Juries (Protection) Bill, 1929—Third Stage (Resumed).
The Seanad went into Committee and resumed consideration of the Juries (Protection) Bill.
I move amendment 30:
Section 6, sub-section (3). Before sub-section (3) to insert a new sub-section as follows:—
"(3) Whenever a person charged in the Central Criminal Court or in the Circuit Court with any crime or offence refuses to recognise the court or refuses to recognise the authority or jurisdiction of the court or does any act which in the opinion of the judge is equivalent to a refusal to recognise the court or the authority or jurisdiction thereof the judge shall enter a plea of not guilty."
What happened immediately before the adjournment has, perhaps, altered my attitude and that of some members. In regard to this amendment I suggest that it is an improvement on the Bill. The Minister and myself have been in many courts where the performance has been gone through of persons not recognising the court. There were then trials and inquisitions to find out whether the person was mute of malice or by the visitation of God. In the old days he was pressed, and here is the old phrase. As much weight was put on him as he could bear, and more, so that he was crushed into making a plea. In cases in which I was concerned, when a man said he refused to recognise the jurisdiction of the court, the judge entered a plea of not guilty for him and went on with the trial. I think it would be injurious to the prestige of the courts solemnly to go and sentence a man to six months' imprisonment for not recognising the court, and later to go on with his trial. I submit to the House for their favourable consideration that in cases like this what ought to be done is what was done before. If a man says from the dock: "I do not recognise your authority," then let the judge enter a plea of not guilty for him and go on with the trial. That is the meaning of my amendment, and I think it is a reasonable one.
It will put an end to all this business of having a special investigation as to what punishment ought to be inflicted upon a prisoner for the offence he commits behind the bar in the dock. I submit the amendment to the good sense of the House. What I am suggesting in this amendment was done in several cases in which I was concerned. Immediately after the civil war there were a number of trials in Green Street Courthouse. Sir Thomas Lopdell O'Shaughnessy, a man well known to Senators, who seemed to be terribly violent in his language, did not enforce the Act, an Act which was passed by the Oireachtas and which then provided that Republicans might be flogged. He imposed a sentence in one case of thirty years' imprisonment, ten years for the offence on which the prisoner was charged and twenty years for impertinence.
I was in the case and I know. The man in the dock got ten years for the offence and twenty years for impertinence.
That case was referred to before and I took the trouble of looking up the files. The file shows that the man got ten years altogether.
I was counsel in the case and I know.
I saw the official record.
He got ten years for the offence, and then he said that he might be sitting in judgment upon the judge. The judge said that, instead of making the sentences run concurrently, three sentences of ten years each, he would make them run consecutively. He gave the lash to no man. What that judge used do, when a man said that he refused to recognise the court, was to order that a plea of not guilty be entered for him and to go on with the trial. I thought at the time that that was a sensible thing to do, and I am of the same opinion still. Without any further comment I put the amendment to the Seanad for consideration.
Cathaoirleach
I take it that the Senator's object is to delete the sub-section in the Bill and to substitute his amendment for the present sub-section?
Two things can happen under the sub-section in the Bill. If a man stands mute of malice, the old procedure is done away with, and a jury is empanelled. The judge then decides whether the man is mute of malice or by the visitation of God. If the jury finds that he is mute of malice, a plea of not guilty is entered and the trial is proceded with. A plea of not guilty is also entered if he refuses to recognise the court. If he refuses to recognise the court he renders himself liable to a term of imprisonment, the term of imprisonment not to be more than six months. It is within the discretion of the court to say it may be only until the rising of the court, but the judge has the discretion to sentence him to a term of imprisonment not exceeding six months. There are two courses open to the prisoner. He may plead guilty or not guilty. In fact, there are three courses open to him. He may plead guilty, he may remain completely silent, and he may insult the court by declining to recognise the authority of the court. If he does that I submit that he should be punished for it, because the authority and standing of our courts must be recognised by every citizen of the State. Our courts have been set up by the authority of the Oireachtas, and they operate under the authority of the Dáil and Seanad. They are the courts which have been set up by the people of this State, and they must be recognised by every person who comes before them.
In answer to the Minister may I submit that you may go too far in trying to uphold your dignity. You can make yourself a little ridiculous if you are always thinking about your dignity. I think that what the old Recorder, Sir Thomas O'Shaughnessy, used to do was the best course to follow. When a man came before him and said that he refused to recognise the court he ruled out all this dignity and ordered that a plea of not guilty be entered for him and the trial proceeded with. If that course is followed it will save a lot of time and inconvenience. It would also save all this parade that we know takes place. It would save all the parade of trying a man for not recognising the court and then of sentencing him to a period of six months' imprisonment. I put it to the Minister that it would conduce more to the dignity of the court if all this parade in trying a man and sentencing him to six months' imprisonment were left out. I suggest the proper course to follow is to enter a plea of not guilty and proceed with the trial. Otherwise the time of the court will be wasted as well as that of public officials and others who are compelled to attend the court.
What time will be wasted?
The valuable time of the people who are there—the judge, the officials of the court and of everybody else who have to be there.
