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Dáil Éireann debate -
Wednesday, 14 Dec 1949

Vol. 118 No. 15

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

Debate resumed on the following amendment, in the name of Deputy Cowan:—
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.

When progress was reported, I was speaking to this amendment. I take it that the Minister has fully considered the points that I made then. I stated that the amendment proposes to ensure that, where a person is sent forward for trial after a preliminary investigation on an indictable offence, he shall be served with a copy of the indictment and of the depositions. I drew the attention of the House to the fact that, even under this Bill where it is proposed to try a person who has been sent forward for trial without the depositions being taken, copies of the statements to be used in his trial would be served on him. As far as this is concerned, I want to make the procedure uniform.

I have had the personal experience, over a number of years, that the payment, which has been the practice in Dublin at any rate, for depositions has been a grave hardship on accused persons. Some of these depositions are costly. No later than yesterday I saw depositions which cost £2 4s. The depositions have to be typed in any event. There is a copy available for a judge and a copy available for counsel for the State. I think it is only reasonable that a copy, which would be no more than a carbon copy of the depositions, should be made available for the accused. Accordingly, I have moved this amendment.

I should like to say a word in support of the amendment. Its adoption, as far as I can see, would not add to, or increase, the burden on the Attorney-General or the State Solicitor's Office. As Deputy Cowan has said, the depositions are typed in any event. The provision of a copy would, therefore, in no way increase the work of the office. There is, of course, the question involved that these depositions should be given without charge to the accused. I do not think it could be said that the present charges are something which the State or the Attorney-General could not afford to lose, although in particular cases the charges impose a hardship on a person accused of an offence. I suggest to the Minister that the amendment is a reasonable one, and that he should accept the principle of it. There is just one matter I would suggest to Deputy Cowan. It is that it might be better to remove from the amendment the words which refer to the provision of copies of exhibits. I take it that these would be merely documentary exhibits.

Yes. As a matter of fact, on the last occasion I agreed on the suggestion of Deputy Lynch, that probably a schedule of exhibits would be sufficient.

As I informed Deputy Cowan and other Deputies, it is true to say that this system has been partially accepted: that is, copies of depositions which are required are given free in a number of cases, that is where the case is made that the accused is unable to pay. If the person concerned is a prisoner in Mountjoy, or in any prison, the Government presents him with a copy of the depositions. It is, however, a serious thing to ask that this proposal should be accepted broadly. As I said already, the cost is very small—1½d. per folio of 90 words. Even though the cost does come to the sum of £2 4s. 0d., as stated by Deputy Cowan, I think that in cases where the person is wealthy and is able to employ a solicitor and counsel for his defence, the proposal in the amendment is asking a bit too much for such people. Everyone knows that there are cases concerning criminal offences in which a good deal of money may have passed or in which a good deal of money is available. The proposal here asks that the State should have copies made available for such people.

I shall have the matter examined again. I do not think the Deputy should press the amendment. If there was the question of free legal aid, which is another day's work, this matter would arise, but I do not think it arises properly at this particular time. I think that, on the whole, solicitors and others find that it is easy enough to get copies of depositions. The argument has been made that this proposal would entail no additional cost and that these copies have to be typed anyway. Well, the bottom copy might be rather dismal-looking. If we were to discharge our obligations by supplying it, Deputies might take a very poor view of it. When you pay for it, or if you are entitled to get it for payment, we must give you a copy that is legible, one that can be easily read. If we do not do so, you would have another case to make, and I think it would be quite a proper thing for you to say: "That is a copy that cannot be read."

While I have considerable sympathy with the amendment, I think the Deputy should not press it in the circumstances. Whenever this other question arises, the matter could then be raised more suitably than upon this particular section.

The Minister has given us the impression that the case hardly ever arises when an accused person, if he is in bad circumstances, will not get a copy. I have had experience of the administration of this branch of the law, both from the inside and the outside, having practised and having spent a period in the Circuit Court office. I do not remember any accused person getting a copy of the depositions free of charge. The Minister says it costs only 1½d. per folio of 90 words. I suggest that is a sufficient justification for the Minister giving way on this amendment. If that is all it costs, the State will be better able to afford the loss than the accused person, who may be very poor. As Deputy Cowan pointed out, the cost to the accused person could be £2 4s., and sometimes it might be even higher. Anybody with experience of office work will agree that six legible typescript copies can be run off at the one time. Take one for the judge and one for the State—which must necessarily be supplied free of charge—and there are four copies left. It often happens that if a copy is not bought by the defence, the four copies will be left in the hands of the Registrar and he may eventually dispose of them in the wastepaper basket.

The Minister said that it sometimes happens that big sums are involved in criminal offences. As the Minister or any practising lawyer knows, the vast majority of people who come before the criminal courts are people who are driven, through poor circumstances, to steal or commit some other crime. We often hear the statement that crime does not pay. It does not pay the person who commits the crime, and it seldom pays the solicitor or counsel who defends the accused person, because usually the accused are not able to pay for their defence. It will be agreed, I think, that in seven cases out of ten lawyers find themselves inadequately paid for their services or, as happens in many cases, they are not paid at all.

I suggest that Deputy Cowan's amendment is reasonable. I suggest that the State will suffer only to a very limited extent if it allows free copies of the depositions to the persons concerned.

I am grateful to Deputy O'Higgins and Deputy Lynch for their support, and I am also grateful to the Minister for the way in which he has approached this matter. I am glad that Deputy Lynch has been able to speak from his experience of the inside of the Circuit Court office as well as from the outside as a practising barrister. Over a number of years' experience in the City of Dublin, I have never known a case of depositions being made available free to the accused person. Since this matter was raised by means of questions in the House, I understand that in certain circumstances in the Dublin Circuit Courts, free copies will be made available. That is, I take it, as a result of some communication from the Minister to the Circuit Courts.

What Deputy Lynch says is perfectly correct. When the depositions are sent forward from the District Court, the Circuit Court office prepares copies on the assumption that the defence will need a copy; in other words, they prepare copies for the defence and they are available if required. There is no such thing that I know of as requisitioning a copy of the depositions and having to wait until it is typed. The copies are made as a matter of course; are available from the time the depositions are sent to State counsel who prepares the indictment, and they can be procured at any moment up to the start of the trial on payment of the prescribed fees.

So far as Mountjoy Prison is concerned there has been a practice there whereby the Governor, through the Department of Justice I take it, has endeavoured to be very fair over a period of years to accused persons and he borrows from the Circuit Court office copies of the depositions. These are made available to the accused, who is in Mountjoy. In no case that I have experience of has a free copy of the depositions been given to an accused person. As I have pointed out, these copies are made available and they cost 1½d. per folio of 90 words. In a trial that will last one or two days at the most—and that is not a long trial— these depositions could cost £2 4s. 0d.

I am glad Deputy Lynch has said that the defence of criminal prisoners is not a very profitable business. Sometimes one has a client who is well able to pay for his defence, but more often the client is not able to pay. Whether the defence is conducted by a counsel instructed by a solicitor, or by a solicitor acting alone, where the case lasts two or three days the amount involved is pretty considerable and the average person who is brought up in the Criminal Court is not in a position to pay an adequate or reasonable fee for his defence. If one has to take, out of whatever money is available, the cost of the depositions, there will be very little left.

I do not think this is something which comes under the heading of free legal aid. I can see a great number of difficulties in regard to free legal aid and I appreciate that it will be a considerable time before the House is in a position to consider free legal aid. A very substantial concession would be afforded by the acceptance of this amendment.

Having put it on what I might call broad grounds, I now want to put it on the grounds of principle, which, I think, is more important. If a person is charged with an offence and returned for trial to the Circuit Criminal Court, it is only right that a reasonable period before such trial he should be served with a copy of the indictment. At the moment that is not done until the morning of the trial. There is no charge in respect of the indictment and any accused person can get it on application. The amendment provides that he will be served with a copy of the indictment seven days before his trial. That is only fair because an accused person might be returned for trial on certain charges but, the depositions being sent to State counsel to draw up the indictment, there may be a completely different set of charges in the Circuit Criminal Court from those upon which he was returned in the District Court. If he is served with such a copy seven days before his trial, he can then make arrangements for his defence.

Where depositions have been taken, as a matter of ordinary justice the State should serve an accused person with a copy of such depositions. In every other court of which I have experience in connection with criminal or semi-criminal matters, that is done. If a person is to be tried by courtmartial, he is served with a summary of the evidence and particulars of the charge against him at least 48 hours before his trial. That also applied to the special criminal court when it was in operation. Those are two instances I can put before the House. Under this Bill there is provision made where a person is sent forward for trial on a plea of guilty in the lower court, without any depositions having being taken, and he subsequently alters that plea in the Circuit Court and a date for trial is fixed; it is provided in the Bill that, seven days before such trial, the Attorney-General shall cause to be served on the accused a notice in writing specifying the persons whom it is proposed to call as witnesses and giving a statement of the evidence that is to be given by each of them. Therefore, in every case where a person is sent forward for trial, except where he is sent forward on depositions, he will be entitled to be served with a copy of the statements to be brought in evidence against him. In this amendment, I ask the Minister to harmonise the law as a matter of justice and right to the accused. I ask him to serve that accused person with a copy of the indictment and a copy of the depositions. Deputies experienced in law have supported that plea, and I ask the Minister to accede to that general request.

As I said a moment ago, I cannot see any good reason why a person who can afford to pay for these copies should not pay for them. We have always tried to meet the interests of the accused in every respect where such a person is unable to pay. I do not think the facts are as stated in that respect. Deputy Captain Cowan says that a prisoner could get them during the last four or five years. I cannot understand why a person who can pay should not pay. This would involve a fairly considerable sum and it would be an additional load on the already overburdened taxpayer. For that reason I could not undertake to promise lightly this concession. However, I will have the matter examined and I will do what I can. With regard to the indictment, I do not think there is any great difficulty about that. The procedure is settled by the Attorney-General and I would not undertake to tie it down to seven days.

I will agree to a reasonable period.

A reasonable period would be better. I cannot accept that particular point of view, but I undertake to have the matter examined further.

Amendment, by leave, withdrawn.

I move amendment No. 8:—

Where an accused person is charged with a summary offence and also with an indictable offence on the same set of facts and depositions are taken at the preliminary investigation of the indictable offence and it then appears to the District Court from the depositions that there is not or no sufficient evidence to convict the accused of the summary offence the District Court shall on the conclusion of the preliminary investigation dismiss the summary charge whether or not the accused is returned for trial on the indictable charge.

Amendment No. 9 is consequential on amendment No. 8 and the two can be discussed together. This amendment is to introduce something which every practitioner thinks ought to be introduced. A person in the District Court may be charged with both a summary and an indictable offence. These offences may be based on the same set of circumstances and on the same evidence. A person may be charged with manslaughter and drunkenness in charge of a car. At the deposition stage it may be perfectly clear on the evidence of both the doctor and the Guards that the charge of drunkenness cannot be sustained but that, as far as manslaughter is concerned, there is a case to be met and the accused should be returned for trial by jury. Certain district justices take the view that if they are investigating the indictable evidence, and the depositions are taken, counsel or solicitor for the defendant may apply to the justice and say: "Your Worship, as you see, there is no evidence whatever before you to justify a charge of drunkenness. We should like, as a matter of justice to the accused, that that charge should be disposed of now, even though you may send the accused for trial on the charge of manslaughter." Some justices have taken the line that that is fair, and they have acted accordingly. Others, however, do not agree with that view, and what they do is return the accused for trial by the Circuit Court, at the same time adjourning the summary charge to a date maybe three or four months ahead. I think that, in those circumstances, it is unfair that that should be done and that the accused should have to come back and face a charge of drunkenness in charge when, in fact, that charge cannot be substantiated on the evidence. Other Deputies may be able to give other examples. I am giving that particular example as one that has come very forcibly before myself recently.

I think, therefore, that the District Court should have power, on the conclusion of the preliminary investigation, to dismiss the summary charge if there is no evidence to sustain it, even though the accused may be returned for trial on the indictable charge.

It might complicate matters if I were to speak on amendment No. 9 now, and it might be as well to confine myself to amendment No. 8.

I can see the force of the view expressed by Deputy Cowan in particular cases, but I do not think that we should discuss legal questions here. Different considerations apply with regard to guilt or innocence in connection with summary offences and indictable offences that may arise on given facts such as Deputy Cowan has suggested. Different considerations will apply with regard to a charge of manslaughter compared with those which would apply with regard to a charge of dangerous driving or driving a vehicle in a drunken manner. It seems to me that, on a preliminary investigation of the facts, where there are two charges open—a charge of an indictable offence and a charge of a summary offence—the most we can do in this Bill is to give a justice power if he wishes—and if he comes to the conclusion that a summary offence cannot be made out—to dismiss the summary charge.

Some justices, in fact, follow that course. Others have different views about it. There is a doubt in some of their minds as to whether they can deal with a summary offence while they are, in fact, acting merely as preliminary investigator under the various Courts of Justice Acts to see whether there is a prima facie case on the indictable charge. I think the amendment goes too far. The amendment as it stands at present provides that the district justice shall dismiss the summary offence if he comes to a certain view on the evidence at the preliminary investigation. I suggest that that amendment should merely provide that a district justice shall have power, if he so wishes, to dismiss the summary charge. It might well be that in the interests of justice, on the investigation of an indictable offence by a district justice, the District Court might come to the conclusion that it would not be fair to deal with a summary offence while the trial of the indictable offence might be pending, and a district justice, in certain circumstances, might say, both in the interests of the State and of the accused, that it would be better to have this summary evidence considered later. We should provide that if in certain cases and in view of particular facts a justice thinks he should, in the interests of justice, deal with the summary offence prior to the trial, he should have power, and clear power, to do so and that any doubts certain justices might have should be removed by a section in this Bill.

If it would help the Minister, I would be prepared to accept the suggestion of Deputy O'Higgins.

The amendment as put down was not very clear. However, I thought that that was the sort of case the Deputy had in mind. I am advised that this is not the Bill to amend for this purpose—that it is the Road Traffic Act that makes certain offences summary and so forth; that the Act should be amended so that the trial judge would have power, on the depositions, to deal with the whole lot at the one trial. Suppose a district justice were satisfied that, on the summary evidence, a person was guilty. The district justice would not like the person to be convicted of that before——

That example was in my mind.

