Dáil Éireann debate -
Thursday, 30 Apr 1964

Vol. 209 No. 6

Committee on Finance. - Courts Bill, 1963—Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Mr. M.J. O'Higgins

I move amendment No. 1:

In subsection (2), page 2, line 14 to delete "is hereby repealed" and substitute "shall be repealed on the date of coming into operation of this section".

I move this on behalf of Deputy McGilligan. If the Minister is agreeable, I suggest we discuss this and amendment No. 2 together for the purpose of bringing out the same point. The Minister will recall that on Second Reading I expressed opposition to the section on the basis that it was designed to reverse a decision taken in 1953 with regard to the number of circuit court judges and that this Bill was designed, in effect, to increase the number of circuit court judges at a time when it was stated Government policy to take away from the courts a large volume of the work done by the circuit court — work in relation to workmen's compensation.

I made the suggestion then that it might be more prudent in present circumstances for the Government to put their policy in relation to workmen's compensation into effect and see what the result was in so far as the volume of work in the circuit court was concerned before taking the step of increasing the number of judges. If the stated policy of the Government in relation to workmen's compensation is put into effect, obviously there will be a reduction in the volume of work to be handled by the circuit court bench. Since then—I do not know whether this is settled Government policy or not— it was announced in the Irish Times of 29th February last that there was also a move to take away from the circuit court the matter of malicious injuries. It is reported in that newspaper that a comprehensive change in the law relating to malicious damage claims is to be made soon on the lines of recommendations made by an inter-Departmental Committee set up two years ago.

The report goes on to forecast that instead of the malicious injuries code as we know it at the moment, there will be a change which apparently envisages some type of compulsory insurance cover rather than that applicants who suffer loss through malicious damage should be required, as they are now, to make application to the courts and, if there is no agreement, to have the matter dealt with entirely by the courts. Of course, that is simply the newspaper report. I do not know whether there has been any Government announcement. If that report is correct, it will diminish very considerably the volume of work dealt with in the circuit court.

I propose to refer briefly to some figures given by the Minister in relation to circuit court sittings and in relation to the volume of work done by the circuit court throughout the country in respect of the different types of cases coming before them.

Deputy McGilligan addressed a question to the Minister on 6th February last in relation to the number of days sittings required to deal with the volume of circuit court work arising in Dublin and asking the Minister to indicate in regard to such work, in each of the years 1960 to 1963, the number of cases which arose under road traffic, workmen's compensation and malicious damage headings.

According to the Minister, in 1960, the total number of sitting days was 436. The number of Road Traffic Act offences by way of appeals amounted to 195; the number of Workmen's Compensation Acts claims was 156; and there were 761 malicious injury claims. In 1961, there were three Road Traffic Act cases on indictment, 259 appeals from the district court, 189 workmen's compensation cases and 596 malicious injury claims.

The same picture is shown for the remaining two years 1962 and 1963. There was an increase in both years in the number of sitting days. In 1962, the figure was 465 and in 1963, 464. In the year 1963, there were as many as 918 malicious injury claims and 156 workmen's compensation claims. In the preceding year, 196 workmen's compensation claims were dealt with in the circuit court in Dublin.

It seems quite clear from these figures that as far as the Dublin circuit courts are concerned, there is a very large volume of both workmen's compensation and malicious injury cases. If either one or the other were taken from the courts, clearly it must relieve pressure on the courts. If both were taken away, it must have a very considerable effect on the volume of work which the judges are required to do.

I referred to the fact that in the Minister's figures there is an increase in the number of sitting days, and it is necessary for us, I think, to understand that when one talks of the number of sitting days in relation to court work, it means the number of sittings which are held by the total number of judges. In other words, if one were to get the average number of days on which the courts sat, it would be necessary to divide the figure which the Minister has given by the number of judges sitting.

On 3rd December last, Deputy R. Barry asked for the number of days on which individual judges sat. I think I am interpreting the Minister's reply correctly when I say that the greatest number of days any judge in the circuit court and anywhere in Ireland sat in the three years covered, 1961, 1962 and 1963, was 191. The number varied. The least number of sitting days mentioned in the answer is 83. The maximum is 191. I am not making any particular point about the least number of days on which a judge sat because the explanation may very well be that he was appointed somewhere during the period covered by the question and, accordingly, the number of days he sat may be well up on the average.

The point I really want to make is that the maximum number of days any circuit court judge sat anywhere in the Republic in the three years, 1961, 1962, and 1963, was 191. There are 365 days in the year. If we take out the Sundays, we are left with 313. The courts, with the exception of some of the district courts, work a five-day week. Consequently, if you take out the Saturdays as well, you are left with 261 days on which the courts might sit. If you are generous, and allow 61 days in the year for holidays, that leaves 200 days on which it would not be unreasonable to expect the courts to sit. There is no single circuit court in the country which has come up to even the 200 days in any of these three years.

