Dáil Éireann debate -
Wednesday, 9 Nov 1949

Vol. 118 No. 5

Criminal Justice Bill, 1949 (Seanad)—Second Stage (Resumed).

Debate resumed on the following motion:—

That the Bill be now read a Second Time.

Mr. Timoney

When the debate was adjourned on Thursday last. I was dealing with the right given by Section 8 to the prosecution to read depositions in cases of the death, insanity and illness of a witness. I had at the time indicated that I agreed altogether with the views expressed by all the other Deputies who had then spoken, that the giving of this right to the prosecution is undesirable. I should be prepared to concede that right in the case of the death of the witness who had made the deposition, but, in the other two cases, I think it is a right which the House ought not to give, and accordingly, I ask the Minister to reconsider the terms of Section 8. I agree that it is very necessary that the State should have effective means of dealing with criminals and bringing them to justice, but we should be very jealous of the rights established by tradition in our courts. These rights leant very decisively in the direction of the liberty and protection of the individual.

The next section to which I wish to refer is Section 21. In passing, I might mention that the explanatory memorandum circulated with the Bill refers to Section 18 as the section which deals with the remission of punishment, forfeitures and disqualification imposed by a criminal court. There is obviously a mistake in the memorandum because Section 21 is the relevant section.

General MacEoin

The Bill was amended in the Seanad.

Mr. Timoney

I see; I did not know that this was the original memorandum circulated with the Bill. In any event, I welcome this provision, because the Minister will agree that the law was in a fairly uncertain state with regard to the rights of remission of punishment and forfeiture. There is a very interesting article on this very question in the Irish Law Times of 27th November, 1948, with which I expect the Minister has acquainted himself. It deals generally with this right of remission, points out that it is part of the royal prerogative and goes on to indicate that this power of remission, which the Minister for Justice apparently, since the setting up of this State, exercised, was hardly constitutional at all. Certainly, since the passing of the present Constitution, it would appear that there was in fact no right in any person, Minister for Justice or anybody else, save the President, to remit punishment.

The relevant article of the Constitution is Article 13, paragraph 6, which reads:—

"The right of Parliament and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."

I am not aware of any enactment which gives this power of remission to anybody and it would be well, now that the power is being expressly conferred by statute, that the Minister would direct his attention to abuses which occurred as a result of the exercise of this power, which, as I said, appears to have been altogether ultra vires.

It has occurred on several occasions that a warrant was issued, endorsed to be returned in three months if not executed, and the Guards would not execute this warrant if they found out, in some way or other, that the convicted person had sent a petition to the Department of Justice. I understand that there was a circular issued to Garda superintendents to the effect that they were not to execute warrants where a petition had been sent to the Minister for Justice. I do not know what machinery there was to notify the Guards whose duty it was to execute the warrant that a petition had been sent. They were certainly, I am quite sure, seldom if ever notified by the convicted person who was sending the petition. In any event you had the rather ridiculous situation that, while the Minister for Justice, or whoever was acting for him in the capacity of examining the punishment inflicted with a view to its remission, was going into the question, the warrant was lying unexecuted and very often went out of date.

It is a nice question which I would like the Minister to consider as to whether we are entitled to give to him the right to interfere with the order of a competent court. If we pass Section 21 as it stands we are giving, not only to the Minister for Justice but to any other Minister of State, the right to say to a court that the court was wrong and that the infliction of the penalty was incorrect. There is power in the court to give time for the payment of monetary penalties and it has been the experience of every practitioner that, where any sort of case at all is made by a convicted person who asks for time, the court is generally very generous indeed. As I say, it is a very serious thing to interfere with the administration of justice in the country. It is a question which I should like the Minister to consider as to whether the taking of this power to himself, or to any other Minister, is within the terms of the Constitution. It would be most unlikely, I agree, that even if this power is given, the question of its constitutionality will ever be raised, because the only people who would be interested in it would be those who would be trying to have penalties remitted, and they certainly, if they get a remission of the penalty, would not take any steps to show that the remission was unconstitutional. However, that does not detract from the fact that we should be particularly careful here that we do not lend ourselves to unconstitutional legislation. There has been enough of it, perhaps, already.