Suppose the judge puts the prisoner forward for sentence for not recognising the court there can be speeches and the parade of a regular state trial as to whether the prisoner is to get six months or less. The proper thing to do is to enter a plea of not guilty and proceed with the trial.
I wonder if the Minister would reconsider this part of the Bill. There is a great deal to be said for what Senator Comyn says. After all, a man who is perfectly honestly opposed to the present régime in this country, when he is charged with a crime, may say respectfully to the court when he is asked to plead: "I do not recognise the Court." It depends, of course, a good deal on the way in which that is said. Of itself, it is not an insult to the court. The man is merely telling the court that he does not recognise the tribunal. I think that perhaps the Minister would make the Bill more easily acceptable to us if he would reconsider this part of the section.
I take it the intention is that the discussion should be general in regard to this part of the sub-section inasmuch as several amendments down to it seek to effect the same purpose. I am quite prepared to agree that gross disrespect should be followed by some penalty. I had thought that, under the law as it is, the judge had power to punish for contempt of court. I take it that gross disrespect of the court is, in effect, contempt of court. Under the sub-section as it stands refusal to recognise the court is immediately followed by a sentence not exceeding six months. As Senator Brown has said, this may be done by a man from motives of the highest sincerity and conviction. He is not even grossly disrespectful to the court. He recognises that the court exists, and if he recognised the State he would be perfectly respectful to the court. He states, in fact, that he does not recognise the court. That results from a certain attitude that he adopts towards the State. I submit that there should be a habitation in any country for any individual who does not do overt acts of antagonism to the State or the social order. Mere refusal on the part of an individual to recognise the authority of the State, the State as it is represented by the courts, unless that is accompanied by overt acts, should not, in my opinion, be followed by punishment.
As I said on the Second Reading of the Bill, you have here the possibility for the kind of action that has been well known throughout history, of people who, even from religious convictions, will in some cases refuse to recognise the authority placed over them. A person of that kind may state that fact to the court with perfect respect, but under the sub-section as it stands such a person is bound to suffer a penalty. I plead that an offence of that kind has nothing whatever to do with the purposes of this Bill. It is entirely foreign to the purpose of the Bill as explained by the Minister. There is no question of the protection of jurymen in this. You are making a new offence. You may say that it is undesirable for a man to refuse to recognise the authority of the court. There is no gross disrespect if he merely states that he refuses to recognise the authority of the court. Let that be noted, but surely no punishment should follow. I think that whatever amendment is best suited, in substitution for that particular portion of the section, ought to be accepted by the Seanad, and that we should not place on the judge this imperative order that he must sentence an accused person if he states that he does not recognise the court. I hope the House will agree to the suggestion that has been made by Senator Brown, even though the present amendment does not confine itself to that.
I am not sure which of the amendments would be best suited to meet the object that I and other Senators have in view. What I suggest is that the Minister would agree that the matter might be left over and considered on Report.
My view is very firm on this. Persons who have a conscientious objection to recognise the jurisdiction of the court can remain silent, but to deliberately stand up and say "We refuse to recognise the court" is undoubtedly flouting the authority of the court. I submit that such a thing as that should not be recognised or allowed. As to the amount of punishment that is inflicted, of course that would depend on the manner in which the thing is done. If it is done in a certain fashion, then the punishment will undoubtedly be very small, but if done in a fashion which is very extreme the punishment naturally will be more severe.
The main point seems to me to be that what we want to do is to make it as difficult as possible for persons to use methods of violence in showing their objection to the authority of the State. If there are people, to my mind foolish people, who believe this country is not independent, and who simply confine themselves to saying: "I cannot recognise this court," I think it is foolish to make that of itself a punishable offence. Of course, contempt of court can be dealt with by the judge. It seems to me it should be possible in this amendment to provide definitely for genuine disrespect of court, but it should not be an offence simply to say: "I do not recognise the court." Again, I would say there are certain people in this country who, sincerely or insincerely—we need not argue that— say that they do not recognise the authority of the State at present. I think they are foolish and misguided, and have wrong conceptions of the State, but if they are not taking part in any active violence opposed to the State I would not make that an offence.
I think the discussion has taken an extraordinary turn. Here is one of the Houses of the Oireachtas, that frames the laws and enacts the statutes, that is the governing authority in this country, and here we have the suggestion that the repudiation of the authority of this State is going to get what is almost statutory recognition. I say if there is one offence it is necessary for this Oireachtas to make perfectly clear will not be tolerated it is challenge to the authority of the State, whether the challenge to that authority be in a polite and courteous manner or in a brutal or murderous fashion. I say the State has to recognise those who make that challenge as opponents of its authority, and must deal with them accordingly. As the Minister has pointed out, this section does not state that the judge shall impose a term of six months regardless of the manner of the challenge to the State, or the non-recognition of its authority. But to frame a law which is going to tolerate that denial of the State's authority seems to me an extraordinary view to be put forward by this House of the Oireachtas.
