This section deals with the question of a majority verdict. It was indicated during the Second Reading and again when the Bill was before the House last week that opinions were divided as to the advisability or otherwise of the section. I stated on the last occasion what I felt was the view of everybody on all sides of the House, that unanimity on verdicts was the most desirable course. I have been considering the matter since and I have consulted people who have a good deal of experience of the working of the procedure under the Juries Protection Act and also since it was allowed to lapse. Other speakers on the last occasion expressed views in opposition to a majority verdict. In these circumstances, I am prepared to see how unanimous verdicts will operate in all these cases and to let them continue in operation. There is also the consideration that it is hoped that this Bill will be a permanent part of our legislation. For these reasons I do not propose to press the section.
Courts of Justice Bill, 1934—Recommittal (Resumed).
I very much appreciate that.
Personally I am very sorry to hear from the Minister that these are to be unanimous verdicts. On the Second Reading debate, I mentioned that the majority verdict is fairer for the administration of justice. Not merely from the point of view of the prisoner, but from whatever angle you regard it, I think the majority verdict is far and away better than the unanimous verdict. If you have 12 men, amongst these 12 men you may get a crank, and very often they are cranks who are standing out for convictions where the rest of the jury want acquittals. I think it is a great pity that the cranks should be able to hold up other people. As far as my view goes, I would have a majority verdict in every class of case, in capital cases as well as in other cases, because I think that the majority verdict is a better and truer verdict as getting at the real facts of the case than a unanimous verdict. I am very sorry that the Minister is giving up the section, because if there were a division I certainly would have gone into the Lobby to support the section as it stood.
I am very glad the Minister is striking it out.
Section put and negatived.
Amendment No. 114 is out of order.
Does the Minister propose to meet the amendment in any way?
I am afraid I cannot, because it is a matter that concerns more than my Department.
A very strong case was made by Deputy Costello in connection with that amendment.
It is a very big question. It has been represented to my Department from time to time that they should go as far as providing legal aid not only in criminal cases, but in civil cases also. The only objection that I have at this particular stage is that it should be the subject of a separate Bill. It is a matter that should be considered and is being considered.
It is being considered?
Yes.
I move amendment No. 115:
In page 29, before Section 81, to insert a new section as follows:—
Whenever a person charged in the Central Criminal Court or in the Circuit Court with any crime or offence stands mute when called upon to plead to such charge, no jury shall be sworn for the trial of the issue whether such person so stands mute of malice or by the visitation of God, but in lieu thereof the judge shall himself hear such evidence (if any) relevant to that issue as may then and there be adduced before him and, if the judge is satisfied on such evidence that such person is mute by the visitation of God, all such consequences shall ensue as would have ensued if a jury sworn for the purpose had found that such person was so mute by the visitation of God, but if the judge is not satisfied as aforesaid or if no such evidence is so adduced, the judge shall direct a plea of "not guilty" to be entered for such person.
The Attorney-General
This is to enable a judge at the trial of a person who stands mute to try the issue as to whether the person is mute of malice or by the visitation of God, instead of having that dealt with by a jury, as is the present practice. It dispenses with the necessity of empanelling a jury to try that issue.
The old principle was that a jury was sworn to try whether a man was mute of malice or mute by act of God. It is now proposed to try that issue by a judge. It seems to me to be inoffensive.
It was considered a serious waste of time by the courts themselves to empanel a jury to try the issue.
These are really drafting amendments and I shall have them considered. There is no opposition to them if they are considered necessary.
Any point arising out of them will be considered before the next Stage?
Yes. There is no objection to them if they are found to be necessary.
Does this section extend the law any further than it is at present? At present, I understand the Incorporated Law Society and certain other bodies can institute proceedings if a person issues a document which, on its face, appears to be an official document of the court. Does the section extend that?
It does. I understand that there are a number of documents in circulation which appear on their face to be legal documents. The existing law is not considered sufficient to deal with these. A similar provision to this was recently passed in England.
What documents have been put in circulation?
They are mostly documents from moneylenders and other people to whom debts are due.
They are sending out bogus writs?
Not exactly writs, but to the ordinary man they would appear as if they were. They are not documents capable of being brought before a court.
The Attorney-General
If the Deputy reads the section I think he will see that what is aimed at in the section is not covered by the law as it stands.
I think that, if there are such documents which tend to deceive the lay man and make him think that they have legal effect, and if it is the desire of the Attorney-General to make the issuing of such documents a criminal offence, he is right to do so and I shall support him on that.
The Attorney-General
That is the intention.
Well, hold your horses. Of course, I know that every lawyer will leap into the fray to defend this. They always have. The Incorporated Law Society for years have been advocating this and saying that the Legislature should pass Draconian laws dealing with this matter, but I think that the provisions in this section are very wide.
The Attorney-General
No, I think if the Deputy reads the section he will see that it is not so wide.
I am referring to the wording of sub-section (1), which says that it shall not be lawful for any person to issue, and so on, any document which by its form, contents, or appearance, is calculated or is reason ably likely to lead the person receiving it to believe that it is issued by lawful authority. Suppose you sent out a paper, calling on a person to pay a debt, which is printed on blue notepaper. A great many people in this country associate blue notepaper with a writ. Are we to take it that such a document comes within the scope of that section?
Oh, no.