While saying that, I quite appreciate that it is a useful thing to have a power of this kind, provided we can be satisfied that it is within the Constitution because there are cases where circumstances may not be known to the court or to the defending solicitor or counsel which, if known, would induce the court to inflict a penalty less severe than that inflicted. As I say, it is a useful power to have in the statute subject to the provision that, firstly, it is constitutional and, secondly, that it is a power which will not be abused. Perhaps the second provision, that of the abuse of the power, is as important, if not more so, than the first. It does lend itself to abuses and they are abuses that it is perhaps very hard to have brought to the light of day. I think I can fairly say that, as far as I know, heretofore it is a power or privilege which has not been abused by the present Minister for Justice or any of his predecessors.

The provision in Section 17 with regard to the transfer of trials in the Circuit Court from one place to another has been attacked very vigorously by Deputy Cowan, I think. I must say that I would approve of this provision. I had personal professional experience of one criminal trial in which the jury disagreed twice and on the second disagreement it was mentioned in court that there were five members of the jury who had the same surname as the accused. It was almost a certainty that more than 50 per cent. of these five people were related to the accused. There was a second disagreement, as I said, and on an application by the counsel for the Attorney-General, the Circuit Court judge directed that the case be returned for trial from the Circuit Court to the Central Criminal Court. There is power there already to transfer a case from the Circuit Criminal Court to the Central Criminal Court.

I think that that is a greater hardship on the accused and the witnesses than transferring the Circuit Court trial from one town to another. I think that the interests of justice would not be defeated at all by giving this specific power to Circuit Court judges and, accordingly, I approve altogether of this section. I do not think that there is much in Deputy Cowan's point about hardship with regard to witnesses, because I have found that the local superintendents of the Garda are extremely helpful and obliging in cases where a defendant's solicitor sends in a request to have a particular witness for the defence brought. Even though the prosecution did not want him at all, they would bring along that witness at State expense.

Captain Cowan

Will they bring along the solicitor at State expense?

Mr. Timoney

That, of course, is another question.

Captain Cowan

Is not that one of the important points?

Mr. Timoney

Of Section 17?

Captain Cowan

Yes.

Mr. Timoney

I do not see that that has any relevance whatsoever, because a man does not necessarily go to the town in which the trial takes place to engage a solicitor. I do not see why the State should concern itself with the identity of the solicitor defending, any more than it should pay the travelling expenses of counsel.

Captain Cowan

It is a matter of concern for the accused who will have to pay.

Mr. Timoney

That may very well be, but I do not think it has any relevance to Section 17. The matter that Deputy Cowan is raising, of course, goes to the root of this question of free legal aid for an accused person. That is not being provided for here. Therefore, so far as I am aware, the question of free legal aid may not be discussed.

Captain Cowan

If it is going to cost the accused £10 more to go to one place rather than another, is it not a question of some importance?

Mr. Timoney

The power is already given to Circuit Court judges to send cases to the Central Criminal Court. This power given under Section 13 to members of the Garda to fix bails for persons whom they have arrested is, I think, an outrageous thing.

Captain Cowan

It is happening every day in Dublin.

Mr. Timoney

I am not familiar with the practice in Dublin, but I certainly think that members of the solicitors' profession in the country would be horrified at the provisions of Section 13. It is conferring, so far as I can see, a judicial power on members of the Garda. I can very well envisage a member of the Garda taking a man into the barracks for some reason or another and fixing a very high sum for bail. I can very well envisage a case arising on the constitutionality of the Garda's right to fix bail and exercise a semi-judicial, if not altogether a judicial function.

As to Section 18, on the question of clearing the court and prohibition of publication of the court's proceedings, I read the Seanad debate on that section. There were very strong views expressed there. I think, however, that it is a good provision to have and I have none of the fears expressed in the Seanad that the enactment of this provision would give power to turn the courts into private star chambers. I do not think there is any danger whatsoever of that happening.

With regard to the provision which enables accused girls to have with them a woman friend, I think that is rather too narrow in these cases. I think the accused should have the right to have a number of people present. It was mentioned that the right should be confined to the parents of the accused.

Mr. T.F. O'Higgins

It is not the accused. The provision refers to a person alleged to have been assaulted.

Mr. Timoney

I thank the Deputy for his correction. It was mentioned here that the female alleged to have been assaulted ought to have the right to have her parents there. I think that that ought to be extended and the right given to her to have the choice of a number of people. I can envisage cases in which the unfortunate girl would want to have anybody present other than her parents.

Captain Cowan

Generally, she prefers her parents to be left outside.

Mr. T.F. O'Higgins

She has her choice.