There is no such thing as asking that a denial of the State's authority should be sanctioned by this House. The only point is this, and it has been well put already, that when a prisoner is asked to plead he should be allowed to tell the truth in a respectful manner. If he says it in a disrespectful manner, or does anything to disrespect the court, the judge, under the ordinary law, has full power to deal with it, but my amendment only allows to be done what in fact has been done by the wisest judges up to the present. If a man says: "My opinion is such that I cannot recognise the court," then, "Very well. Sit down. Enter a plea of not guilty and go on with the trial." That is all that is intended by my amendment. If a person is disrespectful, or says or does anything that brings the court, or the authority of the court, into disrespect, there is an old law for dealing with that. I submit my amendment is doing that really. Another reason I have is in order to prevent the court from making itself ridiculous, or rather, allowing the judge the discretion to prevent his court from being made ridiculous.
May I make one other suggestion to the Minister? There is another amendment—I think it is number 34—in which failure to recognise the court is still recognised as an offence and the judge has discretion. It is not "shall" but "may." Therefore, he would have discretion if the failure to recognise the court was a respectful one and not meant as an insult. He has power under that, and the judge, with ordinary discretion, would exercise that. If it is done in a way that is an insult to the court he would have the power to deal with it.
I am thankful to Senator Brown. I accept his suggestion as to putting forward amendment 34 instead of the one I have proposed, and I hope it will be accepted.
I hope it will not. The distinction between a respectful and disrespectful refusal to recognise the court is like a distinction between giving a respectful and disrespectful pair of black eyes. The courts are there not to administer English law but the ordinary international human law. If a man declares himself the enemy of social order it would be a desirable thing that he should automatically go to jail for a few years. After doing so he might not be inclined to make such nice distinctions. People who do not recognise humanitarian or social laws are of little value to the country. People who do not want to recognise the courts here should go elsewhere. Humouring and conniving and showing a sort of sympathy with felony should not be countenanced. Anyone who does not recognise the court should be treated as an enemy. The Oireachtas makes the laws of the land, and the courts administer that law. The Oireachtas represents the nation, and the opinion of the nation has been made manifest at the elections. Anyone who says he does not recognise the court should go to jail automatically without any discretion by the judge. I hope the Seanad will not be confused. The legal confuser on the other side has attempted to do it when he makes a distinction between a respectful and a disrespectful insult.
There is not an enormous amount of difference between the section as it stands and the proposal Senator Brown has just recently put forward. The distinction is that as the section stands the judge must pass sentence though it may be only for a moment or two. It is then his discretion is exercised. He may pass sentence—the difference there is the difference between "shall" and "may"—to the rising of the court or the determination of the trial. The difference between that and that he may sentence to six months is not, to my mind, a very big difference. As far as I am concerned, I would be willing to accept the proposal, because really the principle I stand for still remains in the section, that is, the offence for the accused not to recognise the court is the main thing.
I withdraw my amendment in favour of Senator Brown's.
Amendment, by leave, withdrawn.
Amendment 34.—Section 6, sub-section (3). To delete the word "shall" in line 35 and to substitute therefor the word "may."— (Senator Dowdall).
Put and agreed to.
I move:—
Section 6, sub-section (4). To delete lines 40-54 inclusive and to insert in lieu thereof the words "proceed with the trial of such person on the charge on which he was being tried when he was so sentenced and such."
I understand that the judge has to exercise his discretion, and in the exercise of that discretion he may sentence the accused to six months' imprisonment. Then, a certain procedure shall follow. When a person is sentenced under the foregoing sub-section of the Bill the Bill says the judge shall at his discretion either direct that such a person shall suffer a term of imprisonment in regard to his non-recognition, and shall follow the sentence which he has been given in respect of the offence for which he has been charged. Under the provision of this sub-section (4) it is possible for the culprit to have a very long term of imprisonment. He may be sentenced for his non-recognition to a month. He serves that month, and before the end of the month the session is closed. Then he must come to the next session for the trial of his case, and again he refuses to recognise the court, and again he is sentenced, perhaps, to six weeks, on this occasion, or two months. Again he is required to serve his sentence for his non-recognition, and in the meantime again the session concludes. That may be repeated time after time, so that there is no limit to the punishment this particular accused person may suffer under the provisions of this section.
I do not know whether the Minister intended that should be possible, but it clearly is possible under the provisions of the section, and I think the Seanad ought not to agree to that indeterminate sentence which would follow the passing of the Bill in its present form.
Cathaoirleach
The Senator agreed with the previous amendment according to which he would be liable to be sentenced. Could not the same procedure be followed under this?
It is not an uncommon thing for a person to be tried and found guilty of two offences, the sentences to run concurrently. I think it should not be possible for this indeterminate sentence to lie over a man. If he had been tried for the original offence he would know exactly what his punishment was. He would be tried and punished at that session. In this case, as I said, the position of the prisoner is one of prolonged and perhaps perpetual imprisonment for these two offences, one of which is quite a minor one while the other may be a serious one.
