In introducing the Bill the Minister, fairly and correctly, did not make any excessive claims for it. He did not advance it to the House as being likely to cure the enhanced criminality from which the country has been suffering in recent years with a mounting tempo. The Minister was wise not to make any such exaggerated claims. Every armchair observer of society and armchair critic has his own ideas about the reasons for crime waves. The study of crime waves, and the study of criminality, have formed a couple of complete self-contained sciences. I am not a criminologist or a penologist and I do not intend posing as one, but I have a smattering of the subjects. It can be said that some of the opinions which are commonly canvassed about criminality are not supported by any of the studies which have been carried out since this matter was first approached on a scientific basis, at least in this century. One notion is that a period of hardship and of recession tends to encourage criminality.
It is true that we find a wave of criminality or a ripple in crime statistics parallel with the curve of general prosperity. In the nineteenth century that measure was used by reference to a number of crude indexes such as the price of grain, bread and the minimum subsistance items necessary for livelihood. That is no longer true in this century. Even in periods of general prosperity in this century when, as a former Prime Minister of Britain used to say, people never had it so good, the crime rate instead of declining, as Victorian optimists might have supposed it would, advanced inexorably. Some of the explanations for that are based on the idea that with prosperity has come heightened aspirations and expectations and that they are spread around and made more urgent for people by the operations of the advertising media. That is a reasonable enough suggestion which may have some validity for some people. It may be that people according as they get more prosperous are less careful of their property and that whereas once upon a time it would have been impossible to find in the average Ford Prefect or Ford Anglia car of my childhood or even of yours, Sir — although I think you are younger than I — people touring around the countryside looking for anything worth stealing, that is no longer the case. It is worth a criminal's while, or even the time of one who is only occasionally delinquent, when the police are stretched on security duties of all kinds and, as Deputy Foley says, even administrative duties, to break open a car and within a few minutes wrench out something which he can sell for £150 or £200. I am not counting things which might be left in the back of the car such as fur coats or briefcases full of drugs. Goods are accessible in a way they were not formerly. In houses, even those by no means the preserve of the upper classes, can be found stealable and readily convertible objects. These things encourage criminality also, according to a widely held belief among criminologists.
Some people would say — Deputy Flanagan would be among them — that a breakdown in family life and a general collapse of old-fashioned standards is also an accompanying feature which accounts for it, certainly in a country like ours. I do not know the reason for it, but that view on the face of it has some validity. Perhaps it is due to organised religion being somewhat on the defensive and less sure of itself than it was 30 years ago, or to a moral decline of the kind that Deputy Flanagan would describe and castigate. Perhaps parents are not as attentive to what their children are doing as they were at one time, and that may not be their own fault. Maybe it is because their own problems are so abominable and pressing and society does so little to support them and offer them the kind of warmth and shelter — I am speaking metaphorically — that was normal once, at least in the countryside. The children get the short end of whatever affection or interest is in the household and that tends to drive them out of the household into minor delinquency which in the case of those unlucky, genetically or environmentally can become a major delinquency later.
None of us knows what the roots of crime are. We are trying to guess at them. I have mentioned two or three factors which are not my idea or Deputy Flanagan's but they correspond pretty well with the consensus of a large number of criminologists who have no political or any other axe to grind but who spend their life in the study of this social phenomenon. The Minister is as well aware of that as is anybody else and he did not present this Bill as likely to cure anything. He offered it merely on the basis that so far as the State could offer any help to the prevention, combating or even repression — that word is not popular now — of crime it should not be found wanting. We should not be found guilty of lethargy in bringing laws up to date and making them capable of meeting the challenge which criminology presents today. He put it on that modest basis and I would put it no higher than that. No matter what we do in here with pieces of paper, it will not do a great deal to reduce criminality outside. Certainly, it is possible to think up powers which will constrain criminals in one way or another by putting them for longer periods behind bars or by operating a system of quasi-internment which would put them behind bars before they got any further, so to speak, even without trial. Some countries have such a system but nobody has schemed to have it here.
