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Dáil Éireann debate -
Thursday, 1 Mar 1945

Vol. 96 No. 7

Committee on Finance. - Customs (Amendment) Bill, 1945—Report.

On behalf of Deputy McGilligan, I move amendment No. 1:—

In page 7, Section 9 (1), to delete all words after the word "court" in line 6 down to and including the word "dismissal" in line 7 and substitute therefore the words "the Justice of the District Court may, on the application of the complainant refer any question of law arising in such proceedings by way of case stated".

The purpose of the amendment is to provide that the only appeal from a dismiss in a prosecution of this kind under this measure will be on a question of law, arising in the course of the proceedings, and then only by way of case stated. This Section 9 introduces for the first time a very serious and far-reaching principle in criminal procedure. I do not know how this particular section eluded the vigilance of the Ceann Comhairle, when it was put in by way of amendment on the Committee Stage of the Bill. It was only by accident that I saw it at the time, and, certainly, if it had been possible for us to have been present when the amendment was introduced, we would have taken objection on a point of order that it was entirely outside the scope of the Bill and introduced a principle which had not been embodied on the Second Reading of the Bill. Deputies should be aware of this fact, that this section, introduced by way of amendment on the Committee Stage of the Bill, brought into the Bill a principle which was not in the Bill when it was passed on Second Reading. The principle is that, for the first time in a criminal case, there is an appeal given by the person who is entitled to bring the proceedings, in other words, in a State case there is an appeal given from a dismiss by the district justice. I am not aware that any justification was given for the introduction of that principle on the Committee Stage of the Bill. Unfortunately, I was not able to be present. I missed it by a few moments.

Deputies, perhaps, are not aware of the fact that in a recent case the Supreme Court decided that a customs prosecution was a criminal cause or matter, and that that being so no appeal lay from a dismiss in favour of the citizen to the Circuit Court. The right of the citizen always has been, where he is convicted, to appeal to the Circuit Court. The prosecution has not that right. The Supreme Court held, notwithstanding the fact that it had been previously held in other cases that the Revenue Commissioners had the right of appeal to the Circuit Court, that that was not the law at all, and that a customs prosecution was a criminal cause or matter. It is interesting to notice that in the case decided in the Supreme Court—the Gethings case—which was, I think, a case for exporting prohibited goods, namely 240 dozen of eggs, it was brought under the Scrap Iron Act of 1938; in other words, that the exporting of eggs was contrary to the Scrap Iron Act. The Supreme Court held —having teased the matter out—that a prosecution under the Scrap Iron Act of 1938 for exporting eggs was a criminal cause or matter and that, therefore, there was no appeal.

At the very time that this House was discussing the Military Service Pensions Act and the advisability of interfering with the decisions of our courts, this amendment was slipped in on the Committee Stage of the Bill. I want to register my formal protest against that procedure and against the principle embodied in this Bill. I do not know why that was not seen by the Ceann Comhairle. Private Deputies know that their amendments are subjected to the greatest possible scrutiny. Even up to yesterday, a number of amendments that we put in to various Bills were rejected by the Ceann Comhairle on the ground that they introduced on the Committee Stage something that had not been embodied in the principle of the Bill on the Second Reading.

May I interrupt the Deputy?

Certainly.

I suggest that this is entirely out of order. The principle is in the Bill and the Deputy probably knows, as well as I do, how it got there.

I do not know how it got there.

It is there, anyhow. I submit, with all respect to the Chair, that the Deputy's remarks at this stage are entirely out of order.

Whether they are out of order or not, I have practically said all that I want to say on that aspect of the Bill, and the Minister's intervention is perhaps rather belated. I want to register my protest against it, having regard to the treatment of Private Deputies.

I suggest to the Deputy that there is not much use in doing that now.

There is not much use at any time, but I want to voice a public protest.

Whatever about any other time, it is not of much value now.

At all events, I am trying to make this last effort to direct public attention to this. It is not possible to enter a negative on Report Stage providing that there should be no appeal. The purpose of the amendment is to provide that there shall be no appeal except by way of case stated on a question of law: in other words, that the citizen's rights, which have, been formally established by the Supreme Court, should be given effect to. But no sooner was the decision of the Supreme Court given effect to than this section was slipped in unnoticed and, as I say, unwanted by the people. It is contrary to the general principle of the criminal law. In a case where a person is prosecuted on a criminal charge the State or any State Department ought not to have any right to appeal. It is the right of the citizen to appeal against a conviction, and was never the right and ought not to be the right of the State to prosecute a rehearing by way of appeal. I want to register my protest against that without any hope that it will even be considered.

Is the amendment being pressed?