The Senator seems to forget, as he reminded us a few moments ago, that this is a Juries (Protection) Bill. One of the notes of warning sounded to jurymen is when the accused says he refuses to recognise the court. This is a class of case which is dangerous to juries—a case in which a person refuses to recognise the court. That is the note of warning. Why this comes into this Bill at all is that a note of warning shall not be sounded openly and publicly in court to the jury. If it is sounded in court, and if the judge thinks that that refusal to plead is a flouting of the court and is in effect a warning to the jury that the case is one that is possibly not very safe for them to convict the prisoner on, and if the judge thinks that that will affect the fair administration of justice, he certainly should have power, I submit, to let the man serve his sentence and have the trial postponed.
I ask Senators to consider the position for one moment. A man comes forward and without disrespect says that he does not recognise the court. Now, the judge can go on with the trial. My submission is that any judge with a head on his shoulders will go on with the trial in such a case——
—and that any judge, unless he is eligible for retirement, will not send a man to jail for six weeks and that when the man came out again and refuses to recognise the court, send him to jail for three months, and when he comes up again and again refuses to recognise the court sends him in for six months. Such a judge as that would make himself ridiculous, and no judge is going to do that, because before a man becomes a judge he has to serve a rather long apprenticeship at the Bar, where a certain amount of commonsense, a dread of making himself ridiculous, is inculcated, so that there is really nothing in what the Minister says at all.
If the refusal to recognise the court is a perfectly respectful one the judge will not sentence him to any term of imprisonment. He will be tried and the case will go on. But if he outrageously and in public contempt of the court refuses to recognise it, then he will be properly sentenced, and if he comes up again on the termination of that sentence and does that contumacious act again why should he not be sentenced again? The section as it stands is perfectly right, a discretion being left to the judge.
If my amendment were accepted the section would read: "When a person is sentenced under the foregoing sub-section of this section to suffer a term of imprisonment, the judge shall proceed with the trial of such person on the charge on which he was being tried when he was so sentenced, and such person shall suffer imprisonment in accordance with such sentence as from the conclusion of and in addition to such other punishment," and so on. That will be the section if my amendment is carried. Now if you have a contumacious case you do not want to challenge that man to repeat his offence time and time again. If you set it down in the statute that it is an offence, if he commits the offence and you punish him for it, surely that is enough. But the proposition is that you should in effect challenge him to come back again and that you will say to him: "Now will you dare to do it?" If he is a man of spirit, a man of the kind that you are contemplating, he will do it because you have challenged him to do it. But we do not want to create an offence by this kind of challenge when you have already punished him for it. You have indicated a sense of wrong, that the State has suffered by his contumacious act, you have punished him for it, and I do not think that it is the practice of the law to encourage people to commit offences for which they have already been punished once. That would be the effect of the Bill as it stands.
Cathaoirleach
You propose to take the discretion from the judge?
Cathaoirleach
You want to see that when a person is sentenced under sub-section (3) the judge should then proceed with the trial.
The Senator wants to make it compulsory for the judge to proceed with the trial.
Cathaoirleach
To remove the discretion from him, in fact.
I think that Senator Comyn has answered Senator Johnson very effectively— that judges are men of experience who can be trusted. Senator Johnson implied that judges cannot be trusted. The important thing that I want to emphasise on this section is the protection of jurymen, and that this should not be a note of warning to jurymen, as I have already put it.
I did not at all intend to answer Senator Johnson. What I did intend was that if a man quite respectfully says: "I do not recognise the court," that the judge should go on with the trial.
That is what is in Senator Johnson's mind.
No, he says that no matter what the man does the judge must go on.
No, certainly not, because if a man disrespectfully deports himself in a court of justice the judge, under his inherent powers, can commit him for contempt.
The effect of the sub-section, if it were so amended, would be that the sentence for disrespect to the court, for non-recognition of the court, would be in addition to any sentence which might be inflicted upon him for the crime. He would be punished for the offence, and that would finish it.
The trial would take place there and then, of necessity.
Amendment put.
The Committee divided: Tá, 14; Níl, 22.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- Thomas Johnson.
- Thomas Linehan.
- Seán E. MacEllin.
- Joseph O'Doherty.
- John T. O'Farrell.
- L. O'Neill.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Níl
- William Barrington.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Fanning.
- Dr. O. St. J. Gogarty.
- Right Hon. Andrew Jameson.
- Patrick W. Kenny.
- Francis MacGuinness.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Joseph O'Connor.
- M.F. O'Hanlon.
- James J. Parkinson.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
Question—"That Section 6 stand part of the Bill"—put and agreed to.
SECTION 7.
(1) Whenever, at the trial of an accused person in the Central Criminal Court or in the Circuit Court and after such accused person has pleaded "not guilty" or a plea of "not guilty" has been entered for him and before any further proceedings are had, an officer of the Gárda Síochána not below the rank of superintendent states on oath to the judge presiding at such trial that in the opinion of such officer it is necessary for the protection of the witnesses and jurors concerned in such trial that the public should be excluded from the court during such trial, the judge shall order the court to be cleared and shall not proceed with such trial until the court has been cleared in accordance with this section.
