We oppose the principle contained in Section 5, and we are doing it by an amendment to delete sub-section (1) (a). On the Committee Stage we tried to and succeeded in deleting what then was sub-section (b), but we failed to delete sub-section (c), so, in order to get rid of what we considered a wrong principle in this Bill, we are now attempting to delete sub-section (a). To refresh the minds of the House I will just read the section again:
(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.
We were glad to see the House taking up an independent attitude at the earlier stage of this Bill, and that after careful consideration it rejected the point of view of the Minister for Justice and deleted a clause which contained a principle, which the House rightly considered was a faulty innovation, an innovation into the law which was dangerous to the subject and was giving too much power to the judge to the extent of ousting, or, at least, usurping the jurisdiction of the jury by curtailing the chances of clemency which might accrue to a person who is being tried. We argued this matter before, and I hope when we argue it again that the House will take as open-minded a view of it as it did before, and form its own judgment, and delete sub-section (a). We argued before that the machinery of the law is there against one man, that the whole forces of the State are there against one single individual, that prosecuting counsel has had ample opportunity of drafting the indictment properly, that the judge has had ample opportunity of charging the jury properly, and that, therefore, there is no reasonable excuse for the jury making what amounts to a purely technical mistake. It is merely to prevent the person charged from getting the benefit of a technical mistake that this clause is here at all. In most cases a mistake made by a jury will be made on the ground of error, either by the prosecuting counsel or by the judge. It will not occur very often, and, when it does occur, we consider that it would be a worse evil to give a judge power to assume the position of a jury than even if one criminal were to escape.
The Minister for Justice seemed to be dissatisfied that when we had our own way on one sub-section, we did not agree then to the other sub-sections, but it is necessary to point out that we did not agree to sub-section (b). In general, we considered that it was not a proper principle to apply. When we consider the Bill as a whole from the point of view of criminal proceedings, this is the most important principle involved in the Bill apart from the question of the Irish language. It is what you might call a sort of omnibus Bill. It deals with what the Government considers to be defects in the original Bill. It is not a Bill containing one principle and carrying out the consequential results of that principle. It is a Bill dealing with various matters. A most important principle from the purely legal point of view is contained in this Section 5. If Section 5 is passed as it stands, we naturally object to (b) as much as we did to (a) but we cannot delete (b) because we were defeated on the Committee Stage. So in principle we consider the whole Bill as wrong and from that point of view we are opposing it and we are opposing, in particular, Section 5 of the Bill.