Committee on Finance. - Criminal Procedure (Amendment) (No. 2) Bill, 1973: Second Stage. – Dáil Éireann (20th Dáil) – Wednesday, 18 Jul 1973

Committee on Finance. - Criminal Procedure (Amendment) (No. 2) Bill, 1973: Second Stage.

Minister for Justice (Mr. Cooney)

I move: "That the Bill be now read a Second Time."

This is the Bill to which I referred in the Seanad on Wednesday last when, in connection with a similarly entitled Bill introduced by Senator Robinson, I said I hoped to introduce legislation before the end of the present session to cure defects in the Criminal Procedure Act, 1967.

The main purpose of the Bill is to provide that, where an accused person has been sent forward by the District Court for sentence with a plea of guilty, an appeal shall lie against the sentence as if he had been sentenced after conviction on indictment. This result is secured by section 1. The Court of Criminal Appeal in the case of the Attorney General v. Tyrrell (1970) decided that there could be no appeal from the sentence where an offender is sent forward to the Circuit Court for sentence under the Criminal Procedure Act, 1967. Section 1 will apply to persons sent forward whether before or after the passing of the proposed Act. The ordinary provisions as to the need for leave to appeal will apply to all cases. Both the Circuit Court rules and the rules of the superior courts already allow for the enlargement of the times for appealing.

The Bill also provides—section 3— for the extension of free legal aid in two respects. Firstly, legal aid will now become available for the hearing in the court of sentence, where the accused has been sent forward for sentence, and for any subsequent appeal against sentence. Secondly, legal aid will become available for all preliminary examinations in the District Court. The grant of legal aid in either case will, of course, be subject to the conditions contained in the Criminal Justice (Legal Aid) Act, 1962. The provision in the Criminal Procedure Act, which restricted legal aid in preliminary examinations to cases of murder, is being repealed. The Government see no valid reason why legal aid in preliminary examination cases should be restricted to murder.

The opportunity is being taken in section 2 to make provision for the correction of defects in the charge, where under section 12 of the Criminal Procedure Act, 1967, an accused waives the preliminary examination and is sent forward for trial; and also where the accused, under section 13 of that Act, is sent forward for sentence with a plea of guilty. In relation to the case where the accused is sent forward for trial, the necessity for the provision in section 2 for correction of the charge arises from the fact that section 18 of the Criminal Procedure Act, 1967, which allows correction of the indictment, does not, I am advised, apply to cases where the preliminary examination is waived.

In relation to the case where the accused is sent forward for sentence, the necessity for the provision in section 2 for correction of the charge arises because the Supreme Court in Williams v. Casey (1969) decided that there is at present no power to amend the charge in such a case. In both instances, the power now being provided for to make a correction is subject to the proviso that, in the opinion of the court, the correction would not result in injustice. Where the accused has signed a plea of guilty in the District Court and the charge is subsequently corrected, the plea will be treated as a plea to the corrected charge. However, this is, of course, subject to the existing provision in section 13 of the Criminal Procedure Act, 1967, under which the accused may withdraw his plea of guilty if he so wishes. This provision in the 1967 Act is not being disturbed.

I hope that this short, though important, Bill will commend itself to the House.

Mr. O'Malley

I am glad to welcome the Bill, the principle object of which is to correct the defect which has appeared in the Criminal Procedure Act, 1967, with regard to appeals after somebody has been sentenced on pleading guilty. This defect came to light a couple of years ago and I was asked at the time if I would undertake to rectify the defect. I was glad to give that undertaking but we ran into the difficulty that an appeal was brought to the Supreme Court on the question of whether or not section 13 of the Criminal Procedure Act was constitutional. The Supreme Court, I understand, has recently found that the section was constitutional and the way is opened up then for this amendment to be made. I do not think it could have been made any earlier than this. The error which occurred in the 1967 Act was purely accidental and I do not think it was the intention of the legislature at the time that this right of appeal would be done away with. I suppose it is inevitable that errors of this kind would occur from time to time. I know that there were in the last few years a few cases where people who had been sent forward and sentenced under this section, which it is now proposed to amend, did feel aggrieved at their inability to appeal to the Court of Criminal Appeal. Happily there were not very many of those cases and what I did as a matter of practice when an appeal was not available for them was to consider petitions from them very sympathetically, perhaps more sympathetically than if the normal process of the Court of Criminal Appeal had been opened. I hope that, as a result of this error being discovered, no injustice was done to anybody. I believe that to be the case.

I also welcome the extension of legal aid to these type of cases. It is only reasonable that they should be given, particularly so on appeal, where the matter is not straightforward and where the assistance of a solicitor and Counsel is essential if he is to appear before the Court of Criminal Appeal. I also welcome the extension of it to preliminary examinations in the District Court. It is, perhaps, no harm to point out that the number of preliminary examinations at the moment in the District Court since the passing of the Criminal Procedure Act, 1967, which we are now amending are very few compared with the sort of procedure which operated prior to this Act. Under the old procedure each witness had to swear his evidence and have it taken down in deposition form.

The great majority of defendants now opt for the procedure under the Act whereby a book of evidence is served on them and it is not necessary to call the witnesses at that stage. It is, of course, open to an accused person, if he so wishes, to have those witnesses called and examined on oath. On the few occasions when that occurs it is only right that legal aid should be available to the accused to enable him to avail fully of his rights in the District Court.

