Dáil Éireann debate -
Tuesday, 23 Nov 1965

Vol. 219 No. 1

Criminal Justice Bill, 1965: Second Stage.

Minister for Justice (Mr. B. Lenihan)

I move that the Bill be now read a Second Time.

The main objects of this Bill, which I am now asking the House to approve in principle, are, firstly, to eliminate as far as possible the present cumbersome and time-consuming procedure of taking depositions in the preliminary investigation of indictable offences in the District Court; secondly, to provide that normally these preliminary proceedings will be heard without any press, radio or television publicity; and thirdly, to re-enact various enactments relating to the grant of bail.

The most important provisions are those contained in Part II. This Part sets out the new procedure to be observed on the preliminary examination of an indictable offence in the District Court and will bring about a most important and, in my opinion, long overdue reform.

As Deputies know, the present law is that before a person may be put on trial for an indictable offence, that is, an offence which under the Constitution he has a right to have tried by a judge and jury, a district justice must first of all conduct a preliminary investigation. At this investigation the evidence, which is taken on oath, is written out by the district court clerk in longhand. After the district justice has heard the prosecution witnesses and any witnesses that may be called by the accused and after he has considered any statement the accused himself may make on being cautioned, he decides whether the prosecution has established a sufficient case to justify putting the accused on trial. It is important to emphasise that it is not the function of the district justice to resolve any conflict between the evidence of the witnesses for the prosecution and that of any witnesses for the defence. The preliminary investigation is in no sense a trial. All the district justice has to see is whether the prosecution has established a prima facie case against the accused, in other words, whether there is enough evidence which, if it is not contradicted at the trial, a reasonably-minded jury could convict upon.

Because of the limited scope of this preliminary investigation it is not usual for the accused person to disclose his defence at this stage or to bring forward any witnesses on his behalf but the present procedure does allow an accused person to do so if he considers that this may secure his discharge at that stage. It is significant, however, that only about one per cent of persons arrested or summoned for indictable offences are discharged at this point of the proceedings. Of course, not all indictable offences go through this procedure. A number of them may be dealt with summarily if the accused consents and if the district justice considers that the offence in question is of a minor character. And in cases where a plea of guilty is entered in the District Court, the justice has power to impose a sentence of up to twelve months imprisonment or a fine of £100 or both for any indictable offence except the most serious ones if he considers that the punishment he can impose is adequate and the Attorney General does not object.

In the preparation of this Bill we were fortunate to have the benefit of the examination given to the existing procedure by the Committee on Court Practice and Procedure, which is under the chairmanship of Mr. Justice Brian Walsh. In their First Interim Report the Committee, by a majority, recommended that the principle of having a preliminary investigation should be retained, subject to certain modifications which were designed to avoid having any investigation at all where an adult accused so desired and in other cases to reduce the time taken in court under the present arrangements. The Majority Report therefore recommended that in certain cases a person could be sent forward for trial without the taking of depositions where that person, though not wishing to plead guilty, was satisfied to waive the preliminary investigation. In other cases the evidence would be recorded by way of affidavit in the local State Solicitor's Office rather than by deposition and the accused would be served with copies of the affidavits together with particulars of the offences and a list of the prosecution witnesses. The accused would have the right to require the prosecution to have the witnesses attend and make a deposition and be subject to cross-examination. The prosecution would have a similar right in certain circumstances.

The Minority Report, on the other hand, recommended the complete abolition of the preliminary investigation, with the provision of certain safeguards, and envisaged that the accused would be sent forward for trial without the intervention of any judicial person to examine whether or not there was a sufficient case for putting the accused on trial and that in lieu of depositions the accused would be served with a notice in writing specifying the persons it was proposed to call as witnesses and giving a statement of the evidence that was to be given by each of them. The Report pointed out that such safeguards as were provided for the accused by the taking of depositions must now be looked at in the light of the fact that there are now other and sufficiently adequate safeguards which did not exist before 1924 and that circumstances have greatly changed since the present law, governing the existing procedure, was enacted over a hundred years ago. Since 1924, all criminal charges prosecuted upon indictment must be prosecuted at the suit of the Attorney General and, again since 1924, an appeal has been provided against every conviction on indictment. Apart from these safeguards, the Minority Report suggested that the court, if given power to award costs to an accused person in a proper case, would act as a further safeguard against a person being placed on trial without sufficient evidence. Finally, it made the point that in cases which are dealt with summarily there is no pretrial procedure, the person charged is not given any notice of the evidence proposed to be given against him, or of the witnesses to be called, though he is liable on conviction to be sentenced to imprisonment for a maximum of 12 months.

The provisions in Part II represent a middle course between the views expressed in both Reports. In particular, instead of abolishing the preliminary investigation altogether, it maintains the principle that no person should be committed for trial unless a district justice considers that the prosecution has established a sufficient case for doing so. It proposes that the accused and the justice will be supplied with a copy of the charges, a list of the witnesses to be called by the prosecution at the trial, together with a statement of the evidence that is to be given by each of them and a list of the exhibits. The decision whether to return an accused person for trial will be taken on the basis of the justice's consideration of the documents and exhibits and of any statement the accused may make after caution.

In addition, the prosecution and the accused will each be entitled to require the taking on sworn deposition of so much of the evidence of any witness, whether included in the supplied list of witnesses or not, as appears to the justice to be necessary to enable him to form an opinion as to whether there is a sufficient case to warrant sending the accused forward for trial. The preliminary examination procedure may be waived altogether by the accused.

In my opinion, the new procedure provides ample safeguards to an accused person from his having to undergo a public trial unnecessarily. At the same time, it abolishes the existing slow and costly deposition procedure in all but exceptional cases. How slow and costly this procedure is can be illustrated from an estimate I have had made of the number of hours spent in taking depositions in the District Court during the year ended 30th September last. It was no less than three thousand hours. Allowing five hours a day, this represents over six hundred days. Naturally the new procedure will not entirely eliminate these sittings but there will clearly be a considerable saving of time and expense and inconvenience to all concerned.

From the point of view of the accused, the new procedure offers considerable advantages. In the first place, he will be presented with a complete statement of the charges and of the prosecution case before the commencement of the preliminary examination. This is something he has not got at present. He is saved the distress involved in prolonged attendances during the taking of depositions when, as so often is the case, there is no doubt in anyone's mind that he is going to be sent forward for trial at the end of it all. Finally, the case against him may not be published unless he so desires it and even there the district justice has a discretion to refuse his application for publication. These advantages are additional to the advantage which he possesses under the existing procedure of being afforded an opportunity of hearing and knowing the evidence to be given against him, of testing the evidence and possibly breaking it down in cross-examination and of giving evidence himself which may possibly result in his being discharged.

I want to stress again that here we are dealing simply with the question of whether or not a prima facie case has been established and it will be for the prosecution to establish that case clearly. If the accused, by availing himself of the provisions in the Bill, can show that they have not done so, he is fully entitled to be discharged even though it may be, in the future as it has been in the past, that he is in fact guilty of the offence charged. Our law is still that a man is innocent until he is proved guilty and there can be no question of making any inroad into that fundamental principle. Of course, that is not to say that the provisions which we are now proposing in replacement of the present procedure will not have to be tested in practice to see that they operate satisfactorily. They are no more immune to periodic review than any other legislation enacted by this House but from the reception the Bill has received and the comments and suggestions that have been made concerning it, I am confident that it will provide a very satisfactory replacement for the present procedure.

Here I should like to say a word about the provisions which restrict the publication of the proceedings or evidence at the preliminary examination. This provision gives effect to the unanimous view of the Commission that publication of the evidence might frequently be the cause of injustice to an accused person and prejudice his fair trial as, in most cases, only the case for the prosecution is presented at that stage. The Committee were evenly divided on whether the fact that the preliminary investigation had been held and the result of it should be published. On this aspect the Bill comes down on the side, as I have said, of allowing such publication. Subsection (3) of section 16 allows publication of such information as the judge or justice before whom the proceedings are brought permits to be published at the request of the accused.

