I am accepting these amendments from the Seanad and I should be glad if the House would give me the amendments now.
Criminal Justice Bill, 1960—From the Seanad.
You know, Sir, that the Taoiseach unfortunately has entered a very strong caveat against this procedure. He objects to amendments from the Seanad being considered on the day they are presented to Dáil Éireann. In the circumstances, I do not think we can flout his authority, and I am sure the Minister would not wish to do so.
Would the House be agreeable to take them after Questions?
We are always willing to accommodate the Taoiseach, provided he does not reverse himself. If the Taoiseach and the Minister wish them to be taken now, I am sure that my colleagues, in the circumstances, will make a very special exception.
I appreciate that.
The Dáil went into Committee to consider amendments from the Seanad.
SECTION 9.
I move that the Committee agree with the Seanad in amendment No. 1:
In subsection (1), line 33, "seventeen" deleted and "sixteen" substituted.
Under the section young persons between the ages of 17 and 21 years who are on remand awaiting trial or awaiting sentence may, with their consent, be sent to a remand institution instead of to a prison. This amendment extends the age group to persons aged 16. This does for remand prisoners what the amendment proposed by Deputy Declan Costello did for sentenced prisoners. In that respect they are related.
There is just one question I should like to raise. What is involved here is the remanding of a person of 16 to 21 years of age to a remand home, instead of to a prison, with the consent of the young person. Does there not seem to be something a little odd in asking a young person of 16 whether he consents to be sent to a remand home instead of to a prison? Is it necessary to get his consent? If it is deemed desirable to send him to a remand home instead of to a prison, then why not send him there? It does seem to be a little odd to say to a boy of 16 years of age, in the dock: "I propose to remand you. The law requires me to send you to Mountjoy. Will you permit me to send you to a remand home?" My submission is that it would be perfectly proper for the district justice to say to a child of that age: "I am sending you up to St. Patricks." Does it not seem a little odd to the Minister that the district justice should consult a young person of 16 as to whether or not that young person should go to prison or to a remand home?
In the main, this deals with young girls who have been remanded in custody and who could be sent either to prison or to a convent. Now the girl may object to going to a convent. She may desire to go to a prison instead. Under this, she cannot be sent to a convent without her consent. As I say this affects girls in the main.
I see.
I do not think there is very much to it. There were some references made to a particular convent in the Seanad last evening. I do not think there is a whole lot to what was said, but we may be able to arrange that, as far as that convent is concerned, the girl can be sent to a particular part of it.
I accept that. I can appreciate that if the Court wishes to send a girl to a convent, which is not a prison institution at all, and if the girl is very recalcitrant and absolutely refuses to go to the convent, the fact is that the convent may not be able to control her, and it might therefore be necessary to send her some place where she would be under the control of trained women officers. In such special circumstances, I could understand this amendment but, in its general form now, might it not amount to a situation in which not only girls but boys will be subject to this? Does the Minister not think there is something wrong, or unsuitable, in the district justice consulting a 16 year old boy before he remands him? I do not think that is either becoming or desirable.
The parent would probably be present. The boy would have the right, if he feels he would prefer to go to prison rather than to an institution, to say that he would prefer to be remanded to a prison.
Supposing there is a difference as between the views of the parent and the child, who will get priority? Suppose the child feels like being a hero and opts for prison and the parent thinks otherwise, who will decide?
There is an option.
Who has the option?
The district Justice will decide that.
But that does not seem to be the position. I should be quite content if the Minister were asking for wider discretion for the district justice but, as I understand the Minister's explanation, the position now will be that, if a 16 year old boy is brought before the district justice and the district justice considers it desirable to remand him, the district justice is now obliged to consult the boy as to where he will send him. I think that is wrong. I think the district justice must retain a discretion because the boy may be of a very recalcitrant kind who would wreck a remand home if he were sent there. In these circumstances it may be an inescapable but desirable development that he has to send him to Mountjoy. Surely it is the district justice who ought to decide this?
Suppose you get a tough little lad of 16 years of age before the Court and the district justice is quite satisfied that superficially he is tough but fundamentally is not of the criminal type. He will not want to put him into contact with the criminal population in Mountjoy. Under the amendment, as proposed, if the justice says: "You are going on remand for a week to St. Patricks," and the boy says "No, I am going to Mountjoy," the justice's hands are tied and he must send him to Mountjoy. That is wrong.
