I understand that there has been some talk about the cost of litigation in the course of this debate. I have heard only the few remarks made by Deputy McMenamin which were, as usual, very commonsense and to the point. I imagine that there is no subject on which a greater degree of nonsense is talked than the cost of litigation. To the public, the cost of litigation is confined to the cost of the services of the legal gentlemen involved in it. If the matter is properly analysed and sifted, it will be found that the costs incurred in these cases—in the country, in particular— consist largely of witnesses' expenses and the cost of retaining professional witnesses such as engineers. Compared with the total cost, the cost of the legal people involved is very small. As the Minister probably knows, the question of cost is being revised by the rule-making authority. One of the matters the legal profession, generally, is most alive to is the necessity for keeping down the cost of litigation. The more litigation, the more money they will make and the greater the cost of litigation, the less litigation there will be and the less money the legal people will make. It is only right that any sort of loose talk which may have been indulged in this debate regarding the cost of litigation should not give the public the impression that these costs are incurred by lawyers.
It must also be remembered that the people of the country who litigate water rights or the right to discharge water on to another person's land or rights of way, regard these matters as of vital importance. It is not merely to them a matter of 1/- damages or £50 costs; it is a matter which involves perhaps the entire value of their land and which may involve, to a large extent, their local prestige. They think it well worth while to litigate these matters at considerable expense. I was engaged recently in a case in Cork in the High Court on circuit, and one of the witnesses put this matter very accurately and very concisely. When he found that his water right was being interfered with by his neighbour, he said: "If you do not immediately stop that gully, it will cost you a couple of cows." They have a very keen appreciation in the country of the cost of litigation and, in representing the cost as that of the price of a couple of cows, this man was putting the case very neatly. They would consider the money well spent in cases of that kind. I think that the Minister ought to put an end to this ridiculous talk about the cost of litigation.
That there is undue expense in connection with litigation is undoubted. That the legal people involved are, by the machinery of the Rule-Making Committee, endeavouring, so far as they can, to meet that situation also ought to be known. Those people who practise in the city here and in the country know perfectly well that the real cost of litigation arises in witnesses' expenses. The expense of bringing a troop of witnesses from Skibbereen to Cork City and keeping them there for four or five days is pretty staggering, having regard to the amount involved, but when ordinary people talk of the cost of litigation, they mean what goes into the hands of the lawyers.
There are one or two matters that I wish to refer to very shortly on this Vote. The Minister and Deputies will have noticed, as the public have noticed, in the course of the last year, considerable discussion in our criminal courts as to the manner in which Guards have taken statements from accused people. We all know and appreciate the difficulties the Guards have in investigating crime. We appreciate that, to a considerable extent, at all events, they are endeavouring to be fair to people who are charged or suspected of committing crime, but, perhaps, from over-zeal, perhaps, in some instances, from a desire to secure conviction at all costs, even of an innocent person, there are often cases where statements have been improperly extracted from accused persons. I do not wish for one moment to suggest that this practice is either widespread in the Gárda or deliberately adopted by particular Guards for the purpose of securing their own advancement in the force or for the purpose of securing a conviction at all costs in order to bring themselves to the notice of the authorities. I only mention this, in passing, for the purpose of emphasising to the Minister that it is better that some persons, even if they are guilty, should be acquitted by a jury and that the proper and due administration of the criminal law, as we know it, should be maintained, even in existing circumstances.
It is very bad example to the public to have these matters discussed in court and to find that statement after statement in certain cases have been excluded from the consideration of the jury by reason of the manner in which these statements have been taken. It tends to bring the administration of justice into disrepute and tends also to allow people, who perhaps were not entitled, to go scot-free from the charges that were preferred against them. I think the Minister ought to take particular care to see that the Guards are properly instructed as to the circumstances in which statements may be taken from accused persons and particularly as to the manner in which those statements should be taken. I think it will tend to the proper prosecution of crime, to the securing of convictions in cases where they ought to be secured and to greater respect for the criminal law if particular care is taken to see that convictions are not secured by reason of zeal, or for any motive, in ways that the law does not countenance.
