Question proposed: "That this Bill be read a Second Time."

One feels that there is not much use in saying very much about this Bill in view of all that has been said in respect of a similar Bill last August. There are certain very objectionable Sections in the Bill which outrage humanity to a certain extent and which experience has proved do not tend to stop the abuses for which they were originally conceived.

The particular Section to which I refer deals with the infliction of the punishment of flogging in respect of certain crimes. After all, the great difficulty in regard to the preservation of order has been the difficulty of apprehending the criminals. Very few people, no matter how desperate they might be, will commit crimes of this kind if they feel certain they will be apprehended and get a punishment of penal servitude for a number of years. They are more inclined to commit the crime if they feel that their chances of being arrested are pretty small. It is a pity that when the Minister for Home Affairs was introducing a punishment of this kind that he did not hit on something more effective.

Personally I think the introduction of the old system of the pillory would be far more effective, would be less inhuman, and, on the whole, would not be quite so objectionable as the infliction of corporal punishment by means of the "cat." The pillory is an antiquated method, but, at all events, it showed up the criminal, held him up to public opprobrium, and brought on him an amount of contempt and public censure that no amount of corporal punishment of another kind would bring upon him. The Government, I think, might have looked up old punishments which have long since fallen into disuse if they desire to inflict punishment of that kind. They would probably find that these punishments were far more effective in cases where it was necessary to inflict punishment of that kind at all. After all, we have seen a number of incidents where robbers have been chained to church rails. I believe that that form of punishment has been far more effective in preventing crime than the punishment suggested in this Bill.

Apart from the question of flogging there are other very vital Sections of the Bill, and in considering them we should have some regard to the Constitution, a document that has been discussed very often as to whether it is being observed or otherwise. By Article 72 of the Constitution it is enacted that no person shall be tried on any criminal charge without a jury, save in the case of charges in respect of minor offences triable by law before a court of summary jurisdiction. Yet, in Section 1, sub-section (2) of this Bill you find that it is proposed to give a court of summary jurisdiction—a District Justice sitting without a jury—the right to inflict a sentence in respect of all the offences mentioned in Part II. of the Schedule. That means that you take away from the prisoner the right of trial by jury, as given by the Constitution. I may be told that these are minor offences, such as are contemplated by Article 72 of the Constitution. That, of course, is ridiculous.

Nobody would suggest that armed robbery and arson were minor offences. Certainly no offence is a minor offence in which a Court can inflict a penalty of 12 months' hard labour, and failing the payment of a fine of £50, an additional six months' imprisonment. Crimes which merit punishment of that kind are not minor offences within the meaning of the Constitution. In my opinion it is quite unconstitutional to submit offences of that kind to a court of summary jurisdiction and deprive the criminal, no matter what his crime, of the right of trial by jury. It is believed that a sentence of two years' imprisonment with hard labour is the severest sentence, short of hanging, that the law can inflict. It is much more serious than a much longer period of penal servitude.

The whole draftsmanship of the Section seems to be wrong. By the common law every offence is triable by a jury, and the right to have offences tried summarily is created by express statutory enactment. Several of those offences cited in this Bill are of a very serious character, such as I mentioned, robbery under arms. If it is desired for the purpose of this Bill to make all these offences minor offences triable by a court of summary jurisdiction, I think the Bill should state definitely that all the offences mentioned in the Schedule are hereby declared to be triable summarily, if that is what it means. Under the old Public Safety Act at least one District Justice contended that the passing of the Act did not make acts triable by summary jurisdiction which were not triable by summary jurisdiction under the law as it stood before the passing of the Act. If you take Section 4 of the Bill, a person alleged to have stolen property is found guilty unless he can prove to the satisfaction of the District Justice that the goods or valuables in his possession have come to him through the ordinary legal means. Under our obsolete law as it stands a man cannot give evidence on his own behalf. Therefore, unless he can get witnesses to prove his innocence he has no means of proving it himself.

That rule of law was done away with in England in 1898, and I understand the Government of Northern Ireland have also done away with it, so that in these places a man charged with an offence can now give evidence on his own behalf. I believe that the Attorney-General gave an undertaking that a Bill for that purpose would be introduced in the future, but seeing that time can be given for the manufacture of all sorts of oppressive statutes one would imagine that the Government could find time for the introduction of a single clause Bill which might be passed within 24 hours, enabling a prisoner to give evidence on his own behalf, particularly in cases of this kind, where he is called on to prove that he is not guilty or that goods he has are his own property.