I am not going to go into the history of the amendment we are now dealing with. It was introduced and passed on the Committee Stage. The amendment is there and it is there by the will of the people. Deputy Costello says that the people do not want it. What right has he to speak for the people any more than I have?

I agree with that observation anyway. I am speaking for myself.

I speak for the majority of the people who are represented here by the Government of the day. I can also say that the House made no protest when this amendment was introduced and passed in Committee. The Deputy said that he himself did not happen to be here. If he was not here there were colleagues of his here, and a number of them took a considerable part in the Second Reading and Committee Stage discussions on the Bill. Some of the lawyers amongst them were here, and they made their case against the amendment on the Committee Stage. The House accepted the amendment and there was no protest against its being inserted in the Bill. Argument was made against it, and was carried on at considerable length, but as I have said, the House accepted the amendment and it is now in the Bill. I think I would have to regard myself as being out of order if I were to refer to the matter further.

I think the State ought to have the right to bring an appeal in the type of case covered by that new section which was put into the Bill on Committee. I am resisting the Deputy's amendment because the effect of it would be to abrogate, as far as that could be done at this stage, what the House did when it accepted that new section in Committee. Deputy Costello has referred to the prosecution of persons suspected of being concerned in the export of eggs under the Scrap Iron Act. It was to end that anomaly that this Bill was brought in. I may say that we had to proceed under the Scrap Iron Act because we had no other law for dealing with the smuggling of goods out of the country. That is our difficulty. Because we have no other suitable law at present, we are using the Scrap Iron Act. I admit that it looks ridiculous to bring a prosecution for the illegal export of eggs under the Scrap Iron Act.

How does an appeal help?

It will be of considerable help to us. There is too much smuggling and we have not been able to convict half the number of people we should like to convict. Some of the courts have not sometimes been as helpful as, I think, they should be. I am not now speaking of the Supreme Court or the High Court. We want to put power into the hands of our officers to enable the laws passed by the Oireachtas for the protection of the people to be put into operation. This is a necessary step and it is not a unique step. Deputy Costello, if he examines the matter, will find that there are precedents.

In very exceptional cases—fishery prosecutions.

This is exceptional but not unique and it is a necessary power. The Government wants to implement the law and to put a stop to the commission of crime—that is the blunt way of putting it. The right of appeal is as necessary a part of the instrument as was the section introduced. I should be inclined to go a certain distance with the Deputy as regards the amendment introduced on the last stage, but it is there now. I was not aware of its ramifications.

You slipped one across us.

That was, probably, the case but there are watchdogs here all the time. I do not know whether this amendment was examined by the officers of the Ceann Comhairle. They, probably, agreed that it was in order. It may be that what Deputy Costello says is correct. An argument could be put up to support that but the amendment is there and Deputy Costello wants to take from us the power which was given us on Committee Stage. As Minister for Finance, I get reports of numerous cases of successful smuggling and of unsuccessful prosecutions for smuggling. We want this amendment so as to bring to the courts of law and have punished people who are every day bringing goods out of the country which are required here.

I am not to be taken as in any way advocating a remission of the efforts of the Minister or the Revenue Department to stop smuggling. I am against smuggling and in favour of the prosecution of the law.

I accept that.

Why I am advocating the amendment of this provision is that I regard it as a fundamental principle in criminal cases that there should not be an appeal by the State or by any Department of State. It is because that principle is embodied in this provision I am opposing it and not because I want to hamper the Revenue Commissioners in the prosecution of the law.

When we were discussing this matter in Committee, the Minister said that the main inspiration behind the desire for right of appeal to a higher court was to obtain a high legal interpretation of what the custom law was. Now the reason advanced seems to be different. The Minister wants power to appeal now so as to get after those who break the law. I am with the Minister in so far as he wants to chase wrongdoers and bring them to justice. It has been stated—I think correctly—that a customs offence is a criminal offence.

Not all customs offences.

Certain customs offences. When a person is tried before a district court for a customs offence which has a criminal taint and is acquitted by that court, that person should enjoy his acquittal in the same way as if he were acquitted of any other type of criminal offence. If the State cannot marshal its evidence before the district court so as to obtain a conviction, they should put up with that in the same way as they have to put up with failure in other cases to bring people to justice. If the purpose of the Minister was to get the highest possible interpretation of the law, I suggest that this amendment gives him a way out. If the Minister's legal advisers lose a case in which it is important, from their point of view, to obtain clarification of the law from a higher tribunal, the district justice would be willing to state a case, I think, if the matter were put cogently to him and if counsel stated that he was acting on the instructions of the Attorney-General who, in matters of this kind, is the watchdog of the State. In that way, the law could be resolved by a higher tribunal.