Well, who is going to decide what form of document is calculated or is reasonably likely to lead the person receiving it to believe that it was issued by lawful authority? I know plenty of district justices in this country who would hold that a document such as I describe did in fact come within that section if, in fact, a country person were prepared to go into the box and swear that the document did create the impression on his or her mind that it was a document issued by lawful authority. The existing law is that, if you produce a document which is a forgery or an attempted forgery, you can be prosecuted for doing so. Is not that so?
Yes.
Well, then, does not the law require strengthening and, if it does not, surely we should pause before we insert words the exact meaning of which is quite unknown to the Minister for Justice, the Attorney-General, myself, Deputy Costello or Deputy Fitzgerald-Kenney—words the meaning of which cannot and will not be known to any of us until some district justice interprets them in accordance with his ideas of propriety?
The Attorney-General
But I thought that Deputy Dillon suggested that district justices should have the same standing as judges.
Let not the Attorney General and I get into a discussion now as to what should be the standing of all judicial persons in this country, because that might lead us both into a very embarrassing discussion. I do not see, however, why merchants and other ordinary lay people should be jeopardised by a provision of this kind. I hold that it would be very easy to interpret this in an unfair way in regard to, say, moneylenders—although I suppose most of us would say that it might be just as well in their case—but I hold that this could be used against ordinary merchants in the same way. Has the Minister received any complaints on this head?
Yes, from the Incorporated Law Society.
Oh, yes, and I have no doubt that Deputy Costello, Deputy Fitzgerald-Kenney and other lawyer Deputies in the House will cordially endorse all the Incorporated Law Society has said, but has the Minister received from the merchants of this country, influential or otherwise, or from any members of the laity, any complaints on this head?
The documents to which I have referred were documents furnished by solicitors in the country in regard to cases where, instead of the ordinary proceedings being taken to have the particular debt concerned collected, there was a warning to appear within seven days at the District Court. Such a document was nothing but an attempt to deceive such people, who would not have had to appear within seven days. I am sorry that I have not a copy with me at the moment, but it was in order to deal with exactly the same difficulty that a precisely similar enactment was passed in England a short time ago.
Of course I am in entire agreement with the Minister if his intention is to prevent any attempt to deceive.
That is so.
But my objection is that the section is extremely loosely worded and may be interpreted differently. I should be content if the Minister and the Attorney-General would say that they would look into this matter between now and the Report Stage.
The Attorney-General
Might I point out to Deputy Dillon that, if he reads sub-section (1) in the light of sub-section (3) he will see that what is made unlawful is the issuing of a document calculated or reasonably likely to lead the person receiving it to believe that it was issued by, from, or by order of any court of justice, or any judge or justice of any such court, or by or from any officer of or office attached to any such court. That is the kind of document which is aimed at, and I gather from what the Deputy said before he sat down that he is quite satisfied that, if that particular mischief is dealt with, the section covers everything the Deputy has said. The only documents which are dealt with are documents which are calculated or reasonably likely to lead the person receiving them to believe that they had been issued by, from, or by order of a court of justice, or any judge or justice of any such court, or by any officer of or office attached to any such court. They are the only documents.
Well, a writ is so issued, is it not?
The Attorney-General
Yes, but I understood the Deputy to say that he had no objection to a provision which made it an offence to issue a document which pretended to be a document issued by a court.
Yes, but that is a very different thing from a document which is calculated or likely to lead the person receiving it to believe that it had been issued by a court. That is a different thing.
The Attorney-General
That is what the section is aimed at. It is aimed at documents calculated or likely to lead a person to believe that the documents had been issued by a court— documents which purport to come from a court but which actually do not come from a court. The purpose here is to deal with the type of document the Minister mentioned—a document which is so cleverly drafted—although it is not a duplicate or copy of any official form of summons at present in existence—as to lead an ignorant person receiving it to believe that the document does emanate from a court.
It does seem to me that a person who receives a document ought to be able to judge as to whether or not the document comes from a court. If the person concerned is a person familiar with summonses he will recognise what is the nature of the document, but a person may get another class of document, such as a notice from some collecting agency, like Stubbs', or something of that kind, and that document says that legal proceedings will be taken in the future. That is a perfectly clear document. There seems to be, however, a kind of half-way house between the two kinds of documents, and that half-way house, so to speak, seems to be where somebody sends out a document which purports to be more than a demand and which might lead a person to believe that legal proceedings would be taken. I cannot, for the life of me, see why any person carrying on his business in the ordinary way should not be satisfied with sending out notices in the form used by ordinary collecting agencies, and if somebody departs from that form and wishes to have a particular form of his own conveying a threat, he is doing it for some sinister purpose and, in that connection, I do not think that this section goes one word too far.
I just want to make one point on the section. I suggest that certain words should be cut out in order to make the intention clear. If the word "calculated" were to be interpreted as meaning in the mind of the person sending the document then it would be all right, but when you go on to say "is reasonably likely" and put that in apposition to the intention on the part of the person sending it, I think it is going too far. I understand that the word "calculated" has not an interpretation strictly of reference to the person sending it but that it goes beyond it. In any event, "reasonably likely" does not carry it any further. I do not know whether the Minister wants to get at every document which in fact does mislead but which was not intended to mislead.
This is a matter entirely of drafting, but the intention was as I have stated. It is to deal with a matter which has become a nuisance at the present time and it is drafted somewhat on the same lines as the provision in Great Britain.
If the Minister will deal in drafting the section with what Deputy McGilligan sets out, it meets my difficulty.
The Attorney-General
It would be probably all right with "calculated" alone.
There are quite a number of Acts in which "calculated" comes in and it has been interpreted not in reference to intention but in reference to result.