It is also relevant, I think, in considering this matter to remember that the court sittings we are talking about —again, I am leaving out the district court, because they sit longer hours— are the circuit court sittings. The circuit court normally sits for only four hours in the day. It starts at 11 a. m.; there is a break for lunch of three-quarters of an hour, or so, and the court resumes at 2 p.m. or a quarter to two, and sits until 4 p.m. These sitting hours were fixed, I suggest, in more leisurely days and for more leisurely times. While I fully appreciate the mental strain a member of the judiciary must undergo, because of the fact that he must concentrate so very assiduously on the cases coming before him if he is to do his job properly, and the mental fatigue associated with that kind of intensive concentration, nevertheless it does seem to me that the proper remedy here lies not in increasing the number of judges in this small and comparatively poor country and poor community but rather in asking the judges to sit half an hour earlier in the morning and half an hour later in the evening. If the judges were prepared to do that, coupled with the taking away of the volume of work it is proposed to remove from the circuit courts, I think any overcrowding of circuit court lists would be solved in no time at all.

Deputy McGilligan's amendments are designed, first, not to repeal instanter section 16 of the 1961 Act but, rather, to state that it shall be repealed on the coming into operation of this section. Secondly, he suggests that a new section be added providing that the section will not come into operation earlier than 1st April, 1966, and that the actual date of the coming into operation might be fixed by Government Order. The purpose of the suggestion is, as I stated, to enable the Minister, the Government and the Dáil to see how the proposals in relation to the taking away of workmen's compensation cases from the circuit court will affect the situation and what effect it will have on the work in the circuit court. I think it is a sensible suggestion. It is one I recommend to the Minister.

In relation to sitting days, and the problem we are considering at the moment, we should remember that for a considerable period the Government found it possible to release one circuit court judge for duty abroad from 14th November 1960 to 15th January 1962 to enable him to accept an appointment as President of the High Court in Cyprus. I do not know to what extent his absence increased the difficulties which, I understand from the Minister, are there at the moment in relation to the overcrowding of the lists in the circuit court, but it is certainly a matter which should be borne in mind before the Government ask the House to increase the number of judges in the circuit court.

Mr. Haughey

I feel Deputy O'Higgins will not be popular with his professional colleagues in Dublin as a result of the attitude he has taken on this proposal because, apart altogether from any examination of this problem carried out departmentally, I am assured by practitioners on both sides of the House that the situation in Dublin is far from satisfactory, even as matters stand. I mentioned on Second Reading that I had been told the position in Donegal was unworkable and a prominent member of the Fine Gael Party assured me that, whatever I did now, I would in time be convinced that the requirement was two extra judges and not one. That is the background to this matter as affecting those who practise in the circuit court.

I want to make it clear to the House that we are not, in this instance, really providing an extra judge. We are only maintaining the status quo. Because of a decision taken in 1953, the situation was that, when Judge Binchy retired, the number of judges available would be reduced by one. What we are doing here now is to go back on the 1953 decision and ensure that instead of a reduction in the number of judges, the number will be retained at ten. This Bill is not providing for an extra judge at all. It is only ensuring that we carry on with the same number of circuit court judges as we had up to now.

When the decision was being taken in 1953 to reduce the number of judges from ten to nine, that decision was very severely criticised by Deputy Sweetman, Deputy T.F. O'Higgins and Deputy D. Costello. As reported in the Official Report, volume 141, column 958, of the 29th July, 1953, Deputy D. Costello said:

I am convinced, however, that it is wrong to reduce the number of circuits and the number of circuit court judges just at the time we are increasing the work they have to do.

Again, as reported in the Official Report, Volume 142, column 709, of 27th October, 1953, Deputy Sweetman said:

I think it is vitally essential that there should not be a reduction in the number of circuit court judges. If I may put it this way, there should be a "fluid" judge who could be sent around as a sort of shock troop to clear up wherever there is an accumulation of work.

Mr. M.J. O'Higgins

I do not want to interrupt the Minister, but am I right in thinking that was the time when the jurisdicion of the circuit courts was being increased? Was it not in that general atmosphere, and did it not seem likely that the volume of work would be increased?

Mr. Haughey

The Deputies I have mentioned were speaking in an atmosphere of increasing work in the circuit courts, I agree.

Mr. M.J. O'Higgins

I should be interested to hear the reply that was given.

Mr. Haughey

I have not got it readily available.

