I move amendment No. 1:—
In sub-section (1), paragraph (a), to delete sub-paragraph (ii).
Vol. 118 No. 10
I move amendment No. 1:—
In sub-section (1), paragraph (a), to delete sub-paragraph (ii).
I presume the Deputy agrees that amendments Nos. 2 and 3 are consequential and stand or fall with amendment No. 1. The Deputy understands that?
That is correct. This section provides for what I might term a substantial alternation in the law, in other words, that offences which by law are now indictable will by this section be capable of being dealt with summarily. The Schedule sets out quite a large number of offences, now indictable, which may be dealt with summarily by the District Court under the provisions of this Act. The Minister and his advisers and the Department generally, in the preparation of this Schedule, have endeavoured in so far as they possibly could, to bring in all those indictable offences that they think should be dealt with summarily and that a district justice should have power to deal with. I take no exception to that part of the section. I think it is wise to make that change. I think it is wise to extend the jurisdiction of the District Court, and I am satisfied that it will help in speeding up the machinery and administration of justice and that to all accused persons, in the long run, it will mean that law will not be just as expensive as it was. For all these reasons, sub-section (a) (1) is to be commended and accepted by the House.
It is A1.
It is A.1. The Minister in sub-section (b) is given power to declare by Order that any specified indictable offence shall be a scheduled offence and there is then another paragraph which sets out that an order by the Minister shall not come into force unless approved by resolution of each House of the Oireachtas, but upon being so approved, shall come into force forthwith. That is what I consider to be a dangerous extension of power. The Minister may say: "Any Order I make will not come into operation until approved by each House by resolution", but, if we were to agree to that, we would be depriving ourselves of certain powers which, as a Parliament, we ought not so to deprive ourselves. If in the future the Minister, or some successor of his, wanted to suggest an alteration in the law by which additional indictable offences might be dealt with summarily, he would, if this sub-section to which I take exception were not in the Bill, have to come before the House and get authority to introduce an amending Bill and would have to produce that Bill to the House and have its general principle discussed on Second Reading. The House would then have the right to put down amendments to delete certain things which the Minister might have inserted and generally the House would have power and control over what I consider to be a substantial amendment of the law. If we give the Minister the powers he is asking for now, he can come before the House with an Order and ask the House for its approval.
And be responsible to the House for it.
And be responsible to the House for it. The House, however, would have no right to amend that Order. The power the House would have would simply be the power of approving or rejecting and it might be that parts of that Order would be acceptable to the House, while other parts would not be acceptable. The bringing in of a motion dealing with such an Order would generally be regarded as a Party matter and if the Minister had a sufficient majority behind him, the Order would be approved by the House.
And so would a Bill.
I do not accept what Deputy O'Higgins says. A Bill has to go through all its stages, and, on Committee Stage, a Deputy may have a very useful amendment, an amendment which may commend itself to quite a number of Deputies supporting the Minister or may commend itself to the Minister. If the procedure by way of Order is accepted by the House, the House will have given up a very substantial portion of its legisative powers. I see no reason for this at all. Having got, as he must have got, the advice and suggestions of the Chief State Solicitor, of the State solicitors, of the various judges who deal with criminal matters, of the District Courts and District Court clerks, and having had before him all the information which these responsible people could put before him, the Minister has prepared this very long section which refers to 21 different Acts and at least 21 different offences—probably more if we were to examine them in great detail—and if he is satisfied now that he has covered every offence that ought to be covered in this way, he ought not to ask for the additional power which enables him, or some successor of his, to come in here and amend the law by Order.
In an ordinary administrative matter, there may be a good case for giving the Minister such power, and it has been done frequently by the House, but over the years the House has generally tried to keep some control by requiring that the Orders be placed before the House for approval. This, however, is a fundamental matter. It is an alteration of the law, an alteration of the law which has been set out in statutes for 100 years or more and which has been operated by the courts and in regard to which the Legislature said: "These offences are indictable offences and can only be dealt with by a jury." The Minister, if we give him this power, can say: "It does not matter to me what the Legislature may have said at any particular time. I have the power now to change that indictable offence which can only be dealt with by a jury into a summary offence which may be dealt with, in certain circumstances, by the District Court, within the framework of the protection set out in the Bill.
I think it is too serious a responsibility to give to the Minister—the responsibility of changing something which should be the subject of an Act of Parliament into something which can be changed by Order of the Minister approved of by both Houses. I am quite certain that, if acknowledged authorities on law were consulted, they would agree that what is proposed here is something which is not only objectionable but dangerous from the point of view of the community.
I think I have said enough to show the Minister that there is a grave objection in principle to the power the Minister proposes to take here, and I feel sure that if that aspect is studied by Deputies who feel that they have a responsibility in the matter of constitutional government and all that it entails, they will be very slow to give this power to the Minister for Justice. It may be all very well to say that General MacEoin, the Minister for Justice, is a reasonable man who will not do this, but it is not a question of giving powers to General MacEoin. It is a question of giving powers to the Minister for Justice, whoever he may be for the time being. There is some protection, if it must go through Parliament as a Bill goes in the ordinary way, but there is not much protection if such an important matter can be dealt with just as an administrative matter can be dealt with under the legislation at the moment. I would press the Minister to accept my amendment and to agree to the deletion of this sub-section.
I wonder did I misunderstand Deputy Cowan's approach to this matter? I understood that Deputy Cowan's objection to the sub-section was put forward on the basis that the Minister had power to create by Order indictable offences.
No, I did not say that.
I understood the Deputy to say that because I was completely puzzled.
To change an indictable offence to an offence that may be dealt with summarily.
The whole basis of the Bill, and the reason that it has won approval, certainly from most Deputies who are lawyers, is the very long list of scheduled offences which may be tried summarily. It seems to me that most Deputies should take the point of view if that has been the approach to the Bill in general, that the more scheduled offences the Minister can create and the speedier he can arrange for the trial of them, the greater the approval that should be given to that proposal.
I find myself at first sight largely in agreement with most of the sentiments expressed by Deputy Cowan but from the point of view of making this a practical section, I think Deputy Cowan's suggestions would be rather cumbersome from the point of view of dealing with the offences with which this Bill purports to deal. Like Deputy Cowan, I am fundamentally opposed to legislation by Order or regulation but if the Minister wants to schedule any type of offence, which heretofore would have been indictable, I think it would be really asking too much to expect the Minister to come in here with a fully fledged Bill and to go through the full gamut of Parliamentary procedure to secure a simple addition to the scheduled offences. I take it that the object of the section is to catch up with a certain form of crime, which, though indictable, might become so common that the Government would consider it would be best dealt with summarily and best stamped out if brought within the jurisdiction of the District Courts. I think that there is a certain safeguard in paragraph (c) of the sub-section to meet a large part of the objection of Deputy Cowan. I certainly agree with him that it will be only a matter of agreeing or disagreeing with the Minister's proposal, but at least we have the guarantee that whatever Order is made by the Minister must have the approval of both Houses of the Oireachtas. If I saw a more practical way of overcoming the objection I have to legislation by Order, I certainly would oppose the enactment of these two paragraphs in this sub-section but, failing to find an alternative, I am afraid I could not go so far as Deputy Cowan's amendment would suggest. I am afraid we are bound by the terms of the Bill as it stands.