I would suggest that if you insert the words "calculated in the opinion of the court" that would cover all the points raised. I respectfully disagree with Deputy McGilligan because I think the Attorney-General's view is the correct one. That is, if a document is in itself calculated in the opinion of the court to create the impression that it has emanated from official sources, it would constitute an offence.
Section 81 ordered to stand part of the Bill.
I move amendment No. 118:—
In page 30, before Section 82, but in Part VII of the Bill, to insert a new section as follows:—
In any criminal proceedings, cause or matter it shall be within the power and discretion of the court to direct that the costs of or incident to such proceedings or any part of such costs shall be paid by the prosecutor.
The object of this amendment is to enable the court in hearing a criminal charge to give costs in proper cases in favour of the person who is accused and who is acquitted of the offence of which he has been charged. The amendment which I have drafted would cover proceedings in the District Court as well as with cases which are heard on indictment. There are many cases in which the police bring proceedings, and in which they fail to establish the charge, and yet the defendant has to pay the costs of his defence. I think it is only right and proper that there should be a discretion in the court in proper cases to give to persons who have been charged with an offence and against whom the judge or jury think that the charge should never have been brought, the costs of their defence. The normal case is a case where a man is charged with an offence under the Road Traffic Act. In proceedings of that character, whether before a justice or a jury, the defendant is put to tremendous expense. Almost in 99¾ per cent. of these cases it is a virtual certainty that there will be an acquittal, and yet the accused has to bear the cost of his defence. The insurance companies do not as a rule pay the expense of criminal proceedings. A man charged with the offence of manslaughter has to pay the expenses out of his own pocket although everybody connected with the case knows that there can be only one result. In indictable cases, certainly, where a man may be called upon to provide 50 or 60 guineas for his defence there should be discretion in the court to direct that the costs of the proceedings shall be borne by the prosecutor.
The Attorney-General
This involves a big question of policy. It is a reversal of the present practice under which an accused person is not allowed to recover any costs. In answer to what Deputy Costello has stated, I may say that there is this much justification for the practice, that before any case of an indictable offence goes to a judge and jury, it has passed through the hands of the district justice who has satisfied himself or ought to have satisfied himself that there was a prima facie case to be answered, which means that in any event the prosecution of the accused is justified. Deputy Costello, I suppose, will answer that this new section proposes to leave the matter in the discretion of the court and that it is only in cases where the court would hold that there was no reasonable ground for bringing the charge or pursuing it, that the judge would order the costs to be paid by the prosecution. I do not think the Minister is disposed to accept this far-reaching amendment. It seems to be more appropriate to a criminal justice administration Bill. One difficulty, of course, is an estimate of the expense it would involve. There are an enormous number of prosecutions, and if such a section were to be enforced and the judges were to be any way generous with costs to accused persons, it might involve a burden upon the Exchequer which would be very serious. I do not think the Minister is prepared to accept the amendment.
I think the Attorney-General appears to me to be opposing the amendment, not with any great sincerity or not with any great belief that the amendment should be rejected. It appears to me that the Attorney-General was speaking against his own better judgment. He did bring forward an argument which I think did not carry any weight. I do not think it carried much weight with the Attorney-General himself. Deputy Costello is not aiming at every class of case. He is aiming at certain classes of cases. There are cases we know which come before the district justice, and if the district justice were to try these cases himself, he would dismiss them without any hesitation. But the Attorney-General knows that the district justice cannot weigh the evidence and, though he may hear the defence put forward, if there is any case at all made by the prosecution, no matter how weak, he must send it forward for trial. If I take the ordinary case of an alibi, the district justice cannot go into the truth of the alibi at all. There is a considerable number of cases that the district justice sends forward for trial when he knows a jury will acquit the accused. If he were the primary tribunal, if it came within his jurisdiction, he would not hesitate for one moment to acquit. It is that extreme class of case that Deputy Costello is aiming at. He is not aiming at having a general principle that in every case in which a prisoner is acquitted he should get his costs.
The Attorney-General
I think the Deputy misread me if he thinks I was not serious in my defence of the Minister's attitude. I do suggest that it would be quite unreasonable to ask the State to bear the costs of the accused in the cases which he has instanced. The law at present makes a certain thing an offence. The Guards get evidence which they are satisfied justifies a prosecution. It may possibly be put before me, in the first instance, and proceedings are sanctioned. They are instituted on the ground that apparently, from the material in the possession of the Guards, a breach of the law has been committed. The Guards then take the formal step of bringing the case before the district justice and present the evidence. Deputy Fitzgerald-Kenney is right in pointing out that the district justice cannot weigh the evidence, cannot listen to the defence or consider an alibi, and is only concerned with the question whether, on the facts as presented by the prosecution, a jury would be entitled to convict. In pursuance of his duty as circumscribed by the law at the moment he sends the accused forward.
I suggest it would be a wholly unreasonable thing that the State, which is acting merely in accordance with the requirements of the law, should be called upon to pay the costs of an accused person who ultimately succeeds in satisfying a jury that he has an answer to the charge which, on the evidence before the prosecutor and the district justice, justified them in bringing him there. I do not think Deputy Costello was aiming at that type of case at all. I thought he was aiming at a case which the judge would be of opinion ought never to have been brought at all. There are the rare cases where a mistake is made by the Guards in estimating the effect of the evidence before them or where the Guards or the prosecution, including the Attorney-General as well, do not take sufficient care to investigate the evidence and satisfy themselves that it is evidence which ought not to be further tested before being put forward by them as a responsible prosecution. In that type of case, where there has been omission to test and carefully to examine the material at their disposal before they initiate proceedings, the judge, when eventually the case comes before him, if it gets past the district justice, should be entitled to punish the prosecution for beginning proceedings which, if they had taken proper care in examining their materials, they would never have brought. I see some case for that and I thought that was Deputy Costello's argument; but I would not agree with Deputy Fitzgerald-Kenney that in the ordinary case where the State is merely doing its duty, it should be liable to be cast in costs at the end.