The district justice ought to be entitled to say to a young person between the ages of 16 and 17 years: "You are going where I send you and I have it at my disposal to name the new Marlborough House or St. Patricks." I think he would probably send the boy to Marlborough House, and even though the boy might say: "No, I am going to Mountjoy", the district justice ought to have a right to say: "No, you are not. You are going to Marlborough House and stay there for a week." Surely it is most undesirable for us to legislate that a 16 year old boy has a right to tell the district justice he wants to go to Mountjoy? I cannot believe that the Minister desires that and I would be opposed to any such proposal.
The 16 year old boys of today have quite a considerable amount of thinking power. They can make their own decisions if the district justices put the question to them. They can say they would prefer to go to one as against the other, but I want to remind the Deputy that this section only deals with remand prisoners. They do not associate in any case with convicted prisoners. In other words, the difference between the institution and the prison in this respect would be negligible.
A rose is a rose.
I fully understand what the Minister says, that a great deal of power is given to a 16 year old boy, and that is what I am objecting to. I think that the power should be given to the district justice and it is more important on remand than it is after sentence. On reflection I think the Minister will agree that the proper way of dealing with this matter is to give the justice absolute power as between the ages of 16 and 21 years. I entirely agree it is better to go back from 17 years of age to 16 years of age, but the power to decide should be given to the justice. One of the things about Teddy boys is that they think they are grand fellows.
That is part of the trouble with youthful offenders, that they are trying to build up their own importance, and the effect of the proposal by which they will be asked whether they will go on remand to Mountjoy or to an institution is further inflating their ego. What we should aim to do is to deflate them without being, if I may use the word, inhumane in the process, and the best deflation in regard to the remand sphere is to leave the discretion solely with the justice. So long as these young fellows are entitled to get up and say they are not going to do this or that they will think that they are grand fellows instead of being conditioned, so to speak, to be ashamed of themselves.
Would it be satisfactory if a parent or guardian could answer for them?
Perfectly.
I have no objection to the Minister extending the age back to 16 years but would he look at Section 9 of the Bill and consider, when inserting this amendment, in lines 35 and 36 deleting the words: "provided the person consents"? That would leave the discretion entirely in the hands of the district justice as to whether to send a boy on remand to prison or to a remand home. I would agree with the Minister, if we were conferring a power on the district justice to increase a penalty or to abridge the ordinary rights of a defendant, that the words: "provided the person consents" should be incorporated, but where this section operates to do what I understand it does—to give the justice a right of mitigating the rigours of remand—I would not agree with him. Ordinary remand means a cell in Mountjoy and the section gives the justice power to prescribe that, in the case of any individual juvenile, instead of going to a cell in Mountjoy he will go to a remand home, to Borstal, or to St. Patricks. Why must you get the boy's consent to protect himself from a sojourn in a cell in Mountjoy? That is putting the justice in the ridiculous position of saying: "I would rather send you to St. Patricks, if you will consent to go there."
Certainly if I were a Teddy boy desiring to display my toughness to my neighbours in the district court in Dublin I would say: "Not so-and-so likely; I am going to Mountjoy." I think I would expand and become an important person as I cheerfully announced my intention of facing the rigours of Mountjoy. District Justices should have this right and if the Minister will agree to delete the words: "provided the person consents", then we shall have no hesitation in accepting the Seanad's amendment, but I do not think we ought to give a 16-year old the right to tell a district justice where to get off
There is just one point I should like to mention. The Minister says that a boy is remanded to a separate section of Mountjoy but, generally speaking, a Sunday intervenes in the remand period and all the inmates will congregate together on that day. The inclination of the young lad or Teddy boy, whatever you like to call him, is to show how tough a fellow he is and the Sunday gives him an opportunity of displaying how tough he is to the other fellows in Mountjoy, by telling them he has selected Mountjoy as against a remand home. I think it is a very dangerous discretion to leave in the hands of a young fellow of 16 or 17 years of age. We all knew a lot when we were 16 or 17 but it was only in after life that we found out how little we knew.