If you start to compel justices to deal with some portion of the offence and not to deal with it all, you are creating a very dangerous precedent. I think the simplest way would be that, in the case of a person returned for trial, the indictable offence and the summary offence should all go and that then the trial judge would deal with the whole lot—that, on the indictable offence, in a trial by jury, the case would be tried by them and that the judge himself would decide.

I am satisfied that the present method is not a satisfactory way of dealing with the matter. We have asked the Department of Local Government to examine the Road Traffic Act to see what we can do about that.

Then the matter is under examination?

Yes, to a certain extent. I agree that it is a very great strain, if a person has been acquitted of the indictable charge, that he should have to go back to the District Court to be tried on the other charge. If he is convicted of the indictable charge, that invariably finishes the matter but if he is acquitted, he has to go back again to the District Court and go through the whole torture once more. I think it is very unfair in a sense and I do not regard it as reasonable at all. However, the matter is being examined in that way and I think we can leave it as it is, until the Road Traffic Act is examined. I think that is a more satisfactory way of dealing with it than to try to amend the Road Traffic Act by this Bill because that is what we would be doing.

I meant more than that because an amendment of the Road Traffic Act would not get over this. We often have a case in the District Court where a person is charged say with larceny, unlawfully receiving, and unlawful possession. That is away outside the Road Traffic Act altogether. The District Court returns the accused for trial on the charge of larceny and receiving and the unlawful possession charge is held over. I know that quite a number of justices would be glad to dispose of it on the first occasion and dismiss it by saying: "This is clearly a case of larceny or receiving or nothing." He would dismiss the summary charge of unlawful possession and let the accused go forward to be tried, to be acquitted or convicted, on the charge of larceny and receiving. Therefore there is more in this question than the Road Traffic Act.

I could instance quite a number of other cases. If the district justice, when he is returning a person for trial and there is some summary charge against him—it may be a trivial summary charge—says: "Well, I do not want to hear any more of this case; I am sending it forward on the indictable charge and let the accused sink or swim before a jury on that", I think that would be the right way to deal with it. In quite a number of these cases, the charge of unlawful possession is only put down by the Guards as a matter of form. They put down the charges of larceny, receiving and unlawful possession largely as a matter of form. What happens? The case goes forward to the Circuit Court and there may be a disagreement of the jury. The defendant has then to go down on the summary charge and get an adjournment for a short period until the Circuit Court charges are dealt with. I think if the Minister were to consider it from that viewpoint, he might be able on the Report Stage to introduce an amendment to meet the views that have been put forward here. He might be able to accept the view of Deputy O'Higgins that the word "may" be inserted instead of the word "shall" so that the district justice may have discretion to deal with the summary charge.

Would the Deputy accept the view that the trial judge should——

No. I shall deal with that on the next amendment.

You still want two trials.

Not necessarily.

You are going to have one case decided in your favour and part of your defence may be that one court has already decided one point.

What I want to do is to get rid of the dead timber. There is this dead timber of a summary charge that should not be left hanging over. If the district justice considers, having heard all the evidence, that it should be disposed of there and then, let him dispose of it. If the Minister is prepared to consider that I would be prepared to wait until the Report Stage.

Would this meet Deputy Cowan's point? Let there be an amendment to provide that if a person is returned for trial on an indictable charge, and that he is found not guilty at the trial of that charge, the finding of not guilty should automatically operate to dispose of any summary charge which may still remain.

The next amendment deals with that.

The Minister's suggestion appears to me to be the better one.

Perhaps I may be allowed at this stage to put forward my views in regard to amendment No. 9 so that both amendments can be considered together. Amendment No. 9 suggests that where an accused person against whom a summary charge is pending in the District Court, is found not guilty of an indictable offence and the summary charge is based on the same set of facts as the indictable charge on which he has been found not guilty, the trial judge may at the conclusion of the trial and on the application of the accused order that the summary charge be dismissed. The rest of the amendment deals with the machinery of recording that in the District Court. An accused person may be charged with a summary offence and an indictable offence and may be found not guilty by a jury of the indictable offence. The evidence in the case may show that the accused is clearly innocent both of the indictable offence, of which he has been found not guilty, and of the summary charges which are pending against him in the District Court. In those circumstances, I feel it would be a good thing if the trial judge were in a position at the conclusion of the trial and on the application of the accused to order that summary charge to be dismissed. If he does not do that, and if the procedure at present in existence is carried out, it means that the accused is sent back to the District Court and there may be a trial in the District Court. The evidence may be gone into again and of course the accused in the end will be acquitted.

I have one example which arose out of the Road Traffic Act some years ago where an accused person was charged with manslaughter and dangerous driving. He was found not guilty of the charge of manslaughter by the jury and the judge expressed the view that he should never have been charged at all, that he was perfectly innocent, that there was no recklessness and no guilt or blame attached to him. That particular defendant was brought back to the District Court and the charge of dangerous driving was proceeded with in the District Court. It lasted the whole day and the State Solicitor made a very strong case to the district justice that he should convict the accused of dangerous driving. It was pointed out to the district justice that if he were to find him guilty there would be an appeal to the Circuit Court judge who had already stated that the man was absolutely blameless and should never have been charged. It was only in these circumstances that the district justice dismissed the case. Now, if there was a provision such as is indicated in the amendment that, at the end of that trial for manslaughter the trial judge, on the application of the accused, could there and then dismiss the dangerous driving charges, the accused person would not be put to the expense of defending himself in the District Court on a charge which there was actually no evidence to sustain. Undoubtedly, these two amendments run somewhat together. If the Minister would consider the point involved in both of them, he might be able to meet that point by an amendment on the Report Stage. Anyway, I ask him to consider it in the light of the example I have given and on the lines of approach that I have taken in putting forward these amendments.

It seems to me that the suggestion contained in amendment No. 9 is perfectly arguable in all cases except those under the Road Traffic Act. Perhaps I might put it this way. If a charge of manslaughter is brought against a person, in order to convict him before a jury the State must prove that he is guilty of extremely gross negligence. At the same time, he is usually charged with driving in a dangerous manner. The degree of guilt required to sustain a charge of dangerous driving is less than the degree of guilt required to show a case of such gross negligence as will satisfy a charge of manslaughter. In the circumstances, that driver may well be acquitted of the charge of manslaughter because the jury or the judge comes to the conclusion that there was no evidence that he was guilty of such gross negligence as to justify the manslaughter charge and he would accordingly be acquitted. But, at the same time, on these very facts, with the degree of dangerous driving that was proved, it is clear that he would be convicted under the Road Traffic Act of driving in a dangerous manner.

For that reason, while I can imagine cases in which the amendment proposed by Deputy Cowan would be satisfactory and quite arguable, I can imagine offences under the Road Traffic Act and offences of that kind, where a statutory offence is superimposed on a common law offence and where the facts are the same and there may be varying degrees of proof required, that it would not work out satisfactorily. For that reason, the suggestion mentioned by the Minister appeals to me. Where there is a statutory offence of a summary nature and the accused is also charged with an indictable offence, whether under the Road Traffic Act or the Larceny Act, or any of these Acts, the trial judge should have power by statute to deal with the summary charges after the indictment has been disposed of by a jury. I think that that will prevent the duplication which we all complain of and which is a considerable hardship on people accused of these offences by having to fight their case before a jury and then having to fight even a harder battle before a district justice. I think that the suggestion made by the Minister is the better way out of this particular difficulty—that following on the trial a decision can be given by the same court with regard to pending charges against the accused.

I would, however, quarrel with the Minister in one respect. The Minister made that suggestion with regard to the Road Traffic Act. It is true that the most common case of an accused person being put to a double risk occurs under the Road Traffic Act. But, it is equally true, as Deputy Cowan pointed out, that in charges under the Larceny Act there are also automatically preferred by the State charges of a summary nature. Also charges under the Offences Against the Person Act of inflicting grievous bodily harm are generally followed by charges of a summary nature. These are of common occurrence. For that reason, while the Minister mentioned the possibility of rectifying the position which obtains under the Road Traffic Act by giving the trial judge power to deal with summary offences under an amendment of the Road Traffic Act, I suggest that the matter is larger and requires further examination and that under this Bill, at some stage, power should be given to a trial judge to deal with all these summary offences, irrespective of the category under which they come, whether illegal possession, assault, or any other summary offence usually associated with or tacked on to an indictment charge.

Therefore, while disagreeing with Deputy Cowan's amendment for the reasons I have given, I endorse what he stated with regard to the undoubted problem which exists at present. I, therefore, respectfully suggest to the Minister that he should seek the views of the Attorney-General with regard to this entire matter and have it explored. It would be a pity if we let the opportunity presented by this Bill go without endeavouring in some way to rectify what has been for years an undoubted hardship to accused persons and merely confined ourselves to bringing in a limited amendment under the Road Traffic Act some time in the future. As I said, the problem is larger and I think this opportunity should be availed of to rectify the matter. I would, therefore, ask the Minister to seek the Attorney-General's advice and have the matter fully examined.

I certainly disagree with the suggestion of Deputy O'Higgins for this reason. I gave an example under the Road Traffic Act. Clearly, the amendments were drafted with as much care as I could draft them to deal with matters generally, and the principle behind the two amendments was that, where a District Court in sending a person for trial, is of opinion that the summary charge should be dismissed, it should be empowered to dismiss it there and then; that where a person is acquitted by a jury and the evidence clearly indicates that he is not guilty of the summary offences lying against him, the Circuit Court judge, on the application of the accused, should dismiss the cases; in other words, put an end to any further proceedings in respect of the summary offences which, on the evidence given in the Circuit Court, could not be sustained against the accused.

I only deal in these amendments with the case of a person who is clearly not guilty. But other considerations arise where the person may be guilty, and that is where Deputy O'Higgins and myself would not agree because we must consider the atmosphere of the Circuit Court trial.

Deputy O'Higgins may be defending an accused person, and may have a hard struggle to convince a jury that his client is innocent. The judge may not be of the same opinion. He may have charged the jury very strongly against a particular defendant. He may be rather annoyed that the jury have taken the view that they have taken. In these circumstances, he would not be the person to deal out justice to the accused person. I must honestly say, from my experience, that I would not trust a judge in that frame of mind to deal with a summary charge. I am doing nothing more than asking that, whether in the judge's opinion the man is or is not guilty, he should be let go back to the District Court and fight his case there. If that is done he will have the right of appeal, and an accused person is entitled to all these rights. It is the innocent person that I am trying to protect from further expense in these two amendments. The Minister threw out the suggestion for discussion that the Circuit Court judge would have the right to deal with the summary case after the indictable one had been disposed of. That proposal would not be acceptable.

Take the case Deputy Cowan has stated, of a person having been acquitted of an indictable offence and then convicted by the Circuit Court judge of the summary offence. One would have to consider the right of appeal of the accused person. If the Minister is prepared to accept this amendment, I agree with Deputy Cowan that it should only be treated in so far as it affects persons whom the Circuit Court judge might consider it desirable to acquit of the summary offence.

There is another point to be considered. It is that the duplication of proceedings and the attendance of witnesses for the same offence in both the Circuit Court and the District Court should be avoided, if at all possible. Everybody knows that, in the case of jury service and of attendance to give evidence in court, both impose serious hardship on many sections of the community. I would ask the Minister to consider the matter from that point of view.

I think that the points made by Deputy Cowan are of great interest to the general community. I presume to think that the statements he has made can be substantiated by the experience of the Department of Justice, that is to say, that where a defendant has been acquitted on an indictable offence he is tried by the same judge on a minor charge. The judge trying the man on the minor offence might be inclined to go too far and to impose a sentence which was out of all keeping with the offence. If what Deputy Cowan has suggested is true, it would lead one to think that the judge was not carrying out his duty. If a jury, in their wisdom, bring in a verdict of acquittal, the judge is bound to accept it, but if, because of the fact that he disagrees with the verdict and, on a minor charge, imposes on the defendant a sentence which is unjust, well. I think that deserves consideration from the Department of Justice. I am confident that there are instances of that which could be substantiated by investigation in the Department.

I do not know whether there is any real danger in what Deputy Cowan has imagined here. Let us, for the sake of argument, assume that there is, and that possibly the trial judge, as he is perfectly entitled to, takes a certain view as to the guilt or innocence of an accused person. If the jury disagrees with that view that, undoubtedly, is an argument which should be considered. I think that difficulty could be got over if, by an amendment to the Bill, power were given to indict a person before a jury for these different offences under the Road Traffic Act, and that the jury should be entitled to deal with the guilt or innocence of the accused with reference to the other stautory offences. I think that position obtains in England under the Road Traffic Act.

My suggestion was that the matter would be brought to the notice of the trial judge. Deputy Cowan raises the point that where the judge is satisfied that there is complete innocence in the case of an accused person on an indictable charge he should there and then, on the application of the accused, fire him out. How is that to be brought to the judge's notice? There must be some machinery by which it will come before the judge. Assume, on the other hand, that the judge says: "A jury has acquitted you—I think in my own mind without expressing it— wrongly, and I am going to give you the sock". I admit that danger could arise unless you put the two things in the indictment and let them go to the jury. There is the alternative that the summary charge can be brought to the notice of the judge and application made at that stage by defendant's counsel to have it taken then. If he finds the judge in a good humour and feels that he would rather take his chance at that court rather than have to start all over again, he might adopt that course. I do not know how far that can be met, but that is one of the views that I am now putting up.

I think this matter could well be left over for further examination by the Attorney-General and myself and the staff. I will consider all the points that have been mentioned. But there are all these difficulties arising. I am thankful for the helpful manner in which the various sections have been examined.

In these circumstances, I am satisfied.

Amendments Nos. 8 and 9, by leave, withdrawn.

I move amendment No. 10:—

In sub-section (1), line 22, to delete the word "fifty" and substitute therefore the words "one hundred"

The only point I have to make in regard to that is that the value of money has changed a good deal, and where a person is convicted of a scheduled offence by the District Court —that is, for an offence which up to the present has been an indictable offence—the fine of £50 is, I suggest, too low, and I think it would be wise, in these circumstances, to give the district justice power to fine up to £100. That is the object of the amendment. I take it the Minister will have no objection to that. This is the type of offence that the district justice deals with summarily.

