Vol. 37 No. 4
I move:
In line 24, to insert after the words "entitled to" the words "and in."
The purpose of the amendment is to introduce the words "and in" so that it shall read "the word `proprietor' means the person entitled to and in the exclusive occupation of the premises...." The person may be entitled to and yet not in the exclusive occupation of the premises. We want to make sure that he would be in exclusive occupation as well as being entitled to.
The only point in connection with that is that in certain cases it might be excessive to require a man who is applying for a licence and has not yet got it to have actually gone into the premises. If he became entitled to the premises, then he might be allowed to apply. It might in certain cases impose a hardship on individuals, if there was a doubt about their actually getting a licence, that they should not only be entitled to, but actually be in the premises.
What would be the position of a person who had an option on the premises conditional upon getting a certificate?
I do not think an option would suffice.
I think this amendment would give him some protection against, shall we say, profiteering.
I have not heard that anything has arisen that could be objected to under the law as it at present stands and it has been suggested to me that difficulties might be occasioned in the way of imposing something that might be not a serious hardship, but a hardship, on applicants if this were put in.
I understand the point is that the person might not be the actual proprietor of the premises— that is to say, he might not be in actual occupation of the premises, but he might be entitled to the premises.
Yes. He might not have gone in. There might be a lot of argument about what this amendment asks, but the position is that under the Bill as it stands he must be entitled to the premises. Under the Act, no other business can be carried on in the premises once he has the licence. I do not see that there is anything to be added to the Bill as it stands.
The only thing I was trying to guard against was that a person might be the proprietor of a premises, but yet not in actual occupation—somebody else might be in occupation. A person might be the legal proprietor of the premises, but not in actual occupation.
If the Deputy likes I shall make further inquiries before the next stage.
Very well, I shall withdraw the amendment.
It has been suggested to me that it might be useful if a definition of the words "loitering on the premises" were inserted in the definition clause. For that purpose it has been suggested that the definition might be the word "loitering" means "remaining in or about a registered premises without having any business to transact or after having transacted it." I am not moving this as an amendment, because I did not receive it in time, but I bring the matter before the Minister now.
We shall consider it.
I think that amendments 4, 5 and 6 might be taken together:
4. In sub-section (2), line 51, to delete the words "an excise penalty" and substitute the words "a penalty."
5. In sub-section (2), lines 51-52, to delete the words "five hundred pounds" and substitute the words "a sum not exceeding one hundred pounds."
6. To add at the end of sub-section (2) the words "or to a period of imprisonment not exceeding three months with or without hard labour."
The principle of the excise penalty in amendment 4 is covered by these and a number of other amendments which we propose to move. We object to the imposition of the excise penalty for an infraction of the law in this case, mainly, on account of the fact that it carries with it, in the present state of the law in this country, the possibility of imprisonment for an indefinite term during the pleasure, if I may say so, of the Revenue Commissioners. That does not apply to the law in England or in Scotland, where there is a very definite imposition. It is stated, for instance, that where the excise penalty, under the Summary Jurisdiction Act, exceeds £20, the period of imprisonment is not to exceed three months, and by the Summary Jurisdiction Act of 1908, in Scotland, a similar limited term of imprisonment is suggested as an alternative where the monetary penalty exceeds £20. For some reason or other the provisions of these Acts have not been applied to Ireland in the case of excise penalties. We think that is a very undesirable position. We are also anxious, as a matter of fact, that the imposition and enforcement of these penalties should be removed from the Revenue Commissioners and entrusted to the ordinary courts of the country. For that reason we are moving an amendment and, as we provide an alternative of imprisonment without hard labour, for a period not exceeding three months, we comply with the spirit of the Summary Jurisdiction Act of 1879 as applied to England, and with the Act that applies to Scotland in removing the discrimination allowed to exist in regard to Ireland.
I must oppose this amendment and, perhaps all other amendments, with one exception, to the same effect on the Paper. The Deputy devoted most of his time to what is merely a technical point, and one on which I have already given an undertaking to the House. I said, so far as indefinite imprisonment is concerned, I was prepared, in connection with the excise penalties, to introduce legislation limiting the term to which people should be imprisoned in default of paying the excess penalties. I, also, undertook that pending the introduction of such legislation no person would be imprisoned longer than the terms for which he could be imprisoned under the legislation in England. There has been a great deal publicly talked about imprisonment for life and so forth, but it is complete nonsense. I shall read out a list of the terms served by people who have incurred fines in connection with betting duty or entertainment duty during the last two years:—Six weeks, two months, thirteen weeks, seven weeks, nine weeks, five weeks, five weeks, one month, ten weeks, six weeks, eleven days, fifteen days, one day, five weeks, seven weeks, one week, two weeks, two weeks. That is for 1929. The roll for 1930 is, seven days, three days, two months, one month, one month, one day. So that a great deal of the Deputy's argument is really addressed to what is a theoretical point, although there has been a great deal of talk indulged in with regard to it.
