Juries (Protection) Bill, 1929—Third Stage (Resumed).

The Seanad went into Committee.

Cathaoirleach

The debate on this Bill is being resumed on Amendment 13 in the name of Senator Colonel Moore.

I move amendment 13.

Section 3. To add at the end of the section a new sub-section as follows:—

"(3) Every accused person shall be entitled as of right to apply to and may, if the Judge is satisfied, obtain from any Judge of the High Court or Supreme Court an order directed to the summoning officer to supply him or his solicitor with a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn."

Cathaoirleach

Before the Senator proceeds to speak to his amendment, might I point out that in Amendments 13, 14, 15 and 16 practically the same principle is involved. That being the case, perhaps Senators in whose names these amendments stand would agree to take a discussion on them on the particular one now before the House. It would convenience everybody, I think, if that were done. The amendments are:—

14.—Section 3. To add at the end of the section a new sub-section as follows:—

"(3) Every accused person shall be entitled to apply to any Judge of the High Court or the Supreme Court for an order directed to the summoning officer to supply him or his solicitor with a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn, and shall be entitled to obtain such order unless good cause to the contrary is shown."—(Senator Robinson).

15.—Section 3. To add at the end of the section a new sub-section as follows:—

"(3) Whenever a person is to be charged in the Central Criminal Court or in the Circuit Court with any crime or offence, the prosecutor or the accused, as the case may be, shall be entitled to apply to any Judge of the High Court or the Supreme Court for an order directed to the summoning officer to supply him with a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn and shall be entitled to obtain such order unless good cause to the contrary is shown."—(Senator Johnson).

16.—Section 3. To add at the end of the section a new sub-section as follows:—

"(3) Notwithstanding anything in the foregoing the Judge at the trial of any accused person may order that a copy of the panel from which the jury is to be drawn for the trial of such accused person may be furnished to the accused person or to his solicitor at such trial."—(Senator Dowdall).

It would not be possible, I think, to come to a decision on all these amendments if they are taken together.

Cathaoirleach

The principle is the same in all of them. I think, when a decision is reached on amendment 13, I will have to rule as regards amendments 14, 15 and 16 that the question raised in them had already been decided.

In moving my amendment I wish to say that a motion similar to it has been proposed several times. If the prosecution are to have the right to have a copy of the jury list, then the object of the amendment is to secure that the accused person will be put in the same position. My amendment differs from some of the others in this way, that the accused person has to apply to the judge for an order to get the jury list. If the judge is satisfied that the accused ought to have that list then he will make an order directing that he be supplied with it. Whether that ought to be done or not is placed in the hands of the judge who will be trying the case. In that way, my amendment differs considerably from some other amendments that have been moved. If we are to judge by the result of some of the votes already taken on a somewhat similar matter, it is, I think, correct to say that there is a strong feeling in the House that it is not fair that the accused person, of all others, should be put in a worse position than the prosecution. My amendment will afford Senators who are of that opinion a chance of ensuring, by their votes, that justice be done to the accused person. If the judge thinks it right to do so he can give an order to have that list supplied to the accused person.

I think the request contained in my amendment is a reasonable one. I do not say that it will satisfy the Minister. It is not easy to satisfy him, but I think it will satisfy most reasonable people. It is only fair that the accused person should have the same right as the prosecution in this matter. It will rest with the judge to grant or to refuse the request. If the judge considers that it is a proper case for the accused person to have the list, then he will grant the application made to him. If he thinks that there are any reasons why he should not grant it, then he can refuse the order asked for. I would ask Senators to consider the large number of cases in which the judge may grant the application, cases which have no reference at all to political disputes, to murders, assassinations, threats, or anything of that sort, but in ordinary cases between one individual and another, a case, for instance, between a husband and wife. All these cases will be governed by this particular Bill. The accused persons concerned will not be able to get a list of the jury unless this amendment is passed. This amendment gives the judge power to get over that difficulty.

All these amendments are, to my mind, examples of the clumsy and dishonest litany of that policy of obstruction, subterfuge and of moral cowardice which is Fianna Fáil's characteristic, chief and only contribution to statesmanship.

Is the Senator accusing me of dishonesty and cowardice?