The Minister has not done anything which goes remotely as far as warranting expressions of that kind, but he has produced here a fairly radical set of proposals which, if enacted, will alter substantially traditional forms of criminal justice here. I do not regard myself as a very long-standing Member of the Dáil. I am a baby politically compared to Deputy Faulkner or Deputy Harte but because of the rapid political turnover in here I seem to have moved into the senior end of the House. Very shortly before I ran for the Dáil for the first time Deputy Micheál Ó Móráin was Minister for Justice in the unlucky administration of that time. He produced a Criminal Justice Bill in 1967 which contained at least one of the proposals which the Minister has in front of the House today, and perhaps more than one, but I am not sure of the details and I have not consulted the old Bill. The one which is identical is the idea that we should depart from the traditional notion of unanimous jury verdicts. If criminality can be reckoned in terms of the crude numbers of offences reported to the police, in those days it was about one-third of what it is now and public concern then was nothing like as urgent or panic-stricken as it is now. The indignation industry inside and outside the media was not as well developed as it is now. Mushroom societies for the protection of this and that to issue statements at the drop of a hat were not in quite the same proliferation in 1967 as we have come to experience today.
Therefore, the Minister is producing a Bill now which, unlike Deputy Ó Móráin's Bill, starts off with the advantage that he has the public instinctively on his side. Deputy Ó Móráin did not have that and the relatively quiet-spoken and low key civil rights organisations which existed then — I was a vice-president of one of them — objected soberly, rationally and in an orderly way to many of the provisions of the Bill and we were joined by people in the media and so on who had no axe to grind. With one thing and another the Bill had never got beyond the Second Reading before that Dáil was dissolved in 1969. The new Dáil, even though dominated by the same Government who re-emerged from the election of that year, never re-introduced it. The problem then was relatively small and protests were relatively muted, but the Government felt that encroachments on traditional forms of criminal justice and forms of criminal justice which tend to protect civil liberties were not worth the political price. I do not intend to disparage in putting it that way. I believe they saw the point and respected the objections which had been made and did not think that the benefit which the Bill might have conferred on the administration of criminal justice was worth making so many inroads on civil liberty.
We are in a different situation now. The Minister has been man enough to grasp the nettle and recognise that fact and to do what many other Ministers have been mumbling about for many years, that is, bring on a Bill more radical in some respects than that of 1967 and put it before the House with an open mind willing to hear suggestions about it. He is meeting a House and a public opinion which are by instinct a great deal more receptive than they would have been 15 years ago. Even the Fianna Fáil benches, who are as quick to make hay out of a political difficulty on this side of the House as ever they were, are in general in agreement with the purpose of the Bill and have not offered an opposition to it based on any sort of radical principle. There is a feeling all around the House that something must be done about criminal justice, and done quickly, particularly when we are dealing with a dimension of a problem which is not central to it, a dimension which has the same relation to criminality as applying a temporary field dressing or a temporary bandage to a wound before it is properly treated. This is a marginal dimension of the social problem we are facing. To approach a measure like this with the idea that something simply has to be done irrespective of what that is, is bad. I know that is not the attitude of the Minister or his Department. I know how many anxious hours have been spent on this and I am sure the same could be said about some of the Deputies on the far side of the House who were in the post now occupied by the Minister. It is bad to pass something radical under the impulse of a national panic about crime. We may find ourselves doing something that may seem a good idea, such as clobbering delinquents and putting them behind bars. Many of these people may be roaming around free because of a technicality or because the old-fashioned liberal criminal law allowed them to escape through loopholes that we now propose to close. It may seem a good idea to take some action about such matters, but we must consider whether we are doing damage to the fabric of the criminal system that it will not be too easy to repair.