Mr. Timoney

Section 19 is a very useful section, but I doubt if it will do what it is intended to do, and that is to remove the formality that surrounds the entering up of the justice's minute book. It is not the first attempt which has been made to have decisions of the District Court made what you would call, without any disrespect to the justice, foolproof. There is a very strong attempt being made in the section to make the recording of the decisions foolproof. Whether that will be successful or not, time alone will tell. It is, however, a strong attempt and, as such, I welcome it.

Mr. T.F. O'Higgins

There are just a few matters that I wish to refer to in regard to this Bill. It is a Bill of some importance and I think is a welcome one. I make that general observation in relation to the Bill, but I should like to say this. Reference was made by Deputy Boland to the fact that this Bill is confined purely to the criminal jurisdiction of the District Court and that he was rather looking forward to a similar Bill dealing with the civil jurisdiction of the District Court. I should like to say a word of warning to the Minister with regard to any extension of a similar provision to the civil side of the District Court, because it seems to me that in this Bill, and in many other Bills of a similar nature dealing with civil matters, we are rapidly getting back to the stage where we will have a court similar to the old British County Court in operation here. There were defects in that system. It was tried for a great number of years here and, generally speaking, it was not a success. I hope, if there is any further extension of the civil jurisdiction of the District Court considered by the Minister, that this matter will be gone into very carefully, and after due consultation with the members of the legal profession interested.

With regard to the Bill itself, I think Deputies will appreciate that, under this Criminal Justice Bill, added responsibilities and added duties are being placed upon the officers of the District Court, not merely the justices, but also the clerical officers employed in that court. Might I say in passing that, while the House, if this Bill is passed, does cheerfully give to those officials increased duties, increased work and increased responsibilities, it must also remember that, at some stage under the operation of this Bill, these particular officials, both justices and District Court clerks, will be entitled to better conditions of pay and better conditions for their services? The District Court clerks, upon whom will fall the main responsibility of enforcing the provisions of this Bill, are, in my opinion, amongst the most neglected of State servants. I think it is high time that some proper gesture should be made to them and that some proper recognition should be given of their responsible position and duties.

In the Bill itself there are only one or two matters which, in my opinion, require some attention. The first relates to the provisions of Section 8. I entirely endorse the criticism which has been levelled, I think, from all sides of the House, at the provisions contained in Section 8. There is always the tendency in any Parliament legislating in criminal matters to make the job of those in a State prosecution, in securing a conviction, easier. That tendency has always been there. It is a tendency which, in my opinion, should be fought as much as possible. We have in our system of law the pious feeling and the pious notion that we do everything to ensure a fair trial for a person charged with a criminal offence. We insist that, under our legal system, the person in the dock is afforded all the protection which justice requires, but that, in my opinion, particularly in view of the legislation passed over the last 20 years or so, is rapidly being whittled away. Under Section 8 we are providing an easy mode of proving matters in a criminal case which could not be proved in a case tried on the civil side of the court. I do say to the Minister that, if we are going to allow a deposition taken in the District Court to be used in evidence at the trial of an accused person—if the conditions set out in the Bill are satisfied —then we are enacting something completely novel in the history of criminal law. I think that is a provision which will require considerable study and consideration before it is enacted.

General MacEoin

The Deputy should read sub-section (2).

Mr. T.F. O'Higgins

I am coming to that. I understand it was suggested that sub-section (2) of Section 8 afforded some protection to the accused. In my opinion, no protection is contained in that sub-section. The sub-section provides that:—

"In the case of the deponent's insanity or illness the deposition shall not be read without the accused's consent"——

Now, if the sub-section stopped there, of course, there would be ample protection and no serious injustice would be caused, but the sub-section goes on to say:—

——"unless the court is satisfied that the deponent is unlikely to recover within a reasonable time."

In other words, power is being given under that sub-section—if the deponent is ill or is unlikely to recover within a reasonable time—to insist that the deposition be read in evidence. I agree that, under that section, there is a provision which provides that the deposition can only be so read if the accused person, or his legal representative, has had an opportunity of cross-examining the deponent at the time the deposition was made. That appears to be fair, but in actual practice experience will show that it is really no safeguard. When depositions are taken in a case which is likely to be tried out before a jury, no representative appearing on behalf of an accused person will lightly indulge in any vigorous cross-examination of the deponent. More often than not, cross-examination is reserved, and even where cross-examination does take place—the depositions are taken in long hand—no cross-examination could under any circumstances be effective.