This departs somewhat from the Committee's recommendation in that the Committee thought the accused should have an absolute right to have publication if he so requested. My own view is that it might be better to allow the judge or justice discretion whether to agree to such a request by the accused and that this is a discretion which could safely be entrusted to them and would be exercised properly and responsibly. However, this is a matter on which there may be differing views and I shall be glad to give consideration to what any Deputies may have to suggest concerning it.

Before I leave the provisions about publication, I should like to say how gratified I was to learn that our journalists individually and the Press as a whole are overwhelmingly in favour of non-publication of the preliminary proceedings for the same reason as the Committee, that is that on the whole the publication might be prejudicial to the fair trial of the accused. Another feature is that as well as prohibiting publication of these proceedings the Bill is giving effect to the unanimous view of the Committee that there should be specific statutory recognition of the fact that the preliminary investigation is open to the public unless the court considers it desirable because of the nature or circumstances of the case or otherwise in the interests of justice to order that the investigation be held in private. Some statutory provisions requiring the holding of proceedings in camera, such as incest cases and certain proceedings under the Official Secrets Act, 1963, are not affected but, subject to this, the power of excluding persons from the court does not apply to press representatives or to certain other persons such as parents or friends of an accused person, who under the present law have an absolute right to be present at these proceedings.

There are two other provisions in Part II to which I should like to draw attention. The first is section 11, which replaces section 62 of the Courts of Justice Act, 1936, authorising the Attorney General to direct that a person be sent forward for trial where the district justice has refused informations under the present law. The section transfers this function to the High Court. The remaining section to which I wish to refer is section 18. Subsection (1) of this section amends 1951, which enables certain indictable offences of a minor character to be section 2 of the Criminal Justice Act, tried summarily: it requires the consent of the Attorney General for the summary trial of an offence consisting of an assault with intent to commit felony, or on peace officers, etc. Subsection (2) amends the list of indictable offences which may be tried summarily by raising the monetary value of stolen property which may be dealt with summarily from £50 to £100 and adding a number of other offences which are detailed in paragraph 24 of the explanatory memorandum which accompanies the Bill.

Subsection (3) of section 18 provides that free legal aid will not be available at the preliminary examination except in murder cases where, traditionally, such aid has been forthcoming. I am inclined to the view that such aid is requisite only where difficult questions of law may require to be argued and that any such arguments would be appropriate to the trial itself rather than to a preliminary examination. I am bearing in mind too the safeguards, the additional safeguards, which have been built in for the accused in the new procedure.

Part III of the Bill, although somewhat elaborate, does not seem to me to require detailed comment or explanation at this stage except, perhaps, in two respects. One of these is, again, in ease of the accused and is contained in subsections (2) and (3) of section 21. Subsection (2) extends to the whole country the existing power of the Dublin Metropolitan Justices to remand an offender on bail for longer than eight days if both the accused and the prosecutor consent. Subsection (3) allows the District Court, if the accused and the prosecutor consent, to remand in custody for a period of more than eight days but not exceedings 30 days. This provision will obviate the necessity for bringing the accused before the court at frequent intervals when there is no prospect of the prosecution being able to proceed with the preliminary examination. However, the present limit of eight days will continue to apply on the occasion of the first remand in custody, at which time it is reasonable to assume that the accused may not be in a position to appreciate the full implications of his situation.

The other provision in Part III to which I should like to draw attention is that in subsection (5) of section 26 which allows evidence of previous convictions to be given on an application for bail where these convictions were for offences committed while on bail. It is well known that it is a practice among some professional criminals to commit further offences of the housebreaking or larceny type while on remand on the view that even if they are apprehended for these further offences the additional sentence, if any, which they may receive will be more than balanced by the monetary gain from the commission of the offences. In the interests of the accused it is provided that the judge or justice who hears evidence of previous convictions may not try the case subsequently and there is a provision prohibiting publication of any information about the convictions.

In conclusion, I should like to say that I am presenting this Bill to the House as a non-controversial measure which will make a worthwhile reform in the administration of criminal justice in this country. I hope that it will be acceptable to the House in principle and that it will be possible to improve it still further in the course of its passage through the Oireachtas. I have already received, as I have said, a number of very useful suggestions about the Bill and I want to say that all these suggestions and any that may be made here in this House will receive sympathetic consideration. My aim, in this as in other matters connected with the practical business of administering justice, is to have a procedure which is as good as and, indeed, better than that obtaining in other countries; one which is fair to accused persons and to the public as a whole and which is recognised generally to be so. Only in this way can we have any real foundation on which to inculcate a genuine respect for the law and the institutions established by it.

I hope the Bill will commend itself to the House on this basis.

Mr. M.J. O'Higgins

In recent years there has been so much talk about and so much publicity attached to the question of law reform that one might be forgiven for thinking that it was a subject that came into being only with the advent of recent Fianna Fáil Governments. In fact, the question of law reform has been there for a number of years and I am sure the Minister will concede that it was given very great impetus by the inter-Party Government under the leadership of Deputy John A. Costello. I think the Minister has brought out the point I want to make in his introduction of the Bill, that is, that the process of law reform, certainly so far as statute law is concerned, is a process that is going on all the time.

I believe this is the first practical measure of law reform that has been introduced, certainly in recent years. The Minister presents it as such and also as a non-controversial measure. He is quite right. It is certainly a measure that is not likely to provoke any very great controversy. There are a few matters which, possibly, should be examined more closely in Committee but the measure is a welcome one. I welcome it particularly as a practical measure of law reform. Our aim, in the sphere of law reform, should be an effective programme of law reform, not simply the condification and amalgamation of existing legislation, not merely weeding out of old unused dead wood out of our law.

I agree that that kind of work is useful. More than that, it is even valuable work. A great deal of valuable work of that sort has been done but it will be largely a waste of time and a waste of effort, unless, side by side with it, law reform of the sort contained in this Bill here is proceeded with, unless the Government are prepared to undertake an active and energetic drive to speed up our entire legal machinery and to bring it up to date in order to keep pace with modern needs. Any unnecessary delays—and any practising lawyer will be able to point to a number of them—should be eliminated. It is a thing that obviously is going to take some time but that must be the target. Certainly outmoded practices and procedures ought not to be allowed to remain part of our legal system merely because they are traditional, or because it will take some effort to remove them. Our aim must be an effective, efficient and speedy legal system, and while that must be the aim of any worthwhile programme of law reform, I think the Minister will agree with me that the principal consideration at all times must be to ensure that the scales of justice are held in even balance both as between individual litigants and as between the authorities and private individuals.

When a Bill of this nature is introduced, which certainly will have the effect of bringing about greater efficiency in the courts and of speeding up the legal process, I think at the same time it must be put to the test as to whether or not there is any danger that it is going to operate unfairly or unjustly against particular individuals who may be accused of offences before our courts. By and large, I do not think this Bill is likely to give rise to that danger. The Minister has pointed out that the Majority Report of the Committee which reported on this subject was in favour of retaining the preliminary investigation system and that the Minority Report was against it. The Minister has arrived at a reasonably good and pretty fair compromise as between the two extremes, those who take the view that there should be no preliminary investigation at all and those who take the view that the preliminary investigation should be retained in fairness to accused persons.

The suggestions contained in this Bill are, as I say, a fairly good compromise between those two views. I am a little unhappy at the thought that under the provisions of this Bill it will be possible in future for a person to be sent forward for trial merely by accusation without any sworn testimony against him. That is certainly one of the matters I would urge on the Minister to consider further. I agree that it is a matter that possibly should be considered more in Committee but I would urge the Minister to consider the possibility of providing that the statements of evidence which he is providing in the Bill should be furnished to accused persons, should be in some way verified by the affidavit of the person who is to give evidence.

