After all that sound and fury by the second spokesman for the Opposition, a person might well wonder whether he was a member of the Irish Bar 16 or 18 months ago or before that. This measure we are discussing was clearly contemplated by Articles 30.3 of the Constitution of 1937 and it was an obvious provision for the Constitution to contain. As society progresses, the tentacles and responsibilities of the State in the everyday life of a nation and its citizens are bound to increase. I am certain the draftsmen of the Constitution bore that in mind when dealing with this paragraph.
In those days it was not foreseen that the Attorney General would have the function of advising the Government not only on domestic legislation but also with regard to the implications of European law, particularly that emanating from the EEC in relation to regulations and directives. So far as the increased statutory functions of the various Departments are concerned, it has become increasingly obvious that every step and procedure, whether taken by the Minister, the secretary or the various officers of the Department, are closely related to the powers set out in a statute or a statutory rule or order.
On many occasions the ordinary day-to-day work of the Department gives rise to technical legal aspects in the administration of the powers given to the Minister and his officials. As a Deputy I was fortunate, or unfortunate, to stumble on a section that was interpreted and used in a certain way for upwards of 20 years. A set of circumstances arose which rather made the law look a bit of an ass and a lot of technical work had to be done and it was necessary to go back to the history of the section to ascertain the object and purpose of the provision. This was a legal matter which had to be dealt with by the law officers attached to the Attorney General's office, or it may have been the office of the Chief State Solicitor.
This is just an instance of how these things can arise. With the increasing volume of work in relation to criminal law and the prosecution of criminal offences, it is high time that the day-to-day work in this regard should be taken from the Attorney General; in other words, he should be given time and facilities to do his other work. I know that in the past the volume of work going through the Attorney General's office was such that he had not a chance of really getting to grips with all of that work and daily he had to delegate it. There is no doubt that for a lengthy period of time the actual day-to-day work in the Attorney General's office in relation to prosecutions had to be delegated. If one might use a phrase of the Bar, possibly it devilled to a member of his staff. If that had not been done there was no hope of getting through the work. We know there have been delays in the administration of criminal law. This kind of situation can arise sporadically because one cannot foretell the flow of criminal work going to the Attorney General's office.
One point that has puzzled me, as well as many other lawyers, is the fact that there has been such a long delay before we got down to the question of creating the office of Director of Public Prosecutions. I think I am right when I say that so that as far as England is concerned the office of Director of Public Prosecutions was created by a statute of 3rd July, 1879, commonly called the Prosecution of Offences Act, 1879.
Possibly history played a part in our tradiness in creating the office of Director of Public Prosecutions. We were occupied by a foreign power and the law was not held in much repute, if in any at all, by the vast majority of the citizens of this island. The law was being administered by a foreigner and by the minions of a foreigner, and to describe a person as the Director of Public Prosecutions was probably the quickest way of attracting a piece of lead or a knife to such an official of the occupying British power at the time. The matter has always been in the hands of the Attorney General.
One matter I should like to bring the attention of the Parliamentary Secretary to is this. There is provisions in our law for private individuals to institute prosecutions. In England, under an Act of 1908, there is a specific preservation of the rights of individuals to prosecute for offences. I do not know whether that Act applied to Ireland. Its title is "An Act to amend the Prosecution of Offences Acts, 1979 and 1884". This obviously followed on the 1879 Act which created the office of Director of Public Prosecutions. Section 2 (3) of that Act provided:
Nothing in the Prosecution of Offences Acts, 1879 and 1884, or in this Act shall preclude any person from instituting or carrying on any criminal proceedings, but the Director of Public Prosecutions may undertake at any stage the conduct of those proceedings if he thinks fit.
There may be some other section, but I have not had time to track it down, which would of itself reserve the right of private individuals to initiate proceedings which would not be affected by the Bill now before us, but it seems to me there must have been some reason for the section I have cited. It is for that reason that I have brought it to the attention of the Parliamentary Secretary and the Attorney General and his office in regard to that aspect of prosecutions. I think it is the right of any private individual, if he thinks a crime has been done, to institute a prosecution, and that right should not be taken from him. It may be covered in some other way, but generally speaking there is a great reluctance on the part of the Legislature to legislate — indeed the tendency has been to underlegislate rather than to overlegislate in this respect. Therefore, if that is relevant, if my comment is to any point, possibly this could be dealt with on Committee Stage. It occurred to me to bring it to the attention of those whose duty it was to father this Bill.