I do say to the Minister that the whole provision in that section should be further considered by him and by the Department. It has, of course, been pointed out very effectively by a number of Deputies that, under Section 8, we are providing for something which would not be tolerated on the civil side of the court. Every plaintiff bringing a civil action in the district, or in any other court where his case is subject to appeal, always has to run the risk that a witness of some importance to him may be ill, dead or insane or otherwise unavailable at the hearing of his appeal. If that takes place, well it is just too bad for him and for his case. But, why should we, in relation to a criminal case where the liberty of a citizen in this State is in jeopardy, provide an easy way for the State of overcoming the ordinary difficulties and the ordinary circumstances which shall attach to every other type of case?

General MacEoin

That is already there.

Mr. T.F. O'Higgins

With respect, that particular provision is not. There is no provision which entitles the prosecution in a criminal case, in a trial before a jury, to use a deposition in respect of a deponent who is ill or insane. There is a provision in relation to a deponent who is dead.

Mr. G. Boland

One who makes a dying statement.

Mr. T.F. O'Higgins

This is something new. I want to say to the Minister that it is an extension which should be resisted or, if not resisted, should be examined very carefully. I do not think that the implications of that section have been considered sufficiently.

I should like to say a word or two about Section 17. I understand there has been some criticism of it already. I can see, with Deputy Timoney, the merits contained in the section, and at the same time I can see, with Deputy Cowan, a considerable number of objections. The Minister should consider introducing an amendment at a later stage to provide that the transfer of a criminal trial by a Circuit Court judge from one part of the circuit to another should be made only on certain specified grounds. The motives which prompted the Minister to insert this section in the Bill are perfectly good. It may be that in the particular area in which the trial should take place under the Courts of Justice Act a fair trial would not be possible.

Captain Cowan

A conviction cannot be secured.

Mr. T.F. O'Higgins

It might not be possible to have a trial fair to the State or to the accused. It may be that on account of local feeling a fair and proper trial could not take place. Those, I am sure, are the reasons why this section was introduced. If I am right there, I suggest that those grounds for a transfer order should be inserted in the section and that a trial should not be transferred from one county to another county unless the grounds that I have suggested are specified.

On the question of expenses and costs, I am not going to say anything in relation to legal costs, but I would like to say to Deputy Timoney that he seems to be rather innocent in relation to a lot of these criminal trials. It is not the practice of the police to provide travelling facilities or anything else like that for witnesses on behalf of the accused person. I do not think a police officer who did so would get any refund for transporting witnesses for the defence to the place of trial. I suggest that when a Circuit Court judge makes a transfer order under Section 17 the order should expressly provide for the added expenses of the trial to the accused. I know that under sub-section (2) (b) provision is made so that the order may provide for matters ancillary or incidental to the transfer. It is possible that particular sub-section was intended to cover the added expenses of witnesses in the trial, but again, I suggest that some express provision in relation to this matter should be inserted.

That is as much as I want to say with regard to any of the principal matters in the Bill, but I should like to point out one thing to the Minister.

Captain Cowan

Before Deputy O'Higgins proceeds any further, I should like to draw attention to the fact that there is no quorum. It is simply disgraceful that when an important measure like this is before the House there are only seven or eight Deputies present.

Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present—

Mr. T.F. O'Higgins

I was about to refer to the remarks of Deputy Timoney with reference to Section 13. I do not share the views he expressed on this section. So far as I can see, in Section 13 there is no power given to the Garda officer to fix any amount in relation to sureties or bail. I do not know whether that was an omission from the section or whether it was definitely intended, but it seems to me that the Garda officer is bound to accept any sureties or recognisances that may be offered by the person to whom the giving of bail is being considered.

I should like to say a few words about the section dealing with power of remission. I merely want to refer to it by way of reply to Deputy Timoney. I do not see any objection, good, bad or indifferent, to providing expressly for this power being given to the Minister for Justice. I think all of us, irrespective of any legal considerations, are aware of the considerable disparity in relation to sentences and penalties imposed for similar offences and frequently on the same facts. These sentences or penalties vary from district to district and district justice to district justice. I think it would be very wrong if there were not some power given to some member of the Government in respect of cases of individual injustice, cases in which by reason of various matters an injustice might be done. If that power were not expressly provided for in the Bill the Minister might find cases where quite obviously the penalties imposed were out of all proportion to the offence and he might be unable to mitigate the penalties in any way. I think it is a section which should receive the approval of the House.