I also wish to refer to my hardy annual on the discussion of this Estimate. I have been for years directing the attention of various Ministers for Justice to the practice obtaining in connection with the investigation of motor collision cases. Perhaps it is futile for me to talk about them now in view of the possible disappearance of this lucrative source of revenue for the members of my profession. At all events, let us hope there will be still some cases drifting into court and let us hope that the war will be over very shortly and that we will have our motor cars again on the road. However, I suppose in the ordinary course of modern traffic, accidents will happen even on the disappearance of the motor cars. We had the unusual spectacle last Sunday of a horse running away on its way to Portmarnock Golf Club. In some form or another there will be collisions or accidents to be investigated by the Guards. It is the ordinary practice, as the Minister knows and as Deputies probably know, for the Guards to come and investigate the accident, take measurements and take statements from the persons involved and from witnesses. The origin of that practice, of course, was with a view to considering whether or not criminal proceedings would be taken against one or other or both of the parties involved in the accident and, therefore, so far as that object was the primary purpose of the investigation by the Guards, neither of the parties would be entitled to get copies of the statements that were made by their opponents or by independent witnesses.
A development of that practice has taken place by reason of the very great increase in the number of motor-car cases in the civil courts and in ordinary cases one of the usual witnesses and one of the essential witnesses in a collision case is the Guard who investigated it. Very frequently, if not always, the result of the case depends upon his powers of observation, the accuracy of his observation, his recollection and the fairness with which he gives his evidence in court. It has been the rule, not merely of the present Minister for Justice, but of his predecessors and generally of the Department, for a number of years, not to give either party to civil proceedings any sight or view of the various statements made by the parties to the collision or by the independent witnesses immediately after the occurrence. I can understand that if there were criminal proceedings pending, but I cannot understand it where, (1) criminal proceedings are not being prosecuted by the Guards after consideration by the authorities and, (2) where the criminal proceedings have come to an end, because the Guards are always subpoenaed to court and bring these statements with them and, invariably, the judge directs them to produce the statements and they can be made evidence, sometimes in evidence in chief or more frequently on cross-examination if a witness gives a different account of the occurrence from the account he has given to the Guards very shortly after the accident. It is a matter that relates very closely to the ascertainment of the truth of an occurrence and the account that is given by a person immediately after the accident is very much more likely to be correct and accurate than one made some months, or even years, afterwards, when the civil proceedings come to be heard.
I will say, after pretty fair experience of these running-down cases, that there are very few cases in which deliberate perjury is committed. In most cases we find witnesses trying to tell the truth. In many cases we find people who are honest people but who, by dint of thinking over particular events and their recollection of the events have persuaded themselves that a particular set of things happened some months before when, in fact, nothing like it happened. They are perfectly genuine and honest and have persuaded themselves of the position. Witnesses vary in their recollection and in their powers of observation. It is a difficult task for a judge and jury to sift from that mass of chaff the particular grains of wheat which will grow into the truth. The point I wish to make is that both parties to a civil action should have the right to see and, if necessary, take copies of, the statements made by their opponents and by the independent witnesses to the Guards after the occurrence, once criminal proceedings have been determined or once it has been decided by the authorities that no criminal proceedings will be instituted.
The Minister, last year, when I raised this point on his Estimate, was good enough to say that he would look into the matter, and he did me the courtesy of writing me a letter about the matter afterwards, having consulted the Attorney-General. I have also consulted my colleagues in the Bar Council and elsewhere on this matter, and for the reason that we are still dissatisfied with the practice and with the explanation the Minister gave, after consultation, I think he said, with the Attorney-General, I again raise the matter for his serious and earnest consideration.