There is one point of view that I should like to put to Deputy Cowan. I think most Deputies do agree with the general principle that any extension of the power of legislation by Order is an extension which is open to very grave objection. I should like however to make the point that the scheduling of offences under this Bill, prepares for a mode of trial in case of persons accused of crimes. As Deputy Cowan has said it saves expense, it saves time and it saves a lot of trouble for persons who desire or intend to plead guilty to offences with which they are charged and provides an easier and more acceptable way to them of having their particular offences purged through the courts. That being so, it does seem to me that if we remove from the Minister the powers proposed in this section, in the interests of the accused person, of adding at some future time to the type of offences that can be so easily tried and put on the Minister the obligation of having to come to this House with a Bill to effect what he is now proposing to effect by Order, the result would be, I am certain, that no Bill would be introduced into this House and certainly, if it were introduced, it would be introduced years after the necessity for its introduction became manifest. Therefore it does seem to me that we would possibly be depriving accused persons of benefits which they can derive from the section as it at present stands. I just want to make that point clear because the power we are giving to the Minister in this section is a power by Order to benefit accused persons.
To change the law.
A power by Order to benefit accused persons by enabling them if they so desire to have their cases tried by a district justice. We are not giving the Minister any power to impose any restriction, any sanction or added penalties on accused persons. If that were the case, it would require considerably more advocacy by the Minister than I think it deserves now. Of course that addition to the power of the Minister does not in any way prevent or interfere with, the mode of trial at present in operation in relation to these offences. It merely provides an additional and possibly a more acceptable way in which the trial can be held. For that reason I do not think that we should be concerned in matters of this kind with abstract notions of theoretical jurisprudence as to the effects of the Order. Discussions like that might be of interest in relation to a matter involving consequences a great deal more serious than are involved in this section.
I am approaching this Bill with a soft heart and I am not looking for any power, nor do I intend that any power should be transferred to my successors, that would be to the disadvantage of an accused person. I should like Deputies to read sub-section (b):—
"The Minister for Justice may by Order declare that any specified offence shall be a scheduled offence."
Of course, if a Minister brings in four or five offences at the same time I admit that there could be then a bit of a difficulty. But, so far as I can read it and so far as I have been advised, every time that he adds one offence to the Schedule, and it is only one offence at a time, he adds that by Order. Then the Order is not applicable until both Houses have approved of it. Surely that is a very great guarantee against any whim of a Minister. If the Minister for Justice proposes to add two, three, four or five offences to the Schedule, then, of course, Parliament would have to take a very serious view of it. But, reading the section as it stands, it means that the Minister may add to the Schedule an offence. I think that that is reasonable and that the House would be very badly advised if they resist that section. I appeal to the good judgment of Deputy Cowan and everybody else to accept the section as it stands. I feel that it is a reasonable section and that there is no danger inherent in it. I hope that there will never be in this country a Minister for Justice who will not be a reasonable Minister.
Having listened to the sentiments expressed in the House, I must say that I am beginning to think that there is no hope for parliamentary government in this country and that it is finished. I think that the fundamental principles of the Constitution and of democracy are being completely and absolutely forgotten. I think this is a matter of the most serious import and no "smart Alec" interjection or criticism is going to prevent me from doing what I consider to be my duty to protect the principles of parliamentary government and of democracy. The Press in this country over a long period have taken very grave exception to Government by Order, and rightly so. But, in no case has there been such an invasion of the law as is proposed here. I am not worried so much about the attempted invasion of the principles of law in this section as I am by the sentiments expressed by Deputies who have attempted to justify that invasion.
That is not their responsibility; it is mine.
The responsibility rests on each and every individual Deputy.
They are all out of step except my Paddy.
I cannot understand why Deputy O'Higgins must make offensive interjections when I am speaking. I am not the first Deputy who has had to object to these offensive interjections. Deputy O'Higgins must know that this is a serious matter on which there can be a point of view different from his own. Why is it that this has never been done before in the last 27 years?
The first good Minister.
Why has this never been done in 27 years of Irish government? I am sure that if Deputy Boland were sitting in the Minister's place and introduced this, Deputy O'Higgins, if he were in the House, would be just as critical as I am of this provision. I want to deal with it as a fundamental issue, not as a Party, political issue. What this Bill proposes to do is to make an amendment of the law that has never been attempted or suggested in a period of 27 years of parliamentary government in this country.
When an Act of Parliament proceeds to declare that certain offences are indictable offences that only can be dealt with by a jury, the Parliament that enacted that law did it for good reasons. We have here a Schedule brought in by the Minister after great examination. As I said at an earlier stage, I was consulted about some of the provisions of this Bill ten years ago and asked to advise, in so far as I could advise, whether Section 3 might be introduced into the Bill. Therefore, I know that this Bill has been under consideration in the Department of Justice or by officials of the Department for ten years. After ten years combing, the Bill comes in here containing the First Schedule which provides that 21 offences which are now indictable offences may be dealt with summarily. On top of that, we are asked to go further and say that the Minister has the right to declare that any other indictable offence is an offence that may be dealt with summarily if he can get the support of both Houses of the Oireachtas.
Let us consider whether or not this is a serious matter. The making of laws to govern the community is a serious matter and that power is contained in the Constitution which sets up two Houses of Parliament. There have been encroachments on the responsibilities of Parliament in the past, but there has been no encroachment that I know of so far as the criminal law is concerned. Are we to allow this encroachment now? Are we going to avail of this opportunity to deprive Parliament of the right of saying, through the ordinary machinery of a Bill, whether a particular offence is to be an indictable offence or whether it can be dealt with summarily? According to Deputy O'Higgins, this is an abstract notion of jurisprudence. I cannot accept that. Deputy Lynch and Deputy O'Higgins have both stated that it is right as a general principle to oppose this process of legislation by Order. But, in what circumstances should it be opposed other than in the matter of altering the criminal law?
Deputy O'Higgins thinks that it is favourable to the accused. What has that got to do with it? That is of some importance. There are two people involved in every criminal offence: the accused person and the State, the people. I am not talking for the accused person now. I am talking for the State—for the people. The State, the people, by our laws say that there are certain offences which can only be dealt with by a judge and a jury. I say that if that is to be changed it can only be changed by the Dáil and the Seanad in accordance with the ordinary methods of dealing with legislation. I am not a Curran or an Isaac Butt, or one of the other great Parliamentarians who have defended rights, but if I had the power and the ability of those persons, I would talk until this day week on this amendment, in opposition to it, and the amendment would only be carried when I had fallen down exhausted in my place in the House.