Most lawyers will agree with me in the knowledge that people in this country have respect for an oath and it is quite conceivable—I think I am putting that fairly mildly—that when a person comes to make a statement of the evidence he is in a position to give, or of his recollection of a particular matter, very often he will make a statement quite fluently and will give what seems to be a very good and sound picture, but if he is asked to pause and then put it in the form of an affidavit, very often the picture painted will not be in quite the same strong colours as in the unsworn statement. It seems to me that it will not be weakening in any way the provisions which the Minister hopes to have accepted in this Bill if he provides that the statement of evidence should be verified by a short affidavit from the person giving the evidence.

What I have in mind is something very much the same as, for example, the affidavit of an attesting witness at the foot of the form in conveyancing, that at the end of this statement of evidence, there might be a short affidavit whereby the person verifies that the statement of his evidence is correct and accurate and that that is briefly the evidence which he is in a position to give. The Minister has mentioned that this system of taking depositions has been cumbersome, time-consuming and tedious and I think that is the general experience not only of the administrative officials, the court clerks and so on, but of legal practitioners who have come up against it. It is of course a very ancient system; in this country it goes back only something like 120 years but in England it is a particularly ancient system. Here we had it starting with the Indictable Offences Act, 1849, or thereabouts, but in England it goes back much further than that.

The whole object of the system was to ensure fair play for the accused person, to ensure that a person will not be put in jeopardy either as to his life or freedom without proper consideration. It is of course what might be described as an accusatory system which is not quite the same thing as the French system where a different type of examination is conducted with a view to testing out the evidence and then getting at the truth. As the Minister has quite correctly pointed out, the system here is not for that purpose: it is simply to establish whether or not there is a prima facie case for sending a person forward for trial and putting him in jeopardy as to his freedom or, as the term used to be, in peril of his life. I feel it is rather a too drastic and too radical a departure from the system we have had up to now to say that this can be done in future without any sworn testimony of any kind being presented to the District Justice.

I am quite aware that under the provisions of the Bill it is open either to the accused person or to the State to seek to have sworn depositions taken but that is not an absolute right under the Bill as it is framed at the moment, because it depends entirely on the discretion of the District Justice and it is a discretion which can be operated as I read the Bill, only provided the District Justice is of opinion that it is necessary to enable him to form a proper view of the evidence and it is only if he comes to that conclusion that he is entitled to allow sworn depositions to be taken. So I would urge the Minister between now and Committee Stage to consider the suggestion of having these statements verified by affidavit.

I also ask the Minister to consider the documents that are to be served. In section 5 this Bill provides that instead of the system of taking sworn depositions at the preliminary examination a statement of the charges to be made will be served on the accused person, that he will also be given a list of the witnesses who are to be called at the trial, a statement of the evidence which each of them will give and a list of exhibits, if any. From a practical point of view my suggestion, as the practice grows out of this, may be covered but I think we should ensure it will be covered. It would be necessary in furnishing this information to an accused person that some essential minimum information regarding the witness should also be furnished. For instance, it should be essential to furnish the accused with the age of the witness so that he will know whether the witness being produced against him is an infant, a young person or an adult. It would be desirable also that the occupation of the witness should be furnished and if the witness is related to a person who is in the position, if you like, of complainant, that information should also be furnished to the accused. That would probably be done in practice because in the ordinary way the statement taken would probably say: "I am so and so of such and such a place and my occupation is such and such." But I think some steps should be taken by the Minister to ensure that kind of information would be given.

Another point occurred to me which is also more of a Committee point but if the Minister looks at it now it may save me putting down an amendment on Committee. Section 14 provides roughly for the kind of case where a witness has not made himself available to the State Solicitor to give evidence and it is necessary to make application to the court to provide that his evidence will be taken. In that event the evidence will be taken in private under section 14 by the district justice or the court clerk. Section 14 (5) provides that a copy of the statement shall be supplied to the Attorney General. I think it is abundantly clear that what the Minister intends is that a copy of the statement will be available both to the accused person and to the Attorney General. That might be made clear by means of an amendment.

I do not propose to prolong the debate. I am glad that we have in the Bill a practical measure of law reform rather than simply a codification measure and I hope that the Committee examining these questions of court procedures—I know they have since reported to the Minister in regard to jury service and jurors—will take a broad and deep look at the whole question of legal machinery here. It is within their terms of reference to do that.

Finally, I want to say particularly to the Minister who is, or was, a practising lawyer himself, that it would be a very grave mistake, notwithstanding the fact that this Committee is in being, if he neglected to consult the governing bodies of the legal professions when he introduces Bills which effect reform, if you like, but effect changes anyhow in legal practices and procedure. I should like him to give —I am sure he will—the fullest assurances to the House that, first, he has consulted with the Incorporated Law Society and the Bar Council in regard to this measure and, secondly, that he will consult them in relation to future measures.

Mr. Corish

I think the Committee on Court Practice and Procedure from which I assume the Minister got some of his inspiration was well worth while. I think he said himself, and Deputy O'Higgins said, that the Minister has taken ideas from both the majority and minority reports and in our opinion he has come up with a reasonably good piece of legislation.

The general object of the Bill, in the Minister's words, is to simplify and expedite the preliminary investigation of indictable offences. It is desirable in these preliminary investigations to expedite the whole procedure, but I have often thought in respect of ordinary cases heard in the district court that they are heard too quickly, to such an extent that witnesses were prevented—not deliberately— from giving evidence which they themselves thought was valuable. In some of our district courts we get machinelike justice and if the Minister could try to ensure by whatever methods he can employ what in my opinion would be fairer hearings whereby witnesses who want to give more evidence which they consider valuable will be enabled to do so, he would be improving the position further.

This is not absolutely relevant but there is another criticism I make of district court hearings. The acoustics seem to be pretty awful. It is important that the public should know what is going on and I believe that the public in many district courts do not know what goes on. That may not be the fault of the justices, the witnesses or solicitors who appear in the courts but in the cause of justice and of justice appearing to be done every person who attends, either as a spectator or otherwise, should be able to hear quite clearly all the evidence and particularly the judgment. For the sake of the preservation of the good name our courts undoubtedly have it would be well worth while introducing some amplification system. That is not entirely relevant to this legislation. We welcome the Bill in that it appears to us it will simplify and expedite preliminary investigation of indictable offences.

The position as described to us by the Minister is certainly cumbersome and time-wasting and that has been recognised by the Committee on Court Practice and Procedure and they have made certain recommendations. It is significant that at present evidence is taken down in longhand and I am not quite clear whether or not this evidence at the preliminary investigation must still be taken down in longhand. I cannot understand why. Perhaps the Minister will explain to the layman why it is still necessary to take down evidence in longhand. What is the objection to taking and transcribing shorthand notes or having the evidence taken on a recording machine? There may be some reason known to the Minister, Deputy O'Higgins or Deputy Ryan but I cannot understand why, in 1965, evidence should still have to be taken down in longhand.

The Minister described the procedure for the preliminary investigation. The Majority Report of the Committee made four recommendations with a view to improving the procedure by changing it. The Minority Report was to the effect that the preliminary investigation be abolished altogether, that a person to be returned for trial should be notified of the witnesses, their evidence and so on. The Majority Report, which is not accepted in its entirety by the Minister, seems to me to be based on the system in the French courts, where an examining magistrate hears and records the evidence. I would be rather doubtful whether the taking of statements by the Gárdaí, as recommended, would be the best method. Without any reflection on anybody, it is a system that might be open to some sort of abuse.

The Committee appear to be unanimous that all publicity of the preliminary investigation be prohibited unless the accused requests it should be published. It consoles us all to hear from the Minister that the Press, individually and as a whole, agree with this recommendation which the Minister has included in the Bill. That is a good decision. Publication of the evidence could prejudice a jury who might be called on to give a decision in another court. It is important for jurymen to see the witnesses, to hear the evidence being given and to make an assessment of it. That may differ entirely from the assessment one makes when reading evidence. If the evidence is published, it is read in the first case; and there is a chance that a juryman, having read it, might come to a certain conclusion—a conclusion he would be loth to change even when hearing the actual evidence given in another court.

