Before the vacation, I had an opportunity to make a few remarks. I directed whatever time I had to this matter of the lengthy address made by the Minister. He made no reference to any amelioration of the conditions of almost 9,000 State personnel who are covered by these Votes. The personnel is divided in this way. The main bulk would be members of the Guards themselves and their officers, but, in addition, there are such people as warders attached to the prisons and there are certain court officers. The Minister was kind enough to give me a typescript, but in the Minister's typescript, I find no reference whatever to the amelioration of their conditions.
I raised that point on their behalf before the Easter vacation. I am glad at least to see that there has been some change of attitude by the Government in respect of State servants since that time. The civil servants have been offered a compromise with regard to their pay. It would seem that, prior to Easter, we were going back to the old-time conditions of Emergency Powers Orders which restricted any increase in wages to State personnel.
I previously described the matter, before the war, as an immoral proceeding. That phrase is not lightly chosen. It does not come from myself. I am given to understand—I have personal reasons for knowing—that certain ecclesiastics addressed letters to the Government, prior to 1947, querying their attitude towards people like court officers and State personnel, such as members of the Civic Guard and officers of that force. Some of them got the reply that State servants were in a different position from people in the industrial world and in agriculture, and that if any increase were given in their wages, they were paid out of the extra prices sought for their commodities and that in the end it was borne on the increased cost and price for the commodities. The answer was that the Government could not afford to do that.
A contrast was then made. It was a contrast I wanted to make very fully, but which I can now make only in a limited way. It is no answer to people to say to them that we agree that everybody outside the State personnel has got an increase in his emoluments equal to the increased cost of living, particularly when the increased cost of living has been brought about by Government action in such a way as by the reduction of the subsidies. It is no answer, in so far as State personnel are concerned, to say: "We admit that the cost of living has risen, that you have in justice a claim, but we are not going to give it because we do not propose to raise the taxes to provide the money." It is not on any question of merits; it is not because State personnel are less deserving than those in the outside world, but simply because those people are under the thumb of the Government and the Government are in complete control of whatever wages may be given. To say that is to make a distinction on certain circumstances, not on the merits and certainly not on justice.
I want to make the remark that the Government were living from day to day on what they had scrounged out of what was justly due to the civil servants as a group and the members and officers of the Garda. The position has now changed to some extent, but only to this extent, that some compromise has been achieved as between the Government and representatives of the Civil Service. It is clearly a compromise agreement. There is a clear admission that if civil servants went to arbitration, they would get a bigger award than that which they have been asked to agree upon. The only reason they are asked to agree is that the Government finds itself in a parlous condition, having promised to get the cost of living reduced, and end emigration and now finds that these things have gone in the opposite direction.
There is greater misery in the country and those who are depending on State aid have increased in numbers. The Government says they admit their claim but that if they go to arbitration they will go to Dáil Eireann and say: "We do not propose to pay as we do not want to increase taxation." Some compromise has been arrived at in regard to civil servants in so far as they are under administrative control. Those attached to prisons, court officers, civil servants and Guards will get something in the way of a compromise. They are asked to accept that because the Government is in such a parlous condition, notwithstanding their promises to get cracking, that it cannot do anything but eke out a miserable existence. They are not paying to civil servants as much as they believe arbitration would give them.
However, for such advantage as the civil servants and other State personnel have got, they may be truly thankful. We may be somewhat thankful. The bad example is given and this immoral procedure is being pursued simply because these people are under Government control. The Government have not the same strength in regard to people in industry and agriculture. I do not see that there will be any possibility of getting satisfactory work from the civil servants or any of the State personnel, as long as they are led to feel, as they are at the moment, that they are not being given conditions equivalent to those gained by those in the outside world who are able to put on industrial pressure.
In the second page of the typescript, there is reference to an interim report on crime. It shows that there was an increase in the number of indictable offences. I do not know whether what appeared in the paper recently is something more than an interim report. Yesterday's Irish Independent carried the news that the number of indictable offences in the Republic was 14,322 in 1957 as against 12,782 in 1956. It is quite clear that crime is up. In that, it is like the cost of living and the numbers of those unemployed and those emigrating. All these things are up, and there is some relationship between the two things.
It has always been understood that by what is called "undeserved poverty" is meant people who are prejudiced in their livelihood by Government action which raises their cost of living without giving any recompense to meet it. Then, again, there is, unfortunately, a resort by some people who feel they have been badly treated and who resolve to get their own back on the community.
Crime is up by 12 per cent., and the Minister gave some details. He says that most of the increase is attributable to the fact that in the course of the year the number of bicycles stolen exceeded the number stolen in the previous year by more than 1,000. The Minister continues:—
"The figures, which are provisional and subject to correction, put the number of indictable offences known to the police last year at a total of 14,322 for the whole country as compared with a total of 12,782 in the previous year and 11,531 in 1955. In the Dublin Metropolitan District alone the number of indictable offences known to the police have risen to 8,750 as compared with 7,120 such offences in 1956 and 6,333 in 1955."
That is a significant increase. The Minister contented himself with giving that statistical fact, without going into any consideration of what drove people to commit so many offences as to make such an increase in the number of offences committed in the period 1955-56 and those committed in the period 1956-57. We are told that, as usual, about 95 per cent. of these crimes—that is to say, of the total volume of indictable crime—consisted of the offences of housebreaking, stealing and other forms of dishonesty, and that it is in this field that there has been the most persistent and progressive deterioration in public morality. I wonder if the Minister does not stop, or get the officers of his Department to stop, at that point and ask "Why?"