I am seriously worried that the Minister for Justice should bring in such a section. I am more than worried that Deputies could find cause for acceptance of it. I want to say to Deputy Lynch, when he asks me where is the alternative, that there was a less objectionable way of dealing with it. This Bill, which proposes to schedule at least 21 offences, has to be brought in; it has to go through the ordinary procedure of Parliament, and rightly so, because no previous Minister for Justice took it upon himself to introduce a power that would enable something like this to be done by Order with the approval of Parliament. The alternative to what the Minister proposes is simply to delete the sub-section. I would ask Deputy Lynch to consider that aspect of it seriously. If we had in this country—I regret that we have not—what I may term constitutional watchdogs, even outside the House, that would deal with this proposal in the critical way that it ought to be dealt with, I feel that every Deputy would be ashamed of its passing. I can do no more than express my views in regard to it. I think there is no necessity for the section. The Department of Justice will get, when this Bill is passed, a very substantial alteration of the law. It ought to be satisfied with that substantial alteration of the law, but to go further and provide for something that may happen in the future is an unwise precedent. It is one to which I must again, and as strongly as I can, express my objection.
Despite Deputy Cowan's becoming modesty and his assurance that he is no Isaac Butt, I should like to make it clear to the House on my own behalf that I do not accept Deputy Cowan as an authority as to parliamentary procedure or as to the proper functions of parliamentary government. Deputy Cowan, like myself, is in this House for the first time, and he is expressing——
And he has spent 30 years in studying it.
Well, we saw the result of it. I want to say that I believe Deputy Cowan is taking an altogether wrong view of this provision. I believe that he is making a mountain of trouble where, in fact, none exists at all. I do not know whether, strictly speaking, I would be in order, in dealing with this amendment, in calling the attention of Deputies, and in particular Deputy Cowan's, to the provisions of sub-section (2) of Section 2 of the Bill. One who had not read this Bill might, in listening to Deputy Cowan, be deceived into thinking that there is an invasion of the rights of Deputies and of the rights of democratic government, or an invasion of the law, taking place. In fact, no such thing is happening. All that is proposed in Section 2 of the Bill is to find machinery for making this Bill, that we and most Deputies have welcomed, an even better Bill than it is now should the occasion arise.
Sub-section (2) of Section 2 provides that, in the case of scheduled offences, a person may be tried summarily, provided two conditions exist: (1) that the court is satisfied that the offence with which the accused is charged is a minor matter; and (2) that the accused himself is asked if he has any objection to being so tried and says that he has no objection. Now, if we put aside all the oratory of Deputy Cowan, I think that the ordinary Deputy, and certainly the ordinary person outside, will see that there is nothing more in this provision than to find a commonsense method to simplify matters in the District Court from time to time, should the occasion arise.
Deputy Cowan objected to some interjections which were made to him. I want to have placed on record my objection to the manner in which Deputy Cowan has approached the discussion of this amendment. I object to being lectured by Deputy Cowan as to what my duty is in this particular matter, as to how I will be led by my own conscience in this particular matter. I object, particularly, to Deputy Cowan's suggestion that Deputies on this side of the House are insincere in backing this section of the Bill, and that if we were on the other side of the House we would oppose it. That may be Deputy Cowan's form; it is not mine. Deputy Cowan did claim, and in this, of course, he is right, that the only body which is entitled to change or alter the law is the Oireachtas. That is correct, and that is precisely what the Oireachtas is doing at the moment. Does Deputy Cowan challenge the right of this Dáil and of the Seanad and of the President to amend the law in the way in which we are doing it now?
Yes, one Parliament sold the country in 1800.
Deputy Cowan thinks that he represents this Parliament and that he is entitled to do the schoolmaster to Deputies in this Dáil, to tell them what they ought to do and what they ought not to do. Apparently, he also abrogates to himself the right to say what was in the mind of Parliaments in bygone days. However, as far as I see, this is quite a simple thing, with none of the big issues which Deputy Cowan says are, in fact, involved. There is nothing outrageous being done at all. Simple machinery is being set up which is to be made subject to the authority of this House and of the other House of the Oireachtas. Provided an Order made by the Minister is approved by the two Houses of the Oireachtas, then an indictable offence may be added to the scheduled offences under this measure. If it is added, what has happened? We have not done anything extraordinary at all. We have not precluded the trial of a person charged with that offence; we have not precluded his trial before a judge and jury. All we have done, provided two other conditions are fulfilled, is that we have permitted his trial to take place summarily in the District Court —that is, provided the district justice is satisfied it is a minor offence fit to be tried summarily, and provided the accused has no objection to that form of trial.
The thing cannot be put any simpler than that, and, if Deputy Cowan still feels some big issue is involved, he is entitled to his views. Let me finish up by reminding Deputy Cowan that I and other Deputies on these benches and on the Opposition Benches are also entitled to our views and we will express them.
I do not think Deputy Cowan need be uneasy about watchdogs for the Constitution being here. It is one of the main functions of an Opposition to do that and, when the necessity arises, he can rest perfectly assured if any vital principle is involved that it will be done. In this case the control of the House does not pass. After all, from the practical point of view, if the Minister had to bring in a Bill he would bring in a three-line Bill. It would go through the Second Reading and then, perhaps, no amendment would be possible; if there were an amendment it would be of such a nature that there would be merely a brief discussion.
There would not be really any very great difference between dealing with a resolution in both Houses of the Oireachtas and dealing with a Bill of that nature. From the ordinary practical point of view, however, we might cherish the principle of the control of the Oireachtas over all legislation and as far as possible, though it is very difficult to avoid from time to time giving powers to a Minister to make Orders, provided these Orders have to come before the House they secure the authority of the House. I suggest to Deputy Cowan that it is not a good thing, so far as a big principle is concerned, to press it so as to reduce it to an absurdity.
The House should be grateful to Deputy Cowan for putting down these amendments, thereby reminding us that at all times we must be very slow to give power of legislation by Order. At the same time, I agree with the other speakers, for the reasons they have set out, that this is one occasion where, while we may be slow, we yet may do it with safety, principally for the reason that we have a safeguard in the sub-section that states that the Order must be approved by resolution of both Houses of the Oireachtas.
As Deputy Little has very correctly pointed out, in a matter of this sort there would not be a very great difference between a Bill to add a scheduled offence and an Order to add a scheduled offence. The only difference would be that the Bill would have to go through five stages, whereas the resolution would go through only one stage. Deputy Cowan must remember there are other safeguards. As Deputy O'Higgins very properly put it, he has to remember that even if there is a new offence, or rather, if an offence becomes a newly scheduled offence, it still has to go to the district justice to decide whether it is an offence fit to be tried summarily and it will have to be put to the accused whether he will be satisfied with that form of trial.
Another point is that no member of the Dáil, on the Second Stage, by way of suggestion, or on this Stage by way of notice or amendment, has made any reference to what should be in the Schedule or what should not be in it. No member of the Dáil, with legal knowledge or otherwise, has said that No. 8 should not be there, or that some other particular offence should be there. That shows that this is a bor-der-line question, whether a particular offence should or should not be a scheduled offence. It is a matter on which there would be many different opinions.