Not in all cases, but in cases where it is obvious.
The Attorney-General
It will be very difficult to draw the line.
Leave it to the courts. Nobody has suggested that the State should be put in the position of the plaintiff in a civil action, bound to pay costs where the decision is against the State. It is quite clear that a number of cases have been brought to trial which should never be brought.
The Attorney-General
I do not agree at all.
Judges have said so.
The Attorney-General
I would like to have their statements quoted.
From a very limited experience I could give quite a number. I have heard judges say that the District Courts or some persons behind the District Courts, seem to have taken the line that wherever there is a road accident there must be a prosecution. If we have selected people for their judgment and if we gave them positions as judges and prevented them from being torn down from that position by people who, like the Attorney-General, from time to time think they should not be there, and that we have to tolerate them, we should be prepared to respect their judgment. The Attorney-General will surely agree that there are cases where undoubtedly it is an extreme hardship on a person to have to stand his trial and get a verdict in his favour and then be faced with a bill for 50 or 60 guineas. It is not a thing anybody could defend. The Attorney-General asks where will you draw the line. The amendment does draw the line. Leave it to the courts and, if necessary, strengthen that phrase.
There is a class of case that should be covered, where men are put to the ignomy of standing in the dock and put to the cost of defending themselves. There have been quite a number of cases at the Criminal Sessions that are just proceeding where directions have been got. The number is beyond the average. If the Attorney-General thinks the proposal is not sufficient, let him put some other check upon what he would probably consider the rather wide scope of this amendment.
This is a discussion in which, it seems to me, a layman would be more competent to decide the question at issue than lawyers. The question is really one of natural justice. As is observable by anyone listening to the course of the discussion for the last quarter of an hour, it is obvious that lawyers have been assuming that a certain custom exists, and that the custom is more or less right. The custom is that when a person is brought to trial, put in the dock and put to the expense of defending himself, in the great majority of cases even though he is acquitted he would not get his costs. That is the custom—no matter what costs he has been put to and no matter how slender the case against him is. If he succeeds in getting a verdict of acquittal he is never entitled to his costs. That seems to me to be a most inequitable system. We can visualise a case in which a man is wrongly put in the dock—I do not say improperly. But a case is brought against him. Assume a case in which a man is in fact innocent, he must go to great trouble in defending himself and in satisfying a jury that a verdict of guilty should not be brought against him. That is the type of case that Deputy Costello had in mind in moving this amendment. It is merely a matter of justice that when the State fails to make a case against that man he should be given his costs.
Speaking from the point of view of natural justice, without putting it much further, I would say that in every case in which the State fails to get a verdict of guilty it should pay the costs of the prisoner, who is put to the trouble and expense of defending himself. I do not say that I have had a great deal of experience in this matter. Lawyers are not the proper people to decide this question. They have been working under the old custom for years. This discussion should take place in a full Dáil, and with a full Dáil I have no doubt that Deputy Costello's amendment would be carried by 90 per cent.
Is amendment No. 118 withdrawn?
Left over to be considered.
Not in this Bill.
Before it is withdrawn there is one question which I wish to raise, that is, a question which has been troubling me and which caused me to put down this amendment. My question is: In considering whether or not particular members of the Gárda Síochána are effective in their duties, is the number of prosecutions brought by a Gárda taken into consideration by the authorities? I conceive that prosecutions are brought by the Gárda, which ought not be brought, in District Courts. It is in reference to that class of case that this amendment has been framed. Is the position that in practice each member of the Gárda is supposed to bring a number of prosecutions every week or month, or in the course of any particular time in order to be considered an efficient officer? If that is the case there is a necessity for some such provision as this. I would like to have some assurance as to whether this matter is taken into account in considering the efficiency of a Gárda—the number of prosecutions he has brought in a given time?
There has been no change in the instructions issued to the Gárda in that respect. I am not aware that that has ever been taken as one of the grounds for promotion. There has been no circular nor any instructions from my Department to that effect.
We are quite sure of that.
Is it part of the practice, though not in the written code?
In my recollection, I know that a circular had been issued to the effect that the number of prosecutions by a Gárda was not to be taken into account in considering promotion. I think the Deputy may be assured that, so far as I know, there has been no alteration in that matter.
Are there any statistics to show the number of instances in which personal injuries have been suffered and in which there have been no prosecutions?
The Attorney-General
Does the Deputy refer to motor accident cases where prosecutions have followed?
Yes, the most common type of manslaughter cases.
The Attorney-General
I understood the Deputy to say that district justices had wrongly taken the view that these proceedings should not be brought. Justices have made that pronouncement from the bench. They seem to have forgotten that it was generally the case, until recent years, that where the fact that he was responsible for a death was brought home to a particular individual a prosecution had to be taken. It was only in recent years that the rule was departed from that in every case where a man met his death by violence, the author of the violence should be brought before the court. That system was departed from—I am not sure that it was not in Deputy Costello's time.
Yes, I changed that practice.