The Bill sets out in section 1 what the territory or the jurisdiction of the Director of Public Prosecutions is to be. It refers just to criminal matters and states:
"criminal matters" includes criminal proceedings and applications for any order of certiorari, mandamus, prohibition or other State side order or injunction with respect to criminal proceedings or any matter arising thereout and also includes cases stated, certifications by the Attorney General under section 29 of the Courts of Justice Act, 1924, references under section 34 of the Criminal Procedure Act, 1967, and applications and other proceedings arising out of criminal proceedings;
I take it the jurisdiction of the Director of Public Prosecutions will be purely related to matters of a criminal nature and that in so far as injunctions, cartiorari, mandamus or other such proceedings are concerned they would have to be of the same kind.
This gives me an opportunity as a Deputy to raise what I think is a very important matter in relation to criminal proceedings. There are all sorts of people who find themselves at the wrong end of the arm of the law. The law, the Government for the time being and their officers—the Garda, the Army and so forth— do not take any particular pleasure in having to take proceedings against people who have made a possible mistake or blunder or who have contravened the law; but, bearing in mind the tremendous spectrum of variance one comes across in the criminal courts, I should like to see the probation office service somehow linked with the Director of Public Prosecutions. I understand this has herefore been dealt with by the Department of Justice.
As I see this Bill, the function of the Director of Public Prosecutions will be the making of a decision not alone on the charges to be preferred, which counsel is to be retained or what is to be the nature of the proceedings, but I would also imagine it would be a matter for the decision of the Director of Public Prosecutions to decide as to whether proceedings were to be taken at all. There might be circumstances in which the Director might have to make a decision in which he would say: "Now, hold our hand and let us investigate not alone the complaint but the circumstances and the character of the person involved".
With my number of years in the legal profession, I do not want to appear as a fellow going soft just because there is a certain school of thought that one must turn the surroundings of an alleged criminal into that of a nice psychiatric nursing home with nice sympathetic phrases and understanding of his situation and of the circumstances in which he would find himself, but I feel that the probation service should have a close relationship with the Office of the Director of Public Prosecutions.
I was recently in a court of law where it appeared that the probation officer was only brought in at the last moment. On this assessment of the situation and on the time that he had available to give to the case, he was in somewhat too late. In effect, he could not fully or properly assist the court. I do not think one can pigeonhole any particular part of criminal proceedings. If a person has the responsibility of directing prosecutions— and I include directing prosecutions, maybe, not to be taken—that person should have the fullest and widest authority and powers to call on any facilities that are available in relation to delinquents. If the person holding that position had not got these facilities, in many cases he would have no option but, prima facie, to direct a prosecution which, if circumstances were known better and more fully would not be directed.
I imagine there are many people who would disagree with me on that, but I believe that this office of Director of Public Prosecutions is now giving us an opportunity to have a fresh look at and a rethink on the conduct and control of prosecutions. When I myself had the honour of acting as a prosecutor for a short and limited time, there were many occasions on which, when I saw the depositions and the papers, I wondered to myself what was the reason for bringing in a prosecution. Time out of number—I could say in all cases— a recommendation came up from the local area to prosecute. As prosecutor, I was limited to the evidence in those depositions in subsequently conducting the trial, and I wondered why on earth money was being spent on such a prosecution, because there was no hope of convicting on the charge or on the evidence I held in my hand. Despite that fact, I had to get up in court and make the best case I could on the evidence available to me. I know my colleagues at the bar, more or less from time immemorial, have been in the same position.
Therefore, I might be using that as a weak and, possibly, an irrelevant argument in urging that any facilities that are available to the Director of Public Prosecutions by way of advice or information should be made freely available to him so that the best possible decision can be made in relation to whether a prosecution is brought or not brought, or whether a prosecution already initiated should be stopped at some stage, or whether different or other charges should be preferred, or other courses should be taken.
I am coming to a matter which I regard as of enormous seriousness. It is possibly not so serious nowadays, but it is the position of counsel and a solicitor defending a person on a charge of murder. Prior to the introduction of legal aid, the person was brought forward and charged, and subsequently depositions were taken in the District Court. It was very often a lengthy and slow proceeding. There were often very many adjournments before the depositions were actually taken. Where the person had no means, that alleged murderer, whose life was was then possibly at stake, appeared in the District Court without legal representation. Usually the local bar of solicitors did something about it, and somebody came in and just watched the proceedings at deposition stage.