In the long run, the Minister for Justice, on the advice of the Attorney-General and other experts, is probably the best person to decide whether or not an offence should be scheduled. We may have a list of 21 offences proposed to be scheduled offences and any member of the Dáil may say: "I object to such an offence being scheduled," or "I suggest such an offence should be a scheduled offence." We cannot visualise, when the Minister may come along with one particular offence, whether there may be very great objection in the Dáil or the Seanad to the scheduling of that offence.
Speaking a second time to this amendment, I do not want to adopt the rôle of defending the Minister or attacking Deputy Cowan. Deputy Cowan rightly pointed out that the interests of the public must be taken into account as well as the interests of the accused. That is only following the example of a famous legal luminary, Lord Justice Goddard, who said that the interests of justice are not simply the interests of the accused. Deputy Cowan is forgetting that we still have a body, in the person of the District Court bench, prepared to protect the interests of the public just as well as are the members of the Circuit Court bench.
On the Second Reading Deputy Cowan went to great pains eulogising the District Court for the way in which it has performed its functions. He stated, in column 537, Volume 118, of the Parliamentary Debates:—
"It is because it has been such a great success and because I am satisfied that the increased powers that are to be given to district justices in this Bill will not be abused, that I am in favour of giving those additional powers to a court to which every citizen in the country can look with absolute confidence that the justices will do their work efficiently, well, honestly and impartially."
If the Minister deems it wise to schedule another type of offence that is not in the Schedule at present, apart from the fact that he must come before the House, Deputy Cowan can always have the consolation that at least in the district justice, in whom he appears to have so much confidence, he will have men exercising a judicial function in no less a capable and efficient and impartial manner as the Circuit Court judge can exercise it at present. I think that at least answers that part of the argument and he need have no fears that the interests of the public will be prejudiced to any extent at the hands of the district justices.
I think it is a well established fact, appreciated not only by members of the legal profession but also by the public, that the citizens of this State are at times involved in criminal prosecutions in which they appear as the principal figure—namely, the defendant. They are involved in considerable expense. Criminal litigation is not the same as civil litigation where the successful party recovers its costs from the other side. Having read this section very carefully, it seems to me that there is in it a very considerable relief of the costs and expenses incident upon a person who has to defend himself, or herself, when proceedings occur against him on the criminal side. I am one of those Deputies who on all occasions when an attempt has been made to legislate by decree have always taken the view that that is inherently bad. But I cannot spell into this particular section the usual disadvantages attaching to legislation by decree. Neither can I spell into this section the real effect usually produced by legislation by decree.
Undoubtedly there are two parties involved—the State and the individual. It seems to me that these two parties are not evenly balanced where legislation is concerned. The individual as an individual is the person of prime importance. The State is a collection of individuals and the State is the mouthpiece of a collection of individuals. The person, or party, whom we have a duty to protect under the Constitution and under the functions delegated to us by our constituents is the person whose rights and liberty must be safeguarded so long as those rights and liberty do not run counter to the rights, privileges and existence of the State. You have here a situation in which in the final analysis the particular person involved has complete control of what will happen because, scheduled or non-scheduled offences, even if he does not avail of this he does not lose his right to trial by jury. He has the definite advantage of going out from court without a stain upon his character secure in the knowledge that he can defend himself at much less expense than if the section were not there.
I think, as has been pointed out by Deputy Little, that it is a fact that, if we did bring in a Bill, it would probably get as quick a passage through both Houses as would a resolution. There is, however, a point that has so far been missed in this debate and I think it is an even greater safeguard than would be the passing of a Bill. If Deputy Captain Cowan will think it over he will probably remember that the Seanad can only hold up a Bill for a certain specified period and it is quite possible for this House to pass a Bill, in spite of the Seanad, after a due period of time has elapsed; whereas what is proposed here by the Minister is that there must be a positive resolution passed by both Houses to permit him to add another offence to the schedule. I think from that point of view there is a greater safeguard for the accused person, apart altogether from the other safeguards contained in the remaining portion of sub-section (2) of this section. I put it to Deputy Captain Cowan that the fact that there must be a positive resolution of approval by both Houses is a greater safeguard in view of the fact that this House can carry a Bill in spite of the Seanad. I think it well to make that point.
Deputy Captain Cowan's remarks here this evening are very much akin to Chesterton's "Last and lingering troubadour". The Deputy has taken down from the wall a certain amount of shining armour and comes into the House all ready for combat to find himself, like Don Quixote, tilting at windmills. I suggest to the Deputy that, if he wants to fight for a principle or expatiate on the rights and privileges of the people, he should at least have something concrete to put before us. The particular measure that he criticises here is a measure designed to safeguard people accused of certain offences from the unfair consequences of charges brought against them—unfair consequences in the way of delay and expense. This measure is designed to give them the benefit of a practical procedure which most Deputies think they ought to have. If Deputy Captain Cowan wants to criticise legislation by Order, or anything of that nature, he should at least put before us some concrete examples of interference with the rights of ordinary people or with the privileges we ordinarily enjoy. There is no such interference here with such rights or privileges. The rights of an accused person are in no way diminished. They are, if anything, increased. It baffles me why we should have been subjected to this particular diatribe this evening. I do not know what the alternative may be. It is very easy to talk about abstract principles while forgetting the ordinary concrete facts of a particular case.
As both Deputy Little and Deputy Lynch have pointed out, there is no difference good, bad or indifferent, irrespective of whether we are considering a Bill as opposed to a resolution under this section to schedule a particular offence, in the manner in which that will be done. In addition, Deputy Boland has pointed out very clearly that the actual procedure laid down in this section of making the exercise of this power conditional upon a resolution passed by both Houses of the Oireachtas is a protection greater than would be provided if that were done by ordinary legislation. So far as I can see, there is no release under this Bill of any of the powers of this Parliament. The Bill merely designates a particular type of machinery under Section 2 by means of which the law may be changed. We give the Minister no power to do anything except what he is empowered to do under this Bill and under this section. At any time this Parliament can revoke that power—it can change, alter or amend it at any time and in any way it wishes.
Deputy Cowan has considerable experience of practice in the courts. He has considerable experience of practice in both the civil and the criminal courts. I wonder if he does not realise the terrible threats to the rights of the individual that are created every day if the road traffic authority or some other authority in the country, by bye-laws, creates offences—offences for which persons can be brought before the courts and punished. The authority and power to create those offences is contained in various statutes passed over many years back by this and other Parliaments. I do not think anybody could suggest that there has been any grave interference with the rights of the people.
The people know at all times that in this Parliament there is the power which will be exercised to redress any wrong or any harm that might be done to them by any undue exercise of these powers. The power proposed to be given to the Minister under this section can only be exercised in accordance with the Act, if it becomes an Act. It may be revoked, altered, amended or changed at any time by this House. Therefore, I cannot see why there should be all this talk about interference.