(2) When a court has been cleared under this section at the trial of an accused person the court shall be kept so cleared during such trial until the verdict of the jury has been recorded or the jury have failed to agree and have been discharged.
(3) For the purposes of this section references to the clearing of the court shall be construed as meaning the exclusion from the court of all persons whatsoever except the judge presiding at the trial then in progress, the officers of the court, the jurors sworn for such trial, the accused person and any member of the Gárda Síochána or prison warder in charge of him, the counsel and solicitors engaged in such trial, members of the Gárda Síochána on duty in the court, other officers of the State present in their official capacity, the witness (if any) who is for the time being giving evidence, barristers bona fide practising as such in Saorstát Eireann and, subject to the provisions of the three next following sub-sections of this section, representatives of the press.
(4) In this section the expression "representative of the press" means a person who is regularly engaged or employed in journalism and is duly accredited by the editor of a bona fide newspaper published not less often than once a week or by the manager of a bona fide news agency or press association as a representative of such newspaper or a reporter of legal proceedings for such newspaper, news agency, or press association.
(5) Whenever immediately after the clearing of a court under this section an officer of the Gárda Síochána not below the rank of superintendent produces to the judge presiding in such court one or more then recent issue or issues of a particular newspaper or a document or documents appearing and purporting to be such issue or issues and the judge is of opinion that any articles or other matter contained in such issue or document or any of such issues or documents is calculated to intimidate jurors or witnesses either generally or in the particular trial then in progress or to prevent or discourage such jurors from performing their duty according to their oath without fear or favour or to prevent or discourage such witnesses from giving their evidence freely, fully and truthfully, the judge shall forthwith order that all persons claiming to be representatives of or reporters for such newspaper be excluded from the court so long as such court continues to be cleared under this section, and thereupon while such court continues to be so cleared no person shall be admitted to or be present in such court on the ground that he is a representative of or a reporter for such newspaper.
(6) Whenever at any time while a court is cleared under this section an officer of the Gárda Síochána not below the rank of superintendent states on oath to the judge presiding in such court that a particular person then claiming the right to be admitted to or to remain in such court as a representative of the Press is known to be or is suspected of being concerned or associated in acts of intimidation of jurors or witnesses or acts of a treasonable or seditious character or is known generally to associate with persons concerned or suspected of being concerned in any such acts the judge shall forthwith order such person to be excluded from such court while it remains so cleared and thereupon such person shall be excluded from such court accordingly.
(7) Nothing in this section shall be construed to take away or derogate from any power or duty vested in or imposed on a judge by statute or otherwise to clear his court or to exclude any persons or person therefrom, and the powers and duties conferred or imposed by this section shall be in addition to and not in substitution for such first-mentioned powers and duties.
I move:—
Section 7, sub-section (1). To delete all after the word "had" in line 1 down to the end of the sub-section and to substitute therefor the words "the judge presiding at such trial may, on hearing such evidence as may be tendered before him that it is necessary for the protection of witness and jurors concerned in such trial that the public should be excluded from the court during such trial, order the court to be cleared."
This is an amendment which I hope will meet with the approval of the House. My object in moving it is this, that I think the judge ought to be in complete control of his own court, and the section as it stands tends to militarise the court. I think the best thing I can do is to read the sub-section as it stands and then to read my amendment. The sub-section states: "Whenever, at the trial of an accused person in the Central Criminal Court or in the Circuit Court and after such accused person has pleaded "not guilty" or a plea of "not guilty" has been entered for him and before any further proceedings are had, an officer of the Gárda Síochána not below the rank of superintendent states on oath to the judge presiding at such trial that in the opinion of such officer it is necessary for the protection of the witnesses and jurors concerned in such trial that the public should be excluded from the court during such trial, the judge shall order the court to be cleared and shall not proceed with such trial until the court has been cleared in accordance with this section."
That takes the control of the court out of the hands of the judge and puts it into the hands of a police officer. The police officer may be perfectly right in his judgment, and I have no doubt that in every case, if the police officer says to the judge, "It is desirable, in my opinion, to clear the court," the judge will do so. But you should leave the power in the hands of the judge. If the police officer can say, "I want this court cleared," and if there is no discretion left to the judge at all, you make the judge a sort of amanuensis of the police officer. My amendment is intended to leave the authority in the hands of the judge, knowing that he will exercise it in exactly the same way as the police officer would exercise his discretion. Sometimes the superintendent might not be there, but under my amendment if any police officer comes up and says it is necessary that the court shall be cleared, the judge has a discretion, and of course if a police officer says that to the judge the judge will exercise his discretion. As the Minister has said, judges are supposed to be reasonable men. They are the persons entrusted by you with public order, and any judge who was worthy of his position would, of course, have the most sensitive regard for public order and for the protection of the people.
