Dáil Éireann debate -
Thursday, 9 Nov 1950

Vol. 123 No. 4

Criminal Justice Bill, 1949—Committee (Resumed).

Debate resumed on amendment No. 41.

Mr. T.F. O'Higgins

I think I said practically all I wished to say last night with regard to this proposal. We are all agreed that an offence under Section 30 of the Road Traffic Act, 1933, is a serious offence, not so much from the point of view of the criminal content of the offence itself, as from the point of view of the effects the offence may have on other ordinary peaceful users of the roads. That being so, it is only right that the offence should be treated in a special way by the Oireachtas. There are two ways in which it can be so treated. One way, and I think it is the better way, is by giving power to a justice or judge to impose a heavy sentence. I think that is both a reasonable and proper way of dealing with an offence under that section and of marking our view of its seriousness. The other way is that adopted in the existing section of the Road Traffic Act of giving to a justice power to impose a comparatively light sentence, but providing also that that conviction shall bring about the automatic suspension of the offender's permission to drive a motor vehicle.

In the amendment proposed by Deputy Boland we are faced with the proposition that the Minister's powers of mitigating a sentence should, under no circumstances, apply to a disqualification imposed under Section 30 of the Road Traffic Act, 1933. I think that proposal goes too far. I think it is merely proceeding further in what I regard to be the wrong direction in the original section. While that section remains, and we are not dealing with it in any way under this measure, I think that Deputy Boland's proposal should be confined to the minimum statutory disqualification set out in Section 30 of the Road Traffic Act and that we should provide in this amendment that the Minister should have no power to interfere with the 12 months' disqualification, but that he should, as Minister for Justice, equitably exercising his prerogative of mercy, have full power to reduce in a proper case any disqualification imposed to the statutory minimum of 12 months.

We have all had experience of what I shall describe as "hard luck" cases, where a man's entire livelihood has been taken away from him by a disqualification imposed under Section 30. There may be some who will say that the offender deserves his punishment. Possibly, in many cases, he does deserve it. But one cannot test the rights or wrongs of a matter of this kind by the application of a general rule. The matter must be tested on the merits of the case. Undoubtedly, there are deserving cases. Deputy Cowan mentioned one last evening where, in his young and salad days, a man had his licence taken away from him for life; in later years he changed his mode of life and settled down. Surely it is unreasonable that we should deprive the Minister for Justice of power to give that man back the State's permission to drive a mechanically-propelled vehicle. While there is a good deal to be said for the amendment, I think the amendment as it stands goes too far. I think it would be sufficient if it provided merely for no interference with the statutory minimum disqualification under Section 30.

Mr. G. Boland

As far as I am concerned, I stand by what I have suggested. With regard to petitions, before I left the Department of Justice the thing was getting almost automatic. There was scarcely a case dealt with in the courts following which there was not some sort of a petition. Speaking from recollection, there were 1,700 petition cases coming annually before the Department before I left there. I may be wrong as regards the figure, but the Minister can correct me.

General MacEoin

The number is fairly large.

Mr. G. Boland

What was really happening was that there was scarcely a case decided by the courts in which there was not a petition made. The result was that we had to set up a special section in the Department. As far as I remember, we had junior officials—not the higher officials— making recommendations to the Minister contrary to what had been done by the courts. If the House is now going to add another type of petition, to add something that was never done in my time or, as far as I know, since the State was set up, I do not know what the position will be. These petitions were not made in respect of disqualification under the Road Traffic Act. My advice always was that, apart altogether from the statutory disqualification, the Minister had no authority to remit any disqualification. As I said yesterday, it was only the other day that there was another legal opinion on the lines suggested by Deputy O'Higgins, that there was a discretion after the minimum disqualification had been served.

I think that the door ought not to be opened in this case. Apart from everything else, I think that the justification for this amendment is evident. It is in a special class. As I reminded the House yesterday, not only are we getting faster cars but we have far more cars on the road now than we had when the 1933 Act was passed. Therefore, the danger is very real. The roads are also becoming faster. It is all very well to talk about people losing their livelihood. But other people have to be considered. If a person in charge of a car gets on the road in a drunken condition, then he is putting the lives of other users of the road in danger. The loss of their lives has to be put against the loss of his livelihood. People of that kind will have to find some other means of a livelihood if they will not behave themselves when using the roads. If the section goes through as it is we are going to have a big increase in the number of petitions. I always felt myself that this matter of petitions was a bad practice.

This Bill was in preparation before I left office. There was an intention to include civil cases. I know that if the responsibility was mine, I would think seriously and would hesitate before bringing a section dealing with remissions before the House in this form. I certainly would ask the Government about it. I regard this as a dangerous thing. What this means is that you are advertising now to all and sundry that they can come along as the Minister will have full power to remit. The courts may do what they like, but it will be said: "All you have to do is to get on to someone, to some person in the constituency or in a Party." I know that in my time I had people of all Parties coming to my office. It was packed with people from every Party to put the screw on the Minister. If this power is now given by the Oireachtas, people will say: "All we have to do is to put on sufficient pressure and it will be all right, and the courts can do what they damn well like." For these reasons, I would hesitate to bring in the section. I certainly would never have stood for giving the Minister further power, the power to remove a disqualification which he never had before. I warned the Minister at the time that it was a very foolish power to look for. I intend to press the amendment.

General MacEoin

I want to assure the House that this is a power that no Minister for Justice wants to have. At least I, personally, do not require it, and I am sure that no Minister for Justice would be anxious to have it. At the same time, I want to say that no Minister for Justice would exercise it in the circumstances that Deputy Boland has stated. This section gives the power of remission in a case where a person has been convicted of an offence of which he is innocent. Its purpose is to stop even one injustice. There must be power somewhere to remit in a case where an injustice has taken place, where a person has been wrongly convicted, or where there is sufficient evidence to show that the penalty should not have been imposed. Remember, this disqualification is in the nature of a penalty and the power to remit the penalty is not being taken. It is being legalised fully in this section.

I am satisfied that the power of remission should be inherent somewhere. The House yesterday, in its wisdom, decided that the power of remission should be delegated by the Government to the Minister for Justice. That being so I think the House should leave it at that. If it does not, I, personally, will not be sorry. At the same time, I do not think that the Minister and the Government can run away from their responsibilities. This is a power that they must and should exercise if and when the necessity arises. I would remind Deputies that it must be a very dire necessity. It must be a case in which a conviction has taken place and a penalty imposed in which it should not have been. I say that is the only ground and the only reason why this power should be in the section at all.

I agree with Deputy Boland that I have been advised, as he was advised, that the Minister for Justice had not the power to remit this penalty. But there was a worse situation. It was legally argued that the Minister for Justice could submit to the Government a proposal to remit, and that the Government could advise the President to remit it in the same way as any other statutory punishment, such as the death penalty in the case of murder. That applies to much more serious offences than this, that there is the power of remission in certain circumstances. Therefore, I put it to Deputy Boland and to the members of the Opposition that they should not withhold this power from the Minister. I am only the custodian at the moment of whatever powers the Minister for Justice should have. If I were speaking just for myself I would throw it overboard, but in asking for this power I am speaking not for myself but for future Ministers for Justice. It will be there until the law is changed again. I think the House would not be acting wisely if it were to withhold this power from the Minister for Justice. I feel so strongly on it that I propose to leave this to a free vote of the House. I am doing that because I think everyone should take responsibility for this. I do not want it to be argued that I am running away from my responsibility. I am not. I do not think the Government want it either, but at the same time I am a custodian and I have my responsibilities and nothing can relieve me of them.

Deputy Boland yesterday evening made a charge and said there was a fellow driving a car in the Counties of Roscommon and Longford and that it was a public scandal. I told him it was the first I had heard of it and it was. I think that, on consideration, Deputy Boland will realise that the charge he made was against the Guards in not doing their duty. I want to assure him and the House that no instruction of any description has been issued from the Department, or from any section of the Government that I know of, to the effect that the Guards should disregard somebody or something in that particular case. I should like to draw the Deputy's notice to the last phrase in the statement of the judge when he imposed this disability—that not only could this man not drive a car for five years but that if a Civic Guard finds him taking one drink he serves the term of imprisonment which was remitted. Therefore, I have no responsibility in that matter. The charge that Deputy Boland makes is that the Guards for some reasons are not carrying out their duties.

Mr. Boland

That is right.

General MacEoin

It is a bad thing if they are doing any such thing.

Mr. Boland

It is happening.