I should like to refer to some of the observations that have been made in regard to this matter. Let me say, at the beginning, that I felt I was making what I considered to be a reasonable approach to the Bill. I have been rather surprised at what I might term a bad-mannered personal onslaught that was made on me by two Deputies of the House. If they want to do that sort of thing they are perfectly at liberty to do so.
The lawyers do not agree with one another.
This is difficult enough as it is, Deputy O'Leary.
They never strike each other, anyway.
It is not a question of lawyers at all, as far as this is concerned. It is a matter of principle and it is either good principle or bad on principle. It is either good or bad on its merits and not because of some personal observations that may be made about myself. That is of no interest to anybody. However, it is of interest to the people and it is of interest to this House how we deal with this matter, which I consider fundamental. When we have a procedure laid down by which Acts of Parliament must go through that procedure is, in other words, a kind of wall that is built and you can endanger that wall by allowing a small trickle to get through. It is like a dyke. You can endanger the structure by allowing the smallest trickle to get through. I say that this is the trickle—the first hole that has been made in this particular dyke. I challenge any Deputy in the House to point out, in any Act of Parliament passed here in 27 years, where the Minister has got power by Order to change the quality, if I may say so, of an offence. The offence is laid down——
The quality is not changed here.
In accordance with the law, certain offences are indictable and may be dealt with only by a judge sitting with a jury. To those offences are attached, on conviction, substantial sentences of two years' imprisonment or three years' penal servitude or more. The law says that this is a serious offence which merits a serious punishment and that a court of trial may impose a sentence up to two years' imprisonment, or one of penal servitude.
This amendment proposes to give the Minister power to make an Order, which may have the approval of a simple majority in each House, to change the quality of that offence from being punishable by penal servitude to being triable under certain circumstances by the District Court and punished with the maximum penalty of 12 months imprisonment. That is what I consider to be a fundamental point in regard to the matter. If we can change the law in regard to that, by giving the Minister power to make the Order and to have it dealt with here by simple resolution, we are opening a very serious hole in the protective dyke and, gradually, Ministers will be tempted to come in here and, on the same reasoning, to get the hole enlarged, so that the parliamentary procedure that exists at the moment will disappear altogether. That is the principle that I think is dangerous. I think it is worth defending the position as it is and that a person who decides to defend that position should not be the subject of the personal attacks we had here this evening. I do not know what advantage comes from those personal attacks.
Deputy Lynch and, to some extent, Deputy Byrne, referred to the protection that was there when the case came before the district justice. Deputy Sir John Esmonde was concerned about the heavy expenses involved in trials at the moment. This Bill has for one of its objects the speeding up of the machinery of the administration of justice and the cheapening of it. To that extent, it was welcome on the Second Reading. For that purpose we set out here 21 offences which may be dealt with summarily in certain circumstances. Deputy Byrne has said that we have accepted the Minister's list. I can assure Deputy Byrne that that list has not been accepted without examination—at least, as far as I am concerned. After close examination I consider that these offences could properly, in the circumstances set out in the Bill, be dealt with summarily and to that extent I was prepared to give my approval to that schedule and to the section that creates it. That is a very different story from the addition of another one and that is the point that is at issue. I am perfectly certain that the Minister appreciates the view I am expressing and the attitude I am adopting in regard to this. It is no protection, as far as general principle is concerned, to say that you have great faith in the district justices and that they will exercise their judicial functions correctly. That is not the issue that is involved.
The issue involved is whether or not a particular offence which the law now says should be dealt with by a judge who has power to impose a sentence of imprisonment or penal servitude up to two years should be taken away in certain circumstances from that judge and dealt with summarily and a sentence of imprisonment not exceeding 12 months passed. This can be of benefit to the accused person. The Minister brings in an Order which gets approval and generally a Minister will not bring in an Order if he is not going to get approval. That is the strangest thing about it. No Minister will make an Order unless he knows that his whips are strong enough to ensure that that Order will be passed both by the Dáil and the Seanad. If he thinks he is going to be defeated he will not introduce it, so if the Minister has a majority he will simply say: "I propose to schedule a particular offence."
I think Deputy O'Higgins interjected at one stage that probably the same thing could be done under an Act. Probably it could, but it has all stages to go through. It is capable of being discussed in its general principle on the Second Stage and the Minister may find that he himself is not so favourable to it as he was when he introduced it. We have examples of Bills to which after their discussion on the Second Stage amendments have been put down by Ministers. In the case of one Bill which is before the Dáil at the moment it is with difficulty one can recognise it as the Bill which was discussed on its Second Stage, because of the Ministerial amendments that have been put down to it and there are more to come. I think that as a Dáil we should insist on retaining the power to change the laws only in accordance with an Act of Parliament introduced and passed in the ordinary way.
There is no analogy between what is proposed here and an offence created under the Road Traffic Act or any other Act. Under the Road Traffic Act power is given to make certain regulations and the Act provides that any breach of these regulations is an offence that can be dealt with summarily and that certain penalties can be imposed. That is something passed by Parliament and there is no analogy at all between what is done there and what is proposed in this section which I ask the Dáil to delete.
This Bill was before the Seanad and was discussed there. I am not altogether sure if they adverted to this section or discussed it or whether any amendment was moved to it, but I did hear some criticism here of the Seanad with regard to this Bill as finally passed by them and I did expect that the critic would have given us the benefit of his assistance by suggesting by amendment where the Seanad went wrong. Perhaps this is the section he had in mind. I would press the Minister strongly to agree to the deletion of the paragraph which I have proposed to delete. He said, speaking earlier, that every offence has been examined by his Department and that as far as he, his Department and his advisors can see, there is no likelihood of any offence being scheduled by Ministerial Order in the foreseeable future. That being so, to put in this power now is unnecessary and once there is an objection to its insertion I think the Minister should withdraw it. If this were a power that might be used frequently one could understand this request to the Dáil to prevent Bills coming in week after week and year after year, but as far as anybody can see in the foreseeable future it is unlikely that any offence will be scheduled under Order. In those circumstances I think it unwise of the Minister to insist on it and I think it would be unwise and very foolish of the House to agree to it.
The First Schedule sets out exactly what we think at the moment are the offences that might be dealt with summarily and all this section gives is authority, with the full approval of the Oireachtas, to add one more to it or perhaps two. Deputy Cowan admits that the reason he is letting the 21 offences in the Schedule pass is that he has examined them very carefully and he thinks that they are something that should be treated summarily. Deputy Cowan has put very great effort into a very bad cause and I think the effort was deserving of a better one. He has applied himself, apparently diligently, to the section but I can assure him that if he reads sub-section (3) (c) in the section he will see that there is ample protection, that no Minister dare come in here with something unorthodox. Even though the Minister brought in a Bill, as the Deputy wants me to do, the Bill could pass. As Deputy Boland has properly pointed out, the greatest safeguard you have is that both Houses of the Oireachtas must approve of this. If one of the Houses refuses, the Order falls to the ground. I felt that Deputy Boland was giving away too much, when he reminded the House and Deputy Cowan of that fact.
