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 aprima 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 aprima 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 proceedingsin 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.