Public Business. - Courts of Justice Bill, 1934—Recommittal (Resumed). – Dáil Éireann (8th Dáil) – Thursday, 6 Feb 1936

Public Business. - Courts of Justice Bill, 1934—Recommittal (Resumed).

Debate resumed on the following amendment:—

Before Section 51 to insert a new section as follows:—

Justices of the District Court shall hold office by the same tenure as judges of the Circuit Court.

—(Deputy J.M. Burke).

Mr. Burke

When this amendment was before the House on the last occasion I said that I proposed to challenge the whole section. Let me say, before I make any further remarks, that there are a few tactless district justices who at times are very fond of delivering moral homilies censuring the Government and making extra-judicial statements instead of administering the law as they find it. In fact, they sometimes go so far as to censure the Legislature itself. That, I believe, is entirely wrong, because their business is to administer the law as they find it. I do say that no officers of the State are entitled to greater security of tenure than district justices. They live within their respective bailiwicks. They are in touch with all the people, and are at the mercy of every disgruntled blackguard who has any grievance, or fancies he has a grievance, against them. Under these circumstances, I submit that they are entitled to the same security as the Circuit Court judges and the High Court judges.

What is the meaning, and what is the object precisely of this section? Is it to degrade district justices to a position of servility, to deprive them of all independence, and, as it were, to make them the subservient tools of any Government that may be in power? I ask Deputies to go carefully into Section 51. It provides that

"The Chief Justice, the President of the High Court and the Attorney-General shall constitute an advisory committee for the purposes of this section, and when acting as such committee shall have full power to inquire into and investigate in such manner as they think proper, whether by examination of witnesses or otherwise."

In other words, the advisory committee may hold an inquiry, or some Star Chamber proceedings, and act on some unofficial report from some disgruntled person in the country. That, in my humble opinion, is against every principle of justice. The section goes on to say:

"The Minister for Justice or any member of the said advisory committee may at any time bring to the notice of the said advisory committee either of the following matters in relation to any particular justice of a District Court, that is to say

(a) the fitness of such justice to continue to hold his office having regard to his mental or physical health or

(b) the conduct of such justice (whether in the execution of his office or otherwise) either generally or on a particular occasion."

These provisions place a district justice in a very unenviable position. In other words, the advisory committee can inquire into all his acts, either inside or outside the court; for instance, where he has spent the evening, what he has been doing during the night, has he been playing cards or attending a dance that perhaps has not been sanctioned by the court of the land; has he been doing something that does not meet with the approval of this advisory committee? Suppose he goes down the country and puts a bit on a horse, as I am sure the Minister for Justice sometimes does, is that to be brought against him? It may be against the law.

Mr. Cosgrave

Only if he loses.

Mr. Burke

It may be brought against some particular district justice who has been doing his duty but who, perhaps, has been doing it in a manner not satisfactory to whatever Government may be in power. The section goes on to say that these matters may be brought before the advisory committee and investigated by it. It does not say that the district justice is entitled to be represented by counsel. to call witnesses or to cross-examine those who may be produced against him. That, in my opinion, again is contrary to natural justice, because we always heard that it was laid down not only under the moral law but under the law of the land that to hear every side is essential to a proper decision.

There is a further sub-section which provides that the proceedings of this advisory committee shall not be questioned in any court of law in the land. I put it to the Attorney-General and the Minister for Justice, who are more conversant with these matters than I am, is that a fair provision to put into the section? Is it fair to put any man who is in the dock at the mercy of a tribunal consisting of three people, I do not care how impartial and fair and how desirous they may be to act bona fide—is it fair to entrust his future existence, his career, to such a tribunal without giving him any opportunity of appearing either by counsel or in person?

Then there is a provision here that a district justice may be transferred from one district to another. The transfer of a district justice from one area to another is, in my opinion, the most manifest fault in the section. Whatever be the decision of the advisory committee that it is proposed to set up, if a man is transferred from one district to another he goes there with a blot on his title; he goes there, as it were, a man under a cloud, and he will be an object of scorn and attack for every Fianna Fáil or other political club in the district to which he is sent. Under the circumstances I think this section is a grave blot on the whole Bill. In all sincerity I appeal to the Minister for Justice and to the Attorney-General to consider it carefully before they attempt to put it on the Statute Book.

There is no reason why district justices should not get the very same rights as the judges of the Circuit Courts and the higher courts. They are men, most of whom have done their duty fairly conscientiously and with advantage to the public. By this measure you are more or less passing a vote of censure on the whole of them. You are exposing them to an inquiry of a most searching character, an inquiry which, I believe, is not sanctioned by any code of law in any part of the world. I suggest that the district justices, in view of the responsibility of their position, should hold office by the same tenure as the judges of the Circuit Court. I hope the House will give serious consideration to the suggestions I have put forward.

Mr. Ruttledge

There was a good deal of criticism passed on this particular section on the Second Reading and at a subsequent period and I think I have gone a fair distance, at any rate, to try to meet that criticism. The provision that complaint should be made on a motion of the Minister for Justice has been altered so that a complaint may be made by any member of the committee as well as the Minister for Justice. Further, if the committee decide that a person in respect of whom the complaint is made is deserving of censure—that provision has been amended and it now provides that that should be conveyed, not by the Minister for Justice, but by the secretary to the advisory committee. It is also provided that the Registrar should act as secretary.

The Deputy has referred to the transfer of district justices. Transfer as a punishment has definitely been dropped. What it does mean, if the Deputy sees any cause for complaint in it, is this, that where, owing to the personal circumstances of a justice, the committee are satisfied it would be difficult for him to exercise his functions in an area, they may recommend his transfer. I am sure the members of the last Administration are aware of the fact, as we are aware of it, that certain justices did find considerable difficulty in areas to which they had been allocated. I know the cases of two or three district justices who have from time to time made representations to my Department that it is very difficult for them to adjudicate in a particular area, and that arises from personal circumstances in that area. It does not mean any reflection on the justices concerned. It means that through having become related to certain people in the district they feel their decisions are sometimes subject to criticism. That is the only reason I have for keeping that part of the section there, that the transfer might be dealt with by the committee for that purpose.

There has been a good deal of watering down, if I might so call it, between what appeared on the Second Stage and what appears in the Bill now. There was one point made by Deputy Burke and I can see the force of it. It has relation to the words "or otherwise." I am quite satisfied with the wording that is in the 1924 Act and I am prepared to leave it at that. On the next stage of the Bill I will meet the Deputy to that extent. There is no desire to inquire into a man's personal activities, whether on the dancing floor or on the racecourse or anything like that. There is no desire to interfere and there is no intention to interfere in any way and the words "or otherwise" may be taken out. Indeed, the whole phrase can be taken out and the words of the 1924 Act substituted.

Exception is taken by Deputy Burke that the decision of the advisory committee cannot be tested in a court of law. A similar provision is in the 1924 Act and I think it is very desirable that such a provision should be here. I do not think it desirable that a committee constituted such as this committee would be should have its recommendations tested and bandied about afterwards in a court of law. To get to the main feature, when the Constitution was being drafted a line was drawn between High Court judges and Circuit Court judges as against district justices.

I do not like to open up another matter, but still it must be spoken of. I do not think there has been any unhappy experience with regard to the District Court. The District Court has now been in existence some 12 14 years. There are more district justices, and therefore, as far as that implication goes, there is a bigger possibility of error having occurred or of indiscretion having occurred in regard to this branch of the courts than any other. I do not want this matter introduced and discussed and examples given one way or the other, but I should like to ask the Minister to make up his mind whether there has been any such unhappy experience of the justices of the District Court as would warrant him in the making of discriminations of this sort. Is there any reason for having a toghter rein on the judges of the District Court than on the others? I think there is not.

The Attorney-General

There is a good deal of force in what the Deputy says with regard to the difficulty of drawing a distinction between the various branches of the judiciary, and I quite agree with him that we must expect and that it is essential that we should have from the district justices the same independence and integrity that are expected from the judges of the other courts. But the Deputy will realise that there has been a distinction drawn between courts which are of the status of the District Courts and courts of the status of the High Court and the Circuit Court. Now, the Circuit Court is linked up with the High Court in getting the same protection which the Constitution gives to the High Court judges.

We find the district justices provided for in the manner in which the Courts of Justice Act of 1924 provided. We do not find that the Committee investigating this matter made any recommendation in regard to such a change as is suggested by Deputy McGilligan. As regards the district justices themselves, I know that they have contended for a status which certain Departments have not been ready to grant. But as regards their tenure secured to them by Section 73 of the old Act, I do not think there is any complaint or any dissatisfaction amongst the justices themselves. I was in contact with them over this Bill, and while they resented some of the provisions in the section as it originally stood, they did not press for the tenure which Deputy McGilligan says they should have—that is, a tenure exactly similar to that conferred upon the High Court and Circuit Court judges. Some district justices, in fact, said to me that they would prefer the tribunal before which they would be brought to having to go before the two Houses of the Oireachtas. I do think that this matter was considered very carefully. The whole position of the district justices under that section was most carefully considered at the time the section was drafted.

Naturally, having been one of the members of the tribunal set up under the 1924 Act, I was very much concerned with the discussions as to whether amendments were required in the law and what particular amendments were required. The Minister may be familiar from his contact with the district justices throughout the country, with the manner in which they discharged their duties. But by virtue of my position on the tribunal I am in a position to say how far the conduct of the district justices has been brought before us by way of complaint. I think I am right in saying that since I took office I have had only to deal with three complaints against district justices. The tribunal as it stood I think was quite satisfactory to the district justices. They realised that these considerations which were referred to by Deputy J.M. Burke, and on which he relied to justify a change in the section, were present to the mind in particular of the Chief Justice, whatever may be said of the Attorney-General. The Chief Justice occupies an independent position. He is alive to the necessity for preserving the independence of all persons who exercise judicial functions. I can assure the Deputy that it would startle the Chief Justice or the President of the High Court to be told that in a matter of such moment as the case of complaints against a district justice which might lead to his losing his office that he might not be heard. Now, it is a cardinal principle of all justice that you must hear both sides. I doubt if any Deputy would suggest that it is necessary to put anything like that into the section. There was nothing in the earlier section. This jurisdiction was entrusted to the Attorney-General and the Chief Justice with full confidence that in trusting to their experience and their realisation of the necessity of preserving above all things the independence of the district justices, the district justices would get a fair hearing from the tribunal. That tribunal has now been added to. I am sure that everybody in the House will approve of the addition to the tribunal of the President of the High Court. In that tribunal we have now two judges, the Chief Justice who presides over the Supreme Court and the President of the High Court. They rank in that order of precedence under the Courts of Justice Act. They are the highest rank amongst the judges of the courts, and to them is now committed the task of investigating complaints against district justices. The machinery of the tribunal as set up in the earlier Act is unsatisfactory because it has no registrar. That is being remedied in the Bill here. The objection which Deputy Burke made against the section as regards the grounds upon which the scope of the investigation into the district justices' conduct might take has been met by the Minister. He agrees that in (3) (b) the words which are in the old Act shall be incorporated and that a district justice shall only be removed upon the same grounds upon which he could be removed hitherto. That, I think, should meet that objection.

One difficulty which the committee has had is this: that sometimes the committee had brought to its notice complaints about the conduct of district justices which impressed the committee to the extent that they would wish to reprimand a district justice. Sometimes the district justice exceeds what the committee think is his province. He does things or says things which the committee think he ought not to have said. At the same time the committee would hesitate to take the strong course of suggesting that he should be removed from office. That has been met in the section by conferring on the committee power to censure the district justice. That point has come out in every criticism here, and while the criticism I have had of the committee suggested to me that it was a proper provision to put in, I can quite see that there is the other point of view, as I think the Minister for Home Affairs said at the time when the Act was going through or when the conduct of a district justice was brought up here in the House. He said you have got to accept the position when you put in a man into a judicial office that you have got to take the chance as to how he behaves himself, and that if you were wrong in your judgement as to the type of man you had appointed, and if he did things of which you did not approve, that you must put up with that and that it was better to allow a district justice here and there to say or do things which were not becoming his post than to take power to censure or punish him for indiscretion. I think that while there is weight in that objection, the House ought to be satisfied to entrust to the committee which is here set up the jurisdiction of dealing with district justices, confident in the belief that the Chief Justice and the President of the High Court, who will be in the majority on the committee, will not recommend that a district justice should be censured unless he has done something which, while not going the length of being misconduct, is unbecoming to his office and likely, if allowed to go uncensured, to do public injury.

Most Deputies will agree that it is against the public interest that a district justice should traverse the bounds of what we should expect of persons in a judicial capacity and venture indiscreet remarks about things which are not proper to his province. Some Deputies may say that once you allow that to be done it is difficult to draw the line. The only answer I make to that is that you must entrust to such a committee as this the task of finding where the line is to be drawn. It is undoubtedly true of the Chief Justice and the President of the High Court that they would be both alive to the necessity for preserving the independence of district justices, and that they would not recommend even that a man should be censured unless his conduct was such that any reasonable person would agree that he ought to be told that it was unwise for him to be guilty of the particular conduct complained of and that he ought not to repeat it.

Those are the considerations which weighed with me in connection with the framing of this section. The Constitution draws a distinction, I think, between the Supreme Court, the High Court and courts of local and limited jurisdiction. Whether that distinction should be given effect to by putting the district justices on a different level from the other persons who exercise judicial functions is a matter of opinion. It is one, I think, of no practical concern in connection with this matter because, whether there were two Houses who had to pass a resolution, or one House with a certain defined majority, my own experience of the district justices who came to discuss the section is that only one district justice has expressed the view that this tribunal is an unsatisfactory way of dealing with complaints against district justices.

There are many other matters in connection with this section which I suppose we will have to deal with on other amendments. Deputy Burke has taken advantage of this wide amendment to travel over the whole area of the section. The Minister has already dealt with his objection to the transfer of justices. But, again, while theoretically it may be possible to complain that sub-section (8) vests in this committee the power to interfere with district justices and that the fear of such interference may operate to make a district justice less independent than he was previously, I suggest that the Committee, consisting of the highest judges in the land, is the bulwark and safety against an unfair operation of the section against a district justice. I see doubt upon Deputy O'Sullivan's face, and he possibly does not agree with me on that. But there have been drawn to my attention, as the Minister said there have been drawn to his, cases in which that procedure would be eminently desirable in the public interest. I suppose in these matters it is the public interest which counts. It is in the public interest that we have the independence of judges, and anything that interferes with it has naturally to be considered very cautiously and should not be adopted without very serious consideration. It is to the committee, which is charged with this task, the Minister must go if there is any suggestion about a district justice owing to his personal circumstances in relation to the district to which he is assigned. If it is found that the due discharge by him of his duties would be rendered difficult in that particular district, action may be taken if the committee think that such a complaint is justified. It is unlikely that the committee, consisting as it does of judges of the standing I have mentioned, will ever act except in a case in which any reasonable person, having regard to the particular circumstances, would consider it was in the public interest that action of that kind should be taken.

The great bulk of cases in this country come before the district justices. The ordinary citizen is more in touch with the district justice's court than most of the other courts. I think the aim ought to be to elevate that particular court in the eyes of the people. Whatever is done in respect to District Court cases concerns the individual more than any other class of case. It is precisely in the case of district justices that there ought to be the feeling that they are above any kind of influence from the Government or anybody else.

I listened carefully to the Attorney-General to see what justification would be given for this provision in the Bill, and all he did was to assert that he is continuing it from the Act of 1924. I take particular objection to the point which he made in his speech when he said that undoubtedly district justices sometimes forget themselves. Am I to understand that the ordinary individual does not feel that judges sometimes forget themselves? They are human; nevertheless it is felt that the whole of the public interests benefits from the fact that they should feel they are independent. Why not give the same independence and the same tenure to district justices as is given to the judges of the Circuit Court who have, in the Constitution, not one whit better standing than the district justices have? The Constitution cannot be put forward as any objection. Now you propose to bring district justices before what is a court and try them. The public have the greatest confidence in their courts; still you are going to try them. It is very easy to bring them before a court no matter what the court decides. The Minister for Justice has power to bring them before a court. That is the position, and it is the very reason why you should put district justices on the same level as other judicial personages in this country.