There is really very little in this. It the district justice wishes he has the alternative of sending the boy to Marlborough House because the boy is still a 16-year-old and would in the normal way be entitled to be sent there. But if the district justice thinks that the boy would be too unruly or depraved to be kept in Marlborough House, he can send him either to Mountjoy Prison or the Institution. This is related to the amendment we accepted from Deputy Declan Costello and Deputy Ryan in which they advocated reducing the minimum age at which an offender can be sentenced direct to St. Patricks from 17 years to 16 years.
I said at that time that I was accepting that amendment with some misgivings, but in view of the case made by the Deputies, I agreed to substitute "16" for "17". In this amendment we are doing for the remand prisoner what we did, under the Deputies' amendment, for the sentenced prisoner. Deputy Declan Costello wanted the age reduced from 17 to 16 for the sentenced prisoner. He wanted the 16-year-old boy committed to the Institution instead of to prison. What we are doing in this amendment is to make the same provision for the remand prisoner as Section 13 makes for the sentenced prisoner.
I do not think there is a lot in it. The provision is unlikely to cause any difficulty. The parents will probably object to the boy being sent to Mountjoy, and the alternative is here provided to send him to the Institution instead. I rather imagine it is for the Institution that the parents and the boy himself would opt.
I think the Minister is making a mistake here.
The Minister knows more about Teddy boys than I do. There may be a difference of opinion between the boy and his parents. I would prefer if something were included in the amendment to the effect that the parents must be consulted. Many young fellows of 16 are rebellious against their parents. If the parents say "The Borstal Institution", the young fellow may say "Mountjoy". There is the conflict. I appreciate what is in the Minister's mind because one of the Senators explained to me the reason for the inclusion of this amendment. I believe it is to deal particularly with the case of some female prisoners who in the past have been sent to an institution which has given them a certain brand, not deliberately, but that is what has happened. Would the Minister not consider including in the amendment something to the effect that the parents or guardian must be consulted?
If the House wishes to press the question of taking out the words "provided the person consents", I am willing to meet that. It merely delays the operation of the Bill.
I do not think the Minister need delay anything. Would the Minister have to go back to the Seanad with that?
Yes.
The Seanad will sit next week?
I do not know.
It must sit for the Appropriation Bill.
I do not think they are meeting next week.
They have to take the Appropriation Bill before the Recess.
I think the Minister meets the whole situation if in inserting this amendment he deletes the words "provided the person consents". The matter is then passed over to the discretion of the district justice who, we must assume, will have due regard to the views of the parents, the probation officer and every other authorised person. If the Minister will ask the Chair to take the appropriate steps to allow for the incorporation of the Seanad amendment and the deletion of the words in lines 35 and 36 "provided the person consents", as far as we are concerned we would be prepared to agree to the amendment proposed by the Seanad.
We shall meet the requests of the Deputy.
Is there a consequential amendment?
The second one will be consequential on the first and will have to be reconsidered also.
We agreed to amendment 1 as amended?
No, there is no amendment.
Has the section not to be amended?
I could not tell you, Sir. I am in your hands.
Is this not the way to deal with it—to move an amendment to amendment No. 1 and that amendment No. 1 be then accepted with the deletion of these words in Section 9? Put the amendment to the amendment first, Sir.
We are accepting amendment 1.
Then the Minister, by leave of the House, moves the consequential amendment to delete the words "provided the person consents"? I do not know whether that is the correct procedure or not?
That procedure is all right. We have agreed with the Seanad in respect of amendment 1, but there is still what may be considered as a consequential amendment to delete the words "provided the person consents."
May I make this suggestion to the Minister? We do not want to delay him; on the contrary, we want to facilitate him. This is rather an unusual procedure. If the Minister would consider what is the appropriate procedure to achieve this end, it would not be too much trouble——
Take it after Questions.
——to come back after Questions. We could dispose of it in a minute after Questions and then there would be no procedural difficulties arising thereafter.
I do not think there is any procedural difficulty. We have accepted amendment 1.
Can we make the amendment at this stage at all?
Yes.
Of course, we can.
What I want to ensure is that the Minister will not be involved in any inconvenience or trouble if we are all satisfied.
I am not satisfied but I am accepting the view of the House. What we are doing here is this. We are removing the right of the girl to opt for the place to which she should be sent. We want the girl to say, if she wishes to say so, that she does not want to go to the convent, that she wants to go to Mountjoy or whatever prison is involved. With the removal of these words we give discretion to the district justice to send her wherever he wishes. He can commit her either to the convent or to prison.
