Vol. 101 No. 4
I move:
That a sum not exceeding £57,580 be granted to complete the sum necessary to defray the Charge which will come in course of payment during the year ending the 31st day of March, 1947, for the Salaries and Expenses of the Office of the Attorney-General, etc., and for the Expenses of Criminal Prosecutions and other Law Charges, including a Grant in Relief of certain Expenses payable by Statute out of Local Rates.
I move:
That the Estimate be referred back for consideration.
I wish to direct attention to some matters of importance arising in the conduct of criminal trials and in particular in connection with the practice, apparently justified by the directions of the Attorney-General, to send forward for trial to the Special Criminal Court a number of cases which might be more appropriately considered by the ordinary courts. During the discussion of the Department of Justice Estimate last year, I raised the question of the cases being sent forward to the Special Criminal Courts at a time when the ordinary courts were functioning, and functioning well. The Minister for Justice disclaimed responsibility for the cases that were being sent forward and said it was the Attorney-General who was responsible. At the same time, the Minister stated —and I accepted his statement—that so far as he was concerned, he would not permit cases in future, of a character which could be tried adequately by the ordinary courts, to be sent forward to the Special Criminal Courts. I accepted his word, but notwithstanding that, during the course of the last 12 months, numerous cases have been sent forward, apparently on the directions of the Attorney-General. All those cases were, in my view, and I submit to the House it is the proper view, of a kind which could be very adequately, in fact better, disposed of before the ordinary courts.
Part V of the Offences Against the State Act, 1939, was brought into force by proclamation of the Government. That proclamation is only to be made by the Government if the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. That is the only justification for Part V of the Offences Against the State Act being brought into effective operation. It is under that Part V that these special courts operate.
They, therefore, have their being only on the basis that the Government is satisfied that the ordinary courts are inadequate for the effective administration of justice and the preservation of public peace and order. I find that throughout the country, in practically every county and in every district, district justices are hearing cases under the Emergency Powers Act and Orders made thereunder. Even cases under the Emergency Powers Act have been brought in some cases—not very many—before a judge or jury and in every case the law has been enforced in accordance with the proofs that came before the proper courts. Therefore, I find it difficult to appreciate why these Special Criminal Courts should be chosen in selected cases instead of the ordinary courts.
In all cases other than cases that I might refer to as cases involving order or involving public security, the courts are working effectively. Juries throughout the country are doing a thankless job, and doing it extremely well. It cannot be said, nor have I ever heard it urged, that juries do anything but decide cases in accordance with the oath that they took. A special case was made, and had to be made, for dealing with matters that could not be dealt with by the ordinary courts of judge and jury. These were cases of safety, where the State was involved, where police witnesses were intimidated and shot and where even high officers of the Gárda were shot. For that class of case, and for that class only, could a case be made for hearing before the Special Criminal Court. It is an abuse of the powers given by the Dáil under Part V of the Offences Against the State Act of 1939, where ordinary courts are functioning and functioning well, where trained lawyers are there to hear these cases and to assess the evidence and give proper weight and effect to the evidence, that a selection of particular cases should be made by the Attorney-General and sent to these special courts. I say deliberately that these courts are entirely inadequate for the hearing and the assessing of evidence in cases of that kind. They were never intended for that purpose and they are not competent to fulfil that purpose.
I had occasion—I hoped, for the last time—12 months ago to raise this point. I have seen in the last 12 months no slackening of the tendency to send cases to the Special Criminal Court. If there is a case, in fact or in law, under the Emergency Powers Act or under the scheduled functions, then there is no reason why these cases should not be sent to the district jusmarily, or to a judge or jury, if it is tice, if it is decided to hear them sumdecided to have a more serious charge preferred and to have a trial under indictment. I know of no reason why these cases could not be more adequately and more properly dealt with there than by the Special Criminal Courts. I say deliberately that these Special Criminal Courts are not fit to deal with serious cases, involving sometimes very large masses of documents, books and accounts, whereas trained lawyers are capable of doing so.