This is not a question in which there is any Party principle, one way or the other, involved. That is quite clear. There may be, and always will be, in the Department of Justice, and in every other Department, a tendency to extend control more and more. The Department of Justice has a certain control over district justices that it has not over others. It will be anxious to keep that; every Department is anxious to keep its control, but that is not a reason for keeping it. A stronger case could be made, from the practical point of view, for the independence of district justices, than even for the independence of the Supreme Court; because you are dealing with a greater mass of people who are interested, some of them fairly ignorant so far as judicial independence is concerned. I know the Attorney-General, when dealing with matters of this kind, in this House, seems to show that he never meets any people in the country except saints. He never heard of perjury being committed in this country except on very very rare occasions. The ordinary person believes that justices or judges can be interfered with. I do not believe they can. God help the person who tries to interfere with them. But, then, if there is this idea that they can be controlled by Government, even to the extent of being brought before a court—because that is what, it amounts to—you are going to weaken and not to strengthen the system and practice. That is why I think this ought to be changed.

What the Attorney-General should do is to bring forward some justification for putting district justices on a different plane. That is precisely what he failed to do. Not a single argument has he brought forward in favour of that course, and I suggest that is what he should have turned his mind to. He deems that the Government is justified in taking a certain course merely because it was done in 1923 or 1924. If the Government uniformly adopted that policy I do not think they could go on any sounder lines; they would be more often right than wrong. But that is not what they do. They pick and choose. Sometimes they put forward the plea that they are only doing something that was done in 1923 or 1924. They say "that is what we are doing now," and they ask "are we not justified seeing that it was done in 1923 or 1924?" But that is what the House is here to determine.

There have been three complaints against district justices. How many complaints, let me ask, would there be against any judge, in any country, if complaints were encouraged? Probably we would be overwhelmed with them. The Attorney-General must know perfectly well—it may be through weakness on our part—that the people of the country are not prepared to believe that the justices always act as a kind of automaton on purely judicial lines. That view does not prevail. It could not prevail here or in any other country. Naturally you hear criticism of district justices. Naturally you hear criticism of the other judges. But why are they alone capable of being called to account? Why not a court for the other judges?

The Attorney-General

Is not this a court? Cannot they be brought here?

Professor O'Sullivan

I am sorry if that is the Attorney-General's idea of a court. This House a court!

The Attorney-General

Cannot the judges be brought here on resolution?

Professor O'Sullivan

Precisely. I was going to deal with that. They could be brought here for a very serious matter, for complete removal, but not for censure. There is that difference. What are you going to do? You are going to have the power of nagging at these people, making them subservient. Even if you have confidence in the court the fact that they may be rashly brought before the court is bad. What is the Attorney-General's objection to letting them be brought before the Oireachtas for removal? What is the objection to them any more than to the other judges? Why does he put the other judges so to speak on a higher level from that point of view? My contention is that if anyone was to be put on a higher level it is precisely the judges who come so much into contact with the ordinary litigants. Before the Minister for Justice asks the House to consent to this he really should try to justify different treatment. After 11 years' experience even the present Government could learn something, and the mere fact that a Parliament, just coming into being, which had begun to function normally, took certain steps then, is no justification for not reconsidering the whole question.

Mr. Dillon

I want to make one net point in this business in favour of giving district justices the same tenure of office as that of Circuit Court judges. To my mind the attitude of the judges as between two litigants is pretty safe. We have no reason to apprehend that any serious miscarriage of justice could arise even if the Government had power to interfere. The principal reason we give constitutional protection to judges is to provide a bulwark between a tyrannical government and the citizens. You find constant reference all through history to the rights of individual citizens being vindicated by judges, as against a government that tries to take these rights away. The Attorney-General will agree that that is the real source and origin of the elaborate safeguards that are provided for the judiciary. As a matter of fact, a very large number of State prosecutions come before district justices.

The Attorney-General

Practically all.

Mr. Dillon

Quite so. One sees very frequently Revenue cases in which district justices feel it incumbent upon them to take a very independent attitude. They frequently criticise very adversely the Revenue Commissioners and differ very trenchantly from the interpretation which the Commissioners wish to give to the law. We see cases under the Trade Boards Act and a variety of minor prosecutions of that kind coming before district justices where it is of importance to the individual citizen that his rights should be vindicated. It frequently happens that the case from the point of view of the Government is quite a small one, and they think that it should be disposed of with dispatch, and without very serious consideration, as a minor offence, although giving rise to a very heavy penalty, whereas the individual citizen feels that it is not the penalty that is at stake, but the question of whether he has broken the law or not. He is anxious to vindicate in a court of law that he has not transgressed. In order to do that he may seek to make the case that the Government or bureaucracy is trying to interfere unduly. To that extent unquestionably the independence of the minor judges is of minor avail. If he feels that the district justice might be hauled before a court, such as is envisaged in the 1924 Act and in this Bill, it might reasonably be felt that the district justice would be reluctant to vindicate what appeared to be a very trivial claim. That district justice might say that instead of coming into collision with a Government Department, and possibly having a row at which he would have to appear before the Chief Justice and the High Court, he would fine this person, even if he did not think he had been guilty of anything other than a technical breach of the law.

Instead of the unpleasant consequence of taking a strong attitude against a resolute Government Department, a district justice might be induced by the threat of being called before a committee for censure to scamp justice by branding a person as one who had broken the law when, in fact, he felt that a very strong case might be made for him, the Government Department condemned and the citizen vindicated. I make that net point because I am painfully conscious of how difficult it is for men, in the face of Cabinet Ministers and permanent officials who are concerned with getting a job done, to remember the legitimate feelings of individual citizens. It is extremely hard for the Attorney-General, who is handling hundreds of prosecutions in the year, and who is frequently called upon to make grave decisions involving enormous penalties, and who has to decide whether prosecutions are to be proceeded with or abandoned from want of evidence, to remember that a fine of 1/- on a man who has never been convicted in a court of law may be a very grave consideration. It may give rise in such persons to uncertainty and uneasiness, if they feel that the independence of the judges before whom they will be brought is any way sapped or interfered with. As Deputy O'Sullivan stated, it does not appear that the Attorney-General and the Minister for Justice in their research have discovered any very serious case against giving the district justices the same tenure of office as Circuit Court judges. It has seemed to them that they are proposing to leave things as they were unless a strong argument is adduced for changing. I submit that the argument has now been adduced sufficiently to push the Attorney-General and the Minister for Justice off that position and saying that the only justification for this distinction between district justices and circuit judges is that distinction which existed heretofore. Unless the Attorney-General and the Minister for Justice feel that it is going to do some serious harm, they ought to eliminate any distinction that exists in this Bill. If the Minister for Justice thinks that such a course would do serious harm, then I think he ought to tell us the nature of the serious harm that he apprehends.

Mr. J.I. McGuire

It is quite obvious that the heart of the Minister for Justice is not in this Bill. I say that because of the speech which we heard from him now, and which was chiefly devoted to telling Deputy Burke that he agreed with most of what he had said. I think he undertook to remove that section of the Bill providing that an inquiry should be made into the conduct of a district justice "whether in the execution of his office or otherwise." I think he has undertaken to remove that vicious word "otherwise."

On the other hand, it is equally clear that the real push behind this section of the Bill comes from the Attorney-General. I must, however, agree with Deputy O'Sullivan, who remarked that there was really only one argument advanced by the Attorney-General in support of setting up this Committee, and that argument was that when he came into office there was a practice in force of distinguishing between district justices and judges of the other courts. That may be so, but what we want to hear from the Attorney-General, who wants us to put this section in, is what good there is in that practice. The contention from this side of the House is that it is a rotten practice and should be got rid of. It is not enough to stand up and tell us that the practice is there.

The Attorney-General

It is not enough to say that it is a rotten practice unless you show that it is so.

Mr. McGuire

I intended to show that it is so. The Attorney-General told us that it was in the Constitution, that the practice was supported by words in certain Articles of the Constitution. But we had a Seanad in the Constitution; there was an oath in the Constitution; there was University representation in the Constitution; there were a number of other things in the Constitution; and that remark that this practice with regard to the tenure of district justices is supported by the Constitution bears absolutely no weight coming from that side of the House.

The Attorney-General has also told us that so far as he has been able to ascertain from a few district justices scattered here and there throughout the country, they are in favour of this committee. Among 33 justices of the District Court—I think there are 33 permanent district justices in the country—one is bound, of course, to find weak-minded men, men who are not independent in their natures, and men who could not be made independent by any legislation. We have to face up to that, but it is not what district justices want that we are going to provide. It is no argument to say that the district justices are satisfied. It is our duty to see that we have an independent Judiciary, whether the members of that Judiciary want to be independent or not. That is what the Attorney-General seems to fail to realise altogether—that it is our duty to put the Judiciary in its proper place, that is, to make it independent. Article 69 of our Constitution tells us that all judges shall be independent in the exercise of their functions. There is no distinction whatever made between district justices and other judges of the courts.

I do not think the discussion on this amendment should be allowed to come to an end without making some reference to the opinions of the Minister for Justice when he was Deputy Ruttledge. In 1931, speaking on the Department of Justice Estimate, the present Minister for Justice, as reported in volume 38, column 350 of the Official Reports, said:

"We have heard a good deal in this Dáil about the independence of the Judiciary, and about the independence of the courts. We have heard it from the platforms throughout the country, from election hustings, and so on, that the Judiciary stood between the people and the Executive, and that the Judiciary was independent of the Government. We recognise, and everybody must recognise, that the only protection for the people of the country is the independence of its Judiciary, and I think it is very difficult, if not impossible, to find in the records of any other Government where a Judiciary has been interfered with."

Then if I skip certain portions, which the Attorney-General might afterwards read with some advantage, I go on to another passage:

"When the Courts of Justice Bill comes before the House"—

That was the Courts of Justice Bill then pending, which was under the control, I understand, of Deputy Fitzgerald-Kenney, then Minister for Justice—

"one provision, I hope, will be that the district justices will be on an independent footing the same as the Circuit and High Court judges."

That statement of opinion by Deputy Ruttledge, as he then was, is probably his opinion to-day, because then he was in the happy position that he could argue on principle, and there is really no principle that can be put forward upon which a distinction between district justices and other judges of the courts can be based. District justices do, of course, come in contact with the poorer people of the country, but it is a fact that for every one case tried by High Court judges, there are 40 tried by District Court justices, that is to say, for every one time a High Court judge adjudicates on the rights of parties who come before him, a district justice adjudicates 40 times, and the rights upon which the district justice is adjudicating are just as important to the poor people who come before him throughout the country as are the rights of large insurance companies who come before the High Courts and are able to indulge in the luxury of counsel, and, if necessary, an appeal to the Supreme Court. I should like the Attorney-General to give us some really concrete reason why district justices, judges as they are called in our Constitution, should be placed in any different position from that of any other judge.

The Attorney-General

First of all, they are not described as judges in the Constitution.

Mr. McGuire

Article 69.

The Attorney-General

Secondly, the Deputy seems to have worked himself into a heat about this matter. I think he raised this on Second Reading and he seems to think that there is some sinister purpose behind the sections of the Bill which deal with the position of district justices. I thought it was quite a reasonable answer to give to Deputy O'Sullivan that I found—I did not say it was a practice that I found when I came into office—that district justices held office by virtue of provisions in the Courts of Justice Act, 1924, and that I found nothing in the report of the Judiciary Committee dealing with this matter suggesting that the changes which are now put forward here should be made. I thought that ought to be a fair enough reason for the Government's accepting the position of the district justices as described in the 1924 Act and building upon that.

I have further to draw the attention of the Deputy who has just spoken to the fact that this arrangement as embodied in the 1924 Act was the result of the report of an earlier Judiciary Committee, so that we have at least a tradition, about which we have heard so much in recent debates, crystallised in the report of the Judiciary Committee of May, 1923, the Act of 1924, and the last report of the Judiciary Committee. We have at least that to start with, and yet we are charged from the opposite benches with refusing to do something which all reasonable men ought to have thought about and introduced as a radical change in the status of the various sections of the Judiciary. If the Deputy who has just spoken had proved the word he used about it—that here was something rotten which we ought to change—if he had given any evidence whatever to suggest that there was something so rotten that it could not have escaped the attention of the Judiciary Committee or could not have escaped the eyes of the Minister in examining the position, one might have some patience with the argument.

Mr. McGuire

But it did not escape the Minister. I showed that it did not escape him and quoted his opinion.

The Attorney-General

I think that from what was stated here to-day and what I said five minutes ago, we both agree that the district justices should be independent. What is argued for here, however, is that we should change them into judges, alter their description, and style them judges and treat them in a precisely similar way to that in which High Court judges and Supreme Court judges are treated. If it were shown to the House that the district justices have suffered from the provisions of the 1924 Act, that their independence has been encroached upon, or that any of the dangers which Deputy Dillon visualised in hypothetical cases had occurred, one might have some reason for offering to consider the whole matter with a view to altering the whole status of district justices. But, as I said, speaking a short time ago, I have had no complaint from district justices, and the Judiciary Committee apparently got no complaints from district justices as a whole to the effect that the position they held and the manner in which their removal might be carried out affected their position or rendered them subject to the control and direction of the Government or of the Minister.

Until a case is made that the existing position puts the district justices in some position where their independence is affected, I do not see why the Government should be expected to make this rather radical alteration, because there seems to me to be quite good reason for regarding the persons who occupy the position of district justices as not on the same level as the High Court and Supreme Court judges. I do see a reason why they should be independent and I do think that these provisions of the 1924 Act secured their independence. As a matter of fact, one district justice said to me that he would prefer the machinery of the 1924 Act to the machinery which was available in the case of High Court and Supreme Court judges. The independence of the district justices is safeguarded and the interests of the public, as regards the independence of the Judiciary, are therefore being had regard to, and why all this fuss and pother should be made about their position, why this belated, eleventh-hour idea, as regards the status of district justices and the alteration of the whole structure of the Courts of Justice Act, should occur to the Deputies opposite, I am at a loss to understand. I did understand the Deputy's criticism of the original sections as actually in the Bill. The Deputy let himself go on the Second Reading in that regard and I think he will agree that all the objections that he then advanced have been met, and he has not made any complaint in that regard. He now, however, has clung on to an amendment introduced by another Deputy, the effect of which would be to alter the whole position and remove points supposed to be regarded as a stigma under which the district justices have been suffering. Certainly, if they have been suffering under such a stigma, they have not made themselves vocal about their position in the matter, and those who went to the Judiciary Committee made no complaint, nor has any suggestion come from the Judiciary Committee that would justify the Government in making this alteration.

Mr. McGilligan

The Attorney-General made one or two points that I should like to refer to. The reason the matter was not brought before the Judiciary Committee was that it was considered that the situation had become stereotyped, so to speak, and that there was no way of getting away from a bad position. I know myself, however, that it was a very sore point at the time of the passage of the 1924 Act—perhaps not immediately after the passing of the Act, because the situation was in a state of flux at the time and people had not yet come to realise what it meant to the substantial independence of the district justices—but once it was realised, I think it was a cause of complaint amongst them generally that they had been demeaned in their office, that their title had been demeaned and they held that the change of title was specifically with a view to putting them not in the position of judges and not guaranteeing their independence. I know myself that for years a number of them had that complaint and, as one individual who had very little to do with the 1924 Act and who never could understand why the decision was made, I was hoping that, when the Courts of Justice Bill was being considered, an opportunity would be given at any rate to discuss this matter and get some reasoned attitude in regard to it. I do not know yet whether it is right or proper to put the district justices into the position of judges and give them all the security and tenure the judges have, but I think the onus in that matter rests on the people who seek to put them in a different position. Prima facie, if, as a start, district justices are judges, as such, they should have as much right to independence as other classes of judges and, for the security of the country, they ought to have the same security and independence as other classes of judges.