The Attorney-General
Yes. It was then laid down that each case should be examined, the prospects of a conviction weighed up, and the question be considered as to whether there was prima facie evidence to justify the finding that the person responsible for the death was guilty of criminal negligence. That should be considered before the criminal proceedings were instituted. Deputy Costello when Attorney-General made an order that that should be the practice for the future. I followed that rule. There are no statistics, as far as I remember, at the moment. But I stated previously on some other section of the Bill that as high as 50 per cent. of the cases did not go on. Deputy Lavery referred to the fact. He seemed to think that we prosecuted everybody. I am speaking of fatal accidents. In England recently they have reversed the old decision, which laid down the principle to which I have referred. The practice which Deputy Costello and I followed has been justified by the House of Lords reversing what had been done previously namely that in every such case prosecutions were brought. As regards other injuries, I cannot remember that there are any statistics available on this point. Perhaps Deputy McGilligan would make clear what his point is.
There are statistics as to the number of people injured in road accidents, and surely these cases arising out of road accidents could be collated.
The amendment might be more properly considered under another Bill. Is there another Bill under consideration? It struck me when the Attorney-General was speaking that he referred to the great cost that would fall upon the State if this amendment were passed. The cost that falls upon individuals in those cases falls upon them much more heavily than the burden which falls upon the State. If it is a matter that excites some consideration for the State surely the individual is also entitled to some consideration. If the amendment is withdrawn would the Minister consider it between this and the Report Stage? I recollect one case in which a very large amount was fixed as bail. The jury stopped the case. When what is called a prima facie case has been made against a person in the lower court, surely it is unfair in the first place that he should be kept in custody and put to the expense of making his defence, and when the jury stop the case he is still faced with the expense of the case. I certainly think that unless the Minister is prepared to consider it we will have to challenge a division on the amendment.
I do not think the amendment is in order.
That is just the point. Deputy Costello put his finger on the weakness when he said it was putting a cost on the State.
I have had a number of rulings from the Ceann Comhairle on the amendments I put in, and I think this was not included amongst those out of order.
That is so, but it has emerged quite clearly in the discussion that it would put a cost on the State. A Private Member cannot move an amendment which puts a cost on the State.
It might eventually in certain respects put a cost on the State, but it might, in the case of the District Court, in which I am more interested, be on the individual policeman who brings the prosecution.
I think the Minister indicated clearly that it would be a cost on the State. I thought the amendment was withdrawn, and I was not going to intervene, but the position is altered now. Is the amendment withdrawn?
If it is before the House we will divide on it. If it is not, we cannot do so.
I will answer Deputy Costello who asked me whether a Criminal Justice Administration Bill was under contemplation. Such a Bill is under contemplation, and has been under contemplation for some time, owning to the rather confused position with regard to a number of old Acts and so on. It is a very big question, and it has been considered by the Department for some time. It will have to be examined by experts before the Bill is brought in, so it will take some time before it can be introduced. It is considered desirable that such a Bill should be introduced in order to try and co-ordinate the law and bring it into a more up-to-date form. When the Bill is being brought in I would be prepared to consider this matter.
I move amendment No. 120:
In page 30, before Section 82, but in Part VII of the Bill, to insert a new section as follows:—
"Notwithstanding the requirements of any statute, rule of law or practice and notwithstanding any agreement contained in any instrument authorising a reference to arbitration, whether made before or after the passing of this Act, by which an award on such reference is made a condition precedent to liability, no court or judge shall stay or dismiss any action, suit or other proceeding founded on any matter coming within the terms of such reference unless such court or judge is satisfied that such matter, having regard to the questions of law or fact involved, can be more cheaply, expeditiously and satisfactorily determined by means of arbitration than by such action, suit or proceeding."
This amendment is really put down to draw the attention of the Minister to the very unsatisfactory position in which the law relating to arbitration in this country is at the present moment. I think the amendment only precariously survived the Ceann Comhairle's axe from the point of view of its being in order. But it has survived it, and I am glad of an opportunity of bringing to the Minister's attention the highly unsatisfactory nature of the law of arbitration. The law of arbitration in England has been amended several times, and particularly by a recent Act. We are relying for our whole code of arbitration on the one or two sections of the common law procedure Acts. Particularly in contracts of assurance there is a clause inserted that all disputes and differences are to be referred to arbitration. The further provision is usually if not invariably added that arbitration is to be a condition precedent to a right of action in the courts. In effect that clause means nothing more than this—that if a private person has a dispute with an insurance company he must go to arbitration; in other words he must drop his dispute, because arbitration proceedings cost him far more than appropriate proceedings would in the High Court. Some people have an extraordinary reverence for arbitration, ousting the jurisdiction of the courts. In fact I think everybody who has experience of arbitration proceedings, ousting the jurisdiction of the courts, knows they cost far more than a similar action in the High Courts. That weapon is used by big insurance companies to put an end to disputes, and to stop people from bringing cases. The people are not able to start arbitration proceedings and they are not able to find out what the result of the arbitration proceedings is when they are over, because it is well known that nobody can find out what the result of arbitration proceedings is until they have paid the costs of the arbitrator and the umpire. They have got, as the phrase is, to lift the award, and they will not lift the award unless as a condition precedent they pay the costs of the arbitrator and the umpire and their respective solicitors. Consequently it is almost impossible for a poor person to find out the result of arbitration.