General MacEoin

I sincerely regret to hear it and, as far as I am concerned, I shall get after them and I trust that the people who are responsible will suffer the penalty as well as the person involved. It is a very serious charge to make in this House against the Guards and I think it should not be made lightly. I am assuming that Deputy Boland is fully aware of the circumstances of the whole case. I think he is because from information I have received, I think he knows as much about it as anybody else. I can assure the Deputy that so far as the remission was concerned, the Minister for Justice had no responsibility in that case. It was a case tried by the district justice and the Circuit Court judge.

Mr. Boland

I am glad the Minister has made that statement because the Guards will know now where they are.

General MacEoin

It is as well to have a thing like that clarified. The judge's decision in that case was that if that person—the exact words are, "if it comes to his notice"——

Mr. Allen

He is driving a car throughout the west.

General MacEoin

I do not know that and I am in the West of Ireland as often as Deputy Allen.

Mr. Allen

Far more.

General MacEoin

I do not know it; that is the first I heard of it. I think on consideration that Deputy Boland should not press this amendment. I think it is wise to leave that power there. I can assure the House that I do not want it but, at the same time, I think I should not be asked to shirk the responsibility, should one case of injustice arise, of taking power to remit the penalty.

Mr. Lynch

The Minister has answered Deputy Boland's argument on general issues but Deputy Boland's amendment relates to a specific offence and a specific penalty. The Minister has referred to miscarriages of justice generally.

General MacEoin

In this particular instance.

Mr. Lynch

I understood the Minister referred to a miscarriage of justice where a man was wrongfully convicted. The Minister did not say of what offence. The reasons I understood that he generalised were that the possibilities of wrongful conviction in this respect are very limited indeed. Nobody will deny that in criminal cases generally there are possibilities of wrongful convictions because of mistaken identity or something like that. In this particular case, the evidence as produced in the first instance leaves no doubt as to the identity of the person involved. In the second place, as a general rule, the evidence consists primarily of a medical officer's testimony that he had examined the accused person within the matter of an hour or at the very outside two hours, after the offence was committed, with the result that the person's condition at that stage could in no way be in doubt. Apart from that, the State has on its side the evidence of trained members of the Gardaí. Therefore, on the one hand, there can be no mistake as to the identity of the accused person and on the other hand, I think there can be very little doubt as to the condition of the accused person in such cases, with the result, I submit to the Minister, that this is one class of criminal prosecution in which the chances of wrongful conviction are practically negligible. I will admit that circumstances might arise later which would give an altered picture of the circumstances of the individual involved, but nevertheless, the matter is so serious generally and, as Deputy Boland has pointed out, is becoming more serious every day from the point of view of the increasing number of cars and the increasing speed, that a strong stand must be taken in these cases.

If the Minister wants to retain his powers in reference to other criminal offences, nobody will object, but public feeling is so strong with regard to a person in a drunken state driving mechanically propelled vehicles that the Minister would be very unwise to interfere at all. I say this as against my own argument that Section 30 of the Road Traffic Act is very wide, but I presume that when that section was put on the Statute Book due consideration was given to the seriousness of the offence. So far as I can recollect, the section reads something like this, that if a person, as a result of the consumption of intoxicating liquor, becomes incapable of exercising reasonable control over a mechanically propelled vehicle, he shall be liable to conviction. I agree that it is a very wide section. I was not a member of the Oireachtas or anything near it at the time it was passed, but I must admit that the people who inserted that section in the Act must have done it deliberately after due consideration.

Captain Cowan

It was just copied out of the English Act.

Mr. Boland

After full debate in this House I think everybody agreed to it.

Mr. Lynch

Whether it is English law or not, the fact that it has been enacted in this House shows that the public had confidence enough in their own Legislature to endorse its enactment and to approve wholeheartedly of it since it was enacted. Therefore, I suggest to the Minister, in his own interest and the interests of the public generally, that he is taking a very dangerous step.

Mr. S. Collins

An idea has occurred to me in connection with this matter. I think there is a good deal of merit and a tremendous amount of sincerity in the argument which Deputy Boland has advanced in regard to this particular offence and I think we could arrive at an effective compromise if the Minister was agreeable. There is possibly a lot in Deputy Lynch's argument that there is no very great probability of a miscarriage of justice arising under this particular section, but as long as there is any possibility of its arising I think it necessary that the Minister should take power for such remissions. The compromise I suggest is on the lines of the Minister's own answer to Deputy Boland's argument, that he would limit the power of remission in these particular offences to cases where there is evidence adduced to the satisfaction of the Minister that the primary conviction was wrong.

General MacEoin

That would be a re-trial.

Mr. S. Collins

Once the petition comes up to the Minister for examination, if evidence of certain circumstances is adduced that was not adduced in court, which satisfies the Minister that there was a miscarriage of justice, I think everybody in this House would be glad to see the Minister with power to right that particular wrong. That is the finest limitation we can put in the section. I think that between this and the Report Stage it might be possible to find an effective compromise on that basis so that this power would exist for cases that might arise but which might never arise. If such a case should arise, however, the prerogative would be there to cover that individual case. I think that that would meet very fairly all the worries that Deputy Boland has. It is something that could not be done except in one specific circumstance but it would at least ensure that the Government of this country had the full prerogative of mercy so that it could deal with the problem in that peculiar circumstance which might never arise—though the possibility of its arising exists. If a compromise like that could be made we would have met the wishes of this Assembly fully and we would have met the wishes of Deputy Boland fully, I think, also.

Mr. M. J. O'Higgins

I find it difficult to argue with any great conviction either for or against Deputy Boland's amendment. It might be more truthful to put it that it would be possible to argue with equal conviction both for and against the amendment. I think that there is a lot to be said for the point of view expressed by Deputy Boland and Deputy Vivion de Valera here yesterday evening. I believe that there are arguments against giving the Minister power to remit disqualifications imposed under Section 30 of the Road Traffic Act but I think that the arguments which Deputy Boland used are arguments which should not be accepted and which, I think, would not be accepted by Deputy Boland if he were Minister for Justice any more than they were accepted this afternoon by the present Minister for Justice. I do not think it is reasonable to argue on an amendment like this that the amendment should be accepted because if it is not accepted there is going to be more trouble for the Minister for Justice.

Mr. Boland

That is only one side of it.

Mr. M. J. O'Higgins

I agree, but in Deputy Boland's contribution here this evening it was what he pressed as the most important side of it. I took the trouble of reading Deputy Boland's Second Reading speech and he was perfectly consistent. That was the point he stressed and hammered home to the House on the Second Reading: that the Minister for Justice has a diffcult task already with the number of petitions which come before him and that if the amendment is rejected his task will become increasingly difficult and that the Minister should accept representations made not only by one Party but by Deputies of all the Parties in the combination. I do not think that that is a valid argument. The position is that there are so many roads leading to disaster if you have a weak and corrupt Minister for Justice that one more or less will not make any difference. I think it will be accepted that the position occupied by the Minister for Justice is a very special one and one which requires a good man to fill it properly. I would not be at all afraid of giving this power on the grounds that the Minister for Justice would not be able to carry it, and that is the net argument put up by Deputy Boland which I do not think is solid.

On the other hand I agree with everything which Deputy Boland and the other speakers say regarding the necessity to mark the seriousness of this particular offence in some way and I believe that the Legislature had that in mind when it enacted Section 30 of the Road Traffic Act, 1933. I agree that that necessity exists and the idea which most appealed to me in the speeches made on this section was the possibility of framing our legislation so that there would be a minimum disqualification as at present existing in Section 30 of the Road Traffic Act which could not be interfered with by the Minister but that the Minister should be absolutely free in the exercise of his general prerogative of mercy to remit disqualifications over and above the minimum period of 12 months which at present exists. I do not know whether it would be possible for the Minister to give some further consideration to the section with a view to introducing proposals of that sort.

If it comes to a decision between the amendment as it stands at the moment in Deputy Boland's name and the section as it stands at the moment I would have no hesitation in voting for the section. If it comes to a choice of the Minister having these powers to be used in the manner in which the Minister himself indicated this afternoon only in very exceptional circumstances, I believe that the Minister is quite right in saying that if it is only to prevent one injustice, possibly one injustice in a decade or in a century, then it is necessary for the Minister to have that power in order to prevent that injustice rather than that his hands should be tied as they would be tied if Deputy Boland's amendment were carried.