What I think was a mistake happened in 1924, and I do not think that, because that mistake has gone on for a certain number of years, we should simply leave it alone, and this is the opportunity I have been seeking in order to try to rectify what I consider to have been a mistake. I think the Attorney-General would have some cause to adopt a slightly querulous tone if it was interfering with Section 73 of the Act of 1924, but there is now being brought in a completely new proviso with regard to district justices. Up to date, all that could happen was that they could be removed from office and nothing else. Nothing more could happen. That was the solitary right given and, of course, it would have to be a very bad indiscretion or a continual series of events that would cause a Chief Justice or an Attorney-General to bring up a district justice with a view even to questioning his removal, but that was the only power given. There is now power to censure. Let us take the new situation and this glorious tribunal of which the Attorney-General is so proud. I think it is good, although I do not think it is so glorious as the Attorney-General seems to think, but if it is so good, why not apply this glorious tribunal and the new system to circuit judges? Are they so immune from error where the district justices are not immune?

It is because the Minister for Justice and the Attorney-General seek to impose a new type of penalty on the district justices that I think we should get the opportunity to reconsider the whole matter and find out why the district justices should be put on a lower level altogether. Nobody has yet faced up to this point of the distinction that is made and I think that, incidentally, if the Minister for Justice re-reads his remarks in 1931, on the occasion of the Budget, he may find another argument to the one used by the Attorney-General, but I am afraid he will not find it to be any good to him because he opened that particular attack on the Budget that year with the question of the independence of the Judiciary. On that occasion, the present Minister for Justice asked: "Why all this tripe talk about the independence of the Judiciary?" The Minister at that time stood very strongly indeed for putting the district justices on a footing of independence with every other judge in the country. That was the argument of the Minister for Justice at the time. He was not at all pretending at that time that it was a mere question of independence and that the independence is not being interfered with by reason of this tribunal. The Minister went full tilt at it. The Minister was in the mood then to ask that district justices should be made judges, and that Section 73 of the 1924 Act should be given constitutional construction.

Is there any reason now, knowing the important matter it is to have the judges independent, knowing the duties that the district justices have to carry out and knowing their behaviour over the last 11 or 12 years, why they should not, at any rate, be put on the same footing as the circuit judges at the moment? If they are put on the same footing as the circuit judges they are carried by the circuit judges and by Section 78, more or less, into the Constitution. The district justices and the circuit judges can be more easily removed from the Constitution than the Supreme Court judges or the High Court judges. Why should not the district justices be put on the same level as the circuit judges? I cannot see any point at all arising either from argument in the abstract or from practical experience as to why they should not be put on the same level. I think they should be given exactly the same position.

Alternatively, if we are so enamoured of this new tribunal that the Minister for Justice is setting up in this, why not test it in relation to the circuit judges and get the reactions of the Executive Council to a proposal to have the circuit judges open to censure and not as they are at the moment? At the moment the only penalty that can be inflicted on a circuit judge is his removal from office: a very harsh penalty requiring a very serious state of affairs before one moves to impose it. Why not test out the reactions of individual members of the Executive Council to such a proposal? Let us accept the point of principle that we have a good tribunal, and put the proposal before them that we think it is right and proper that district justices should be subject to a nagging sort of procedure and the possibility of censure: to something less serious than removal. Let us put that on the circuit judges, and if it were put I think there would be an outcry from the generality of citizens in regard to it. I do not think that the people who would object would be at all swayed to like the proposal because of the Attorney-General's argument that, after all, the Chief Justice and the President of the High Court—judges in very superior positions—would never move without there being good reason. If the tribunal is so good, it is good enough for the circuit judges and why not apply it to them? That will not be done because it would be regarded as an absolute scandal.

If that is going to apply to circuit judges it can quite easily be applied to district justices. There is differentiation in the use of the word "judge" which in the Constitution applies only to judges of the Supreme Court and of the High Court. It does not apply to circuit judges. If there is a phrase making it applicable to the circuit judges, then that phrase makes it applicable also to the district justices.

Mr. Costello

It would be very interesting to pursue the matter mentioned by Deputy McGilligan as to whether or not district justices come within the description of judges in the Constitution. I do not propose to follow that particular discussion at all because I think it is entirely futile. I do know that there are a number of people who hold strongly the opinion that district justices are within the provision of the judiciary in the Constitution and that that particular provision in the Act of 1924 is really unconstitutional. I am aware that there is one well-known district justice who holds that view very strongly, and he, I think, put up that view to the Minister's Department. However, that is a matter on which there may be a very wide divergence of opinion. I think it is entirely irrelevant to the present discussion because I think we ought to approach this amendment as a matter of principle. When I came into the House I heard the Attorney-General stating that he had been charged with this and charged with that, but leaving aside all that, I think we ought to approach this entirely as a question of principle, and in the light of the experience that has been gained since 1924 when the new judiciary was established. We ought to forget all about what was in the judiciary report, what the present Chief Justice said when he was Attorney-General, what the present Minister for Justice said when he was a Deputy in Opposition, and all the rest of it.

Let us see if, as a matter of principle and in the best interests of the administration of justice in this country, there ought to be only one integral system of justice in which every branch is united to the other, all resting on the same basis and giving a sense of security in every branch. I regard the fact that I am supporting this amendment as a certificate of my own capacity for looking at the matter from the point of view of principle and not from the point of view of personal prejudice or personal opinions, because I take the view that it would be an excellent thing to remove, transfer or to get rid of altogether certain of the district justices. I entirely sympathise with the point of view which I know to be held, and to be held very strongly for the last ten or 12 years, by the officials of the Department of Justice on the subject of certain district justices. That is the very reason that makes me pause. When I see a district justice, as I unfortunately do occasionally, using his position as a district justice and using the bench as a platform from which to broadcast all sorts of nonsense and pontificate on various matters of morals and public questions as if he were some sort of person in a position to speak ex cathedra, I feel a certain sympathy with the provisions of the section proposed. But I do not think we ought to allow that to interfere with our view of the question of principle and I put the question of principle in this case from the point of view of the public. I know what the point of view of the Department of Justice is. I know what I feel sometimes when I appear before a district justice or when I see in the papers what some of them say about certain matters of public interest; but I do not think we ought to allow that to influence our opinion on this matter.

This system of the district justice, a paid judge, was established in this country as an experiment. It was an entirely novel institution, introduced in 1924, and I think we will all be agreed on this, that it is an institutution which has fully justified the authors of the idea of paid magistrates. It is some compliment to this country that other countries are now adopting that system. They have had the benefit of our experience of this system over the last 12 years and they are copying us. I think we will have in another part of this country, and possibly also in Great Britain, a system based somewhat on the system we established in the Free State. We had been suffering for years here from the old system of removable magistrates. That was supposed to be a very heinous system and a system that one could not possibly stand over in any civilised country. It was a system whereby a person was appointed at the instance of the Executive and removable at the will of the Executive and, consequently, a creature of the Executive. We had the system of Justices of the Peace here which had become an absolute scandal. We have all heard stories of the things the old Justices of the Peace used to do. There was one very famous case where a certain well-known practitioner in the south of Ireland objected to a certain Justice of the Peace who was proceeding to sit on his client's application for a licence or something of that kind. To his horror the client heard his solicitor objecting to this particular Justice of the Peace. Afterwards when he remonstrated with his solicitor outside, his application having been duly refused, the solicitor informed the client that he was keeping the Justice of the Peace for the appeal, which he duly did and he won on the appeal.

That was the system that was swept away, and the result has undoubtedly justified the institution of the district justice, which has, on the whole, been a success. I repeat that the best district justice, the man doing his work best from the point of view of the Government, from the point of view of the public, from the point of view of the litigant and from the point of view of the State, is the person whose name never appears in the newspapers, who never makes a speech from the bench and who is never the subject of certiorari proceedings in the High Courts. Taking them all in all, the district justices have been a success. I was surprised as well as disappointed to hear from the Attorney-General that the district justices as a body have made no protest against the provisions of the Bill as they appeared originally or as they now appear amended.

The Attorney-General

They did protest against them originally.

Mr. Costello

Then I must have misunderstood the Attorney-General.

The Attorney-General

They do not object to the section as it now stands.

Mr. Costello

That is, they have wrapped this particular section around them?

The Attorney-General

That is the impression I got. I may be wrong.

Mr. McGilligan

Was that merely through relief from the other bad section?

Mr. Costello

I am relieved to hear that the district justices as a body protested against the original proposals, and it may be safely concluded that they have not made violent protests against the proposals now made, because they are now, as Deputy McGilligan said, relieved at getting something better than that horrible thing that originally appeared in the Bill. These district justices had to concentrate on their own personal positions; they were worried about their pensions, and I am sure the Minister was worried by them about their pensions, their allowances and other matters of that kind. Naturally they concentrated on matters affecting themselves personally and forgot the question of principle when they found something that was considerably improved from the original position. It is a relief to me to know that they protested against the original proposals, because my opinion of the district justices as a body would have gone down very considerably if they had not made a strong protest against the original provisions of the Bill.

Let us look at the matter from the point of view of the public. There is undoubtedly a tendency observable in the legislation of this country for some years past—I will not put it on the period since the present Government came into power; I am prepared to say it goes back beyond the period when the present Government took up office—to increase the jurisdiction of the district justice on criminal matters. District justices have very wide powers under various Acts, emanating from various Departments of State. They have power to put people in prison or fine people very large sums. The original idea of the District Court as an inferior court has been considerably eaten into, on the criminal side at all events.

The Attorney-General said there is quite a good reason to regard the district justice as not being on the same level as judges of the Circuit Court, the High Court or the Supreme Court. I would like to hear him give the reason. He said there was quite a good reason, but he did not give it. I take it the work to be done by a district justice does not require the same knowledge, experience or capacity as is required for the position of a High Court or Supreme Court judge, or even that of a Circuit Court judge. But, subject to that observation, I do not see, at the moment at all events, why there is a good reason to regard them as not being on the same level from the point of view of principle and the provisions of the Constitution as regards the Judiciary. They deal with small cases on the civil side of the court, but even on that side it must be recognised that a £5 process before a district justice is every bit as important to the person suing or being sued on the process as the biggest High Court action involving the biggest legal principles in the High Court is to the parties who would be involved there. Every case is a case of importance to the person involved, whether the amount is small or large. Very often a small case in the District Court is of more importance relatively to the parties concerned than a big High Court action. So I think there cannot be justification on that basis for saying there is a reason to regard these courts as not being on the same level as the higher courts.

Concentrating on the criminal side of the court, I think the public must be considered in this matter. This House will remember—or if the Deputies in the House do not remember they can see it from a perusal of the Official Debates—the efforts that have been made from time to time by Departments—and I am not confining my observations to things that have occurred since the present Government came into office in 1932 —to impose on district justices the duty of imposing minimum fines and minimum penalties in certain cases, demonstrating clearly the lack of confidence and trust that exists in the minds of Government Departments in connection with the administration of the various statutes by district justices. There are numerous instances on record of cases where the present Government, and the last Government —I will include them in order to put this matter on a proper footing— wanted to have it put into an Act of Parliament that district justices were bound to impose minimum penalties. That was something in the nature of a public scandal. It could not be stood over, and should not be stood over by any Government. It was put into some of the Acts of the last Government, and was found to be quite unworkable. But there is that tendency in Departments—whether it is a Bill about cattle or about sheep or about eggs, or whether it is a Bill from the Department of Justice about public safety or criminal justice of any kind— to think that district justices will not see the point of view of the Department, and will not act in accordance with what the Department wishes them to do.

In my submission to the House it is that tendency which reveals itself in this Bill in connection with district justices. They are put on a par with civil servants. They have to retire at the age of 65 years. Their pensions are modelled on provisions of Pensions Acts similar to those dealing with civil servants. Those provisions for removal and transfer, now appearing I very strongly suspect at the instance of some Government Department or another, reveal, as I say, the official attitude that district justices cannot be trusted to carry out what is the wish of any particular Government. When members of the Government are carrying out a policy they cannot see that there is anything to be said against that policy, any more than a person who is appearing in court for a particular party, plaintiff or defendant, can see that the other side has any case at all. He cannot understand why the judge will not decide in his favour no matter what sort of case he puts up. These provisions reveal an effort on the part of officialdom—let us put it as widely as that—to interfere with the Judiciary, and show in my view and in my experience the official attitude of wanting to get their grips on the Judiciary. I do not mind repeating here what I have already repeated in this House that the official attitude of certain Departments of State towards the Judiciary and the legal profession is little short of a scandal.

That is one aspect of the matter, but there is another aspect. There is the case of a person who is brought before the district justice on a criminal charge. The district justices have power to give terms of imprisonment and impose large fines which may seriously prejudice the character and the future of the person involved in those charges. The tendency, as revealed in the Courts of Justice Act, 1924—and as wrongly revealed in that Act—was to discourage appeals from the district justices in certain cases. There was a limitation put upon the right of a person who was charged with a criminal offence to appeal from the decision of the district justice. That limitation, fortunately, was removed by subsequent statutes. I am glad to say that I had some considerable voice in the matter myself. I think, at the moment, the only decisions that are not capable of being appealed from are in regard to certain matters under recent Bills, and also with regard to binding to the peace. There is some doubt about sending to a reformatory. I think I tried to cover that under some of the latest statutes. I intended to do so, at all events, whether it is covered or not. That tendency again shows the official mind as revealed in those sections. and that is why I have such a strong objection to the proposals as they are outlined here in this Bill. I do think that from the point of view of principle, whatever our personal prejudices in certain cases might be, it would be far better that the judicial system from top to bottom should be one integral whole, that it should be bound together by the same links, and put upon the same basis.

Amendment put.

The Committee divided Tá, 36; Níl, 63.

Tá

Anthony, Richard.
Bennett, George Cecil.
Bourke, Séamus.
Brennan, Michael.
Broderick, William Joseph.
Burke, James Michael.
Burke, Patrick.
Cosgrave, William T.
Costello, John Aloysius.
Daly, Patrick.
Dillon, James M.
Doyle, Peadar S.
Esmonde, Osmond Grattan.
Fagan, Charles.
Finlay, John.
Fitzgerald-Kenney, James.
Holohan, Richard.
Keating, John.
Lavery, Cecil.
McFadden, Michael Og.
McGilligan, Patrick.
McGovern, Patrick.
McGuire, James Ivan.
Morrissey, Daniel.
Mulcahy, Richard.
Murphy, James Edward.
Nally, Martin.
O'Donovan, Timothy Joseph.
O'Leary, Daniel.
O'Neill, Eamonn.
O'Reilly, John Joseph.
O'Sullivan, John Marcus.
Rice, Vincent.
Rogers, Patrick James.
Rowlette, Robert James.
Wall, Nicholas.

Níl

Aiken, Frank.
Bartley, Gerald.
Beegan, Patrick.
Boland, Gerald.
Boland, Patrick.
Bourke, Daniel.
Brady, Brian.
Brady, Seán.
Browne, William Frazer.
Concannon, Helena.
Cooney, Eamonn.
Corkery, Daniel.
Corry, Martin John.
Crowley, Fred. Hugh.
Crowley, Timothy.
Daly, Denis.
Davin, William.
Derrig, Thomas.
De Valera, Eamon.
Doherty, Hugh.
Fverett, James.
Flynn, John.
Flynn, Stephen.
Fogarty, Andrew.
Geoghegan, James.
Gibbons, Seán.
Goulding, John.
Ryan, James.
Ryan, Martin.
Ryan, Robert.
Sheridan, Michael.
Smith, Patrick.
Harris, Thomas.
Kelly, James Patrick.
Kelly, Thomas.
Kennedy, Michael Joseph.
Keyes, Michael.
Kilroy, Michael.
Lemass, Seán F.
Little, Patrick John.
Lvnch, James B.
MacEntee, Seán.
Maguire, Ben.
Maguire, Conor Alexander.
Moane, Edward.
Moore, Séamus.
Moylan, Seán.
Murphy, Patrick Stephen.
Murphy, Timothy Joseph.
O Brian, Donnchadh.
O Ceallaigh, Seán T.
O'Doherty, Joseph.
O'Dowd, Patrick.
O'Grady, Seán.
O'Reilly, Matthew.
Pattison, James, P.
Pearse, Margaret Mary.
Rice, Edward.
Ruttledge, Patrick Joseph.
Traynor, Oscar.
Victory, James.
Walsh, Richard.
Ward, Francis C.

Tellers:—Tá: Deputies Bennett and Doyle; Níl: Deputies Little and Smith.

Amendment declared lost.