I think, speaking on the Bill generally, that it is a good one. I have the one serious criticism, which I have already offered, concerning Section 8 together with the qualification I have mentioned in connection with the section providing for the transfer of trials. I hope that the Minister will consider the provision of additional safeguards on the Committee Stage of this Bill with regard to both those sections.

Mr. M.J. O'Higgins

I propose to be very brief in dealing with this Bill. I agree that the Bill is a good Bill. It is certainly an improvement on the existing legislation. Anything that tends to speed up the work of the District Court and the administration of justice in criminal matters, particularly in Dublin, is undoubtedly to be welcomed.

Like the last speaker, I think there are definite objections to be made against Section 8. I notice in the Dáil Reports that practically every Deputy who spoke on this measure had some criticism to make on Section 8. I think the criticisms were justified. Unlike the last speaker, I am prepared to accept the fact that this particular section must have received very careful consideration from the Minister and his officials before it was put into the Bill. It must have received consideration because it is an entirely new departure in a very serious direction. Even in the circumstances outlined in sub-section (2) of Section 8, it is, nevertheless, a very serious departure to permit the use of depositions. It seems to me that, once the Bill is passed with that section in it, any lawyer defending an accused person in the District Court will find it practically impossible to adopt the present practice of reserving his defence. I think that such a lawyer may, in future, find it essential to disclose his defence in the District Court for the purpose of getting that defence on deposition and on record, particularly in the case of a witness whose deposition may ultimately be used at the Circuit Criminal Court because of the absence of the particular witness for one reason or another. Lawyers defending accused persons will be compelled to cross-examine and thereby disclose the nature of their defence, even though it may be the feeling of such lawyers that a defence should not be disclosed at that particular stage.

I agree with Deputy Boland and the other Deputies who pointed out that there is a precedent with regard to the use of a written statement of a deceased person in evidence. That precedent is there. But I cannot see any sound argument in favour of admitting in evidence the depositions of persons who in the meantime become insane. Surely, the depositions of such persons are immediately suspect. Surely, it would be a travesty of justice if the deposition of a person who, subsequent to the making of that deposition, becomes insane were to be admitted in evidence in any subsequent criminal trial. Possibly that deposition might be a vital link for the purpose of convicting an accused person. Unless the judge were satisfied that such insanity between the date of the District Court proceedings and the subsequent trial was traumatic in origin, it would seem to me at any rate that under no circumstances should the evidence of any person who, subsequent to the making of the deposition, becomes insane be admitted in evidence. If the injury which caused the insanity was traumatic in origin there might be something to be said for it. That, at least, would put the deposition of the insane person in the same category as that of a witness who subsequently dies. Generally speaking, I do not think that the provision is a good one. It is an alarming provision from the point of view of the lawyer Deputies in this House. I regret that those Deputies who are not lawyers have not so far taken part in this discussion to any considerable extent, because I would like to have their views on that provision.

There is another viewpoint I would like to put before the Minister. Depositions can never represent to a judge and jury the entire evidence given in the District Court. No deposition will show hesitancy on the part of a witness, if there is any hesitancy; no deposition will show the general demeanour of a witness under either direct or cross-examination. All these matters affect to some extent the mind of the conscientious juryman. These things cannot appear in a deposition written down in longhand which merely represents the actual word spoken. The manner in which the words are spoken is not shown. The pauses which may result between a question and its answer cannot be indicated. These are matters which may very well give a judge or juryman a completely different impression as to the reliability or truthfulness of a witness. I would like the Minister to bear that in mind on Section 8 as it now stands. I think there are serious objections to the section. Every lawyer who has practised in the District Courts immediately perceives the objections. If the Minister can assure the House that all these matters have been considered by him and that, despite the very careful consideration given, there are overriding arguments against the objections which have been advanced here, I am prepared then to accept the Minister's decision, but I tell him quite frankly that I do not like the section as it stands at present and that I would like to see it amended.

There is another matter which was raised by both Deputy Captain Cowan and Deputy Boland. I would like to add my voice in support of what they said. Strictly speaking, it may not be in order for me to do so. It is just that, under this Bill, it is possible that there will be a substantially increased amount of work to be done by the district justices. Many or most of them already do a very hard day's work—particularly the justices in the Dublin area and in and around the Dublin area. I should like if the Minister would indicate, in replying, whether he proposes in the near future to allow any increase in the salaries paid to these district justices. I think they are entitled to it and I think, particularly, as Deputy Cowan mentioned here, that there should be some general levelling-up in the salaries paid to the ordinary district justices, whether they be functioning in the city or in the country area.