I think we would have to go a bit further than what is conveyed in this amendment. I think we would have to consider amendments Nos. 11 and 12 and increase the punishment. There is a slight contradiction in the sense that you are objecting to the punishment of imprisonment while you are increasing the fine.

Let us consider the three amendments together. The section proposes to give the district justice power to fine up to £50 or impose a sentence of imprisonment for a period not exceeding 12 months. I propose to give the district justice power to fine up to £100, but then I propose to reduce the period of imprisonment. I look upon imprisonment as largely out of date in regard to quite a number of offences. To give the District Court power to impose at any stage a sentence of imprisonment up to 12 months is, I think, unnecessary, because that period of imprisonment is excessive. In amendment No. 11 I propose that if the accused has not previously served a period of imprisonment he may be sentenced to a period of three months. If he has previously served one sentence of imprisonment, I suggest he should be sentenced to a period of six months, and if he has served more than two periods of imprisonment, he should be sentenced to a period of 12 months.

The idea is that where a person comes up for his first offence, the District Court may fine him up to £100 or give him three months in prison. If he comes up for a second offence, having already been in prison, he may be fined up to £100 or sentenced to six months, and if, at any time, he comes up, after being in prison for two periods, he may be sentenced to 12 months.

It is hard to relate the fine to the imprisonment—that is a difficult thing. I do not think a person coming before the District Court on his first offence should be sentenced to 12 months. He might come before the District Court on his tenth offence and the court would have power to sentence him to 12 months. I think the power to fine to a limited amount of £50 is inadequate and that sum should be increased to £100.

My object in putting down amendment No. 12 is purely on a matter of principle. When this Bill was introduced it was for the purpose of extending the jurisdiction of the District Court in order to deal with offences that might become common and in order to facilitate the discharge of the functions of the District and Circuit Courts. Heretofore, district justices dealt with summary offences. Even after the enactment of this Bill, most of the offences which will be dealt with will be considered summary offences or minor offences. I suggest the period of 12 months is too much for what is considered a minor offence. The district justice at present has power to impose two consecutive terms of six months. I would like to know whether the same power will be vested in the district justice with reference to the period of 12 months—in other words, if he will be empowered to impose a sentence of two years for certain offences.

No; Section 5 covers that.

I will accept Deputy Cowan's assurance on that. Where the offences are purely minor in character, I suggest that 12 months is too serious a punishment to impose. The original six months should be adhered to.

As regards amendment No. 10, I agree with Deputy Cowan, but I disagree with him on amendment No. 11, because we must relate this to actual practice. The practice in a District Court is to deal very leniently with first offenders. Unless the cases appear to them to be very serious, all district justices are reluctant to send a first offender to prison and, where they make up their minds to send the first offender to prison, they usually do not impose the maximum sentence. I think the amendment is really unnecessary when you consider the practice as we know it in the District Court.

As regards amendment No. 12, as Deputy Cowan has said, I think it is clear that Section 5 covers that position. Section 5 contains the answer to the query put by Deputy Lynch. The idea is that there should not be a complete term of 24 months imposed by the district justice. I take it that is what is troubling Deputy Lynch. If that is so, then Section 5 answers that as far as I can see.

I agree Section 5 would take care of a case heard on the same day. Will the Minister picture a case where a man is charged on Tuesday of one week with a scheduled offence and on the following Tuesday is charged with another offence not related to the first one? In that case if the justice sees fit to impose 12 months on each of the scheduled offences that is tantamount to a period of two years' imprisonment. We are dealing with minor offences and in those circumstances a period of imprisonment extending over two years could not be said to be commensurate with a minor offence.

I think the Minister and I are the only two non-legal people dealing with this. Deputy Cowan says that the purpose of his amendment No. 10 is because the value of money has gone down by half and he wants to give the district justice power to impose a fine of £100. I think the same should be done in the case of a sentence of imprisonment. This Bill proposes to increase the jurisdiction and the power of the District Court. I think myself that is overdue. Deputy Lynch has said that these are minor offences. I do not know what is at the back of his mind. The idea is that the District Court shall have power in the future to try cases which were formerly considered to be outside the scope of its jurisdiction. If that is so, then the court should have power to impose a sentence of imprisonment of a maximum 12 months and a fine of £100. I agree with Deputy Captain Cowan in that. I think that ought to be done apart altogether from any consideration of the present day value of money. If that offence that was formerly tried by a higher court is now to be tried summarily, then I think it is only right that the court should have power to fine and imprison in relation to the offence committed. The district justice will always be fair. He will know when to use his discretion. This is a non-Party matter and we are trying to approach it in the interests of fair play and justice.

I am substantially in agreement with Deputy Captain Cowan. I think the idea motivating his amendment is not, as Deputy Boland has expressed it, so much to extend further than the Bill purports to extend the power of the District Court, but to strike a more just equation between the money penalty and the physical penalty of imprisonment. In that respect I do not think there are any arguments to be advanced against the case made by Deputy Cowan. With regard to amendment No. 12, I do not subscribe to the view expressed by Deputy Timoney that the amendment is unnecessary. I think it is a useful amendment. I do not think the purpose Deputy Lynch intends to achieve is achieved by the succeeding section. I take it none of these amendments is being pressed and that in the main they will be dealt with on the Report Stage. I suggest to the Minister that he should not allow himself to be governed too much by a desire to extend the power of the District Court merely for the sake of giving additional jurisdiction. He should seek rather to bring the penalties laid down in existing legislation into conformity with present-day standards, since standards have altered by reason of the alteration in the value of money.

I am prepared to accept amendment No. 10 which proposes to increase the penalty to £100. Considerable difficulty would be involved by acceptance of amendment No. 11. Certificates would have to be procured. These might be set aside if the orders were not properly laid out. A hundred and one difficulties would be encountered at considerable trouble and cost to the State. I would prefer to leave the discretionary power to the district justice. The maximum he can impose is 12 months. I do not think it would be wise to tie his hands in this way. With regard to amendment No. 12, the case made by Deputy Lynch is somewhat difficult to visualise. The warrant would be signed and the accused would still be in prison. I do not think the warrant could be left over until he came out 12 months hence. However, I am prepared to examine all the points raised in the light of the arguments put forward. Deputy Boland has stressed the correct angle. The extension is an extension in relation to power. I shall have the section examined.

Will the Minister examine the possible situation of two sentences of 12 months being imposed on different days? That is the purpose of my amendment.

I realise that, but I cannot see it happening. However, I shall examine the point.

Amendment agreed to.
Amendments Nos. 11 and 12 not moved.

I move amendment No. 13:—

In line 31, to delete all words after the word "Court" where it first occurs to the end of the section and substitute therefore the words "the sentence shall commence on the date of sentence or, at the discretion of the court, on the date of arrest if the accused has been in custody from the date of arrest to the date of sentence, and in no circumstances shall a sentence of imprisonment imposed by the District Court commence on a date subsequent to the date of sentence".

I am one of those who believe that a sentence of imprisonment should commence on the date on which it is awarded or, if the person has been in custody, that the sentence should start, at the discretion of the justice, as from the day the prisoner was taken into custody. I strongly object to sentences what you might call in futuro. I think that is what this section provides —that the district justice may order a sentence to commence at the expiration of a sentence being served. In other words, the idea is that a district justice may impose, say, nine months' imprisonment on one account and three months' imprisonment on another account—and he can make the three months' term take effect as from the date the nine months' sentence ends, and thereby make it a 12 months' imprisonment. I think that to start sentences of imprisonment in futuro is unfair. A District Court may award a sentence of imprisonment and, under this Bill, it will have pretty extensive power. We should make it perfectly clear that the district justice would make the sentence effective as from the date he awards it or, if he so wishes, in the case of a person in custody, that the sentence should commence as from the date he was arrested.

This amendment is really to prevent the imposition of consecutive terms of imprisonment by the District Court. I think there is no good reason for that. I think the District Court had no power and has no power at the moment to impose consecutive sentences. Some district justices have taken on themselves in recent years that power. I think it is a very doubtful power. I think this section has been put in to sort of give some legal justification to what has been done in the past. I do not know whether that has been tested. I am not aware that it has ever been tested, but whether it has been tested or not we should be perfectly clear that where sentences of imprisonment are imposed they should take effect when they are imposed or, in the case of persons in custody, that they should take effect, if the justice so wishes, from the date of arrest.

The court has the power to enforce the two terms of imprisonment consecutively. The court has the power to impose the term of imprisonment to take effect as from the date of arrest. If I were to accept this amendment I should be doing much more than the Deputy proposed. At the present time there is a suspensory sentence. The justice says to the accused that he is sentencing him to six months' imprisonment, the imprisonment to be suspended if he enters into a bond to keep the peace or if he enters into some particular obligation to do something in the future. This amendment would negative all the things rated in favour of the accused at the moment in regard to first offences. I do not think there is any doubt as to the power that is inherent in the court to impose consecutive terms of imprisonment. Read the last few sentences of the amendment:—

"... and in no circumstances shall a sentence of imprisonment imposed by the District Court commence on a date subsequent to the date of sentence."

Therefore, you would cut out the suspensory sentence, and so forth, completely. Surely the Deputy did not intend that?

I think the word "suspensory" is not understood. What really happens is that the district justice says: "I am imposing a sentence of six months but I shall suspend that sentence if you undertake to enter into a bond to be of good behaviour for two years." If the person who received that suspensory sentence is not of good behaviour for the period specified he is brought before the court and is sentenced to his six months' imprisonment. I have never yet come across a case of what is known as a suspensory sentence being suspended and operating subsequently. What happens is that a person is convicted. The justice imposes a sentence of, say, six months' imprisonment, not to take effect if the accused enters into a bond to be of good behaviour for two years. What really happens, in practice, is that within the period of two years the person commits another offence. He is brought before the court for that offence. He is sentenced for that offence. To my personal knowledge I have never come across what is known as a suspensory sentence being operated.

I have never come across it. However, if the Minister thinks the amendment would affect the power to award a suspensory sentence might I say that that does not invalidate the argument I put to him in regard to the undersirability of imposing consecutive terms of imprisonment?

Would the Minister indicate his view on the principle underlying Deputy Cowan's amendment, suitably altered to cover the point raised by the Minister? There are odd and unusual cases where orders are made by district justices in terms permitting of a sentence on a convicted person not operating for certain specified periods. I remember one case where the period was one week. I think it would be necessary that the amendment should be redrafted. Would the Minister be prepared to give the House his view on the general principle underlying the amendment? I do not think he covered the point in his reply to Deputy Cowan.

Section 5 is my view. It is restating the existing law that the court may impose these two consecutive terms of imprisonment not exceeding 12 months. It is absolutely essential that that power be retained. There are several cases where there are good and varied reasons why that should happen. Again, it is at the discretion of the trial justice as to whether he would make the sentences consecutive or concurrent. I think 90 per cent. of the cases are nearly always concurrent. I think it would be foolish to remove the power.

I do not want to press any particular point of view too strongly. This is a principle that would apply to previous amendments Nos. 10, 11 and 12. I think that it is unwise for the Dáil to approach any section in any piece of legislation from the point of view of what the existing practice is or of what usually happens——

I agree with that.

——and that the Dáil, in giving these powers to the District Courts, must have regard to the powers conferred by the words of the section.

My reason for the amendment was this: it is not so long ago since this novel idea of consecutive terms of imprisonment started. I myself am doubtful as to the legality of that at the moment. I felt that there was a little malice in it when it started with the imposition of consecutive sentences. In other words, a district justice could say to an accused person: "I shall give you six months for stealing the watch and six months for stealing the chain and the second six months will commence when you have the first six months done". It was what I might term the malicious intent that was there—it was not the judicial intent—that made me consider putting down this amendment.

I am opposed entirely to giving powers to impose consecutive terms of imprisonment. As Deputy O'Higgins interjected a minute ago, why not give the 12 months in the first instance? If the Minister, on reconsideration of Section 4, feels that there should be power to impose a sentence of 12 months, let the District Court give the 12 months. The accused would prefer it and the people defending him would prefer it, but there is something mean in saying: "We will make a second period commence after you have done the first period." I do not think we should stand for that. Somebody discovered this method of trying to increase the jurisdiction of the District Court but, fortunately, very few district justices have followed it. I think that very few district justices would dream of doing such a thing and they generally make the sentences run concurrently. Where there is power in the court to impose a sentence of 12 months, I think that the necessity for consecutive periods does not arise and I would ask the Minister to delete that power from the Bill.

There is one point will arise if that amendment were accepted. Suppose a person were fined in the District Court. I do not know whether the court has power to remit the fine, but I know that the Minister for Justice occasionally does. Say it was rather a heavy fine, and it was represented that the person could not pay the fine right down and that he wanted to pay by instalments. If the amendment were accepted, it would mean that if he did not pay the fine immediately he could get out of the imprisonment, because it says that in no circumstances shall a sentence of imprisonment commence on a date subsequent to the date of sentence. There is a difficulty there.

Mr. Boland

It might be to the detriment of the person fined if it were accepted in that form.

The Minister need not go that far, but he could abolish the consecutive sentence.

The Deputy is going on the assumption that for every offence a person may be sentenced to 12 months. There are offences for which the maximum sentence is six months. I want to be quite clear that I do not accept that there has ever been any malice on the part of any justice in imposing sentences of this kind. Our judges or justices do not stoop to that. I could not allow that remark to pass unchallenged. I think it is wise to retain this power to deal with a number of cases that arise from time to time. It is retaining a power that was given in a section of the 1914 Act. That power was clearly and definitely given. There is nothing wrong about it. Separate sentences are imposed for different offences, not related offences like the stealing of the watch and chain to which the Deputy refers. I think the Deputy will admit that that would be put down as one offence.

I have seen it broken up.

That was an extreme case, and it is not advisable to deal with extreme cases. As the matter falls into the other category I shall examine it.

In the nonscheduled offences, the maximum sentence may be one month, three months or six months. There are different periods of imprisonment. I think the Minister has put in the section to clarify a position that was, and is, a bit doubtful, because if the power to impose 12 months is there, there would be no necessity to put in this section.

