point of order, but what I am questioning is the fact that the Minister has chosen a wrong method of procedure, and as a protest against that I think a vote should be taken.
I beg to move the following amendment:—
"In page 3 to delete lines 5 to 9 inclusive."
That amendment deals with paragraph (a) Section 5 of the Bill. The intention is to give effect to the criticism that I levelled at that particular section when the Bill was introduced. I pointed out on the Second Reading that I did not like to see the Court of Appeal being given the power to set aside what might be regarded as legal technicalities. I believe that close adherence to legal principles is very important from the point of view of justice. I believe that these principles were evolved slowly, and that in general their purpose is to prevent injustice, whilst now and again, of course, they may work in the wrong direction, and that the general effect of them is to prevent abuse of various kinds.
Everyone of us knows how legal formalities irritate the layman, and they do that because you imagine you can do all these things more easily by short cuts. The more one examines questions of that kind, the more one is convinced that to attempt to follow short cuts, the more they lead to danger. Such had been my experience in these matters, and there was a time in which I had a great deal of anxiety, for my position was such that I had a great deal of anxiety as to what might result from short cuts of that particular kind. It was my one fear as to the operation of our courts at a certain period, and any thought that I gave to the matter at that time confirmed me in the opinion that one cannot afford to dispense with these principles, or that if you attempt to do that you are going to run into far greater danger in the countrary direction. The effect of this particular section seems to me to put at the discretion of the judges the whole question of ignoring these principles, and saying: "After all, substantial justice has been done." I do not think that we ought to proceed that far. Again it seems to me it is unnecessary, because the Dáil has allowed paragraph (b) of that same section to stand—that is, giving the power of re-trial. If you are going to give the power of re-trial, and if anything wrong has been done in the trial, if a formality that should have been observed has not been observed, then the Supreme Court ought to feel bound to order a re-trial instead of acting on their own responsibility. There is another aspect of the situation that I think ought to be considered, and it is this—that the Court of Appeal, giving its decision on notes, will not have the advantage that the court of first instance will have in seeing witnesses and in giving judgment—and the advantage that the juries will have in giving their verdict—and in judging the credibility, for example, of the witnesses after seeing them actually before them. The Supreme Court will not have these advantages, and consequently I think it is most unfair to allow the court to say, "Very well, in our opinion."
Does the Deputy say that the Supreme Court cannot call witnesses?
The Court of Appeal.
That the Court of Criminal Appeal cannot call witnesses—Does the Deputy say that?
No; what I say is that as a rule they do not. The appeal is on the notes. Am I right in that?
You are right there. But you are not right when you say that they cannot call witnesses.
I did not say that. I did not say that they must not call witnesses. But I say that as a rule they are denied the advantages that a court of first instance has of seeing the witnesses actually giving their evidence, and judging their credibility from their general conduct. And, mind you, by watching the witnesses under examination and under cross-examination one can form very often a very good opinion of their credibility or not. As I said, it is not necessary in any case. The power of re-trial is there according to the decision of the Dáil, and if that power remains there is no need of that discretionary power which it is proposed to give the judges under paragraph (a). The argument will convince only those who have considered the whole question. Only those who have considered what the consequences of ignoring legal technicalities are, are likely to take the view that I take in this particular section.
Others are disposed to take the short cut to deal with these matters as the layman says he will deal with them—"Put all that red tape, the nonsense, aside. Let us examine straight off and do these things," as they would say, "in a commonsense fashion." That is a very short-sighted view to take of it. As I say, I fear that my arguments will not have weight with those who do not fully appreciate that particular point, but it ought to have weight with them. This is unnecessary. If common sense dictates that something has gone wrong, if some legal process which should be adopted in the trial in the first instance is not properly carried out, the power of re-trial is the natural one to invoke, and they should say, "Very well, let the trial begin again." I hope the result in this case will be the same as it was in the deletion of Section (c).
I am astonished at the bringing forward of this amendment by Deputy de Valera. It appears to me that it certainly is verging on the borders, at any rate, of political dishonesty. The whole section was fully debated here. There were originally three sections, and I left every single matter under discussion to the free vote of the Dáil, and thought that the free vote of the Dáil would be accepted. I did not think that Deputy de Valera would try to go back upon the free voting of the Dáil.
As a matter of explanation, I do not understand what the Minister means by imputing dishonesty to me in this connection. This is more of the bargain or agreement. I made no agreement.
I never said there was agreement.
What is the suggestion of dishonesty then?
There were three sub-sections in this section originally. Deputy de Valera moved to delete two of those sub-sections. Those were voted on by a free vote of this House. Sub-section (b) was omitted from the Bill. Sub-section (c) as it then was—it is now sub-section (b) —was retained in the Bill. The section then stood precisely as it stands now, and there was no division challenged by Deputy de Valera upon the section then. The section has been decided by the free vote of the House, with three amendments, and now I discover, when the House has made up its mind in that fashion, that Deputy de Valera wishes to re-open the whole matter again. I say that his decision to do so came to me, at any rate, with a very great amount of surprise.