I do not believe that Deputy Boland has been at all unreasonable in the view he expressed and I think it quite unnecessary that a certain amount of heat should have been introduced in discussing an amendment of this sort. When one comes up against an example such as that given by Deputy Peadar Cowan yesterday I think that every Deputy will appreciate that it is necessary that something should be done to remedy the situation. I did not hear of the case until Deputy Cowan mentioned it here yesterday and I know nothing about it. Obviously, it is a very extreme case and is probably the only case of its kind in existence, but it does at least indicate to the House that the law, as it stands at present—or rather the interpretation as it stands at present, because Deputy Boland indicated that there were two legal opinions on the matter—does not seem to be quite right and requires some amendment or modification.

I think that the Minister is very wise and has shown his usual wisdom and broadmindedness in leaving this matter to a free vote of the House. In legislation of this sort, which should be non-controversial and certainly nonpolitical, it is only right that the House should try to discuss it without anything in the nature of a line-up on one side or the other. I would rather find myself in the position of being able to support this amendment but I quite sincerely and honestly believe if the choice is between the section and the amendment that the section should be supported.

General MacEoin

I wish to clarify one point. On the question of an injustice or a miscarriage of justice nothing in this can take away the power from the President to grant a free pardon.

Mr. Boland

On the advice of the Government.

General MacEoin

It must be done in a formal manner. The thing has to go to the Government and the Government has to advise the President to do that. All the amendment does in that case is to ask that if anything like that arises that is the manner in which the thing must be done. There are cases where a free pardon must not necessarily arise, where there should be an examination and where the penalty should be removed. That, I think, can only happen very rarely, but the powers should be there and I suggest to the House that it is in the interests of everybody that that power should be inherent and exercisable in that particular way.

Mr. Allen

What Deputy Boland is seeking to prevent is the setting aside of the powers conferred on the courts under the Road Traffic Act, 1933, in relation to imposing of penalties by the justice in case of conviction.

Captain Cowan

The justice has no power at all in the matter—it is automatic.

Mr. Allen

This House, in its wisdom, when passing the Road Traffic Act, decided that where a driver was convicted of being incapable of driving by reason of drink, certain penalties automatically should follow. Amongst those penalties was the suspension of his driving licence for a minimum period, for a first offence, of 12 months. There were also penalties of three months' imprisonment or a fine of £50. Such convicted person has the right to appeal to the Circuit Court, and, if the Circuit Court affirms the conviction, the penalties in respect of driving cannot be altered. The Circuit Court, however, can quash the whole conviction and no penalty whatever in respect of future driving or otherwise is then applicable. In other words, the person goes free.

Captain Cowan

That is correct.

Mr. Allen

We have had a lot of talk here about the danger of an injustice being done, but we all read the papers and see how hard it is to get a conviction in respect of a charge of drunkenness under the Road Traffic Act.

Mr. S. Collins

Only sometimes.

Mr. Allen

Medical evidence and counter medical evidence is brought forward and it is very difficult for the State to get a conviction. Even if a conviction is got, there is provision in the Road Traffic Act for an appeal to the Circuit Court. That means that a second officer of the State, a circuit judge, will try the case, hear the evidence in respect of drunkenness and and all the other factors involved. If he decides that the conviction shall stand, the penalty in respect of suspension of the licence for 12 months must stand, but he can, if he wishes, remove the fine and sentence of imprisonment.

I remember when this Act was going through the House. If the records are looked up, it will be found that amendments were put down by the Labour Party or the then Opposition to have a statutory penalty of imprisonment which could not be removed by any judge. There were even proposals before the House on that occasion to have statutory penalties of imprisonment on a man convicted of driving a vehicle while drunk. I think it only right that it should be so. You might as well say that if a man who has a licence to have a revolver murders anyone, the Minister could, if he wished, remove any sentence imposed upon him. We know the Government have that power in respect of such sentences, but, if the public at large were consulted, it would be found that the consensus of opinion is that the penalties at the moment are not severe enough in the case of drunken motorists, and nothing we do here to-day should indicate in any way to potential drunken motorists of the future that there is a way out for them. There should be no way out. There should be a minimum penalty with no way out and no Minister in any Government should have the power to remit a minimum penalty in the case of a drunken motorist.

It must be remembered that he gets into his drunken condition voluntarily and then enters a vehicle of destruction, a vehicle of murder, if you like, to drive along the roads. We have an increasing number of motor vehicles in this country and we have narrow corkscrew roads, and the death rate is bound to increase. It will increase fast enough without having drunken men sitting behind the wheels of motor cars. There will be deaths from ordinary accidents where the greatest possible care is taken, without these lethal weapons being placed in the hands of drunken men or men incapable of driving. I appeal to the Minister to accept the amendment and to indicate to the public that this Oireachtas is concerned for the safety of human beings on the roads and to protect them from the drunken motorist in the future. No Minister should have this power, and I am not concerned with the name of the Minister or the Government which is in office.

Captain Cowan

I feel that this whole problem is being approached in an entirely wrong way. The Oireachtas has provided penalties not only in regard to offences under the Road Traffic Act but offences under many other Acts. Offences have been created and penalties set out. With regard to charges of being drunk while in charge of a motor vehicle, I think it goes somewhat further than driving a motor car. I have not got the section in front of me, but I think the disqualification applies to much more than driving a motor vehicle.

Mr. Lynch

Attempting to drive.

Captain Cowan

The law has been settled in regard to that. There are punishments which may be imposed by the court and certain disabilities follow as a matter of course—the suspension of the driving licence for a minimum period of 12 months. That is what the law says. When a person is convicted of being drunk in charge, or of attempting to drive while drunk, undoubtedly he has a right of appeal. The case is heard by the Circuit Court and when the Circuit Court has dealt with it, that is the end of it from the legal point of view. That is the final court of appeal, so far as the law is concerned. It may very well be that the Circuit Court may approach the matter, as I have seen Circuit Court judges approaching it, on the basis of saying: "This was done by the very learned district justice and I am not going to interfere with his decision."

I have been in court and have heard circuit judges making that declaration which was highly improper and wrong, because they were bound to hear the evidence, to make up their own minds and come to their own conclusions, and it should not matter two hoots what the learned district justice did. That is an aspect of appeal that one comes across, although not very often. The younger judges, I think, have no doubts whatever about it, and, in the generality of cases, there is completely new hearing. The circuit judge comes to his own conclusion, irrespective of what was done in the District Court, but there are cases where an appeal has not been heard in the way it ought to be and where there was a conviction because the learned district justice did something which was not going to be disturbed. There are cases—and Deputy Lynch and other lawyer Deputies will know that there are such cases—which are not dealt with satisfactorily by the courts. Any person who has any practical experience of operating in the courts knows that for one reason or another—now and again, not very often—things occur that are not entirely satisfactory. It is always well in these cases that there should be some authority to whom an appeal can be made by way of petition or otherwise setting out the facts that ought to have been considered and that in an ordinary merciful way ought to be taken into account.

I would have the greatest confidence in any person who becomes Minister for Justice in this country that whatever powers are given to him—certainly we are giving in this section the very widest of powers to a Minister for Justice—would be exercised in a very fair way and that whatever decision he came to would be properly arrived at.

Listening to some of the discussions I hear in this House from time to time, some of the appeals for penalties that cannot be touched, I think it is a great thing that Providence, the Almighty Himself, does not run things in that way. There would be no hope for anybody; there would be no mercy. You could never look forward to mercy. Fortunately, our whole Christian concept is mercy. Cannot we have the same concept here? A person may be guilty of a very serious offence. That person may be punished. That person may regret very much that he or she was guilty of that offence and may come to a resolution never to break or infringe the law again. I say that that person is in a different category from a person who does not give two hoots whether he or she breaks the law again and there ought to be some difference. That can only be dealt with by some independent authority like the Minister for Justice or the Government who may consider all these factors and all new factors that may arise. For that reason, and in accordance with certain general principles I have in regard to mercy, I think that the Minister ought to be given the power by this House and that we should give it to him with confidence knowing that in accordance with the tradition of Irish Ministers and Irish Governments, these powers will not be abused.

Mr. Bartley

There can be two views on this question of the application of mercy to this matter. After all, it does depend on the point of view from which you look at it as to how you will apply the mercy. It is all very well to say that somebody who kills or injures somebody else with a motor car will be very sorry afterwards. He would be a most abnormal person if he were not. We have to deal with the normal people, I take it, in our legislation. I think that there is a duty on us to see that we exercise the mercy in the first instance on behalf of the generality of the people, particularly those who are the victims of this very peculiar type of offence. I say it is a very peculiar type of offence, because it seems to me from the number of applications which have gone into the Department of Justice, as Deputy Boland pointed out, and the very special arrangements which we are now making, that there is, apparently, a viewpoint growing up and which has been accepted that there is something different in this type of crime from our conception of crime generally. If that is so and if the Minister accepts that, and he seems to be accepting that by reason of the powers which he wishes to take, I do not think that the matter is suitable to be dealt with under the general principles of criminal justice. I think he should have done the obvious thing if he wanted to deal with the matter at all and dealt with it by an amendment of the Road Traffic Act. After all, it is essentially a matter that has to do with road traffic and I think the issue has been confused by bringing it into a Bill dealing with criminal justice.