As Deputy Cowan mentioned, and I think the Minister is aware of it— Deputy Boland, as Minister, was aware of it—there are many district justices of very long standing who, because they are functioning outside the Dublin metropolitan district, are in receipt of a lesser salary than junior justices in the service who happen to be operating in the Dublin metropolitan district. I should like to see these people who have given very faithful and good service in the administration of justice in this country being properly rewarded and their salaries at least being made level with those of justices in the metropolitan district.

The Bill, generally speaking, is excellent and the Minister is to be complimented on introducing it. With the exception of Section 8 of the Bill, I would approve of it in its entirety. I feel that it is a very good measure and a measure that was certainly required in order to assist in the administration of justice.

General MacEoin

I am grateful to the Deputies, especially the legal Deputies, who have applied themselves so vigorously to this Bill for the attention they have paid it. It is a technical Bill, of course, and every suggestion made by people who have experience of the law in a matter such as this is of great advantage. I am glad the Bill has been approached in that way. I can say that the members of the Seanad applied themselves with care and diligence to the Bill and suggested various amendments. As I told this House when moving the Second Reading of the Bill, the Bill did improve between the time it was introduced in that House and the time it left it, and perhaps this House may be able to improve it further.

A great many points were raised. As I have said, this is a technical Bill and, therefore, I would much prefer to have time to examine all the points than to commit myself now as to what I would concede or what amendments I would like to bring in on the Committee Stage. I can assure all the Deputies that every point made will be carefully considered because this is a Bill to amend criminal law administration—and everybody is very anxious that the administration of justice in that aspect of our courts should be the best that can be produced, and I am anxious to give the best that can be devised.

I shall touch now on some of the points. Again let me assure everybody that I am approaching the matter in the manner in which they have approached it. For a great number of years no accused person has ever been placed at a disadvantage because he could not get depositions.

Captain Cowan

I do not accept that.

General MacEoin

I am assured that that is so. I shall have that point examined but I am assured that, in any genuine case where the solicitor of an accused said the accused was unable to pay for a copy, the deposition was made available. The governor of the prison was always able to make them available for any person, and use could be made of them. However, I shall have that point examined again.

The question of free legal aid is another matter. That question has been agitating the minds of the people of this country for a considerable time. There is a certain development in that respect in Great Britain, and, of course, it has been argued that because they did it we, too, should do it. I do not exactly take the point of view that because a thing is done in Great Britain we should automatically follow their example. At the same time, I am satisfied that degrees of hardship arise from time to time. Outside the scope of this Bill, I am having that examined in a different way.

I am going to touch on the question of civil jurisdiction—a point which has been raised by some people in this House. Of course, there are some conflicting views about it. While I am extending in this certain points, I do not want to get them involved. This is a single independent matter and I do not want the two things to get involved with each other at all. If we bring in a Bill for the extension of civil jurisdiction I am sure that it will get a good hammering and that it will be thrashed out to its limit.

Mr. G. Boland

The £ is worth only 10/- now. That is one argument in favour of it.

General MacEoin

That point could be made but, as I say, it does not arise in this Bill.

A point was made about having statutory declarations instead of the solemn form of oath. That has always been a very serious matter. In cases such as this, criminal cases, I think that the solemn form of oath must be maintained. Anyhow, it is so involved that I should not like to undertake the task of lightly throwing it aside.

Captain Cowan

Some people do respect the oath.

General MacEoin

Yes, some do. It it a pity that even the ordinary affirmation before the peace commissioner is not more rigorously observed in the wording but I should not like to subscribe to the view that it is general. We hear comments from time to time from district justices and others to the effect that the sanctity of the oath is not fully observed or that the people who are taking the oath do not fully understand the seriousness and responsibility they are undertaking when they take it. We shall have to teach them that, and, if there is any slackness in that regard, I hope that it will be got over in the future.

It is clear that the accused has always the right, on an indictable offence under Section 2, which was referred to, to apply to be tried by a jury. However, everybody knows that sometimes the accused does not want to be tried by a jury—that he wants to get the thing over quickly. However, I do not know that it is necessary to make it any more binding on the district justice to tell the accused that he has the right to trial by jury. If it is thought that it is not clear enough it could be made mandatory on the district justice to inform the accused that he has the right to be tried. Deputy Cowan made the point that any fellow who is brought before a commanding officer in the Army says: "Sir, I want you to deal with me yourself; do not send me to the courtmartial," in the hope and belief that he would have a softer heart than a great number of people. Be that as it may, I will see if that can be made mandatory, although I do not think it is necessary.