Mr. McGilligan

I move amendment No. 80:—

In page 20 to delete Section 51 (1) to Section 51 (9), inclusive, and substitute therefor the following sub-section:—

Section 73 of the Principal Act is hereby amended by inserting the words "the President of the High Court" after the words "the Attorney-General" where the latter words twice occur in the said section, and the said section shall be construed and have effect accordingly.

An Ceann Comhairle

Several amendments hang on amendment No. 80.

Mr. McGilligan

No; amendment No. 80 is entirely different. I do not think there will be very much debate on any of them because we have gone over the ground already, but I look upon amendment No. 80 as separate in itself. If there is going to be any change let it be the minimum change, adding to the tribunal that is going to adjudicate on offences of the district justices. Abolish all those series of clauses which undoubtedly tend to create the impression that the district justices are to be under a microscope all the time and that they are to be harassed and censured. To this matter that they are to be censured I am entirely opposed. If you are going to create the impression on the public that you are going to censure them it will undoubtedly mean that a great many more complaints will be coming forward. Some other amendments have relation to this. I have an amendment to take out the Minister for Justice as the person who can send forward complaints. As long as the Minister is in there and there is the possibility of having the district justice censured all these busybodies who have axes to grind and find these axes blunted will all be writing to the Minister for Justice. There may be Ministers who will send forward complaints to this committee and have matters brought before them that should not be brought at all. If we are not going to let them have the tenure of certain courts of justice, let us not fling open the door too widely to frivolous objections and complaints against them. I know that the Chief Justice and the President of the High Court will not entertain many complaints. But the Minister can send them forward. The result will be that a lot of people will take pleasure in even getting so far as having the complaints sent forward.

Mr. Ruttledge

That is the argument I was going to make and in which the Deputy has anticipated me that the committee will regulate its own procedure as provided in sub-section (1) of Section 51. This advisory committee are not going to be hauling up before them a district justice on some trivial or vexatious complaint put before them. They have power to examine the matter and, if they think there is very little in it, or at least nothing that deserves the formality or otherwise of an inquiry, they are not going to harass the district justice. I can also say that if there were complaints going to flow in in that way, knowing that only in very rare cases could such a complaint be justified, knowing that that would be the normal and is the normal position, the committee would not regard them seriously and would, in their own procedure, take such steps as they considered necessary to prevent a continual recurrence of that kind of thing. I do not think there is any danger along the lines that the Deputy has in mind.

As regards the question of censure, it is a pretty desperate decision, if I may use the word, to deprive a man of his position in that way, or remove him. I have always felt that it is very useful to have some sort of minor or middle course. Whether it has continued as the practice or not, we do know that it might have been related to the argument on the previous amendment. A number of these district justices are young men when they are appointed. At any rate, they have not the mature experience or the legal experience of barristers who are appointed as Supreme Court or High Court judges. It is often useful that some censure or warning could be given where a district justice has been indiscreet or something like that, instead of having to take the very extreme course of depriving him of his position. I think, therefore, that the middle course is a very useful one and that, far from being a source of danger, it is going to be a source of safety for the people who might be involved.

Mr. McGilligan

I am against this general principle of imposing what I call this humiliation on district justices and having it paraded in an Act that they are to be open to censure when the Circuit Court judges are not. The qualification for appointment as a Circuit Court judge is ten years as a barrister, and for a district justice six years as a barrister or solicitor. The Minister, I am sure, is not demeaning his own profession by thinking that people from the ranks of that profession will be guilty of this. I do not think that four years will make a great difference. If the Minister gets his colleagues into consultation I do not think he will find it is the young men who have to be lectured when discipline has to be enforced. It is not in the early years that there is any great prospect of anything going wrong; it is rather when a man gets hardened a little in his office.

We have refused the proposal to put district justices on the same footing as Circuit Court judges. Very good. They are now subject to the control of the tribunal under Section 73. It may be changed by adding the President of the High Court, but why add all this long list of matters making it clear to anybody who likes to read the Act that the district justices alone of all people on the Bench may be censured? If there is this intermediate matter set out about censuring it is going to be made clear to people that there are lesser matters which can be urged in objection against the district justice than may be urged against the Circuit Court judge or High Court judge. I do not think that is for the good of the courts.

Mr. Costello

I agree with Deputy McGilligan that the very fact that these provisions are put in a Bill dealing with the courts of justice is a censure on our own judicial system. I do not care in the least about particular individuals who are to form the body of district justices, but the fact that these elaborate provisions have had to be put in 12 years after the Courts of Justice Act, 1924, came into operation is in itself a censure on our own judicial system to anybody reading the Bill, or the Act, if it becomes an Act with these provisions. People who are studying our Constitution inevitably deal with our judicial system. Books have been written on our Constitution and incorporated in these books have been articles dealing with our judicial system and the judiciary and a number of those articles, which have dealt with the judicial system set up in 1924, have commented favourably upon this new system of district justices. It looks as if we ourselves, with 12 years' experience, have come to the conclusion that there is required statutory authority to keep members of that portion of our judicial system, known as district justices, under some sort of disciplinary control; in other words, that we believe, and put it upon record in a statutory and permanent form, that experience renders it necessary to keep the whip over district justices. That is a bad thing and it ought not to be put into the Bill, even if the conduct of district justices during the 12 years had called for such a provision, unless there was very grave abuse that required to be curbed or cradicated.

I think the Minister has an open mind on this subject. I think he is carrying out the official view and acting the part of an advocate, and that the Attorney-General is doing the same. I am not acting the part now of a politician in pressing that the Minister should accept this amendment. We do not hope to secure anything by this. The very fact that there are not a dozen people in the House and that the Press, when they are reporting this debate in the morning, will say that there was another long and tedious instalment of the Courts of Justice Bill, shows the very great interest taken in this Bill, important as it is to every citizen; so that we get nothing out of pressing this point, but rather the contrary. I think that the Minister ought to accept the amendment and that he can accept it without sacrificing any principle. Not merely will he not be sacrificing any principle, but he can show himself to be open to argument by dropping the very objectionable provisions that appear in the Bill and accepting this amendment, which will put the position back again to what it was in 1924 with, perhaps, a little strengthening of it.

I remember the late Professor Swift MacNeill, when lecturing us on constitutional law and the independence of the judiciary, referring to an instance of a rebuke being addressed to a judge by a Home Secretary. Notwithstanding the fact that the principle of the independence of the judiciary is so well ground into the British Constitution and such an integral part of the Constitution, there is on record an instance of a British Minister addressing a rebuke to a High Court judge and getting away with it.

We have control in the Dáil over the judiciary. We will have complete control over them when the Seanad is gone. Why then put on record, in a Bill of this kind, that in the view of the Legislature of this country, after an experience of 14 years, after working a judicial system which has at least, commanded some admiration, in respect of the district justices portion of the system, and that has commanded considerable respect in other portions of the Commonwealth of Nations, that we want such a provision? Why, with all that experience, should we want this degrading provision to keep our justices within bounds? I think it is a blot upon the Bill. In practice I think it will be no use at all, because I do not think the President of the High Court and the Chief Justice will ever be got to give a majority opinion censuring a district justice. No matter how serious the charge I think a body of that kind would hesitate to censure a district justice. I think the removal of a district justice must inevitably follow from a censure of this kind.

If this committee is to be of any use whatever, censure of a district justice would be only a preliminary to his removal. I think, therefore, that because of the fact that a person occupying the position of Chief Justice or the President of the High Court will be prevented from acting against one whom he regards as a colleague, although in a different scale of the judicial hierarchy, and will hesitate so to act, this will be, more or less, a dead letter. It will never work in practice; it will never be put into practical execution; and it will be a blot upon the legislature and will give permanent from to what would be regarded as the opinion of the Government that district justices require something to keep them in order.

The Attorney-General

Some Deputies will probably find this a very tedious discussion. We lawyers do not. I think Deputy Costello has wasted no time in making the point, on this section, that he has made, and I think he has made a very effective argument in favour of his point of view. While there is a great deal to be said for what he urges I differ from him in his view as regards the practical value of this provision. I may say, as I said in answer to Deputy O'Sullivan earlier. I can see a number of arguments directed against the section on the ground that it contains this provision. It may be looked upon as a blot, on the section, that it is necessary to state in black and white that the committee will have power to censure a district justice. I can see the force of the argument that it might invite persons to file vexations and ridiculous complaints, or to bring to the attention of the Minister matters which without this provision in the section would not be brought to his attention, and that it might become a medium for both harassing the Minister and the district justices. At the same time, experience convinces me that it is a reasonable thing to have provision there to enable a tribunal to administer a rebuke where the conduct of a district justice has been such as to merit disapproval by the members of the committee, but where they would hesitate to recommend that the district justice should be removed. That weighed with me in agreeing with the Minister in introducing this provision.

I think the Minister has an open mind upon this matter, and that there is a great deal of force in what Deputy Costello has said. But the Deputy has not shaken me away completely from the view I have, that, having regard to the constitution of the committee, and the preponderance of members on that committee, entirely removed from any Governmental control, that anyone who is dealing with this will recognise at once that there must be a genuine cause of complaint to be recognised by it, even if it gets through the Minister's hands at all, and that there must be something very serious to merit censure, not to talk of removal.

All this will counteract the dangers the Deputy fears as following from the system. I do not think that commentators will regard it as any serious reflection on the working of the system as hitherto in existence. That consideration is not of serious moment. It must be remembered that the type of work district justices have to do is different from the work of the other courts. I think there is justification for this and it is not altogether fair to say that this provision is the work of officials of the Ministry of Justice. It was considered very carefully. I do not know whether the Minister is prepared to think over the points the Deputy has made between this and the Committee Stage.

Mr. Costello

Before the Minister commits himself one way or another, may I make one observation? I do not want him to commit himself without hearing this last point of view. I do feel strongly upon the section. I think the Attorney-General will agree with me that, whereas there have been some instances where even he would like to administer a rebuke to district justices, yet, there have not been such abuses of their position generally by district justices as would urgently call for this section. This is not the last Courts of Justice Bill that will be introduced by the Legislature of this country. It is not the last Bill we will have dealing with legal reform. I make this offer to the Minister, that if at some future time the facts are such as require the passage of a Bill containing provisions of this kind, I will support a proposition of that kind. I think the facts at the moment do not require it and that this provision can at least be postponed for another Bill.

Mr. Ruttledge

The position in any case is that something would have to be put into this Bill. It has been pointed out that until now Section 73 of the 1924 Act was there. Even if the committee could certify, it does not state who is going to remove or who has the power to remove. Something of that kind has to be put in to tighten it up, from the experience that has arisen. I did my best to try to bring in various things in view of the criticism that was directed against this and to meet these criticisms as nearly as I could. I fully agree with Deputy Costello that there is not anything like general complaints against district justices. For from it. The contrary is the case. I emphasised all through that it is extremely rare for anybody to have any reason to comment on or to make complaints against district justices. We are all satisfied about that. On the other hand, it has been the experience of the present Attorney-General that there will arise something which does not affect the overwhelming majority of the other district justices, something that cannot be dealt with in a particular way. It has never been the desire that district justices should be hauled up before this committee on every whim or complaint made by someone in the country. It might be possible that at some time such a thing could happen. I could not realise such a thing arising. I am prepared to reconsider the question of censure, but something will have to go in to clear up the position that has obtained. I will consider the suggestion of Deputy Costello before the next stage to see if I can go any further to try to meet him.

Amendment, by leave, withdrawn.

Mr. McGilligan

I move amendment No. 81:—

In page 20, Section 51 (1), line 12, in Section 51 (2), line 20, in Section 51 (3), lines 22 and 23, in Section 51 (4), lines 30, 35, and 41, in Section 51 (5), lines 51 and 53, in Section 51 (6), lines 57 and 59, in page 21 Section 51 (8), line 17, and in Section 51 (9), line 31, to delete the word "advisory".

Yes.

Amendment, by leave, withdrawn.

Mr. McGilligan

I move amendments Nos. 82 and 83:—

It is merely put in because of the necessity of setting up machinery.

Mr. McGilligan

Would it not be regarded as very definite criticism of the whole district justices group if there was more than one complaint a year? Yet, we are to have machinery and a secretary.

Mr. Ruttledge

It is for the purpose stated.

Amendments, by leave, withdrawn.

Mr. McGilligan

In reference to amendment No. 84:

In page 20, before Section 51(4) to insert a new sub-section as follows:

A justice of the District Court may at any time make complaint to the said committee about any matter affecting the said justice of the District Court in the discharge of his duties and the said committee shall investigate, consider, and report on such complaint in such manner as they deem expedient.

This was put down to draw attention to absurd cases brought against district justices. I am not going to proceed with the amendment now.

There is this point that while some justices might find themselves embarrassed and bring it to our notice, complaints might arise in regard to a justice who might have been embarrassed but who did not want to leave the area. That would be a matter for the committee to consider.

Mr. Costello

I think the Minister might reconsider that sub-section altogether in conjunction with the rest of us. "Personal circumstances" is a very objectionable phrase.

Mr. Ruttledge

We will consider it.

Amendment, by leave, withdrawn.

Mr. McGilligan

With regard to my amendment No. 86:

Amendments Nos. 87 and 88 not moved.

Section 52 agreed to.

The following amendments stood on the Order Paper:

89. In page 22, to insert before Section 53 a new section as follows:

Notwithstanding any provision to the countrary contained in any enactment in force on the day before the date of the passing of this Act (whether contained in an Act of the Oireachtas or in a British statute) it shall be lawful for any person to appeal against any Order of any kind whatsoever made by a District Justice sitting in the District Court under any power vested in him to the Circuit Court Judge in whose circuit area such District Justice may have made such order.—(Seán MacEoin.)

94. Sub-section (1) of Section 18 of the Courts of Justice Act, 1928 (No. 15 of 1928) is hereby amended by the deletion of the words "(not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour)" now contained therein and the said section shall be construed and have effect accordingly.—(John A Costello.)

95. In page 23, before Section 58, to insert a new section as follows:—

Any person aggrieved by an order of a justice of the District Court requiring the said party to enter into recognisances to keep the peace or be of good behaviour may appeal against such order to the Judge of the Circuit Court for the area in which the said appellant resides and the decision of the Circuit Court Judge thereon shall be final and conclusive.—(James M. Burke.)

Mr. Ruttledge

I think amendments Nos. 89, 94, and 95 can be taken together.

Mr. Costello

I move amendment No. 89 on behalf of Deputy MacEoin. The principle underlying this is more or less the same as that underlying my own amendment No. 94. I rather anticipated what I would have had to say on these amendments in the remarks I made on the section dealing with district justices. I feel very strongly that, in respect of any order of any kind made by a district justice, there should be an appeal to the circuit judge. There is no appeal, or at least it is believed that there is no appeal, at the moment from the district justice who makes an order binding people to the peace. I can conceive that in certain circumstances the jurisdiction of a district justice to make an order binding to the peace is very advantageous from the point of view of the maintenance of order, but some district justices are rather too apt to use that power. Some who have been district justices have made use of that particular piece of machinery as a method of doing substantial justice in a case in which perhaps they ought to have given another decision. I think quite seriously that there ought to be an appeal from an order binding to the peace.

I do not know why the idea got abroad that this particular exercise of judicial discretion is something apart, something sacred, and that it should not be touched once the discretion has been exercised. I am sure that the Minister and the Attorney-General know that it has been decided that the exercise of the power to bind to the peace is of a particularly punitive character. According to the Chief Baron, at all events, it is of a very punitive character, and cases where orders binding to the peace were made were often given the benefit of certiorari where otherwise they would not, and I think there are actually decisions to the effect that the evidence in respect of which the order was made, could be reviewed on certiorari in cases where they could not be reviewed in ordinary proceedings by certiorari. I do not know where the idea of selecting orders binding to the peace from the right of appeal grew up, but it became very firmly rooted in some people's minds. Even in the Act of 1928, although I thought I had it covered when pressing my own point that every order should be appealable from a district justice, apparently the point was not covered. I thought I had it covered at the time and I want to have it covered now. I think that to allow district justices to have unlimited discretion tends to make them autocratic, even though their jurisdiction is limited. I hold that it is not right that there should not be an appeal from the district justice. Normally, it is not right that there should not be an appeal from every court, if that were possible. I should like to see an appeal from every court, if that were humanly possible, but of course, that cannot be the case as there must be some final court of appeal. However, although we recognise that there must be one final court of appeal, we always wish there were another higher court to appeal to. Where you have far-reaching powers exercisable by the district justice, powers affecting the pocket and person of the individual, I think that in every case there should be the right of appeal to another independent mind. I think that there should be full liberty to appeal.