I said that it is implicit in all the amendments. It is dishonest to the country to pretend that this Bill is against the liberty of the subject, when it is really designed to protect the subject from those who are prone to act from murderous motives, and to protect the lives of jurymen who are prepared to vindicate liberty under the law. The Fianna Fáil Party have always appealed to the lowest and basest instincts of the people, so that we might think that their constituencies were composed of nothing but tramps and outlaws; and now they are endeavouring to continue this deception in the name of liberty. An attempt was made by Senator Colonel Moore to put the case of taking out jurymen and shooting them on a par with the case of a quarrel between a husband and wife. That is a dodge, because if the list of jurors were made available in the latter case, a precedent would be created and the list should be available also in the first case.

If the Fianna Fáil Party were honest, they would say that dastardly murderers should be punished as they deserve, and they should not attempt to facilitate murderers to get away in the dark, nor to expose jurymen to "spotters" and to assassins. I think that I am perfectly justified in saying that if they were honest and could honestly influence a clean public opinion in Ireland, they would call for lynch law for assassins; for lynch law, at least is the expression of an instantaneous though rough instinct for justice. When have these purists and advocates of a simpler life ever openly denounced murder? Instead of this we have the tacit toleration of murder on the part of Fianna Fáil, all these amendments, and all this clumsy, petulant and childish subterfuge designed to jeopardise and intimidate jurymen and to upset that very law which is the foundation of liberty the world over. The sooner this House throws out these amendments, trashy talk and parody of commonsense, the better.

I agree with the last remarks of the Senator absolutely. The trash that he has given vent to probably would require not lynch law but Gogarty law, the scalping knife or something of that kind. My amendment, No. 15, is in the same category as the other amendments which have been mentioned. I want to argue the case for my amendment on the assumption that what the Minister stated yesterday is reliable and ought to have consideration. He told us that in certain cases, or in any case in which he is satisfied that no harm could come, he would be prepared to allow the solicitor for the accused to see the jury panel.

To see the jury panel is very like inspecting the jury panel. I am asking in my amendment that the discretion should not be left wholly and solely to the Minister, but that the court—

You ask for a copy.

Yes, but not necessarily for circulation. A copy may be inspected. I would be quite satisfied if the right to inspect a copy of the panel is granted by the judge, and if we provide for that in the Act. If the prosecutor, on the one hand, or the accused on the other, is given the right to apply to the court for a copy of the panel to be placed before him while the jury is being empanelled, the accused person will know the names of the people and be able to point out whether any or how many of those persons on that panel who have been arraigned to try him are prejudiced persons and unable to do him justice. That person would then be in the position to effectively challenge a prejudiced juror or a juror whom he believed to be likely to be prejudiced. The amendment would require to be somewhat varied, so as to allow the accused person to make his case before the judge and not before the Minister, so that the judge could say whether the inspection was going to be damaging or whether the inspection was just or could be reasonably conceded to the accused. If on such an application the prosecution or the accused, as the case may be, says: "We have reason to believe that such a solicitor cannot be trusted," or "that such an accused person is associated with a criminal organisation," the judge may exercise his discretion and refuse the accused that panel. That is possible, but I am asking that in this the discretion that the Minister has claimed for himself should be transferred from the Minister to the judge. I think that case is a perfectly reasonable one—not merely reasonable but that justice demands it.

I would like to suggest that it would be a good idea if before Senator Gogarty precipitated himself hurriedly into the debate he had acquainted himself with all that transpired yesterday. I want to be as brief as possible, not so much with the view of aiding Senator Milroy as to try to concentrate on the essential points. I think it is necessary to point out to Senator Gogarty that we are trying to discriminate between the ordinary criminal, who might be termed, perhaps, in Senator Gogarty's estimation, the ordinary decent criminal ——

I never discriminated between criminals.

We were trying to discriminate between criminals yesterday. We feel that there are a good many people with the outlook of Senator Gogarty, and we feel that this classification may be very wide, and that there may be people in this Chamber who may, by a strange distortion of justice, find themselves grouped together in this classification rather hurriedly arrived at by Senator Gogarty of Fianna Fáil, Republicans and gunmen and those people he is in such a hurry to get into one category. That is a reasonable proposition from what we know of people with Senator Gogarty's type of mind. History shows that such things have happened and may happen again. Let us at least be credited with an altruistic motive in trying to protect the ordinary decent criminal, that is the ordinary blackguard who is not a political blackguard. We want the law as regards the jury system to prevail for that unhappy victim, even though we ourselves and people like us—I am using Senator Gogarty's classification—are deemed not to be worthy of open jury trial.