With reference to the other point, that is a matter of substance. I think it is absolutely necessary that there should be minimum penalties for most revenue offences and particularly for revenue offences in connection with the betting duty. I think also that the remissions that may be suitable should be determined as a rule by the Revenue Commissioners. It is also possible for the Minister further to remit the penalty if he chooses. Most of the people at present engaged in carrying on bookmaking were engaged in the bookmaking business before the Betting Act was passed; they were engaged in carrying on an illegal occupation. The great majority of them were accustomed to breaking or evading the law and taking every sort of precaution to enable them to evade the law without incurring penalties. They are also engaged in an occupation which makes a man willing to take a chance. The publican who has a licence may sometimes be driven to take a chance, but taking a chance is not his profession. Taking a chance is the bookmaker's profession and he is as willing to take a chance with the Revenue Commissioners as with a customer. In a great majority of cases he is willing to take a risk in connection with the fulfilling of his obligations under the law. The result is that we have here a duty which is the hardest duty of all to enforce and collect.
There is one point about it that applies to nearly all revenue matters. There is not the same public opinion in regard to defrauding the revenue as there is in regard to defrauding the individual. I do not think theologically it is always the same thing. I have gathered that an individual may quite readily hold that taxation is penal taxation and that he is entitled to evade it if he can. It is, at any rate, true that people who would never think of robbing their neighbours and who would never think of uttering a false document to defraud a neighbour, think nothing of doing that when it is a matter of keeping some revenue out of the Exchequer. The result is that you have an enormous number of frauds carried out on the Exchequer. There is the possibility of making detection in only a very small proportion of these cases. It may frequently come to the notice of the revenue authorities that a bookmaker is carrying out systematic frauds against the revenue. Hints and rumours of various sorts may come to them. There may be absolutely no doubt that these frauds are taking place, yet to obtain detection is a difficult matter. Very often to obtain detection a revenue officer must disguise himself as a corner boy. He may have to frequent the place for a month until the bookmaker begins to look upon him as a regular customer and he then begins to play some tricks with the betting. If the customer is not known to him the bookmaker will enter his bet properly; he will only do something wrong with the bets of the people whom he knows well. It may take a month to enable the revenue officer to succeed in securing a conviction against that bookmaker.
The case then comes before the Disstrict Justice and it appears to be only one slip on the part of this excellent man who is before the Court. No evidence can be given about a great lot of matters that are within the knowledge of the revenue officials because those matters have nothing to do with that particular case. Under our law of evidence such matters cannot be brought within the knowledge of the District Justice and he does not know what the problem is or what really is the sort of case that is before him. We have frequently had District Justices urging remissions. There was one case in which the District Justice confessed afterwards —although I dare say his memory is only good in parts like the curate's egg—that if he had had the facts before him he would not have made the recommendations that he did make. He has now apparently forgotten all that and he has gone back; he only remembers his anger at the beginning with the Revenue Commissioners. The position is that all the evidence cannot be placed before the District Justice and all the picture cannot be presented to him.
In regard to offences between private individuals the whole public attitude is different. The man who commits an offence against the revenue will not think of defrauding a private individual in any way. More severe penalties are necessary if the revenue code is to be administered at all. The standard of monetary penalty by which a District Justice will ordinarily be guided is not applicable to this sort of offence. If you remove the minimum penalty, which is what Deputy MacEntee suggests, you will have lots of cases where a man ought to be fined £500, but where, instead, the delinquent will get off with a fine of 10/- or something like that. That man will be prepared to put up the sort of case that can be put up.
So far as the betting duty is concerned, I read out the list of imprisonments and I say that there has been no severity exercised. Apart from the terms of imprisonment being short, the penalties are remitted and very frequently, too, they are remitted by authorities who have some knowledge of the circumstances and who are much better able to determine in this sort of case what remission is suitable and what is necessary in the way of a deterrent than can be estimated by the District Justice. There is no such thing as bringing an individual before the Court for a technical slip or a single offence. Individuals are warned frequently and when a man is brought forward on what appears to be a technical offence he is brought there because there is absolute certainty in the minds of those handling the matter that he has been carrying out systematic defalcations. Anybody may make a slip, and every allowance is made for that, but when there is a systematic campaign of defalcation it may be months before the individual is brought before the Court.
I have no hesitation in saying that if this minimum penalty were removed, whatever might happen at the end of ten years when we would have gained experience through whatever we might go through, the immediate effect will be to make the administration of the law in this respect almost impossible. It will lead to an enormous loss of revenue and an enormous encouragement of frauds on the Exchequer. It is not without good reason that, in regard to revenue offences both here and in England, the system of minimum penalties exists. That matter has been subject to examination for a long time and there is a good and solid reason for it. The good and solid reason is that these penalties must be penalties in terrorem. There is no possibility of detecting the same proportion of offences as there would be of detecting private frauds. There is not the same conscience amongst the people in regard to them and, if the revenue has to be adhered to at all, if a man is caught there must be a stinging penalty.