Giving the Minister power to do that is giving him fairly wide power but it is, at least, protecting the ordinary citizen, who should be deemed innocent until he is proved guilty. Under the Bill as it stands, a citizen may be forced, perhaps by misguided judgment, after he has secured an acquittal in the District Court, into the Circuit Court and there found guilty, possibly on a variety of grounds none of which might be associated with his actual offence. If the Minister is anxious to get a reasonable way out of the amendment——

I do not want a reasonable way out of the amendment.

You want to fill up the jails.

Question put: "That the words proposed to be deleted stand".
The Dáil divided: Tá, 59; Níl, 26.

  • Aiken, Frank.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Blaney, Neal.
  • Boland, Gerald.
  • Boland, Patrick.
  • Brady, Brian.
  • Brady, Seán.
  • Breen, Daniel.
  • Brennan, Martin.
  • Brennan, Thomas.
  • Briscoe, Robert.
  • Buckley, Seán.
  • Burke, Patrick (Co. Dublin).
  • Butler, Bernard.
  • Carter, Thomas.
  • Childers, Erskine H.
  • Colbert, Michael.
  • Colley, Harry.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Everett, James.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Fogarty, Patrick J.
  • Harris, Thomas.
  • Hilliard, Michael.
  • Humphreys, Francis.
  • Kennedy, Michael J.
  • Kilroy, James.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick J.
  • Loughman, Frank.
  • Lydon, Michael F.
  • McCann, John.
  • McCarthy, Seán.
  • Morrissey, Michael.
  • Moylan, Seán.
  • O Briain, Donnchadh.
  • O Ceallaigh, Seán T.
  • O Cléirigh, Mícheál.
  • O'Connor, John S.
  • O'Grady, Seán.
  • O'Leary, John.
  • O'Reilly, Matthew.
  • O'Rourke, Daniel.
  • O'Sullivan, Ted.
  • Pattison, James P.
  • Rice, Bridget M.
  • Ruttledge, Patrick J.
  • Ryan, Mary B.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Skinner, Leo B.
  • Smith, Patrick.
  • Traynor, Oscar.
  • Ua Donnchadha, Dómhnall.
  • Ward, Conn.

Níl

  • Beirne, John.
  • Browne, Patrick.
  • Cafferky, Dominick.
  • Cogan, Patrick.
  • Coogan, Eamonn.
  • Cosgrave, Liam.
  • Costello, John A.
  • Dockrell, Maurice E.
  • Donnellan, Michael.
  • Doyle, Peadar S.
  • Finucane, Patrick.
  • Giles, Patrick.
  • Halliden, Patrick J.
  • Hughes, James.
  • Keating, John.
  • Larkin, James (Junior).
  • McFadden, Michael Og.
  • McMenamin, Daniel.
  • Mulcahy, Richard.
  • Norton, William.
  • O'Donnell, William F.
  • O'Reilly, Patrick.
  • Redmond, Bridget M.
  • Roddy, Martin.
  • Rogers, Patrick J.
  • Sheldon, William A. W.
Tellers:—Tá: Deputies O Cíosáin and Kennedy; Níl: Deputies Doyle and Browne.
Question declared carried.
Amendment negatived.

On behalf of Deputy McGilligan I move amendment No. 2:—

In page 7, Section 9 (1), line 6, after the word "court" to insert the words "and where the Attorney-General certifies that the decision of the court involves a point of law of exceptional public interest and that it is desirable in the public interest that an appeal should be taken".

I suppose there is not the smallest hope of this amendment being considered, that there should be no appeal, except "where the Attorney-General certifies that the decision of the court involves a point of law of exceptional public interest, and that it is desirable in the public interest that an appeal should be taken." That power is given the Attorney-General in respect of the right of appeal from the Central Criminal Court to the Supreme Court. The idea is that if there is a proper case and if the Attorney-General can bring himself to give a certificate then the Revenue authorities would have the right of appeal. This amendment goes some distance to meet the Minister's point of view and, at the same time, endeavours to maintain the general principle that there should be no right of appeal to the prosecutor in criminal cases.

The same argument applies here as applied in the amendment which has just been voted on.

Is this not a case stated?

Is not that the proposition?

This proposes that there should be an appeal where the Attorney-General certifies that the decision of the court involves a point of law of exceptional public interest, and that it is desirable in the public interest that an appeal should be taken.

I do not think we should be tied down to having the Attorney-General certifying. The amendment would tie our hands to an extent that I would not like them to be tied in these cases.

Amendment put and declared negatived.

Amendments Nos. 3, 4 and 5 not moved.
Question:—"That the Bill be received for final consideration"—put and agreed to.

When will the next stage be taken?

Is there any objection to taking it now?

I object.

Fifth Stage ordered for Wednesday, 7th March.
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