With regard to dealing with these petitions from a position of independence, I think that the judges who are specially privileged—more so even than Ministers—can lay claim to a fairer and more independent dealing with a matter of this kind than even the best-intentioned Minister for Justice we might have. The Minister indicated that he would only exercise this power where new evidence and new facts had come to his notice. If that is the position, I say to the Minister that he ought to leave these new facts and that new evidence to the tribunals that are set up for dealing with them.

General MacEoin

A case could not get back to those tribunals.

Mr. Bartley

As this is essentially a traffic offence, will the Minister not consider altering the Road Traffic Act and providing whatever elasticity would be required to bring these cases back again, on the emergence of the new evidence, to the tribunals which are best fitted to deal with them? It is quite obvious that we have put this particular type of offence into a special category of crime. I do not think it is suitable to be dealt with by the application of the ordinary principles of criminal justice and it ought to be removed entirely from this Bill.

Mr. de Valera

I find myself on practically all occasions opposed to the idea of conferring on the Executive, particularly on an individual member of the Executive, powers to override decisions of the courts. There are safeguards to justice in having independent courts. We have many times prided ourselves on the fact that our courts are independent of the Executive, on having independent courts and having hearings in public. Both of these principles are affected when we give to a member of the Executive power to override the decisions of the courts. He is a member of the Executive. Therefore, the separation of the powers upon which we pride ourselves so much is affected by it. In addition to that, the case, so far as the public are concerned, is heard in private. I think these are two considerations which should always be borne in mind whenever there is a suggestion of giving powers to the Executive for the remission of court penalties.

I must admit that the power of mercy ought to lie somewhere and be available in case of absolute necessity. The fact is, as Deputy Cowan mentioned, that if the Almighty were not so merciful most of us would find ourselves in a very difficult position indeed. But the Almighty is able to read the hearts of men and is all-knowing and all-wise. We have not these advantages here in human affairs. We have to provide in our institutions for our own weaknesses in that respect. Consequently, this idea of the prerogative of mercy was a prerogative which was to be exercised only in a very limited class of cases and with safeguards. The prerogative of mercy is provided for in cases of capital sentences.

There are two reasons, I take it, for that. The first is that if there should, by any chance, be a miscarriage of justice there was no way of undoing the wrong at any time: it was final in its character. The second is that the taking of human life under any circumstances is the greatest power over an individual which the State can take to itself. In cases of that sort it is quite obvious that it is desirable that, if any particular fact should emerge which might make it appear that there was the slightest doubt, the Executive should have power, in these extreme cases, to change the punishment. But even there, as I know, the whole process is very unsatisfactory. As far as we were concerned, we were always guided, as far as I remember, by the advice which was given by the judges. It is very unsatisfactory because you have not, as the judge has, the opportunity of seeing the individual or individuals who may be accused of the crime and you have not the opportunity of seeing the witnesses. We are assuming that our judges are not put into responsible positions without being qualified for them. The Executive has not the opportunity that the judges have of seeing the case in full. But there is, at least, the safeguard of a number of people deciding and not an individual who sometimes can have extraordinary views. Consequently, you have some sort of safeguard that the prerogative will not be used in a case where it should not be used. You have also the publicity which comes in a case of that kind. You have, in addition, the formal reference to the President. All these things are safeguards. These safeguards are completely done away with when a Minister receives petitions amounting to the numbers which we have now been told. He is not, as a rule, able to examine them in detail. He has to refer a great part of the examination to members of his staff. The result is that the work which the courts are supposed to do in public is being undone in private.

We ought to be very cautious about any extension of the powers of any individual Minister, in circumstances like these, to remit penalties imposed in the open court by judges or by a judge. I am for the greatest amount of safeguard it is possible to have. I believe in the right of appeal. If there is anything lacking in the way of providing adequate appeal in open court I should be altogether in favour of strengthening our machinery in that regard, but I think it is quite wrong to turn the Executive or a member of the Executive into a secret court of appeal.

Accordingly, I think the Minister is wrong in taking to himself the power of overriding what is a statute— because that is what he is doing. As I understand it, a statute has been passed by this House under which certain penalties are automatically imposed when a decision has been arrived at by the judge on the facts. Now we give the Minister the power in secret to override that statute. I think it is altogether wrong. Personally, I would support, as far as I could, having appeals under which these matters could be tried—and any appeals could be heard in public and by some independent authority. It is a wrong way of doing things to give the power to a Minister.

I may also say that I believe that the Government and the Minister are not doing their duty by the House in allowing matters of this magnitude to be decided by a free vote. How many Deputies are here at present considering this matter? How many Deputies have we in the House at this moment listening to the arguments, pro and con? We have not many. That happens very often. The Government is bound to consider in advance serious matters of this sort and to arrive at a decision upon them. Having come to a decision, they should try to press that decision, if they believe it right, with all their might upon the members of the House. The Government has more experience of these things than the average Deputy has and the members of the Government ought to take their responsibility seriously and give a headline to the House and stand by it. They should not simply say: “We have no responsibility in the matter. We leave it to a free vote.” If the Minister believes he is right and we are wrong, he should press for his view.

Mr. Timoney

That is what he is doing.

Mr. de Valera

That is what he is doing apparently, but what is the final outcome—a free vote. In other words, it is going to be decided by people who are now outside this House, by people who are not here at the moment, and who have not given sufficient consideration to the matter at all. At least, we ought to have an assurance that the members of the Government, as a whole, have considered this matter. We ought to have an assurance that the members of the Government have had a discussion among themselves, and have arrived at a decision upon the matter. If a Party has to take a point of view, the matter will have to be discussed and a decision arrived at by the Party. In that way there is some opportunity of getting the matter dealt with properly. This habit—which has come because of the exigencies of the Coalition—of evading responsibility in regard to anything that causes any difference of opinion at all and saying: "We will leave it to a free vote of the House" is a shirking by the Government of its responsibility to the House and to the country.

General MacEoin

The speech to which we have listened is a speech on the section and not on the amendment. It says that the power that has been exercised and that is exercisable at the moment, without this, should be taken away completely, and that because there has been a change of Government these people should not have it but the others should.

Mr. de Valera

I said "extension."

General MacEoin

In the Constitution which got your benediction and blessing, that you put over the country and that is now accepted——

Mr. G. Boland

And that you opposed as much as you possibly could.

General MacEoin

I did not. I said it did not matter a row of pins; that what we had was as good as it.

Mr. G. Boland

It was not. You had a king in that but we kicked him out.

An Leas-Cheann Comhairle

Now, now!

Mr. G. Boland

A little interlude.

General MacEoin

Let me deal with the matter.

Mr. G. Boland

Certainly. Keep the Constitution going.

General MacEoin

I have to cite it because this Bill is brought into this House under the Constitution. Under Article 13 (6) of the Constitution we read:

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

That is what this is doing. It is making that beyond yea or nay. When the Leader of the Opposition comes in now and says that he looks with horror at some Minister or somebody being set up to examine or review decisions of the court, I think he is not fair to himself.

Mr. de Valera

I did not say I looked with horror. I said I felt myself opposed to the extension of these powers.

General MacEoin

This Bill is only taking and making beyond doubt what is already the existing circumstance.

Mr. Boland

Surely not this amendment.

General MacEoin

If you had not put in the amendment, nobody in the country or on God's earth could know that the Road Traffic Act came in under it. You have given it free publicity and you are, as far as you are able, making it as difficult as you can for me.

Mr. Boland

I will give it more publicity.

Mr. Allen

I know what the Minister would do if he had the power.

General MacEoin

I hope we all have as much manners as Deputy Allen. That would not be much. We will not go into that. I submit, and I put it to the House, that when this power is being given and when it already exists it should be legalised and put on a proper footing, to make sure that where a set of circumstances arises there must be power somewhere, without all the formality that the Leader of the Opposition puts up. I think the House should take it.

The section is a considered Government decision and it is not a free vote but on the question of this, in a sense, minor amendment, I decided to leave it to a free vote because it affects every single Deputy. It is your responsibility. It is a responsibility that I as Minister do not want but, as I said before, I have a responsibility to put it to the House to give this power not only to the present Minister for Justice but to any future Minister for Justice.