The Minister seems to think that there is a class in the community that must be treated as outlaws.
No, not at all.
The Minister has made a very strong case for having this particular class excluded from a fair trial in a public court. I am not concerned with what class it is, whether it is a class of bookmakers or any other class, but such class should not be excluded from a fair trial with full jurisdiction given to the judge sitting in that court. That principle is laid down under Section 64 of the Constitution, which says: "The judicial power of the Irish Free State, Saorstát Eireann, shall be exercised and justice administered in the public courts by judges appointed in manner hereinafter provided." If you take away from a judge the power of imposing a penalty, if the judge has only an opportunity of saying whether a man is guilty or not and if he has not the power of imposing a penalty, then the judge is exercising a purely administrative act and not a judicial act.
Nonsense.
He is not exercising the power of a judge and therefore this law is in contravention of the Constitution. If the Minister has a good case to make he should amend the Constitution. He should take the Revenue Commissioners and their powers outside the Constitution but, so long as it is there, it is a grave question of doubt whether you can implicitly amend the Constitution. We may, in this House, be doing something which is unconstitutional and the law is invalid. If you like you can legislate for the purpose of litigation, and make an excellent case for people to carry to the courts of law. We are to have very important points on this issue submitted to the Courts in the near future, on the question whether the Revenue Commissioners, under the Constitution, can carry those powers of excise penalties or not.
I do not want to minimise the penalties. I do not want to let any class in the community escape from what is due or from whatever penalty they have incurred if they break the law. A great many of us hold very strong views on the evils of betting. But we do not want those people to be getting by a side wind a sort of sympathy from the community, because they are labouring under a real constitutional difficulty. The Minister made a case showing how hard it is to detect these people. But that has nothing whatever to do with the issue. In any case the Revenue Commissioners have to prove in a court of law that a man has been detected in an offence against the betting laws. They have to prove that in court. On the point whether the officers are carrying out their work efficiently, from all I can gather, they are not merely carrying out their work towards that class of the community efficiently but they are doing it with a certain degree of harshness. Be that as it may, at the same time they do seem to be doing their work efficiently.
So far as bringing cases into court is concerned I do not think the Minister has any complaint. The question is whether the power is to lie with the judge to impose a penalty or whether he is to use his discretion in fixing a penalty. I do not think there is any judge in Saorstát Eireann who will not be as severe as the Commissioners and, because they have the Constitution behind them, they will carry a far greater weight with public opinion in any sentence they impose on a person who breaks the law. A district justice, in giving evidence before the Betting Commission—evidence which was ultimately supported by the findings of the Commission itself— mentioned the anomaly of those powers of the Revenue Commissioners. He said at the Commission that it seemed absurd that a justice should be obliged to inflict a penalty for an offence which is frequently a minor one—a penalty of not less than £500.
It showed he did not know a thing about it.
The penalty is a penalty of £500 and it is only the Revenue Commissioners have the power of reducing that penalty. What have we seen as a matter of fact? It is a matter of absolute public scandal where penalties and a whole series of penalties of £500 have been imposed upon a very prominent "bookie" in this community and these penalties had to be reduced to almost a nominal amount afterwards by the Revenue Commissioners. Would it not be far better if those cases had come up for review in the public courts? When the man had been tried in the public court and had been fined, the fines imposed would be measured according to his means. I do not know whether the Revenue Commissioners have received the mitigated fines in that case or not. Nobody knows. It is a matter of secrecy. It is a matter which does not come before the review of the general public. These things should be settled in public court and subject to the ordinary machinery of enforcement, so that if a man commits an offence he should go before the public, and the ordinary machinery of law should apply to him. It should not be a matter for private negotiation and very often of corruption. We have seen where two officers in the employment of the Revenue Commissioners have been punished for corruption in connection with matters affecting the bookmaking community.
It is all very well to say that the Judges and the court know nothing about these things. The Judges have the general view of the community. It is not merely an offence by one class of the community or by people of a particular section who come before them. The Judges see the terrible evils in other crimes connected with betting evils. They see evils committed which arise out of that evil. They see the results in various directions. They, more than anybody else, have reason to know that they should be extremely severe in dealing with offences under the betting laws. Therefore there is nothing whatever in the case that the Minister makes that these Judges are persons who are living in the moon so far as Revenue offences are concerned. Offences under the Betting Acts are not regarded in the same way as offences by a man who tries to do the Revenue for income tax or excise, or customs on goods brought into the country. These are regarded by the community as matters to which no great odium attaches. But the community generally has a very strong view that there is essential crime involved very often in connection with the business of betting and therefore they do regard offences in these cases on quite a different basis from merely Revenue offences. I must say that the Minister from the point of view of his own Department is making a great mistake in trying to enforce these excise powers. His Department would gain greatly in prestige and would gain greatly in the sympathy of the community generally if the public felt that the Revenue Commissioners had not these tyrannical powers. One Deputy on these benches said privately that these powers are like a snake in the grass. They are something that is there, lying there. It is something that may not stir or may not move, but the power is there, and it should not be there if we are to have any regard for constitutional Government in this country.