Mr. M.J. O'Higgins

I did not think the Minister would.

Mr. Dillon

If the Minister thought it would be suitable to the debate, he would have it readily available.

Mr. Haughey

I think the 1953 decision was a mistake and that those who criticised it at the time were right. However, that statement is made with hindsight. We see that in recent years the number of sitting days in Dublin has been increasing very considerably.

The figures Deputy O'Higgins quoted are misleading in this respect. He quoted a number of cases that sounded very favourable from the point of view of his argument.

Mr. M.J. O'Higgins

They are the Minister's figures.

Mr. Haughey

I agree, but what is important is not the number of cases but the number of sitting days involved. In 1962-63, we had a total of 464 sitting days in Dublin. Of those, only the equivalent of 16 actual sitting days were taken up with workmen's compensation cases, and the equivalent of 12 sitting days with malicious injury cases. So those two aspects of circuit court work do not take up anything like the amount of time one would imagine as a result of listening to the figures quoted of the number of cases. It is the sitting days that matter in this context, and not the number of cases.

It is all very well to look into the future and say: "When this happens and that happens, there will be no necessity for two judges in Dublin, and so on", but I have to deal with the situation as I find it now. In present circumstances, something must be done. There is a certain amount of delay in the circuit court and a certain amount of time-lag, and if we had not restored the position to ten judges when Judge Binchy retired, very serious delays would have arisen. We now have ten judges acting — one has a temporary appointment—and they are all fully occupied, so it is impossible to contemplate the removal of one, unless we are prepared to let the work of the circuit courts get into a very serious and unsatisfactory position.

Admittedly, the Government have announced their intention of making comprehensive changes in the workmen's compensation code, and no decision has yet been announced on the question of malicious damage to property. In the very nature of things, it will be some considerable time before any change of a comprehensive nature can be made either in the workmen's compensation code or in regard to malicious damage to property. If it transpires ultimately, when these changes are made, that the full services of ten judges are not required for the circuit courts, we can always deal with the situation on the next retirement which will arise.

As I say, it is no good at this stage speculating on what will happen in the circuit courts, if and when these changes are made. On Second Reading, Deputy S. Collins offered to have a wager with me that the number of common law cases in the circuit courts would treble as a result of the proposed changes which the Government are about to make in workmen's compensation. That may or may not be. I do not know. I cannot speculate on what may or may not happen. The reality which we must face is that the problem is there now and requires to be dealt with, and this is the only way of dealing with it.

My answer to Deputy O'Higgins's argument is that if it transpires in the future that we can carry on with eight or nine judges, that is another day's work. We can deal with it whenever the first retirement comes about. Deputies know there are retirements from circuit courts all the time arising in the normal way, and we can always revise the arrangements on the occasion of a retirement. It is necessary to do this now from the point of view of my Department and, I am assured, from the point of view of the profession —and members of the profession in Deputy O'Higgins's Party — it is essential that it should be done. Indeed, some practitioners would urge me to go further and appoint two judges, and to have 11 judges rather than ten at this stage.

Mr. M.J. O'Higgins

Would the Minister answer a question with which he has not dealt? Have the Minister and the Government given any consideration to the question of asking the circuit court judges to extend their daily sitting hours? Judges work a four-hour day for five days. That is a 20-hour week, so far as sittings are concerned. As I have already said, I appreciate the strain because of the particular nature of the work, and I appreciate that very often they have to do their homework the same as anyone else, but to the ordinary person a 20-hour week seems very short.

This situation would be resolved, and this problem would be solved, if the Minister could persuade the judges to sit for one additional hour each day —half an hour earlier in the morning and half an hour later in the evening. That would mean an additional five hours each week for each judge. The Minister would solve the problem if he would do that. I know that even for members of my own profession there is a certain convenience in having the court sitting at 11 o'clock rather than earlier, and finishing at 4 o'clock.

There are two arguments in favour of that, from the point of view of a person in my profession. Take, first, a solicitor. When the court sitting starts at 11 o'clock only, it is possible for solicitors to arrange consultations with counsel on the morning of a court hearing and to have their witnesses down in the Four Courts or in the circuit court in country circuits on the morning of the hearing. Also, if a solicitor is engaged in a court case which will take the entire day it is a certain convenience to him to know that he will be in his office at least until 10.30 or 11 in the morning and that he can count on getting back to his office at 4.15 or 4.30 in the afternoon.

The general good should be considered. I think solicitors would adapt themselves to earlier and later sittings by the courts very easily; I remember the change that has come over the legal profession in this city even over the past 10 or 15 years. Deputy Colley will probably agree with me in this.