I never made that classification.

No one pays any attention to what Senator Gogarty says.

I pay attention to what Senator Gogarty says. He is not a nonentity in the city of Dublin or the Free State, and we make a mistake if we consider he is. Perhaps his sense of humour outruns his judgment. That is not altogether undesirable, but I want to point out, in view of Senator Gogarty's absence yesterday, that we are only trying to protect a certain element that should not, in our opinion, be classified with those terrible people the Minister for Justice proposes to deal with. We want the law of the land to be available to other than political offenders. It is with that view that the amendments in the names of Senators Moore, Robinson, Johnson and Dowdall have been tabled. If Senator Gogarty had been here yesterday he would have understood the psychology of the situation, which he does not understand anything about to-day. That is the position. If this medicine is going to be handed out in substantial doses to the political blackguards the Minister has in mind, then let the decent blackguards be left free from the menace this Bill holds over them.

We would all be very pleased if what is called the ordinary criminal could be tried by a panel and not under this Bill, but unfortunately that is not possible without disclosing the panel. He is tried by the same Commission and the same panel as the other kind of criminal. We would like the ordinary kind of criminal to be tried in the ordinary way without the disclosure of the names of the jurors, but that is impossible.

I think Senator Connolly and other Senators will see that any amendment they submit here having for its object an intention which would in effect make a disclosure of the panel a possibility is the very thing this Bill is designed not to do. It is to prevent making disclosures which would give facilities to citizens who have banded themselves together for an open and avowed purpose from pursuing that purpose and achieving their aim. I think Fianna Fáil Senators will see that this House, the majority of whom are well affected citizens, and who have taken the oath of fealty to the State, want to uphold the machinery of the State, and one of the most sacred duties of the State is to preserve the lives and property of the citizens. We have all taken that oath, Fianna Fáil as well as the others.

I think the House will see that any amendment which will have the effect of disclosing the panel and increasing the facilities of those people for pursuing their purpose, and who are not stopping short of committing murder, should not have the approval of this Assembly, which is an integral part of the Oireachtas and cannot condone anything of that sort. It might be said that the accused would be disadvantaged by the ordinary method of trial, but the conditions are abnormal. It has always been the usage and practice of Governments to employ abnormal remedies in abnormal cases, to impose martial law and set the civil law aside. The State here recognises that an abnormal condition does obtain in the country, and has obtained for some time past. The abnormality seems to be increasing. It is the duty of the Government to see that the aim of certain parties who are a menace to the lives and property of certain citizens of the State who are carrying out their statutory duties in working the machinery of the State shall have no chance of succeeding. Potential murderers cannot be condoned by members of this House who have taken the oath of fealty.

Cathaoirleach

We are dealing with the panel, but the Senator is dealing with the whole trend of the Bill.

I am dealing with the group of amendments that are dealing with the panel.

Cathaoirleach

Stick to the panel, then.

It is to that I am directing my attention. The whole Bill might as well go by the board if the panel is revealed. There is no purpose in the Bill if the panel is revealed to the accused under any circumstances before his trial. The intention is clear. Those who have abused that privilege would do so again. They would intimidate potential jurors and justice would not be meted out.

I would like to point out to Senator Brown and to Senator Kenny that there may be a hundred cases for trial of ordinary crimes or misdemeanours, and that there may be only one, or perhaps no case of the kind this particular Bill is designed to deal with. Yet they must be all tried under that particular section. I want to draw attention to that. If a judge is to decide one way or the other there cannot be any danger in that. If a judge sees there is danger in a case he will not allow the panel to be given.

It was very interesting to hear Senator Johnson speak on this amendment, because he is a very experienced Parliamentarian. To hear Senator Johnson talking with his tongue in his cheek on this particular amendment amused me and, I dare say, most of the House, enormously. "What I said three times is proved" occurs in a certain well-known opera. Senator Johnson said three times yesterday everything he said to-day, and he hopes to get a new lease of life by saying exactly the same thing for the fourth time and convince the Seanad. I was amused by Senator Moore turning around to Senator Gogarty and saying: "Nobody pays any attention to what Senator Gogarty says." That, coming from Senator Moore, struck me as being extraordinarily humorous.

The Minister does not know Senator Gogarty as well as I do.