Let me in conclusion say that the petition section at the moment is as I got it but with this alteration that no decision is now taken by a junior official; it must come to an assistant secretary at least. All the usual routine is followed. Therefore, no decision of an important nature can take place in a light-hearted fashion.

Mr. Boland

It never did.

General MacEoin

I gave a direct order that the file in every case must come to a senior officer of the Department and that it must be properly prepared, so that when it comes to the Minister for Justice to adjudicate finally on it, if he has to adjudicate on it—I find they reject a lot of them without the Minister seeing them at all, and more power to them; I hope they will continue to do so because it is a great relief—when the decision is taken it is only taken after very grave and careful consideration. I think that no Minister for Justice in this country will ever do it any other way. Therefore, I think the power that you have given in the section should be maintained right through and that the power of remission of any penalty, except capital punishment, should be vested in the Minister in this case as well as in the other one.

Mr. Little

Could the Minister say how many times that power of remission has been exercised, say, over a year?

General MacEoin

It never has been exercised at all.

Mr. Little

Not in reference to the licence to drive but in reference to driving cases?

General MacEoin

Taking the driving cases, I would not be able to answer that off-hand, but remission of disqualification has never been done, as far as I know. I do not think so.

Mr. Allen

They could not do it.

Question put: "That the new sub-section, as set out, be therein inserted."

The Committee divided: Tá, 53; Níl, 65.

Tá

• Aiken, Frank.
• Allen, Denis.
• Bartley, Gerald.
• Beegan, Patrick.
• Blaney, Neal T.
• Boland, Gerald.
• Brennan, Thomas.
• Breslin, Cormac.
• Briscoe, Robert.
• Buckley, Seán.
• Burke, Patrick.
• Butler, Bernard.
• Carter, Thomas.
• Childers, Erskine H.
• Cogan, Patrick.
• Colley, Harry.
• Collins, James J.
• Corry, Martin J.
• Crowley, Honor Mary.
• Davern, Michael J.
• Derrig, Thomas.
• De Valera, Eamon.
• Flynn, Stephen.
• Friel, John.
• Gilbride, Eugene.
• Gorry, Patrick J.
• Harris, Thomas.
• Kennedy, Michael J.
• Killilea, Mark.
• Kilroy, James.
• Kissane, Eamon.
• Kitt, Michael F.
• Lahiffe, Robert.
• Lemass, Seán F.
• Little, Patrick J.
• Lydon, Michael F.
• Lynch, John.
• McCann, John.
• McEllistrim, Thomas.
• McGrath, Patrick.
• Moran, Michael.
• Moylan, Seán.
• O'Grady, Seán.
• O'Reilly, Matthew.
• Ormonde, John.
• O'Rourke, Daniel.
• Ryan, Mary B.
• Ryan, Robert.
• Sheldon, William A. W.
• Sheridan, Michael.
• Smith, Patrick.
• Traynor, Oscar.
• Walsh, Thomas.

Níl

• Beirne, John.
• Blowick, Joseph.
• Browne, Noel C.
• Browne, Patrick.
• Byrne, Alfred.
• Byrne, Alfred Patrick.
• Coburn, James.
• Collins, Seán.
• Commons, Bernard.
• Connolly, Roderick J.
• Corish, Brendan.
• Cosgrave, Liam.
• Costello, John A.
• Cowan, Peadar.
• Crotty, Patrick J.
• Davin, William.
• Desmond, Daniel.
• Dillon, James M.
• Dockrell, Maurice E.
• Donnellan, Michael.
• Doyle, Peadar S.
• Dunne, Seán.
• Fagan, Charles.
• Finucane, Patrick.
• Fitzpatrick, Michael.
• Flanagan, Oliver J.
• Flynn, John.
• Giles, Patrick.
• Halliden, Patrick J.
• Hickey, James.
• Hughes, Joseph.
• Keyes, Michael.
• Kinane, Patrick.
• Kyne, Thomas A.
• Larkin, James.
• Lehane, Con.
• McAuliffe, Patrick.
• MacBride, Seán.
• MacEoin, Seán.
• McFadden, Michael Og.
• McGilligan, Patrick.
• McMenamin, Daniel.
• McQuillan, John.
• Madden, David J.
• Mongan, Joseph W.
• Mulcahy, Richard.
• Murphy, William J.
• O'Gorman, Patrick J.
• O'Higgins, Michael J.
• O'Higgins, Thomas F.
• O'Higgins, Thomas F. (Jun).
• O'Leary, John.
• O'Reilly, Patrick.
• O'Sullivan, Martin.
• Palmer, Patrick W.
• Pattison, James P.
• Redmond, Bridget M.
• Reidy, James.
• Reynolds, Mary.
• Roddy, Joseph.
• Sheehan, Michael.
• Spring, Daniel.
• Sweetman, Gerard.
• Timoney, John J.
• Tully, John.

Tellers:—Tá: Deputies Kissane and Kennedy; Níl: Deputies Dunne and Palmer.

Amendment declared lost.

Question proposed:—"That Section 21, as amended, stand part of the Bill."

Captain Cowan

One matter has struck me in regard to the reduction of sentences. When a sentence is imposed in the court trying the case, that sentence is published for general information, particularly if it occurs in the country, in the local newspapers. If there is an appeal, that also gets publicity in rural areas. When the Government or the Minister exercises this right of review on petition and comes to a conclusion that the sentence should be commuted, mitigated or altered, there ought to be some publication of that fact. I suggest that on the next stage the Minister might introduce a short amendment, that any decision under this section would be published in Iris Oifigiúil. Undoubtedly, this is the exercise of a very important function in a judicial manner. The decision affects an individual and, to some extent, the public. In the public interest, there should be some publication somewhere of that decision, and the only place I think it could be done is Iris Oifigiúil. Therefore, I make that suggestion for the Minister's consideration.

Mr. G. Boland

When this Bill was brought in first, I welcomed it and thought it a good Bill and from the general tone of the debate I thought we would have some chance of amending that particular section. Section 21, however, has made it a very bad Bill. I would ask the Minister to explain about sub-section (2), as to what other disqualifications and forfeitures are involved. I do not think the Dáil should be asked to pass the Bill, without having as much information as we can get from the Minister as to the particular things we are going to do. I mentioned one as I thought it was the outstanding case, that is, the Road Traffic Act case. What others are there? Will there be licensed vintners' licences—if these are endorsed, is the endorsement to be wiped out?—or things of that kind? The House and the public should know the extent to which the law is being changed. I have no fixed notion as to what will be done, but that is one that occurs to me. Deputy Vivion de Valera mentioned it last night. In discussing a matter of this importance, the Minister should be explicit and tell us what he has in mind and what disqualifications and forfeitures may be restored or reviewed under this section.

Mr. Moran

I would also like the Minister to intimate what particular matters he or his Department have in mind under sub-section (2), what particular forfeitures may be reviewed. There has been criticism about these powers being vested in the Minister at all. It means general power to interfere with the decisions of trial judges or of the courts. It might be a better procedure if there were some other body to exercise these functions, particularly the prerogative of mercy, the reducing of sentences or fines. It is a matter that might be better handled, as evidently was originally intended, by the President's Office or by some section which would be specifically set up there to deal with these matters. Certainly, if these matters were to be dealt with in the President's Office, the chances are that so much pressure could not be brought to bear by public men and others interested, as is bound to occur under this as it stands.

There is one point I would like to see written into this Bill, if the Minister would do it on Report Stage. There is no provision in it to ensure that, where a petition does come along to the Minister, it will be sent for the report of the trial judge or the district justice. If this Bill leaves the House in its present form, the position of the law will be unsatisfactory. I do not say the Minister will do this or depart from the practice that has been built up, but there is no provision at law to stop the Minister, completely of his own volition, getting a petition or representations from some Deputy about some case and, there and then, completely wiping out the sentence or fine imposed by the court. I do not think it will be necessary for me to impress on this House the effect that such a practice would have generally on the administration of justice. We know that if it became known to the public that decisions made in open court by judges could be interfered with in that way, it would have a disastrous effect on those carrying out the administration of the law and on the administration of the law generally. I would like the Minister on the Report Stage to introduce an amendment so as to enshrine in the legislation passed by this House the practice that has been carried out already when petitions have been sent to the Minister, that is, that these petitions invariably were referred to the trial judge or the district justice and I think also referred to the Guards for their comments before the Minister exercised his power.

The Minister said a few moments ago that sometimes a number of these petitions are decided by some civil servant in his office without his seeing the petitions at all. If that is so, it is a wrong practice and a disastrous one. If one of these petitions were allowed by some civil servant, it would be putting that man in the position of overriding the judge, who had all the facts before him.