Some years ago, it was quite normal to see even busy solicitors arriving at their offices at 10 or 10.30 in the morning. That is all changed. It has changed greatly because of the gradual introduction of the 5-day week into solicitors' offices. I think the Minister will find that a great number of solicitors are now on duty before 9.30 in the morning. That change has come as far as one branch of the legal profession is concerned. We talk about "the wind of change", and so on. I think we must face up to the fact that, as far as court sittings are concerned, the present hours are completely outdated. They were fixed in the time when it was a question of the pony and buggy bringing both the judges and the witnesses to court. The Minister should give serious attention to the question of extending the hours.

Mr. Haughey

I am all for increased productivity and for everybody working harder and achieving the objects set out in the Second Programme for Economic Expansion. I am afraid this is not an area in which we can do very much. First of all, the position in Dublin is that circuit court judges as a rule work a 5-day week. Down the country, the normal thing is a 4-day week but then there is a great deal of travelling to be done by circuit court judges. On the question of hours, of course, I think if I were to attempt to do what Deputy O'Higgins suggests we would have a revolution on our hands from the legal profession, apart altogether from the reaction of the judges. The only thing I can say is that Deputy O'Higgins personally——

Mr. M.J. O'Higgins

I will stand with the Minister in opposing their revolution.

Mr. Haughey

——must have a very large and lucrative sort of practice which never involves him in getting involved in the hurly-burly of the courts. To suggest that we should lengthen the court hours is completely unreal. Deputy Sweetman, in this famous debate in 1953 to which I have already referred, dealt with this particular point—the suggestion that court hours be lengthened. At that time Deputy Sweetman said:

The Minister is not a legal gentleman, but will he agree that when we sit here at half-past ten in the morning and continue sitting until four or five in the afternoon, it is a most tiring thing for the Minister in charge of a Bill? Is not that a fair analogy with a judge's work?

That quotation is taken from column 687 of volume 142 of the Official Report.

He proceeded to talk about what happens when the circuit court goes to Mayo. As reported at column 683 of the same volume of the Official Report of 27th October, 1953, Deputy Sweetman said:

When it comes to the circuit court, however, other considerations arise. Mayo has been mentioned, and in Mayo people from Achill have to travel to Ballina to the circuit court. A 10 o'clock sitting would mean that they would have to come the night before because what invariably happens in the country—and I think Deputy Cowan will agree—is that the consultation is held at 10 o'clock before the circuit court sits. There is never a consultation the night before, and putting back the hours of sitting for the circuit court in the country would merely mean that litigants and witnesses would inevitably have to travel the night before and that would very substantially indeed increase the cost.

Mr. M.J. O'Higgins

I agree with all that. That was ten years ago, and more.

Mr. Haughey

The same situation still applies. I think it would give rise to enormous cost and inconvenience for witnesses, litigants and members of the legal profession if we were to attempt to make this change.

Mr. McQuillan

What about the later half an hour?

Mr. M.J. O'Higgins

Or an hour?

Mr. Haughey

The same thing to a large extent, applies there. The main argument against extending it is, if you like, the strain on the judge, jurymen and so on. But, in addition, from the point of view of the legal profession, it is important to them, because when a case finishes in court, they have a lot of tidying up to do. It is important that they should be able to get back to their offices in the evenings to attend to these administrative matters. That, of course, applies particulary in the case of a rural solicitor who may be attending a circuit court 40 or 50 miles away from his base. On the whole, I think it is just not feasible to attempt any change when you take all the various aspects of the matter into consideration.

Major de Valera

I admit that my experience is a little bit in the past now but I had some experience of this matter on circuit and particularly on circuits in Deputy O'Higgins's constituency. I think we are losing sight of the fact also that there is, particularly in country circuits, a certain amount of irregularity of hours and the strain that goes with irregularity of hours, in the work of circuit court judges and district justices. I have vivid recollections. I could mention practically every town on the eastern circuit where I have seen judges sitting until 10 p.m. but very regularly until 6 and even 7 o'clock in the evenings to keep the work going.

Mr. M.J. O'Higgins

And there was no revolution.

Major de Valera

It happens two ways and it did happen——

Mr. M.J. O'Higgins

Hear, hear.

Mr. Haughey

In that case, the judge would be sitting late for the convenience of everybody.

Major de Valera

Yes, that is the point I want to make, that there is a great deal of give and take and mutual convenience in the country circuits, anyway. I have on many occasions seen the court, with the full cooperation of the Bar and the solicitors, sitting until late hours voluntarily in order to get the work done. I am sure Deputy O'Higgins will agree with that.

Mr. M.J. O'Higgins

I agree.