Except that I am repealing that section of the 1914 Act.

I would say that there was some doubt about what that section meant and that some of these gentlemen who were imposing sentences of 12 months' imprisonment felt that they were not on too safe ground while doing so. Under this section the district justice can impose four consecutive terms of imprisonment. He has no power to impose in any one of them sentences more than three months but he can impose consecutive sentences to an aggregate of 12 months. The section says that where sentence of imprisonment is passed on any person by the District Court, "the court may order that the sentence shall commence at the expiration of any term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed 12 months."

If the law in respect of a particular offence is that the period of imprisonment is three months, and if an accused person is charged with four such offences each of which can only carry a maximum sentence of three months, you may have a district justice —I am not talking now of the Bench as it stands at the moment; I am talking of the Bench that may be operating in 20, 30 or 50 years' time—who will say: "The sentence for the first offence will commence on the 1st of March, for the second offence on the 1st of June, for the third offence on the 1st of September and for the fourth offence on the 1st of December", for the simple reason that he wants to send a fellow away for the 12 months. I think that is entirely wrong and I would ask the Minister to take that point of view into consideration when he is considering the section.

The Minister for Justice will have the power to review.

While I sympathise with the idea behind the amendment, I will have to oppose it, because while people, even when they go on the Bench, are subject to human failings, nevertheless I think that in the great majority of cases the reason for imposing consecutive sentences is that the justice takes a serious view either of the offence committed or the type of person convicted. There may be cases where it would be in the public interest that an accused person should be locked up for longer than the maximum sentence which could be imposed for any specific offence and, if there were a few of these offences, it would be a useful power for the district justice to have. I would, therefore, favour leaving him that power.

Deputy Cowan is doubtful as to whether in fact the exercise of that power by the district justice is legal at present. It is a power which is being exercised, in any event. Looking at it from the point of view of the interests of the accused person, I think also that it is a useful power. I have been told that in a certain District Court this power of postponing a sentence used to be exercised by a very soft-hearted district justice who is now dead. I understand that it was a common practice for him coming on, let us say, to Christmas time to ask the accused on what date in January he would like to go to gaol. I believe that it was a common thing for solicitors representing an accused person to ask the district justice to postpone the operation of the sentence for reasons which they advanced, such as that it was a particularly busy time of the year, say, harvest time, and it would be a great hardship on the family of the accused if he were sent to prison then and, therefore, instead of sending him to prison at the beginning of the harvest, the sentence should start at the beginning of November and end some time in December, if the sentence was one month. For these and other reasons, the plea was often, I understand, successfully made by the accused or his representatives. Being a softhearted person, the district justice invariably acceded to these requests and fixed a date convenient for the accused for the beginning of the sentence. This is a power which I would dislike very much that the district justice should be deprived of. If the amendment would have the effect of taking away that power, then I would be totally opposed to it. I was very interested in Deputy Cowan's interpretation of the meaning of "suspension of the sentence". I must say that my interpretation of that is somewhat different. If I understand him aright, his point was that the sentence was imposed but would not take effect if the accused entered into a recognisance to be of good behaviour. Mostly the wording which justices with whom I am familiar used was, "I impose a sentence of three months' imprisonment, the warrant not to issue unless the defendant is convicted of an offence during the coming six or 12 months," as the case may be. That is a very useful power for a district justice to have, and if this amendment would take it away, as I believe it would, I would be opposed to it. It is a tremendous deterrent on an accused person if there is a suspensory sentence hanging over him. It is a procedure which is merciful to the accused and gives him a chance. He has committed an offence and has been convicted and deserves three, four, five or six months' imprisonment. He is given a chance of keeping out of gaol provided he proves himself to be a good citizen for a specified time. In the interests of the citizen who lapses from time to time, it is a very useful power and one which I would not like to see taken away. For these reasons, I am opposed to the amendment.

Amendment, by leave, withdrawn.
Section 5 put and agreed to.

This section reads:—

"Paragraph 4 (which prescribes time limits for the making of complaints in cases of summary jurisdiction) of Section 10 of the Petty Sessions (Ireland) Act, 1851, shall not apply to a complainant in respect of an indictable offence."

Perhaps the Minister will explain the necessity for this section.

The reasons for the section are these: In 1937 the High Court decided, as regards indictable offences capable of being tried summarily, that these offences were triable by a district justice notwithstanding that the complaint had not been brought within the period of six months, the limitation of time under Section 10 (4) of the 1851 Act being merely a matter of defence. In effect, therefore, Section 10 (4) is applicable, if raised. This is a rather anomalous position as it seems to mean in practice that a person charged with an indictable offence may, after consenting to be tried summarily, then successfully plead in his defence that the six months' time limit had expired before he was charged. He could, of course, be tried on indictment at any time.

At present, a person who stole a bicycle seven months ago must be tried on indictment in case he might plead the six months' limit if the case were tried summarily with his consent; if, however, the offence had been detected five months afterwards, the summary procedure could be successfully operated. This is a concrete illustration of the anomaly which this section proposes to remove.

As one of the primary objects of the Bill is to secure a speedier trial of indictable cases by enabling them, in appropriate circumstances, to be disposed of by the District Court, it would be inconsistent and illogical to leave untouched the present position as regards the application of the six months' time limit to such cases.

An accused person will still be perfectly free to insist on a trial by jury, but if he consents to be tried summarily, he will not be permitted to raise the technical defence that the complaint was not brought within six months. That is, undoubtedly, a great hardship, as well as putting an unnecessary burden on the Circuit Criminal Court.

Section agreed to.

I move amendment No. 14:—

In sub-section (2), lines 47 and 48, to delete all words after the word "offence".

Section 7 provides for the taking of other offences into consideration in awarding punishment. An accused person, on being charged and convicted, may ask the court to take certain offences into consideration. I am proposing in the amendment to delete all words after the word "offence" in the section. A person may be convicted of an offence. In order to get finished with it he may admit that he is guilty of three or four other offences. The Gardaí may not have prior knowledge that he was guilty of these other offences. He may appeal from the sentence imposed, and his conviction may be reversed. It does seem unfair that he should then be tried on the other offences of which the Gardaí had no knowledge at all, but to which he himself has admitted his guilt. One may say that he has admitted to offences and deserves punishment, but I think there is an element of fair play in all these things. If he has admitted his guilt at the trial, and has been awarded certain punishment and if his conviction is reversed, then I think the whole thing ought to be wiped off. He should be put in the position that he was in before he was indicted, brought to trial and found guilty. That would be only fair—what I may term "the old school tie" of playing the game.

But the other offences might be much more serious than the one he was convicted of. I think the amendment is ridiculous.

I do not think I could consider accepting the amendment at all. The case is put of a person who pleads guilty to an offence, and then he asks that four or perhaps 40 other cases should be taken into consideration. On some ground or other he appeals, and his conviction is reversed. The case put by the Deputy is that he should then be told to go home, that he is now free. There is no unfairness, I think, in going back to the original position. I am afraid that "the old school tie" would hardly make him tell the story in court unless he had a fairly good idea that he was going to be found out anyway.

Amendment, by leave, withdrawn.
Section agreed to.

I move amendment No. 15:—

In sub-section (2) line 58, to delete all words after the word "consent".

This amendment has been put down by me in an effort to cure what I regard as a most objectionable section, under which, for the first time, a change is being made in the degree of proof required of the State on the trial of an indictable offence. We are now providing for the first time, that in the case of illness or insanity of a witness who gave evidence at the preliminary hearing before the district justice, a deposition made by him may be put in evidence and read to the jury. On the Second Reading of the Bill, objection was voiced in this House to this section. Considerable objections were made to it. We are providing for the first time that where punishment is going to be meted out in the event of conviction on a citizen in a criminal case a degree of proof far less than would be required in a civil action by a person suing for a debt is now going to be permitted. As the law stands at present, if a person sues in the District Court for the recovery of a debt of £5 or £10 and had as proof of his case a witness, say, named John Jones, got a decree and an appeal was brought, if John Jones was not available in the Circuit Court, well it would be just too bad for the person suing for the debt because his case would be dismissed.

Here, however, if the offence was an indictable one and John Jones gave evidence before the district justice at the trial, in the event of the illness of John Jones his deposition made in the District Court can be put in and treated as evidence before the jury. That, in my opinion, is objectionable. I can see no grounds in favour of it. I appreciate that it has been introduced by reason of an unfortunate accident which took place some 18 months ago to a technical State witness, and that that was the occasion which prompted its introduction into the Bill. In the case of a number of trials some 12 months ago it was found that an expert witness who gave evidence on deposition was not available and would not be available for some months. For that reason a number of trials had to be delayed. That was very exceptional. It seems to me that that occasion has been availed of to introduce a most alarming change in our criminal law. I think this is something we should carefully examine.

The Minister, in meeting some of the objections to this section, said that it is intended to cover only technical witnesses, such as a mapper who has proved a map in the District Court. That may be the pious hope of the Minister and the Department, but let no one think that that is the way it will be utilised. The section is wide enough to cover any witness, no matter how important or damning or wide his evidence may be. There is nothing in the section that says it shall apply only to witnesses giving formal evidence. The section is sufficiently wide to cover any witness. If it were intended to cover a technical witness, such as a mapper, there would be no need for it, because a new mapper can always be obtained; notice of his evidence can be served on the defendant under our existing law, and his evidence would be admissible.

The Minister mentioned a doctor as a technical witness. It is my opinion, as a practitioner in the courts, that it is very rarely a doctor can be regarded as a formal witness. In most cases of a criminal nature a doctor gives evidence either to prove a death or particular injuries inflicted on a person. Medical evidence in a lot of these cases is vital evidence, evidence that must be produced by the State in order to secure a conviction. Is it suggested, where there is such vital evidence, that when a doctor is not available for the trial his deposition can just be thrown in as formal proof?

We all appreciate, with regard to the conduct of a preliminary investigation before a district justice, that the ordinary course taken by those appearing for accused persons is to see that the investigation is properly carried out by the prosecuting authorities in fulfilment of their statutory obligations to see whether or not, on the evidence available, there is a prima facie case. In most cases it is considered wise not to disturb the evidence given by witnesses by means of cross-examination, or to go into a serious examination, from a defence point of view, of the evidence given. It is prudent and proper in the interest of the accused person to follow that course. It is right, because it ensures that no injustice is done, such as might take place if a witness were given a second chance to cure faulty evidence. For that reason it is a prudent practice not to cross-examine witnesses who give evidence in the District Court.

Under this section a person appearing in the District Court will have to consider certain aspects. First of all, he will have to get a medical certificate concerning the health of a witness giving evidence for the State. He will have to satisfy himself that the witness is healthy and that he is likely to be at the trial. If he is not, they would say: "We better cross-examine him now." There is that type of dilemma that will be created by this section—and there are other considerations, too. I cannot see any justification for it.

While I appreciate the reason given by the Minister on the Second Reading as to why this section should be inserted, and while it is my guess that it has been introduced by reason of the accident to a State witness some time ago—an accident which delayed certain trials—I still think that the amendment I have suggested is the very furthest we should go at this stage. It is an amendment which, if accepted, would mean that where a witness is insane or ill at the time of trial, his deposition may be used in evidence only with the consent of the accused person. It was urged that the case I mentioned, which delayed certain trials some 12 months ago, caused hardship and embarrassment to accused persons who desired to have the depositions of that witness admitted in evidence. The trial judge being unable to do it, certain embarrassment was caused. If that is the case that is being made for this section, I think we should provide merely for that and no other; we should provide that such a deposition can be used only with the consent of the accused person.

I appreciate that the section is intended to cover three contingencies —the death, the insanity or the illness of the deponent. It is true that death is already covered in our criminal practice. But death compared with illness among witnesses is of such a rare occurrence as to be unlikely to raise serious objection.

It could not be feigned, in any event.

Precisely— when a man is dead he is buried, and that is all. To apply the same thing with reference to the illness of a witness is too wide a departure and is something I cannot understand. You cannot justify a provision like this by producing, as with a touchstone, the perfect case. You have to examine this as part of a broad picture. While in a particular case no harm could be done, there undoubtedly will arise, if this section is passed, the case of the shifting, cowardly witness who screws up enough courage to give evidence once before a district justice; who gives perjured evidence, or evidence that is not likely to be accepted; and who, when the trial comes, feigns illness and does not appear. The State goes ahead with the prosecution and throws in the deposition. That type of case will arise. It is no good saying that it will not occur because it undoubtedly will. That is the kind of legislation to which we should not give the imprimatur of this Parliament. If the Minister or the Attorney-General is particularly keen on this, I suggest that it should only be done by consent in a suitable case. In that way the difficulties experienced in the recent past would be overcome. I urge the Minister to accept this amendment. Under it no extreme departure will be made from the accepted practice and, at the same time, we shall provide against unusual circumstances which may occur.

I think Deputy O'Higgins has covered every conceivable point that could be made against this section generally. I take it we are discussing the amendment now. I agree that in the case of insanity or illness, in order to provide for the quick dispatch of the business of the court, depositions should only be allowed in by consent and there should be no overriding jurisdiction in the hands of the court to allow in such a deposition without consent. Deputy O'Higgins instanced a case of a doctor who, though generally considered a technical witness, is also a witness of some moment when cases come to be decided. The doctor is also an expert witness. He can give his opinion as to how certain things came about or how certain acts were done. If there is a charge of grievous bodily harm occasioned by some instrument not forthcoming during the proceedings, a doctor can give evidence of the fact that it was probably caused by some instrument which was known to be in the possession of the accused. Very often in the District Court such a witness is not cross-examined. When the legal representative of the accused is practically certain that his client will be returned for trial he generally reserves his entire defence. If such evidence is subsequently given in the Circuit Court at the discretion of the judge it is impossible to weigh the effect it will have on the jury. If the Minister is not prepared to accept the amendment as it stands, he should at least insert another paragraph stating that the judge must warn the jury that such evidence was not subjected to cross-examination in the lower court.