I am also pleased—I did not doubt the Minister would do otherwise—that the public will be allowed into these preliminary investigations, even though the evidence is not published by the newspapers, radio, television and so on.

It seems in this case the Minister may be a step ahead of the British Government, because they are only now thinking of prohibiting the publication of evidence. I understand— perhaps this is where the Minister found his example—the prohibition of evidence is enforced in Scotland. However, I am not clear on that. The Minister's predecessor got many ideas for the Succession Bill from Scottish law, and perhaps the Minister was attracted to it in this particular matter as well.

Another very welcome change is the proposal to ensure that the Attorney General cannot by himself decide that an accused person shall be sent for trial, but can only do this by application to the High Court. With all due respect to Attorneys General, I do not think this is a function they should have. If a decision of a District Justice is to be reversed, it should not be done by an individual who happens to be the Attorney General but should be done by the method now proposed, that is, by application to the High Court.

I do not think it necessary to go into all the details of this Bill, many of which have already been covered by the Minister and by Deputy O'Higgins. We can learn a lot about the Bill and amend it to some extent on Committee Stage.

The memorandum issued with the Bill is certainly an excellent one for somebody who has not been, and who does not expect to be, involved with the law in any way. It gives a good breakdown of the Bill. If we could get similar memoranda in respect of some of the complicated legislation we have here, it would make it much easier for those of us who do not practise in the various professions to which these Bills refer.

In section 14 there is power of compulsion to ensure that evidence will be given by those who do not volunteer to give it. I do not know whether this is desirable or not. The Minister did not give us very full views as to the reason for including it. There is no question of a penalty if a person refuses to give evidence. The memorandum says:

Section 14 is a new provision designed to compel the attendance before a district justice of a prospective witness who is able to give material evidence in relation to an indictable offence which is under investigation but has neglected or refused, on request, to make a statement of that evidence to a member of the Garda Síochána.

How can anybody make any witness talk? If the Garda Síochána are of the opinion that I or anybody else can give evidence, I do not know whether there is justification for anybody taking power to ensure that that evidence must be given. If I refuse to give evidence, will the Minister say what penalty there is?

Mr. Dillon

Indeterminate incarceration in Mountjoy.

Mr. Ryan

It is contained in subsection (6)—the ordinary penalty for refusing to give evidence.

Mr. Corish

What is the penalty?

Mr. B. Lenihan

At the discretion of the court.

Mr. Dillon

Indeterminate incarceration in Mountjoy Jail.

Mr. Corish

Perhaps the Minister could tell me later on who determines whether or not A, B, C, D, E or F can give evidence. Is it the Garda Síochána or is it the court?

Mr. B. Lenihan

The court, in this instance, takes the ultimate decision.

Mr. Corish

The court will decide. Some case is being investigated; it has not come before a district justice; suppose a garda gets it into his head that I can give evidence, can he act at that stage or must he get a direction from the court?

Mr. B. Lenihan

From the Attorney General.

Mr. Corish

Where does he get his information?

Mr. B. Lenihan

From the Garda Síochána.

Mr. M.J. O'Higgins

Wait a moment now. I think the Minister may lead Deputy Corish astray. Under section 14 it is "on the application of the Attorney General, it appears to a District Justice of the District Court"; therefore, while the application is made to the Attorney General, it is the court decides.

Mr. Corish

That is not unreasonable. In any case, I am assured by the Minister that there is a penalty, and the penalty is Mountjoy.

Mr. M.J. O'Higgins

The point the Deputy makes is an important one. At the moment you cannot force a witness to give a statement in advance. You can subpoena him and require his attendance in court.

Mr. Corish

There is no question here of pleading the Fifth Amendment?

Mr. Dillon

Yes. You can always say "I do not know" and to that there is no answer.

Mr. M.J. O'Higgins

Undoubtedly there is a change here.

Mr. Corish

There is a change. It is a new procedure, but, anyway, what is sought in the section now can be effected.

Mr. B. Lenihan

Only at the hearing of the case and by issue of a subpoena.

Mr. Corish

This is something that can be argued. Possibly we will get a little more information on this not alone in the Minister's reply but on Committee Stage. There is provision here also for attendance by the Press at the District Court, even though they may not publish; at the discretion of the court, they may publish subsequently.

The Minister skimmed very quickly over the part of his statement which said that free legal aid would not be available except in cases of murder. I do not know the justification for that. I can see the justification for giving free legal aid in the case of murder, but there are other serious offences——

Mr. M.J. O'Higgins

It is only at the preliminary investigation that free legal aid will not be available.

Mr. B. Lenihan

Free legal aid is available over the whole range of the trial proper.

Mr. Corish

At the preliminary investigation it is not.

Mr. B. Lenihan

Only in the case of murder.

Mr. M.J. O'Higgins

It might be better even where a District Justice does allow depositions on application.

Mr. Corish

These are details in which I am not too well versed. We shall probably learn a little more on Committee Stage. As far as the Bill generally is concerned, it is acceptable to us.

Mr. Dillon

I observe from the Minister's statement that he regards this Bill as experimental, to a certain degree, until we see how it works, when, if necessary, we can amend it. It seems to me to be generally agreed that some revision of the preliminary proceedings in criminal matters is overdue and this appears to be a constructive effort to do something about that. There is one matter to which I should like to refer in particular. It is a matter upon which I have some feeling. It relates to subsection (3) of section 21 which states:

Where the Court remands a person in custody (other than on the occasion of his first appearance before the Court) it may remand him for a period exceeding eight days but not exceeding thirty days if he and the prosecutor consent.

At first glance there appears to be adequate safeguard within that subsection. But I do not think there is. On the first remand the person must be produced before the justice after a lapse of eight days. The District Justice will again determine at that stage whether a further remand in custody is permissible. At the subsequent remand, if the defendant agrees, he can be remanded for a period not exceeding 30 days. I suggest to the Minister he might turn over in his mind between now and the Committee Stage whether or not this is a desirable reform.

We must bear in mind that a great many people brought before the court are not very sophisticated and may be in a state of considerable confusion and alarm, much overawed by the general machinery of the law. There is no more objectionable happening than that a person under indictment should be left in jail for protracted periods without being brought before the court. There is no more consoling institution than the sessions of the criminal court which are described as "Sessions of General Jail Delivery" which provide the public with the assurance that there is no one left lingering in jail without being brought before an independent judicial authority to determine whether his or her continued detention is lawful and constitutional.

I have an uneasy feeling that, if a person remanded for eight days is further remanded in custody for 30 days, and then possibly brought before a District Justice again and further remanded for another 30 days, there might be odd individuals who ought not really to be in jail at all for these protracted periods, individuals who do not themselves know how to go about bringing this to the attention of the court and making their protest against this unreasonable detention known. I cannot see any great hardship involved in producing persons who are remanded in custody before the court every eight days. That would impose upon the police authority or the Attorney General the obligation of satisfying the District Justice as to why the State is not in a position to proceed.

This is a matter to which, I think, the Minister might turn his attention with a view to seeing whether this provision is consistent with the protection of the liberty of the individual. I incline to the view that it is not. Perhaps, when the Minister is concluding, he will deal with this particular matter. It is one that causes me some anxiety.

Mr. O'Leary

Any legislation aimed at tidying up is acceptable to the Labour Party. Anything that brings the law up to date is acceptable to us. We regard a great deal of the mystification and the cumbersome machinery surrounding the law as of benefit to no one except the professional classes who make their living out of the law.

Mr. J.A. Costello

Why should not professional legal men make their living at the law? It is ridiculous to argue that way.

Mr. O'Leary

The law is something that should be understood by the vast majority of the people. It should not be something purely for the convenience of lawyers and so on. It should be designed primarily for the convenience of the general public. This Bill in a small way goes some part of the way towards that particular pattern.

Mr. M.J. O'Higgins

May I say, just to keep matters right, that the Bill is doing away with something that was entirely for the convenience of the accused rather than the convenience of lawyers?