Captain Cowan

The Minister did not say that.

General MacEoin

I did not.

Mr. Moran

I submit to the House that the least safeguard, now that the Government is being given this power, that should be inserted is that the petition in every case should be sent for the comments of the trial judge or the presiding justice who decided the particular case. I do not mean to suggest that, notwithstanding what the trial judge or the justice might say, the Minister would not still have power to override that; but I do think we should have the position at law that if any particular Minister for Justice is about to exercise these powers, he should know when he starts that he is open to be pilloried in this House if he does so from any motive other than a proper one. If we have this amendment in the Bill, he will know that if, notwithstanding the recommendation of the trial judge or the justice, he is going to override all that, there must be certain circumstances he can stand over when his Estimate comes before this House for discussion. I am asking the Minister to have this amendment inserted, so that no matter what Minister for Justice is in office he will know that he is answerable to the House and when he is about to exercise any of these powers he will be doing so at his peril and will have to stand over the particular circumstances in the case before he overrides a decision given in open court.

General MacEoin

Thank goodness I am not bound to read all the futile petitions that will come in. No civil servant decides a case but they do reject; and what I said was that I hoped they would continue to reject without my having to deal with the lot of them. There is no question, therefore, of any civil servant overriding anybody. I want that to be quite clear. Before the petition comes to me a civil servant will have a look at it to see whether it is a fit and proper case to come before the Minister. I do not know whether or not the Deputy realises it but, believe it or not, Governments may come and Governments may go but civil servants go on forever.

Captain Cowan

Unfortunately.

General MacEoin

They have to examine the petition and I may tell you it would take a heavier Minister than I am to shift that method of working. Every petition will go before the justice, the Garda Síochána and the judge, if there happens to be an appeal.

Mr. Moran

Why not write it into the Act?

General MacEoin

Let us not make it more involved than it is. It was simple and decent the way it was. Yesterday you had great confidence in the Minister for Justice. Leave it at that. Have that confidence and trust that the correct thing will always be done. Nothing is being done except what already existed. What disqualifications and forfeitures are being touched? There are very few: an off-licence that is endorsed twice, automatically there was qualification. A person offending under the Electoral Act is disqualified from ever voting again, but I am informed that I have no power under the Electoral Act. Nothing more is being done than is already in existence. As I said, it was to give effect to that particular section of the Constitution that this proposal is made, and I think it is the correct thing to do. Deputy Boland has told you that a good deal of this Bill was already in being before he left office. If he were in my place to-day he would take the same line that I am taking, and I hope that I will get the same support from the Opposition that they would have given to him. There is no reason why, because we change government, these important changes should not be made.

Mr. de Valera

But this was not the rule before.

General MacEoin

It was the rule.

Mr. de Valera

It was not the law.

General MacEoin

I shall tell you what it was. We were exercising a power conferred on us by the King and the Lord Lieutenant, every one of us. You exercised it for 16 years.

Mr. de Valera

Do not talk nonsense.

General MacEoin

Where was the power of remission? Perhaps I had better not argue that. The section I submit is a good one. On the Report Stage I shall examine the question of publicity. One does not publish that a particular person went to confession and, when the prerogative of mercy is extended, I think it is better to leave it so. It may be necessary to issue a statement periodically as to the number of remissions and possibly publish the names, though I do not think it would be altogether wise. However, I shall examine the matter. It does strike me that there may be something in it. I shall not make any promises but I will examine it to see how far we can go to meet the particular point.

Mr. de Valera

The Minister suggested I was talking on the section. His statement must also have been on the section, as it was mainly a reply to me. I cannot see what point he is making about the Constitution and there being any inconsistency in my attitude and what is laid down in the Constitution. It is, under the Constitution, possible to make provision by law for remission of penalties. Here we are making the law; and when it is a question of making law and making provision it is the right of the Oireachtas to decide whether or not it will do a certain thing.

General MacEoin

I am not arguing that.

Mr. de Valera

I have been arguing against the extension of powers. Deputy Boland, former Minister for Justice, believes that this is now a bad Bill by virtue of the rejection of the amendment. If there was a possibility of meeting the suggestion as to publicity in relation to the cases and the remissions that might conform somewhat better to what was the practice when the prerogative was exercised mainly in capital cases, but the exercise is being widely extended now. I do not say the public interest entitles us at any time to be unjust to an individual, but we must consider whether the public should be endangered by any individual who takes control of a vehicle when under the influence of drink. However, we on this side have made our protest to the best of our ability and we are against the section.

Section, as amended, put and declared carried.

SECTION 22.

Question proposed: "That Section 22 stand part of the Bill."

Captain Cowan

There is an amendment to this section.

An Ceann Comhairle

There is an amendment in the Deputy's name, but that amendment was ruled out and the Deputy was so informed 12 months ago

Captain Cowan

It is so long ago that I completely forgot.

An Ceann Comhairle

The point is that "an appeal lies to the Circuit Court from an order of the District Court." The Deputy wants to put in the word "every" there. If you put in the word "every" it would embrace civil as well as criminal justice.

Captain Cowan

I remember receiving the notification.

An Ceann Comhairle

It would include civil as well as criminal, and this is a Criminal Justice Bill. So the amendment is too wide.

Captain Cowan

May I speak, then, on the section?

An Ceann Comhairle

On the section, yes.

Captain Cowan

When I received that notification I should have recast the amendment.

An Ceann Comhairle

That lay with the Deputy.

Captain Cowan

But I thought I would not be in time for the Committee Stage and, getting it 12 months ago, it went completely out of my mind. There is very little left in the District Court against which one cannot appeal. Whether the few that survive against which there is no appeal survive by accident or not I do not know. The section is removing doubts as to whether an appeal lies from an order of the District Court committing a person to a certified school. The section proposes to remove the doubts that exist and to declare that there is such an appeal. There are a few other matters in which the Circuit Court has held that there is no right of appeal.

I want the Minister to consider the position between this and the Report Stage in order to clear up all doubts and leave, as I think everybody agrees there should be, an appeal to the Circuit Court in regard to every order. I think there was one particular case where an order of forfeiture was made under the Police Property Act. There was an appeal from the District Court to the Circuit Court. It was argued at considerable length that there was an appeal and it was argued more successfully at the same length that there was no appeal. I think we should avail of this opportunity to remove all the existing doubts.

General MacEoin

Whether there should be an appeal or not is a matter of opinion. One is in the case of binding to the peace.

Captain Cowan

There is a clear procedure adopted there.

General MacEoin

One cannot appeal against that. That is an end of it. Anyway, everybody should be peaceful. I will have it examined again.

Captain Cowan

May I say this to the Minister in regard to binding to the peace? Everybody thought that there was no appeal in regard to binding to the peace. I understood that was so for quite a number of years, but, much to my surprise, I happened to be in court recently, and saw an appeal being lodged against a binding to the peace.

Mr. Moran

It is a most unsatisfactory type of procedure.

Captain Cowan

It is. I had never come across it before. The case was argued exceptionally well by a young counsel. Here, when a person is bound to the peace in the District Court, you have this cumbersome method of bringing the case to the Circuit Court by notice served. There were two parties involved. The notice was, apparently, served on the Guards, and the State Solicitor felt that he should not come in on the thing at all. The case was not presented in the Circuit Court in the way in which it was presented in the District Court. The Circuit Court judge had before him simply the evidence of two people and of such witnesses as they liked to call. In the end, he decided, properly I think on the evidence before him, that he should remove this binding to the peace.

I feel that, where the Guards have come in in the first instance, they should be represented in the Circuit Court by the State Solicitor to represent, as it were, the district justice or the Garda authorities. I feel that, even in a binding to the peace case, it would be much better for everybody if there was an honest to God direct appeal to the Circuit Court, and have the matter heard in the way it was heard in the District Court. The present procedure seems to me to be very cumbersome. The matter was brought before the court in an ingenious way, and justice may not have been done in the long run.

General MacEoin

I will have the matter examined. That particular motion was brought under Section 55 of the Courts of Justice Act of 1936. It is a cumbersome way of doing it, but, as I say, I will have it examined.

Question put and agreed to.

SECTION 23.

Mr. Timoney

I move amendment No. 43:—

Before Section 23 to insert a new section as follows:—

Section 10 of the Criminal Justice Administration Act, 1914, is hereby amended by the deletion of the word "and" and the substitution therefor of the word "or" in Section 10 (1) (b) of the said Act; and by the deletion of all words from and including the word "prison" to the end of Section 10 (1) of the said Act and substituting therefor "a Borstal institution for a period of not less than two years and not more than three years."