I myself had a case about 18 months ago, and at the present moment I do not know what was the result of the arbitration. My client is not able to put up the money, and I have a very shrewd suspicion that the umpire has decided against me; consequently I am not going to advise my client to risk £200 for the purpose of allowing the insurance company, which forced us to arbitration, to discover the result themselves at our expense. I think that is a very unsatisfactory state of affairs. The object of the amendment is to enable the courts to seize possession of every dispute unless the court is satisfied that arbitation proceedings are in the circumstances a more suitable method of trying the issue. There are certain issues that can perhaps be better tried by arbitration proceedings than before the courts—technical matters like building contracts, matters arising out of engineering contracts and things of that kind—but the normal dispute should be tried in the normal tribunal. What I seek to effect by this amendment is that the courts should have the right to say in respect of each dispute: "We consider that this dispute can be more appropriately tried in the courts by the normal procedure than by arbitration procedure." It is in order to leave the matter at the discretion of the court that I seek to have this amendment inserted.
The Attorney-General
This is a rather serious amendment to introduce into this Bill. As the Deputy says, it really affects insurance companies more than any other body or person. I myself would have felt inclined to agree with the Deputy with regard to his amendment No. 119, which the Chair has ruled out of order and which the Deputy judiciously dealt with in his speech on this amendment No. 120. There seemed to be a good deal of force in this contention that there should be power in the arbitrator to award costs. When this matter was raised by the Deputy on the Second Reading—I think I was then in charge of the Bill—I said that I thought his proposal as then put forward in his Second Reading speech was a matter which ought to be dealt with in a separate Bill dealing with arbitration. I do not know whether the Minister is undertaking to bring in such a Bill. It would, in my opinion, be a very good thing if we had a Bill to remedy all the defects in the law as regards arbitration. As the Deputy pointed out, we are depending on the common law procedure Acts in this country for our arbitration procedure, and I think that the Bar Council recommended that something should be done to amend the law generally as regards arbitration. As regards amendment No. 120, it seems to me that one difficulty would be to have a standard for deciding as to whether the questions of law or fact involved can be more cheaply, expeditiously and satisfactorily determined by means of arbitration than by such action, suit, or proceeding. It cannot be denied, I think, that arbitration is popular with certain persons. Some people prefer to have their disputes decided by arbitrators. As the Deputy knows, it has become common form in policies of insurance that there should be a reference to arbitration before a dispute between parties is taken into court. There have been strong objections to that, but it has been accepted as a normal provision in insurance policies.
There are obvious reasons why insurance companies should prefer arbitration. Very frequently insurance companies are afraid of publicity. They are afraid of having disputes in which they are involved with assured persons litigated in court lest, perchance, they get the name of being a litigious company and that thereby their goodwill with the public might suffer. While that may lead to companies disputing cases which they ought not to dispute, it seems to me that it does allow the decent, reputable insurance company to have their dispute when they are sometimes reasonably justified in challenging a claim on behalf of the assured thrashed out before an arbitrator with the privacy which accompanies arbitration. The amendment seems to me practically to wipe out arbitration.
That is the object of it, practically.
The Attorney-General
If this amendment is carried, it will practically wipe out arbitration as a means of settling disputes. I wonder if it is justifiable for the Dáil to take such a serious decision of policy on an amendment at the tail-end of a Bill dealing with the Courts of Justice. I imagine it would require a good deal more consideration than can be given to it now as part of this Bill to take such a decision.
I do not think any attention has been drawn to this particular section by any of the persons who considered the Bill, because this amendment did not appear until a late stage. I imagine that had that amendment appeared as part of the Bill originally put forward by the Minister, we would have had a great deal of discussion and that some persons who were interested in preserving arbitration as a means of settling disputes would have made their voices heard. I do not know whether the Minister is prepared to meet the Deputy on it or not, but I suggest that it is a matter in which we should walk with caution. I do not think that it would be justifiable to take this summary method of wiping out arbitration without allowing to be heard those bodies or persons who are interested in having the method of arbitration preserved as a normal way of settling disputes.
I move amendment No. 121:
In page 30, before Section 83, to insert a new section as follows:—
Sub-section (2) of Section 6 of the Intoxicating Liquor Act, 1927 (No. 15 of 1927), is hereby amended by the insertion after the words "justice of the District Court" of the words "or a judge of the Circuit Court whether on an application made directly to him or by way of appeal from any order of a justice of the District Court refusing such consent" and by the addition at the end of the subsection of the words "and such consent shall not be refused on any grounds other than a ground put forward and substantiated in evidence by such officer."
I think the Minister will probably realise the object of this amendment. The power of granting what are known as occasional licences rests at the moment on a very slender and somewhat peculiar foundation. They are granted under Section 13 of the Revenue Act, 1862, not by a district justice, not by a judge of any kind, but by the Revenue Commissioners. It is the Revenue Commissioners who give an occasional licence, and what was required, before the passage of the Intoxicating Liquor Act, 1927, was the consent of two justices of the peace in writing, not in open court, but anywhere given at all. The Act of 1927 merely provided that the consent that was required by the Act of 1862 should be given by a district justice after hearing an officer of the Gárda Síochána. That went a certain distance on the road I wish to travel, but not far enough. I cannot see any reason why this power should not be vested, as every power, practically speaking, under the licensing code is vested, in a judicial person or authority. It is true that it is only really machinery, but some time or another the Revenue Commissioners will refuse to obey an order of a district justice or of a Circuit Court judge and then the band will begin to play.