I had to defend my supporters, of course.
This is a very simple method of getting over a difficulty. If a Minister came in with four or five additions to the Schedule, it would be a very serious matter and I do not see how he could get it through. After 25 years' experience of government, 21 offences are now put into the Schedule. It may take 60 years more to get another one into it. At the same time, if some situation develops which could be regarded as serious—and I am not making little of these offences; they are all very serious and indictable—whoever will be Minister for Justice will apply himself as diligently to that problem as I have done now. Therefore, I think Deputy Cowan should not press the amendment.
What does the Minister say is the effect of sub-section (1) (b) of Section 2? Earlier on, he gave us the impression that it meant that he could bring in only one offence at a time and not more. If he comes in with three or four offences, he will need to have three or four Orders?
Yes, in practice.
The Minister has 21 scheduled offences. He must have given some consideration to other offences that are now borderline ones. He does not think it advisable to introduce them now, but there may be a change in a year or more and they may be looked on in a different light, as ones which could be dealt with summarily. Could the Minister give any idea of the possible offences which might come within the scope of this Order?
The Minister could not do that.
If he cannot say that, he is asking the Dáil to give him powers to deal with something that may arise or may never arise.
And the Deputy wants me, if it does arise, to bring it in through a Bill. I say the best thing is to bring it in by an Order and let both Houses pass it.
Just as this is a Bill going through, I am quite sure that from the point of view of the Department of Justice it would be much simpler if this were an Order coming before the House for approval. At least, then I would not have the facility of objecting the way I am objecting now.
Of course, the Deputy would.
No. I would have the right to get up within very strict rules on it and speak only once.
Would that not be better—if the Deputy spoke once, and spoke well?
Of course, Deputy Boland realises that the Committee Stage of a Bill is a different story.
But there is other stuff in this.
I cannot accept the amendment.
If that is the position, the Minister should not insist on this. We have been pressing the Minister for a long time—and his predecessor was pressed—to codify the law, to examine it and bring it up to date. The criminal law does require examination. That task may be in hands at the moment of examining and inquiring into it, to bring it up to date. I hope it is. If that is so, the Minister should leave this whole question of scheduling new offences until that codification or revision has been completed. I press the Minister to accept the amendment and delete this power.
That governs amendments Nos. 2 and 3.
I move amendment No. 4:
In sub-section (2), paragraph (a), subparagraph (ii), to delete all words after the word "accused" in line 30 to the end of the paragraph and to substitute therefor the words "having been informed of his right to trial by jury consents to be dealt with summarily".
I think it is better to have a positive provision like that, putting the onus on the court to inform the accused of his right, rather than wait for him to object.
Amendment No. 5 may be discussed with this, if Deputy Cowan agrees.
I would like to express complete agreement with what Deputy Boland has said. Since we are legislating for a new procedure in relation to the trial of criminal offences, we should be extremely careful that the legislative provisions contain all the rights which an accused person is entitled to expect. The provision which Deputy Boland objects to in the Bill is contained in subparagraph (ii). It is provided there that the District Court may try summarily a person charged with the scheduled offence if it is a minor offence and if the accused, on being asked by the court, does not object to being so tried.
I agree with Deputy Boland that, in a great number of cases, the accused person may not be professionally represented, may not be aware of his rights under the Constitution and under the general criminal code, and may not know that, if he does not like to be tried by a district justice, he is entitled to go before a jury of his fellows and test his guilt or innocence there. He may not know anything about his rights. I am quite certain that, as a matter of practice, no district justice would merely ask an accused person whether he objected to being tried summarily or not—I am sure that most district justices would inform him as to what his rights are—but that should not prevent us from putting that particular obligation as a statutory duty on district justices in exercising this entirely new jurisdiction. I think that the sub-section, as it stands at present in the Bill, is a sloppy sub-section. It was probably intended to provide that an accused person should be informed of his rights and should, with full knowledge, make the choice. After all, no proper choice can be made unless the accused has a full knowledge of his rights and of what he is entitled to expect. The section as it stands does not provide for that. It merely provides for the question being asked of a poor, possibly trembling, accused who is brought into the dock and asked the question by a justice, with no associated obligation on the justice or the court to explain his rights.
I, therefore, urge the Minister to accept the amendment proposed by Deputy Boland or, indeed, the amendment proposed by Deputy Cowan.
The amendment in my name and the amendment in Deputy Boland's name are, in fact, the same amendment. There is no difference. Both of them contain the point expressed by Deputy O'Higgins. In actual practice, district justices tell the accused person of his rights. That is my experience.
It is by rule.
They must do it and, in fact, they do it. The clause "does not object to be so tried" left the onus of making the objection on the defendant. A person is very often brought before the District Court shortly after arrest. He may be in custody for a period. He may be terrified. If the district justice explains to him that he has a right to be tried by a judge and jury but that, if he does not want that, he can consent to be tried there, it would be some help. In view of what has been said by Deputy Boland and Deputy O'Higgins —and their view, I am quite sure, will be generally supported—I would ask the Minister to accept either of the amendments.
I hope the Minister will accept the amendment, as indicated more or less by him on the Second Reading, when both Deputy Boland and myself raised this point. I feel that if you enshrine it in a statute, whether you accept Deputy Cowan's or Deputy Boland's amendment, you are putting it, as I tried to indicate, more or less on a par with the caution that the policeman is compelled to give to a person before he takes his statement. I do not think any of us would want to be taken as impeaching the perfect procedure at present adopted by the District Court, but we feel that a concrete positive direction in a statute is a safeguard to which the accused person is entitled. Accordingly, I would urge on the Minister, as I did in connection with Deputy Boland's contention on the Second Reading, that there should be a positive section in the Bill directing that the courts should convey to the accused person in a positive way what his rights are rather than leave it as it stands at present. Even though the District Court Rules may cover it, it would be better that it should be crystallised in a positive section in a statute of this kind in the manner suggested by Deputy Boland or Deputy Cowan in the amendments.
I think that this or something similar should appear in the section for some of the various reasons that have been already advanced and for other reasons. I quite appreciate the fact that the district justice, in acting according to the rules, must inform the prisoner of his rights. One of the pieces of information which he must give to the prisoner is that he is entitled to be tried by jury. What I have to say now goes back somewhat to some of the arguments that were advanced on the amendment which we have just discussed. It arises in this way. I hold the view, and urge that view here, that the putting into the Schedule of certain offences, at present unspecified, does not come under the category of legislation by Order or by decree because, as I understand, legislation by Order or by decree involves some property or other right being taken away from the individual otherwise than by Act of Parliament and the control of that property or right being vested in the Executive. That does not happen under this section as it stands at the moment, for the simple reason that the final court of appeal in respect of anything that can be done under this section of a novel character lies with the accused and with the accused alone. If he says "no," the section does not apply to him. Therefore, in so far as this section legislates in any way for the doing away of any right, property or otherwise which any citizen of this State possesses at the moment, the right to veto that resides in the accused at the appropriate moment when he is brought up for trial. But, I do say that it should be subject to this qualification, that if we leave this sub-section in an ambiguous form it could be urged by way of argument—I do not suggest that it could happen—that at some future time, under the laws that prevail, the District Court Rules might be amended and, therefore, you would not have enshrined as part of our permanent legislation the veto which now resides in the accused under this section and which, in my opinion, takes the section entirely out of that type of legislation that is referred to as legislation by Order of decree.