Another matter is also involved. It is in the public interest that the authority of the judge should be respected, not merely in essentials but in details. That is the reason why there is so much parade about the courts; it is not for the sake of the judge but for the sake of the people—to give as much authority as you possibly can to the judge and to exalt his office for your own protection and for the protection of the people. Therefore I think that my amendment is, from a constitutional point of view and from the point of view of the ultimate object to be attained, preferable to the Bill as it stands. My only object in moving the amendment is to keep inviolate the position of the judge and the dignity of the tribunal, because if a police officer can order the judge about in an imperative way the dignity of your court is gone. I do not put this forward in any party spirit at all. I simply put it forward as a Senator addressing Senators on a matter which is peculiarly within my own knowledge, and I do say that my amendment is preferable to the section as it stands.
It is refreshing to hear the Senator so exercised in maintaining the authority and the dignity of the judge, but it is not proposed in the Bill that the police officer should usurp the authority of the judge. If I might put it in another way, I would say that the dignity and the authority of the judge are greatly preserved by the fact that he is not to act as a detective, looking after the characters on the public benches in the court or looking after the characters of the charwomen. It is eminently necessary that somebody should be aware of the possible hostility of people trooping into the court to upset it. You cannot have a judge acquainted with police work, and in order to preserve the authority and the dignity of the court this business should naturally be relegated to the police. You might as well ask the judge to fix the wages of the people who clean the court.
My friend, Senator Gogarty, brilliant though he is, with all the laziness attached to brilliant men, has not read my amendment.
My amendment provides that the judge may do this on hearing what the officer has to say. I press it on the Seanad, but I do not intend to say any more on it.
What I think Senator Comyn's amendment would lead to would be a trial in the court to start with, with all sorts of evidence being called. For instance, suppose this officer sees a well-known criminal who he knows is there for the purpose of spotting who was on the jury, according to the Senator's amendment he has got to come forward, and instead of his statement being taken that in his opinion there is danger to the jury and to witnesses if the court is not cleared, he has to say: "I know that such-and-such an individual is in the court, and he is a dangerous person to be present when this case is being tried." I quite agree with Senator Gogarty that that would not be at all a dignified or a judicious thing to do. It would certainly be far better that the superintendent, whose business it is to know, should state that in his opinion it is wise that the court should be cleared. Surely the Bill as it stands is far better than to have a police officer giving evidence and giving the names of persons, to have the whole matter argued out in court when a number of persons in the court might be interested in it whose characters might be injured. It seems to me that far more damage would be done to the prestige of the court by accepting this amendment than by leaving the Bill as it is.
I want to say, as a matter of personal explanation, that it would be far from me to make any suggestion of the kind that is apparently in Senator Jameson's mind. My amendment states that, the judge... may, on hearing such evidence as may be tendered before him——
In other words, that he will have a trial.
I do not want to take up too much time, but I have seen cases where a superintendent or an officer of the court has been a little hilarious, and judges have winked at a great many things. I would leave it to the discretion of the judge.
I have an amendment which seeks to secure the same thing in a rather simpler manner. It is simply to insert before the word "shall" in line 6 "if he is satisfied that such action is necessary." That does not suggest the taking of evidence, but that he would act on the oath of the superintendent. That would still leave the judge master of the court and not the superintendent of the police.
I withdraw my amendment in favour of Senator Johnson's.
Amendment, by leave, withdrawn.
Senator Johnson's amendment is, of course, not at all as objectionable as Senator Comyn's, because Senator Comyn's would be actually unworkable. I will not go into that now. Senator Johnson's amendment does not postulate a trial. If it would satisfy scruples in the minds of some parties in this House I would be willing to have the word "may" inserted for "shall"; that is, the judge may order the court to be cleared on the mere statement of the superintendent of the Guards. But I would have to be careful of the wording. I do not think that the Senator's words would quite suit. I would suggest "may order the court to be cleared, and in that case shall not proceed with such trial until the court has been cleared."
Amendment, as amended, put and agreed to.
I move:—
Section 7, sub-section (1). To delete the word "shall" in lines 6 and 7 and to substitute therefor the word "may."
I recognise now that the Minister is going to give some sort of authority to the judge to make a decision and that does away with the necessity for my amendment.
Cathaoirleach
The amendment is practically accepted, Senator.
I suppose that takes my wind away.
Cathaoirleach
I move:—
Section 7, sub-section (1). To add at the end of the sub-section the words: "Provided that nothing in this section shall operate to exclude members of the legal profession or representatives of the Press actually engaged in the practice of their profession."
I think that this amendment will commend itself to the Seanad, and I think that it needs only to be stated in order to be accepted. These men are actually engaged in the practice of their professions, and I think that they, as reputable men——
Is that not provided for in sub-sections (3) and (4) of the same section?
No, not so well. Here is what will happen. A case comes on for trial. The solicitor and counsel engaged in the case are present, but it is quite impossible for anybody to tell them when the next case is coming on. Barristers have their library in Dublin Castle, but the trials are held in Green Street, which is about twenty minutes drive from the Castle. They will not be informed when the next case is likely to come on. They must be in attendance, and it is necessary that they should be allowed to go into the court. Now, up to the present, in no court of justice in this land has a practising barrister been excluded.
They are not excluded by this Bill.
Then let this go in. Why not accept my amendment?
Cathaoirleach
It is not necessary, Senator.