Section 7 of the Bill makes the Minister for Finance his own judge Sub-section 3 says:—

If within such time or extended time as is mentioned in the foregoing sub-section any person proves to the satisfaction of the Minister for Finance the matters mentioned in the foregoing sub-section, the Minister for Finance shall certify in writing that the order made by the District Justice under this Section in respect of such sum of money may be discharged, and upon production of such certificate to a District Justice such District Justice shall discharge such order.

In other words, the Minister for Finance is made a judge in his own case. After an order is made by a District Justice in regard to money lodged in the bank about which there is some doubt as to the ownership, you have to prove to the Minister for Finance, and not to the Court, that that money belongs to you. I would suggest, in order to be constitutional, that the proof that the money belongs to the person who claims it should be made to the Circuit Court of the district in which the person concerned resides. The Minister who is responsible and who would otherwise claim the money should not be made his own judge in his own case. These are merely a few blemishes apart from the general trend of the Bill that suggest themselves to me.

It would seem as if the Government have conceived the Bill without paying very much attention to the Constitution. If we have a written Constitution we should be careful that it is not violated in a manner which will leave it open to the ordinary individual citizen to say, with a certain amount of reason, that there is a written Constitution but that it is utterly ignored in a number of these enactments which have been introduced on the plea of special circumstances. Special circumstances do warrant in some cases extraordinary action. In view of the fact that we have the Courts functioning, that we have police established in almost every town and village in which they were at any time established, and that we have the means of enforcing the law, I think we should have greater regard for the Constitution than we have had up to the present. It is not so much the punishment you inflict as being in a position of inflicting any punishment at all. You cannot inflict punishment by summary indictment unless you first catch the prisoner. For these reasons and for these violations, in my humble opinion, of the Constitution I am going to vote against the Bill.


In view of the very grave constitutional question raised by Senator O'Farrell I am sure the Seanad would be glad of the assistance of the Attorney-General. I think we ought to extend an invitation to him now to take his seat in the Seanad as he is within the precincts. If that is the wish of the Seanad I shall ask the Attorney-General to take his seat.



Might I just say a word in reference to the point raised by Senator O'Farrell? I regard this as a very serious matter indeed because there is little doubt as to the language of Article 72 of the Constitution. I will read it: "No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a court of summary jurisdiction." That is to say, in every case of a criminal charge, except in cases of minor offences which under the law could be tried by a court of summary jurisdiction, every accused person is entitled to a jury. I do not see anything in the preamble of this Bill or in its title which suggests that it seeks to alter the Constitution. What I wish to point out to the Attorney-General is this, that unless he introduces into this Bill, if he considers that that would be a proper way of dealing with it, a Section which would describe these offences in Part II of the Schedule as minor offences, then in my opinion the power here conferred upon District Justices to try such cases as robbery under arms without a jury is going beyond the Constitution. I would have little doubt that any person, convicted by a District Justice for a charge of that kind, and tried and sentenced to twelve months' imprisonment without a jury, would be entitled to have the proceedings set aside as being a violation of the Constitution. It is a very difficult matter to know how exactly it ought to be dealt with.

Primarily, it seems to be a point of order for the Chairman, that is to say, to rule whether this particular provision to which Senator O'Farrell has called attention is or is not a breach of the Constitution, because if he was of opinion that it was a breach of the Constitution it might be his duty, if called upon to rule it as a matter of order, to say that being a breach of the Constitution it was outside the scope of the Bill, because the Bill does not purport to affect the Constitution or to alter it in any way. I do not like doing that until some definite understanding has been arrived at between the Speaker of the Dáil and myself as regards our position in this matter. This Bill has passed through the Dáil and I do not know whether this point which Senator O'Farrell is making was made there or not, but I must assume that the Speaker considered these various Sections as the Bill went along, and I must assume that if the Speaker was of the opinion that the Section violated the Constitution, he would have called the attention of the Dáil to it. Being in ignorance of what happened. I am not going to deal with this as a matter of order in this particular case. I would seriously urge the Attorney-General to consider this matter. It might be possible, as I have suggested, to remedy the difficulty by prescribing in the Section that these offences in Part II are minor offences. Whether that can be done consistently with the character of the offences is another matter, but unless there is some provision of that kind put into the Bill it seems to me that in giving power to the District Justice to try charges of this kind without a jury, and to impose a sentence of twelve months' imprisonment, this Bill over-steps the expressed language of Article 72 of the Constitution. For that reason, I think it would be important to have the views of the Attorney-General, because I am sure he must have considered this point.