This section is designed to give the accused very great protection. There is always somebody else involved in the case besides the accused, namely, the injured party, whom the State is representing. Under the District Court Rules, section 59, it is clear that the justice must inform the accused, in a case that the justice may decide is a case that he could deal with summarily, that he has the right to have the case decided by a judge and jury.
I am surprised at Deputy Cowan's approach to this matter. He had some experience in the Army and he knows very well that there was never a fellow yet returned before the commanding officer who would not take the commanding officer's judgement rather than a courtmartial, because he thought he would get a fairer deal. The reason for that was that when he went to courtmartial there was huge expense and a whole lot of things he had to do and summary jurisdiction had some merit in it. It is possible that an accused person if he had not a lawyer to advise him might not know about his right to trial by judge and jury, but if the justice sees that he is a person of poor intelligence or has not been advised, I am sure that he must inform him that he has that right. I do not propose to resist this amendment if it is pressed.
It will be pressed, then.
I do not think the Deputy should press it. I think this is a better way than his and that the injured party is given some protection, as well as the accused.
What is the difference between the two?
If, for instance, a policeman goes to investigate a case, the law is very specific about his giving a warning to the person whom he is interrogating. While I am anxious to protect the accused in every way, I do not, at the same time, want to weigh things too much in his favour, and we are going a long distance. However, I will have the matter further examined. The whole weight of opinion here appears to be—and, goodness knows, I am soft-hearted enough—that the poor accused must get every benefit.
He is innocent until he is found guilty.
The point is that if everybody got a telegram saying: "You are found out", there would be very few people left in the country. However, I will undertake to have the matter examined for Report Stage and, if necessary, bring in an amendment.
I move amendment No. 6:—
In sub-section (3), paragraph (a), line 12, to delete the words "either remit the case to the District Court or".
This is a simple amendment. The procedure set out in the Bill is that, in the case of an accused person in respect of whom depositions may have been taken by the District Court, if the District Court is informed at any stage of the proceedings that the accused desires to plead guilty, that accused person can there and then be sent forward for trial without completing the taking of depositions. That, as was said generally on Second Stage, is very welcome and an improvement on present procedure. When the case comes for trial in the Circuit Court, however, the accused person may change his mind and may decide not to plead guilty, whereupon the Circuit Court can do either of two things—remit the case to the District Court or enter a plea of not guilty and fix a date for trial. My amendment proposes to delete the first of these.
Why should the Deputy object to that?
If he remits it to the District Court, what happens?
The accused gets the benefit of summary jurisdiction.
No; that is not my trouble. I want to know what does happen. If he remits it to the District Court, what is the purpose of doing so? Is it to have him dealt with summarily or for the purpose of having taken the depositions which should have been taken?
To have the depositions taken.
That is what I thought.
The Minister has not said anything yet, though.
There is the further procedure, that if at his trial it is proposed to call witnesses who have not made depositions, a statement of the evidence to be given can be furnished. I do not see any useful purpose in granting the Circuit Court power to remit the case to the District Court, because what we are trying to do here is to speed up and to cheapen the machinery, and the Circuit Court will have available a summary of the evidence. Perhaps copies of the statements or relevant portions of the statements will be made available and the accused can be served with these. If we give the circuit judge the power, where the accused changes his plea and pleads not guilty, to return the case to the District Court, there will be the additional trouble of taking depositions and returning for trial again, with all the hold-up involved, and the very type of thing we are trying to avoid by this Bill will continue. That is why I suggest that the power to remit to the District Court might go on and that, where an accused person indicates that he intends to plead guilty and then changes his plea in the Circuit Court, the circuit judge should enter a plea of not guilty and fix a date for trial in the ordinary way.
The objection I have to the amendment and it is a very fundamental objection, is that there is a very great difference between the defence in a criminal charge being given a set of depositions, that is, evidence taken on oath before the district justice, the sworn testimony of the witnesses, and being served with a statement of the evidence proposed to be given. I think Deputy Cowan will agree that it would be his experience that depositions, being records of the evidence and statements made on oath are very much more reliable and accurate as a synopsis of the evidence to be given against an accused than a mere statement not taken on oath.
There is a great deal of rather silly talk in this country about perjury, but, to the credit of our people be it said that, where you have a précis of evidence as in a deposition taken on oath, you very seldom find a witness departing from it, where you will find a witness departing from a statement not taken on oath. Very often, the witness in making a statement not on oath gives a view which he thinks the person taking the statement would like him to give—something favourable to the particular cause in respect of which he is making the statement. But where you have the preliminary evidence taken on oath, in 99 cases out of 100 it is faithfully reproduced in the verbal evidence given subsequently, and it is to the advantage of an accused person that he should have presented to him the evidence to be given against him and not merely a statement of that evidence—the evidence taken on oath before the district justice.
If Deputy Cowan's amendment were accepted, does the section as it stands enable the accused person, whose case may be remitted to the District Court, to obtain the benefit of summary trial after it has been remitted to the District Court, assuming that it is a scheduled offence?
Section 3 of the Bill provides that where an accused person is prepared to plead guilty in the District Court to an indictable offence, whether the offence is of a minor nature or not, the court may, if the Attorney-General does not object, deal with the case summarily but the court must have complete discretion to send the case forward for trial, with such depositions if any as may have been taken. When the accused person is arraigned before the Circuit Court he may withdraw his plea of guilty. In other words he wants to have the best of both worlds. Then the trial judge may do either of two things—remit the case back to the District Court to have depositions taken or else enter a plea of not guilty and fix another date for the trial.
Will the Minister say where that is set out? I cannot find any provision in which it is stated that he sends it back to have depositions taken.
It goes back to the District Court and the depositions are taken.
There is no power to take depositions then.
There is, of course.
Not under the sub-section.
I am satisfied the power is there. He is back where he was at first.
This is a case of a prisoner who has been returned for trial. I admit the point has only struck me now. Perhaps the Minister would like to consider it between this and the Report Stage because it seems to me there is a gap there.
There is not.
There may not be, but it seems to be so.
I think the introduction of a few words on the Report Stage would solve that.
Paragraph (b) of sub-section (3) begins with the statement: "If at the trial." Which trial would that refer to? It may be the trial in the District Court or the trial the date of which is to be fixed in the Circuit Court.