I do not know on what principle the Attorney-General selects these cases. One is tempted to say that it is on what the Americans, in graphic language, describe as "rail-roading", and that a particular individual is selected to be "rail-roaded" to a conviction. I do not know why these cases are sent there. The more difficult a case is, the more reason there is for sending it to the ordinary court. Where you have cases involving large masses of documents, as occurred in the last 12 months before the tribunal, what is the necessity for taking them away from trained lawyers and sending them to the Special Criminal Courts with non-trained lawyers?
I do not know on what principle, if any, or what consideration, if any, those responsible for the selection of cases seem to have in sending some to the District Courts, some to the Circuit Courts for hearing before a judge or jury and some to the Special Criminal Courts. However, I can guess the procedure, or the lack of procedure, and I want to take this opportunity, which I was unable to take last year, to protest against this practice. Now that the emergency, or at least the more serious circumstances surrounding the emergency, with the ending of the war in Europe has come to an end, when we have our own courts functioning, with trained lawyers doing their job and doing it well, we ought to stop this extra legal court and let the law function. I hope this is the last time I will have to speak on this matter as it has given rise to considerable comment about the Government. If the Government or the Attorney-General do not take effective steps to stop the practice, it will be necessary to harness public opinion against what I regard as an abuse under Part V.
There is a case for Part V if it can be said that the administration of the ordinary courts is inadequate to secure the effective administration of justice and the preservation of public peace and order. Can it be said of cases that came before the special tribunal within the last few years, certainly within the last 12 months, that the ordinary courts were inadequate to secure the due administration of the law or the preservation of public peace? There was no question of the public peace involved in cases to which I adverted. There was a question merely of the administration of the law. What is the justification for saying that, in reference to cases under the Emergency Powers Act, cases dealing with supplies and matters of that kind, or cases dealing with technical objections —sometimes serious objections—to the Emergency Powers Orders, the ordinary courts are inadequate to secure the effective administration of justice? I say emphatically that there is no justification for the continuation of this practice, and I hope that this is the last time that anyone in this House will have to direct attention to it.
The other matter to which I want to refer concerns law charges. It is a matter of importance, though, perhaps, not of as much importance as what I spoke of at the outset. There has been a growing practice, not merely in the ordinary courts, but especially in proceedings which have been held before the special military tribunal, of relying on an accomplice for evidence to secure a conviction. I use a word which was carefully avoided in the bad old days of the British administration of justice. There has been a tendency or a practice to use the evidence of an accomplice, to use the evidence of people who have declared themselves in the witness-box as law breakers, and experienced law breakers, for the purpose of securing a conviction against a particular individual. That practice has been animadverted to by the courts as a bad practice and contrary to the administration of criminal law. It has been used frequently within the last 12 months. It is hoped, as a result of some cases which have come before the courts, that it will not be used any more. We have had recent experience of men who have been giving their testimony stating that they themselves broke the law and had not been prosecuted.
There is one particular instance of a case that came before the Special Criminal Court where a man's name was actually kept out of the newspapers. If the Attorney-General looks at the statement I have reason to believe he will find that in a case about 12 months ago the man was given an undertaking that if he gave certain information to the Guards he would not be prosecuted for the offence for which he was admittedly guilty, nor would his name appear in the newspaper.
The Attorney-General is not here.
The Attorney-General had effective contact with the prosecution. I am being as careful as I can. I am not going outside the Attorney-General's responsibility. It is right that the Ceann Comhairle has directed attention to that. Of course, the Attorney-General did not give that undertaking. The point I am making is that the Attorney-General should not utilise that particular evidence with that undertaking given and before him, when considering prosecuting. In those cases where people have gone into the witness-box and sworn positively, and with a certain degree even of enthusiasm in my hearing, that they were experienced law-breakers, they were the chief witnesses for the prosecution.
Now, I hope that that practice will cease, and that accomplices will, at least to the very minimum, be utilised, and that they certainly will not be utilised in the Special Criminal Court because, there again, there is this distinction that in the ordinary courts the judge informs the jury of the position. He informs them that the evidence of men who come into the box with an undertaking, or perhaps without an undertaking but with the hope that by giving evidence they will not be prosecuted themselves, and so will escape punishment, is suspect. In the case of the Special Criminal Court, of course, the Attorney-General's counsel tells that to the gentlemen who are acting for the time being as judges. It is an entirely different matter where a judge will warn a jury not merely that they ought not to convict, or that it would be unsafe to convict, but that in particular circumstances it would be their duty to acquit. Now, that is not done by the Attorney-General's counsel in the Special Criminal Court. Therefore, I say that in cases of that kind it is deplorable that evidence of that kind should be utilised before the Special Military Court.