Another section in the Bill, section 2, allows amendment of charges where a person has been sent forward under section 12 with a plea of not guilty or under section 13 with a plea of guilty. I have, of course, no objection to that in principle. The only reservation I have is that it would appear, on a reading of this section on its own at any rate, that these amendments—and some of them could be quite significant—could possibly take place without the consent of the accused person.

I think the Minister should consider adding some few words to this section to make it clear that that cannot happen. I know that at the end there are the words, "provided, in either case, that such correction would not, in the opinion of the Court, result in injustice". That, of course, is purely a matter within the discretion of the court. The accused's position in relation to amendments of the charge against him is not referred to at all.

I think it would be desirable that his rights should be clarified in a section such as this, that he would have the right first of all to get notice, and reasonable notice, of any proposal to amend the charge or the indictment on which he has been returned for trial. Having given him reasonable notice, I think he should be given the opportunity to consider his position again as to whether he wants to plead guilty or to plead not guilty, as the case may be, or possibly to plead guilty to some of the charges on the indictment and not guilty to others.

I am not certain that these options are left open to him under this section. I would feel happier, in relation to section 2, if something of that kind was written into it to make the accused's position clearer and to guarantee that he will not be taken by surprise by any amendment or that he will not find himself in the position of pleading guilty to something more serious than the matter to which he originally pleaded guilty. Lines 29 to 31 read:

And his plea of guilty shall be treated as a plea of guilty to the charge as so corrected.

With that reservation, which can be discussed on Committee Stage, I am glad to welcome the Bill, which rectifies a matter which needed to be rectified. That matter could not have been rectified until now pending the decision of the Supreme Court which was given a few weeks ago.

Minister for Justice (Mr. Cooney)

I am aware that the Deputy had indicated, when he was Minister, his intention of bringing in this amending legislation but that he was inhibited from doing so by reason of the fact that there was a case pending before the Supreme Court. We all had to wait until that case was decided to see whether there was any need for this legislation. In the event the Supreme Court held that the particular section was constitutional and, accordingly, this legislation was necessary to cure the defect. If the Supreme Court had held that it was unconstitutional then there would be no need for this legislation.

The Supreme Court decision was given three or four weeks ago. The House will appreciate that there has been no delay in bringing this legislation forward to cure this defect. As I have indicated, the ordinary provisions as to the need for leave to appeal will still continue to apply. In other words, a person sentenced in the Circuit Court on return on a plea of guilty will still need a certificate from that court or go to the Court of Criminal Appeal for leave. In cases where these applications have not been made because of the defect in the existing law the person may still apply and can ask for the time to submit these applications to be extended in accordance with the normal practice. The normal power of the court to grant an extension of time is there and can be availed of by any persons who have been caught by this defect.

As the Deputy has indicated, if there are persons for whom this cure comes too late they have had their remedy and I have no doubt they have had a sympathetic remedy by way of petition. If any further petitions arise in which the right of appeal is in some way inadvertently lost my attitude to such petitions will be the same as the Deputy's was, one of sympathy.

The other point raised is in connection with legal aid in deposition cases. I got the impression that the Deputy was under the impression that it was available now only in deposition cases where the accused opted for oral depositions. This is not so. It will be available for all preliminary proceedings in the District Court, whether the accused opts for oral depositions or is content to rely on the written depositions as contained in the book of evidence.

Sometimes, even in the absence of oral depositions, arguments on the book of evidence can take considerable time and can involve practitioners in a lot of research and difficult legal argument. It is only right that legal aid should be available in those cases so that accused persons, at that important stage, should have the best legal advice.

With regard to the point that the power of amendment contained in section 2 might prejudice the accused, I should like to say that section 2 is intended to cure what I might call technical defects without going to the root of the charge. The court has an inherent power to amend on application by either party and it does not need the consent of both parties provided the court is satisfied the amendment sought does not go to the root of the charge so as substantially to change the charge on which the accused is arraigned. The intention behind section 2 is to enable technical defects in the pleadings, which have no substantial effect, to be changed so that justice can be done from both sides and there will be no technical defect to be quashed afterwards; technical defects to be quashed afterwards could result in an unwitting miscarriage against the State. The right to change a plea is not being interfered with; that right is contained in section 13 (4) (a) of the 1967 Act and the accused at any time, notwithstanding that he had opted to go for return on a plea of guilty, can withdraw that plea in the Circuit Court. If he feels that the procedural amendment envisaged and permitted by section 2 prejudices him so as to alter his mind with regard to the nature of his plea he can, of course, at that stage, at that late hour withdraw his plea of guilty and enter a plea of not guilty.

I made reference in my opening speech to section 18 of the 1967 Act and pointed out that section 2 was tied to it. Section 18 of the parent Act of 1967 provides for the insertion of additional counts or the substitution of counts and it is, of course, much more significant from the point of view of the accused. It could mean that extra counts, changed counts, different counts, could face him in the higher court. What is proposed now does not do anything other than enabling the charge, not the indictment, in the face of a return on a plea of guilty to be amended where there is a defect. Sometimes these charges have to be framed by someone who is not a skilled draftsman—perhaps a police officer in a hurry—and the actual form of the drafting may not be tidy or exact and, in order to cure that, this provision is being brought in. Deputy O'Malley will note it is not the indictment that is being corrected under this section but merely the charge as it appeared in the District Court. If there were to be an indictment the position would be altogether different.

Question put and agreed to.

Dáil Éireann debate -
Wednesday, 18 Jul 1973