We had a very good example of that recently, because one district justice, who, for some peculiar reasons personal to himself, declined to give an occasional licence for a particular function, has been repeatedly reversed on appeal by a Circuit Court judge and has refused to follow the reasoning or decision of the Circuit Court judge. Why cannot the Revenue Commissioners also do the same thing and say: "Notwithstanding that the Circuit Court judge has given this decision, we agree with this district justice and we will not give this occasional licence"? What I want to ensure by this amendment is that an application for an occasional licence will be regulated by judicial proceedings and that it will be made before a judicial personage and decided upon judicial grounds. I put in here that the district justice is to decide for or against an occasional licence on a ground that will be put forward by the officer of the Gárda Síochána in charge of the place in respect of which the licence is asked for. At present, district justices are open to consent or refuse to consent on grounds that appeal to themselves personally, or their own personal privileges. I think they should not be entitled to do that sort of thing and to use the Bench for the propagation of their personal views, but that they should act on evidence before them, the same as they have to do in every other case. They should not air their own private views, as one man has done, disregarding the decision of a circuit judge on appeal. I want it to be entirely judicial both by the district justice, when hearing the case originally, and by the Circuit Court judge on appeal. I think this amendment ought to be accepted, because it puts it into the power of a district justice and he must act on the evidence given to him by the officer of the Gárda Síochána. I think we can trust the officer of the Gárda Síochána to give the district justice a clear view of his opinion on the circumstances of the area in which the occasional licence is required.
It can be hardly said that this is proper to the Bill, but we are introducing matters into this Bill that might also be said to be more proper to other Bills.
If the Minister will allow me a moment, I should like to point out that the Chair had doubts about that particular amendment but, in view of the provisions of Section 59, gave the benefit of the doubt to the Deputy.
I am not mentioning that at all, Sir, but I should like to say that it might have been better if we had got something along this line into a licensing Bill. However, I am prepared to have the matter considered between now and the Report Stage with a view to having something along those lines. I understand that the position at present is—apart altogether from how the particular district justice in question decided that matter—that it is doubtful if there is any appeal from a district justice to a Circuit Court judge on the question of those occasional licences, and I would be prepared to go so far as to consider and examine into the matter of whether there should be an appeal. As I say, I understand that it is very doubtful if that is the position at present.
I quite agree with the Minister that it is doubtful and my amendment is framed with a view to making sure that there was an appeal. While I admit that there is a doubt about that, I am quite satisfied with the undertaking of the Minister that at least he will look into the question of whether or not there is an appeal.
I move amendment No. 122.
In page 30, before Section 83, to insert a new section as follows:—
Section 94 of the Courts of Justice Act, 1924, is hereby amended by the insertion at the end of that section of the following words:—"and in every civil action and every civil question and issue tried by a jury in the High Court or the Circuit Court in which relief is claimed against two or more defendants jointly, severally or in the alternative the judge at the time shall have jurisdiction and discretion to direct that costs payable to a successful defendant should be included in the costs recoverable by the plaintiff from an unsuccessful defendant."
There are identical provisions in Section 79.
I should like the Minister to reconsider the provisions of Section 79 in order to see if, in fact, they do cover what, I think, we both intended they should cover. I think there is some doubt as to whether Section 79 does in fact cover the point intended to be covered. I took my drafting from the actual decision in the famous case that governs this thing in England and, as some doubt has been thrown on the drafting of Section 79 as it stands at the moment, I should like the Minister to reconsider it.
The Attorney-General
Perhaps the Deputy would state what his doubt is?
I do not say that it is my doubt, and, in any case, I am sure that the Minister has what Deputy Corry would call a well-paid staff to look into the matter.
The Attorney-General
Well, I read it very carefully and it seems to me that we both cover the same ground.
The intention is the same.
Yes, but a rather prominent person drew my attention to the matter.
The Attorney-General
Perhaps the Deputy would be good enough to set down his objections and let me have them for consideration?
Yes, I shall do so.
I move amendment No. 123.
In page 31, to delete Section 35, lines 3 to 9, inclusive.
I move amendment No. 124:—
In page 32, First Schedule, Part I, after the portion of the Schedule relating to the Supreme Court of Judicature (Ireland) Act, 1877, to insert the following:—
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45 & 46 Vic. c. 31. |
Inferior Courts Judgment Extension Act, 1882. |
The whole Act |
I move amendment No. 125:—
In page 32, First Schedule, to delete the words and figures "paragraph (iv) of Section 52" where those words and figures occur in the third column of the said Part of the said Schedule opposite the mention of the Courts of Justice Act, 1924, in the second column of the said Part of the said Schedule.
On behalf of Deputy O'Donovan, I beg to move amendment No. 126 standing in his name:—
In page 33, Second Schedule, second column after the words "Cork County" to insert the words "East Riding" and to insert after the words—
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“ |
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Cork. |
Cork County. |
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” |
the following:—
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“ |
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Bantry. |
Cork West Riding. |
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” |
This has reference to the question of appeal in County Cork, and my object in moving this amendment on behalf of Deputy O'Donovan, is to provide that the town of Bantry be added as one of the appeal towns in the County of Cork. I need not tell the Attorney-General or the Minister for Justice that Bantry is a very important place. It was well-known long before Wolfe Tone came to Bantry Bay. It is mentioned in the Ossianic Tales as a place where Finn MacCool hunted in the old days and it is also mentioned in the old glossary of Cormac Mac-Cullinean and its name is wedded to a haunting air and a beautiful song, "Bantry Bay." All these facts, I am sure, are well-known to Ministers and Deputies on the other side. However, to come down to the important thing: Bantry is 60 miles west of Cork City, and west of that is Castletown-Bere, whose name is linked up for all time with Donal Cam O'Sullivan. It would be about 33 miles west of Bantry, and back of that there is a wild expanse of country—probably 16 miles—and I consider it would be an outrageous thing to compel people from that part of the country to go to Cork City to have their appeals tried in view of the fact that Bantry is well provided with a good courthouse and good accommodation of every kind and is within a very measurable distance of the beautiful place known as Glengariff.