In one particular instance—I think it is the only instance that I know of at the moment, and I hope it is the only instance that will ever occur— circumstances arose in which a witness for the State, who was being examined by counsel for the Attorney-General, gave positive testimony which subsequently transpired to be in direct conflict with a statement which he had made to the Guards and which was in the possession of the Attorney-General's counsel. That man was allowed to give evidence on oath which was in direct conflict with a statement that was given to the Guards and was in the possession of the counsel for the Attorney-General, and that statement was not disclosed to the court until— it was a risk—the defence insisted on its being produced. It was always thought in the bad old days that that was a bad practice. It has happened now under our native administration of the law. I hope it will never happen again.
I emphasise again on this Estimate that counsel appearing for the Attorney-General should be so instructed that their duty is not to secure a conviction at all costs, but to produce for the benefit of the court trying an accused person all available evidence, whether for or against the accused, and that if there is evidence in the possession of the Guards or of counsel for the Attorney-General which is not in the possession of counsel for the accused, or of accused himself if he is unrepresented by solicitor or counsel, then that that information should be placed at the disposal of the accused or of his legal representatives. In that particular case that statement was not produced until it was forced— perhaps that is not the word to use— until counsel for the accused took what might have been a serious risk, particularly in the case of a trial before that particular court which is inexperienced and unversed in legal training. We asked for that particular statement to be produced. When it was produced it was found, in the first place, that it was in direct conflict with the sworn testimony of the individual giving evidence, and, secondly, in direct conflict with the sworn statement which he had made to the court that he had never before made a statement inconsistent with the testimony that he had been then giving. He was allowed to give his testimony, having sworn that his evidence there and then was not in conflict with any statement he had ever given, and it was not until he had been under cross-examination for hours that it transpired, on the production of his statement, that his evidence in the box was, in fact, contrary to his sworn statement—in direct conflict with his statement which was in the hands of the counsel for the Attorney-General at the time that he made it.
That has never happened since, and I hope it will never happen again. It was so serious that it was impossible for me to raise this on the Estimate for the Attorney-General's Office last year because the case on which it arose was thensub judice. The case is now at an end, and I am at liberty to mention it. It is so serious that I am taking this the first opportunity of protesting against it. Perhaps my protest is now a bit stale, but nevertheless I feel that I should raise the point and make it clear that, so far as we are concerned, that should never happen again, and that counsel for the State should be directed by the Attorney-General not to secure a conviction at all costs, not, in the words of a famous gentleman who belonged to the circuit to which I have the privilege to belong —not to win a case but to see that justice is done.
The Parliamentary Secretary to conclude.
As an ordinary lay person I have often wondered why legal men should take such exception to this Special Criminal Court. Deputy Costello has referred to it. I think that an ordinary person approaching a question of this kind, having regard to the times through which we have passed, would have found no serious objection to the Attorney-General, or whoever was responsible, sending such persons or groups of persons thought to be responsible for crimes against the general community, before the Special Criminal Court in order to mark in a very definite way in the public mind the seriousness of their actions. Looking at that action as an ordinary person, I cannot see what exception can be taken to such courts. I believe myself that such courts would meet with, and have met with, general approval.
What is wrong with the ordinary courts then?
Is it not true that, in the vast majority of such cases, the ordinary courts have, in fact, been called upon to dispose of them?
That is what I say. Why select individual ones?
Simply because they were cases of exceptional gravity and importance, cases that in their whole background presented a certain type of crime against the community. That warranted, in the opinion of the Attorney-General and in the opinion, I would say, of a great number of people in the country, that special notice and attention should be given to them by way of directing that they should go before this special court.
What is the difference in principle—sending some to the ordinary courts and sending some before the special tribunal? Is the only difference that one relates to a breach of the Emergency Powers Act?