Mr. O'Leary

I would hold that it is still for the convenience of the accused to tidy up these preliminary proceedings leading to indictment and so on. We consider that that can only be in the interests of the accused and that the abolition of this kind of time-honoured pageantry that went with the preliminary hearing is a very good thing. I wonder if the Minister would comment on the period of remand? Section 21 provides that the court shall not remand a person for a period exceeding eight days, except where the section otherwise provides. Would the Minister comment as to whether he thinks this period could be shortened or is it the period he thinks necessary in this case?

As Deputy Corish has said, we are pretty much in favour of tidying up the law in any of the areas where we think it needs tidying up at the moment. We will have more to say when the Minister gets down to the question of reform of the law. I do not think we would annoy the more public spirited of the professional men who earn their living in that profession by any of our comments on this Bill.

Mr. Ryan

May I start by assuring Deputy O'Leary that of all the forms of legal activity, I know none more inconvenient for lawyers themselves than the present system of taking depositions? If the Deputy ever had to sit on that part of his anatomy provided for the purpose in court day after day for five hours a day listening to witnesses dictating their evidence to allow a court clerk to write it out in longhand and then to the interminable arguments between both sides as to whether the clerk's narrative form truly represents the question and answer process of exacting the evidence, he certainly would not feel that this was a Bill which the lawyers would not wish to see introduced. This Bill will deliver the district courts from an appalling burden of unnecessary work. What surprises me is that the Bill should be introduced containing a blind spot. One would think we were living in the nineteenth century. There is no provision here for a tape recorder. When are we going to do the proper thing and introduce tape recorders?

Mr. B. Lenihan

There is no need to now.

Mr. Ryan

There is, of course. I am far from satisfied that the preparation of a statement by a guard or a district court clerk in a narrative form, writing out what he considers to be a fair narrative of what has been extracted by question an answer truly represents the picture. For instance, one does not get in a narrative an impression as to whether the person answering a question is hesitating about answering the question. When presented with evidence in narrative form or in cold print, one does not get any impression as to whether a witness is certain or uncertain. That is where the tape recorder has an advantage. It gives some impression of the witness.

The present system is cumbersome and imposes a colossal strain upon the accused, who is the person primarily to be considered, but it does at least give an accused person and his advisers some opportunity to assess the quality of the various witnesses the prosecution will bring against them. That is something that we will lose under a system of presenting evidence in the form of written statements. I am sure the Minister from his experience as a lawyer knows that conflict can often arise between a statement by a witness supplied in an abstract of a Garda report of a traffic accident and the ultimate evidence given by that witness in court. The written statement gives no impression as to whether or not the witness is a witness who will be a credible witness or whether or not he is a witness who will stand up to cross-examination or as to how clear the witness is in his recollection. That is something that is only teased out in the course of examination in a full plenary hearing.

The present system of taking depositions which allows the witness to be cross-examined and to be tested does give the accused person an opportunity to assess the value of a witness who will be produced against him. It may well be that on balance it is to the accused's advantage to lose that opportunity in favour of avoiding the colossal personal strain and pecuniary strain the present system imposes but there is a great deal to be said in favour of what Deputy M.J. O'Higgins has said, that some evidence besides the blunt statement of a witness should be given as to age, occupation, relationship, and so on. I do not know whether we can go as far as recommending that a photograph be produced of each witness but it could be of great value in ascertaining the impression which would be made upon a court subsequently if one has some view of the witnesses the State was going to produce.

There is one very serious omission from the Bill but I fancy that the Minister will probably see our view on this and the necessary amendment may be made on Committee Stage. Section 5 provides that a list of exhibits shall be furnished by the Attorney General to the accused and that a copy of those documents shall also be furnished to the court but there does not appear to be any provision for the exhibition of the actual exhibit to the accused person. There is no opportunity provided in the Bill for an accused person to get the dagger with the blood on it, the gun or any other instrument or exhibit which the Attorney General may produce later on. If I am wrong in this, I would be grateful for the Minister's correction.

Mr. B. Lenihan

It is the intention that they should be in court but it is not spelled out, I agree.

Mr. Ryan

It is desirable that that be done. As to the nature of this preliminary investigation I am not too certain. It appears that a list of witnesses, a statement of the evidence that is to be given, a list of exhibits and a statement of the charges shall be produced. I take it these will be produced to the accused and to the court some time before the court sits?

Mr. B. Lenihan

Yes. We will have to fix that by rule.

Mr. Ryan

I wonder why it could not be done in the Bill? It would be preferable to specify in the Bill the period within which it must be done. Then, the court having seen the documents, I suppose the court will meet and the justice will state his decision on the information supplied to him. May we take it that the accused or his advisers will be given an opportunity to address the court on the weight which the court should attach to the evidence?

Mr. B. Lenihan

Yes, indeed. That, I take it, would be a matter of ordinary court procedure.

Mr. Ryan

I am afraid we have learned from sad experience that we should never assume anything in this House, not only in relation to generalities but in relation to the courts in particular.

Mr. B. Lenihan

I never heard of court procedure where the arbitrator or justice did not allow the parties to the proceedings to say what they had to say.

Mr. Ryan

We are here introducing a new format, a new type of court. It may well be that it is better to leave it out because if you put it in, the justice may feel that he is confined to any particular matters which the Bill says he may hear but I should like the Minister to consider it.

Again, I should like to come back to the question of the tape recorder. Section 6, subsection (3) (b), provides that anything the accused may say shall be taken down in writing and other sections provide that any evidence taken in court on deposition shall be taken down in writing. I would ask the Minister to take his courage in his hands and to provide a system of tape recording. I know the objection is that tape recordings can be tampered with. One can get over that by this process: If you had three tape recorders recording the evidence on three tapes, one tape could be in the custody of the court, another tape in the custody of the prosecution and the third in the custody of the accused. If a dispute arose subsequently as between prosecution and the accused as to which was the true record, the tape in the custody of the court could be considered as being the governing one. In order to avoid tampering by the court, the tape could be put into a box and sealed in the presence of both the prosecution and the defendant. It is not beyond the resources of science to develop such a machine. I am quite certain such a machine is in existence and it is simply a matter of having it purchased. Anyway, even if it is not in existence, it is certainly capable of being devised. I am not an electrician but I think one knows sufficient about such things to say it would be possible to have such a machine made available. I think it is true to say that tape recorders are in common use in other countries. We should have them here and I think there is a great deal to be said for them. They would give you a truer picture of the evidence than the process of having every word taken down in shorthand and then committed to paper.

I notice, under section 11 subsection (1), it is provided that:

Where a justice of the District Court decides not to send a person forward for trial the High Court, on the application of the Attorney General, may, after consideration of the documents required to be supplied to the accused, any exhibits and any deposition taken or statement recorded under this Part in relation to the offence, direct that he be sent forward for trial to a specified court to which such justice could lawfully have sent him.

I am at a loss to understand why this power has been conferred on the High Court and not the Circuit Court. It is one of the objects of the Bill to expedite the period between the time the person is charged and the time the person has to stand trial. I have the fear that if we confer this power on the High Court alone, it will lead to longer delays than if this power were exercisable by the Circuit Court. If it is a form of appeal, I do not know why we——

Mr. B. Lenihan

The High Court has, so to speak, the traditional jurisdiction in this matter.

Mr. Ryan

Yes, I suppose so; but we should not be afraid to break with tradition if it will lead to a more expeditious form of appeal and at the same time, does not harm the interests of the accused person. Indeed, it might be that it would be as quick to go to the High Court but it might be inconvenient in some circumstances. This provision might require a person to travel to Dublin at some inconvenience and expense who could well be present at a Circuit Court down the country.

Section 17 says:

Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on facts or evidence disclosed in any of the documents with which he is required to be supplied under this Part, being counts which may lawfully be joined in the same indictment.

I think that provision is undesirable. It is confined to the evidence which may already have been made available at the earlier stage but once a person has been sent forward for trial, the charges should be confined to the complaint already made.

Under section 22, subsection (1), we find that:

The Court may, where it remands a person in custody for a period not exceeding three days, commit him to the custody of a member of the Garda Síochána.