I personally am not opposed in any way to offences under the Betting Act being treated seriously. I am, however, opposed to giving any further powers to the Revenue Commissioners having regard to the public experience in connection with the manner in which their present powers have been administered. I am supporting this amendment on two grounds, apart from the grounds of our personal experience on the matter of excise penalties, which have been considered very carefully by the Committee appointed under the presidency of Deputy Morrissey, the Leas-Cheann Comhairle.
In that report there comes from a committee, comprised of every section of this House and every section of the Seanad, a unanimous declaration that the law as regards excise penalties should be amended. As a member of that committee who agreed to that recommendation, I am bound by their findings, and I am not going back on any findings of which I approved. Apart from any other reason, by reason of the findings of the committee being in favour of the amendment and against the imposition of further penalties by the Inland Revenue Commissioners, I am in favour of it. The excise penalties which existed in England up to 1879 were then modified, as they were found to be very oppressive but, at the end of more than fifty years, we have the Minister for Finance and the Revenue Commissioners here doing all they can to hang on to a power which, at best, is a relic of barbaric antiquity, as it allows the Government to send a man to jail for an unlimited period, at the pleasure of the Revenue Commissioners and other officials, and without giving his case a fair and impartial judicial hearing. The Minister for Finance said, at least twice, that the Commissioners of Inland Revenue are better judges as to the necessity for the remission of penalties than the district justices. I beg respectfully to disagree with that, and I trust that he will not take me disrespectfully when I say that it is present to the mind of every schoolboy, that a district justice, knowing the district, having the man before him, and being able to inquire into both sides of the case, the case presented by the Inland Revenue and that presented by the defendant, is a better judge of a suitable penalty than a clerk in the office of the Commissioners, or even one of the Commissioners themselves sitting in Dublin.
Very painful have been my experiences, which are the very opposite to what the Minister for Finance says occurs. I have seen instances, over and over again, of harshness and cruelty on the part of the Commissioners, which would have been entirely avoided if the district justices were given the same discretion as that given to the justices in England. The Minister for Finance appears to me to throw a slur on the district justices. Ordinarily he must admit that a Commissioner of Inland Revenue, if allowed to sit in a district court, would be better than a Commissioner sitting in an office in Dublin. I have experience of many district justice and I found them very satisfactory. They perform their duties intelligently and impartially, and do them fairly as between the State and individuals and between individuals themselves. I think that when you have the chief District Justice of Dublin, who has brought credit to the Bench, to himself and to the country, coming in and giving evidence of complaints which he individually had to make against the way in which his recommendations were turned down by the Commissioners of Inland Revenue, he ought to be met in a fairer spirit than that in which he was met by the Commissioners.
The chief District Justice made a specific charge to which there is not, and cannot be, an answer. He charged the Commissioners with having consistently turned down the recommendations of District Justices before whom cases were heard. That is the charge that was made, but from that day to this, no attempt has been, or can be, made to answer it. What happened? It appears that the chief District Justice made a slip in the individual instance he quoted and then down comes the Minister for Finance hot foot, escorted by a horde of Revenue Officials and says, "Oh, look at this; we have caught the chief District Justice out. He gave the wrong instance." The Minister for Finance though loud in his denunciation, made no attempt to answer the complaints of the chief District Justice and only pointed out that the one example which he gave was inaccurate. Not content with that, the same officials— this is a matter of public record— though six months had elapsed, did not think that the public had been sufficiently deceived by the answer which they instructed the Minister to make, and sent another official before another Committee to repeat the denunciation which the Committee had before them six months previously.
I gave the Minister some instances and in one case, at all events, he was good enough to point out in the strongest possible manner how inaccurate I was. On information supplied to him by officials of the Revenue Department—he could have got it from no other source—he denied the case which I had given him and said it was inaccurate on three separate grounds. I had put before this House the case of an unemployed workman who had been sent to jail for non-payment of income tax despite the fact that the Inland Revenue Commissioners had before them at the time full knowledge of the fact that they were dealing with an unemployed man who, during the six months which he had been working, had paid a sum of £26 towards his arrears of income tax. He was a law-abiding citizen and was prepared to carry out the law. What was the answer? The Minister for Finance rained down ridicule on me. First, he said that this man was the owner of the house in which he lived; secondly, that the poor law valuation of the house was £42, and, thirdly, that the man had £500 in British War Loan. I knew that the first part of the story was a concoction and so did a great many people in the City of Cork. The matter did not arise in my constituency, but it had been published in the Press and I knew something about it. I inquired into the other two points and I ask the Minister who was the official who gave him the information. Take the question of valuation. I hold that an official is not fit to be in his position if he does not know the valuation of a house in regard to which he is collecting income tax. Knowing that the valuation of the house is £18 he comes here and instructs the Minister for Finance to state that the valuation was £42 and that it is this man's property. Well he knows that he has no interest in it and that it was as an act of charity that his wife was able to start on her own.