I read a statement made by the Parliamentary Secretary to the Minister for Social Welfare. I know he withdrew part of it, but, according to the statement as reported in the Press, there was such an amount of known fraud being perpetrated in connection with social welfare benefits that, as he put it, the Supplementary Estimates likely to be introduced last year would be of the order of £3,000,000 to £4,000,000. On being questioned in this House, he ran away from that statement, but said that the known fraud in connection with people trying to get what they thought the State owed them by way of social benefits was of an order that meant £3,000,000 to £4,000,000 in Supplementary Estimates in a financial year.
When questioned, I admit he said it was not a very clear explanation. It amounted to the fact that he was at a Fianna Fáil convention in his own area where he was asked a lot of questions. He promised everything to everybody and wound up cheerfully by saying that if all these things he was asked to do and promised to do were brought to fulfilment, they would cost from £3,000,000 to £4,000,000. In other words, he was complaining that at conventions people were clamouring for services and that he had committed the Government to an expenditure of between £3,000,000 and £4,000,000.
There have been conferences over the Easter. Some of them were of a sodality type. Some were composed of groups of laymen with ecclesiastics attached and some groups were composed of ecclesiastics alone. However, there have been at least two of these in which in one case, a clerical member and, in the other case, a layman, but speaking under the supervision of certain clerics, said that fraud was notorious in the country in respect of fraudulent claims for benefits. One precise statement was made that a number of people were known to have had employment cards signed for them by people in whose employment they had not been. If social welfare and if the Welfare State is allowed to deteriorate to the point where people believe they are entitled to claim, whether the claim is honest or not but simply because the Government are providing the funds, then the position is really serious.
It may be argued that there are people who, in their desperate positions, believe there is no great difference between other people's property and their own. They may make wrongful and fraudulent demands for social welfare benefits and employment benefits, taking the view that they may as well have the benefit of whatever is going. In that way, we come to have stealing, housebreaking, larceny and so on.
The Minister congratulated himself that there is no significant change in juvenile crime, which has shown a slight decline. He continues:—
"But the fact that in 1957 there were no fewer than 2,368 persons under 18 charged, and a further 665 cautioned in respect of indictable offences shows how serious the situation is..."
Then he adds: "...the more so as it is likely that these figures do not tell the whole story": that is not even guesswork or suspicion, but knowledge. That is a shocking state of affairs. The Minister, as a member of the Government, has collective responsibility for their financial and economic measures and must take full responsibility for the fact that, due possibly to the policy of other Departments which he connives at, even if he is not an enthusiastic supporter, there is deterioration in public conduct in regard to indictable crime.
In his opening statement, the Minister says:—
"In view of the crime wave, I would be glad to be able to tell the House that there had been an increase in the proportion of the indictable offences known to the police that have been cleared up. But this is not the case and, while the position outside Dublin is little changed at over 80 per cent., the percentage of detections in Dublin has dropped from about 40 per cent. to about 32 per cent."
That is outrageous. There is a significant increase in the number of indictable crimes which have not been cleared up.
I take that statement to include people apprehended but not convicted. The figure is very enlightening. Of the known indictable crimes, not more than one-third are cleared up by police detection and the bringing of the case to the courts. The Minister continues:
"To put the matter in perspective, however, I should mention, first of all, that a detection rate of 32 per cent. for a large urban area is roughly the same as that obtaining in comparable conditions in other countries and, secondly, that the rate is affected to a very large extent by the detection rate for larceny, which cannot but be low from the nature of the crime, though larceny is, of all crimes, the one that is most frequently committed."
I want to know about that. We are told that a detection rate of 32 per cent. for a large urban area is roughly the same as that obtaining in comparable conditions in other countries.
About ten years ago, two articles appeared in successive issues of the Garda Review, obviously written by a man who knew the circumstances. I think I was told afterwards that they were written by an ex-member of the Garda. He started off to examine whether the methods of police organisation in this country were good and whether the circumstances that surrounded the police were such as would lead to a proper apprehension of criminals. In these two articles, he reported adversely on the then organisation, which is very nearly the present organisation, and on the circumstances.
He brought out this fact. He took our population and he took the population of Wales, England and Scotland, and he took the number of crimes that were known to have been committed. He related those to individuals and then thought of how many crimes were committed in relation to the population—the percentage, so to speak. It was a most excellent thing that he should have got the figures. He then went on to ask if these countries were better provided with detectives or police of the ordinary uniformed-type than this country. He divided these areas into urban areas and country areas.
I have not the article under my eye at the moment, but, as far as I remember, his conclusion was that this country had more police in relation to our population, either rural or urban, than the other parts of the old United Kingdom. He concluded that we were better policed, in the sense that we had more police, but there were more crimes being committed, notwithstanding that we had more police in this comparable part of the old United Kingdom, dividing them and comparing them as far as the urban areas and rural areas were concerned.
When it came to bringing people to book, he concluded that we are again deficient, in comparison with those operating the forces of law and order in England, Scotland and Wales. Therefore, in all three circumstances, he said, there was a greater proportion of crime to the numbers of the population; and although we had more police to the number of population or even to the number of crimes committed, there were fewer people, proportionately, brought to book than there were in any of these other countries. If those conclusions are correct, it would seem to me that, if we had the numbers in the police, there was something wrong with the organisation or the system. It would seem that, when it came to detection of crime and bringing offenders to book, there was either something wrong with the police, in not being able to get these offenders or else something wrong in the court system which enabled people properly brought before the courts to get away under the Probation Act or with something light in the way of sentence.
