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.