The conduct of the officials of the Inland Revenue Commission must meet with the approval of those above them as otherwise it would not be allowed to continue. I could give other instances showing that what the chief District Justice complained of is absolutely and literally true. I was present one day in the District Court when a man was fined £25. The facts as set out by the defendant, if true, constituted a complete defence. The District Justice stated that he was satisfied with the facts as put up by the defendant as being true, but he thought that they did not constitute a defence and imposed a penalty of £25. On looking into the matter subsequently he ascertained that the facts as set out by the defendant were true and that the man was not guilty.
He sent up a recommendation to the Revenue Commissioners showing the facts, and to his credit be it said, the facts are as stated in the petition. The facts show that the defendant was not guilty, but he thought that under all the circumstances a technical offence had been committed and he recommended that the penalty he imposed be mitigated to £5. What was the answer? "The law must take its course." Is it any wonder you have the District Justice protesting against this imposition by the Revenue Commissioners who are unable and unfit to adjudicate or to discriminate between a poor man and a rich man, between a serious offence and a minor offence? Believing as I do, that to give further powers to the Commissioners of Inland Revenue would be to add further scandal to the administration of law, I support this amendment.
I would like also strongly to urge that this amendment be accepted. I hope that if it is put to the House it will be carried. Deputy Wolfe might have put his forcible arguments in words in which I would have expressed my feelings on the matter. The Revenue Commissioners are not concerned with nor do they understand even the slightest elementary rudiments of justice. What they are concerned with is the collection of money. In every case in which they have had to deal with offenders, whether they were fraudulent offenders or were just technical offenders against certain regulations of the Commissioners, the case has always been decided on terms of the man's position—what they could get—and not on the merits or demerits of the case itself. For that reason I strongly support the case put forward, particularly where it is an offence that should be judged on the merits, that the District Justice should be the person to decide. You have two classes of offenders. You have the man who makes a genuine mistake, but the District Justice has no option. He must impose the maximum fine and it will be mitigated only if the man can prove that he has not got the money to pay. A man who commits a calculated fraud is treated on the same basis. The District Justice will not compound with the man who has defrauded, but he will compound with the man who has made a technical error.
The Minister for Finance knows that I have had considerable experience in dealing with cases of bookmakers who were in trouble. In fact he has no excuse for not knowing because he wrote me a letter on one occasion not to interfere further with the Revenue Commissioners in the administration of their affairs. He forgets that it was as a result of a conversation with himself arising out of a case which I had brought to his notice that he made an appointment with me to meet the Revenue Commissioners when there were nine bookmakers in jail. Arising out of the correspondence I had to deal with these nine cases. The Minister read out a list of the offenders and the terms served, but that did not convey anything. Will the Minister admit that amongst these people he had in jail for not being able to pay was a man in the last stages of consumption? He died shortly after release. I asked that the man be released because of the state of his health. The District Justice would have looked into that case and would have sentenced him to a term, but would not have left him there in jail from day to day. That man has since died. I do not know if his being held there did the Revenue Commissioners any good; it certainly did not do him any good.
How do the Revenue Commissioners get their information and how do they act? Deputy Little pointed out that the method under which the Revenue Commissioners have to deal with these bookmakers brings about a peculiar state of affairs. As a matter of fact when the original Act was put into operation a whole deal took place between a certain few officials and the bookmakers, with the result that both these officials have since been reduced in their positions because evidently things have not been carried out in a proper manner. That is a proof of the danger of having officials of the Department dealing with matters of this kind. A bookmaker may have acted fraudulently, and he goes up to the Revenue Office and says; "I will pay you £50," and they say "No, we want £100." Then you have a compromise at £75. That is how it was done before. There may have been a tightening up since because the Revenue Commissioners have had sad experience in this particular matter.
The Revenue Commissioners have two ways of dealing with bookmakers. They have credit bookmakers who can act on certified returns. The bookmaker can at the end of a day or at the end of a week figure out what his bets have been, and send in a certified return. In other words, he gets credit until the Revenue Commissioners check his return, and then he sends in his cheque after a week or fourteen days. There is also what is known as sheet betting. In that case the bookmaker has to buy a sheet on which he can enter a certain number of bets to a certain amount, and the duty is paid on that. Every bookmaker is anxious to be allowed to pay on certified returns, because it makes his business easier if he is in a big way. The Revenue Commissioners, however, can change a man from certified returns to ordinary sheet betting without giving him any reason whatever for doing so. A bookmaker will do anything to be kept on the certified returns, and perhaps he will make a complaint against a brother bookmaker. On that complaint the Commissioners will act. Although the complaint is made confidentially, and although the man against whom the complaint is made may know nothing about it, he is given no explanation for being taken off certified returns.