I know that when people talk on a Bill like this they must talk soberly. I do not mean to raise a scare about the matter but it has to be recognised that the Minister is proposing, in the best of faith and after a lot of consideration, very radical reform of the criminal law. Once those changes are in place it may not be so easy to dismantle them later. It may be that the awful cycle of criminality — much of it related to the North of Ireland, to the corrosive hatreds and the many savage acts that have become associated with that part of the world — will subside. It may be that the cycle will pass. Sometimes I think that is the only thing we can hope for, that people will get tired of murdering one another, of carrying out robberies, of burning and destroying and of making life unbearable for many. Relative to murder and savagery the wave of criminality here is petty and that may also pass or at least come within tolerable limits.
It might be a good idea — it is not too late for the Minister to consider it — if we were a bit cautious about this Bill. We could buy perhaps most parts of the Bill but we should put a time limit on it. In a sense we are in a civil emergency and we should treat it as emergencies have been treated during the years by Governments, many of whom have been Governments of this colour. I do not wish to upset Deputy Foley by mentioning the Civil War and I am sure he will believe me when I say I am not trying to make a political point. When the Civil War subsided with all its bandwagon criminality — I am not talking of the people who were fighting for a political principle but I am referring to those who get into the act — the very stringent martial law powers which the Government had were dismantled and they were replaced by a Public Safety (Temporary Provisions) Act which, in a way, had its own death certificate stapled to it. It lapsed after a few years and was replaced by less radical and more permanent legislation in 1926.
In 1939 we had a most formidable set of emergency provisions, the preparation of which had begun in 1937 or 1938 at the time of the Czechoslovakia crisis, for dealing with war-time conditions. The 1939 Emergency Powers Act spawned subordinate legislation under which the most dreadful things were done, at least judged in ordinary conditions. Under these powers a military court was set up consisting of military officers and when they convicted someone of an offence they passed only one sentence and that was the sentence of death. Under sentence of that court three or four men were shot.
I mention these points just to show how far-reaching was that legislation but, of course, it was a war-time situation. The legislation had to be renewed by this and the other House every year. It came before the Houses in the years between 1940 and 1945 and it eventually lapsed in 1946 and all that remains is a vestigial fragment in the form of some element of prices legislation. In 1976 when this party were in power the Dáil was recalled in the middle of the recess after the British Ambassador was murdered. The Government introduced an emergency powers Bill that had measures that would not have seemed radical by the standards of the 1930s or 1940s, let alone the 1920s. It was hotly opposed by the other side. It provided for a seven-day arrest, whose purpose was much the same as that for the 20-hour arrest now proposed in this Bill. The Act which is still in force contained section 2 which provided for extended arrest. The Act stated that section 2 should remain in force only until the expiry of a period of 12 months beginning with the passing of the Act unless it was continued in force or was brought again into force by an order under the section. That Act was signed by the President on 16 October 1976 and before the 12 months had elapsed the Government had changed. On 16 October of the next year the Government of which Deputy Lynch was Taoiseach and Deputy Collins was Minister for Justice did not renew the section. The Act is still on the Statute Book and the powers could be brought into operation again merely by the Government signing an order. These powers were let fall into abeyance by the decision of the Government in 1977 not to renew the section.
I am not making any point about that. Perhaps the Government were right to let it lapse. There may not have been any need for it at that time, or at any time. I am not arguing about that matter. All I am saying is that as recently as 1976 this House passed emergency legislation to deal with what seemed to be a paroxysm of criminality. I admit that the murder of an ambassador is just as foul as the murder of the most obscure private citizen north or south of the Border. It is not the personality of the man that counts but, of course, the matter had political dimensions of a kind a Government could not overlook. It seemed to be a provocation of the most extreme kind and there were also other things happening at the same time. A member of the Garda Síochána was blown to pieces by these heroes, booby-trapped in a house not far from Portlaoise. It was a ghastly murder that triggered off a series of events. They led to political events that have nothing to do with criminal law.