Major de Valera

That elasticity is extremely useful. I need not elaborate on the reasons why. If Deputy O'Higgins puts himself in the position either of a client of a country solicitor or a barrister on circuit, he will agree that co-operative elasticity is extremely useful. The eastern circuit is an extremely busy circuit. The work there was got through and, in my experience, if a case was carried over, it was because it was not possible because, say, a witness was not available or there was some administrative difficulty rather than that the court was not sitting. I have never seen a judge refuse to deal with a case that could have been dealt with on the spot and, what is more, I have often heard judges volunteer to come for an extra day if there was pressure on the circuit. I stress that point.

We should not lose sight of the fact that in its very nature the work of judges is casual, in the sense that you cannot say that there will be so many cases of so long a duration before the judge on any particular day or in any particular session. There will be slack periods and there will be periods of pressure. Therefore, we cannot legislate on the basis of a Civil Service day. If you attempt to do that, you will lose that, to my mind, very valuable element of elasticity which enables practitioners and judges to do their best for the litigants by adjusting the times. In my experience, there was never any lack of that.

I have never heard, in my time on the circuit or in the Bar Library, any serious complaint that could be taken as a general complaint about the judges not coping. I have heard—at that time it was common to hear— in the Dublin circuit that there was too much work in the circuit but I never heard any complaints about either the manner or the willingness of the judges and the court staffs to face up to it. Whenever there were complaints of that nature among practitioners, it was always fully realised that it was due to the volume and pressure of work and not to any shortcoming on the part of the judges or court staffs. When one takes that background into consideration, I ask Deputy O'Higgins: is it really in the interest of the point of view he is putting to make the case he is making?

I have spoken of voluntary co-operation but there is another aspect that should also be considered in the life of the judges. Judges have very heavy responsibility and they have consciences and most reputable people in the position of judges feel compelled to study and to give reasoned judgments. That entails some burning of the midnight oil and a degree of concentration that can be appreciated only by people who have to sit and adjudicate. Furthermore, we are conveniently forgetting here that criminal jurisdiction often involves much longer hours than the average. I have seen cases where the court has been going from 10 o'clock in the morning with the minimum hour break for lunch —it is always a minimum, as Deputy O'Higgins will probably agree—until as late as 10 or 11 o'clock at night waiting for juries or to clear juries.

I have been in such cases myself. These are not so exceptional as to be treated as exceptional. They occur sufficiently often and involve a court sitting perhaps an hour or more on the average beyond what would appear in the timetable more frequently than people may realise. In fairness to the judges, I think it would be an inaccurate picture to consider them as merely coming in, punching the hours Deputy O'Higgins has mentioned and then going off. In country circuits, in any case, judges frequently sit longer and are compelled to do so in criminal cases and sometimes do this to a large extent and overall they have the responsibility of studying and digesting cases.

It may be, shall I say, mechanical expedition to rush a large number of cases through quickly but remember that the circuit court particularly is there, not to give rough and ready summary justice but to give considered justice to the litigants and ensure an ordered standard of fair play and justice to the community as a whole. You cannot do that by turning a handle: it can be done only after judicial consideration and that takes time. The human brain has not got to the speed of the modern electronic calculating machine. It would be absolutely wrong to attempt any adjustment in the country circuits. It would be a mistake from the practitioners' point of view and I think it would be overlooking all the factors the Minister mentioned in regard to clients and solicitors and everything else.

Before leaving the country circuits, I might make one other point. Although the allotted time for a judge in a particular circuit town would be a fortnight, when the pressure of work was such as to require it, I have frequently seen judges volunteering and saying: "I can come next week" and sitting the whole week and adding it on. I have seen that happen in such towns as Dundalk and Wicklow. All over, there is uncertainty even in regard to the amount of crime before a circuit. The judge who may get white gloves one week may find he has to give a whole week to crime in the following week. It would be very unwise of us to interfere in regard to country circuits. The judges and local practitioners are doing a very good job and supplying a social need in the community very effectively. We can judge its effectiveness by the lack of any serious complaint.

What about Dublin? I can appreciate Deputy O'Higgins's points more readily in regard to Dublin. Again, I am, as Deputy O'Higgins may say, back in the past and perhaps that is so because I have not had experience within the ten years Deputy O'Higgins has referred to.

Mr. M.J. O'Higgins

I may have thought that but I did not say it.

Major de Valera

I am saying it for the Deputy.

Mr. Haughey

Deputy de Valera must not try to read all our unspoken thoughts.