I would ask the Minister to supply the House with the number of cases against bookmakers during 1930, the number sent to jail, the various fines imposed, and how they ultimately settled. How many of these were subsequently released without any payment at all being made? How many were released after the Revenue Commissioners had accepted the amount offered them before the men were sent to jail? How many men paid the fines? If the Minister for Finance wants to impress the House, or wants to impress people who are anxious to see a fair administration of justice let him give the full facts, not that A.B.C. was fined so much. Let him tell us that this man got so many months, and that his fines amounted to £2,500. On inquiry it was discovered that the man was not worth 2,500 pence. They kept him in jail for six months in the hope that his brother-in-law, a prominent jeweller, would pay the amount. When he did not they let him out, or compromised by taking the money at so much per month. That is what has been happening all along. On these benches we are not anxious to countenance or to compound a felony. If a man has defrauded the Revenue Commissioners he can be brought into court. Let the Department of Justice, through the district justice, sentence or fine him. There should be no further mitigation if it is proved on evidence that he was guilty of fraud. We feel that the administration of the Betting Act, if the Minister's point of view goes through, will mean that the Revenue Commissioners will be dealing with cases without judging the merits of the individuals concerned.
How do the excise officers find out these offences? The Department employs officers, who are changed from time to time. They go around to these betting offices, as the Minister described it, "disguised as corner-boys." It must have a good effect on an excise officer to hob-nob with corner-boys, in order to catch people who are attempting to defraud the revenue. Take the case of a revenue official who has been betting for a month and who goes about to these places. I want to know who is paying for his bets, and what check the revenue authorities have on the bets he makes. If he says that a bet represents 5/-, and if the bookmaker's returns only show 2/6, how do we know which is right? It is on the complaint of excise officers over a series of weeks that these cases arise. An official might have a bet on each race or seven bets in one day. It is on the official's complaint the Revenue Commissioners proceed. I have heard it stated by bookmakers who have been fined on the complaint of a particular revenue officer that he had not spoken the truth, but that they had no possible means of having their word taken. They maintain that mistakes were made in the case of particular bets.
I think, if we are going to legislate with any sense of responsibility, we should see that justice is administered in the interests of those who are affected. It is all very well to take the Minister's point of view, and to look upon all bookmakers as a bunch of calculated rogues. I do not feel that way. The Minister said something he should not have been allowed to say, that the memory of the chief District Justice was only good in spots. The chief District Justice is still functioning, so that it is most unfair to refer to him in that manner. The Minister for Finance stated that the chief District Justice's memory was only good in spots. He is administering justice in the courts, and sends men to jail for serious offences, generally more serious than the technical mistakes that are made in betting transactions.
Does the Deputy suggest that the Minister's statement was out of order?
I am suggesting that the Minister might not have made that statement. I am not to decide what is in order here.
Is the Deputy raising the point as to whether the Minister's statement was in order?
I considered it a breach of privilege.
What is the meaning of a breach of privilege?
It is a comment on the conduct of a judge—a comment of an objectionable nature.
This is a rather important matter. I would like the question to be amplified as to whether the statement made was a criticism of a Judge so as to bring it outside the practice of the House, which is that Judges in the carrying out of their judicial functions are not open to criticism.
I am not going to decide, and I am not in a position to decide, what is technically right or wrong. I did not want to pursue it until you, sir, asked me to explain. I want to say, as a layman, that the District Justice, so long as he is able to function, should not be spoken of in the distasteful manner that he was spoken of by the Minister for Finance in this House. I would like to feel that the District Justice of any area is not a man whose memory is only good in spots.
When a District Justice gives evidence before a Committee of the House on a matter which will necessarily come up for debate in the House, his opinions may be debated. A certain District Justice, apparently, stated in evidence before the Joint Committee on the Betting Act his opinions on certain matters, then the subject of consideration by that Joint Committee. He was not acting in a judicial capacity at all, but was giving his views as a witness. To debate opinions so given, is wholly a different thing from offering criticism of the judgment given by the District Justice, or by any other person exercising judicial functions. I want to get that point of order cleared up, but I am not in any way objecting to Deputy Briscoe's comment on the Minister's speech. The Deputy is completely entitled to his view as to whether any member of the House should express himself in a particular way.
If the Minister for Finance had stated that the District Justice in giving his opinion in this particular case had made a mistake due to an error of memory I would have accepted that. But when the Minister for Finance sweeps away the opinion of that particular Justice by saying his memory is only good in spots, that is the point I object to.
The criticism, I took it, was directed towards the views the District Justice expressed on this matter.
The suggestion is that he remembered only what he wanted to remember and forgot everything else. I object to the Minister for Finance referring to the Justice in that particular way. I am prepared to leave it at that. The Minister has not made it clear to the House that where a bookmaker goes before the Revenue Commissioners for certain offences, or where brought before the District Justice, he may be fined on five or six counts, on each of which the penalty may be £500. Such a person may be fined £2,500. If he is brought before the Revenue Commissioners he may be fined £500 for five different offences without any distinction being made to ascertain whether the five offences arose out of the one transaction or not. There is no possible chance for a man in that particular business feeling secure except along certain very narrow lines. If he trips and falls, or if he makes a genuine mistake, he is liable to be convicted if his complexion or colour does not agree with the person sitting in judgment on him. That happens to be the feeling abroad. Before betting was legalised and recognised by the State, which is getting certain revenue out of it, we must not lose sight of the fact that bookmaking was a business that was generally carried on by people who kept their business in their hats and in the bags they carried. They had good times and bad times. They took hazards that ordinary business people would not enter into. They might do well to-day and badly tomorrow.