Senator Moore does not know himself as well as the Seanad knows him.

Very few know their own limitations, I think.

As far as the merits of these four amendments are concerned, they have been hammered out. It is perfectly clear that if a jury panel is given in one case it has to be given in all cases, and, therefore, the merits of one particular case does not decide whether or not the panel should be given. As to whether an inspection should be given, I said all I had to say on that yesterday.

It is common knowledge that what might be called a political case, or a case alleged by the defence to have some kind of political significance, will be tried in Dublin. If the Minister does not give heed to that perhaps the House will.

In fact it does not occur.

I do not know how many exceptions there have been. They are very few, I think. The class of case the Minister had in mind pending the introduction of the Bill has reference to cases that come before the courts in Dublin.

I beg the Senator's pardon, that is not correct.

Let us suppose that in the Northern portion of the Free State there is a Circuit Court in which there is no case whatever that would come within the category of the cases the Minister has put forward in defence of this Bill, why should it be necessary in such a case and in such a district to adopt this new method of empanelling and of secrecy? In such a case an application should be permissible to the judge. There is no fear there of the potential jurymen being attacked, because there is no political significance attached to the cases. The Minister knows, and the prosecution knows that every one of the cases that comes before the Circuit Court is connected with ordinary robbery, larceny or assault. In none of these cases has it been put forward that the jury panel should not be made public. I am stating that as an added reason why the accused should have the privilege of applying to the judge for permission to see the jury panel in that case. No one is going to plead in justification for the deprivation of this right that there is a risk to the jurymen. It seems to me that unless the Minister is contending that in all cases, irrespective of the class of case, or the period, whether normal or abnormal, he intends to revolutionise the whole system that he has had no regard to other circumstances when drafting the Bill. I put that point to the Seanad for consideration, as I think it is important.

As to the statement made by Senator Johnson, that all the cases are tried in Dublin, I want to contradict that, and also the statement that all intimidation takes place in Dublin. For instance, one of the worst cases of intimidation and circularising jurors occurred in the County Mayo.

How is the Minister going to conceal the identity of jurors in Mayo?

I feel it is quite useless now to make any suggestion after hearing the debate. It seems the Official Party are quite determined that the panel will not be shown to anybody except to those in authority, and the other side is to take pot luck. I do not believe our amendment will in any way endanger the jurors. If after hearing evidence the judge is convinced there is no danger, surely there should be no danger then in giving a copy of the panel to an ordinary accused individual, an ordinary civilian? The debate so far has shown that it is useless to make any suggestion, but I want to put on record the voting for or against amendments.

The last speaker said that it is absolutely useless to put forward any suggestion. I fail to understand what is the implication of that. The Minister has made it as clear as it is possible to make anything clear that there will be an opportunity in cases where it can be safely given for inspection of the panel.

That is not in the Bill.

I think the Minister speaks with certain authority with regard to the interpretation of the Bill. The whole argument of the supporters of this amendment has been directed to try and obscure that fact. They have been ignoring the circumstances out of which the necessity for this Bill has arisen, namely, that a murderous attempt was made to strike down the jury system. Does anybody deny that is what has given rise to this Bill? The object of the Bill is to protect the lives of jurors and witnesses. One of the ways of doing that is to make it difficult for potential assassins to have access to the identity of jurors. I suggest that the effect of a lot of the arguments and amendments is to secure—there is no other purpose behind them— that those potential assassins shall have access to and identify the jury.

That is a lie, and I ask the Senator to withdraw.

Cathaoirleach

The amendments may or may not vitiate the Bill. I think the Senator has spoken rather strongly.

I think he should withdraw.

Am I in order or is Senator Farren? I think this gentleman spoke hurriedly.

Cathaoirleach

Perhaps you, Senator, spoke hurriedly, too.

The Chair has asked the Senator to withdraw.

Nothing of the kind.

Cathaoirleach

I ask the Senator to refrain from persisting in the same line of argument.

On a point of order, is the Senator allowed to charge members of this House with seeking to cover up assassins and to give opportunity for assassination?

Cathaoirleach

The Senator should not make use of such language, and if he did, he should withdraw it.

I am not aware that I used such language, or that I used language that could imply that.

Cathaoirleach

It is suggested that you accused certain members of the Seanad with covering up assassination.