It is worth reminding the House that in the past we have had legislation which everyone recognised as radical, which nobody wanted to see made permanent. Everyone regretted the necessity for such legislation and we took account of that by making the legislation temporary. There are legal eggs that are difficult to unscramble. There are some sections in this Bill that I can see could not easily be made temporary. One might make them temporary but perhaps that would be an injustice because when the temporary period expired there might be a situation of injustice as between a man whose case had been caught on one side of the line and a man whose case had luckily fallen a day or an hour on the other side of the line.
I admit there are powers in this Bill which it might not be easy to build into a scheme of temporary operation but I should like the Minister to consider to what extent this Bill in its entirety, or at least some parts of it, could be made temporary. He certainly has the good wishes of the House and he might well have the total support of the House in trying some different form of criminal justice. This will be a different system of criminal justice operating on principles that have never before been recognised in this country. It would be a good thing if he would consider examining to what extent this radical departure from what has been traditional and from what worked well enough might be made to expire after 24 months unless continued in operation by resolution of both Houses.
I believe there is goodwill on the part of this Government and I am willing to make the same presumption, for the sake of argument, in favour of whatever other Government might replace them. If the Government saw the Bill in operation as an Act and found that something dreadful was happening under it — for example, that police misbehaviour was rampant under it, although I have no reason to suspect anything like that — the Minister and the Government would do well to consider taking the power to suspend the operation of some section of the Act, even within that two-year period.
I take it for granted the Minister would not try to stand over behaviour under the Act which amounted to a breach of the rights of the ordinary citizen. A person remains a citizen with rights even if he is a criminal behind bars. The Supreme Court, following what was said by an American judge, held some months ago that there is no iron curtain separating people in prison from the Constitution. They have rights, as have people whose conduct is being criminally investigated. If they are duly convicted and sentenced for a crime known to the law, the exercise of a certain range of their constitutional rights must necessarily be suspended if they are put in prison but they remain citizens with rights, at least to the extent that is compatible with serving a sentence of imprisonment. If the Minister found that, as a result of this Act, unfair procedures were being followed resulting in injustice, it would be his plain duty or the duty of any Minister to put a stop to those procedures. A simple way of doing it would be by building into the Act a power vested in the Government to suspend immediately the operation of any rule which the Bill now contains.
I am surprised that after all the talk about abuses of bail the Minister has opted for this method of reflecting the Government's very proper concern with it. He has adopted the method of saying to a delinquent: "All right, you are on bail but if you are convicted of a further offence while on bail you will be treated quite differently from the way you would have been treated had you not been on bail. The mere fact that you are on bail will subject you to a heightened liability should you be convicted of committing an offence while on bail." If I may say so respectfully, the section could have been more felicitously drafted.
It would have been worth having a go at trying to re-establish something like the old bail rules which operated here from Purcell's case, I think it was, in the twenties until O'Callaghan's case in 1966. The latter case turned the law of bail upside-down. Formerly it had been open to a court to refuse bail, in other words to order a person accused of an offence to be kept in custody until his trial if it seemed likely to the authorities that he would commit further offences if let out on bail. That was the way the system worked until 1966. I can see the problem about it. It means imprisoning somebody on suspicion, merely because the police suspect him of being a bad character who could not be trusted to be let out on bail. He might go off and steal some more videos or something like that. If it is a political, subversive offence in which the man may be a murderer, or the police may think he is a murderer, it is a much more serious matter. Undoubtedly it is a system whereby there is an element of depriving a person of his liberty on suspicion. There is no blotting that out and I am not trying to minimise it or deny it.
That system was shot down by the Supreme Court in 1966 for the very liberal reason that it was a form of preventive justice which they said was unknown to our system. With the greatest respect to the Supreme Court, that is simply not true. Our system has digested and thrived on systems of preventive justice in one shape or form ever since the State was set up. I do not say that it has been necessary always to employ such systems or that they have always been in operation, but what is the Offences Against the State (Amendment) Act, 1940 but a system of preventive control which is still on the Statute Book, under which somebody can be indefinitely interned on the warrant of a Minister, even the Minister for Fisheries, on the grounds that the Minister is of the opinion that the person's continued liberty would be a threat to public security?