This, I think, is a new provision in the law. I wonder what necessitates it? Is it due to the fact that we have closed so many provincial prisons and have to provide a longer period to transmit a person to, say, the city of Dublin or Limerick?

Mr. B. Lenihan

Yes, that is the main reason.

Mr. Ryan

One can see the necessity for that but I wonder should we not have some safeguard providing that the rank of the member of the Garda Síochána should be that of sergeant or inspector whose calibre would be that much higher than that of an ordinary member. One has no reason to doubt that members of the Garda Síochána who are given the responsibility of a person in custody will look after that person well but there is a danger in it and it is against these dangers that we ought to provide safeguards in a Bill of this kind. I should like the Minister to look into this point.

Section 23 provides that:

A justice of the District Court or a peace commissioner may accept from a person charged with an offence who is of no fixed abode or is not resident in the State the deposit of a sum of money equivalent to the amount of bail in lieu of a surety or sureties.

I cannot find in this Bill any obligation on a justice of the District Court or a peace commissioner to hand over a sum of money so received. One has no reason to doubt that they would pass it on to whoever is entitled to it. I wonder is there provision elsewhere? Peace commissioners are generally regarded as honourable men but all men are honourable until they are found to be otherwise. It would be preferable to get some information as to the ultimate destination of any money so handed over.

We have to be extremely cautious, whilst engaged in law reform, to ensure that we do not, in the process of endeavouring to improve the administration of justice, do something which is quite contrary to our motives. I have just a slight fear that some of the provisions in this Bill, while well intended, might do considerable harm. In the course of Committee Stage and subsequent Stages, we, in the Fine Gael benches, will do whatever we can to bring these worries of ours before the House to see if they are capable of being removed. We certainly think that an effort is being made to ease the tremendous burden on accused persons which the present archaic system imposes on them. We feel this Bill goes some of the way and we will support it to that extent.

I would ask the Minister earnestly to consider whether we should not provide for these tape recorders. I believe this is the key to a great deal of our difficulties, not alone in the District Court but in other courts as well. It would considerably reduce the cost of litigation if tape recorders could be made available in all courts. Unfortunately, there appears to be considerable resistance on the part of the establishment to introduce tape recorders.

In relation to section 6, the Minister said that, in the ordinary course, there will only be full plenary taking of depositions if either the accused or the prosecution requires it. But section 6 provides that not only must either side require such a full taking of depositions but it must appear to the justice to be necessary. It seems to me to be wholly undesirable that an accused person or his advisers should be at the mercy of the district justice as to whether or not there will be a full examination. There may well be causes known to the accused or to his advisers as to why the evidence of a particular witness should be tested and it might be contrary to the provision to have to disclose to a court why the evidence of a person should be tested. Therefore, I would prefer to see this limit on the right to a full plenary taking of deposition removed. I do not think it is necessary in the interests of justice.

People who seek to have depositions taken in the old way will not do it light-heartedly. Likewise, prosecution will not do it light-heartedly. I do not think there is any necessity whatever to bring in a district justice to determine whether or not this evidence should be taken in that particular manner. The Minister did not give us one figure when he was introducing the Bill today. He mentioned that only one per cent of persons are discharged at the end of taking of depositions and that, apparently, in 99 per cent of the cases, the person is sent forward for trial. That is an interesting figure. There is another figure I should like him to give in order that we may get a proper assessment of the overall picture. What percentage of persons sent forward for trial under the present system are subsequently acquitted or convicted? It is important that we should have that in order to assess the value of the provisions in the new Bill.

Mr. Cluskey

In general, we in the Labour Party welcome this law reform but there are one or two points which I should like the Minister to clarify in relation to sections 6 and 7. They do not, in my opinion, make it absolutely clear that either the accused or the legal representatives should be entitled to appear at preliminary investigations and be allowed to state that a prima facie case has not been made or make any other legal objection they care to make. It does not seem to be quite clear that they are entitled to be present.

Section 7 (3) is another provision of which I should like some clarification. It states that:

If a justice is of opinion that a summary offence only is disclosed, then, if the prosecution does not object, he shall deal with the case as if that offence had been orignally charged.

Are we to take it that if only a summary offence is disclosed the justice cannot return for trial, whether or not the prosecution objects?

Mr. J.A. Costello

I have only one or two observations to make in reference to the content of this measure. I am not at all sure how it will work. When they are talking about this Bill, Deputies should remember one thing, that this preliminary investigation of indictable offences was something devised for the protection of persons who may be innocent. That should be kept before everybody's mind, irrespective of whether this inures to the benefit of lawyers or not, and I do approve of the Minister's attitude in not giving in to people who want him to do away with this entirely. It is a great help for innocent persons, persons who should not be brought before the courts unnecessarily, particularly with the atmosphere of indictments. It is desirable that there should be some sort of open hearing of charges against people so that they could, at the earliest possible moment, make their case and rid themselves of the incubus of criminal charges hanging over them.

I am not sure what this statement given by the prosecution is intended to achieve, nor am I at all certain of the kind of statement that is to be given. I have a recollection myself of appearing before the Military Tribunal in the good old or the bad old days some years ago, and that was the procedure: when you walked into the court, you were thrown a document and that was the statement that was to be given in evidence. Is that what we are to have here? There is nothing that I can find in the Bill saying when the accused is to get this document. I assume the normal district justice will give an opportunity to the accused to read the document, if he says he has not had time to read it.

Mr. B. Lenihan

We shall have to provide for that by way of procedural rules or regulations.

Mr. J.A. Costello

I do not think this sort of thing should be done by regulation. However, once the Minister is apprised of the danger there, I am quite satisfied he will see to it.

I come then to the second point I want to make, and that is, what is the content of this Bill? Those of us who are practising the law, even though we are subject to all sorts of nasty remarks, do happen to know what goes on. Anybody who has done a number of running-down cases in court knows that after an accident, the guards, as part of their duty, take down a statement. From my experience of what happens in court afterwards, I would advise that nobody should ever tell a guard anything. The guard takes a statement: "I was proceeding" and so on. This is done in guards' language and the unfortunate witness comes into court and some question arises about part of the statement, and he is asked: "Did you not make that statement to the guard?""Was that not only an hour after the accident occurred? Was it not much fresher in your mind then?" The witness says: "I did not say that" or has to say he has no recollection of it. Of course it is the guard's statement, and the witness is asked: "Are you saying the guard is telling an untruth?""Of course not" the witness says,"but I did not say it all the same."

Who is going to take this statement? In what language will it be taken? Is it "guardese," if I may use an expression of that kind? When the accused was proceeding along, he saw this, that and the other, in the words of the Guards, and then he is surprised afterwards when a certain interpretation is put on it. That may be shorthand or it may be a concise method of saying things. What is to happen then? He gets his statement and the trial comes before the jury. Not one word outside that statement should be allowed in court. That is the theory; the practice may be different. The Attorney General, when he sees the statement, may say: "This statement is no use. How could I prosecute on that? Give me another one." Another statement is made and it is handed over on the morning of the case or shortly before it.

This is not as simple as it looks. It looks a grand reform. It stops all that nonsense that we have been trying to stop for years of somebody painfully taking, in longhand, the depositions given on oath by a witness in the course of the preliminary investigation of an indictable offence. I should also like the Minister to tell me in this context what is the significance of the use in the first subsection of section 4 of the word "examination," in contradistinction to the use of the word "investigation" in subsection (2) of the same section. I draw the inference from that that what is going to take place now is not a preliminary investigation of the offence but a preliminary examination of the offence. There is something changed in that and I want to know if it is intended and, if so, what is the purpose of it. A preliminary examination is different from an investigation.

Mr. B. Lenihan

Which would the Deputy prefer?

Mr. J.A. Costello

It is not a question of my preference. However, if the Minister will tell me what is intended, I will tell him, in the end, what my preference is. The Minister does not know.

Mr. B. Lenihan

I do.