A further matter is the remarkable trend in the detection rate, which shows a drop of 40 to 32 per cent. in the metropolitan area. We have to comfort ourselves with the fact that this is roughly the same as compared with comparable conditions in other countries. Certainly, the Minister's remarks before Easter will not be received with any great enthusiasm when he is found to recommend to the owners of premises and warehouses that they should appoint their own police by having a system of night watchmen. He says there are many cases where, in view of the value of the goods stored and the easiness with which the stores could be broken into, it would be wise to employ night watchmen on whom the owners could reasonably depend. In other words, the Minister is trying to off-load the protection of property from the police forces in the city to the owners of warehouses. In so far as the question is one of the ease with which stores can be broken into, surely something could be done about that, in the case of those who own property where valuable goods are stored? If they are easily broken into, their attention should be drawn to it and they should be asked to take some precautions to make it difficult for housebreaking to occur on the scale on which it is occurring.
The Minister says that these firms should employ night watchmen, "especially in view of the number of ex-Civic Guards who are out on pension and who could be employed at this work." In other words, the Minister says: "We have got rid of a number of Guards, they have gone out on pension; you ought to take better care of your premises; we have grand experienced men who were in the Civic Guards and they will look after your premises." If that sentence had not occurred on the page succeeding that in which we are told that the detections had dropped from 40 to 32 per cent., it might have been a better recommendation. Instead, however, the Minister said: "We have a lot of Civic Guards out on pension; I am sorry to have to tell you these are the people under whose auspices the detection rate in indictable crime in Dublin dropped from 40 to 32 per cent." It was not the best possible recommendation to give to owners of warehouses that they should take in men who had gone out on pension from the Guards over whom he presides.
The Minister has spoken of the number of Civic Guards. He says it is 1,000 fewer than 10 years ago and 100 or so less than it was on the 1st April last year. I should like to know from him why the numbers have gone down by 100 in the last year. That is possibly the point to which he might address himself first. I should like to know, and I think the country should know, why the number has gone down to 1,000 fewer than it was ten years ago. In so far as it represents a reduction in the cost of the service, I welcome it. I often thought that the number of Guards we have could be better used if the system were better organised.
Those two articles in the Garda Review of about two years ago, to which I have referred already, accurately and critically examined the whole situation with regard to the police and made recommendations. Those are recommendations which in an intervening period I did my best to foster in connection with the disposition of the Guards and the system under which they work.
Those articles recommended that there should be fewer centres, certainly fewer centres in which there were a large number of men, and that they should be better organised to do work over a bigger area, by having more transport. In relation to that, so far as I remember, there was a recommendation that there should be fixed hours in the Gárda barracks for routine work.
I do not know whether the slogan still persists among the Guards, a slogan which I heard very many years ago, that "A Guard is always on duty." He should not be. I remember once urging that the number could be reduced and I got certain memoranda to show what Civic Guards did, and I indicated it would not do the country any harm if they did not bother their heads about some of these things. I was told to remember that all the while the great thing was that a Civic Guard was "always on duty," that he was never off duty.
I have seen some of these Civic Guards on duty. I am not criticising the individual in what I say now. Occasionally, when motoring through the country I have gone into Civic Guard barracks. I found the man on duty on a hot day, sitting with his tunic loosened, with his feet on the table; and smoking. He is really not occupied at all and perhaps does not want to be there. He is there because of the persistence in the view that there must be somebody always on duty. Examine the conditions in some of those stations and you find that reports have to be made to the Guards when something has happened. The Guard either calls on somebody or there may be a prosecution. Someone has to prosecute and then a licence or a certificate of insurance has to be brought to the barracks. The situation apparently is that there must be a Guard always on duty, no matter at what hour a person calls to produce the document.
There are certain returns which Civic Guards are ordered to collect. Sometimes this is done by way of asking people to fill up forms and the forms then have to be returned. Apparently, again, there must be in any station, right through the whole of the day—I do not know whether it has to be right through the 24 hours— somebody there on duty so that reports may be always possible of reception, in case someone comes in with a report or a return. I suggest that is nonsense. If returns have to be made, why should the Guards not have office hours the same as anyone else? In any small town or townland, why should not the office be open during hours stated in the notice—say from 10 to 12 and from 3 to 5, or some stipulated hours?
There must be somebody there to receive documents but let us get rid of this idea that a Guard must always be on duty. Duty of that kind exhausts strength, the only strength this country can afford, and that is certainly not any more than the numbers we have at the moment. It exhausts the strength of those who must be borne by the community, in an unprofitable way. I understand that over recent years there has been considerable development in the use of transport. I do not know if it has gone far enough. I suggest this question should be examined further, to see if there can be a bigger reduction of centres, with the work being done over the area by some better provision of transport.
I am well aware that, as in the case of post offices and so on, if there be a Garda barracks of a certain strength in a particular town and a rumour spreads that, instead of having one officer and four men, the strength is to be reduced to an officer and two men immediately the population is up, protests are signed, and deputations are sent to the Minister. The whole of the area is thrown into excited confusion at the thought that the strength of the Gardaí serving the particular area is likely to be changed, even if a good case can be made that an area depending on this particular centre would be better served by more transport. I know well that these are the considerations the Minister has to think of. I do feel that in present circumstances people are crying out loud, with good reason, for a reduction in the cost of State services. There should be some other examination of whether the strength of the Civic Guards can either be reduced or better employed by the greater provision of motor transport.