Let us do nothing rash or foolish. I think this a perfectly safe thing to do, provided the district justice is a competent person —and I have no doubt he is. If a girl says: "I would sooner go to the Convent than to Mountjoy," I cannot see any rational district justice saying: "You must go to Mountjoy whether you like it or not," if she wants to go to the Convent and desires to embark on a path of reform. Do any of our lady colleagues here see any objection?
But she does not know the significance of going to a particular convent and will not know until later.
Is there not a probation officer?
She may offer to go and discover afterwards that she is blamed in the wrong. Why not consult the parents and be done with it?
That is a very wide amendment.
Most of them have parents or guardians.
Our job is to legislate. The suggestion is that if a girl goes to a convent there is some reflection on her sexual purity whereas if she goes to Mountjoy there may be a reflection on her reputation as a law-abiding citizen in regard to other matters, but no suggestion of sexual immorality. Surely the probation service, the district justice, and the courts can find some way out of that complication? A convent can be found other than a Magdalen institution for this special function. There are one hundred ways of resolving this problem and, if it is generally stated that this is a problem that girls have to contend with if they get into trouble, I have no doubt that the Minister is a sympathetic man and he will arrange that a convent other than a Magdalen institution will be chosen for the purpose of remand.
We cannot do it just like that; we are in the hands of the ecclesiastical authorities.
I shall go up to the ecclesiastical authorities with the Minister.
When we consulted the authorities when we were framing this Bill, we felt that it would be desirable to send a young girl who might be innocent but who would be charged with an offence on remand to a convent rather than for her to suffer the stigma of Mountjoy, but the view of the Senators was the view that has been expressed by Deputy Corish— that there would be a greater stigma in remanding her to the particular convent than in remanding her to Mountjoy. We must keep that at the back of our minds also.
I do not know anything about the courts; I do not think I was ever in court in my life, thank God, but when the section says that the teenager is consulted, does that necessarily mean that the teenager has an opportunity of consulting his or her solicitor as to what is the best thing to do or does the justice say: "Where do you want to go?" Has the young person any opportunity of consulting anybody at that stage, solicitor, parent or guardian?
Right off, I could not say, any more than the Deputy could. The boy may be a young scamp who is outside the control of his parents. He may not be represented either by parents or by solicitor but we know that district justices are very humane gentlemen and when they are dealing with that type of boy they would say to him something like this: "I am going to send you on remand and you can go to Mountjoy or to St. Patrick's Institution. I would recommend you to go to St. Patrick's Institution. Are you satisfied to go there?" The boy would probably say: "Yes, sir." That would be the end of the matter. There would be no question of forcing him to accept one or the other. I am pretty certain he would be guided by the words which the justice would apply to his case. I think that would be all. In fact this problem would hardly arise in the case of boys at all; the provision was intended in the main to cover girls in the circumstances which I have described. Now, we have been involved in this discussion which brings in another matter and which, in my opinion, takes away the right of the individual girl, at any rate, to say that she would prefer to go to prison rather than to a convent.
Are the constitutional rights of parents not involved in this question?
However, I am accepting the amendment.
I do not know why we should be mealy-mouthed about this. As a Catholic layman I have no hesitation in saying—and anyone who does not like it can lump it—that if there is a problem here in which a girl feels that remand to a Magdalen home involves her in a background which is to her a grievance and a humiliation I cannot believe that the ecclesiastical authorities of our Church, the Roman Catholic Church, or of the Protestant Church or of any other religious communion will not help us, the legislature of the country, to surmount that difficulty by providing for us a convent which is not associated with that glorious charity of the Magdalen homes but which is prepared to provide a different charitable service —the care of prisoners without reference to the nature of their crime. I think we have a right to expect that of our ecclesiastical authorities and I have no hesitation in saying that if, in the judgment of this legislature, it is desirable that that should be done I cannot conceive it as probable that the ecclesiastical authorities of the Church of the majority, or of the minority, will refuse whatever we want.