On the specific point covered by my own amendment, I feel very strongly also. I do not think that the discretion is very often exercised wrongly by district justices, but at the same time it is exercised occasionally in cases where the facts do not justify a conviction but where the district justice says to himself: "Although I cannot convict this fellow, I do feel he is deserving of some sort of punishment and I will order him to enter into recognisances to keep the peace." And that may happen in cases where the district justice should have actually dismissed the charge, but instead of that an order is made binding to the peace. Sometimes that order is salutary, but very often it leads directly to breach of the peace. Perhaps the Minister has heard of the case of a gentleman being bound to the peace for so many months by his wife, and her method of helping her husband to keep the peace during the period covered by his bail bonds was to dare him to assault her. The husband finally got to the point that he could no longer resist the temptation and assaulted her violently —all the more violently because the accumulated patience of months became strained to the breaking point, and his temper broke out in a particularly violent way. I think that there may be such provisions scattered through the obscure statutes which we took over under Article 73 of the Constitution and I want these swept away and the district justices made subject to appeal. As I say, I do not think there will be many appeals, but the fact that there is an appeal from a court is a very salutary expedient, indeed, for keeping the judicial person on the rails.

Mr. Ruttledge

I fully sympathise with Deputy Costello's point of view on this matter of binding to the peace. I myself have had experience of cases where people found themselves in the position, as a result of having been bound to the peace, of being afterwards regarded, for purposes of cross-examination and so on in other cases, as criminals, merely because they had been bound to the peace, and they might have been bound to the peace just because the previous justice or magistrate had had in mind something very different.

At the time this was being drafted, I did not advert to it. It was not brought to my notice at the time, I think, as I am sure that otherwise I would certainly have incorporated something in the Bill to meet that case. I agree fully, as I have said, with the Deputy's point of view as regards getting an appeal in this particular kind of case anyway, or where a person is bound to the peace and has no right to appeal. The only difficulty that occurs to me is that there might be cases where it might be desirable that a person should be bound to enter into recognisances to keep the peace pending a hearing before the Circuit Court judge.

Mr. Costello

I have no objection to that.

Mr. Ruttledge

And that power should be given to the Circuit Court judge to wipe it out if he was satisfied. I shall try to frame something like that.

Mr. Costello

Very good.

Amendment No. 89, by leave, withdrawn.

The reason for that is that in most cases there is generally no question about the amount of the rate where it is a matter of the rate recoverable. If there was any challenge, it would be on the basis of the legality of the rate or on some other basis which could be tested on appeal or certiorari. I imagine that this is considered a convenience for everybody, both the person who owes the rate and the officer collecting it, to have it recoverable by summary proceedings.

Mr. Dillon

Mr. McGilligan

At the same time, this was not inside the competence of the District Court, because this is an amendment to enlarge the powers. The recommendation is in regard to empowering county councils, urban district councils and town commissioners to sue for rates. The Bill as introduced stopped at that. The new matter in this clause is boards of conservators of fisheries or drainage boards, so that we have advanced beyond the Committee Stage. The original Bill confined this recovery of rates to county councils, urban district councils and town commissioners. There is now an addition made and that was done on the evidence given by District Justice Walsh and a Mr. Cobb. They were the only two people who mentioned this matter. There was one other person who mentioned it, but when examined, I think, the phrase used is not shown to have a relationship to this matter at all. There was certainly confusion in the Committee and the two witnesses who gave evidence did not help to clear it up. Reading the report, I think that is true. They simply threw out the suggestion. On that we have this brought in and we have suddenly, in regard to rates, the District Court jurisdiction enlarged, no limitation by way of money value at all.

The Attorney-General defends that by saying the amount is not really going to be in question; it is only a point in law. There are many other matters in which the amount is not so much the subject-matter in dispute as the point in law and yet there is a monetary limitation. Here, in regard to rates, suddenly we find no limitation. I suggest there should be some limitation. If it is thought fit in ordinary matters to have a monetary limitation as well as a provision for a point in law, I think you should have also the same monetary limitation in regard to rates. That seems to be logical.

The Attorney-General

I think the Deputy does not realise that it has frequently been provided that in cases of this kind where a person's liability is determined by reference to some well-settled scheme of things, the person entitled to recover has been allowed to sue in a court which ordinarily would not have jurisdiction to deal with the claim. If my recollection serves me right, in the old County Court the jurisdiction was £50, but rent could be sued for up to £100. Here, in this case, the rates are determined by reference to the rateable valuation of each hereditament. A question is asked as to how that rate is arrived at, how it is decided for the whole rateable area by the authority striking the rate. If a question arises as to the basis of the rate, whether it was properly arrived at and so on, that can be and should be challenged in a proceeding in the High Court. It may be challenged on a proceeding to quash the rates and the whole proceedings may ultimately be brought to the Supreme Court.

If any question, such as Deputy Dillon mentioned in connection with the Suck drainage, arises it can be tested in either of the ways I mentioned: by an appeal to the Supreme Court or a case stated to the High Court. If it is a question which goes to the root of the whole jurisdiction to strike the rate, it can be brought in other ways before the High Court. It is recognised that in the vast majority of cases no question will arise of such difficulty on fact as would make the District Court an unsuitable tribunal in which to try the cases. For that reason they are taken out of the general rule which limits the jurisdiction of the District Court.

Mr. McGilligan

Why retain the paragraph, as it will be in the Act, immediately before that, limiting proceedings at the suit of the State or a Ministry to £25? The State can only sue for £25, whether it is penalty or debt or otherwise, but a county council or a drainage board can sue for anything.

I do not think there is anything in the Deputy's point, but we will look into the matter.

Amendment, by leave, withdrawn.

Section 53 agreed to.

The following amendments were on the Order Paper:—

91. In page 22, Section 54, to delete paragraph (a) lines 24 to 30 inclusive.—(Seán MacEoin.)

92. In page 22, Section 54, to delete paragraph (b) lines 31 to 38 inclusive.—(Seán MacEoin.)

93. In page 22, to delete Section 54 (c).—(Patrick McGilligan.)

94. In page 23, before Section 58, to insert a new section as follows:—

Sub-section (1) of Section 18 of the Courts of Justice Act, 1928 (No. 15 of 1928) is hereby amended by the deletion of the words "(not being merely an order returning for trial or building to the peace or good behaviour or to both the peace and good behaviour)" now contained therein and the said section shall be construed and have effect accordingly.—(John A. Costello.)

95. In page 23, before Section 58, to insert a new section as follows:—

Any person aggrieved by an order of a justice of the District Court requiring the said party to enter into recognisances to keep the peace or be of good behaviour may appeal against such order of the judge of the Circuit Court for the area in which the said appellant resides and the decision of the Circuit Court judge thereon shall be final and conclusive.—(James M. Burke.)

96. In page 23, before Section 61, to insert the following new section:—

Is this because the prevailing wind in this country should be east?

The Attorney-General

He concluded his reply by saying:

"In the case that I mentioned, a small farmer in the West of Ireland, I think it is almost impossible for him to get redress if he has to come to Dublin."

Mr. McGilligan

I do not know that there is very much more evidence about this. It is very hard to find evidence about it.

The Attorney-General

There is the recommendation there.

An Ceann Comhairle

Is amendment No. 93 withdrawn?

Mr. McGilligan

They are all withdrawn.

An Ceann Comhairle

Nos. 91 and 92 are not moved; amendment No. 93 is withdrawn and amendments Nos. 94 and 95 are not moved; they depend on amendment No. 89. Amendment No. 96 is not moved.

Sections 54 to 61 agreed to.

Mr. Ruttledge

I move amendment No. 97:

In page 23, line 47, Section 62 (1), after the word "refuses" to insert the words "to receive informations in relation to such charge or"

Mr. McGilligan

This is merely a drafting amendment.

The Attorney-General

This is a section to enable the Attorney-General to send forward a case for trial even though informations have been refused.

Mr. Dillon

Would the Attorney-General be good enough to explain the exact significance of amendment No. 97 which amends the original proposal in the Bill?

Mr. McGilligan

Is there a difference between refusing informations and refusing to send forward the case? What is the difference between refusing informations and refusing to send forward a case, if there is any difference?

The Attorney-General

No, except that "refusing informations" is the technical and proper term to use. Before a case is sent forward for trial we receive informations. One act is divided into two.

Mr. Dillon

This is purely a drafting amendment.

Amendment agreed to.

The Attorney-General

I move amendment No. 98:

In page 23 to add at the end of Section 62 two new sub-sections as follows:—

(3) When a direction by the Attorney-General under this section has been communicated to the District Court clerk in pursuance of the next preceding sub-section of this section, such District Court clerk shall cause to be served on the person to whose trial such direction relates notice in writing stating that the Attorney-General has directed under this section that such person shall be sent forward for trial to a particular court (which shall be specified in such notice) on a particular charge (which shall be similarly specified) and that such person is required to attend before the said court at a specified time and place and there to stand his trial on the said charge.

(4) If a person on whom a notice has been served under the next preceding sub-section of this section fails to attend before the court at the time and place specified in such notice, it shall be lawful for such court, on proof of the service of such notice on such person not less than seven clear days before the day on which he is thereby required to attend before the said court and of the service on such person of copies of the relevant depositions and particulars of all additional evidence intended to be adduced by the prosecution on the trial of such person, to issue a bench warrant for the arrest of such person and the bringing of such person before the said court in custody.

Section 62 is introduced at my instance. This is to place beyond doubt the right of the Attorney-General to send forward or have brought for trial before the appropriate court persons who are charged with indictable offences where the district justice has declined to receive informations. The whole practice, as most Deputies are aware, arises in this way: Prior to the Courts of Justice Act the position was that the Attorney-General could, notwithstanding the fact that the magistrates had refused informations, send up a bill to the grand jury and, if they found a true bill, have the accused sent forward for trial and tried before the court. Since the Courts of Justice Act and the changes consequent upon it in this country a difficulty has been introduced, although I have discovered in point of fact where a number of cases had been sent forward and the prisoners sent for trial notwithstanding the refusal of informations by the district justice. Prisoners who were sent forward in this way by the Attorney-General have been tried and dealt with. They were tried in the Circuit Courts and in, I think, the Central Criminal Court without question. Recently I had occasion to endeavour to have tried a prisoner in whose case the district justice had refused informations. The case came before Judge Shannon, and he decided after a lengthy argument and, I think, with some hesitation, that in view of the disappearance of the grand jury the case could not be sent for trial. Deputy Lavery was in the case and he argued it successfully. The circuit judge decided it mainly on the ground that the channel of the old grand jury had disappeared and that it was not now open to the Attorney-General to send forward a person for trial or have a bill sent against a person in respect of a charge in which the district justice declined to receive informations. It can be well understood that it is very rarely that the Law Adviser has a complaint to make as to the refusal of the district justices to receive informations. Speaking personally, during my own tenure of office there have not been more than a dozen cases in which I felt that a prima facie case had been made out against the accused where the district justice had declined to receive informations. But there have been cases. I do not say that the case in which Deputy Lavery was concerned is a particularly strong one; the facts are roughly this: A man was alleged to have been knocked down in O'Connell Street. There was some confusion and difficulty about obtaining evidence and it was some time after the occurrence that an eye-witness to it gave a statement to the Gárda in which she alleged that she witnessed the occurrence, and she described how she saw this particular man being knocked down by a tram.

I considered on that evidence that there was a prima facie case to go before a jury to say whether this tram conductor was guilty of criminal negligence in knocking down a man in the middle of O'Connell Street. First of all, the district justice was asked to receive informations. When evidence was given, the tram conductor's case, I think, was that he did not strike the man at all, that his tram was not responsible for the injuries from which the man subsequently died. However, I thought it was a case in which a jury ought to be asked to investigate the occurrence and see whether, in their opinion, the girl's story could be accepted and, if so accepted, whether the evidence would justify a finding of criminal negligence.

There have been similar cases in other parts of the country in which I thought the evidence tendered before the district justice was sufficient, if inquired into by a jury, to warrant a finding of criminal negligence. There have been other cases of a different nature in which I took a similar view and in which I felt that the district justice had gone beyond his proper province and had, in effect, tried out the issue and come to the conclusion, using his own judgment, and acting as a juror in the case, that there was no justification for the charge against the accused. It is in consequence of that position of affairs that I ask that jurisdiction should be given to the Attorney-General in charge of prosecutions so as to enable him, when he is satisfied that there is evidence to be investigated before a jury, to see that the case be tried before a jury.

I do not see that there can be any reasonable complaint against that. I know that the Bar Council, when dealing with this proposal, have recommended against it. The Bar Council seem to be very favourable to anything involving accused persons. I do not understand why they took such a view, because it only means that this power will be exercised in cases where, upon evidence in the hands of the Guards, the Attorney-General is satisfied that there is a case to be investigated before a jury and evidence available which, if accepted by a jury, would justify a conviction. The cases will probably be rare and, as it only means sending a man before a jury for his trial, it cannot be complained that an injustice will be done, unless one considers that the ordeal of being tried is a gross injustice. It is the practice which was in vogue under the old régime before the date of the Courts of Justice Act. As I have said, the Attorney-General was in a position to send up a bill to the grand jury for consideration. Since the Courts of Justice Act, on a number of occasions, prisoners have been tried in a similar way and it was not until a recent case that the jurisdiction to have this procedure followed was challenged.

The objection which will probably be raised to the proposal is that formerly there was the channel of the grand jury; that there is nothing now to take its place, and that it is in the hands of the Attorney-General of the day to say whether in his view a district justice had wrongly refused to hold that there was a prima facie case on the informations before him. It is a power which probably will be very seldom exercised. It is a necessary and a useful power, and I think the Dáil ought to grant it.

Mr. Lavery

I think that this amendment, harmless though it may appear when read by those who do not appreciate its true inwardness, raises one of the most important questions which arise under the Courts of Justice Bill at present before the House. The proposal is that the Attorney-General, whose functions under the Constitution and under the Acts are very difficult to define, should be not only the prosecutor in courts of criminal jurisdiction, but should also be the person to determine whether a prima facie case has been made.

I think that there is an important question that goes far beyond anything in this Bill which this House might have to consider at some future time and that is, that the position of the Attorney-General under the Constitution should be defined. At present he is the reflection, if I might say so without offence to the present occupant of the post, of His Majesty's Attorney-General as he existed under the Constitution before the Irish Free State was established. He is the King's Officer with all the functions of the King in everything appertaining to legal procedure. That gives him very many different functions. But one which it never has given him is the right to determine whether a person should stand in the dock upon a criminal charge or not. He is charged with the duty of presenting the case for the prosecution. In fact, now that the Crown has disappeared from the title and from the substance of criminal prosecutions, he is the prosecutor, and it does seem to be something of an anomaly that not only should he be prosecutor, but he should also be judge.

The section now before the House asks that the Attorney-General should be put in the position, after a citizen of the State has been put on trial before a court, and after a judicial person, specially qualified and specially trained, has decided that there is no justification for placing that man in the dock, of over-ruling that decision and placing him in the dock for his trial. I know that in recent years, and I do not confine that period of time to the period of the office of the present Attorney-General, some arbitrary rule has been adopted that if a death has been caused by what may be described as an accident—the commonest case, of course, is upon roads where a mechanically propelled vehicle, a motor car or tram car, is involved— there should be a criminal trial of the person who is alleged to have caused that death. I have always thought, and I am sure the House will think too, that that is a wrong distinction to draw. There may have been cases in the Circuit Court and in the Central Criminal Court where persons have been tried on a charge of manslaughter merely because there has been a death, where if there had not been a death, but merely a bodily injury, no matter how serious, no one would be placed on an alleged criminal trial. That is not a distinction that can be founded upon law or upon commonsense. I think the rigidity of that rule is felt there. I do not think it is now the practice to place a person on trial because death has followed some road accident. If it is I think it should be discontinued. However that may be, and having regard to the case the Attorney-General mentioned, whether we agree or not, under the law in this State, as it at present stands, the Attorney-General has no such power or jurisdiction which this section seeks to give him.