I am in favour of the amendment. The sub-section as it stands at the moment is a somewhat peculiar one. Where an accused person's sanity is in issue a jury is usually empanelled to try that issue. Evidence as to the sanity or otherwise of the accused is very often given by experts. Here in this sub-section the court, which, I presume, is the judge, is asked to state, seemingly without any evidence being produced at all, as to whether a particular witness is likely to recover within a reasonable time. It may be that medical evidence is produced that the witness will not recover. It may be that contradictory medical evidence will be produced on the other side that he will recover. Again, the issue arises as to what is a reasonable time. One judge may hold that a month is a reasonable time. Others may hold that six months is a reasonable time. What medical authority can definitely state that a particular witness will or will not recover within a reasonable time? There is an illness in the Workmen's Compensation Act which is described as "malingering". It is very difficult for a medical man to decide as to whether or not a person is a malingerer. I think the amendment is a very reasonable one, and I would ask the Minister to accept it.

I am prepared to accept the amendment. It certainly appeals to me.

Amendment agreed to.

With regard to the section itself, I would ask the Minister to consider it in the light of what Deputy O'Higgins has said in regard to his amendment and the effect of it. Certainly the section is much improved by the acceptance of Deputy O'Higgins' amendment.

Section 9, as amended, agreed to.

I move amendment No. 16:—

After the word "battery" in line 8, to insert "shall be construed as references to" and to delete the word "are" in line 9.

This amendment is suggested in order to make the wording of the section clearer. I do not know whether the Minister thinks it is necessary to make the alteration.

It is a drafting amendment.

The section as it stands at present reads as follows:—

"(1) In this section references to common assault and battery are to offences under Section 42 of the Offences against the Person Act, 1861."

My amendment seeks to insert after the word "battery""shall be construed as references to" and to delete the word "are" after the word "battery". It is a matter for the Minister.

It is purely a drafting point. I am bound by the view of the parliamentary draftsman on that particular matter. If the Deputy withdraws his amendment, the matter will be considered.

Amendment, by leave, withdrawn.

I move amendment No. 17.

To delete sub-section (2).

I think the Deputy could take amendments Nos. 17, 18, 19, 20 and 21.

They refer to different sections but the same principle is involved.

Common assault and battery arises under Section 42 of the Offences against the Person Act, 1861.

The Deputy understands that we are debating the principle of amendments Nos. 17 to 21, inclusive, I think, on amendment No. 17.

The principle, yes. In 1861 they had not the same sympathetic approach to common assault as we have now. In 1861 the whole idea behind punishment was to make it very severe. But even in those unenlightened days the maximum penalty was two months' imprisonment.

Now, in 1949, we are going to make 12 months the maximum sentence of imprisonment. I am talking now from recollection when I say that I think the maximum monetary penalty in 1861 was £5. In this year of grace we are going to make that £50. I do not think we should stand for that. That was the position almost 100 years ago, when they used to transport people—or if they did not do it in 1861 it was done shortly after. In the period when they would hang a person for a very simple larceny such as for the larceny of a lamb—giving rise to the famous expression that it was as well to be hanged for a sheep as for a lamb—they considered that, for this offence, two months' imprisonment and a monetary penalty of £5 was sufficient punishment. That has lasted almost 100 years. Nobody, I think, in the interval and certainly nobody within the last 25 years can come to the conclusion that that penalty in the District Court in regard to common assault was too lean. Therefore, I oppose that particular section. I oppose any increase in the penalty attaching to common assault.

What is common assault and battery? It may be just a punch on the nose. It may not even reach that stage of seriousness. But if it goes beyond common assault and becomes assault with intention to injure or assault that, in fact, causes injury then there are other ways of dealing with it. But, for the ordinary common or garden assault, the present penalty, I think, is sufficient. I understand that the same principle runs through the other amendments. As a matter of fact, these were alternative——

——amendments. However, I am of opinion that the law which has lasted for almost 100 years in regard to common assault is good enough and that to increase the penalties from two months' to 12 months' imprisonment and from £5 to £50 would be an unreasonable increase in jurisdiction and that we ought not to agree to it.

Assault of any description is serious always. In this enlightened age, the fellow guilty of assault, even a punch on the nose should be made realise that he is not back 100 years ago; that we are coming on a bit and that what was permissible 50 years ago on a fair day is not tolerated now. The Deputy is approaching the matter from a wrong angle. I am quite prepared to admit that, in my opinion, the increase is too stiff. I am prepared to examine some figure in between the existing penalty and the penalty proposed in this Bill. With that in view I want it to be clearly understood that I am not lessening in any way what I regard as the seriousness of an assault, no matter how simple. We should at this stage of the world's progress be able to do our legitimate business without any of these offences taking place and if they take place, the guilty person should be taught a lesson. I want to let the culprit know what exactly was thought about the matter.

I had a feeling, while Deputy Cowan was making his case for the amendment, that he was leaving himself open to the reply which the Minister has given him. I suggest, however, for the Minister's consideration that, serious as an assault may be, an offence of common assault is usually made the subject of a charge in cases where it is obvious that the intent was not seriously criminal, that the mens rea of real criminal intent was not there. The case I would make to the Minister in support of the amendment is that where there is a degree of gravity in an assault, then, of course, steps can be taken to proceed against the party responsible on a different charge, under the Offences Against the Person Act or on a charge of occasioning grievous bodily harm or attempting to occasion grievous bodily harm. I would suggest to the Minister that while the argument which he advances is unanswerable in many respects, at the same time it does not go so far as to meet the case made by the amendment. I think there is open to the prosecutor always, where there is that degree of gravity in an assault, the line of making it the subject matter of a more serious charge.

I thought I might not have to go into this detail, but common assault is a very simple matter. Any unlawful touching of a person, without that person's consent, is an assault in law, and where that unlawful touching goes beyond bounds —results in bodily harm or in the drawing of blood—you have charges of a more serious nature than common assault. When I referred to 1861, I was of opinion and am still of opinion, that it was not such an enlightened age as to-day in the matter of punishment, and that there was a certain brutality attached to the Legislature in those days in regard to the punishment for offences. If we trace the whole criminal code, and the type of punishments that have been imposed right down the years, we find that the further we go back, the more grievous, the more serious and the bigger was the penalty imposed. As we come down to these more enlightened days, the tendency has been to lessen punishment. That is the setting in which I drafted my amendment and on which I put it forward here.

Where an assault as I understand it, the unlawful touching of another person without that person's consent, arises, that is not very serious and £5 in money or two months in prison is an adequate punishment for the offence. Any increase beyond that would be unreasonable. In fact, I think a sentence of two months for common assault is much too high. However, I was prepared to leave it as it stands—two months or a monetary penalty of £5. I do not think that any justice has ever complained, at least not to my knowledge, that the amount of imprisonment is inadequate. I do recollect a particular judge on appeal saying that it was not enough but never have I heard a district justice, who has to deal with this type of case very frequently, complain that the penalty was not sufficient. Not only that, but it is very seldom that the district justice will impose the maximum fine. Frequently here in Dublin seven days or 14 days is the term of imprisonment that is imposed and these sentences were imposed in cases where there might have been a more serious charge.

If we were to increase the penalty from two months to 12 months it would be an immediate indication to district justices to take a more serious view of the ordinary common or garden assault. The result would be that right throughout the country district justices would say: "Well the Legislature has increased the penalty from two months to 12 months. They must consider this a very heinous offence altogether. I am very sorry but I shall have to send you to jail for six months." Where the law has been reasonably satisfactory, where none of us can point to any instances where the penalty has been found inadequate, we should leave the law as it stands. You often get these offences in connection with other offences. The prosecution for these other offences may fail. It is in these circumstances that you may have declarations that the penalty attached to common assault is not sufficient. I would ask the Minister to accept the amendment and to delete the subsections which provide for that unreasonable increase in the case of ordinary common assaults.

I cannot accept the amendment just at this moment but I should like to remind Deputy Cowan of what he said a moment ago in regard to monetary values. I take it that we could increase the monetary penalties.

Yes, we would have no objection to that.

The argument the Deputy put forward a moment ago was that a term of imprisonment represents a fine always. I heard him use the phrase: "Seven days or 10/-."

Forty shillings or seven days.

Forty shillings or a month—never less. If we take the value of a £10 note at the time to which the Deputy refers, it would represent a fairly hefty term of imprisonment now. However I am prepared to re-examine the matter. I think the penalty is too high myself but I cannot go the distance the Deputy is asking me to go. I would suggest that he should leave it at that.

One thing that strikes me is that we are inclined to overlook sub-section (4) which reaffirms the civil remedy open to a complainant. Take the case of a vindictive complainant. The justice is unaware whether the complainant is going to exercise the rights conferred on him under sub-section (4), in imposing a penalty under sub-section (2). If the section could be amended so as to indicate to the court that, in addition to imposing a penalty, compensation up to say a fixed sum of £50 could be awarded to the complainant, then it would avoid the necessity for civil proceedings and at the same time the court would have the satisfaction of knowing that the penalty imposed by the court would be the final penalty and that no other penalty by way of decree or otherwise could be awarded against the defendant. As I said, the justice may decide that a case of common assault or battery is a case for the maximum penalty, unaware of the fact that later another judge in another court may add to that penalty by way of a substantial decree for common assault.

Largely for the reasons given by Deputy O'Donnell, I ask the Minister not only to consider some reduction in the sentence and the fine as provided for in the section but, if he is not going to meet Deputy Cowan's amendment, to consider a very substantial reduction. I do not agree with Deputy O'Donnell to the extent that a district justice should there and then give compensation for the injury as well as imposing imprisonment or a fine. But I think the Minister should bear in mind that, with the civil remedy in the background, the imposition of a heavy fine by the district justice might not only be a hardship on the accused, but also a hardship on the injured person. The accused person would, possibly, feel bound, for the sake of his own skin, to pay the fine in the first instance and then to worry himself about any civil debt outstanding to the injured party. I would urge on the Minister to consider a very substantial reduction in the amount of the fine.

As regards not agreeing with Deputy O'Donnell's suggestion that the punishments should be imposed simultaneously, I think it is usual in the case of common assault or battery that the accused is brought before the District Court within a very short time of the commission of the assault. On the other hand, in the case of a civil remedy, the assaulted person might not be able to prove conclusively the extent of the damage he might have incurred as a result of the assault. He might be laid up for a considerable time and might incur consequential damages which he would not be able to prove before the district justice at the hearing of the charge of assault.

I think Deputy O'Donnell is to be complimented on his very pregnant contributions to the discussion of these sections. He certainly has drawn the attention of the House very forcibly to the effect of sub-section (4). As things stand at present, where an accused person is charged with a common assault, there are circumstances in which the determination of that by the district justice precludes any civil action. In other words, when the case came up, the accused person went to jail for a period not exceeding two months or there was a monetary penalty not exceeding £5. In certain circumstances, the determination of that and, in fact, in certain circumstances the dismissal of the charge against him prevented any civil remedy for common assault. Now the Minister has made the accused liable to be brought forward in the civil court for damages, because he prescribes in sub-section (4):

"The adjudication of a complaint as to common assault or battery shall not affect any civil remedy that the complainant may have against the defendant in respect of the subject matter of the complaint."

That is an added penalty on the unfortunate person who may have lost his temper to the extent of hitting somebody in the nose. For these additional reasons, while I am prepared to go with the Minister to the extent of an increase in the monetary penalty because the value of money has changed, I could not consent to any increase in the period of imprisonment that would be awarded for an ordinary common assault.

I agree with the view expressed by the Minister on this question. If the monetary penalty is to be increased, logically the Minister is bound to increase the term of imprisonment. As the Minister said, and as Deputy Cowan agreed, it is always in the alternative. Perhaps the term of 12 months might be a bit too much—I am not sure that it is—but at any rate I think that, if the monetary penalty is to be increased, the Minister must, in ordinary logic, provide for an increase in the term of imprisonment as well.

With regard to Deputy O'Donnell's point, which was taken up by Deputy Cowan, referring to sub-section (4) of Section 10, I am open to correction, but I understand that that, in fact, is not altering the present position of the law. I think it is only put in here for the purpose of clarifying any doubt which might exist. I do not think the prosecution of a person in the District Court for common assault affords him any protection at all at the moment against a subsequent civil action by the person injured.

I do not want to press my point of view unduly on the Minister, but I should like to hear what answer he has to the case some of us are trying to make that there is an adequate method of dealing with any form of common assault which is taken out of the category of being a very minor offence.

If there is in the Minister's mind a feeling that there is growing throughout the country a demand that the penalty should be increased, that there is necessity for the penalty to be increased, then he should tell us so. But my submission is that the Minister has not indicated that there is any real necessity, any demand, any public feeling that the penalty should be increased. The Minister should bear this in mind and I should like to know if there is an answer to it. There is at all times an adequate method of dealing with persons guilty of any type of assault which any circumstances remove out of the category of a very minor offence. I would urge strongly on the Minister to consider that aspect.

You mentioned it yourself in your speech. It is true that we can bring a more serious charge. But it is equally true that, because it is a serious charge when we so bring it, the district justice can reduce the charge. It is when he is reducing the serious charge to one of common assault that we want to give him power to inflict a punishment to fit the crime. Is not that reasonable? On the other hand, if the initial charge is one of common assault and battery, I think it would be unreasonable for any district justice or judge to inflict such a penalty. I am giving power if he reduces the offence——

You do not say that.

I have undertaken to examine the matter. Notwithstanding the fact that the value of money has depreciated, I have stated that it is too much and that I am prepared to reduce it. To what limit I am prepared to go I am not able to say at the moment, but I think that less than half would be reasonable enough.

The Minister himself would never impose a sentence of 12 months.

On the Report Stage, I think you will be fairly satisfied. If you accept that, well and good.

Amendments Nos. 17, 18 and 19, by leave, withdrawn.
Section 10 agreed to.
Amendments Nos. 20 and 21 not moved.
Sections 11 and 12 agreed to.

I move amendment No. 22:—

In sub-section (1), line 51, to insert the word "if" after the word "and".

This is a drafting amendment which, I think, should be considered by the Minister.

It will be examined.

Amendment, by leave, withdrawn.

I move amendment No. 23:—

Before sub-section (2) to insert a new sub-section as follows:—

(a) The amount of any surety entered into under sub-section (1) shall in no case exceed ten pounds.