Major de Valera

I think Deputy O'Higgins will agree with me that although the courts sit at 11 o'clock, it is true that work really starts at 10 o'clock. It is necessary for the solicitors to be there and they often complain that they had to be there in order to know how things were going and to arrange with barristers and clients, and perhaps the clients could only turn up at that time. In any case, nobody was in a position to be under way before 11 o'clock and I have seen the barristers coming in, meeting solicitors and clients as early as half-past nine at the Four Courts. There was a minimum break for lunch. I have often seen the Dublin circuit give the extra half hour—shall I put it this way—that Deputy O'Higgins is talking of. I do not really try to read everybody's thoughts or supply everybody's ideas but I think we would be most unwise to undertake legislation in that way.

My criticism about the tendency of all this kind of legislation, although I understand the necessity for it, is that the more prescriptions there are as to what judges will do or will not do, the less can the community have the benefit of their standing and discretion. The more directions there are as to hours and times and whens and wherefores, the more we lose through a mechanical level of adjustment. A mechanical level of adjustment surely enough is often uniform but it is often a very low level.

Mr. McQuillan

When Deputy O'Higgins suggested to the Minister that it might not be a great strain on anybody to increase the hours of sittings by half an hour at the end of the day, the Minister, with what I think I can only describe as his tongue-in-cheek method, said he was all for increasing output and harder work and seeing that the Second Programme for Economic Expansion was successful. What I cannot understand are the two different applications of mind by the Minister; for the worker, yes, an increased output is essential—and if the worker is to get an increase, it is of course on the basis that he increases his output—for the judiciary, a big increase in salaries and a reduction in output. That is what we are faced with here at a time when there is a substantial increase on the stocks for them in the next fortnight and the Minister comes in and seeks to reduce the amount of work by an extra appointment.

Mr. Haughey

It is not extra.

Mr. McQuillan

Of course it is. There is a temporary post there at the moment.

Mr. Haughey

All we are doing is not reducing the number.

Mr. McQuillan

The Minister will will not catch me with that type of nonsense. When was the temporary post filled and the appointment made?

Mr. Haughey

Immediately Judge Binchy went out.

Mr. McQuillan

That was very recently.

Mr. Haughey

To keep the level at ten.

Mr. McQuillan

The Minister said that it would be wrong, particularly in rural areas, to increase the day sitting by half an hour at the end of the day and that he was thinking of juries as one aspect of the problem. That was the first time I have heard any consideration being expressed for juries in this issue. If the Minister were really serious about jurymen, he would not just be making a casual comment about them.

I shall not delay the House except that I want to say that there is an air of unreality in all this as far as the Minister is concerned. He wants increased output from the worker and a reduced output from the judiciary and one of the reasons he is favouring the judiciary is that he has concern for the jurymen. Would the Minister do something about that concern for juries who fill such a vital role? Unfortunate jurymen have to travel 30 miles in my constituency and they have not even got their busfares but must find their own expenses to travel to court, pay for their meals and find sufficient money to pay their way home again. There are no expenses or consideration for them and the Minister would get far more support from the ordinary citizens for any such measure as this if he said he had the greatest concern for the people who must make the decisions and those people are the jurymen. I see no sign on the part of the Minister of coming in and saying that.

Mr. Haughey

It is not quite fair of Deputy McQuillan to say that, because, first of all, in the Capital Punishment Bill which we passed recently, I included a provision which obviates the necessity for locking up juries in murder cases. That was done as a concession to jurymen in an endeavour to make their very onerous task somewhat less difficult. I have every sympathy with jurors. There is probably nothing about which I get more representations daily than in regard to unfortunate businessmen who are called away from their business or work and suffer very considerable inconvenience and hardship. Indeed as a result of that situation, I have asked the committee which has been established to go into the whole question of court practice and procedure to examine into and to see whether it would be possible to do away with juries altogether in civil cases. Personally I would favour that, subject to whatever reasoned decisions this committee may come to. As Deputy McQuillan knows from his knowledge of these matters, if we could dispense with the necessity for juries in civil cases, that would go a long way towards making life much easier for jurymen.

Mr. M.J. O'Higgins

It might be as well that Deputy de Valera did not read the Minister's mind.

Mr. McQuillan

The Minister has not said anything to show that my statement was incorrect. He may have brought in a provision whereby it is no longer necessary to lock up juries——

Mr. Haughey

That was only an instance of my goodwill.

Mr. McQuillan

The Minister's goodwill. I hope that that rare occurrence is not going to increase, of having to deal with more murder cases. I could give the House the actual details of what I have come across. I appreciate that unfortunate businessmen in the city of Dublin may suffer losses but what about the man who cannot afford to travel the 25 or 30 miles to court and is fined if he does not turn up? It is a disgraceful situation at a time when we are going to facilitate the other end of the court. Both should be given equal consideration and that is not the case.