After all, this court does not convey to the Deputy what it conveys to me. When a case is selected by the Attorney-General as one that should go before the Special Criminal Court rather than before the ordinary district court, that, to my mind, marks it out as one of special gravity.
That is not what the Statute says. I appreciate that the Parliamentary Secretary is not a lawyer. Part V only deals with cases where the courts are inadequate to secure the due administration of the law. Any case that is sent to the Special Criminal Court is, in my view, a vote of censure on the ordinary courts.
I know that has always been the view taken by lawyers, but I do not believe that view would find general acceptance among those outside the profession.
I believe it and so do fully 99 per cent. of the people.
I know lawyers are very jealous of such matters, and judges and lawyers will always resent an encroachment on their domain, and that is an understandable thing. At the same time, as an individual I am far from agreeing there was anything wrong over the past six years in sending certain types of cases before these courts in order to mark their importance from the point of view of the injury attempted, by those charged, against the community. As regards the Special Criminal Court to which reference is made here, it may not have the training or the personnel that would be acceptable to lawyers, but it has the assistance of lawyers, and I understand the President of that Court is a lawyer.
What?
Is not the officer who presides a lawyer?
The Registrar is, but not the President of the court. The Registrar has nothing to do except record the decisions; he does not interfere with their deliberations. There is no lawyer on that court.
Anyhow, they have the assistance of the lawyers who appear there for the prosecution and the defence and I cannot see that any great injury——
You have not been there and you do not know the difference.
I am glad I have not been.
You hope you will not be.
Deputy Costello referred to the type of evidence which has been produced by the Attorney-General in some cases and he also mentioned the undesirability of calling upon accomplice witnesses in criminal cases. I imagine that however undesirable a witness might be, the court is always able to assess the value of his evidence. With all the knowledge and experience they have, surely the members of the court are capable of assessing the evidence of certain witnesses and of deciding whether or not a witness is a reliable and good witness and to what extent his evidence can be credited.
The witness is always sentenced by ordinary courts before he gives evidence.
Even if he has, surely all these factors will play a very substantial part in discrediting the witness. I think you can trust the court to be able to assess fully to what extent any value is to be placed upon the evidence tendered by such a person. Deputy Costello was right when he said all the evidence should be put before the court by the State; he was right when he said the State should not try to secure a conviction, should not enter the court with the idea of securing a conviction at all costs. The State's duty is to see that all the evidence is placed before the court and then allow the court to make up its mind and to arrive at a just decision. I do not think there is anything inconsistent with that duty in bringing forward a witness who might not in the ordinary way be regarded as a credible witness. The court should be capable of determining that matter. I do not suppose there will much longer be any need to send forward such cases as those to which the Deputy has referred. We hope such conditions will not continue for any great length of time. Even at the moment I think there is a diminishing need for such courts.
Speaking as an individual and, as I believe, interpreting the minds of many people, while conceding that the legal profession have always taken exception to the activities of these special courts in what Deputy Costello regards as ordinary cases, I say that having regard to the type of crime that was fairly common during the past six years, having regard to how agitated the public mind was as a result of that type of crime and having regard also to the injury done to the community by those engaged in it, I would be far from making any apology to anybody on the part of the Government or on the Attorney-General's behalf, because he would have done what I would like to see him do—he would have sent serious cases before the court and by so doing he would mark them out in the public mind as coming into the category of very serious crimes.
Why cannot the ordinary courts mark them out? The Parliamentary Secretary missed the whole point of my observations.
I did not.
Then perhaps if he has not missed it he has carefully dodged it. It is not a case of sending serious cases to the Special Criminal Court. Why cannot the Parliamentary Secretary say in what respect the ordinary courts have failed duly to discharge the administration of justice? It is only in that case the Special Military Courts can be invoked.
If an ordinary person were to express his views on the ordinary courts with the same freedom as does Deputy Costello in relation to the special courts, I do not believe Deputy Costello would be one bit satisfied.
I would be perfectly willing to hear any comments on the ordinary courts and the public, I suppose, having regard to what the Parliamentary Secretary has said, can draw the conclusion that the Parliamentary Secretary has little esteem for the ordinary courts appointed by his Government.
Is the Deputy pressing the motion?
Having regard to the attitude of the Parliamentary Secretary, I must press my motion.