I am moving this amendment because there is present to my mind a case such as this: a Civic Guard takes a man into custody in certain circumstances and may not be disposed to impose fair sureties on him. It was suggested on the Second Reading of the Bill that it might not be constitutional for a Guard to have this power of imposing recognisances or sureties. Suppose a Guard arrested a person who was a particularly difficult type he might be disposed to impose sureties of a very high nature on him. It might not be possible for the arrested person to get such sureties. Suppose he did and if he later absconded, his sureties would be left with the prospect of having them estreated. I am asking the Minister to consider whether or not the sureties imposed by a member of the Garda Síochána should not be limited.

This system has been in operation for a long time in the city. The commissioner has made it a rule that £10 is to be the maximum. If the Guards think the sureties should be more, then they have to bring the arrested person before the district justice or a peace commissioner. I do not think it would be right to tie them down to £10 absolutely. I may say that this system has worked very well for years. We are only extending to the country what has been in operation in the city for a long time. I think Deputy Lynch will agree with me that the Guards in the country are as well able to handle a situation as a station sergeant is in the City of Dublin.

I would say to Deputy Lynch that in Dublin the system has worked exceptionally well. I think if it did not it might be necessary to have larger, and more, detention rooms in the Garda stations. When a fellow is brought into a station, the station sergeant keeps him until he thinks it is wise to let him out. He then signs a bond for £10 and out he goes. The same thing does not apply in the country, where a person is kept in until he is brought before a peace commissioner. Under this section, the local sergeant in the country, if he considers it prudent to do so, may decide to let a man out on bail. I do not think any good purpose would be served by putting in the figure of £10. I think the section is a wise one. It will enable the Guards in the outlying areas, in circumstances which they think are desirable, to let a man go home on his undertaking to attend for his trial at the next sitting of the District Court. In some cases, if there was to be a £10 bail, the local Guard might say that he would not let the man out. The purpose of the section would be defeated, I think, if we were to insert a limit.

Amendment, by leave, withdrawn.
Section 13 agreed to.

I move amendment No. 24:—

In sub-section (2), line 1, after the word "brought" to insert the words "as soon as may be".

I think it has been construed judicially that the words "as soon as may be" have the same effect as the word "forthwith". This is really a drafting amendment, the purpose being that this sub-section should be in conformity with the provisions in other Acts.

I am accepting the amendment.

Amendment agreed to.

I move amendment No. 25:—

In sub-section (2), line 1, to add the words "appointed for" after the word "commissioner" and to delete the word "in".

As the section stands, I do not know whether it is intended that if there happens to be a peace commissioner, visiting or otherwise, in a district he may be availed of. If that is not the intention, I was wondering whether the matter might not be made more clear on the lines I suggest in the amendment.

Generally speaking, a peace commissioner has jurisdiction in the county in which he resides and in the surrounding counties.

I will have the matter examined.

Amendment, by leave, withdrawn.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to.

Is amendment No. 26 met by amendment No 27?

I believe it is.

I do not think so; it is not altogether the same. I move amendment No. 26:—

In sub-section (1), paragraph (a), line 39, after the word "may" to insert the words "on application as provided in sub-section (2) of this section".

If this amendment is accepted, the sub-section would then read:—

"The Circuit Court sitting in any circuit may on application as provided in sub-section (2) of this section transfer the trial of a criminal issue from the place in which it is required by law to be held to any other place in the same circuit."

I do not think there will be any objection to that amendment.

I think my amendment is the better one.

In that event, an order of the Circuit Court under this section may only be made on the application of the Attorney-General or an accused person. There is a similarity all right. The only reason I put down the amendment was to provide that it can only be done in accordance with the provisions of the section. I merely wanted to make that clear. I really think the Minister's amendment and my amendment cover the same point.

I am assured by the parliamentary draftsman that this is a simple and more direct way of doing what the Deputy aims at doing.

Yes, I think it is.

Amendment No. 26, by leave, withdrawn.

I move amendment No. 27:—

In sub-section (2), (a), line 48, after "may" to insert "only."

Does that mean that the judge cannot do it on his own?

Yes, it can only be done on the application of the Attorney-General or on the application of the accused.

I am quite satisfied.

Amendment agreed to.
Amendment No. 28 not moved.

I move amendment No. 29:—

In sub-section (2) to delate paragraph (c).

I propose, in this amendment, to delete paragraph (c), which says that the order of the Circuit Court shall be final and unappealable. I feel, as I said on the Second Reading, that there are serious matters involved in the transfer of the trial from one area to another. An application may be made by the Attorney-General and may be granted. I feel that the accused person should have the right to appeal against that order in the same way as he would appeal against any other order. If it is to be final, and if it may not be appealed against, then it places the accused person in a serious position, or may put him in a serious position.

I recommend that the paragraph should be deleted and that a right of appeal against the order should be there, so that the accused, if he thinks that he is being unfairly treated because of such an application, would have the right of appeal and have his appeal heard in the ordinary way.

Suppose the accused applied and got an order, would the Attorney-General have the same right?

Yes, we should give it to anybody who wants it.

This application can only be made by the accused or the Attorney-General. The Deputy has talked about the accused person. He says that if the Attorney-General makes the application there should be certain rights. I put him the question that, supposing the accused makes the application, has the Attorney-General the right to appeal?

In a case like this there should be finality. It is essential in the interests of both parties that when that decision is come to it should be finished at that particular stage and we should not be opening up a new set of lawsuits and appeals. The case would then be worse than when it started.

On broad general principles the right to appeal, even against an order of this nature, should be limited as little as possible. I ask the Minister can he recall on how many occasions such an application was made by or on behalf of an accused person?

We are now putting it into legislation that the accused has the right.

On how many occasions has such an application been made by an accused person?

I cannot recall any particular case, but I am aware of some cases where the prosecution did apply.

I am aware of them.

If there is to be an appeal, the accused and the Attorney-General must be in the same position. There must be equality of rights so far as that is concerned. If the Attorney-General applies and the judge grants the order in opposition to the strenuous efforts of the accused person, then the accused ought to have the right to appeal. I think the Minister should agree to the deletion of the paragraph.

This is merely to expedite procedure, to hurry matters up, and I do not think the Deputy should press the amendment.

In view of what the Minister says about further consideration, I will not press the amendment at this stage.

Amendment No. 29, by leave, withdrawn.

I move amendment No. 30:—

In sub-section (2) to add after paragraph (c) a new paragraph as follows:—

(d) The trial of a criminal issue shall not be transferred under the provisions of this section if additional costs and expenses are imposed on the accused person by reason of such transfer.

The cart comes before the horse here in the consideration of this section. As the Minister and the House are aware, I am entirely opposed to this question of transfer. The machinery of consideration, however, is that I must deal with the section and the amendments to it before I raise the main objections to the section as a whole. In the preparation of this amendment I was tied down by a very stringent rule which says that a Deputy cannot put down an amendment that may impose a charge on public funds. If there was no such limitation I would have put the amendment in a different form. I would have said that where the trial had been transferred any additional costs and expenses imposed on the accused should be met by the State. Not being able to put the amendment in that form, I was driven back to saying that the trial of criminal issues should not be transferred under the provisions of this section if additional costs and expenses are thereby imposed on the accused person.

I am endeavouring to get the Minister to meet me by agreeing that where additional costs and expenses are imposed by virtue of a transfer, those costs and expenses will be met by the State. A person may be resident in the town or vicinity of Dundalk. I take that because it is the biggest circuit in the country. That person may have there a local solicitor and counsel, both men of ability and merit, who are prepared to defend him at a fee within his capacity to pay should the trial take place in Dundalk. If, however, the trial is transferred to Wexford that will necessitate the accused person, his solicitor and counsel, and any witnesses he may have travelling down to Wexford at his expense. It will necessitate hotel expenses in Wexford and it will necessitate return travelling expenses to Dundalk. I consider that a very heavy imposition on an accused person. Where additional expenses are imposed by reason of a transfer and where the State is not prepared to meet those expenses the trial should stop where it is. I think the House will agree on that. No accused person should be embarrassed to the extent that he is unable to provide for his own defence because of the burden imposed upon him by reason of transfer. I appeal to the Minister to accept this amendment.

I regret that I cannot accept the amendment. I think it would nullify the whole machinery. If the accused person himself makes application for a transfer, should his expenses be met then? I do not think anyone could reasonably ask that. I am satisfied that such an application will only occur in extreme cases. The case instanced by Deputy Captain Cowan of a transfer from Dundalk to Wexford is ridiculous and would not occur under any circumstances that I can visualise. There is a Central Criminal Court here in Dublin. There are several other suitable places to which a transfer could be made with very little expense. This amendment gets away from the fact that the judge on his own motion may transfer. I think one is on very safe ground there. Until some further step is taken to introduce free legal aid, this amendment cannot be adopted. I ask the Deputy not to press his amendment.

I can visualise no case where an accused person would apply for a transfer from his own county to another county. That being so, the bulk of the applications under this section would be made by the Attorney-General. Possibly in a very exceptional case one might come across an extraordinary type of defendant who would prefer to be tried elsewhere than in his own county. Earlier to-day we discussed the importance of providing depositions free. One need not go to the extreme step of bringing a case from Dundalk to Wexford. I can quite visualise a case going from Dundalk to Trim or to Dublin. I can visualise a case going from Wicklow to Wexford. I can visualise a case going from Longford to Westmeath, to Tullamore or to Roscommon.

I can visualise that in the future. Suppose a man in County Longford is charged with an offence and he has ten witnesses in Longford and suppose his case is transferred to Mullingar, Tullamore or Roscommon, the expense of bringing his witnesses to Tullamore, Mullingar or Roscommon will fall upon him. One might perhaps overcome the difficulty with regard to witnesses, but the accused person will have to make the journey at his own expense. He will have to pay the costs of his stay in any of these places or he may have to pay the costs of travelling up and down every day. Undoubtedly, the transfer of a trial will impose additional costs and expenses on an accused person. In those circumstances, and as it is in the interests of justice that the transfer should take place, then I think it is only reasonable that we should provide that whatever additional costs and expenses are imposed on the accused person by virtue of the order of transfer should be paid by the Attorney-General. That really is the effect and purpose of the amendment although, to get by the Orders of the House, it would have to be put in another way.

There is the very obvious objection to this amendment that its acceptance would make the transfer of a trial impossible in any case. I cannot visualise a case in which a transfer would not entail some extra expense on the accused person. That obvious objection is not the objection that the Minister has made. On the basis of doing justice to the accused person and of giving him fair play, I think Deputy Cowan has made an unanswerable case and I do not think the Minister has made any case at all or any answer in support of his attitude to the case made by Deputy Cowan. I quite appreciate that the Minister could not accept the amendment as it is framed—nobody could accept the amendment as it is framed. What Deputy Cowan is trying to get the Minister to say is: "I will meet Deputy Cowan by providing that in cases of transfer the State may stand in and bear the extra costs in court." I think that is a very fair and reasonable request and it is one which I would urge the Minister to accept and adopt. The difficulty is that the amendment, as it is framed, cannot be pushed because it would be silly to accept it.

I thought I had answered the Deputy's case reasonably. If I were to adopt Deputy Cowan's proposal it would mean that in a number of cases free excursions would be run from one Circuit Court to another in certain cases. The thing would get out of all hand and out of all proportion. It would be an unreasonable expenditure to accept at this particular time. I have mentioned that there may be some other proposal for dealing with legal aid for accused persons, and so forth, which would, in itself, include expenses, but I insist that this is not the place to do it. In that way, there is something being inserted here which, in my opinion, nullifies the whole section. It would be better to take it out altogether.

Is it reasonable to put the expense on the accused?

Suppose the accused puts it on himself by making the application? There is an injured party.

One case in 1,000.

I cannot accept the amendment.

The Minister understands why the amendment is in the form in which it is on the Order Paper?

It is very clearly understood. I think it is very subtle, as a matter of fact.

As the Minister knows, I have a very strong objection to this section altogether. The Minister might mollify me somewhat if he would agree to meet the additional costs and expenses thrown on the accused through a case being transferred on the application of the Attorney-General. Is that not fair? If the Attorney-General applies for a transfer, if the judge grants it and if there are additional expenses and costs imposed upon the accused by virtue of that, will the Minister agree that that should be met? I could not meet the Minister fairer.

There are so many questions that I have to examine that I think I would have to recommit the Bill again. I am prepared to have that matter examined to see what can be done in that case. It involves a financial consideration of an unknown nature.

It will not be much. There will be no excursions, anyway.

Amendment No. 30, by leave, withdrawn.

On behalf of Deputy T.F. O'Higgins, I move amendment No. 31 which stands in his name:—

To add a new sub-section as follows:—

(3) An order shall not be made under this section unless the court is satisfied that a fair trial is unlikely to be obtained or that a trial cannot be held in the place from which it is sought to transfer the trial.

The amendment speaks for itself. I do not say that it does any more than restate what is or should be the position or what really is the position. I take it that Deputy O'Higgins' motive in putting down this amendment was in order to ensure that the practice would not grow up that questions of convenience would be taken into consideration and that the only reason for the transfer under the section would be that the court was satisfied that a fair trial was unlikely to be obtained —in other words, that minor considerations in any circumstances should not be permitted to apply.

On behalf of the Minister for Justice may I say that there is no serious objection to this amendment? Looking at it casually there might possibly be something implicit in the amendment which might possibly destroy the entire machinery of the section. As the amendment stands it seems unobjectionable. The section, as originally drafted, does not say in what circumstances the court is to transfer the case from one part of the circuit to another. Presumably it would be held that the circuit judge would have to exercise judicial discretion for reasons given. It just may be that to give this particular injunction to the court might cut down his discretion in other respects. If the Deputy will allow the amendment to stand over, I shall have it examined by the Attorney-General to see if it fits in with the framework of the section.

Under the circumstances, I shall not press the amendment. If I were satisfied that there was implicit in this amendment something which would nullify and render nugatory the section I must confess that I would pursue it with a great deal more vigour.

Amendment, by leave, withdrawn.
Question proposed: "That Section 17, as amended, stand part of the Bill."