The purpose of the amendment is to simplify the procedure which has to be followed in certain cases where, in the opinion of a district justice, a young offender, as stated in the Act, would be sent to Borstal rather than to prison. The machinery which I am suggesting is that Section 10 of the Criminal Justice Administration Act, 1914, be amended. The position, as created by that section, seems to me to be somewhat curious. It first of all deals with a very limited class of offenders. First of all, the person must be summarily convicted. Under the section, the offence must be one in which the court has power to impose a sentence of imprisonment for one month or upwards without the option of a fine. Therefore, it follows that it must be a serious offence. Then the court must be satisfied that the offender is not less than 16 years old and not more than 21. It must be proved that "the offender has previously been convicted of an offence, or that, having been previously discharged on probation, he failed to observe a condition of his recognizance." A further condition is that if:

"it appears to the court that by reason of the offender's criminal habits or tendencies, or association with persons of bad character, it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime."

Now, with all these conditions present, where the justice convicts, he must send the young man or girl, as the case may be, to prison, even though he feels it is not the right thing to do, and that removal to a Borstal institution would be the proper thing. Under the section the justice must send the young person to prison direct, and must send him forward to the Circuit Court in custody. What the section says is this:

"It shall be lawful for the court, in lieu of passing sentence, to commit the offender to prison until the next quarter sessions, and the court of quarter sessions shall inquire into the circumstances of the case, and, if it appears to the court that the offender is of such age as aforesaid and that for any such reason as aforesaid it is expedient that the offender should be subject to such detention as aforesaid, shall pass such sentence of detention in a Borstal institution as is authorised by Part I of the Prevention of Crime Act, 1908, as amended by this Act; otherwise the court shall deal with the case in any way in which the court of summary jurisdiction might have dealt with it."

The position is this, that the district justice may, if he wishes, send the offender to prison, or he may send him forward to the Circuit Court so that the Circuit Court judge may, if he thinks fit, send him to a Borstal institution or to prison. Now, I think it will be generally agreed that a sentence of imprisonment is a more serious matter than committal to Borstal. I do not quite understand why the option was given to the Petty Sessions Court of that time in the manner in which it was given.

It would appear to me that a more sensible way of putting it would be to let the justice send the young offender to Borstal if he thought fit, or, if the justice thought the case was one that merited imprisonment, that then he would send him to the Circuit Court judge and get two judicial views on the case. At present, the justice cannot send the offender to Borstal. He must send him forward to the Circuit Court. In the meantime, the accused has to stay in prison. That is open to a number of objections.

What comes to one's mind is this, that, particularly in the country, there is in the summer time quite a long delay between a sitting of the District Court and the next sitting of the Circuit Court, a delay sometimes running into four months. You have the position, therefore, that the district justice, knowing that the next sitting of the Circuit Court will not take place until, say, four months hence, thinks that it would be a great hardship, obviously, on this young offender to be lodged in prison until the circuit judge comes around. Accordingly, although he may think it would be a proper case for Borstal, he adopts the expedient of sending him to prison for six months.

What happens then, I understand, is that the Minister for Justice comes into the picture and, if he thinks fit, transfers this person suffering a sentence of imprisonment to a Borstal institution. That is a way of getting around Section 10 of the Criminal Justice Administration Act but, in itself, it is not a satisfactory way. I think the principal objection to that solution is that even where the Minister, by Order, has the convicted person transferred to Borstal, the convicted person is still entitled to his ordinary remission as if he were left there to suffer the term of imprisonment imposed. His going to Borstal then means that he can claim this remission and that he cannot be detained there for a sufficient length of time to give him a useful trade which is one of the principal objects of treatment in a Borstal institution. That is one objection. Of course, the other objection is that you have in this young person a person sentenced to imprisonment rather than to a Borstal institution. We are giving in this Bill considerably increased jurisdiction in criminal matters to the District Court and I cannot see that any good case can be made against giving the district justice the direct power of sending a person, who comes within Section 10 of the Criminal Justice Administration Act, 1914, to Borstal rather than to prison. I think that is a very reasonable suggestion to make and that it is one that should appeal to the Minister and to the House. There is no necessity to elaborate on it any further. Anybody who has read the suggested amendment and who has looked into the matter, as I have looked into it, will I think be coerced into accepting it on account of its reasonableness alone.

I said already that I did not quite understand why the option was given in the way it has been given under Section 10 of the 1914 Act. I cannot still understand it. I do not know what the circumstances prevailing then were so far as the Petty Sessions Court was concerned but I do know that the magistrates then were not trained lawyers. We all recognise that the district justices as a body have set a very high standard in the administration of justice in this country and that the District Court, taking it as a whole, has served the country extremely well. It may have been that in 1914, when you had trained lawyers as judges of Quarter Sessions and untrained people in the Petty Sessions Court, the Legislature thought that this sending to Borstal should be subject to review by a trained lawyer. That may have been in the mind of the Legislature but still I cannot see why they did this. I cannot see any reasonable explanation for having made the law as it has been now since 1914, and I do think there is no reasonable ground for suffering its continuance because of the undesirable consetraine quences which follow from it and because, so to speak, it coerces the district justice into imposing a sentence of imprisonment when he feels that it is a proper case for committing the accused person to Borstal.

There is a further slight amendment suggested in the section and the purpose is to remove some of the conditions which I have already read out. I see from the way the amendment has been worded that I should have dealt with that first but I shall deal with it now. It suggests the deletion at the end of paragraph (b) of sub-section (1) of Section 10 of the Act of the word "and" and the substitution of the word "or". That would leave a wider scope to the district justice in selecting cases for Borstal rather than for imprisonment.

As I say, my chief purpose in putting down this amendment is to avoid, as far as possible, sending a person to prison where there is an alternative method. By making the section disjunctive in this way, you will go a far distance towards achieving that particular object. The term of the sentence to Borstal, as laid down in the Criminal Justice Administration Act of 1914 and as amended by subsequent statutes, is for a period of not less than two years and not more than three years, so that the sense of the position would be, if this amendment is accepted, that it would be lawful for the District Court, in lieu of passing a sentence of imprisonment to commit an offender to a Borstal institution for not less than two years and not more than three years. The net effect of the acceptance of the amendment would be that it would cut out the undesirable wait in prison until the Circuit Court judge came round, and then the unnecessary review by the Circuit Court judge. For that reason I ask the Minister to accept the amendment as framed.

General MacEoin

I am afraid I cannot accept the amendment. I do not know how the Deputy lightheartedly says that the difference between imprisonment and Borstal is very great. It is because imprisonment may be for a week, a fortnight, two months or six months, but imprisonment for from two to three years is no easy matter, and even though a boy is only 16 years of age, Borstal is for all intents and purposes a curtailment of liberty. I would not like lightly to give the power to a district justice to put a person in for Borstal treatment for from two to three years without a fair and good examination. That is what happens when it is returned to the Circuit Court judge. This provision has been in existence for a great number of years, and no complaint has so far been made about it.

Mr. Timoney

There is nobody to complain.

General MacEoin

There is, and a Parliament has been in existence for a long time and questions could have been raised if there was anything wrong with it. Remember that before a person can be committed for Borstal treatment he must have done something. There are conditions before he can be committed for Borstal treatment. On the Deputy's amendment, a first offender can be committed by a district justice. While I have absolute confidence in the majority of district justices, I would not like if a person could, for a first offence, be run in for two or three years without any further examination. I do not think it would be wise.

The Deputy is on a good point and I admit that there is a good deal in what he has said. I admit that it is not a good thing to have a person in prison for a period of two or three months. That is the most it can be, because the Circuit Court sits four times a year and therefore it cannot be six months. At the most, it may be three.

Mr. Timoney

Four.

General MacEoin

It could happen that it would be four. While the person is so remanded, the Minister has no power to send him to Borstal and he is in with the old lags. I am perturbed about that end of it as he may be for a period in prison meeting associates he would be better without.

I feel that taking away a youngster's liberty from the age of 16 to 21 years is a very serious step and should not be left just to the immediate whim of the district justice. As they have the power under certain circumstances to commit a person for Borstal treatment it might be argued "Why not give them this?" but I feel that it would be better to leave it to the Circuit Court judge to decide whether a person should have that long-term confinement—because it is confinement although under excellent conditions, although the gates are practically open and although we believe and trust that it will be regarded in the future as a fairly high-class school instead of a prison. At the same time there is that taking away of the freedom of the individual. I think in the long run that the best way is to allow the case to be returned by the district justice to the Circuit Court judge so that there may be time to realise the gravity of the thing which is about to happen.

Although the thing is a long time on hands, I will have the matter examined again, if the Deputy would leave it at that, to see what we could do on the Report Stage, but I do not know how I can give way on it.

Mr. Timoney

I am subject to correction on this, but the Minister said that a first offender could be sent to Borstal for two or three years if my amendment were accepted.

General MacEoin

Yes.

Mr. Timoney

My understanding of the law is that that is not so.

General MacEoin

You are deleting.

Mr. Timoney

Section 10 says that it must be proved inter alia that:

"the offender has previously been convicted of any offence or, that having been previously discharged on probation, he failed to observe a condition of his recognisance."

In paragraph (c) of sub-section (1) it lays down a further condition:—

"it appears to the court that, by reason of the offender's criminal habits or tendencies, or association with persons of bad character, it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime."

If the Minister tells me that this section will be amended so as to enable a district justice to send a first offender to Borstal if my amendment is taken, then I will accept that.

Mr. Moran

I do not think the Minister is correct.

General MacEoin

Read the thing. You are substituting the word "or" for the word "and" and that automatically does the other thing. A person can be put in for any of these things instead of for all the things. The section reads:

"It appears to the Court that the offender is not less than 16 nor more than 21 years of age; and it is proved that the offender had previously been convicted of any offence or, that having been previously discharged on probation, he failed to observe a condition of his recognisances."

and you are putting in the word "or" there.

Mr. Timoney

That is so. I apologise to the Minister in that respect. The substitution of "or" for "and" would certainly have that effect. I would be prepared to forgo that part of the amendment and leave "and" there, but I do think that the Minister should give this very sympathetic consideration. Further than that I do not intend to press him, of course.

Mr. Moran

If the Minister is going to re-examine this matter with a view to introducing an amendment on the Report Stage I would like him to consider this aspect of it: what is wrong with giving this power to the district justice in view of the fact that the aggrieved party will have an appeal presumably after the sentence is passed? If you give the district justice power to commit a person to Borstal for a period of not less than two years and if there is some danger and if the Minister has some doubts about giving him that power, remember that the district justice is one man examining the position while the Circuit Court judge is just another man examining the position. I do not see any good reason why the district justice should not have this power provided you have the safeguard of appeal. On appeal, you often find that one individual takes one view while another individual takes another. I do not see any sensible reason for continuing the law as it is under the 1914 Act because after all, it is the district justice who invariably deals with all children's offences throughout the length and breadth of the land and if a youngster has offended more than once or is guilty of the matters set out in the 1914 Act, then I think that the district justice is primarily the individual who should deal with it. You would not have the very objectionable practice which exists especially in the country of a long remand where a young person is associated with hardened criminals for a period of from three to four months. The principle of that is wrong. There should be some other place for them and I see no reason why the Minister should not accept the principle of this amendment. I think it can be fitted quite properly into the Bill and he should re-examine it from that point of view before Report.

Captain Cowan

I certainly am somewhat worried by the disclosures made by Deputy Timoney. In the city here, we are not subject to these infrequent sittings of the Circuit Court and we are probably inclined to lose sight of a situation such as he has referred to. Where a youthful defendant is sent from the Dublin District Court to such an institution, he has been dealt with by a very experienced justice, having available to him a very good machinery—probationer officers, inquiries, and so on—and where he sends the case forward, it can be brought before the Circuit Court quickly. The proofs required in the Circuit Court are often inclined to be just the formal proofs. The individual is dealt with, in other words, as a piece or flotsam or jetsam, and if certain formal proofs are put forward, off he goes to Borstal. By the way, I do not like that word "Borstal" at all.

General MacEoin

We have taken it out.

Captain Cowan

I hope the Minister will do something to get rid of it. I see the difficulty the Minister would have in trying to get an amendment into the Bill to meet that case, because I think it is somewhat bigger than just giving jurisdiction to the District Court. If jurisdiction is given to the District Court, it is a special jurisdiction which should be exercised not in the hurry of a day's work, as is often the case. Cases of offences committed by children are often left to the end of the day and dealt with in a short period. I agree with the Minister's view that the sending away of any person for a long period is a very serious matter which should be inquired into very deeply. I do not think that a court is the right place to do it even though it may be done by a judge or justice. It should be done in an informal kind of way with quite a lot of investigation and consideration and ought to be done, in the long run, for the boy's benefit. If it is done simply for the purpose of getting him out of the way, of sending him off, I do not think it is the correct approach and he should only be sent there if the justice or judge inquiring into the case is reasonably satisfied that he is to benefit from that form of treatment.

I see the difficulty of getting it into this Bill and I see the desirability of having a lot of consideration given to it but, at the same time, I think it entirely wrong that a person should be kept in prison for three or four months, or maybe longer, awaiting the decision of the circuit judge. We are inclined to get into a routine with regard to the circuit judge coming around so many times to a particular place. These Borstal cases do not occur very frequently. They do not occur very frequently in the area of a particular circuit judge. Is there no machinery whereby the circuit judge could go down and deal with the particular case itself?

We have, as I say, got into a kind of routine with regard to the circuit judge arriving at a certain time and members of the Garda turning out to salute him, and so on. I do not like these things, but it could be got over if, in such an important matter as this, where the matter was reserved to the circuit judge, the circuit judge for the circuit or, if he is not available, a circuit judge nominated by the President of the Circuit Court, could be sent down to inquire into it, taking a day or two or whatever time was necessary to go into it fully. Probably in that way you could retain the machinery of having the matter, as it were, looked into by two persons exercising judicial functions and, at the same time, eliminate this waiting period in prison which is very undesirable.

General MacEoin

Might I explain that the Minister has power, where he is likely to be committed, to transfer him to the Borstal institution or to give him Borstal treatment while waiting. Sub-section (3) of Section 10 of the Criminal Justice (Administration) Act, 1914, says:—

"Where a person is committed to prison under this section his treatment in prison shall so far as is practicable be similar to that in a Borstal institution or he may, if the Minister so directs, be transferred to a Borstal institute."

Captain Cowan

Is that done as a matter of practice?

General MacEoin

It is apparently not done because the time is short.

Captain Cowan

In Dublin, yes.

General MacEoin

There have not been any very long periods. The Governor of St. Patrick's—I will stop using the word "Borstal"—does not like fellows coming in and going out, and does not want what he calls fly-bynight prisoners. If they go in there, he wants to give them the treatment they are to get. There is a modified treatment in Mountjoy for these prisoners who are likely to be committed, but I will examine the matter to see if I cannot get over the difficulty in some more satisfactory way. There is a lot to be said for the amendment, except perhaps that it is rather too sweeping. Possibly the Deputy did not intend it in the way it reads, but I will have it examined.

Mr. Timoney

I did not envisage the effect of the substitution of "or" for "and" until the Minister pointed it out to me. I should like to deal with the point raised by Deputy Cowan. He thought that it would be a bit too much to give to the district justice such a great power of sending a young person like that to a Borstal for a period of two or three years. The answer to that is that the district justice already has the power in cases under 17——

General MacEoin

Not to a Borstal.

Mr. Timoney

No. It was the term which was bothering Deputy Cowan. A district justice can send a boy of 17 to a certified reformatory school for a period of not less than two years and not more than four years. If he is over 17, he can send him to prison, but he cannot send him to a Borstal. That position is bad. It is worse than the one which would be created if my amendment were accepted.

Mr. de Valera

Could the Minister tell us if there has been any recent inquiry into this whole question of the treatment of juvenile offenders? Have we had any recent examination of the question?

General MacEoin

There has been some slight examination, and it is being continued, of the question of psychiatric treatment. I am not in a position to say how far it has gone.

Mr. de Valera

It is a matter which should engage the Minister's attention. The question is whether there should not be a full inquiry into this whole matter, as the time is ripe for it.

General MacEoin

It does not arise on this Bill.

Amendment, by leave, withdrawn.

Section 23 agreed to.

SECTION 24.

Question proposed: "That Section 24 stand part of the Bill."

Mr. Moran

In connection with the First Schedule, is the Minister clear that under No. 2 "An indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law" the question of obstructing Guards being an indictable offence is wiped out? We had a position where perhaps a publican might fail to admit a Guard and he could possibly be charged with obstruction. The result was that, if pressed to a logical conclusion, depositions would have to be taken. Is it clear that that has gone under this Bill?

General MacEoin

Yes, it has gone.

Question put and agreed to.

Section 25, First Schedule, Second Schedule and Title agreed to.

Bill reported with amendments.

Ordered: That the Report Stage be taken on Thursday, 23rd November.