Mr. J.A. Costello

I take it this is deliberately intended to be something different from investigating the offence. I am not against the principle underlying this section but the impression made on my mind is that when the district justice sees the poor devil in the dock, he will look at the statement and say: "I have considered this matter and I am going to send you for trial." That is what will happen as sure as I am standing here. If it is an examination, that is what I visualise. If it is an investigation, it should be something in the nature of a probing, but the district justice just looks at the documents handed to him by the Garda or somebody else, reads them in his chamber before he comes into court and makes up his mind, before anybody says anything, that he will send this man for trial. An investigation is an examining, a probing to see if there is anything to be said. Is it the intention—my impression is that it is not unless subsequent procedure in section 6 is brought into operation— that the accused should not be entitled to say anything?

Mr. B. Lenihan

That obviously will not happen.

Mr. J.A. Costello

It obviously will happen under this section as it stands.

Mr. B. Lenihan

No.

Mr. J.A. Costello

The Minister need not bob his head. We are passing the section now. That is my interpretation of it and I know what I am talking about. I have been in those places, not frequently because any time I was threatened with it I ran a mile from it. Knowing what I do know, I am aware that is what certain district justices will do. This should be an examination, a probing.

Mr. M.J. O'Higgins

That is what is intended.

Mr. J.A. Costello

I am asking the Minister if that is so and he says it is not. I prefer an investigation because I or somebody else can come afterwards and say the case was not investigated but only looked at by the district justice.

I should like to say a few words on section 6 because again I wish to be advised as to the Minister's intention in relation to the powers to be conferred on district justices. The district justice makes a decision to send for trial or not at any stage. In section 6 there is provision for putting somebody on oath. If an accused person wants somebody to be tested out on oath or evidence to be given which he thinks is necessary for his defence—it will not happen often because the tactics are to say as little as possible, give away as little as possible at the preliminary investigation of an indictable offence—he must invoke this complicated procedure in section 6. What is its object? Presumably some cracked accused or some solicitor who may be representing him may think he wants to put somebody into the box, perhaps in order to persuade the district justice that there is no case to be met. It is up to the district justice and if he says he will not let you do it, that the accused will not be allowed to put somebody into the box, then the accused cannot do it.

This is complicated machinery and I do not know what it is. I should like to know it. I can hardly conceive circumstances in which an accused person would want to do this. I hope it is not the intention of this procedure to put somebody into the witness box to supplement something he has already said by way of statement. It appears to me that the machinery contemplates that the district justice reads the thing and says he wants to hear Garda So-and-So. He then puts the witness into the box. I am not too sure of it, but if the accused gets up, or his representative, and says: "I want to put so-and-so into the witness box," the district justice need not allow it.

Mr. B. Lenihan

On any issue material to the case.

Mr. J.A. Costello

Am I right in my interpretation that it is the district justice who has the final say as to whether he will allow the accused to put somebody into the witness box?

Mr. M.J. O'Higgins

He can only do it if it is essential for him in order to make up his mind.

Mr. B. Lenihan

If it is a material issue.

Mr. J.A. Costello

We have had this before.

Mr. B. Lenihan

It can be examined fully on Committee Stage.

Mr. J.A. Costello

This is not carping criticism. I point these things out so that certain things may not happen and that people will know where they are. I now come to section 11 which, it is stated, replaces section 62 of the Courts of Justice Act. To the extent that the power under the section is taken from the Attorney General, I agree with it. As far as I recall, when I was Attorney General I used the power only once. I had a discussion on it, when this section was passing through the House in 1936, with the then Attorney General. He asked me for my view and I told him I did not like it. You have this preliminary investigation, as I said at the outset, which is supposed to be there for the protection of the accused person. Surely it is only pique that brings the other section into play? I do not think this repeals the section. It does not say so. I do not see why section 11 and section 62 of the Act cannot stand together. It would be difficult to argue that they are so opposed to each other that the section here must be an implied repeal. Why not expressly say so if that is intended?

Mr. B. Lenihan

It is in the Schedule. It is repealed.

Mr. J.A. Costello

Is the Minister satisfied that is sufficient?

Mr. B. Lenihan

Yes.

Mr. J.A. Costello

The last point I wish to make is in reference to section 14 which I think should be taken out straight away. Under its provisions nobody would be safe. You could be yanked as a witness into the district court and made to swear this, that and the other. It undermines the fundamental rights of the person. He can be yanked before a court to make a statement before the court. He can be dragged before the court on the application of the Attorney General, if the Attorney General thinks he has a statement to make. That is not right. It is contrary to the fundamental right of the person and even to facilitate the administration of the law, it should not be introduced.

I strongly object to that section and submit that the Minister should take it out now. I find it difficult also to follow the drafting of section 13. Certain evidence can be laid at the trial if the deponent is dead or so ill or incapacitated as to be unable to attend the trial. Subsection (2) provides that the deposition shall not be read, except in the case of the deponent's death, without the accused's consent. If a deposition is taken and the witness is ill, does that mean the evidence can be given without the accused's consent?

Mr. B. Lenihan

Subsection (2) is the law at the present time. It is a restatement of the law.

Mr. J.A. Costello

The old law, as defined by the Court of Criminal Appeal here, was that, even where an accused person consented to the deposition of a witness who was ill being read at his trial, it was set aside by the Court of Criminal Appeal.

Mr. B. Lenihan

I should like to thank the House for a very constructive discussion on this matter in which both non-legal and legal people participated. After all, that is as it should be. The law is not something in isolation. Its administration concerns everybody, and nobody more so than the ordinary citizen. It is a very good thing that Deputies who are not in the legal world should participate in discussions on legal measures which may appear to concern only lawyers but in fact, in a real sense, concern the activities, liberty and life of every citizen in the State.

The main principle behind the Bill has generally been welcomed. That the present deposition procedure is a cumbrous, awkward, tedious, time-wasting procedure is generally acknowledged. It dates from the Victorian age. We have had it for over 100 years. It has now outlived its usefulness and this was the main theme in the Commission's Report and it has been the main theme of every speech today. However, it has equally been pointed out by both Deputies M.J. O'Higgins and J.A. Costello, amongst others, that in eliminating this tedious procedure we should at the same time have regard to the whole original purpose behind that procedure which was the protection of the accused.

Deputy O'Higgins made reference to some points which I should like to deal with at the outset. He referred to the statements to be supplied to the accused and sought that they be verified by way of sworn affidavit. The immediate difficulty in that respect is that which caused me to reject the majority recommendation in the Report, that is, the difficulty of getting witnesses over long distances and from remote parts of the country to come to verify or swear an affidavit. It involves difficulty from an administrative point of view, too, and that was what caused me to reject the majority report. Equally, the same argument would apply to what Deputy M.J. O'Higgins suggests. Both he and Deputy J.A. Costello referred to another aspect which I shall consider between now and Committee Stage and that relates to section 6 (2) —placing the onus on the justice to decide whether or not additional evidence sought by the prosecutor or sought by the accused should or should not be admitted. I shall have another look at that matter between now and the Committee Stage and that may help in some way to meet also Deputy M.J. O'Higgins's first point.

There is some validity in the argument that has been advanced that this should be an absolute right residing in the accused. At the same time, it is only right that I, here, should put the contrary argument as well, that you will then have the situation where the accused man could frustrate the whole process of the court by calling every Tom, Dick and Harry who might have no relevance whatever to the court proceedings.

Mr. Ryan

He could do that at present but it would not help him.

Mr. B. Lenihan

He could. That is why we thought it desirable that the district justice would form an opinion whether it was material to the question to be decided. I have no doubt the district justice would allow it unless the evidence would clearly be irrelevant. I promise the House that between now and Committee Stage, I shall have a look at that particular aspect.