An Leas-Cheann Comhairle

Is the amendment withdrawn?

Mr. M.J. O'Higgins

There does not seem to be any point in pressing it.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

Section 2 agreed to.

SECTION 3.

Amendments Nos. 3 and 4 not moved.

Section 3 agreed to.

Sections 4 and 5 agreed to.

NEW SECTION.

Mr. Haughey

I move amendment No. 5:

In page 3, before section 6, to insert the following section:

"(1) Subject to subsections (2) and (3) of this section, where a person (in this section referred to as an accused) charged with an indictable offence is sent forward for trial to the Circuit Court, an application by the Attorney General or the accused to the judge of the Circuit Court before whom the accused is triable to have the trial transferred to the Central Criminal Court shall—

(a) in case the party making the application, not less than seven days before making it, served notice of his intention to do so on the accused or the Attorney General, as the case may be, be granted, and

(b) in any other case, in the discretion of the judge, be either granted or refused, and the decision to grant or refuse the application shall be final and unappealable.

(2) Where—

(a) two or more accused are sent forward for trial to the Circuit Court and it is proposed to try them together, and

(b) an application by one or more, but not all, of the accused under subsection (1) of this section is granted.

an application, without notice to the accused, by the Attorney General to the judge who granted the application aforesaid to have the trial of one or more of the remaining accused transferred to the Central Criminal Court shall be granted.

(3) Where there are less than seven days between the date on which an accused is sent forward for trial and the date of the commencement of the trial, an application under subsection (1) of this section in relation to the trial shall be granted.

(4) Section 54 of the Courts of Justice Act, 1924, and subsection (8) of section 34 of the Finance Act, 1963, are hereby repealed."

Since 1924, an accused person has been entitled, on application, to have his trial transferred from the Circuit Court to the Central Criminal Court, if he is charged with an offence for which the maximum penalty exceeds one year's imprisonment or five years' penal servitude. This provision was designed to enable an accused person who felt he might not get a fair trial from the local jury to have his trial transferred to the Central Criminal Court which has always sat in Dublin. Under section 34 of the Finance Act, 1963, a similar right was provided in relation to offences under the Customs Acts which by virtue of that particular section, were triable on indictment. The Attorney General has the same right as the accused to have a trial transferred.

In this new section, I propose that this unrestricted right to have the trial transferred will continue to apply but that it will be subject to the accused on the one hand and the Attorney General on the other, giving seven days' notice of the intention to make the application for the transfer. Where notice of intention is not given at all, or is not given within the prescribed time, the granting of the application will be at the discretion of the trial judge. In other words, even if the accused or the Attorney General does not apply within the time limit, he still will not be debarred from getting the transfer. It will at that stage be at the discretion of the trial judge as to whether or not he will grant it.

I am making this provision with a view to preventing to some extent what is undoubtedly an abuse of the existing rights, to have these transfers granted automatically on request. In the past cases have been transferred to the Central Criminal Court for no better reason than to secure an adjournment which had already been properly refused or to suit counsel or simply because the accused wanted to postpone the evil day. As a result of this, much of the time of the High Court had been needlessly taken up with criminal trials which are really proper to the circuit court. The necessity for transferring trials to Dublin has diminished since the enactment of the Criminal Justice Act, 1951, because section 19 of that Act empowered a circuit judge to transfer criminal trials from one place within a circuit to another, if he felt the accused might not get a fair trial in any particular venue. As regards persons who are chargeable in the Dublin Circuit Court, they have not the excuse that by applying for a transfer they are likely to get a fairer trial, because the jury in the Dublin Circuit Court and in the Central Criminal Court are drawn from the same jury book.

The amendment has a fairly limited objective in that it will preserve the existing absolute right to have a trial transferred to the Central Criminal Court, subject only to the accused or to the Attorney General, as the case may be, giving seven days' notice before the trial of his intention to apply for a transfer. If for any reason he neglects to give the notice or if, in the meantime, circumstances arise which make it desirable to apply for a transfer, he can still have the transfer at the discretion of the trial judge, and I am sure we can expect that that discretion will be exercised properly and reasonably by the trial judges in all cases.

Even though this modification is a very limited one, it will help to prevent much of the present inconvenience and expense to witnesses, jurors and police in respect of unnecessary attendance at court. As Deputies may have seen from the newspapers, there have been some recent cases which have given rise to very strong criticism, criticism which, I think, was entirely justified. This is not simply a question of the inconvenience to witnesses and all concerned by the exercise, without notice, of the right of the accused to transfer. In some cases, particularly where witnesses travel voluntarily from abroad, the result may be that they will not come forward at all on the second occasion, with the result that the administration of justice is considerably impeded and prejudiced.