That Act has not been used since about 1962. Deputy Haughey, when Minister for Justice, was the last Minister in charge of the operation of that Act and it is only fair to say that it was during his term of office that the Act went out of operation. Certainly Deputy Lemass, as Taoiseach, operated that Act and locked people up indefinitely during the period of IRA activity — relative boy scout operations — when unfortunate misguided idealists like Seán South went up to the North and made frontal attacks on police barracks and lost their lives in the process. During that period the Act was brought into force and people were interned without trial. To say that this is unknown to our system of justice is simply not true.
I am sorry that I spoke in that disrespectful and categorical tone about any of the courts. I have not consciously said something that is not true. All I am saying is that it is difficult to reconcile the pronouncement by the court that preventive justice is not part of our system when we have on the Statute Book a system which cannot be described otherwise even if it has not been used for 20 years. Is it not also preventive justice to have a system whereby bail can be refused on the basis of the probability that the accused person will not stand trial? A person who perhaps has no fixed domicile here and who the Garda may consider likely to skip bail may be refused bail. I admit that that system of preventive justice is not as valuable to the people as the old system was but there is no point in denying that the old system, too, was one of preventive justice and did mean locking up someone on suspicion but when we are dealing with the panic level of criminality, as we are, we may be driven to such action. We are being driven to include in the Bill measures of a kind that were not part of the law before.
Therefore, I am surprised that successive Ministers since 1966 have not done something about the bail law by way of restoring and entrenching in legislative form the criteria that had been recognised from the twenties up to the sixties, having as much regard as possible to what was said in O'Callaghan's case and leaving it to the courts to shoot it down if they so wished. Then, if the courts did so, it could have been put to the people, as some Taoisigh have said they would do, and, if accepted, written into the Constitution by way of some form of cover for a reasonable bail system. The people have had their pockets picked for what was a useless referendum operation this year when something useful of the kind we are talking of might have been done. Instead, the people were set by the ears and we had a national debate, if one might refer to the cat fight in those terms, so foul and continuing for six months as not to bear thinking about.
That referendum which cost £1 million was held merely to prevent Fianna Fáil and Fine Gael telling lies about each other. Why could we not have combined with that referendum an appeal to the people to vote for the entrenchment in the Constitution of some reasonable provision in regard to pre-trial custody? I am not talking about a tyrannic or a police State like provision but a provision of a kind that exists in other democracies and in other member states of the EEC. Italy, though, is a notorious example of people spending very long periods in custody before trial. That used to be the position in Germany, too. It happened here occasionally also. We had the case of the notorious Doctor Singer, whom the former Deputy Liam Cosgrave described as being out on the Costa Brava with his hat on the side of his head and a glass of brandy in each hand, toasting the Fianna Fáil lawyers who did not succeed in putting him behind bars. However, Doctor Singer, who was not convicted, spent about 18 months behind bars during which time he taught himself the legal system of the country and acted as a porter barrel lawyer to every other inmate in Mountjoy. He diffused the knowledge of our country's laws in a way for which one can be marginally grateful to him but at any rate he did remain in custody without trial for a long period. It is true that in his case, as the Supreme Court said when he sought habeas corpus on the grounds of the length of his pre-trial detention, the charges against him were very numerous and complicated. It might have been difficult for the State to prepare the case and have it ready to go before a jury in a much shorter time. In the case of Dr. Singer there might have been grounds, with appropriate safeguards, for allowing him out on bail. The safeguards, I presume, would be that he would report to the Garda regularly or that his passport would be withdrawn.
In any case, when someone spends 18 months in custody awaiting trial, all reasonable limits in regard to pre-trial custody have been exceeded. I am not trying to defend a situation of an unlimited period of pre-trial custody but there must be a middle way somewhere and it should not have been beyond the wit of the Department of Justice and of the political will of successive Governments to put this matter right, either by way of legislation or by way of appeal to the people on some appropriate occasion.