In that connection, in Dublin—and the Minister's speech referred to this —there is a vast amount of the Guards' time taken up by concentrating on, or more or less observing, minor offences of the parking type, the parking of motor cars or scooters. The procedure in regard to these offences in the courts is most wasteful and certainly extravagant. It is something the community should not be asked to bear. A person parks either for too long a period or in the wrong place. The Civic Guard comes along and sometimes he is content to place a notice on the car and sometimes the person is summoned for the offence.
It is an education to go to the courts on a day on which there are a whole lot of these offenders before the court. You get a group of Guards sworn collectively—about five of them are sworn together, each with one hand on the Testament. A Guard then proceeds to read from his notebook and calls out the names of the offenders. Mainly the offenders do not appear in court—possibly I am mixing these up with the cycling offenders, the hardened criminals of this country who ride bicycles without lamps or who have not got rear reflectors.
But to get back to this performance of a number of Civic Guards being sworn in collectively, they read from their notebooks and the district justice listens and asks is "Mr. So-and-So" present. Mainly the offenders are not present. As far as the district justices whom I have heard dealing with these cases are concerned, they seem to have made a system for themselves. There are people who are summoned for not having lights on their bicycles, and if they come down to court the district justice asks them: "Are you out from work?" If the answer is "Yes", he says: "Have you lost money by coming to court?" If the answer is again "Yes", the district justice says: "Well, you have lost money by coming down here to-day", and he fines them 7/6. If a man is not present, if he has decided to pay whatever fine is imposed and not to lose his day's wages, generally the fine is double or three times for not appearing.
What happens after that? I am told that many a man has come to court knowing that he is going to be fined 5/- or 10/-, and has that 5/- or 10/- to give out of his pocket, and then it will not be taken from him because the position is that the district justice has all the sheets up in front of him, which he is signing—a race against time. Until the office can get hold of the sheet with the district justice's signature, the fine will not be accepted, and what happens? A man has left his car, perhaps inadvertently, perhaps deliberately, for longer than the recognised period and he is fined, and 10/- has to be collected from him.
A Guard appears at a suburban residence and the neighbours wonder what the man has done. The Guard comes out and either there is not 10/- in the house, or the man and his wife are out and the maid has not got the money to pay the fine. I am told that the average is three applications made personally by a Guard to recover a fine which a man is willing to pay on the spot and which will not be taken because office conditions will not allow it. If that is anything like the case, there should be some amendment to it.
There was a suggestion considered by an inter-departmental committee, and I do not understand why it was not accepted, that the Civic Guard be given power to fine on the spot, always subject to the individual offender's rights to object to being fined on the spot, or to say either that he has not been parked for too long, or parked outside the regulation hours, or that in any event there are some extenuating circumstances. Take the case where a person agrees to be fined on the spot. He has parked a car for longer than the time allowed. A Guard comes along and supposing the maximum fine is 5/- or 10/-, and the Guard says to that person: "Pay me 5/-. You need not come to court, I will report you for having committed the offence and report to the court that you admitted the offence and paid the fine." I understand that there were objections to that on constitutional grounds and that that was not proper procedure, because, under the Constitution, justice must be administered in public and in the courts. The argument ran that to impose fines on the side of the street was not administering justice in the courts, but of course it is. The sequel to that would be that the Guard would appear in the courts before a district justice on a particular day and would report that he had found a citizen who had parked for too long a period, that the citizen had admitted his guilt and had paid whatever was the maximum fine and the district justice would probably call his name, and, whether the man was there or not, say: "Fined 10/-", or whatever was the fine. There would be no necessity for the Guard to go off to the citizen's house to collect the money.
Why that system was not inaugurated, I do not know. It could be inaugurated. I join that up with another point. I know that, in recent years, efforts have been made by the officials of the Department of Justice to shorten and simplify court procedure. I do not think any legislation is required for it. I am pretty certain, and I have read considerably on the matter in recent months, that this can be done by Rules of Court. The Rules of Court can be made by the judges and the judges are supposed to report to the Minister yearly as to how the administration is going and what amendments they think necessary.
I know that, amongst other items of procedure, something should be done to get away from the terribly laborious system of taking depositions in cases where there is a prospect that a person may be sent forward for trial. We have this laborious system in which witnesses parade, and, while I do not say it is the normal thing, very often it occurs that the State has upwards of two dozen witnesses. Each of these steps into the witness-box, is sworn and then speaks his evidence. The evidence is written down in longhand by the District Court clerk. Over and over again, I have seen cases in which the district justice, feeling that the clerk's hand must be getting paralysed by all the writing he has to do, has taken over the writing of the evidence himself. The procedure originally was to have these things taken down in writing, in manuscript, and then read over. There are a lot of other conditions—an accused must be there or must be represented, and people giving evidence are open to cross-examination. That has all to be taken down and the statement is read over to the witness and he signs it. If the Minister would ask some of the Attorney-General's officials to send him a few selected files, he will see the amount of work that goes into the recording of the preliminary matter, which then has to go forward.