The Party opposite said to us a short time ago they were not going to oppose blindly by mere obstruction Bills they thought were of advantage to the country. Here is a Bill, a great number of the sections of which, at any rate, are, as they have admitted, to the advantage of the country. Yet we have had, I think, the most stupid bit of obstructive tactics that have yet been adopted a few moments ago with reference to Section 1.
On a point of order, the Minister for Justice verbally and audibly protested some time ago that we did not obstruct public business long enough to enable him to eat his dinner.
It is only another red herring being brought up.
Deputy MacEntee does not seem to me to have made a point of order, but at any rate we are not on Amendment 1 now. We have passed away from it, from the division on it, all its associations, and so on, at the moment. I wish we could discuss this particular amendment without discussing obstruction.
I want the Minister at least to know my position in this: I spoke against that particular section when the Bill was on its Second Reading. I gave my reasons against it. Deputy Ruttledge, who generally has charge of that particular department, put in two amendments. I was surprised myself to find that there was not one covering section in. There was no time to put in an amendment at that particular time. I took the first opportunity I had to put in an amendment to the section. There is nothing behind it and no question of using it for obstructive purposes. There was no question of withdrawing private accommodation. This is consistent with my action at the time.
The fact remains that the Deputy did not divide the House against the sub-section which stood in the Bill at the time. Now I come to Deputy de Valera's arguments, or what pass for arguments, and the first of them is that this is doing away with an old legal formality. That is the best way in which I can, I think, abbreviate the Deputy's argument. That is not so. This Court of Criminal Appeal is a court which up to a very short time ago was unknown in this country, or in any other country which administered a code of criminal law similar to the code which we administer, and based upon that code. The Court of Criminal Appeal is, in this country, an extremely new thing created by the Courts of Justice Act. There has been no time for legal formalities to grow up. Certain defects were shown, and it is these defects, which have been shown in action, that we are seeking here to remedy. I might say that in the two countries, England and Scotland, where more or less the same laws exist, where also by statute a Court of Criminal Appeal was set up, it has been found necessary to have a section of that nature, in one case an amending Act and in the other the very Act which created the court. We find on the one side the statement by the Deputy that this is doing away with old-established legal formalities, and we have on the other side the experience, not only of our own courts, the practical experience in this country, but we are also fortified and strengthened by the experience of other countries in the belief that such a section is necessary. The Deputy again says that this section is unnecessary because sufficient remedies are put in sub-section (b). I have already in this House explained the difference between what is now contained in sub-section (a) and what is now contained in sub-section (b). I think I did so fairly fully, but since the Deputy certainly has not dealt with the matter in a fashion which would lead me to believe that he had either listened to, or, if he listened to, had followed the argument I was endeavouring to put to the Dáil, I will repeat my argument. My argument was this: These two sub-sections are concerned with quite a different state of affairs.
It may be that the judges are clearly of opinion that there is a very trifling matter—that the judge has allowed in a piece of immaterial evidence that could not have weighed upon the minds of the jury at all, or something of that kind. Then a retrial is a great deal too big and too cumbersome a procedure. They see that a small mistake has been made, some little immaterial thing has been done which could not have affected the minds of the jury in finding the prisoner guilty, and in those circumstances if the court are perfectly satisfied that no miscarriage of justice has taken place, then it is, I submit to the House, quite right and proper, seeing that on an immaterial issue or an immaterial point a mistake has been made and that no injustice is being done to the prisoner, that the court should uphold the verdict of the jury. Another case arises; that is the case which arises under sub-section (b). I will only deal with that very shortly. There something has gone wrong. Let me make the illustration again which I have used before. The court is not satisfied on a piece of evidence that has been admitted and the court cannot make up its mind; it cannot say as to whether if that bit of evidence had not been admitted the jury would inevitably have convicted. It is in a case like that that the court would order a new trial. But you must bear in mind that a new trial is absolutely necessary in order that justice shall be done between the State upon the one side and the prisoner on the other. If that is your object, still that new trial consists of a procedure which must cost a great deal of money and a great deal of public time, money certainly of the State and, in certain cases, it may be money of the prisoner also, because though the court have full jurisdiction to make any order they like as to the costs, still they may not, of necessity, make such an order. All that procedure is perfectly unnecessary in a case in which the court are clearly convinced that whether a trifling error which has been made in the conduct of the first trial or not a conviction must have followed.
Deputy de Valera talked again about the advantage of judges seeing witnesses, if they are going to decide questions of fact. That is the one thing that the judges do not do in the Court of Criminal Appeal. The one thing that they have never done and never will do—certainly not under this section—is to decide questions of fact. I mean by question of fact a question such as the Deputy has brought up, the credibility of witnesses. The credibility of witnesses is never for the Court of Criminal Appeal. The credibility of witnesses is for the jury, in the first instance, and for the jury only, and it is only from the evidence which it is clear the jury have believed that the court is free to draw deductions, and from that evidence only the courts do draw deductions. The credibility of witnesses is always for the jury. There is no difficulty in applying those principles; they are regularly applied. Here we are really dealing only with this one sub-section, sub-section (a).