I had no intention of making such an accusation. What I did wish to say is, whether it is the object of the proposers of these amendments or not, the effect of the amendments, if carried, would be to give facilities to assassins to secure——

The Senator imputed motives.

Cathaoirleach

The Senator is entitled to say what he has said now.

That is what I wished to convey. That comes to the question of the security of the prisoner or the security of the jurors, and a certain step is proposed which gives a supposed security and facility to the prisoner but jeopardises the jurors' security. If one has to take a choice as to which course is to be pursued, then I stand for the security of the jurors. That seems to be the issue involved in these amendments, as to whether we are to put these theoretical privileges or alleged rights claimed for the accused as something of greater value than the security of the lives of the jurors and witnesses.

Even though theoretically there is a diminution of the procedure which seems to guard the prisoner, if that is necessary to protect the jurors, as that seems to be the issue, then I say we must stand by the jurors.

This is a Bill dealing with a certain transient phase in the life of this State. It is limited to a couple of years, and if it is making regrettable changes in the law, then it is to be hoped its operation will be so effective during the period of its existence that when the time has come when those abnormal conditions that have called for it will have ceased to exist, we can go back to discuss these matters without reference to abnormal conditions. I say that a great deal of the discussion here has been of a type which has ignored the abnormal conditions and circumstances that have called for this Bill, and I say that is imparting an unreal atmosphere to these discussions and is giving us a wrong perspective.

We cannot come to an effective decision, a decision which will have appreciation of the circumstances, if we ignore the facts out of which this Bill has arisen. Remember that the lives of jurors have been endangered, and this Bill is to ensure that this danger will cease in so far as its operations can have that effect. Further, I would like to know, in view of the rather highly-strung disposition that Senator Johnson evinced when he intervened, whether he is supporting Senator Moore's amendment or not. That amendment would create the possibility of the jury panel being made known to undesirable people. It is not the question of inspection that is involved; it is to supply a solicitor with a copy of the panel of jurors. Now, the solicitor himself may be above suspicion, but if the solicitor has that in his office who is going to vouch for the fact that everybody in that office is of the same integrity, the same probity, that the names on that panel will not leak out and that those from whom we are trying to withhold this information will not have access to it? I want to say again with more restraint what I had intended to say. I say that to pass this amendment would create a great possibility of the identity of jurors becoming known to those we are trying to withhold it from, that is, those who are out to intimidate and asassinate jurors. I do not think that it is a workable amendment, an amendment that any man with respect for the security of the jury system could assent to.

I would like to ask the Minister——

Cathaoirleach

There has been an objection to the Minister speaking so often.

What I want to know is if a charge is preferred against a citizen under this Bill will his solicitor be debarred from an inspection of the panel from which the jury will be selected to try the case?

He is not entitled to an inspection as of right.

The whole purport of our amendment is really to deal with that question. We are anxious to give the accused some opportunity. It seems to have come as a revelation to Senator Fanning that a man has no opportunity whatever of seeing the panel. If this amendment is passed there will be an opportunity. Senator Milroy's case can be put into a nutshell. The Bill as it stands is a case of the cure being worse than the original disease. Up to the present time there has not been one juror killed.

Not even one.

Who is the one?

Is Mr. White dead?

No, only wounded. His was a case of unsuccessful attempt at assassination.

I said, and I repeat, and apparently nobody contradicts it, that not one juror has been killed. People have said that jurors have been killed. Under the Bill without any amendment there is a possibility, to put it mildly, of not only one man, but a good many men, being hanged in the wrong. Therefore, the remedy is much worse than the original disease. I think that a number of Senators would be quite pleased if some of these amendments were passed. The amendment in my name simply gives the accused an opportunity of applying to the judge for permission to see the panel. Surely to goodness the judges can be trusted by the Government, and if a judge decides that it is not dangerous for the accused to get the panel, why should he not get it? The arguments to-day seemed to show an absolute panic on the part of the Executive.

I would like to be allowed to withdraw my amendment in favour of Senator Johnson's. They are more or less the same.

Amendment, by leave, withdrawn.

What we are trying to stop is not what is in Senator Milroy's mind. We hold no brief for assassinations of any kind. We do not believe in assassinations. We do not pose as pillars of the State one day and run away from the State on another occasion when it is in a precarious position. We never supported mutiny in the Army or outside the Army. We do not do things one day——

On a point of order. