I move amendment 1:—Section 5, to delete the section.
This section deals with and restricts the liberty given to a person accused of a criminal charge to appeal, and it restricts the liberty of the judges in dealing with that appeal. The Minister, speaking on the Second Reading of the Bill, stressed that it was a novel thing in our administration of justice to have an appeal in a criminal case except in cases referred to as Crown cases reserved. When it is remembered that on the merest grounds, in the case of civil action of one sort or another, it is open to a litigant to appeal, I think it peculiar that the Minister for Justice should stress the point that a person convicted of a criminal charge should be denied the liberty of having his case partly reheard or reviewed by another tribunal. I think that, when this measure was going through the Dáil, the Minister left a portion of this question to the free vote of the House. The two operative sections are subsections (a) and (b). Sub-section (a) puts on judges, who have to decide that some part of the trial was informal, the onus of convicting that person, though in their view the informality was not material, in other words, the admission of some evidence which they thought should not have been admitted. The judges are in the position of having to attach a certain amount of materiality to a piece of evidence without having seen the witnesses or without knowing the circumstances that prevailed when that piece of evidence was submitted, and vice versa. They have to take on themselves to judge what effect that evidence would have on the minds of a jury. I submit that is not the function of a judge. If there is an informality I think the safer and the better course to pursue is that the conviction be quashed. Under the section, where an informality of such a kind has occurred in the view of the court of appeal it vitiates the whole proceedings, and the judges have the power to order a re-trial. As I said on Second Reading, in my view when a man goes into the dock for a second time and it is known that he has already been convicted by a jury, he cannot possibly get an absolutely fair trial. It must of necessity weigh with the second jury that this man has already been convicted.
Lawyers are very conservative in those matters. It is well within the recollection of most of us that the establishment of the Court of Criminal Appeal in England was very much opposed by prominent judges and barristers at the time. It enabled an accused person to give evidence on his own behalf. I remember reading in the memoirs of Sir Henry Hawkins the admission that he himself was very much opposed to permission being given to an accused person to give evidence on his own behalf, but after the Act had been passed, and the first time it arose in his own court that an accused person took advantage of the permission, he admitted that up to that point he had been very much prejudiced against the accused whereas upon hearing his evidence he readily admitted that the man completely changed his outlook on the case.
Without stressing the matter unduly a number of prominent cases have occurred in our own time. It was the Beck case that really caused the House of Commons to establish the Court of Criminal Appeal at all, because it was conclusively proved that the man had been wrongly convicted and wrongly imprisoned. In the Maybrick case, the late Lord Russell of Killowen who defended the accused, always seemed to have some doubt as to the validity of the evidence and as to its justifying a conviction. Then there is the case at present under consideration, the Slater case. All this goes to show that in all good faith serious cases have occurred where accused persons have been convicted by juries, and those who are well competent to judge have really serious doubts about the validity of the convictions. I submit that a person accused of a criminal charge, whose liberty is imperilled, should not be in any worse position than a person seeking damages in the civil courts.