However, if the person charged was in the position of having to avail of the McNaghten rules, namely, that he was going to rely on insanity, very often that person would not be brought to trial for six or nine months, maybe longer, after the date of the alleged murder. It was only when that person was returned for trial to the Central Criminal Court that an application would be made by a solicitor, with his counsel in attendance, that he and the counsel be assigned to look after the accused person. It was only at that stage that the solicitor and counsel were officially recognised. It was only then that they could call upon the State to give them the facilities, on behalf of the accused, to have the accused person medically examined. Admittedly, the accused would have been examined on being taken into custody by the State, in the first instance, but it seemed to be completely contrary to the principle that a man is innocent until he is proved guilty, that that accused person would have to wait for nine months before his lawyer could bring in a psychiatrist. That unfortunate psychiatrist would have to try to give evidence in aid of that accused man about a matter that had occurred six or nine months before.
The situation is now considerably improved since legal aid has been brought in, and the situation, I suppose, is not as serious from the defence counsel's and solicitor's point of view, in so far as there is no execution penalty. However, I do feel that in the definition of criminal matters that are covered by the functions of the Director of Public Prosecutions there should be some reference to providing facilities for the defence at the expense of the State in major criminal offences such as murder, and particularly where there is a likelihood of the McNaghten rules being relied on.
It always puzzled me that that matter was never raised or debated in the House. It seemed to me that the way the criminal law in major trials was dealt with was quite contrary to the rights of the individual under the Constitution. In order that there may be no slip-up and no unfairness where the defence of insanity may have to be relied on or may be even considered at a later stage that should be written in as one of the matters to be dealt with by the Director of Public Prosecutions.
I want to undeline a matter that may be lost sight of. In relation to a prosecution it is not necessary and only the function of a prosecutor to obtain a conviction. It is the duty of a good prosecutor to present all the evidence in a fair and proper manner in relation to the accused person and the charge that is levelled against him. Therefore, I suggest that "criminal matters" should include the provision of facilities for defence as well as prosecution specifically mentioning defence to ensure that it would be attended to and that a defendant or an accused person would have a statutory right to call for these facilities. I have had personal experience in the past, before legal aid came in, when it was just a question of being assigned to a murder case defence, of having quite stormy interviews with the various officers in control of accused people to obtain the necessary and proper facilities. That did occur I am afraid in the case of a murder trial. I know it is no function of a barrister to have to personally and directly interview officialdom when the barrister is appearing for a client. It is a matter to be dealt with by the solicitor but I am afraid the situation got so out of hand and became so serious that I had to take it upon myself to do it. It was a very unpleasant experience but in those days one did not think twice about plunging into the breach when one knew that the penalty for one's client was to be sent into the next world if he was convicted. It was a serious matter.
I am not quite certain whether this is relevant but as the Director of Public Prosecutions is responsible for matters appertaining to crime I would be of the opinion, personally, that the sentence that would follow from the initiation of criminal proceedings in the event of the accused being convicted would also be a matter that would possibly be within the realm of interest, if not some sort of control, of the Director of Public Prosecutions. There is a view abroad of the office of the Director of Public Prosecutions as being somewhat of a mini-Minister of State with more independence than the average Minister of State and that a Director of Public Prosecutions must not only be a legal animal in the legal cog that pushes prosecutions or stops them or changes them or varies their method of presentation, the overall picture of the administration of crime control in the sense that if crime is controlled when crime is being committed it comes into the courts, that the matter of sentences and the policy of sentences would be a matter that would possibly be within the purview of the Director of Public Prosecutions. The public have in the past quite frankly expressed a certain amount of shock at the variance in the sentences that have been imposed.
I know there is a system which operates in Dublin—it may operate in the provinces or it may be that it is done in Dublin for the benefit of all the country—where district justices meet in a sort of informal committee to discuss the situations occurring in their courts. The purpose probably is to share and exchange information and to try to show a certain evenness in the administration of the courts as to penalties both civil and criminal. There might be some provision whereby the Director of Public Prosecutions would be somehow consulted in this matter of sentences because I know, as a practising lawyer, that it makes a vast difference, from the point of view of the client in what court, before what judge, one's client is dealt with when it comes to a sentence. If your client is convicted in one court the sentence is one that, perhaps, the client would not complain too badly about but if he is in before another man there is a fair chance he will regard himself as getting a right clobbering. In fact, this is a matter that has given rise to last minute adjournments of trials of accused people — not jury trials but trials before district justices. It is a matter that might possibly be brought within the purview of the Director of Public Prosecutions to show that there is a certain evenness or control kept on the sentences.
It does not appear from the Bill that the matter of public inquiries falls within the purview of the Director of Public Prosecutions. I have an idea that something of that nature can occur in England but it may be that it can only be done with the consent of some State Department. I do not want to bring the office of the Director of Public Prosecutions down to the local district attorney level we see depicted on television and American films but I would feel that the word "investigations" and matters concerned with investigations might be included under the heading "criminal matters" in section 1. The relevance of that might be more apparent when I come to deal with section 6.