The amendment is a reasonable approach to this problem. It is a fair compromise between the right of the accused or the Attorney General, on the one hand, and the necessity for the proper administration of justice in the circuit court, on the other.

Mr. M.J. O'Higgins

It is quite clear in this connection that the Minister has had the views of the Attorney General but I should like to know if he has had any consultation with the governing body of the Bar. In other words, was the defence point of view, in addition to the prosecution point of view, taken into account?

Mr. Haughey

I have not actually had any formal discussion with the Bar but I assume that they are not worried about it; otherwise, they would probably have approached me.

Amendment agreed to.

NEW SECTION.

Mr. Haughey

I move amendment No. 6:—

In page 3, before section 6, to insert the following section:

(1) In this section—

"Circuit Court document" means any document by which proceedings in the Circuit Court (including appeals from the District Court) are instituted and any other document relating to civil proceedings in the Circuit Court which is a notice, order or witness summons;

"District Court document" means any document by which proceedings in the District Court (other than proceedings by way of summons in which the complainant is a member of the Garda Síochána, a Minister of State, an officer of such a Minister, the Attorney General or an officer of the Revenue Commissioners or proceedings under the School Attendance Acts, 1926 and 1936) are instituted and a witness summons relating to such proceedings.

(2) This section shall apply in relation to the service of Circuit Court documents and District Court documents in any area whenever and so long as no summons server stands assigned to that area by the County Registrar for the county in which the area is situate.

(3) Service of a Circuit Court document or a District Court document may be effected by sending a copy of the document by registered prepaid post in an envelope addressed to the person to be served at his last known residence or place of business in the State and the document may be posted by the person on whose behalf it purports to be issued or a person authorised by him in that behalf.

(4) Service of a Circuit Court document or a District Court document upon a person pursuant to subsection (3) of this section shall, upon proof that the envelope containing a copy of the document was addressed, registered and posted in accordance with the provisions of that subsection, be deemed to be good service upon the person unless it is proved that such copy was not delivered.

(5) (a) Where—

(i) a person upon whom it is proposed to effect service of a document pursuant to subsection (3) of this section is outside the State or his whereabouts are unknown and cannot be ascertained by reasonable inquiries, or

(ii) an envelope containing a copy of a document intended to be served upon a person pursuant to the said subsection (3) is sent to the person by registered post and returned undelivered to the sender,

the Circuit Court or District Court, as may be appropriate, may make such order for substituted service or for the substitution for service of notice by advertisement or otherwise as it may think proper.

(b) The power conferred on the Circuit Court and District Court by this subsection is without prejudice to any other power of those Courts to make orders for substituted service or for the substitution for service of notice by advertisement or otherwise.

(c) In this subsection "substituted service" means service otherwise than by a summons server or pursuant to subsection (3) of this section.

(6) (a) Where service of a document on a person is effected by sending a copy thereof by registered prepaid post in an envelope addressed to the person pursuant to subsection (3) of this section—

(i) the document shall be deemed to be served upon the person at the time at which the envelope would be delivered in the ordinary course of post,

(ii) the document shall be deemed to be issued at the time at which the envelope is posted,

(iii) the addressing, registering and posting, in accordance with the provisions of subsection (3) of this section, of the envelope may be proved by a statutory declaration (which shall be endorsed upon the original document and shall be made, not earlier than seven days after the day on which the envelope is posted, by the person who posted the envelope) exhibiting the certificate of registration of the envelope aforesaid and stating, if it be the case, that the original document was duly stamped at the time of posting and that the envelope has not been returned undelivered to the sender, and

(iv) the time, date and place of posting of the envelope shall be endorsed upon the original document.

(b) Where a document of which service is effected pursuant to subsection (3) of this section falls to be lodged at any court office, the endorsement specified in subparagraphs (iii) and (iv) of paragraph (a) of this subsection shall be effected thereon before lodgment at that office.

(7) Where a Circuit Court document or a District Court document is required by law to be stamped, service thereof pursuant to subsection (3) of this section shall have no effect of validity unless at the time of such service the document bears a stamp or stamps of the character and value required by law.

(8) Section 44 of the Court Officers Act, 1926, shall not be construed as requiring that one or more summons servers shall be attached at all times or at any time to every or any circuit court office.

Mr. M.J. O'Higgins

This was dealt with on the Second Reading.

Mr. Haughey

The proposal is to enable documents which at the present time have to be served by summons servers to be served in future by registered post.

Amendment agreed to.

Section 6 agreed to.

Title agreed to.

Bill reported with amendments.

Agreed to take remaining Stages to-day.

Bill received for final consideration and passed.