On the question of the Ministerial Order for indictable offences, it was said that this should be done by legislation instead. As long as the Minister is compelled to lay the Order before the House and the House must confirm it, I think it is equivalent to legislation. Every time you wanted to amend the Act or add to the list of indictable offences, it would hardly be reasonable to have to bring in a whole Bill.

Captain Cowan

The Minister should leave that open to consideration too.

General MacEoin

I am prepared to consider it, but I submit to the House that the procedure is sound enough when something is being added on.

With regard to Section 4 and the term of six months' imprisonment, it was considered necessary to increase the powers of punishment in the District Courts as we were increasing their jurisdiction. Further, the District Court has the power at present to impose consecutive sentences totalling 12 months so no great risk seems to be entailed in fixing that the court should have the power to impose a sentence of 12 months. Of course, I agree that it is a serious matter to extend the power without giving it full consideration but I can assure the House that the matter has been examined fully.

With regard to Section 8, on which I was attacked by friends on every side of the House, as I pointed out, the deposition of a person who has died can be put in at all times, but cases arise in which a mapper, doctor or other person whose deposition is of a purely technical nature, falls and breaks his leg, becomes ill or even becomes insane, and the whole case is held up although the production of that map would be in the interests of the accused. What is sauce for the goose is sauce for the gander——

Mr. T.F. O'Higgins

Who is the goose and who is the gander?

General MacEoin

It is in the interest of the accused, of the prosecution and of justice that such a material fact should come to the notice of the court. Remember, however, that if the accused objects he can hold up the trial. I have been aware of cases—so have members of the legal profession and many members of this House— which have been held up for months because some deponent who would give technical evidence of a map or a post-mortem has become ill. Those cases have been held up and it was not in anyone's interest.

Mr. T.F. O'Higgins

You can always get another technical witness.

General MacEoin

Take a person who did a post-mortem examination. The body is buried and he has to come into the District Court to give his evidence. How can you call another person to dig up the body?

Captain Cowan

You might as well say——

General MacEoin

My case is as good as the Deputy's.

Mr. G. Boland

We can thrash it out on the Committee Stage.

General MacEoin

Yes, we can, and we have fair notice of what we are going to come up against. These points have been covered and I want to meet them as far as I possibly can. Deputy Collins made a point with regard to Section 8, that it should only be used for the benefit of the accused and that is what the two Deputies behind me want. Would that be fair? There is always somebody who has suffered something——

Mr. M.J. O'Higgins

What about a case of attempted suicide?

General MacEoin

Take a case of attempted suicide where the thing has been done against the accused himself; but somebody else has been aggrieved in that case, the Almighty Himself, but I am not going to argue that.

With regard to Section 11—malicious damages—Deputy Boland has just reminded me that the value of the £ has decreased and that is all that is dealt with here. The question as to whether malicious damages should be paid by the local authority or by the State is another day's work. I, for one man, have always argued that it is an obsolete provision, but whether I will be able to secure the agreement of the House or not I cannot say. We can have that looked at on another occasion. I admit that the value of the £ has not altered from £5 to £50.

Mr. G. Boland

Since 1861 it probably has.

General MacEoin

I would have to get my pencil out and see what calculation I could make on that.

A good many things have been said about the power of a Guard to release on bail. As Deputy Cowan pointed out, that has happened in Dublin for I do not know how many years. The Commissioner has set under order the amount of bail a Guard can impose and we are extending that provision to the whole country. It is a matter for regulation by the Commissioner of the Garda Síochána, so there is no danger of a station sergeant saying £500 or £1,000. If the matter is so serious as that, a person can only be released by the proper people, namely a peace commissioner or district justice.

Captain Cowan

He need not be let out at all.

General MacEoin

No. It would be a terrible hardship if I or Deputy Cowan were pulled in and no peace commissioners being available, we were held until morning. I think it was a terrible disadvantage to the people of the country that they had to suffer, they had to wait, while in the City of Dublin a station sergeant could sign a bond for £10. I think this is an advantage.

Captain Cowan

It is an improvement.

General MacEoin

It is in the interest of the people and is necessary.

On the question of the transfer of trials by the Circuit Court, the only power that a Circuit Court judge has at the moment is to transfer it to Green Street.