The Revenue Commissioners want to put bookmaking on the same basis as business houses with a tradition of years behind them. They want to put them on the same basis as big limited liability companies that have been carrying on for generations.
Many of the men in this business are illiterate. They are honest, decent men but their circumstances were such that they went into the game, as they call it, at an early age. They are good judges of horse-flesh, and they will back their opinions at long odds as to what horses will win. The technicalities of customs and excise regulations would be foreign to them. Very few of these people understand business in that sense. I want to ask the Minister if he is prepared to give to the House particulars of each case and the cases referred to in his list. Is the Minister prepared to give particulars of those who were sent to jail, the nature of the original offence, whether it was a technical offence or otherwise, the fines imposed and the subsequent treatment of each case?
I would like to ask the Minister if he is prepared to state if the Department has always acted on information given by the excise officers, or if it has acted on information given by outsiders. I had one particular case brought to my notice where one bookmaker made a complaint against another that the bet he made was bigger in amount than appeared in the other man's book. The Revenue Commissioners acted on that information. I would like the Minister to say if he thinks he is going to get the best results, in the interests of common decency and justice, by continuing in the manner he wants to continue by this clause, or is he prepared to meet us in some way, apart from the assurance he has given? Is the Minister prepared to give an assurance that in cases of mistakes a distinction will be made, and that the cases will be judged on their merits? In cases of calculated fraud there should be no compounding with fraud. We ask that in cases of genuine mistakes the men will be treated differently from those who committed fraud.
I have already stated that I am prepared to bring the whole law in relation to excise penalties into line with the law in England. Deputy Wolfe misread the law, but I do not think that was intentional on his part, I am not trying to hold any powers that do not continue in England. This amendment goes miles beyond that, because in all the excise penalties in England there is a minimum penalty which the Justice of the Court must impose if there is a conviction. I say that the minimum penalty is necessary in revenue law, and more necessary in these cases than in any other cases. I think that the whole administration would become a farce if we went the length that this amendment proposes, by deleting any excise penalty, and leaving the matter entirely to the Court. No revenue officers were found guilty of corruption. There was no evidence at all that would suggest that the officers had become corrupt or acted corruptly in any way. There were two officers in whose cases fault was found with the way in which they had discharged their duties. I think I was satisfied after investigation that the officers were guilty only of indiscretion, and their punishment consisted in removal and reduction, which amounted really to extremely severe penalties. Deputy Little suggested that the judge had no discrection. Of course he has discretion. He can mitigate the penalty to 25 per cent. Deputy Little further suggested that it was unconstitutional to have a fixed penalty. Is it unconstitutional to have a fixed penalty in, say, murder cases?
The whole court works together in that case.
Generally speaking the prerogative of mercy in all cases rests with someone outside the judiciary. A great deal of attention in fact is paid to recommendations from the judiciary. A great deal of attention is paid to the recommendations of District Justices. Very frequently perhaps, as a rule, the recommendations of District Justices are accepted. All this pother has been to a large extent created by the evidence given by Mr. Cussen. As I have already said Mr. Cussen, in giving his evidence, forgot what was the central fact. He in a certain case recommended a mitigation which the Revenue Commissioners did not give. He then refused to sign a warrant for the man's arrest. Later on he signed a warrant when he had certain facts before him that were not before him at the trial. He admitted that if he had these facts before him he would not have recommended the mitigation. He endorsed the warrant "in my opinion this man should not be kept longer than four months." In fact the man was only kept three months. The District Justice in his evidence said "I have no confidence that the Revenue Commissioners will give any consideration to a recommendation from the District Justice's Court." What he forgot and left out in his evidence in the one case he cited was that he himself did acknowledge afterwards that if he had known the facts he would not have made the recommendation. That is why I say that his memory was only good in spots. Without intending it, his evidence entirely misled the Committee with regard to the facts of the case and with regard to the attitude of the Revenue Commissioners generally towards recommendations made by the District Justices.
In view of the attitude the Minister has taken up in his speech I think it would be advisable if we had the principle of excise penalties separately decided. whether there should be a minimum or a maximum penalty fixed. The two things do not hang together. As there are separate amendments on the Order Paper dealing with them, I think the House should decide as to whether they should be taken separately or not. The whole burden of the Minister's speech has been directed to the substance of amendment 5 which is to make the penalty a fixed maximum.
No. I hold to the excise penalty.
Yes, but by directing the burden of your speech to the substance of amendment 5 you have prejudiced the issue raised by amendment 4.