I feel that the resources of the charitable Orders of the Catholic Church in Ireland are abundantly ample to provide such a service if called upon to do so but I cannot imagine that if we apply to the ecclesiastical authorities they will refuse us. I sympathise with the problem envisaged by the Senators and mentioned by Deputy Corish. I can understand a girl remanded on a shoplifting charge or on a variety of other charges we can imagine, being a simple person and feeling that remand to a Magdalen home may hereafter be upcast to her as evidence that she was guilty of unchaste conduct in the past. That is something with which I have sympathy and something from which we should not recoil or be afraid to mention here because we have a duty to discuss that problem. I think we can find her a suitable retreat to which she can be sent on remand other than prison and which will not have that association from which she recoils.
I am not a bit shy about facing that problem and declaring my views on it. I say that quite deliberately and I want to go on record as saying that I think the Minister for Justice has a right to expect from the ecclesiastical authorities of the Church to which he and I belong, the assistance requisite to make that facility available if and when the Oireachtas take that decision and I cannot doubt that he will get it. But I think what I have heard from the Minister is the right and proper course. I believe that the difficulty connected with the remand of a female prisoner can be surmounted while at the same time we restore to the district justice his discretion as to how juvenile persons on remand should be disposed of.
I have no doubt in my mind that his Grace would accede to a request to make another convent available but when we made the request originally his Grace was kind enough to suggest this particular convent. The fact is that this is a convent in which work is carried on. Most convents are of a very private character and deal in the main with matters religious and they do not cater for any outsiders whatever. I am pretty certain that this will limit the number of convents that can be made available.
There are other convents of the same type as St. Mary Magdalen's but the same stigma would operate if they were to be selected and I can see certain difficulties from that point of view. As I pointed out in the Seanad last evening, I was conscious when this convent was nominated of the limitations which existed and I emphasised to my officials that when we were dealing with this matter we should try to ensure that the girls in question would not in any respect be associated with the type of person to whom objection is taken.
Although I made that statement in the Seanad I do not think it was generally accepted as the remedy for the difficulty which had been raised but, as I said in the beginning, I cannot select a convent. I cannot say, "We will remand the girl to this place, that place or the other place". It is for the ecclesiastical authorities to agree to make these facilities available.
We could have avoided all that, and this discussion also, by simply leaving matters as they are and letting the girl be remanded in the ordinary way to prison but I was conscious of the fact that while quite a number of girls are charged with criminal offences at least some of them are acquitted subsequently and that in those circumstances the stigma of being associated in any respect, even for a week or two or a few days, with Mountjoy ought to be removed. I thought the suggestion of the convent was an excellent way out. I am somewhat doubtful now, because of the discussions that have taken place in the Seanad in respect of the particular convent and the discussion that has taken place here, if the remedy is in fact a remedy at all and if matters would not have been better left as they were.
I think the Minister is doing the right thing in the right way.
Question put and agreed to.
I move:
"In lines 35 and 36, to delete "provided the person consents".
Amendment, as amended, agreed to.
I move that the Committee agree with the Seanad in amendment No. 2:
Before subsection (2) the following subsection inserted:
"( ) For the purposes of subsection (1) of this section, the power conferred by section 10 of the Criminal Justice Administration Act, 1914, to commit to prison shall be deemed to be a power to commit in custody for sentence."
As the law stands, the district court can commit persons of criminal habits of not less than 16 and not more than 21 years of age to prison until the next Circuit Court which is empowered to sentence them if it thinks fit to Borstal detention or to imprisonment. This amendment will enable the district court to send such persons to St. Patrick's Institution until the circuit court decides what to do with them. In other words, it is in line with the one which was proposed under Section 13 of the present Bill, that is, that they may be remanded to the institution until they are brought before the circuit court.
May I take it that the Criminal Justice Administration Act of 1914 provides that where a criminal is remanded in custody to be dealt with by the circuit court that carries with it the implication that he must be dealt with at the next session of the circuit court?
It means in effect that the district justice cannot sentence a prisoner to a period of imprisonment longer than 12 months and if he deems that the person before him is deserving of Borstal detention he must refer him to the circuit court which has the power to sentence him to such detention of two years or a maximum period of three years.
I do not think I have made my point quite clear. I have a passion, if I may say so, for the principle of general jail delivery. What I want to ensure is that under this criminal justice code if a district justice remands a juvenile to St. Patrick's in order that he may be dealt with by the circuit court there will be an implied condition that the juvenile must be produced to the circuit court judge of the next circuit court that sits. Is that clear?
That is correct.
Question put and agreed to.
Amendments reported and agreed to.
Ordered: That a message be sent to the Seanad accordingly.