The Minister has helped by his approach to make the section less objectionable than it was on the Second Stage. Before I come to the aspect of opposition to it, there is one point which worries me. The application for transfer may be made by the Attorney-General or an accused person. What I want to know is whether the accused person may select his county of trial. If he is a Louth man with family connections around Trim, may he make a case to have his trial take place in Trim? Why I am raising the matter from that point of view is that the Attorney-General, in his application, will very likely specify the place where he wants the trial to take place. If he does not specify it, or if it is not his duty to specify it, or if it is not the duty of the accused to specify it, then it is left to the judge to select the place where he would like to have the accused transferred. That really was the ground on which there was strong objection to the section on the Second Reading of the Bill. I do not know whether the Taoiseach can answer now what the machinery of transfer is going to be. Will the State Counsel say: "I am instructed by the Attorney-General to apply to have this case transferred from Longford to Mullingar"? He gives his reasons for that. In that case can the judge transfer to Mullingar and to Mullingar only? I think the impression we all had was that that was the effect of the section. If the accused himself makes the application, which is most unlikely, will he say: "I want this trial to take place in Mullingar", if he is a Longford man, or will it be left to the judge to select some place in his circuit where he will bring the accused, the State and everybody else?

I think that, apart from any objections I may have to the section as a whole, that particular aspect needs clarification because I gather that the view of some Deputies anyway is that this power should not be left to the judge. We have already by an amendment to sub-section (2) provided that an order of the Circuit Court can only be made on the application of the Attorney-General or of the accused person. In other words, we have deprived the judge of the right to make an order of transfer on his own. I do say that if the Minister will provide the costs and expenses in the same way as under the last amendment we dealt with, there will not, or cannot, be the same objection to the section. My objection to the section is that in the normal way in criminal procedure in this country a person is charged and tried in his own circuit area. He is tried before jurymen from his own county. That has almost become a principle of justice from usage over a long period. I feel that the very best people to try a prisoner are people from the locality, who are in fact his neighbours, who may be able to understand local conditions and to bring very intelligent minds to bear on the issues before them.

There is another very important aspect, that, generally speaking, local juries are not anxious to convict unless a case has been proved conclusively and beyond reasonable doubt. In fact, I have known local juries to remain almost all night going into the issues and, having considered them very carefully, arrive at the very proper decision that the accused was not guilty.

He was defended by the Deputy, doubtless.

I can see a different case where a person is taken away from his own neighbourhood into another county and the jurymen there say to themselves: "What the devil have we to do with this trouble in another county? Let us get through with the job as quickly as we can. They would not have brought him up here were it not that they wanted us to convict him. Let us find him guilty and get home to our tea." I do not want to say that in any condemnation of juries because I have great respect for the jury system. But there is a difference between a man's neighbours trying him on a charge that they know in the ordinary way must come before them, and a jury trying a charge that has been imported from another county, put before them in accents that they do not recognise, and almost in language that they do not understand. You can have that. In actual fact there might be a gross miscarriage of justice, due to the fact that a particular accent was not understood.

The Minister at no stage has given any indication as to the reason why this section was inserted. I am not aware that there has been any great desire expressed over a long period that trials should take place somewhere other than in the county of which the accused is a native. I am well aware that judges in the past have made observations that jurymen were not doing their duty. These observations, of course, were completely uncalled for. They were completely unmerited and, in the administration of justice, they were, I think, undesirable because, in actual fact, though jurymen may make mistakes, they do not make as many mistakes as judges and I do think it wrong that one branch of the administration of the criminal laws should criticise another branch. I am not aware that there has been any desire expressed by the people as a whole for this power of transfer. I am not aware that there has been any desire expressed by the judges. I am not aware that there has been any desire expressed by the police authorities but the very fact that the police authorities or the judges would require the provision of this power would make me very doubtful about it.

Looking back on 27 years of the administration of the criminal law here, I think everyone will agree that, on the whole, the criminal law has been very well administered by the courts and by the juries empanelled to try the cases. We have a period now which is free from what one might call serious crimes. There are no crimes or offences coming before the courts right through the length and breadth of the country that are not ordinary and due to the ordinary frailties of human nature. When we have reached the position that, right through the whole of the country, Circuit Court judges are being presented with white gloves and from the Bench from time to time are congratulating the people of their area on their law-abiding state and the Gardaí on their attention to duty, I cannot see any reason for the introduction of a section such as this which makes such a tremendous change in the law and may have the effect of transferring trials in a number of cases from one county to another where the same sympathetic approach will not be made by the jury to the problems involved.

I mentioned on the Second Stage that in the old days it was quite a common practice to transfer trials from Kerry to Cork for the purpose of having Kerry men convicted. Over the years, one of the general complaints in regard to Cork arose from that long-standing practice. Deputy Hickey, I know, stands up and talks for Cork. But, if he looks back in that way, he will find that many Kerry men were convicted in Cork City, of course not by the kind of people the Deputy represents. I would not like to see developing here a system whereby the Longford people would be convicted by the Westmeath people and vice versa. We might enter into a competition as to which juries would convict the oftener. For these reasons, I am opposed to the section as introducing something that is unnecessary and which, I think, may do harm in the future.

One of the difficulties I find frequently about dealing with Deputy Cowan's arguments is that it is so difficult to know whether or not he is being serious in the points he makes. He mentions that the Minister did not on the Second Reading give any good reasons for the necessity for this section. I cannot say that I recollect distinctly that the Minister gave reasons. But I know that reasons were given by some Deputies as to why this section ought to be adopted. I myself gave one specific example where the jury had disagreed on the first trial of a man and again on the second and it was then learned that five members of the jury had the same surname as the accused. In that case application was made by counsel for the Attorney-General to have the trial transferred to the Central Criminal Court and that application was acceded to. As a matter of fact, a strong point was made by counsel that he had ascertained that five members of the jury bore the same surname as the accused.

Was that "innocent man" convicted?

He was when he came to Dublin. If we only had that case alone it would be a very strong argument for the section. Obviously, our intention here is to try to do justice as between the people and the person who is accused of wrong-doing and this section will, I think, help to a great extent to achieve that aim. There have been objections, of course, to the section which we have dealt with in the amendments. There is no point in going over all these again. As to the question of expense, as the Minister has promised to consider that, I am opposing this amendment and supporting the section.

I may be wrong, but I think that, as the law stands at present, on the application of the Attorney-General a case can be transferred to the Central Criminal Court only. I look upon this section as one to relieve the burden on Dublin juries. These jurors must be persecuted with all the cases which are brought to the city. I remember cases which were brought to the Central Criminal Court in Dublin and I thought it was not fair that they should have been brought. The jurors in the country should have their share of these cases.

I think Deputy Boland has put his finger on the whole reason for this section. In one sense, it is in ease of the accused whom Deputy Cowan has so much at heart. Some time or another, when Deputy Cowan starts to prosecute these criminals, his attitude will change. I have had the advantage of being on both sides, but mostly on the side of those for whom Deputy Cowan has been speaking. This section is very largely essential in the interests of the accused. Deputy Boland has really stated the purpose of the section, because the only power that exists at the moment to transfer a case, even where the interests of the accused require it, is contained in Section 54 of the Courts of Justice Act, 1924, and the case can only be transferred to the Central Criminal Court in Dublin. The accused got no additional costs or expenses when that happened. Quite a number of cases may easily occur to Deputies of the type which come within the ambit of the section.

Deputy Cowan has pictured the case of the accused wishing to be tried by his fellows in the county who know him. Very frequently the last thing which the accused wants to happen is that the people who know him well should try him, because they know too much about him. Although they are warned that the case is to be tried on the evidence before them, they know the man and feel that, if he is not guilty of the offence, he is guilty of something else. Very frequently that enters into the minds of juries. Therefore, Deputy Cowan's pathetic picture of the accused person wanting to throw himself into the arms of the people who know him does not always work out quite in favour of the accused. More frequently this section will be made use of by the accused rather than the Attorney-General. There may be cases where the accused knows very well that the local people know he is guilty. There may be other cases where such an amount of local feeling has been aroused that the accused person could not possibly get a fair trial and it would be in his interest, and certainly it might be in the interest of the State, that the Attorney-General should apply to have the case transferred.

I do not think that any of these matters which Deputy Cowan has put forward so eloquently really touch his heart as much as he would have the House believe. He made one point about who is to select the place. Presumably, the judge is, on the application of either the Attorney-General or the accused person. Either of these applicants will have to say where he wants it to be transferred and will have to give reasons for it. The function of the judge will be to bring his judicial mind to bear on the application and to exercise a proper judicial discretion. The judge is supposed to be, and I am sure in every case is, impartial, and is fit for his job. Otherwise, he would not be appointed. You must trust somebody. I do not think anybody, however wise he might be, born on this earth could frame a section relating to the criminal law about which Deputy Cowan and this House would not make the most extraordinary statements, and would refer to the most lurid cases that were not covered by it. This section is for the purpose of giving a wider scope to the accused and to the Attorney-General in proper cases, and of securing that the interests of justice, whether they be the interests of the public or the interests of the accused, are seen to. I think there can be no grounds for Deputy Cowan's fears.

Section, as amended, agreed to.

I move amendment No. 32:—

In sub-section (1) to delete all words after the word "court" in line 54 down to and including "them" in line 61 and substitute therefor "shall, if so requested by the accused, and may, if satisfied that it is in the interests of the accused and the accused makes no objection thereto, order the exclusion of the public from the court during the preliminary investigation and the prohibition of the publication in writing or otherwise of any information in relation to the proceedings;".

Section 18 was discussed at considerable length in the Seanad. It provides for the clearing of the court and the prohibition of reports of proceedings. There has been quite a lot of public interest in this section. As it stands, it provides that the court, if satisfied that it is expedient in the interests of the accused or because of the indecent or obscene nature of the offence, may exclude the public and prohibit the publication or disclosure of information in relation to proceedings or any part of them and impose restrictions or limitations on publication or disclosure. In other words, the structure of the section would be changed by the adoption of my amendment. If the accused so requested, it would oblige the court to order the exclusion of the public from the court. But, notwithstanding that the court may, if it considers it expedient in the interests of the accused to exclude the public, it can only do that if the accused raises no objection. Now, there may be circumstances in which an accused person may require that the case should be reported in the Press. The type of trial may be of such a nature that it is desirable that publicity of some kind should be given to the fact that the accused person is on trial on that particular charge. The difference between the section as it stands and my amendment is to oblige the court, if requested by the accused——

In the case of every indictable offence would not the accused, naturally, want the court cleared?

It may be that that may be so. It may be that if an accused person wants the court to be closed for the taking of depositions that, at the moment, he can apply to the justice to have that done.

But he does not force it.

No. My amendment is that, if the accused so applies, the justice shall do that. My reasons for that are that, on the taking of depositions, evidence for the State alone is presented. There may or may not be an opening statement by the solicitor or counsel representing the Attorney-General. All the evidence may be published, and so the public, including the people who will be the jurymen hearing the case, will know all about it from the publication. If an accused person feels embarrassed by the publication of the evidence given at the preliminary hearing he should have the right to apply to the court for the exclusion of the public and for a prohibition on the publication of the evidence given at his trial, so that he may come before the Circuit, or the Central Criminal Court without the evidence against him being made public, or without any prejudice being created against him.

In a famous English case—the Rouse murder trial—at the preliminary investigation, the deposition stage, a considerable lot of evidence was admitted and was published in the English Press that was prejudicial to the accused person. When the accused came to stand his trial, all that evidence was ruled out as being inadmissible. That was a case in which writers on such topics considered that the conviction of the accused was brought about largely by the publication of evidence that was not admissible at his trial at all.

The Minister will realise that it is quite possible that at the preliminary investigation, the deposition stage, evidence may be tendered and may be objected to, and that that evidence, if recorded, may prejudice the accused in his defence. For that reason I strongly recommend this amendment, which goes somewhat further than the section. In my view, it would go a long way towards the proper administration of justice. It will be a considerable help to an accused person if he is to appear on trial in the Circuit or the Central Criminal Court; it will be a great help to him if the evidence at the preliminary investigation is not given publicity.

I could not accept this amendment. It is rather peculiarly worded. There may be something wrong with parts of the section, but the Deputy's amendment is rather obscure. This would compel the district justice, no matter what the circumstances were. If the accused makes the application, the court must be cleared. The wording of the amendment it rather peculiar—"and may, if satisfied that it is in the interests of the accused and the accused makes no objection thereto, order the exclusion of the public from the court...." The application is made by the accused and then, if the accused has no objection, the court may be closed.

I do not think there is any person on an indictable offence who would not make an application to have the court cleared. My experience of courts is that a person charged with an indictable offence would make the application because he does not want publicity. One of the objects of the courts of justice is that there is publicity and the chief opposition to this section was that there would be any danger of closing any court under any circumstances. Notwithstanding Deputy Cowan's case, I do not think that this amendment can be accepted. I suggest that the Deputy, having made his case, should withdraw the amendment.

I regret I did not make myself clear in regard to the amendment. I understand that on other sub-sections there will arise the matter of the courts being open to the Press and otherwise. But this is a preliminary investigation and the Minister in the section says that the court may, if satisfied that it is expedient in the interests of the accused, do certain things.

That is "may" and not "shall".

My view is that there is no person better able to know what is expedient in the interests of the accused than the accused himself or his legal adviser. If they go to the district justice and say: "We are satisfied that it is expedient in the interests of the accused that the depositions should be taken in camera,” then my amendment provides that the justice must close the court.

He "may", if he is satisfied.

No, he must. The point I am making is that the accused is the person who knows best whether it is expedient in his interests to close the court. His legal advisers know it; they know the type of defence that will be made. They should not be asked to disclose that in the court. If senior counsel tells the justice: "I am satisfied it is expedient in the interests of the accused that this case should be heard in camera”, then my amendment provides that the justice must hold it in camera. That is perfectly reasonable and fair. Supposing no such application is made, the justice may have a whim about it and he will say: “I think it is expedient in the interests of the accused that it should be heard in camera”, and will so order. If the accused does not agree to that, then the case cannot be heard in camera.