I am not entirely happy about the method the Minister is choosing. I accept that it may be frightening enough to deter but I am not sure if that is sufficient justification for it. Let us take a situation in which there are two delinquents, one of whom has a record as long as my arm while the other has a much shorter record. Let us say that the one with the shorter record is on bail while the other one is in custody. If the one with the shorter record commits another offence while on bail his sentence ultimately is doubled but this will not happen in the case of the man who is in custody because he does not have the opportunity of committing another crime. I am not sure that, either in the deep sense or in the constitutional sense of the word, that is fair.
If I am reading the section correctly, it does not make clear that the new offence which is to be the basis for the consecutiveness of the sentences is to be an offence committed in the bail period in respect of the former offence alleged against the accused. I presume the Minister means by the words "or any sentence passed on him for previous offences" any sentence passed on him for previous offences, he having been committed to bail in respect of the charge of that previous offence. I am sure that what the Minister is trying to do is threaten someone who is on bail for offence X that, if he then commits offence Y and is convicted of the two offences, the sentences will be made to run consecutively; but as that is not clearly explained in section 9 perhaps the Department would have regard to it.
I intended making some observations on other sections but I shall not delay the House in case the Minister wishes to get in to reply this evening. Before Committee Stage there are a couple of points that the Department might have to regard. There is reference in a couple of places in the Bill to recordings and to the destruction of records but I cannot find anywhere in the Bill a safeguard that could be regarded as watertight, from the accused person's point of view, that the recordings would be immune from being tampered with. We know that an ordinary tape can be snipped and changed around in such a way as to convey a wrong impression of a conversation.
Needless to say I have no reason to suspect that the members of the Garda Síochána or any member of the Force would do such a thing but it has not been unknown in the past in some police forces. An accused person and, for all I know, the people who will be attacking this Bill, if it ever reaches the Supreme Court or the High Court will be advancing the point that there can be no security for an accused person, at any rate so far as the Bill goes, that that tape has not actually been interfered with. If an accused person denies that such a conservation took place in that form he would need some assurance that at least the tape had not been tampered with.
To some extent the same problem arises in regard to the destruction of records. He would need some assurance that before the records are destroyed no copies of them had been made. Again, it is all very well for a blackmailer to say: "I will give back the compromising photographs and the negative". But nobody knows how many prints he may have made from the negative. The wretched person who is being blackmailed may find himself paying the blackmail, getting back the negative and a print but, for all he knows, a thousand other prints may have been run off that negative. I mention this, not through any suspicion that that kind of blackguardism, or that kind of disregard of the clear intent of the law, could be imputed to any member of the Garda Síochána — I hope and trust that is not the case — but an accused person who will have a closer acquaintance with the way the police operate may feel entitled to raise that objection, that he has not got that security, and may feel that the provisions offered here do not offer it to him.
The last matter I want to mention contains the miscellaneous part of the Bill. Since there is a certain miscellaneous section, a certain ragbag of provisions with which I have no special fault to find or have anything much to say about, it would be a good thing and certainly would redress the balance to some extent of hard line which the Bill otherwise tends to convey if the Minister included a section which would have the effect of restoring the law on acquittals in criminal cases to what everybody supposed it was before the judgment in the O'Shea case decided by the Supreme Court in November of last year. If I may just in a few words explain the point there: it was always taken to be the law here until recent times that if somebody was acquitted whether by a jury or after a summary trial the summons against him was dismissed by a District Justice, there was no appeal by the State against that acquittal or dismissal. There is certainly a procedure in regard to the District Court dismissals whereby the State can bring up the question of whether the justice was correct in dismissing the charge and we had two very recent instances of that, in the cases of Garda Nangle and Mr. Pat O'Connor. These were both instances brought to the High Court, under that procedure, in order to have a point of law decided. But had the point of law gone against the defendants in those two cases they would have been back before the court again. I am not so much concerned with the small beer of criminal litigation, although in a sense it should be a seamless garment, but it is a very serious thing when we start hearing from the Supreme Court that the Constitution has to be interpreted in such a way that appeals can be brought to the Supreme Court against the acquittal of a defendant. The reason this arises is not because the Supreme Court are illiberal people who want to give the State the status of a cat in a game of cat and mouse — that is not the reason. The reason is that one finds in Article 34.4.3. of the Constitution:
The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
That is what it says. It goes on to say that exceptions may be made by law in the future, in other words, post-1937 exceptions from this appellate jurisdiction. In other words, it is open to both Houses of the Oireachtas and to the President to enact a law which would take away from the appellate jurisdiction of the Supreme Court certain categories of High Court decision, in fact all categories if they wished, except for ones involving the constitutionality of an Act, which is not in question here.