No doubt Article 72 of the Constitution does raise difficulties in this matter. That Article was before the draftsman when preparing the Section of the Bill, and the view that was before his mind was that it is impossible to say that a particular offence by name is a major or minor offence in all cases, because it is very often a matter of degree. The idea of this division here in the Section was, that if the District Justice considered the matter, in the degree in which it occurred in the particular circumstances, was a matter not so grave that he should send it on for trial, then he should be at liberty to deal with it, having first decided that it was a lesser degree of a particular offence, and that he should deal with it himself summarily.


There is no provision like that in the Bill.

I was going to refer to the Courts of Justice Bill, to that Section on which you had an amendment here. There the words occur: "the Justice if he shall be of opinion that the offence is a minor offence."


I do not find any such words in this Bill.

It would be better to have here a ruling to provide that the Justice should expressly decide that the facts constituted a minor offence. It would have this advantage: that an appeal would lie from that decision. That would, perhaps, meet the position.


The difficulty I was in was that under this Sub-section (2) the Justice could himself impose the penalty of 18 months' imprisonment with hard labour. It is not easy to say that this is a minor offence.

There was an examination made of the penalties that would be imposed by a District Justice. I did not know that I should be dealing with this matter or I should have had the material here. I did cause an examination to be made, and I know that there have been a number of cases in which a court of Petty Sessions could impose a sentence up to two years by statute. Consequently we determined that punishment alone even up to a period of two years would not determine whether the offence were a minor or a major one.


I think that an amendment "provided that before disposing summarily of any offence contained in Part 2 of the Schedule the district justice shall be satisfied that under the circumstances it could be disposed of as a minor offence and so certify and then give an appeal from that," or something like that would suit.

I will recommend something like that to the Minister. I am sure he will accept it.

Before the Attorney-General adopts the suggestion from the Cathaoirleach, I would like to give him an opportunity of considering the wording of Article 72 of the Constitution. It defines a minor offence as a minor offence triable by law under summary jurisdiction.


I had this point in mind, but if this Bill passes it becomes law. I do not think it could mean "heretofore triable by law."

Surely you are altering the Constitution by this Act?


No, as long as you have a law which enacts that a particular thing is a minor offence, then you keep within the Constitution.

With great respect I would ask the Attorney-General to consider that. Might I also refer to a question asked by Senator O'Farrell under Section 4? Section 4, perhaps, is intended to give the prisoner the right of giving evidence. It presumes, I think, that he may give evidence. Ought it not be made clear that that is so? Otherwise there may be an amendment, introduced in Committee, giving a prisoner, accused of an offence, the right of giving evidence on his own behalf.

That Section is copied from the Dublin Police Act of 1846. It is a very useful provision, and it never extended outside Dublin. I will look into it and see. As regards the question of the Prisoners Evidence Act, it is not so simple as Senator O'Farrell seems to think to put through a One-Section Act. There is a Criminal Evidence Act in England which was passed in the year 1898. I have at present a recently published volume devoted to that Act. I am having examined the Act with a view to see what modifications are required, because it is said to be badly drafted.

All I wanted was to be clear that under this Section the accused would have that right.


The Attorney-General will consult with his colleagues, and on the Committee Stage would be prepared to tell us what they proposed to do.

Question put: "That the Bill be read a Second Time."
The Seanad divided:—Tá, 20; Níl, 6.

  • William Barrington.
  • Thomas Westropp Bennett.
  • Samuel L. Brown.
  • Richard A. Butler.
  • Mrs. Eileen Costello.
  • Dowager Countess of Desart.
  • Sir T. Grattan Esmonde.
  • Sir J.P. Griffith.
  • Benjamin Haughton.
  • Marquess of Headfort.
  • C. J. Irwin.
  • Andrew Jameson.
  • Sir John Keane.
  • Joseph C. Love.
  • Earl of Mayo.
  • George Nesbitt.
  • Bernard O'Rourke.
  • Mrs. J. Wyse Power.
  • Earl of Wicklow.
  • William Butler Yeats.


  • James Green Douglas.
  • J. C. Dowdall.
  • Thomas Foran.
  • Colonel M. Moore.
  • John Thomas O'Farrell.
  • William O'Sullivan.
Motion declared carried.