Another point which has been mentioned by several Deputies concerns this question of the right of the accused, or his legal representative, to make submissions or to have a right of audience, as it were, in court. I agree that this is not spelled out in section 6. I would have thought—and I thought most lawyers who have knowledge of the way the courts operate would agree with me—that this right is implicit in every court procedure, whether it is civil or criminal. It is a fundamental implication that the parties in court have the right of audience and the right of submission. I do not think it is a matter that needs to be written into the section and, indeed, if written in, it might cause difficulty as to interpretation as to how far the judge should or should not go.

Mr. M.J. O'Higgins

Would it do to say: "The justice shall consider submissions made"?

Mr. B. Lenihan

After taking full advice in the matter from the Attorney General and my advisers, I did not think it necessary to incorporate it specifically in the Bill having regard to the fact that it can be regarded as the ordinary rule of practice in the courts. It is basic to the very nature of the courts that these people have these particular rights. However, if Deputies consider that something along those lines should be written into that particular section, I shall consider the matter between now and Committee Stage.

Deputy M.J. O'Higgins also raised some matter under section 5 (1) (b) seeking that certain additional information concerning the witnesses themselves should also be a requirement in any documentation to be served on the accused. He made the point that the bare names of the witnesses might not be sufficient for the accused. Of course that information would, in most cases, already be contained in the statement which would have to be submitted as well. I shall have a look at that matter too between now and the Committee Stage.

Mention was made of who would draw up the statements. The State Solicitor in each particular area would have the job of doing this on the basis of the Garda statement. He is the responsible officer of the legal administration. On him would devolve the responsibility of carefully preparing the statements of the evidence proposed to be given by each witness. It is also proposed that these statements will be served in good time on the defendant and lodged with the District Court, also in good time. Again, the point has been raised here as to why we do not specify the number of days prior to the hearing that these statements would be served on the accused and lodged in the courts. These matters are better dealt with by way of regulation. At present, we are drawing up regulations to deal with matters of that kind. It is better, from the point of view of presentation of legislation, that they be dealt with in that fashion.

In that context, there is no question of rushing this Bill into legal form too quickly. It is a Bill which makes a very fundamental change in our criminal procedure and for that reason regulations are being drawn up in very great detail at the present time. I have asked the District Court Rules Committee to do so. I envisage this Bill coming into force at the same time as regulations which will spell out details such as were sought in this House. Prior to the actual hearing the accused would receive the documents and the court would have them also. Suffice it to say the House can be assured there will be ample time given by way of lodgment of documents and the serving of them. There is no intention, as has been suggested, that the accused would walk into court and find documents thrust at him and a hasty decision given by the district justice. There is no intention of having any such procedure. Ample time and due notice will be given for the defence and for his or her legal adviser to question the matter fully and to come into the court after due deliberation and consideration of the case.

Mr. Ryan

Can the Minister say what power he will exercise in drawing up the regulations? I do not think it is in the Bill.

Mr. J.A. Costello

Unless the Minister thinks he can do it by rules of court there is no power in the Bill.

Mr. B. Lenihan

I will do it by way of rules of court. I am in consultation with the District Court Rules Committee regarding this matter. Deputy J.A. Costello referred to whether we should not style this preliminary hearing an investigation. It is a matter of terminology. He prefers to call it an investigation but I preferred to refer to it as an examination. I am open to change. I would have thought that investigation had too much of an inquisitorial ring about it as against court procedure. It is only a matter of terminology and I am open to be convinced that the proper description might be preliminary investigation rather than preliminary examination. I want to assure the House there is nothing sinister in that particular change.

Mr. J.A. Costello

My trouble is that preliminary investigation has been known for centuries. The trouble is that people will look around and notice that something is changed. They will say it must have meant something and they will invent something.

Mr. B. Lenihan

That is a point. It might be better to stick to the traditional description in this respect. I want to employ a terminology distinct from police terminology, and the word "investigation" has a particular ring about it. But as it has been there for so long it might be no harm to revert to it.

Deputy Corish and Deputy Ryan raised some points in connection with the present longhand procedure and the introduction of tape recording machines. The Bill, if it becomes law in its present form, will eliminate the procedure itself in almost all cases. The existing procedure is rendered very tedious by reason of the operation of writing down in longhand. Indeed, I would defend the longhand operation on the basis that you had to have the narrative precisely in the form of what the witness said. This might not be easy or possible by mechanical means. As people know, the deposition has to be read over to the witness and perhaps recorrected, and this might not be possible with mechanical means.

Mr. T.J. Fitzpatrick

(Cavan): Very often you had what the state solicitor or the superintendent said.

Mr. B. Lenihan

As Deputy J.A. Costello stated, the actual fighting of a basic issue in a criminal charge takes place in very few cases at the preliminary hearing. I would say in over 90 per cent of the cases in the District Court at the preliminary hearing the purpose of the defence is to get the prosecution to show its hand.

Mr. M.J. O'Higgins

That is a better expression than either of the other two.

Mr. James Tully

The objectionable thing about all this is that it appears to be something like playing two hands of cards. Somebody is trying to hide something from the other. The hand should be shown.

Mr. T.J. Fitzpatrick

(Cavan): That was always the way as far as the prosecution was concerned.

Mr. B. Lenihan

As it is now in the Bill, I feel the new procedure will protect the accused to an even greater degree than at the present time as well as providing a more expeditious hearing in which everybody concerned with the trial, the witnesses and the court officials will not be involved in the duplication which exists at present. The basic protection for the accused I find in the Bill as it stands is that the full State case will be made known to him. There will be a full documentation—the statement of the charge and the statement of the evidence will be made available to him in good time so that he knows exactly what it is proposed to say against him. That is a much better procedure than that employed at the present time and to which Deputy Tully referred as a lot of shadow boxing.

Deputy Ryan mentioned the question of exhibits. It is proposed that a list of exhibits will be served on the accused in good time and that the exhibits will be shown in court. The main purpose is to ensure, first of all, that you have a more expeditious hearing and, secondly, that in the process of doing that, the rights, the protection and the safety of the person accused are fully protected. I believe we have arrived at that stage in the Bill by not adopting a minority recommendation which did not envisage the accused having this right to call in any witness he might wish for cross-examination. I felt, rightly, that that was going too far in regard to expeditious hearing of the case. I do not believe this basic right has been very often exercised and I do not believe it will be too often exercised in the future. There is the occasional number of cases, the minority, where the accused may wish to fight it out at the preliminary level. One can envisage, particularly in sex crimes, that it might be very desirable that the accused person should not be put in jeopardy before a jury and that he might wish to fight out his case or defend his name at the preliminary hearing. This happens only in a minority of cases. In most cases the fight is reserved for the trial but at the same time we should preserve the right of a person to clear his or her name at the earliest possible stage. That is why the accused should be enabled to have every witness he may wish in court subject to cross-examination by his legal adviser.

Mr. Corish

May every witness called in a case call in some outside person who he believes can give evidence?

Mr. B. Lenihan

If the district justice regards that witness as material to the issue.

Mr. Corish

If I am an accused person and I apply to the judge to have Brian Lenihan brought in to give evidence?

Mr. B. Lenihan

If the judge regards that witness as material to the case.

Mr. M.J. O'Higgins

The application must be made by the Attorney General.

Mr. B. Lenihan

Deputy Corish is talking about section 14. We say here "where it appears to a justice of the District Court that a person is able to give material evidence in relation to an indictable offence which is under investigation." I think Deputy Corish's fears in the matter might be largely allayed on the basis that the application is made by the Attorney General to have a special witness in the court but it must appear to the district justice that such a witness is in a position to give material evidence to the court. I think we can rely on the district justices to interpret that in the manner we would all wish.

Mr. Corish

Supposing I made an application to the district justice to bring in a John X, I would have to make a case as to why, and would that not prolong the proceedings?

Mr. B. Lenihan

Deputy Corish is talking about section 6, which is a separate matter. That is where an accused person has the right to call in witnesses. Section 14 gives the right to the Attorney General to apply to the District Court to have a witness, who has not already made a statement, called into court. Section 6 is the section which gives the right to the accused and section 14 gives it to the Attorney General.

Question put and agreed to.

Committee Stage ordered for Tuesday, 7th December, 1965.