I have wandered, I am perfectly aware, from sub-section (a), but I have wandered away from it because I wished to counteract, as I hope I have counteracted, Deputy de Valera's argument, that sub-section (a) is now unnecessary, because sub-section (b)— the new trial—exists. When the Deputy put his contention to the House at the end it was not really that sub-section (a) is bad; it was not really that sub-section (a) is wrong; it worked itself down to this, that sub-section (a) is unnecessary in the Deputy's view. Yet the Deputy has got the whole experience of people in this country, and of the legislatures in the two neighbouring countries, whose criminal system is similar, that a section like this is necessary. Now the Deputy has talked very often of, and is very pleased with describing himself as a layman unconversant with legal matters. Yet the Deputy puts up his own authority—I will leave out for a moment the experience of this country —against the authority of the working of precisely the same system, as far as appeals go, in two neighbouring countries. What is the strongest argument that the Deputy can put forward? He has put it forward as his strongest argument that this sub-section is unnecessary. Then the judges who administer the law, even if that were right, would never use it. It would not be harmful; it would be, at most, useless. My contention is—and it is a deliberately-considered contention, based on experience and on authority—that a section of this nature is necessary for the proper working of any Court of Criminal Appeal. The Court of Criminal Appeal is a new court; it is a court which has been established entirely in favour of not merely accused persons, but convicted persons. It is a one-sided court, so to speak. No appeal lies on the part of the State; appeal lies on the part of the prisoner and on the part of the prisoner only to the Court of Criminal Appeal. The prisoner has got under the Courts of Justice Act a right which a prisoner in this country never enjoyed before, a right of appeal. That right of appeal should be exercised to acquit men where there is or there can be a real doubt as to their guilt, but this new right which is given should not be made, and I trust will never be made, a way by which a man found guilty by a jury of his fellow-countrymen and, in the opinion of the courts of this country, correctly found guilty upon the evidence before the jury— a subterfuge by which a guilty person of that class who has wronged the community can escape from the consequences of the wrong he has done. I ask the House to reject this amendment and to stand over this section.
Deputy de Valera has been charged with speaking as a layman on this question. That is an outrageous imputation.
I think he said that he was proud of being a layman.
Some of us are proud not to be members of a certain trade union.
I have, of course, to dissociate myself from that.
I said "some of us."
I say that that remark in regard to Deputy de Valera is outrageous, because it is essentially a layman who is required to deal with this matter. It is like a jury making its case here. It is the mind of the jury asserting itself as against the over-legalistic mind. That is one of the valuable functions of an institution such as this. It is to safeguard not merely the rights to mercy as well as justice of the person who is charged, but also to safeguard the functioning of a jury properly, that we are opposed to this particular section. I think we made it clear on the Committee Stage that our opposition was to the principle underlying the whole of this section, and our attempt was to minimise that evil. As one who was associated with Deputy Ruttledge in the amendments which were put down, I quite frankly accept any blame attaching to the responsibility of not having moved at that stage for a more radical and fundamental amendment of the whole section. We could not touch sub-section (b), because it had been already dealt with, and we were only left the remedy of attacking sub-section (a). So long as sub-section (b) is there, there is no danger of a criminal escaping. If (b) were not there, it is just possible on a technical point of law that a criminal might escape, but so long as (b) is there the judge has more than ample powers, more than justifiable powers, to deal with the situation as it arises. As a matter of fact, we in this country are too much dominated by the genius of English criminal law, which is known all over the world as being extremely severe. It is very much more vindictive than it is remedial. As a contrast to ancient Irish law and to laws in other countries, English law is a very vindictive kind of law. Here you have the whole iron framework, the whole machinery of State, directed against one individual, let him be as great a criminal as possible. In the long run there may be imposed greater respect and reverence for the law in a country where you have justice tempered with mercy than in a country where everything is so fixed and so superimposed on an individual as to make people feel that it is something super human and something which is in human as a result. This is another case of the one-way valve, because it is giving greater facility to the legal machinery and it is leaving the severe iron framework of the thing directed against the person charged. Where this clause would be of any use would be in cases where either the pleadings had been wrongly drafted or some mistake had been made on the legal side.
What does the Deputy mean by pleadings?
I mean that it might happen that, in cases like these, mistakes might be made by the judge in directing for want of clarity or mistakes made by the lawyer who is directing the course of the case. In these cases a jury may get confused in their minds on technical points of law, and so give a wrong decision, wrong technically, and so, arising out of that wrong technical decision, the judge is called upon to make this particular kind of decision. I say that in that case it is far better that lawyers rather than the criminal should be punished, if only in order to ensure that they would be more careful in matters such as this. It is a natural thing, due to the over-earnestness sometimes of lawyers to see that the very letter of the law is carried out, to lose sight of the human element in a situation, and very often a criminal may be sufficiently punished by going through the suffering of having an appeal coming on than by being charged, tried, and convicted. A pending appeal might, as I say, be a severer trial than anything else, and, in the long run, mercy, even if it occurs accidentally, may not be against the cause of public policy. I move the adjournment of the debate.