At present an excise penalty carries, although only technically, indefinite imprisonment. I say that imprisonment has always been a short term. I pledge myself until we have amended the law that it will only be for a term equal to the English term. Excise penalties carry certain things which can only be mitigated to a certain point by the Justice.
What difference does Deputy MacEntee's suggestion make?
The difference is this there is a very important issue involved in the case of the excise penalties whether remission should be made in open Court or in star chamber as is done at the present.
That is the minimum penalty. I stand on these words "excise penalty."
What does the Deputy suggest we should do?
Whether the penalty should be imposed in the ordinary courts of law or whether it should be an excise penalty the collection of which is entrusted to the Revenue Commissioners.
Is not that the point in amendment 4. Could we not decide that now?
We could decide it separately.
The Deputy wants to decide No. 4 and then go on and decide No. 5.
Yes. Before any decision is taken I want to say something. I think that the Minister, in fairness to the House, should now put before it all the facts in relation to the cases he has cited to the House. He made a partial disclosure. I think he should make a full disclosure. He should tell the House what penalties were actually imposed by the Justice in these cases, for what amount they were actually compounded by the Revenue Commissioners and for what duration people on whom they were imposed were kept in prison. I think we are entitled, before proceeding further, to have that information. Furthermore, I think the Minister should tell the rank of the officials involved in the disciplinary proceedings, the offences with which they were charged and the punishment meted out to them. I think it is essential for deciding the issue at stake in these amendments that we should have that information.
I wish to ask the Minister for Finance if I correctly understood him to state that it is the intention of the Government, at a reasonably early date, to introduce legislation to revise the existing incidence and punishments attached to excise penalties.
To bring the law into line with the law at present existing in England.
I am quite satisfied with that. That is all I have ever asked.
Before the debate goes on, is the Minister prepared to give us information? I have to speak, but I think it is unfair that the Minister has prejudiced the issue by stating that in a considerable number of cases men were only imprisoned for comparatively brief periods. That is only part of the case. What we want to know is what amount did the Revenue Commissioners accept in discharge of the penalties imposed on them by statute? That is more important than the duration for which men were imprisoned.
I give those facts with reference to one point only, this question of indeterminate imprisonment, to show how it is working.
Will the Minister state the rank of the officers who were involved in disciplinary proceedings which have been referred to in the House? Will he state the offences with which they were charged?
I will have to consider that. They were not charged with any offences, but their official conduct was subject to examination. I do not think it has any bearing on the Bill.
It has.
It has not.
That particular matter has got a bearing on the Bill as far as I am concerned. One of those officials was highly efficient and a first-class official with regard to his history, the examinations he passed and the promotion he got. Had that man not been put in the position he was put his present situation would not have arisen. You put an official on the basis of dealing secretly and privately with the men who, according to the Minister, are a pack of rogues. Arising out of certain allegations made against him, certain charges must have been found; otherwise he would not have been punished to the great extent he was. The continuance of that particular practice is all wrong. For that reason I think we should be given some information as to what the allegations against those men were. We know from information also certain details about those particular cases.
The Minister for Finance wants time to consider. That seems to be one of his peculiarities. He ought really to know that the evidence upon which the case is founded when it is in his possession is a thing which would be asked for in the House. He ought to have in his possession that evidence ready for presentation to the House. We are in the very extraordinary position that we are asked to come to decisions upon matters in which selective evidence is offered to us in which the Minister for Finance can give or withhold the facts which are privately in his possession, exactly dependent upon whether they serve or fail to serve the particular case which he has put forward. We have had that in relation to tariffs. We have had it in relation to other things. There is this careful, selective reticence in the divulgment of information as to the basis upon which this House shall come to a decision. I object to that. I object to a Minister coming here to recommend to the House a Bill the goodness or badness of which depends upon specific evidence, and that Minister being in the position in virtue of his majority to say that he will or will not put before the House evidence just exactly as it suits his case. That may be judicial procedure. That may be sound politics. That may be statesmanship, and it may be good legislation in the definition of it by the Minister. But in my opinion it is an outrage upon every democratic principle and an outrage upon any possibility of sound and honest legislation.
As to the excise penalties themselves, I take such a law as the one which is challenged here as being merely typical of a lot of others. I believe in the administration of all law, good and bad, so long as it is on the Statute Book; good laws because they are good laws and bad laws because in my opinion the only and most effective way under a democratic Constitution to destroy bad laws is to administer them. What the Minister claims in these cases is the right to give or to withhold. These bad laws which are not administered are simply snakes in the grass, kept there to be used as and when it suits particular interests and particular purposes and not upon general principles. If there is a law which is allowed to stand upon the Statute Book that law should be administered. If there is a law which cannot be administered as it is written, which cannot be given general application as it exists, that law should disappear because it creates a condition both of prejudice and of privilege, depending entirely upon the relation between the interests of those who have the power to administer it or not and the people who may come under its lash. I move to report progress.