I do not want to refer to the circumstances of this particular case. But the House ought to approach this matter with the knowledge that the courts have decided that as the law stands the Attorney-General has no power, and ought not to have power, which this section would give him. The Attorney-General referred, and properly referred, to the history of the office of Attorney-General and to the history of criminal prosecutions in this country. It always was the law that no man should be placed upon trial until a grand jury—that is a jury of citizens—had determined that he should be put on trial, and that there was a prima facie case for a petty jury to enquire into; that is to say, that he should not stand in the dock upon trial on a criminal charge.

Now the grand jury has gone. At the same time that the grand jury disappeared there was set up in this country a system of District Courts in which paid judges—men with legal qualifications—were established to investigate the preliminary basis of criminal charges; and these district justices were given jurisdiction to receive or to refuse informations. I use the technical term, which means that they were to determine whether a person should stand his trial or not. I do not see any reason why these district justices, who have had their status already so fully discussed tonight, should be further degraded into the position of having their decision —come to after they have heard at length the evidence of material witnesses given before them on both, and having come to a judicial termination whether there is a prima facie case or not—reviewed by the Attorney-General or why he should have power to overrule their decision. The Attorney-General mentioned that I was concerned as counsel in a case where this principle was established. I want to get away from any discussion whatever with regard to that case. But some observations in regard to it were made by the Attorney-General—I do not say intentionally but incidentally—to which exception might be taken. It would be wrong for me to deal with this—I regard that as a matter of principle—but I think this was established, that no citizen should stand in the dock unless a body of citizens, whether a coroner's jury or a grand jury, had determined that he should stand his trial.

It is now sought to do away with the alternative provided by our Constitution and laws—inquiry by a district justice, a trained lawyer who hears the case—and place the Attorney-General in what should be an embarrassing position for him, to revoke that decision, and to say that although a judicial officer of the State who heard the evidence has decided that there is no case, the Attorney-General who is charged with the prosecution, and whose duty it is to present the case from the point of view of the State, fairly no doubt, but nevertheless bound to bring into the case everything that can come in to show the guilt of the prisoner, should be empowered to review that decision and to reverse it. I say I do not know why that case should be made by the Attorney-General, and I think the principle involved is a very important one.

After all it is a serious thing for any one, whether highly placed or lowly placed, whether rich or poor, that he should stand in the dock in Green Street or any other criminal court in this country, charged unless a justice has determined there is a substantial case. I mentioned the case of death. We all know that frequently people have gone to Green Street, and stood in the dock on a charge where anybody who gave a moment's attention to their case would realise that only one verdict, a verdict of acquittal, was possible. Yet, they have to face that trial and incur the expenses, and suffer the indignity, and a serious indignity I consider it to be in such instances. It is one thing to go to the District Court where an inquiry is held, and where there is nothing in the nature of a criminal prosecution involved. If a man could go there and establish to the satisfaction of a trained judicial person that his case is not a criminal one, I do not see why that decision should be reviewed especially by the chief officer of the Executive in legal matters.

I have said that the Attorney-General's position is one which at the present moment is very anomalous. We have had examples of that in the courts in recent days. We know that the Attorney-General is not only, under the Criminal Jurisdiction Acts, and the Ministers and Secretaries Act, principal adviser to the Departments of State, but that he is also the officer who has the right to give or withhold the fiat necessary to bring an action against Ministers of State. The office has certain judicial qualities. It is administrative and executive, and now it seeks to become judicial as well. I think this should be considered on a broader plane than the present amendment.

I think it will be a very serious thing if the Attorney-General sets himself up as a court of appeal from district justices who, under our Constitution, have taken the place of the old grand juries. There are multitudes of people outside to whom these things will mean a great deal and who may find themselves involved in accidents or something of that kind. This section is not confined to these because there are officers of companies, or officers of local authorities, who may have got into some difficulty, or have been guilty of some inaccuracy in their administration, and I think it would be a dreadful thing if after their case was investigated by a district justice who decided that there was no case upon which a jury could justifiably convict, that the Attorney-General, who is the officer perhaps of the Department of State, alleged to be defrauded, should be able to review that decision and send that man to his trial. What I am pleading for here is in effect, that a man whose case was tried once and whom the judicial system has acquited, should not be put on his trial again by an executive officer of the State who, in many cases, must be concerned with very different considerations. I urge the House, and I urge the Attorney-General, carefully to consider this particular section before he forces it to a vote. I think there are very grave issues involved that go far beyond the implications of the section, serious though it is in itself.

Mr. Costello

I agree entirely with what Deputy Lavery has just said. I think that there are involved in this amendment very serious issues involving the liberty of the subject and the rights of the people who may be involved in the criminal machine. I can say without undue presumption that I am entitled to speak on this proposal with some authority, because I can see the question from both points of view. For some years I occupied the position which my friend the Attorney-General now occupies, and I used the power which he seeks to become entitled to use under this Bill on two occasions. He used it actually on one occasion. I got away with my few occasions but he did not get away. On the two occasions that I used this power the jury in fact convicted the prisoner who when before the district justice was acquitted or informations were refused. That does not affect the principle. In the particular circumstances of the cases I was involved in at that time it was quite clear that a miscarriage of justice was likely to arise, unless the power, which was exercised in exceptional circumstances, was in fact then exercised. I suppose during the six years I was Attorney-General I dealt with 10,000 or 12,000 criminal cases altogether. Other cases came before me which never went for trial. I suppose 20,000 cases would be the minimum number of criminal cases I dealt with in those six years, not to speak of cases I dealt with during the four previous years as assistant, when, as Deputy Lavery says, this alleged power was never made use of.

I think I can approach this, sympathising with the point of view of the Attorney-General who wishes to have this power. But I also had the other experience since I left office, the power in the particular case to which Deputy Lavery referred, in a motor accident where the police appeared to have the view that in every case involving serious accident, or particularly in the case of death there must be a prosecution automatically. My experience as Attorney-General directing and conducting prosecutions is precisely the same as I have had since that time in ordinary practice. That is that district justices in my experience are far more prone to receive informations than to refuse them in criminal cases. They are far more desirous of sending people for trial than refusing informations. It is the line of least resistance with district justices. If there is a prima facie case they just sit there and an unfortunate clerk writes whatever he can get down as the witness goes along. The district justice just sits there and says: “I think there is something to be tried.” It should be realised by Deputies that when indictable offences as they are called in popular language, triable by jury are being investigated before a district justice, the accused has no chance of giving evidence on his own behalf or of producing witnesses. No matter how cogent the evidence he may be in a position to produce to show that he must be acquitted if the case goes to a jury he cannot produce that evidence or bring it before the notice of the district justice if the police can produce some witness—although the district justice may not believe him—who might say something which somebody might think a jury would believe if he got before a jury.

Actually I had that case. There was no evidence whatever in that particular case which I defended subsequently in Green Street, to show that a motor driver was guilty in the slightest degree of negligence, except evidence from one talkative and voluble gentleman who appeared from nowhere. At the last moment he came up and volunteered evidence in the District Court. The whole weight of the evidence of that particular gentleman was in favour of the accused, but, because of his appearance on the scene the case went for trial. The jury stopped the trial and laughed that particular gentleman out of court by acquitting the prisoner in the middle of the case for the prosecution. My client had to pay out of his own pocket the fees for his defence before the district justice and had to pay my fee and the fee of junior counsel to appear for him in Green Street. The State did not indemnify him against costs, even though the jury stopped the case. That is a typical instance of the attitude of district justices towards the investigation of criminal offences. In 99.9 of the cases presented by the police they simply say that there is something in them and that they must go for trial, even though they do not believe that a jury would convict. The district justices are too prone in my experience as Attorney-General and as an ordinary practitioner to accept informations and to send cases forward for trial. Speaking for my experience of reading depositions before they were sent for trial by district justices, in cases which would come up in the ordinary way to the Attorney-General's offices for his fiat, many a time I wished that district justices had not sent forward a large number of cases, because if I entered a nolle prosequi, or if the Attorney-General entered a nolle prosequi in similar cases, district justices feel it as a personal affront, and incidentally the Attorney-General might be the subject of criticism in the Dáil for doing so. What is proposed in this section is that in the few cases where the district justice refused informations, it enabled the Attorney-General to override that view, and to send them up on his own behalf. I have convinced myself after some thought and with deep appreciation of the point of view of the Attorney-General that it is a wrong principle. In the old days there were roughly speaking three protections for the accused, the magistrates before whom indictable offences were investigated, the provisions of the Vexatious Indictments Act, and finally, there was the barrier of the Grand Jury. Those three things were interposed between the Crown and the prisoner. To all intents and purposes, having regard to the procedure of criminal administration at the moment, the Vexatious Indictments Act is dead, the Grand Jury is gone and there is nothing between the prisoner and the State now except the district justice.

Remember this, that if a district justice refuses information, that does not end the matter. That is not a judicial determination of the question to the point of saying that it can never be heard again by the same district justice; in other words, to put it technically, autre fois qui cannot be pleaded if the Attorney-General again brings the case before the district justice, so that he still has the power, if a district justice does what he thinks he ought not to have done—refuses information—to bring the same case on the same evidence before the same district justice and to ask him: “Will you change your mind?” If he gets fresh evidence, the district justice has not merely the excuse, but possibly the duty, of changing his mind.

That is the position at the moment. If a district justice refuses informations, the prosecutor, whether he be a private prosecutor, the police or the Attorney-General, can bring that same case again before the same district justice, even on the same evidence, and ask him to reconsider the matter. Consequently, I think that, taking all things into consideration, the balance is entirely in favour of not proceeding with this proposed amendment. There is only an infinitesimal number of cases in which the power will be required. I think it is not right to impose the duty of doing this on the Attorney-General. In his own interest, in the interest of the present occupant, and sympathising with the task he has to perform, knowing from my own personal experience what it is, I think it is right and proper that this duty should not be imposed upon him, because it will mean that a very serious duty will be case upon him and upon his office.

In effect it will mean that in every single case in which informations are refused the police feel aggrieved— everybody will admit that, and it is only natural; their prey has slipped from them—and they will write up, knowing that this power exists, to the State Solicitor concerned, who will write to the Chief State Solicitor in the Castle, who will in turn send the special circumstances of that case to the Attorney-General. The result will be that every case in the entire Irish Free State in respect of which informations are refused will descend ultimately and inevitably upon the Attorney-General's office and he will be asked to review every single case. I think it is not right that that duty should be imposed upon him. I think it is an impossible task. The taxpayer is paying a trained man and a man of experience. The district justices who now occupy their offices have had very considerable experience of this class of cases. If they decide that there is not a prima facie case, in practically every case it may be taken that there is not, because their normal tendency is to decide in favour of the police. Their normal practice is to decide in favour of the police, and, in addition, their normal laziness, if I might put it that way, will lead them to decide in favour of the police, because it is the line of least resistance.

Everything tends against the accused and to close up this last loophole of escape to the unfortunate accused person amounts, I think, almost to a denial of justice. I think on the question of principle, so ably adumbrated by Deputy Lavery, the Attorney-General should not press this. Again, I say, as I said on a previous amendment here to-night, we can discuss this, and I am sure that both the Attorney-General and the Minister will discuss this question as a question of principle, neither side endeavouring to score off the other or to make political capital out of it. I have the greatest sympathy with the point of view which the Attorney-General urged on this matter, but I have given the matter considerable thought and I have come to the conclusion that it is not a power which, in the interests of the accused person, in the interests of the liberty of the subject, or of the Attorney-General himself, should be conferred upon the Attorney-General.

The Attorney-General

I must, of course, be impressed by the view put forward by the last speaker. He has had the advantage of holding my position, and, after the experience in that office, of being in a position to look now at the other side of the picture. I had, of course, the experience of being a defender of prisoners and have now the experience of being a prosecutor, but he has had considerably more experience than I have had, and I appreciate that what he has said is only after much consideration and is the expression of a view which he thinks on the balance is the correct one. I agree with him that to ask that such a power should be given to the Attorney-General means imposing upon him an extra burden and adding to his duties. It would not, I think, go to the length suggested by Deputy Costello of requiring him to investigate every case in which the police failed to get their man. After all, he must remember that there was a time when the power to send these bills forward did exist, and apparently they acted during his term of office on the basis that the power did still exist, and I do not think it is reasonable to say that the police felt so aggrieved by refusal of informations in those cases in which informations were refused that they pestered either the Chief State Solicitor or his office with demands that a bill should be sent forward.

However, undoubtedly it would add considerably to the duties of the Attorney-General, but I suggest this provision only in an interest which has not been mentioned here at all. We have heard a lot about the liberty of the subject and the interests of the accused person. Deputy Lavery said that he pleaded for the liberty of the subject in this matter. I introduce this only in the interest of justice and had in mind only the situation created when an accused person wrongly escapes the ordeal of a trial before a jury. Deputy Lavery says that I want to constitute the Attorney-General a court of appeal from the district justice, but, as Deputy Costello has just pointed out, the district justice in this case does not adjudicate at all. He investigates the evidence before him and his duty, as I construe it—and this is where I quarrel with the district justices who have led me to introduce this amendment—is to say whether there is evidence which would justify a jury in convicting and whether there is a prima facie case.

When he has discharged that duty, I do not see anything shocking or anything that interferes with the liberty of the subject, not being an arbitrary interference—and liberty is defined as freedom from arbitrary interference— in this proposal, unless it is to be contended that this power which the Attorney-General is to have is to be an authority arbitrarily to interfere with the freedom of the subject, and I do not think it can be attacked upon that ground. I only ask that where an opinion is formed, on evidence at the disposal of the Attorney-General, that an offence has been committed, If, notwithstanding his plain interpretation of that evidence, a district justice declines arbitrarily to send a prisoner forward, he shall have the opportunity of considering the case again, taking on himself the burden of saying that there is a prima facie case, and asking the jury to investigate it. I see the force of what Deputy Costello says: that, while that is merely putting a man before a jury, who may not convict him, that may be a very heavy punishment in the way of the costs and expenses involved.

Deputy Lavery has suggested that there are hardships inflicted upon persons, who clearly are innocent, by reason of the procedure still followed of putting on trial for murder or manslaughter all persons at whose hands it can be shown a death occurred. I do not know whether the Deputy wishes to convey that he thinks that that practice has been in existence for some time or is still in existence. I think I may inform him that, very far from that being the case, almost the reverse is the case, and that numbers of files pass through my hands every day where, if that rigid rule were applied, the persons would be sent forward for trial. I think, however, following Deputy Costello's practice in the matter, I may say that in my office we do not allow a case to go even before the district justice unless it is thought that, on the evidence, there is a prima facie case to be made. That practice has reduced the number of cases enormously. I should say it has reduced the number by 50 per cent. of the cases. Well, perhaps, that is too big a percentage and I should not rely on my memory, but I can say that the rule or practice now is—and I think has been for a number of years here— to treat cases of that kind on the same basis as other cases and not to put a person on trial or send him before a district justice unless there appears, on the statements, to be a case for them to answer.

Now, as I say, I appreciate the force of the arguments advanced by Deputy Costello and I realise that his views upon this matter are of considerable value; but I still feel with regard to the two cases he instanced himself, where a miscarriage of justice might have occurred and a prisoner have escaped trial, that that ought to weigh very seriously with the House. Even isolated cases of that kind in which justice is defeated ought to weigh very seriously with the House and they also weigh with me. It is merely for that reason that I bring this forward here, because it is no pleasure for me to have to investigate again cases I have already passed on to the district justices for investigation or which have been passed on to them by the Guards and in which, in a great many cases, the district justices were competent to decide themselves. I have no wish to encourage a district justice to act either casually or lazily in dealing with these cases because, as Deputy Costello said, I very often have felt that district justices could have dealt with the cases before them and need not have sent them on to the Circuit Court at all. However, as I say, I still feel that, in the interests of justice, this section is required, but in view of the way the matter has been put before me and the plea advanced by the two Deputies who have spoken, I think it would be better for me to reconsider the matter so as to see whether, on the balance of the argument, when the Report Stage comes along, it will be necessary to insist upon the section.