I submit that it is necessary. If the Minister will show me where it is covered I will withdraw the amendment.
Sub-section (3) says "barristers bona-fide practising as such."
Cathaoirleach
I submit that it does not. My amendment says "Provided that nothing in this section shall operate to exclude members of the legal profession or representatives of the Press actually engaged in the practice of their profession."
Sub-sections (4) and (5) cover the Press.
I want representatives of the Press practising their profession to be in the same position as barristers.
It is there, in line 24. It is even more liberal than your words.
I do not want it to be more liberal than my amendment requires it to be.
Representatives of the Press are in that sub-section. You are limiting it.
But there is a snag in that, and I want to remove that snag. I want to give barristers bona fide practising their profession the right to be in court, and I want to give members of the Press practising their profession the right to be there, without any snag, afterthought or limitation whatever.
I maintain that Senator Comyn has actually in both cases quoted the Bill.
Read sub-sections (4) and (5).
"Barristers bona fide practising as such in Saorstát Eireann."
If the requirements contained in Senator Comyn's amendment are, in the opinion of some, quite covered, but if Senator Comyn has any doubt in his mind as to whether they are or not, I suggest that Senator Comyn's amendment should stand.
And leave the Press and the legal profession in the same position. What has the Minister to say to that?
This Bill fully covers it. It is carefully and correctly drafted. It covers all reputable members of the Press, and I ask the Seanad to reject the amendment.
I think we ought to consider sub-section (5) before voting on this.
Cathaoirleach
I am afraid we cannot, because we must deal with the amendment.
This is very important, if I may say so, because it is really to take the place of sub-sections (3) (4) and (5). Therefore I think it would be reasonable to consider parts of the Bill now which may be disposed of before we consider them at all. I think the House must see that as far as barristers are concerned the words "barristers bona fide practising as such in Saorstát Eireann" are allowed by the Bill to be present just as they would be allowed under the Senator's proposal. But when we come to the Press, for which he is putting forward such a great claim, we do find in sub-section (5) very distinct differences, because the individual who is to give evidence is "an officer of the Gárda Síochána not below the rank of superintendent," who "produces to the judge presiding in such court one or more then recent issue or issues of a particular newspaper or document or documents appearing and purporting to be such issue or issues and the judge is of opinion that any articles or other matter contained in such issue or document or any of such issues or documents is calculated to intimidate jurors or witnesses either generally or in the particular trial then in progress," and so on, and he has to show that representatives of these organs should be barred. Now, if we take the Senator's amendment we do away with the whole of the gist of that sub-section, and it would be quite foolish for the Seanad to accept this amendment and then try to proceed to pass sub-section (5) afterwards.
I quite admit that sub-section (5) would go, and I intend that it should go. I intend to place the Press and the Bar in an identical position—genuine members of the journalistic and the legal professions—and to give them the same rights.
If Senator Comyn would alter his amendment to read "recognised representatives of the Press."
Cathaoirleach
I cannot allow Senator Comyn to proceed further. He has already made three speeches.
I would ask the House as earnestly as I can to reject this amendment. I have already referred to a great number of newspaper articles which were an incitement to the murder of jurymen, and to articles which approved of the murder of jurymen. Are the representatives of newspapers of that kind, and persons who actually approve of the writing of such articles, to be present in court?
It is as plain as a pikestaff that this is only another method of trying to defeat the purposes of this Bill. While barristers and solicitors are definitely recognised members of a profession, pressmen are not. A good many people take up journalism for the purpose of being able to enter certain places and sometimes to evade certain responsibilities. The story is told that on one occasion Bernard Shaw attended a religious function, and when the collection box went round he simply said: "Press." In that way you could nearly get in and out of any situation.
Amendment put.
The Committee divided: Tá, 5; Níl, 27.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Seán E. MacEllin.
- Joseph O'Doherty.
- Séumas Robinson.
Níl
- William Barrington.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- William Cummins.
- The Countess of Desart.
- James G. Douglas.
- Michael Duffy.
- Michael Fanning.
- Thomas Farren.
- Thomas Foran.
- Dr. O. St. J. Gogarty.
- Right Hon. Andrew Jameson.
- Thomas Johnson.
- Patrick W. Kenny.
- Thomas Linehan.
- James MacKean.
- Seán Milroy.
- James Moran.
- Joseph O'Connor.
- L. O'Neill.
- James J. Parkinson.
- Siobhán Bean an Phaoraigh.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
On behalf of Senator Dowdall, I move amendment 47:
Section 7, sub-section (2). To delete the word "shall" in line 10 and to substitute therefor the word "may."
The sub-section provides that, when a court is being cleared under this section at the trial of an accused person, it shall be kept so cleared during such trial and until the verdict of the jury has been recorded or the jury have failed to agree and have been discharged. Therefore, the sub-section makes it mandatory on the judge. Once the court is cleared it has to be kept cleared for the whole day. There may be one objectionable person in the court. The superintendent of the Guards may tell the judge that there is an objectionable person in the court. When he does that the judge must order the court to be cleared. Therefore, what happens is that everyone in the court has to leave. Even though that objectionable person may leave the precincts of the court or the town it is still imperative on the judge, under the sub-section as it stands, to keep the court closed. Judges and legal men generally have a tremendous objection to the closing of a court. The object of the amendment is to leave a discretion to the judge to open the court whenever he likes. I do not think there can be any serious objection to that.