I know that, in emergencies, certain courts have resorted to taking depositions on typewriting machines. The evidence of the witness as he speaks is recorded and tapped out on typewriters. There are noiseless typewriters which do not interrupt court work by having evidence recorded in that way. That procedure has been criticised. If a court could make it possible to have these depositions or recordings taken in that way, and thus save all the terrible labour which there is on the part of the court clerk or on his chief, if, in circumstances, the district justice takes over from him, the essentials of justice will have been done, no matter how the evidence has been recorded. The evidence can then be read over, either that day or the next day—in fact, it would be much better to be done that day, so that the witness does not get a chance to change his mind. If a person's evidence is recorded and then read over to him, it could be in a shorthand script and the transcription could be read over to him later on, that day or next morning. That would not, however, be proper at the moment, but it could be made proper and there is nothing illegal in what I have said, in what I recommend.
There was one other thing which was tried and it would be a great benefit to everybody, litigants, practitioners and judiciaries themselves, if it could be extended. It is not possible to take evidence on what we call the jury side of the courts, excepting in the way that is ordinarily done, the person speaking, giving his evidence orally. That is important evidence the pivotal evidence, a man in the witness-box sworn and giving his evidence orally. It is not possible to have any system of recording that, because there are frequent interruptions, the prosecutor continually asking questions, and it is not easy to get the run of who is asking questions and who is answering; but, in the chancery courts, where the procedure is not so confused—I do not speak disrespectfully of the other side when I say this—the witnesses speak at length and it is generally not a question of quick fire, of question and answer. It is more sedate answering and the experiment has been attempted to have a tape recorder used in chancery courts.
One of our judges did allow a tape recorder to be used as an experiment in his court and I understand that his report afterwards was, not that the tape recording system was bad but that it had certain defects, and he said these could be cured by very slight adaptation. If one uses these dictaphones or recorders, there is a way in which one can interrupt at certain stages.
I have no very reliable information, but I have been told that whatever difficulties were discovered in the attempt to record evidence by tape recorders are ones that could be easily overcome by the court registrar making certain breaks and putting in statements of who is speaking at certain times. It may be the witness, or it may be counsel asking questions, or the judge asking questions for clarification. Those are the three parties concerned, and if that system could be extended it would be of enormous benefit, and would shorten cases which, in itself, would mean a diminution in the costs of trials of actions.
I am suggesting also that under the Rules of Court—I will quote the Rules of Court section in a moment—a great deal of improvement could be made. Improvements have been made already on the other side of the water under the Rules of Court over there. A great improvement could be made in the cases which form the bulk of the cases which come before our courts. There is the common case of the accident type, the case which turns on negligence. I want to give an example I know of. I do not say it is very typical, that it occurs very often, but this type of thing occurs over and over again. An accident takes place on a straight bit of road. A person becomes a plaintiff after he is injured and takes an action against whoever ran him down, and there is an insurance company in the background. Both the plaintiff and the defendant insist on getting a map of the road. The road may be as straight as one could imagine a road to be. If there are hedges along the sides, a turn to the left or a turn to the right, all that has to be shown.
The plaintiff gets a map showing every feature of a straight road and the defendant gets a map of the same straight road, showing exactly the same physical features, the turns and the widths of the road at certain points. It becomes worse than that. Not only does the plaintiff have a map made of the straight bit of road, but he will also get a photograph taken. and sometimes two, one from the city end and one from the other end. The defendant also gets photographs of the same thing. Both people appear in court. Generally, one gives evidence and if there is any divergence between them, that is got out by cross-examination of that witness. The general result is that the second photographer and the second mapper is not always called, but they have been feed for the case and they form part of the expenses, whether they are called or not. They have prepared maps and photographs and if they appear as witnesses, they have to be feed. That is nonsensical and it no longer happens in England.
There is another type of case in which a person has been injured and it is an agreed matter between the doctors on both sides that the man has been incapacitated for the work he has been doing for six months. One question that has to be determined, supposing negligence is proved against the defendant, is the amount of the loss of wages which the plaintiff has suffered. Taking it that there is agreement between the doctors that the person has been incapacitated for six months, his wages have to be determined for that period. The firm is called to say what the man's wages were and, if there is any dispute about it, they have to come to court with their wages book and statements to show what the man was getting.
They are sometimes asked to say what the man's wages were for a year before the accident, to see if the six months' wages he is claiming are a typical six months' wages. There is usually a certain amount of cross-questioning as to whether insurance has been paid and a number of questions arising out of that, but the whole thing is capable of easy settlement by one side producing the wages book and the other side accepting it. This is not done, I will not say in all cases but in many cases. In England they do not allow that sort of thing to happen. If a defendant there did not accept the wages book on production, then he would be mulcted in the sense that he would not be allowed costs or the costs would be diminished in certain respects.
Another question is that of injuries, what injuries did a man suffer, and after that you are told exactly what they were, whether they were fractures, torn ligaments, and so on. There is also the question as to how long did the injuries incapacitate the person. This procedure is gone through with a doctor and surgeon appearing for the injured man. They make statements on oath in the box as to what they found in the way of injuries and give their view of how long the disability had lasted. Counsel, instructed by an opposing doctor or surgeon, asks these two people, the surgeon and the doctor, questions designed to minimise either the seriousness of the injuries or the residual effects. Eventually, the defendant may produce his doctor and his surgeon to give evidence contrary to what already has been given.
The situation in England is that on what is called a summons for direction, people are asked to get medical reports. If the medical witnesses cannot agree, there are times when the court is empowered to send in a medical assessor. He listens to the doctor and the surgeon on both sides and makes a report which the judge accepts and which the jury has to accept. We go through all this confusion, extravagance and increased costs by having, as I said, double maps, double sketches, double photographs, conflicts about wages which could be settled in the main by the production of a wages book, and then a whole lot of confusion in regard to specific injuries and the disability arising therefrom.
I have no doubt there are many cases which turn in the end upon a jury's view as to how long a man reasonably could claim he was disabled as a result of certain agreed injuries and that, I suppose, will always have to be left in controversy; but the exact injuries and the exact time a man was suffering in such a way that he could not, say, put a foot under him, could not possibly go back to work, could often be agreed on in our courts. That would make a tremendous difference. It would mean a saving in cost, in the non-production of certain witnesses, in the non-production of certain material, and so on, and having single agreed reports. Not merely would the cost of these things be saved but there would also be saved the costs of the case. A case might easily be disposed of where, shall we say, there is the mere assessment of damages where negligence is admitted and where all that has to be decided by the jury is how much the person should get. That case could be very much shortened, if we had a procedure corresponding to what they have in England.
My attention was directed recently to a report in an English newspaper in regard to the position in England. It covers the three matters about which I have spoken, simplifying the procedure in the District Court with regard to depositions, secondly, allowing people to be, so to speak, convicted on admission on the kerbstone and fined on the kerbstone and, thirdly, simplifying the procedure in the higher courts, more particularly in regard to accident cases.
The London Times on 11th January had a note with reference to the new Act that was brought in in England. It is headed: “Pleading Guilty on Form 903.”
"One of the results of the new Magistrates' Courts Act, 1957, was felt at Bow Street Court yesterday when all the defendants summoned for travelling on the railway without previously paying their fares, with intent to avoid payment, sent in a Form 903, pleading guilty. There were, therefore, no ticket collectors as witnesses, no prosecuting counsel representing the railway, no one in the public gallery, and nearly no costs.
Particulars on the 903s were read by William Walsh, ticket inspector. The defendants' letters were read out by the Magistrate's Clerk, and the Magistrate (Mr. Geraint Rees) imposed the fines."
The effect of this new Act in England is that people are given a notification in respect of minor crimes. They have to be non-indictable crimes, cases of the summary jurisdiction type. The people are given a notice that they are to be summoned for a particular thing, then told by notice that they may plead guilty and then certain things follow. Their letters are read to the court and the court proceeds in their absence, as if they had been there and pleaded guilty or not guilty, depending on the circumstances of the letters.
Before I leave the English situation, may I refer to the case of the Audlet Land Company, Ltd., against Kendall. It was reported in 1955, First Weekly Law Reports, page 639 and it refers to rules of the Supreme Court in relation to Order 37A, Rule 1, and I extract one relevant part from that:—
"In a case to be tried without a jury the judge may in his discretion at any time on the application of any party appoint an independent expert ("The Court Expert") to inquire and report upon any question of fact or opinion not involving a question of law or construction."
In this case, actually the expert included in his report a whole lot of matter which everybody agreed was irrelevant. That did not destroy his report. They cut out the irrelevant part and the rest of the report was included as evidence. Under the English Supreme Court rules, Order 30, under the heading Summons for Direction, there is a headnote which reads:—
"This Order is entirely new. It is the result of the recommendations of the Evershed Report. The intention is that there should be a thorough stocktaking relating to issues in connection with the manner in which the evidence should be presented at a trial with a view to shortening the length of the trial and saving costs generally."
The first part of that Order goes on to speak of orders for the discovery of documents for inspection. Sometimes there may have to be a general order for discovery, but sometimes that is not so. If there is either a restricted order for discovery or no order for discovery, then the full direction for the trial may be given. Later it says in this headnote to the Order: "Such directions are given as to the future course of the action as appear best directed to secure the just, expeditious and economical disposal of it."
Again, it says that the court, if required by both parties is not unwilling to decide mainly or exclusively on documentary or other evidence which would not, except by consent, be available or admissible in evidence; in other words, they can even go to the point, by consent, of allowing documents or records or memoranda not usually admitted in evidence to be brought in with a view to shortening the case and therefore to diminishing the costs of it. In particular, they may amend the pleadings or endorsements. They may order the admission in evidence of statements and documents, notwithstanding that the makers of the statements are not called as witnesses or the original documents are not produced; and they may give directions as to the method of giving evidence. Altogether, the court is to endeavour to secure that the parties make all admissions and agreements as to the course of the proceedings which might reasonably be made by them. The whole endeavour is to secure that there will not be time wasted and costs incurred in bringing unnecessary witnesses.
Later, the Order, which deals with evidence generally, lays it down that all or any evidence may be produced by affidavit of particular facts, by a statement of them, or an information or belief, by books that are produced or entries from them, by copies of documents or entries in the documents. It goes on to speak of the limitation of medical and expert evidence. These witnesses may be limited in number as specified in the Order. In other words, the parties in a building contract will be allowed so many expert witnesses— one engineer and one builders' representative. The court can limit the number of witnesses who can be called and will be allowed on taxation. There is limitation of plans, scales, maps and so forth in evidence.
All that paraphernalia has long since disappeared from the English courts and is no longer tolerated there. A plaintiff or a defendant cannot produce mappers, photographers and so forth, and claim fees for them as against the losing party. I am not reading the whole of the Order. I am just giving the gist of it. I do not intend to refer any further to the magistrates' courts. This is the Act of 1957 and certain arrangements are made there. Once they are complied with, to get the situation disclosed in that note, then the position is covered. Those who travel by rail intending to avoid payment may plead guilty and they need make no appearance. They pay the fine afterwards. If that procedure were adopted here, a Guard could collect the fine, giving a receipt for it. That would mean tremendous expedition in court procedure, as well as avoiding this annoyance of suburban householders being visited two or three times for the collection of a fine for a parking offence, though the neighbours may think the matter is something very serious, instead of just a minor offence.
We have rule-making authorities for all our courts, one for the Supreme and High Courts, one for the Circuit Court and one for the District Court. The secretary of each of these rule-making committees must summon a meeting of the committee for the purpose of general consideration by such committee of the practice, procedure and administration of the court in relation to which such committee is constituted, and the law affecting or administered by such court.
In Section 75, provision is made that:—
"As soon as conveniently may be after each meeting of any such committee in pursuance of this section such committee shall report to the Minister whether any and, if so, what amendments or alterations should in the opinion of such committee be made in the practice, procedure or administration of the court or in the law affecting or administered by such court with a view to the improvement of the administration of justice."
I should like the Minister to tell me how many of such reports he has received. Has he ever received any recommendation from any of these rule-making committees as to what amendments or alterations should be made in the practice, procedure or administration of the courts, leaving out amendments of the law? Do the departmental files record the receipt of any reports from these rule-making committees? If so, would the Minister be good enough to state what improvements they suggested in the practice, procedure and administration of the various courts? The Minister might urge the various committees to adopt the type of procedure they have in England. We have an equivalent rule-making authority here, and I suggest an effort should be made to bring about an improvement in procedure and practice.
There are two or three minor matters to which I should like to refer. I do not intend to speak at any length on the Solicitors Order which was made and which was kept out of this House by a resort to the Seanad. The Seanad turned down an Order which had been agreed as between the Minister and the professional body with which he had been in consultation. The Minister might reveal to the House what that Order was, how it was arrived at, what it effected, how it came and the reason why it was refused. I think the Minister was accompanied by the Taoiseach in the Seanad, and both of them said they were running considerable risk in agreeing to amendments proposed in the Seanad, because they did not know what the Government might do. Their excuse was that they were all for the Solicitors Order, with certain amendments, but the Government turned them down. I should like the Minister to clarify the exact position in relation to that Order.
I understand—I have no precise experience of this myself—that certain people find themselves embarrassed by the fact that the vacations common to the courts as a whole are also accepted by the court officers. Not so many years ago, it was not possible to have a vacation judge hear a case, unless there was a very very strong point of urgency in the matter. That procedure has been somewhat modified, though not in the case of very big issues in regard to urgency. I am told that the court offices close down for the same period as the courts and occasionally difficulty arises. The accountant's office closes down and there is no way of getting payments out. Nobody wants to deprive court officers of any vacation to which they are entitled, but the suggestion has been made that at least there should be somebody in attendance over a substantial period— not necessarily the whole period—to make payments out. I ask the Minister to see that the very good record that the Department of Justice had in recent years with regard to law reform should not be taken away. There is a great need for a great many pieces of legislation reforming the law. I ask that the Minister should administratively see that the Department be allowed to advance along the lines along which they have been advancing for the past five or six years. There have been quite a number of good pieces of legislation of the law reform type produced in the last four or five years. There are a few others still on the stocks. I wish they could be expedited. If those who are zealous in these matters were given a little bit more freedom and more time, there are many points to which these officers could direct their attention, but to which they have not yet directed their attention, in the way of producing draft results.
A lot of our law is very much out of date. We are here trying negligence cases in connection with motor-cars, mechanically propelled vehicles, going at extraordinary speeds compared with the speed at which the old horse and cart and pony and trap used to go. We are still considering the law of contributory negligence by what is ordinarily referred to as "the hobbled ass" case which occurred more than a hundred years ago. That was the Davies v. Mann case where the gentleman drove his wagon and horse over a donkey which had been hobbled and left on the roadside, and the question of contributory negligence arose. He was not entitled to recover, notwithstanding the negligence of the person who left the ass on the road in a way in which it could not get away. The man driving the wagon could have avoided the consequences of that, if he had used ordinary care. That is the phrase we are still trying to apply in connection with accident cases brought about, in the main, by mechanically-propelled vehicles.
We have a great deal of confusion, over what lawyers will know as the third question. Two questions are put. "Is the defendant guilty of negligence?" If so, that finishes the case. The second question is: "Is the plaintiff guilty of negligence?" Sometimes that finishes the case, but sometimes one goes on to the third question: "Notwithstanding the negligence, could one of the parties, by the use of reasonable care, have avoided the consequences of the other person's negligence?" There are cases up and down and there have been zig-zag decisions. I do not think any member of the judiciary would say that there is a clear view as to when the third question may be left to juries and what is the result of the jury's determination of that. That all goes back to this old business about Davies v. Mann and the hobbled ass on the roadside.
A lot of our property law depends on the feudal system. It is only as students nowadays that people get an introduction to the feudal system. Yet, A lot of our laws on property depend on certain repercussions of the old feudal system. Those have been modernised elsewhere. We are one of the few countries which lag behind. I ask the Minister to see that those officials of his who are enthusiastic and zealous in this matter be given sufficient opportunity and time to produce measures of the law reform type which this country very definitely requires.
It is very early, following on a decision, to ask the Minister for a definite statement on the matter, but the Minister must surely in his Department have given some consideration to the new circumstances that have developed, owing to the recent judgment of the courts in connection with the Solicitors Act in which it has been ruled that the disciplinary provisions of that Act are unconstitutional. This of course, raises a very big question. As I say, the decision is not very old and one could not expect that any detailed consideration would have been given to it already, but in any event, the matter ought to be brought under consideration at once.
I should imagine the Minister would agree it is not proper to leave a professional body like solicitors in the condition in which they cannot operate the disciplinary provisions of that Act and that conditions in respect of solicitors may result—as they have up to this decision resulted—in the striking off of certain solicitors. Suppose a solicitor disposed of his client's money. As the Act was administered, a committee of the solicitors' body, the Incorporated Law Society, tried the case, gave the person complained of an opportunity to make his case in opposition to whatever was said against him and, in the end, came to a decision. There was a right of appeal to the Chief Justice. I cannot speak of how that has been dealt with, because the report of that case has not yet been fully published and made available in our reports. One has to go on newspaper reports. The newspaper reports give us the gist of the decision.
In any event, at the moment, the solicitors' body are left in this position, that they must reinstate to the rolls people whom they have struck off for peculation of clients' funds, so long as those people have not been criminally convicted. I understand that people whom they had suspended must be restored to the profession. That all waits. Those people remain there and possibly one might add to them in the next half year. Yet there is no power against this because the disciplinary provisions have been declared unconstitutional. The profession has to tolerate them and expect the diminution its reputation must suffer, if that, being now known, is allowed to go on and become more frequent.
There is a graver question raised by all this matter. It was argued in the solicitor's case that, while it might be admitted that what the solicitors' body —this body of laymen, this committee —was doing represented a judicial activity, there was a question of whether they were administering justice, or attempting to administer justice. The argument was taken that if they were, they were properly doing so, because there is an article of the Constitution, Article 37, which says that limited powers and functions of a judicial nature, otherwise than in criminal matters, may be exercised by people who are not judges or by institutions which are not courts established under the Constitution. It was argued that if the solicitors' group, particularly with the resort of appeal to the Chief Justice were exercising a judicial function, it was a limited judicial function. Although they were not judges and the group could not call themselves a court established under the Constitution, still it was argued that this was made constitutional by Article 37.
The judgment on that pivotal point is very far-reaching. It may go well beyond the solicitors' body. In fact, it is very difficult to see how it can be restricted to the solicitors' body. The judgment does cut out people who accept a particular type of jurisdiction by consent or by contract, say, a trade union, a club, a body like that where, say, the members of a club may go in and they know that they may be struck off the club rolls by some order of the committee of the club. They accept that by contract and I understand that these cases are definitely distinguished in the recent judgment.
The judgment tackles this point of what is a limited power or function of a judicial type and it is argued that "limited" does not mean limited in number. There may be a few powers, so to speak, and they may have very far-reaching effect. So, we cannot judge, so to speak, by counting heads, what power, X, Y and Z hand over, which is very limited. They do say in the end that one has to look for the effect of the assigned powers. This, I understand, is the pivot of the judgment, but I speak subject also to correction because it is not yet published:
"If the matter is calculated ordinarily to affect in the most profound and far-reaching ways the lives, liberties, fortunes and reputations of those against whom those powers are exercised they cannot properly be described as limited."
If any power is given over to a body of people who are not judges or not a court, and if the power affects people in their lives, liberties, fortunes or reputations, that judgment means that those things are not limited powers of a judicial nature and may be exercised only by the Judiciary. I say to the Minister that that is a very far-reaching decision. It brings this State, to my mind, clearly up against the old-time conflict between what was called the judicial authority and the adminitrative tribunal. As it appears to me from that judgment, if there is anything in the nature of an administrative tribunal, it will have to have its power confined to a very narrow scope indeed, but if it affects lives, liberties, reputations or fortunes, then it will be considered, not administrative but judicial, and will require the interposition of the judicial authority.
I thought that this might have been a way out of the difficulty but I believe the judgment is against it—that, no matter what the first body was that decided, if there was an appeal to the judicial authority that would mend the matter. I understand the judgment negatives that and says that it is not possible to regularise, by appeal to the judicial authority, something that was done by a tribunal acting as a judicial authority not composed of judges. If that is the case, undoubtedly, a very serious matter has developed and one that will require immediate consideration and almost immediate rectification, whatever way rectification can be done, either by legislation or by, possibly, a constitutional amendment.
The Solicitors Act judgment, undoubtedly, is very serious and must demand the immediate attention of the Minister and, I should imagine, of the solicitors' body who were granted this Act by a Government. One Government prepared it and another Government brought it in, and so it has the backing of alternative Governments in this matter. If they have been left in this condition that their actions have been declared to be unconstitutional and certain consequences will flow from it, I think the Minister ought to give immediate consideration to the question as to how he can ameliorate that position in respect of those individuals who form a committee.
I do not know whether I should ask the Minister with regard to certain phrases that a colleague of his, whom he saw off at Shannon, has been using in the United States of America. Deputy Briscoe has been exposing himself to all sorts of comments at home by statements he has made. I do not know if any statements he has made yet on the questions here have been regarded as authoritative but the Minister travelled down to Shannon Airport to see Deputy Briscoe off and in that way he more clearly than any of his colleagues identified himself with the Deputy's departure as, what has been called, a new ambassador from this country to the States. Having got there, he is reported in a paper of the 22nd March as having said that "the Labour Government in Britain would drive Northern Ireland into union with the Irish Republic."
The paper goes on to say:—
"Mr. Robert Briscoe, former Lord Mayor of Dublin, forecast yesterday. He told Harvard business school students at Cambridge, Massachusetts, he expected the British Labour Party to win the next general election."
I wonder is he authorised to make statements like that?