No such exception has ever been made by law in the case of High Court decisions taking the form of a jury acquittal in the Central Criminal Court. The Central Criminal Court is simply another name for the High Court when exercising its criminal jurisdiction. Therefore, if, in the Central Criminal Court a jury finds a person not guilty and he is therefore acquitted and discharged by the presiding judge, that acquittal is a decision of the High Court within Article 34.4.3 of the Constitution and the Supreme Court have said — if language is to mean anything — that that acquittal must be appealable; in other words, that the prosecution is entitled to take that acquittal up to the Supreme Court, to reverse the acquittal and expose the accused man to another risk of having to run the same risk of trial all over again.
This is a long day's work and I do not want to weary the House with it now. Perhaps the Minister would be disposed to consider such a proposal. We could talk about it at greater length later; I am not going to lecture the House for an hour on the subject, but I hope I have succeeded in explaining in an nutshell what is the problem. Formerly it was thought that the Constitution had made no difference to the old traditional rule whereby an acquittal was final, whereby a man could be tried for something once and if he got through a jury once, whether because the jury had completed their session and, on the merits and their evaluation of the evidence, pronounced a person not guilty, or because the judge at an earlier stage in the trial directed the jury to pronounce him not guilty because the evidence did not warrant any other conclusion, in those two cases always it was thought that the man could literally walk out of the dock a free man. That is an English idea if you like. I do not know what the English have done about it in their country since then, but it was always regarded as a basic principle of criminal law here that a person could not be tried twice on a similar charge.
The characteristic of criminal justice by which an acquittal can be appealed against by the prosecution — therefore exposing the accused person to a second bout of anxiety and a second risk — is something we tend to associate with Eastern Europe, with regimes under which, please God, none of us will ever have to live. I would be sorry to see that principle introduced here. I want to make it clear yet again that the Supreme Court probably, man for man, do not want it introduced here either. They have no option but to interpret the Constitution, as the Article of the Constitution clearly says —"... all decisions of the High Court, ..." The Supreme Court have said, whatever we may feel personally is right or wrong, we have to obey the Constitution, and there is no basis for distinguishing between an acquittal decision of the High Court and any other kind of decision of the High Court. So the majority of the Supreme Court said that acquittals could be appealed against. They did say, of course, that that did not mean that the whole thing should be thrown open, that they would restrict the reach of the appeal very narrowly, that they would not behave unfairly and so on.
It is also true that, of the five judges, two dissented and dissented most powerfully from the majority. If it is not a disrespectful thing to say I personally think that the two who dissented had the rights of it. I say that with unaffected respect for the three judges who were in the majority. But the point is that the only people who can put this right are we in these Houses of the Oireachtas and the President.
The Minister has a chance now — I know he is open-minded about this and all other things in this connection. It could be done by a single section that I think I could draft on the back of an envelope as could anybody in his Department to remove that illiberal possibility, to restore the law to what it was always supposed to be, to adopt the attitude, if you like, now entrenching in statutory form the decision of the two judges, Judge Henchy and Judge Finlay — the President of the High Court who was sitting that day on the Supreme Court — in the liberal direction of trying a man once only on the same charge which had been thought — it now appears erroneously but which anyway had been understood — to be the law here ever since the State was founded. I have spoken much longer than I had intended and I will conclude by wishing the Minister well with the Bill and with all his other work.