It is quite possible that there may be such cases. It has happened in the political history of this country that certain accused persons were anxious that the fullest publicity should be given to the charges against them. The accused person may have done something for a political reason and he may be very anxious that the public should know he was charged with a particular offence and that certain evidence was being given against him. Under the section the court may prevent that person bringing his case to the notice of the public by saying: "It is expedient in the interests of the accused that the case be heard in camera”, whereas it would be expedient against the interests of the accused to hear it in camera. I think my amendment is perfectly reasonable and I urge the Minister to accept it.

I hope the Minister will not accept it. I suggest that inadvertently Deputy Cowan is doing something he does not want to do. We have already subscribed to the principle that the courts should be open. The Deputy is endeavouring to make it compulsory to have the courts cleared if the accused so applies.

Merely at the preliminary investigation of an indictable offence.

It does not matter what is the stage of the hearing. If the amendment is accepted it will mean that no case could be aired at all until such time as the accused finds himself before the Circuit or the Central Criminal Court. At the preliminary investigation there is only one side of the case heard anyway. If you accept the amendment you will be denying a right we have been trying to safeguard. I would oppose violently the closing of the court except in very specific and stringently defined circumstances.

I suggest the court should be closed in the interests of the accused.

Under your amendment, if the accused makes the application the district justice must comply. If the accused is not legally advised he may make an ill-judged application, with serious consequences to himself.

That is his funeral.

I urge the Minister not to accept the amendment, because I do not think it is a desirable principle.

The principle is in the section.

That is limited and there is nothing compulsory about it. Deputy Cowan is anxious to introduce what I consider is a fundamental attack on our belief that the courts should be open. If Deputy Cowan were prepared to leave his amendment in the permissive rather than in the compulsory stage, there might be some merit in it. In the form in which he suggests it, I think it would completely hamper the work of the court. It certainly excludes the Press in a way that I think unworthy in view of our general belief that the courts should be open.

I feel compelled to support this amendment as strongly as possible. I think Deputy Cowan has made a very strong case for it. With all respect to Deputy Collins, I think he is off the track altogether. The whole matter turns on the preliminary investigation by the district justice and his decision as to whether or not there is a prima facie case against the accused. At that stage, in theory at any rate, one has an innocent man until the verdict is brought in.

How does the preliminary hearing held in public make him anything other than an innocent man, if he is innocent?

It may build up prejudice in the public mind against him.

Could it not build up the reverse also?

It might do that, but under the amendment he has the option of having it heard in open court. I think Deputy Cowan's idea is an admirable one. He believes that where the accused or his advisers think a preliminary investigation in open court prejudicial, then it should be the right of every citizen to have the power to say: "I object to this publicity at this stage; I want this preliminary investigation carried on behind closed doors."

Would it not be simpler to make it the law that no preliminary investigation shall be held in open court?

As a matter of fact that would probably be the effect of the amendment.

That would hardly be desirable.

I see nothing objectionable in it if the accused's advisers believe it to be in his interests. If you push Deputy Cowan's argument to its logical conclusion, one might be forced into the position of having to make public all the preliminary investigations carried out by the Guards.

That is the American system.

I do not think Deputy Cowan would go as far as that.

I cannot understand how you have managed to twist my argument into that.

The Guards investigate every avenue. They examine the mass of material they collect and they take out what they deem to be relevant. That mass of relevant matter is placed before the court. On the hearing of that the district justice makes up his mind as to whether or not he should return the accused for trial. There can be no prejudice to the State in having the preliminary investigations carried on behind closed doors. But there might be very grave prejudice to the accused. He could be prejudiced to such an extent but it might not be possible for him to get a fair trial. It seems to me that Deputy Cowan's amendment remedies that very undesirable situation.

I would like to say a word or two on Deputy Cowan's amendment. One has to remember always that in connection with these matters there are two interests to be served—the interests of the accused person and the general public interest. Both Deputy Cowan and Deputy Timoney have looked at one side only— the interests of the accused person. Will the House consider for a moment the case of a wealthy man charged with an offence? His one wish is to keep that out of the newspapers. He goes round now and does his best to keep it out by seeing reporters and others in an effort to ensure that there will be no publicity. Let it be said that he very rarely succeeds in his object. There are cases where persons do not want it to be known that they are charged with crimes. People of that kind want to avoid publicity. Now this amendment ensures that that publicity will not be given.

We must start with the principle enunciated in Article 34 of the Constitution. I am disposed to the view that the first part of Deputy Cowan's amendment is definitely unconstitutional. Article 34 lays down the general principle that justice must be administered in open court and that it is only in special and limited cases that publicity may be avoided. I suggest that a provision under which every case, on the application of an accused, will be held in private runs counter to the spirit and to the letter of Article 34 of the Constitution.

It does not apply to every case.

It applies to every case where the accused asks for it. To put it no further, I think there would be just as strong an argument that that is not a special or a limited case and it is, therefore, outside the provisions of the Constitution. In considering this amendment, as in every other amendment to this section, we must start with the provisions of the Constitution. Even if those provisions were not in the Constitution, my approach to a matter of this kind and to the general administration of justice would be to ensure the fullest possible publicity for all trials, civil and criminal. From that principle there would be excepted certain types of cases where it is obviously undesirable that there should be publicity. Such obvious ones are indecent cases.

I recognise that there are some cases of the type Deputy Cowan and Deputy Timoney are trying to protect. There may be sensational types of cases—cases that are splashed by the newspapers during the preliminary hearing—where the accused may undoubtedly be prejudiced at his subsequent trial by the publicity given to him. That is a case which we should all endeavour to safeguard and that is the only type of case to which we should address our minds here in an effort to discover how best to give that safeguard. I do not think there can be any safeguard in saying that, if the accused desires it, the court should be cleared and all publicity avoided. If the fullest publicity is not given, the suggestion will be made that there is something queer going on behind closed doors. The answer of Deputy Cowan and Deputy Timoney will be that that is the accused's look out. I do not think it is because the public interest must also be considered. So far as I am concerned, I want to emphasise that it is my wish to find some way of safeguarding the rights of a person who is accused, and who comes for trial before a District Court, on the preliminary investigation of his offence from adverse results arising from undue publicity. At the same time, there is the very desirable principle that the public should know what goes on in the courts, what types of crimes come before the courts, how the district justices are conducting themselves in the examination of the offences that come before them, and other matters of that kind. The problem is to find out what is the best provision to safeguard the interests of the person who may be unduly prejudiced against undue publicity. I do not think that the difficulty is solved by saying that every time the accused wants a private trial he should get it automatically from the district justice. That will undoubtedly lead to serious results. Deputy Cowan may honestly think, and I am sure he does, that it is in the interests of the accused that there should be a mandatory provision on the district justice to give him the type of trial he wants, either public or private. Consider, however, what may happen behind closed doors, even if the person thinks he is doing himself a good deed. He may find himself up against certain very undesirable methods in the prosecution. Consider that aspect of the matter very carefully. It is a matter that could completely nullify whatever benefits an accused might think he would get out of it. It is true the matter has to be tried again. Nevertheless, great damage might be done and not only to the accused but to the administration of justice if a complete cloak were thrown over the matter at the whim of the accused who was desirous to safeguard himself from publicity even for a short space of time.

The section as drafted was an effort to meet the point of view I am putting up. If it does not do that, I think the Minister is open to suggestions on it. The section as it stands at the moment does give safeguards for the accused and for the public because it enables the district justice, if he refuses information, eventually to allow publicity in a case where he has refused it at the start, or, in a case where there is publicity and during the course of the case he refuses information or sends it for trial; he then has control over the situation in the end.

I think Deputies should consider very carefully the amendment by Deputy Cowan. The amendment is attractive from one point of view—from the point of view of a person accused at a particular time, the accused always wanting to avoid publicity. The public has to be satisfied (1) that justice is being administered properly and (2) that neither the prosecution nor the district justice do anything behind closed doors that they would be ashamed to do in the light of publicity.

I was somewhat surprised by the reaction to this amendment. I was especially surprised when Deputy Collins raised a particular hare. I understood that this whole question of trials in open court would be considered at a later sub-section of this section. I am very strongly in favour of trials being held in the open and being open to all publicity. When I say that, I refer to trials in court. I intended, when we came to the consideration of sub-section (2) of the section, which provides for the closing of a court of trial and to subsequent sub-sections in that section, that I would make my position perfectly clear that I believed in the open court and in the evidence being given in open court and the Press being there to hear the evidence given in open court.

With all respect, I think that the considerations that have been advanced on that line are not altogether relevant to this particular argument. When the Taoiseach comes out with the Constitution against my amendment it is a very big gun to draw into this battle. I should certainly like, from my limited experience, to consider the particular Article of the Constitution which provides for the trial of cases in open court. But this is not the trial of a case in open court. This is a preliminary investigation on which the justice has simply to find whether or not a prima facie case has been established against the accused person. That is not a trial. That is not a court in the accepted sense that it is a court of trial. It is simply a preliminary investigation in which the State comes in and puts before the district justice certain evidence. They say: “On that evidence we ask you to return the accused for trial before a competent court.”

The Article of the Constitution does not refer to trials.

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

"Justice", not "trials". I do not know what the different meaning is. That is from Article 34 of the Constitution.

The Minister brings in a section in which he says that on the preliminary investigation of an indictable offence the courts may, if satisfied that it is in the interests of the accused, hold the case in camera. If my amendment is unconstitutional, then that is unconstitutional.

I know. But let us approach this from that point of view.

The Taoiseach's argument was that the Constitution says "special and limited cases." He argues that to give an accused person the right at all times to say: "I do not want my case to be heard in public" is not getting inside the framework of "special and limited cases." That is the only argument.

The section as put forward here by the Minister says that the court may if it is satisfied that it is expedient in the interests of the accused——

That is a very definite limit in a special case.

It is limited but if that is to be judicially interpreted, there is only one person who knows whether it is expedient in the interests of the accused or not and that is the accused's adviser. The section does provide that if it is considered expedient in the interests of the accused, the district justice may close the court. I say that once we accept the principle that it is the interests of the accused that are to govern this matter, then the persons who know best what the interests of the accused are are his advisers.

If he has no legal adviser?

If he has no legal adviser he is the best judge himself.

He might be his own worst enemy.

It does not matter. If he has no legal adviser he is the person who knows best whether it would be in his interests to have the charge investigated in the open court.

Then any person who wants to have his case tried in camera can have the court closed?

Deputy Fitzpatrick was not here——

I have been here for a long time.

We are not concerned with the question of the trial of an offence nor are we concerned with a prisoner. We are concerned with an accused person at the preliminary investigation of an offence. The section says that the interests of the accused are to be the dominant matter.

The section does not say that. If the court thinks, that is, if the justice thinks.

If the court is satisfied that it is expedient in the interests of the accused, it may do it.

I am only pointing out that there is an independent authority put in as between the State and the accused.

The accused person is brought into court but it is not a court of trial. It is a preliminary investigation to see whether, in fact, there is any evidence at all on which he should be sent forward for trial. The accused person says to the justice: "It is not in my interests that this case should be held in open court."

He does not even have to say that under the amendment. He says: "I want the court closed."

I am dealing with the section at the moment. The accused person or his advisers, perhaps distinguished leaders of the Bar, say to the district justice: "We believe that it is in the interests of the accused that this investigation should be held in camera and that there should not be any publicity about it.” A district justice in one part of the country may say: “Well, these distinguished gentlemen put this up to me and I am bound to accept their views.” In another area the district justice may say: “I shall not accept that at all. I shall hold this investigation in open court, open to the public.” Where is the consistency of justice? Are we not left entirely at the whim of a particular justice? Is that justice?

Your alternative is to leave it to the prisoner.

That is the position as it stands in the section. I want to know is that justice? In my view, it is not justice. Once the overriding principle of the interests of the accused is accepted in this section, the next point that arises is the machinery to give effect to that. My amendment provides that if the accused person goes before that investigation and says to the district justice: "It is in my interests that this investigation should not be held in public," there cannot be any whims on the part of the justice, that he must there and then order that this preliminary investigation be held in camera.

Notwithstanding the Constitution.

I am not arguing the Constitution now or the big gun in this.

It was a very popular thing in 1937 when put before the people.

I am not frightened by the big gun because I say this section, as it stands, is equally unconstitutional if my amendment is unconstitutional.

There is a very big distinction between the Deputy's amendment and the section.

They are only distinctions of machinery. I am quite prepared to argue that if this section is constitutional my amendment is constitutional. It is only a question of determining who is to decide whether it is expedient in the interests of the accused, whether it is the accused or the district justice that is to decide that. I go further. Under this constitutional section, the district justice can close the court although the accused person himself wants to keep it open. My amendment provides that if the district justice wants to close the court, and the accused person does not want to close it, then the district justice must keep it open. That is the second clause in my amendment. I certainly cannot see the unconstitutionality of that, where the accused person wants to keep the court open so that the public will know that he is being charged with an offence and this is the type of evidence that is being brought against him.

As I said in the beginning, I most certainly am not an authority on constitutional law. I am only looking at the section and at my amendment from the point of view of the Article of the Constitution that has been read out by the Taoiseach. I believe that the Constitution cannot be interpreted to be the means of a grave injustice to a person. The Taoiseach talked about the case of a man of wealth charged with an offence who did not want the fact that he was charged with the offence published. We are dealing now only with the preliminary investigation. If there is a prima facie case against that man of wealth, he will be sent forward for trial and when he comes forward for trial all the evidence for and against him will be published in the newspapers but whether he is a man of wealth or a man of straw, I think it is unfair that one side of the case—which is the case against him— should be given publicity if he thinks it is not in his own interests before he comes before a judge and jury. As Deputy Timoney said, in the process of justice there is another stage, the stage of inquiry by the Gardaí when they go round to collect statements and bring people to interrogate them in the barrack rooms. Is that stage to be made public also on the American style?

It is not an investigation before a court.

It is the administration of justice as set out in the Article of the Constitution which, unfortunately, I have not before me at the moment. Between this and to-morrow I shall look up this Article of the Constitution.

And the corresponding Article in the 1922 Constitution.

I will. I want to put this case as strongly as I possibly can, not in the interests of the accused or of the people, but in the interests of justice as between the accused and the people.

I move to report progress.

Progress reported; Committee to sit again.