I wonder could we have some information as to the present position in the courts? Is there any authority to remove from the court any person, apart from any special representations by the superintendent of the Guards? If a person is in the court and is considered to be objectionable, is there any authority with the judge to remove that person and to leave the court open otherwise?
No. At present the only cases that I know of in which the judge can clear the court are in certain cases of indecency. There are certain cases in which the judge may make an ad misericordiam appeal to people to leave the court when certain types of cases are being heard, but in such cases the judge has no power to order people to go out if they will not go.
People can be put out for disorderly conduct.
If a person does not commit contempt of court the judge has no power to order him out.
What occurs to me is that an individual who might be objectionable, and rightly so, to the superintendent of the Guards, might enter the court. Then it would be incumbent on the superintendent of the Guards to make his application to have the court cleared, and the court must be cleared of all the public. Perhaps I should say it must be cleared of all the public if that individual has to be cleared out. Once it is cleared of all the public nobody may return, so that this machinery to exclude one person must be set in operation and the effect of it is to automatically exclude all the public. I do not think that is the intention, and I think it is an unfortunate result.
I think the amendment moved ought to be passed. That would allow the public, minus that individual, to come back.
There is a later section in the Bill which says that any objectionable person may be prevented from touching the precincts of the court. Once he is out of the court he can be effectively excluded.
The court would only be cleared where the jury trying the case or the witnesses would be in danger by the court not being cleared. That is the only case in which the Guard could state on oath it would be necessary that, for the protection of the jurymen and witnesses, the court should be cleared. Probably the Guard knows some of the men, but he may not know all of them. He may not know all the spotters, if I may use what is probably a slang expression, sent out to find out who the jurymen were. Some of them may be known to the Guards and others may not. If that type of man is there, there would be danger as regards the witnesses and juries. Then the judge would give an order to clear the court. He does that on the statement of the Guard when he considers that for the protection of the life and liberty of jurymen and witnesses that should be done. Though the court is cleared, the journalists are in court to report the trial, which will be published to the public. There is nothing like secrecy about it. The ordinary person does not go to the courts. The people who do, speaking generally, are those with a morbid interest in crime. The number of persons who go to court as serious students of criminality are extremely few.
Cathaoirleach
You have already spoken, Senator.
I asked a question. Are you ruling me out?
Cathaoirleach
Then I shall have to make my statement on another amendment.
Amendment put and declared lost.
I move:—
Section 7, sub-section (3). After the word "court" in line 20 to insert the words "members of the Oireachtas."
I had the intention of not moving this amendment, but in view of the attitude on the last amendment I think I must. The Minister has indicated that it is only a certain class of people with morbid tastes and interests who attend the court. That may be true in regard to normal crime, but not in regard to the kind of case in question, with a certain political significance. People interested in State trials of this kind are not morbid people. I think it is desirable that some representative of the public, somebody who is not interested in the case on one side or the other but as representing the public, should have access to the court in such cases. We know how important it is that such a case should be tried and openly proceeded with. The clearing of the court suggests secrecy of trial. While it is true that barristers may be present, it is presumed that they are there as barristers. It is true also that representatives of the Press who are bona fide may be present, but there is no assurance that the public aspect of the case, what I might call the constitutional aspect of the case, is going to be recorded and noted by the Press. It probably would, but there is no assurance of that. My point is that there should be some gesture or indication that some representative of the public should be free to attend the court. I have indicated members of the Oireachtas as being probably the most truly symbolic of the public, and this right or privilege of attending the court should be extended to them.
As far as the public are concerned they are fully represented. Barristers and members of the Press can attend the court. I am afraid it is not clear that members of the Oireachtas can at all times be completely trusted.
Do I understand the Minister is rejecting an amendment which is intended to provide that members of the legislature shall be entitled to enter freely into any court in the land? Is that the position?
Members of the legislature are not trusted to be admitted into the courts of justice. I think it would be unworthy of the Seanad to say anything on that question. If Senators vote against Senator Johnson's amendment they vote their own condemnation.
I ask it to be noted that barristers, bona fide practising, are free to attend the courts, and newspaper representatives regularly engaged or employed in journalism are free to attend the courts. Are they all, at any time, to be trusted more than members of the Oireachtas?
Amendment put.
The Committee divided: Tá, 13; Níl, 20.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- Thomas Johnson.
- Thomas Linehan.
- Seán E. MacEllin.
- Joseph O'Doherty.
- L. O'Neill.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Níl
- William Barrington.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Fanning.
- Dr. O. St. J. Gogarty.
- P.J. Hooper.
- Right Hon. Andrew Jameson.
- Patrick W. Kenny.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Joseph O'Connor.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
The Seanad went out of Committee.
Progress reported.