Captain Cowan

But that is only recent legislation.

General MacEoin

That is the only power he has at the moment.

Captain Cowan

He should not have even that power.

General MacEoin

Be that as it may, that is the only power he has at the moment. I am giving him power to transfer it to any place in his circuit. No matter how difficult that may be, it certainly is easier than transferring it to Green Street. The jurors who attend there complained that if these footy cases were stopped coming up to them and things were done in a different way, they would not have so much work to do. It is in answer to that appeal on behalf of jurors in Dublin that I am trying to lessen the work.

Captain Cowan

But only two or three cases have been transferred in the last two or three years to the Central Court.

General MacEoin

I think there was more than that.

Captain Cowan

Not so many.

General MacEoin

The Deputy might not have appeared in them all.

Captain Cowan

I have a good idea of what is happening.

General MacEoin

I think there were more than that. This is an improvement on the present situation.

Mr. J. Lynch

What is the purpose of transferring a case from one point within the circuit to another?

General MacEoin

Let me cite a case. Supposing a fair trial could not be given in Longford, it might be given in Mullingar, Athlone, or Roscommon, instead of sending it to Green Street. On the application of the Attorney-General, the person can be sent to Green Street. On the application of the accused, it has to go to Dublin also, as that is the only place that he has. There are various things referred to here which are indictable offences and the case might not get a fair trial in that particular area. However, he might get it in Roscommon or somewhere within the circuit. I do not take away the existing power he has. I am leaving that and, in addition, I am going to give this discretionary power. If the application is made by the Attorney-General saying he wants it brought to Green Street, the circuit judge might say: "No, I want to transfer it to Mullingar and get a jury there".

Captain Cowan

He cannot do that under this Bill.

General MacEoin

I think he can.

Captain Cowan

No. They are two separate jurisdictions—one to transfer to the Central Criminal Court and another to transfer within his own circuit.

General MacEoin

That is true: they are two separate jurisdictions. Anyhow, it is an extension of the existing provisions.

Captain Cowan

It is a new power.

General MacEoin

Yes, it is a new power.

Mr. T.F. O'Higgins

Would the Minister have any objection to stating in the Bill the reasons for which a transfer could be made?

General MacEoin

If the Act stated that, it would leave no power at all.

Mr. T.F. O'Higgins

I think it is done in the other transfer provisions.

General MacEoin

I will look into it, but I do not think we should be asked to do that. A reference was made by Deputy Timoney to remissions. I do not think there is any doubt whatever that the power was carried on for remissions by the Minister for Justice under certain enactments or under the Adaptation of Enactments Act. Whether it was or not, this is to put it beyond yea or nay. When it was introduced in the Seanad, it was said that the Government might delegate to "a person". The Seanad, amended that to "a Minister of State". The reason for that is that, under some of the various Acts—revenue cases, for instance—the power of remission is vested in the Revenue Commissioners or the Minister for Finance; and the Minister for Justice, though he had certain functions in the matter, really had no power to remit in those cases. This is giving the Minister power to remit. I have not yet met a Deputy who was not anxious to see that the power of remission was exercised often and with great mercy. Therefore, it would be a pity to take that away. Time after time, circumstances have arisen in which, notwithstanding all the care of justices and judges, miscarriages of justice have taken place and it is something of importance that there is a reviewing authority.

Somebody asked how the Guards get to know. It seems that the procedure is not fully understood. When the Minister gets an objection, he informs the Guards of the nature of the petition. He informs the district justice and, if it went to appeal, the Circuit Court which tried the appeal. He sets out the facts, giving the police report on the matter—that is, in the light of the new circumstances. Before the Minister exercises any function, all the facts are viewed by the judge and other authorities concerned, and also by the Departments, if there are Departments concerned. If it is a motor taxation case, or breaches of industry laws or agricultural regulations, the Department concerned is consulted. The Minister then exercises the prerogative and exercises his duty on those facts as put to him. He is not bound to accept all or any of them, but he would be a very courageous man who would ignore advice against taking certain steps.

I think I have covered most of the points made. This is a technical Bill and, as I said before, I am quite prepared, on the Committee Stage, to examine any amendment that may be put down. There were some points not touched on by anyone and I will have to put in amendments myself, consequential on things that happened in the Seanad. However, it will all be with the intention of improving the Bill so that, when it becomes law, we will have an improved legal code dealing with these particular matters.

Question put and agreed to.

Committee Stage ordered for Wednesday, 23rd November, 1949.