Under these circumstances, I am sure that this amendment will be accepted by the Minister for Justice and the Attorney-General. I make a very strong appeal to them at this point, not only because Bantry is a place of considerable importance but on account of its distance from Cork City—Mizzen Head, I take it, would be about 80 miles from Cork City— it is about 40 miles from Bantry. What is more, I am assured by lawyers in that part of the country that they will provide an excellent library and that they are prepared to give every facility that could be of assistance to the lawyers and people using the court. Under these circumstances, I am sure that the Minister and the Attorney-General will consider my amendment sympathetically.
Well, the county town is now being made the appeal town in the case of every county, and Cork City seems to be the natural place in connection with the County Cork. Apart from that, I do not think that the people in Cork City would be very pleased to have this taken away from their city. I do not know if the Deputy wants to have two or not.
Mr. Burke
Cork is the biggest county in the Free State.
Cork is not unaware of its importance I know, but, at the same time, I cannot see how we can proceed to assize towns.
I just want to mention that the various amendments to which I have promised to give consideration have been considered and will be dealt with on the Fourth Stage which will take some little time. Since this stage of the bill was taken, further representations have been made to me. Amongst these representations is one that an amendment should be inserted in the Bill dealing with robes and modes of dress—the robes of judges and barristers practising in the courts. I have not had an opportunity of considering the matter fully and I am only referring to it now so that, if it can be raised on the next stage of the Bill, Deputies will have notice of it.
In view of the observations of the Minister, does he feel inclined to give us any further information as to the nature of the representations which are engaging his attention? That is one question. My second question has to deal with the fact that I attempted at an earlier stage in Committee, before the re-committal, to raise the general question of District Court clerks' pensions. I do not think the Minister found time to refer to that question specifically. This Bill does provide for pensions for district justices, but it was not open to me to put down an amendment to grant pensions to clerks because that would impose a charge on the Exchequer. I should be glad to know whether the Minister has considered that question and whether he has any plans for establishing these public servants now or hereafter and if he has, has he any idea of the terms he intends to propose for their establishment? I think what happened when I raised the matter before was that the Attorney-General who was in charge of the Bill at the time said that it was a matter more for the Minister. Possibly I was not here at the appropriate time, subsequently, to raise it again.
The Attorney-General
I think that is right, but I do not know whether I brought the Minister's attention to it or not.
I take it that those representations that have come to the Minister about robes and modes of dress do not affect members of the Bar.
It is not proposed that they should be made obligatory.
Surely the Minister will give us some inkling of the upheaval contemplated.
It is not an upheaval, it is a representation made to me from very responsible quarters. I am considering the matter and I have given Deputies notice of it, so that if I come to the conclusion that it can be introduced in the next stage they will be aware of it.
Can the Minister say anything about the position of District Court clerks?
A number of these men were offered establishment before and some of them have got establishment. As the Deputy realises, the great majority of these District Court clerks are not in full time positions and it is very difficult to arrange about establishing them. If a court clerk is established he can be transferred from one place to another, being a civil servant. We may find unless we try to amalgamate the various District Court areas, that the great majority after they have been established are people who have only two or three days' work in the week. Some of them are farmers or farmers' sons and some are business people. I think if the Deputy makes inquiries he will find that there are very few places where District Court clerks want establishment. The offer was made to them and only a very limited number availed of it.
Is there any means of giving them some information as to what the nature of their remuneration will be for all time? It seems that the present arrangement is something of a temporary character in which men are on a salary and which they have no certain information as to whether these salaries are graded in the belief that sooner or later some pension proposals will be brought forward. Is it the intention of the Minister to say that such clerks as apply for establishment and get it will be pensionable officers and that such clerks as do not apply for establishment or do not get it must accept their salaries as salaries which do not contemplate any pension? Would the Minister propose to make permanent the existing scale of salaries on the assumption that there is going to be a pension attached?
There has been no interference with salaries. The salaries are there as fixed.
One would expect that an established clerk who had pension rights would not receive as high a salary as an unestablished clerk who has no pension rights. In other words, that an unestablished clerk would receive a somewhat larger salary than a clerk who is established and who can look forward to a pension.
That is the position.
So if any case arises where a District Court clerk doing similar work is being paid less than another clerk and if he brings his case to the notice of the Minister he will sponsor it with the Department of Finance? The Minister nods affirmatively. I want to have that recorded.
There is one other matter to which I wish to draw the attention of the Minister and that is the grave injustice meted out to jurors. Deputy McGovern referred to the matter here on the last night but, unfortunately, he did not stand up to challenge a division. The farmers are brought in sometimes for a whole fortnight to serve on juries in the courts. We have spent five or six months making generous provision for judges and justices and I think it is about time that we should give some consideration to jurors. I should like if the Minister would bring forward some sort of proposal on the Report Stage to compensate jurors in some way for their time and trouble. Will he accept an amendment of that nature?
The Deputy cannot move an amendment that would involve a charge on the Exchequer.
We might provide something for jurors who know something when you have provided generously for judges who know nothing.