An Ceann Comhairle

Is it agreed that we take Section 62 and the amendment is agreed to on an undertaking?

Amendment agreed to.

Section 62, as amended, agreed to.

Question put: "That Section 63 stand part of the Bill."

Mr. Costello

Before Section 63 is passed, perhaps the Minister or the Attorney-General would make it clear that no very extended power is given to a district justice in civil cases to procure the attendance of witnesses. The district justice has very arbitrary powers of issuing bench warrants and things of that sort to procure the attendance of witnesses in criminal cases, but I think it would be quite unwise to allow the district justice to procure the attendance of witnesses in civil cases, in ways in which the High Court cannot procure the attendance of witnesses. I merely want an assurance that the door is not opened very wide in that section.

Mr. Ruttledge

The intention is to give the district justice in civil cases the same power as he has already in criminal cases.

Mr. Costello

But that is merely paraphrasing the section and, if I might be permitted to say so, I could see that for myself. My point is that in criminal cases the district justice can issue bench warrants and dark matters of that kind. Now, in a civil case the High Court cannot even procure the attendance of a witness by a process of that kind. I think that, in the High Court, if you subpoena a witness, it is very doubtful if the court can commit the witness for contempt if he fails to appear. Some of the judges exercise the power and think that they have that power but, as a matter of fact, I think the only power is an action for damages. Certainly, if you have, for a £5 or £1 claim, power to procure the attendance of a witness, who may not want to interfere in private litigation between two parties, I think it is not right that power should be given to have him brought along by, say, a stalwart Civic Guard.

Mr. Ruttledge

Well, that was not intended, and I shall have it looked into.

Is not the Minister satisfied that at the moment they are too high? The amendment contemplates a rise of 5 per cent. on the present rate of fees. Surely, the Minister is able to state whether or not he is of the opinion that at the moment the fees are high enough and should not be increased. Does the taking off of the 5/- duty on coal represent his views on that?

Amendment, by leave, withdrawn.

Sections 65 and 66 agreed to.

SECTION 67.

Question proposed: "That Section 67 stand part of the Bill."

Mr. Geoghegan

Before the House passes the section, I desire to draw particular attention to sub-section (3) paragraph (e) and to suggest to the Minister for Justice that it is somewhat inappropriate, and, perhaps, undesirable that the registrar of a court should be a member of a committee of which one of the judges of the court is also a member, and that possibly he might see his way on a later stage to amend paragraph (e) of sub-section (3) of Section 67 by deleting the word "who" and thereby making the registrar of the Supreme Court merely the secretary of the committee instead of having him, as he would be if this Bill were enacted, a member of the committee and also the secretary of the committee.

If that suggestion were to commend itself to the Minister for Justice, I would like to add a further suggestion and it is this, that the sub-section should have additional words that would enable the assistant registrar of the Supreme Court to act as secretary of the committee if, by reason of illness or for any other cause, the registrar himself was unable to be there. It is obvious that occasions may arise when, for one of many substantial reasons, it would not be possible or convenient for the registrar of the Supreme Court to be available as secretary. It would be regrettable if the proceedings of the committee were to be retarded through an accident of that sort. I will merely repeat that the Minister for Justice might, perhaps, consider the suggestion of dropping the registrar of the Supreme Court as a member of the committee and leaving him in his other capacity of secretary and providing also for a substitute in the event of his being unable to act as secretary.

Mr. Ruttledge

Representations have been made in relation to that matter and I will give it consideration between now and the Report Stage. I hope to be able to get a suitable amendment for what the Deputy has in mind.

Question put and agreed to.

Amendment No. 101 not moved.

Amendment No. 102:—

In page 26, Section 68 (1), line 36, after the word "by" to insert the words "a majority of." (Patrick McGilligan.)

An Leas-Cheann Comhairle

Amendments Nos. 102, 104 and 108 deal with the same matter.

Mr. Ruttledge

As far as I see, these amendments deal merely with a question of drafting. I think our view is that it is not necessary to put in "a majority of". However, I will have that matter looked into. I think Deputy McGilligan's amendments are trying to make it more clear, but our view is that it is not necessary to put in the words.

Amendment No. 102, by leave, withdrawn.

An Leas-Cheann Comhairle

That governs amendments Nos. 104 and 108.

Sections 68 and 69 agreed to.

SECTION 70.

Mr. Costello

There is one matter that I think I may appropriately refer to on Section 70. It does not in strictness arise, but I merely wish to make the point. It is in connection with the power of the rule-making authority to make rules for the Circuit Court. There is a practice existing in the Circuit Court by which, at the conclusion of a case, the solicitors on both sides get up and apply for expenses and have a wrangle about them. I have been requested to bring to the Minister's notice that that practice should cease and that the matter should be dealt with by the rule-making authority just as the ordinary costs of the action, in the same way as matters of that kind, expenses, are dealt with in the High Court. I shall be glad if the Minister will look into that matter. It will tend to stop the somewhat unseemly wrangles that take place.

Mr. Ruttledge

I have received from some county registrars recommendations that the costs might be taxed by the county registrars in Circuit Court actions. I will see if that can be met. The matter will be considered.

Section 70 agreed to.

SECTION 71.

Mr. J.M. Burke

I move amendment No. 105:—

In page 27, before Section 71, to insert a new section as follows:— Notwithstanding anything contained in Section 66 of the Principal Act sittings of the Circuit Court (for the disposal of other than criminal cases returned for trial before the said court) for the Bandon division of the County Cork circuit area shall be held twice each year in Bandon and twice each year in Clonakilty and sittings of the Circuit Court for the said division (except in the cases referred to hereinbefore) shall be no longer held in Cork.

I am sure this amendment will be accepted by the Minister. I want to explain why I put it down.

Mr. Ruttledge

Before he proceeds, might I explain to the Deputy the difficulty—it might shorten the discussion. The position is that the sittings are fixed by the rule-making authority. I shall have to resist the amendment, because I think it would be undesirable to incorporate in the Bill an amendment of this sort. It is purely a matter for the rule-making authority to fix the sittings.

Mr. Burke

I think in this matter the people of Bandon have a distinct grievance. There is certainly no reference to Bandon in the Schedule. I think the Minister should consent to the inclusion of Bandon as a centre in which to hold the Circuit Court. Bandon is a very important town in the County Cork.

Mr. McMenamin

Is it?

Mr. Burke

It is, like every other place in the County Cork. As you all know, it was a long time ago a great stronghold of Orangeism and I am sure everybody remembers the famous lines:

"Turk, Jew or Atheist

May enter here,

But not a Papist."

Then, someone came along and wrote under that:

"Whoever wrote these lines

Wrote them well.

The same are written

On the gates of Hell."

But things are very much changed since that time. Bandon is now the fortress of Irish nationality. Bandon is about 18 miles west of Cork City and all the litigants who, in the ordinary course, would go to Bandon if there was a Circuit Court held there, are now compelled, at least some of them, to travel 40 and even 50 miles to get to Cork. In my opinion, that is a shocking state of affairs and it means putting needless expense on people who are either compelled or who wish to go to law in order to have their cases decided.

Bandon is provided with an excellent courthouse; there are splendid hotel accommodation and admirable transport facilities, and there is no earthly reason why litigants should be compelled to go to Cork City, passing Bandon on their way, and spend their money in Cork. They are put to unnecessary expense. This may appear to be a laughing matter for Deputy McMenamin, but it is a very serious matter for the people who have to attend the courts. I think in all the circumstances the claim of Bandon for a sitting of the Circuit Court twice a year at least is a paramount one, and it should be seriously considered by the Minister. We hear talk now about this being a matter for the rule-making authority. This scandal has gone on for several years and it is about time the position there should be remedied. I think it is about time that the present condition of things in regard to the holding of the Circuit Court should be changed and, so far as I can see, the best way to effect the change is to embody the matter in an Act of the Oireachtas. As I say, it is certainly a drawback to the people, and everybody in West Cork will endorse that view. As I have said already, no effort, has been made so far to remedy this section in the Act. Circuit Court Judge O'Connor, who is now operating in Dublin, told me that if he could do so he would willingly hold courts in Bandon. I think under those circumstances that the only way in which the matter can be remedied is by putting this section into the Act of Parliament. In that way we shall be doing only justice to the people of West Cork.

Mr. Ruttledge

I understand that Clonakilty has already got a sitting, and if the people of Bandon can bring forward the same convincing arguments that Deputy Burke has urged here they may be able to induce the rule-making authority to have a centre in Bandon.

Mr. Burke

At the time Clonakilty was mentioned in the schedule there was no suitable courthouse in Bandon. I may say incidentally that the son of a courthouse-keeper in Bandon was one of the Manchester Martyrs.

An Leas-Cheann Comhairle

Is the amendment withdrawn?

Mr. Burke

I am sure the Minister will give it due consideration.

Mr. O'Neill

Is there any real difficulty about adding Bandon to that schedule? What Deputy Burke says about the matter is that Bandon is a very important town but the court house happened to be temporarily out of repair and the judge refused to sit there. It cannot be included unless it gets back into the schedule. The rule-making authority cannot include the name of Bandon because it is not in the schedule. Clonakilty and Skibbereen have sittings and there is a good deal of jealousy about Bandon, which is a far more central place. The courthouse has been rebuilt, and there is very fine accommodation there now.

Amendment, by leave, withdrawn.

Mr. J.I. McGuire

I move amendment No. 106:—

In page 27, Section 71 (4), lines 38/39, to delete the words "Minister for Justice" and substitute the words "Justices of the District Court".

The object of this amendment is to allow the district justices themselves to choose their four representatives on the Rules Committee, instead of having, as is provided in this section, that choice in the hands of the Minister for Justice. I wish to insist on this amendment, because it seems to me that this is yet another piece of evidence of the general interference with district justices which so clearly marks the whole of this Bill. The Attorney-General will probably speak on this amendment, because he seems to me for some reason or other which I have not been able to fathom, to have some particular set on the district justices. The Minister for Justice, for some other reason which I also am unable to fathom, will never speak when district justices are mentioned because, I think, of the fact that he has not really changed the views which he held in the year 1931, when he was speaking on the Department of Justice Estimate. I can see no reason at all why the 33 district justices throughout the country should not choose their own four representatives on this Rules Committee. In fact I can see a strong reason for the power of doing so being taken out of the hands of the Minister, because the Minister would be in a rather embarrassed position. if I may put it so, in making the selection. I take it that he would be more or less bound in ordinary courtesy to choose the district justices in their order of precedence, that is, their precedence in office, in accordance with the rank which they hold amongst themselves as district justices. For instance, he would have to take the senior justice of the Dublin Metropolitan District, I take it, as one of the representatives. If the matter is left to the district justices themselves —each of them regards himself as just as important as any other member of the District Court Bench—they will exercise free choice in the matter. It is far more likely that four good members will be chosen by the district justices themselves than that any good choice would be exercised by the Minister, restricted as he would be by the fact I have just mentioned. I have already said that there are several instances in this Bill of a desire to interfere as much as possible with the District Court, and I would ask the Minister, as a mere gesture indicating his bona fides in this matter, to leave the selection to the district justices themselves. I understand that throughout the country—even on this point which, to the Minister, may appear to be a very small one—there is a desire amongst the district justices themselves that the choice of the four members for this Rules Committee should be left in their own hands. I cannot put it any further than that. The Minister may have some special reason for having the matter in his own hands. If he has, I should like to hear it.

Mr. Ruttledge

This is really a continuance of the position as it is under the 1924 Act. Under Section 90 of the Courts of Justice Act, 1924, the justices who were members of the rule-making committee were nominated by the Minister for Justice. There has been no complaint from anybody; certainly it was not brought to my knowledge, and I am not aware that it was brought to the notice of the Department of Justice in previous years that there was any dissatisfaction or cause for complaint by the district justices. This system has obtained since 1924. While it is not stated in any Bill or Act, the practice always has been that the district justices are consulted. I do not anticipate that there would be any disagreement with the district justices as to accepting the nominees they would suggest. The Deputy, I am afraid, is misinformed if he has got the impression that there is any dissatisfaction amongst the district justices, or that the practice that obtained has not been quite satisfactory to them. There is nothing sinister about it, I assure the Deputy.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 107 is governed by amendment No. 99, and amendment No. 108 is governed by amendment No. 102.

Sections 71 and 72 agreed to.

SECTION 73.

Mr. Ruttledge

I move amendment No. 109. It is a drafting amendment. It reads:

In page 28, line 4, Section 73 (1), delete the word "Section" and substitute the words "Part of this Act".

Amendment agreed to.

Section 73, as amended, agreed to.

Section 74 agreed to.

SECTION 75.

Mr. Ruttledge

I move amendment No. 110:—

In page 28, line 41, Section 75 (1), after the word "court" to add the words "or, in the case of the Local Registration of Title Rules Committee, the practice, procedure, and administration under the Local Registration of Title (Ireland) Act, 1891, and the operation and effect of that Act".

This is a drafting amendment.

Amendment agreed to.

Mr. Ruttledge

I move amendment No. 111. This is also a drafting amendment. It reads:—

In page 28, line 49, Section 75 (2), after the word "justice" to add the words "or, in the case of the Local Registration of Title Rules Committee, in the practice, procedure, and administration under the Local Registration of Title (Ireland) Act, 1891, with a view to the improvement of the operation of that Act."

There may be some hidden intention, I am suspicious of the Revenue Commissioners.

I will look into the matter and let the Deputy know on the next stage. I understand there was a scale and that it will be followed; probably a higher scale than that for the Circuit Court judges.

Amendment, by leave, withdrawn.

Mr. McGovern

I move amendment No. 112:—

In page 29 to delete Section 77, lines 6 to 13 inclusive.

The amendment does not explain itself, because my objection to the section is not for what is contained in it, but what is left out of it. It discriminates between the judge and the jury. There is a proposal to pay the expenses of the judges and I have no objection to that, but I do object to the discrimination made between the judge and the jury. Each of them performs a necessary function and the function of the jury is no less important than that of the judge. The jury is in a different position from the judges. The jury as a rule are poorer men who are not living by the law. They are compelled under a very severe penalty to do their duty in the interest of justice. I see no reason why in a Bill that proposes to deal with justice such a gross injustice should be done to the poorer section who perform at least as important a function as the judges. When a person is put on trial his life is in the hands of these men. These 12 men, who are generally much poorer than the judges, are taken from their ordinary business. They must attend no matter at what cost, or what they may suffer by the neglect of their business. They have to attend the court and stay there from day to day. Does the Minister think, in the name of justice, that is fair to these men? I do not know what the real objection is to including these jurors and giving them expenses?

Mr. Ruttledge

Is this in order?

An Leas-Cheann Comhairle

Is the Deputy making a case for paying the jurors rather than not paying the judges?

Mr. McGovern

If I were to move an amendment that jurors should be paid it would be ruled out of order, and the only course open to me is to move to have this section cut out until the jurors get the same consideration as the judges. I believe that there is not a decent honest representative in the House who claims to be a representative of the unfortunate downtrodden middle-class people but will support this amendment no matter what side of the House he is on. I am glad Deputy Corry is in the House, as he has always stood up for the farmers against the lawyers, whatever his other faults may be. I hope he will do so this evening. The thing is so obviously just that I hope to have the support of every side of the House.

Mr. Corry

I kept out of the House this evening for one reason, and that is, that every time I came as far as the door and looked in I saw nobody on any of the benches only lawyers dividing the spoil. It reminds me of a little song I heard long ago which was composed when a certain lawyer died and four comrades were taking out the remains.

An Leas-Cheann Comhairle

This has nothing to do with the paying of jurors or judges.

Mr. Corry

I will explain. This is the song:

"Ladies and gentlemen, behold the wonder,

One rogue above and four rogues under.

His body's for the grave but his soul is for a journey;

The devil is at law and he wants an attorney."

That is what the House reminded me of this evening.

Mr. Ruttledge

The Deputy, in order to get something for the jurors, wants to deprive the judges of their salaries.

Mr. Corry

Is the Deputy suggesting that some of the salaries of the judges should go to the jurors? If he will, I will support him.

Mr. McGilligan

Most of the jurors would be farmers and they are very well off now.

Mr. Corry

How could they be well off when lawyers are living on them?