When I put down the amendment, I must say that I felt here was a case where the accused had signed a plea of guilty, the Attorney-General had objected to the case being dealt with in the District Court, and the man was sent forward to the Circuit Court. The general intention was that when he got to the Circuit Court he could plead either guilty or not guilty. If he did plead not guilty, there is a provision in the section whereby he could be tried by that court on getting a statement of the evidence of persons who had not already made depositions. Of course, Deputy Sir John Esmonde was quite correct as to the value of depositions on oath but, nevertheless, this section proposes in certain cases to do away with depositions and to serve the accused with a statement of the evidence which it is proposed to give. It says: "If at the trial it is proposed to call as witnesses for the prosecution persons who have not made depositions, the Attorney-General shall, not less than seven days before the trial, cause to be served on the accused a notice in writing specifying those persons and giving a statement of the evidence that is to be given by each of them." I understood that the real purpose of that was to deal with witnesses who may not have been available in the District Court proceedings. In case the accused person changes his plea of guilty when he comes to the Circuit Court, it is proposed to enable the trial judge to enter a plea of not guilty and to fix a date for the trial there. In these circumstances paragraph (3) (b) would be put into operation and the Attorney-General would serve on the accused, if it were proposed to call as witnesses for the prosecution persons who had not made depositions, a notice specifying those persons and giving a statement of the evidence to be given by each of them. I think all that matter was discussed in the Seanad and the Minister met certain objections in the Seanad by agreeing to a provision that a full statement of such evidence was to be supplied to the accused person. Previously it was only a summary that was to be given. What does strike me is that once he is returned for trial by the District Court on his signing a plea of guilty, there is no machinery set out anywhere whereby he can be sent back to the District Court to be dealt with summarily and to have depositions taken.
You give the trial judge the right to remit the case.
The section says that the trial judge may remit, but there is nothing to say what he remits it for. There is nothing to give the District Court jurisdiction to deal with the case after it has been remitted. When it goes back to the District Court, does it go back for the district justice to deal with it summarily or to have depositions taken?
It may be dealt with summarily.
You are back where you started.
I do think that is a point that should be looked into so that the machinery may be specified.
I shall look into it.
In that case I shall withdraw my amendment.
Possibly the Minister could clarify that matter on the Report Stage by adding the words to the paragraph: "to remit for the completion of depositions or to be dealt with summarily."
If the Minister is looking into the matter, he might also reconsider the draft of paragraph (b). It is possible that the first four words: "If at the trial," might be taken as referring to the trial when he is remitted to the District Court. I think that is contrary to the intention. It obviously refers to the trial for which the Circuit Court judge may fix a date.
I think we are going to get ourselves into a terrible mess. This section refers to indictable offences, except certain offences which are excluded. As the particular sub-section we are discussing now stands, if the person pleads not guilty and, if his case is remitted to the District Court, the only function of the district justice would be to deal summarily with the case. He does not appear to be given any power to take depositions. He has no power to deal summarily with any offence that is not either within the powers he has at present or one of the offences in the Schedule or contemplated to be in the Schedule. The result will be that the accused will find himself back in the District Court on an indictable offence in respect to which the district justice has no jurisdiction. If it is an indictable offence to which the Schedule does not apply, the district justice will not know what to do with him. That seems to be the position at the moment under the section. The only way in which the trial could go forward in the case of an indictable offence to which the Schedule does not apply would be, if the trial judge elected to keep the case in the particular court, either the Circuit Court or the Central Criminal Court, for the Attorney-General, within the seven days specified, to serve a statement of the evidence to be given upon him. So far as remitting the case to the District Court is concerned, the district justice would have no jurisdiction to do anything if it were an indictable offence outside the Schedule.
Is amendment No. 6 withdrawn?
It is, but I should like to say to the Minister that if these words, "either remit the case to the District Court or" were deleted, the difficulty would disappear. I shall withdraw the amendment, but would press the Minister to consider the acceptance of it on another stage when I think the whole difficulty will be solved.
There is a small clerical error in the last line of paragraph (b). The word "be" is left out.
I move amendment No. 7:—
Before Section 4 to insert a new section as follows:—
Where an accused person is returned for trial by the District Court after the preliminary investigation of an indictable offence the Attorney-General shall, not less than seven days before the trial, cause to be served on the accused or on his solicitor, a copy each of the indictment, of the depositions taken on the preliminary investigation and of all documents and exhibits handed into the court at the preliminary investigation and referred to in the depositions.
I indicated to the Minister that I had something like this in mind. The Minister held the view, and was so advised, that what I propose to achieve by this amendment is in fact in operation. The amendment proposes to insert a new section to provide, when an accused person is returned for trial and depositions have been taken, that seven days before his trial a copy of the indictment and of the depositions will be served upon him. I take it the Minister will accept the amendment. Under Section 3 it is provided that, where the accused person pleads guilty and is sent forward for trial and changes his plea and the circuit judge decides to try him, he will be served with a copy of the evidence to be given. There is no such provision in regard to depositions.
In some Circuit Court areas where an accused has been returned for trial there is a rule or custom that a copy of the depositions will be made available for him. In Dublin there is no such custom but, through the kindness and co-operation of the Governor of Mountjoy and the county registrar in the case of a person who is in Mount-joy and who applies for a copy of the depositions, they will be lent to him for a period to examine. But if he is on bail, he must pay for the depositions, and that is a payment which quite a number of accused persons have not been able to meet. The result is that defending solicitors have on many occasions on the morning of the trial to rush and get what we shall call a pre-look at the depositions either from the country registrar or the State counsel. Both the registrar and the State counsel are anxious to facilitate the representatives of the accused in these matters. But the Minister was of opinion, and was so advised, that these depositions are readily and easily available. I want to put the thing, however, beyond all doubt.
The Minister mentioned courtmartial. In courtmartial cases the person is served with a summary of the evidence which is in fact a copy of the evidence taken on oath and signed by each witness. When we had the Military Court or the Special Criminal Court in Collins Barracks the same procedure applied. The accused person was served with a copy of the evidence against him. It is now provided in this Bill that, in the circumstances set out in Section 3, where he changes his plea, he will be served with a statement of the evidence in writing. I propose to complete the matter by providing that, where a person has been returned for trial, he shall be served seven days before his trial with a copy of the indictment. Undoubtedly, he is entitled to have a copy of the indictment, a copy of the depositions and copies of any documents that are exhibited. I can see with regard to the word "exhibits" that that might be difficult and I would be quite prepared to meet the Minister on that.
To amend your amendment.
If the Minister thinks that the supplying of copies of exhibits may be too difficult, at least the accused should be served with a copy of the depositions.
A schedule of the exhibits.
And a schedule of the exhibits. I am prepared to accept that. There are exhibits copies of which appear on the depositions, but there are other exhibits which cannot, by their nature, appear because they may be ledgers or very complicated or difficult exhibits. But I think that, as a matter of justice, the accused ought to know seven days before his trial the charge against him, because the charge on which he will be tried in the Circuit Court may be a different one from that in which he is returned for trial for the District Court and it is right that we ought to make provision that he will be served with a copy of the indictment and a copy of the summary.
I move to report progress.