There is just one other matter to which I want to refer, that is, in connection with the prosecution of children for offences. I know, of course, that there is one view of the criminal law: that the criminal law is a machine inexorable in its working, and that once an unfortunate citizen, whatever age he may be gets into the clutches of this huge machine, the machine must work inexorably to its logical end—conviction or acquittal. I never took the view at any stage, even when I held an official position in this country, that it was the purpose of the criminal law, even where an offence was clearly committed, that there should necessarily and inevitably be a prosecution. The purpose of the criminal law is not merely to punish but also to deter and if possible to bring about a change of heart in the criminal. Very frequently that end might more easily be attained by mercy before the matter is brought into court.
I do think that the Guards ought to have considerable discretion particularly in the matter of dragging children to the courts, even to the children's courts. A prosecution inevitably makes a very serious and deep impression on young minds, sometimes a bad impression. An offence may very frequently be committed by a young person in a spirit of bravado and, although at the time a certain degree of shame and ignominy may attach to a prosecution even in a children's court, possibly in association with his pals afterwards the young delinquent will act the part of being a big fellow and the result may be serious on his character and on that of his associates. I personally knew of one case where a young boy got into trouble merely because one of his pals said he was "yellow", and he felt that he had to do something, not a very heinous crime, to prove that he was not, but it involved him in a prosecution and, in fact, in a sentence. I think that the Guards, or at least the officers of the Minister's Department, ought to have some discretion in dealing with such cases. If a youngster simply raids an orchard, for instance, he should not be straight away pounced upon with all the mighty force of the law, dragged into court and, as frequently happens, sent to a reformatory for a long period of years.
I must say that whenever I have had to approach the officials either of the Minister's Department or that of the Department of Education, in reference to cases where district justices had exercised their power of sending children to reformatories for petty offences, they met my representations very sympathetically. There was one case where I remember something like 5/- worth of apples was taken from an orchard and for that offence a boy was sentenced to three years in a reformatory. I think that sentence would shock the conscience of anybody except that of the particular justice who had the effrontery to send the boy to the reformatory. I am glad to say that in that case a successful appeal was made to the Minister and to his colleague, the Minister for Education. A colleague of mine made the comment in connection with that case that if for every time he had raided an orchard he were sent to a reformatory, he would be still in the reformatory, that is, if the age for detention in reformatories were increased beyond the maximum at which it is now fixed by law.
A matter of some considerable importance arising out of that is that I noticed the other day that a charitable organisation or another society is being formed with a view to assisting the very large number of children who are on probation. That, of course, is very useful social work, but I wonder if it would not be possible to arrange that before these children are brought into the clutches of the criminal law, they ought to get some sort of chance so that they should not be inexorably condemned to arrest and prosecution where there is a technical offence or a small offence such as raiding an orchard.
A number of Deputies have referred to the epidemic of bicycle stealing that exists at present. In that connection I want to express some sympathy with the Guards who are faced with the task that confronts them at present. Thinking over the matter quite recently, it occurred to me that it is a matter of the most extreme difficulty for the most law-abiding citizen to go through his hours of waking without committing an offence against some statute or Order. My study is piled high with Orders made under the Emergency Powers Act and I am absolutely convinced that every Deputy, at some stage or other in the week, commits an offence against one or other of these Orders and probably does not know it. I think it is taking too strict a view of the criminal law that Gárdaí should be engaged in pursuing with vigour and determination the unfortunate citizen who perhaps unwittingly commits a minor transgression of the law. The duty of the Guards is to go after serious crime; their efforts should be directed to the eradication of the most serious class of crime and not to minor breaches of the law.
We are in a condition at the present moment in which, if I might use a colloquialism, certain things might be winked at. In that connection, I think the Minister's Department, and indeed the citizens generally, ought to give the Guards every possible assistance in bringing this epidemic of bicycle stealing to an end. I was told recently of an incident where two young ladies had the unfortunate experience, after a short walk, of seeing their bicycles, which they had hitched together and thought quite safe, being loaded on to a lorry, so that it seems that bicycle stealing has developed into the stage of an industry in this city. While we have the greatest sympathy with the Guards in the task with which they are confronted, I think that every effort should be made to bring this particular industry to an end.