Mr. McGovern

I did not catch what the Minister said. If he does not agree to include the jurors I will have to press it to a division.

An Leas-Cheann Comhairle

How many Deputies ask for a division?

Two Deputies rising.

Amendment declared lost.

Section put and declared carried.

SECTION 78.

Question proposed: That Section 78 stand part of the Bill.

Mr. Lavery

This section provides that a majority verdict, both in civil and criminal cases, shall be a verdict of a jury. I think that there is a fundamentally wrong principle involved here. We know the present situation is that in civil cases a majority verdict is permitted and that nine members of a jury can return a verdict. The section provides, not, I think, for the first time, but now by way of alteration of the existing law, that in a criminal case a verdict of nine out of 12 who form a jury shall be the verdict. I said that there is a wrong principle involved here. It goes to the root of the whole justification for the system of trial by jury. If a case is tried by judges, whether one judge, or two or three, or any other number, each of the members of the Bench is a trained mind, determining for himself his opinion upon the facts and the law involved, and it is quite right and proper, in order that a decision may be reached, that if the number on the Bench is more than a single judge, the majority should prevail, because you have persons specially trained applying their minds to the question at issue.

But a trial by jury rests upon an entirely different principle. I am afraid that in this section, as in a good deal of the legislation with which we are afflicted in this country, there is a sort of hand-to-mouth method of procedure, and the failure to go back to fundamental principle and to realise what has been done. I think that attitude towards legislation has been manifested very often under the Constitution and fundamental matters affecting the State. This is also a matter affecting the State and the whole Constitution and the organisation of our civic life. Members of a jury are not specially trained for their task. They are persons selected at random from the community, men of every type of profession and calling. They are brought together as a body of men, and asked to pronounce upon a subject which as ordinary individuals they have to decide in courts all their lives. The justification of the jury system is this, that if 12 such persons, selected at random, can come to a conclusion that there is reasonable moral certainty if not absolute certainty, their verdict is right. In the case of a typical jury you have men of great intelligence, men of average intelligence and men perhaps of less than average intelligence. It is ignoring the fundamental, justification of trial by jury to allow a majority verdict. The only justification of trial by jury is that unanimity gives a reasonable certainty, a moral certainty that justice is being done.

I think if we are to maintain the jury system at all—and I for one hope it will always be maintained, because although juries may return unreasonable verdicts, I think they do not often do that—it is because the community feel that in every case, civil and criminal, you have as a matter of fact, even-handed justice done. You can only get that by requiring unanimity—that the whole 12 coincide in the verdict. I think, however, that to an extent the principle of majority verdict might be justified in civil cases where the aim is to get a verdict, and where it is better that even a wrong verdict should be given quickly, than that there should be no verdict at all. Civil cases differ from criminal cases, and if the jury system is worthy of being maintained at all, no departure from the unanimous verdict should be made, and that verdict should be either for or against acquittal.

Mr. G.K. Chesterton has written an essay on the jury system and its verdicts much on the lines on which I am speaking. He said in a criminal court the judge, counsel, and officers of the court, see only in the dock the usual man in the usual place. They have not been brought in from their offices and their shops and such places to attack the problem. They are there engaged in this kind of thing all their lives and they see only the man in the dock. Mr. Chesterton is a layman, and I am not to be taken as adopting his views, but there is something to be said for his point of view. He says people lose their sense of reality if they do not see the prisoner in his human character and conduct, as outsiders would see it. It is the justification of the jury system that 12 men are called in to determine upon the guilt or innocence of that man, and the only reason for allowing them to determine upon such an important matter is that the unanimous verdict of 12 men is most likely to give the true result. I think there is a great principle involved here, and it should not be departed from lightly. I think it is a matter of the very greatest importance, and it should not be determined without very serious deliberation.

Mr. Geoghegan

I should like to join in the appeal made to the Minister to drop the provision in this section by which it is provided that a majority verdict in criminal cases should be sufficient. The history of trial by jury in this country is now fairly long. If I understand it aright, except in what are called agrarian cases and political cases, that system has worked rather satisfactorily. The same cannot be said of the civil and other aspects of our common law procedure imposed upon us in the 17th century. The system of jury trial seems to have commended itself to our people except in such exceptional cases as those to which I have referred.

The previous Administration when in power tried a new experiment on the old method of arriving at verdicts in criminal cases. For some years a temporary statute existed enabling nine members of the jury, in criminal trials, to bind their brethren. I do not want to refer to the working of that temporary Act. We had it only for ten years, but I do wish to draw the attention of the House to the fact that an appreciable period of time has elapsed since that statute expired. A great many citizens have been put on trial since then. Possibly the Minister for Justice, or the Attorney-General, can give some indication to the House of the degree of dissatisfaction that has been found with the conduct of juries during that very substantial period of time in which unanimity has been required for the purposes of a conviction. It seems to me that the experiment tried by the previous Administration did not produce such good results as would lead us permanently to introduce into our criminal procedure this method of con viction of prisoners by majority of nine out of 12.

Another matter which I am sure the Minister and Attorney-General have not lost sight of is this: That even assuming that through lack of knowledge or through perverseness of the jurymen disagreements result, that does not mean that the prisoner is acquitted. It merely means that he has to take his trial again and again, perhaps. It may be indeed that it adds to the hardship imposed on a guilty man. However that may be, the point I desire to make is that generally speaking a greater injury may be done to the prisoner than is likely to be done to the public, unless the public, through the Attorney-General may put the prisoner on trial again before a fresh jury generally at a different sitting of the court. In these circumstances, unless the Minister for Justice or the Attorney-General have some information or knowledge in reference to this procedure during the last couple of years, which would influence them in persisting in this alteration, I appeal for at least further reconsideration of the provisions of this section.

Mr. Ruttledge

I understand that on the Second Reading of the Bill various views were expressed on both sides of the House. It is a very difficult question to decide whether or not it is necessary to have unanimity in verdicts, and if that should continue. If we were satisfied that the jury system was all one would hope it to be, and was in a position to stand any strain that might be put upon it, I do not believe it would be necessary to continue this. Everyone would consider it more desirable to get unanimity.

That was the main reason that actuated us in bringing in, on the other Committee Stage, an amendment by which we asked for unanimous verdicts in murder cases, where persons were liable to the capital penalty. The object behind that, of course, was that if a person's life was taken away there was no remedy if a wrong was done, whereas in the other cases, where a person is imprisoned and suffers some punishment, if it is discovered that there was a miscarriage of justice, the State is in a position to compensate or a remedy could be made. I do not think I could quite agree to having an unanimous verdict in any case except where a prisoner is liable to capital punishment. There are views on both sides of the House which differ on this question. It is not desirable, except to see how justice can be done in the jury system as we have got it.

Mr. Costello

During the course of the observations I made on the Second Reading of the Bill I gave expression to my views on the proposals contained in it. Possibly I spoke a little too heatedly and expressed my views too strongly. At all events, on that occasion I produced for the benefit of the Ministry all the things they had stated in favour of unanimity, and I thought it was rather an astonishing thing that these people, from the President down, who are so keen on majority rule were bringing in a Bill and were suddenly becoming sponsors of the very proposals to which they took objection some years ago. I want to get away from that atmosphere, to forget everything said on the Second Reading, and everything that could be hurled at the Minister for Justice, and to consider this question on principle. The fact that Deputy Geoghegan appealed to the Minister not to insist on this provision, and the fact that the Minister has stated that a number of Deputies in his Party are not in favour of it, leaves it free and open to the House to discuss it as a matter of principle. It is a very grave matter of principle indeed. I feel that the decision we now take, if we take a decision, is one that is going to rule very vitally upon the principle involved for many years to come. If we decide to have majority rule, then I think no subsequent Government ought ever interfere with that. I do not think they would. Similarly, if we agree to pass this Bill, and to retain the system of unanimity in criminal trials, I do not think any subsequent Government ought to reverse that policy. The matter is too fundamental and too grave to attempt to chop and change.

Deputy Geoghegan referred to the fact that the last Administration brought in a provision for majority verdict in criminal cases. That provision was brought in in a Bill which was temporary in its life. It was only to operate until a certain year, and in fact has expired. It was experimental as Deputy Geoghegan said. It was something more than experimental, and was merely given a short life. It was not a Bill to interfere with the jury system in the ordinary sense. As the Title of the Bill demonstrated, it was a Juries' Protection Bill. I do not want to go into the very unpleasant circumstances of the time at which the Bill was introduced; one juror had been murdered, several had been wounded and every juror on every panel before that Bill was passed had been intimidated. The Juries' Protection Bill was an effort to stave off what subsequently became the provisions of Article 2A of the Constitution. It was one of the means adopted to deal with the situation that confronted the then Government. It was an effort to retain the jury system, which was crumbling under the attacks of intimidators and murderers. The last Administration was anxious to retain the jury system, and to retain the system of unanimous verdict if at all possible. They were anxious that experimental measures should only be taken in regard to people trying to undermine that system. They tried that device in the Juries' Protection Bill. I might say in parenthesis that they tried every possible device before the provisions of Article 2A were brought in to meet the menace that confronted the State at that time. Deputy Geoghegan referred to the fact that it was an experiment. I agree that it was an experiment. But it was also something more than an experiment. It was brought in under special circumstances which I hope sincerely have passed away forever.

Whatever the future of this country may be, whatever the destiny is in store for the people, I am afraid the jury system will never stand up to political attack. If there is political ferment in the country at any time, if there is agrarian outrage, and if self-styled patriots as in the past make an attack on the personnel of unfortunate people who have to serve on juries, then no jury system will stand that attack. Therefore, I do not think that this project, that nine out of 12 can be a weapon to be used in defence against attacks on the jury system. I think the provisions of the Juries' Protection Act having been tried have proved to have failed. Deputy Geoghegan has pointed out that since that Act expired the system of unanimity has been in existence. We all know, unfortunately, that our courts are overworked with criminal work in recent years. I do not know what is the reason, but practically speaking, throughout the length of the years, Green Street is occupied either by the circuit judge or by the judge of the Central Criminal Court. A very large number of cases have been heard, and taking it all in all, in most cases there have been convictions. The system appears to be working very well now. It is a matter on which many people feel very deeply; this question of the unanimous verdict. It may be that it is one of the old principles taken over from British common law and has become embodied in our conservative legal system. There are numbers of people, lay as well as in the legal profession, who make a shibboleth of the unanimous verdict. Personally, I do not think the system of unanimity is so sacrosanct as a number of people imagine.

Having regard to the general feeling that exists in the public mind, and as far as it is known on this side, and in the mind of the profession, I think there is a strong demand for the retention of the unanimous verdict in criminal trials. I think the Government would be well advised to leave the matter stand as it is at the moment. The Bar Council are certainly very strongly of the view that there should be unanimous verdicts, and, on their behalf—and I think the Attorney-General knows this—I am expressing here the very strong view which the members of our own profession hold on this. They may be accused of being interested in the matter, but that accusation, like most other accusations directed against the legal profession, is entirely without foundation. I think that most lawyers who have practised under the system of law that obtains here have become imbued with the idea that it is in the best interests of the administration of justice and the administration of the law, as well as of the protection of the rights of a prisoner, that there should be a unanimous verdict. While I had something to do with the Juries' Protection Act, and its administration subsequently, I think the general prevailing view of the public and of the legal profession is against this change, and, in all the circumstances, I think the Minister would be well advised not to press it.

Mr. Dillon

Surely this point arises that the purpose of the administration of the criminal law is two-fold. It is designed, firstly, to secure that the innocent shall go free and that the guilty shall be properly punished, but also there is the important element that the community at large shall rest content that substantial justice has been done. The community at large in this country, for as long as the common law has run here, has been accustomed to get that assurance that when a man has been adjudged guilty he is guilty from the unanimity of the jury's verdict. I do not think the Attorney-General or the Minister can doubt that the majority verdict will never carry that same conviction of real justice to the public mind that a unanimous verdict carries.

I further think that those intimately connected with the accused will not have that same profound conviction that substantial justice has been done, and, speaking as a member of the public, rather than as a member of the legal profession. I press very strongly on the practising members of the legal profession here that this is a matter that deserves consideration, not only from the legalistic point of view but from the social point of view as well. It is no small part of the successful and proper administration of the criminal law that justice should be brought home to the criminal, but also that society at large should be convinced that justice has been effectively done. I do not think you can hope to do that by majority verdicts, and I think you are doing it at the present time, and have been doing it for generations, by the unanimous verdict of a jury of 12 men.

Mr. Costello

Might I press one point which I forgot to mention in connection with this matter and which, I think, will appeal to the Attorney-General in the exercise of his functions as prosecutor. He is aware of the existence of an institution called the Court of Criminal Appeal, and, having landed his catch, he has perhaps discovered that it is taken from his grasp by that august body. I think that while it is right and proper that the Court of Criminal Appeal should exercise a very stringent supervision over the conduct of criminal prosecutions, in every court, and while I think the jurisdiction and supervision which has been exercised by the Court of Criminal Appeal since its establishment has been very salutary and has resulted in a tightening up of criminal administration all over the country, and the exercise of their functions by judges in criminal cases, from the High Court down to the lowest court, has been bettered and improved as a result of the existence of the Court of Criminal Appeal, I think the effect of this section will be to make the Court of Criminal Appeal very much more strict afterwards in their investigation of criminal trials before juries than ever they have been before.

Where they will be under the impression that a majority verdict carried a conviction, they will, I think, be inclined to look at the conduct of the proceedings before the jury in the criminal court with a very much more severe and raking eye than even at present, and I think the Attorney-General may find himself, in the exercise of the functions of his office, presented with still more difficulties if he persists with this particular provision.

The Attorney-General

I have already on Second Reading explained, or endeavoured to explain, my attitude towards this question and have admitted that, theoretically, I have myself favoured unanimity, and I also was inclined to favour it from the point of view of the practical value of the change, because I do not attach the importance to the magic number 12 that apparently some Deputies think should be attached to it. I do not know why a verdict of 12 jurors should be so sacrosanct and a verdict of nine so little thought of. The history of this section is the history which has been given by Deputy Geoghegan and Deputy Costello. It is the re-embodiment in the law of the section which lapsed with the lapse of the Juries' Protection Act of 1929, except that that Act contained the section without, I think, distinction in respect of a capital case. There was provision in the section that a judge in a capital case should report to the Minister the exact number of persons who voted in favour of conviction, but a nine verdict carried in a capital case just as well as in an ordinary criminal case.

The Act lapsed, I think, in 1931 or 1932—it had, I think, a three years life—and directly it lapsed, and, in fact, before it lapsed, I had the experience of several of the judges and those concerned with the administration of the law making the appeal to me that, whatever was done about the other sections of that Act, a short Bill should be immediately introduced re-enacting this particular section. I resisted that appeal because I said I thought it was not quite as essential as they imagined, because all the judges who had experience of the working of the system of nine verdicts had genuinely come to the conclusion that it was a most salutary change in the law, that no injustice that they had ever seen had been done by it, and that it had the merit of preventing two or three trials caused by one or two troublesome jurors. As I say, I was pressed very strongly as to the merits proved in the working of the section of the 1929 Act.

Deputy Geoghegan has asked me to give some particulars as to how things have worked since the section lapsed and suggested that we should have some statistics with regard to the number of cases in which there have been disagreements. I am assured that, judged by the working of the nine verdict system in the period during which it was in operation, those who were in close contact—excellent judges whose judgment, I think, Deputy Costello or anybody who had contact with them would accept—were satisfied that, in practice, no injustice had been done and that a great deal of help had been given to the speeding up of the machinery of the courts.

The circumstances of the introduction of that Act have been referred to by Deputy Costello. He said, I think, that it was introduced as a section in a general Act designed to protect jurors and he thinks that the circumstances which caused its introduction are not likely to recur, or that, if they do, other methods will have to be adopted to protect jurors, and that in fact jurors cannot be protected by any sort of legislation of this character. That may or may not be. With regard to my views about it, I can only say that I do not think people are justified in making such a shibboleth of the number 12 as Deputy Costello said, or that it is going to work such grave harm to restore this provision to the law.

Progress reported.

The Dáil adjourned at 10.30 p.m. until Friday, 7th February, at 10.30 a.m.

Dáil Éireann debate - Thursday, 6 Feb 1936