I am glad to see that the spokesmen on the Opposition side favour this Bill and that they see no objection to its principles. Deputy Andrews says he must question the mechanics of the structure. I take it he is reserving his objections to the detailed examination of the Bill on Committee Stage and that he is only dealing now with the matter of principle. He, like Deputy O'Malley, appears to agree with that but having said those nice things both of them seemed to run amok. They became very worked up in regard to political patronage. I do not think they are the people to talk about that. I have been the victim of this for 16 years and for many years before that. I have seen men with literally no experience being handed State prosecutions. Human nature being what it is, young inexperienced men did not do the job properly. There was one stage in the history of this State when you were regarded as a very bad criminal defender if you did not get your man off. There was a very low water mark in criminal prosecutions and the presentation of criminal cases. I do not like to be specific about the period of time it occurred. All I will say is that it happened in my time at the Bar. The only thing you were worried about then was if by any accident you would be convicted.
Deputy O'Malley said it did not seem to be necessary to have a Bill to cut out political patronage. His speech remained me of the first time I attended a first year students' debate in UCD. I expected better from a former Minister for Justice. The Deputy seemed to regard the serious office of judge and the serious responsibilities of a prosecutor with unforgivable flippancy. There seemed to be no balance. I was quite amazed when I listened to him. I do not look on judges as if they have haloes around their heads but I think there is a starting and a stopping place when you refer to the office of a judge. The manner in which judicial appointments were spoken of in the House can give terrible scandal. When a person comes into a court of law and gives evidence he takes oath before God to tell the truth. He relies on the judge to be impartial and to do his job with a proper sense of justice. One would wonder, listening to some of the things that were said here today, whether we should have a judicial system in this country, whether we should have judges deciding or whether we should even let the accused person or the litigants know the name of the judge trying the particular case. If we were to take seriously what was said about judges and appointments by members of the Opposition today we would be far better off putting the judge trying a case behind a screen so that the public will not know who is trying it. The Opposition pointed fingers at various members of the Bench in this House. They are not in a position to defend themselves and it is not right that the debate should have descended to the degree of squalid oratory we had to listen to.
Deputy Andrews mentioned the pooling of the functions of Director of Public Prosecutions and those of the Chief State Solicitor. In a lot of instances there would be a certain common knowledge, procedure and office work but from my own experience of dealing with State matters, and having been on the other side because of my politics for the last 16 years, I say you could not, with any degree of efficiency, merge the functions of Director of Public Prosecutions and that of Chief State Solicitor. It is not a practical way of carrying on the office. The Director of Public Prosecutions is concerned with criminal work alone and the Chief State Solicitor has to act for Departments and deal with public matters, a lot of which is civil work.
I do not understand the Deputy's criticism of the second paragraph of the Parliamentary Secretary's opening statement. He referred to it as only a statement of intent. He asked: "Will the Attorney General actually get involved?" and "Will he become redundant?""There is no question of him becoming redundant. We want to use the resources of the Attorney General as far as they are available and to relieve some of the strain of the work that is falling on him. We know that the Attorney General is out of the country today as he is appearing in a tribunal in Europe. Who makes the decision if something urgent occurs in a criminal case here? Up to date somebody in the Attorney General's office made the decision. It is only right that things should be a regularised and that there should be a proper officer given the standing to control this work. I do not agree with the suggestion that the person who is Director of Public Prosecutions should be on an equal status, so far as qualifications are concerned, with the Attorney General.
The Director of Public Prosecutions will not appear in court. It is clearly stated in the Bill that he will be a civil servant and administrator with specialised know-how. I think this is the proper person to have in a position such as this. I would not be that happy about having a member of the Bar who had experience of either criminal prosecutions or criminal defences as a Director of Public Prosecutions. I shall probably be shot by the other members of my profession for saying that. I believe that a person with administrative experience and a knowledge of prosecutions is the ideal person for this position. He will want to know how various Departments work, how the administration of the Garda is carried out, how information is translated from one section of the Garda Síochána to another, how decisions are made, who makes them and at what stage. I cannot see any member of the Bar practising outside a Department of State having all the requisite qualifications. If he were a member of the Bar, he would have to be brought into the Civil Service to have a familiarisation course to equip him to carry out this work.
I have been 16 years practising at the Bar and the only criminal work I could do in those 16 years was to defend. With a Fianna Fáil Government in office I never saw the inside of a prosecution. That sort of thing is bound to have an influence. If a man does only one side of a case consistently, he is bound to have certain bias. I should hate to see a Director of Public Prosecutions who might have legal scars, if I may so describe them, because he saw only one side of the criminal law and its effect.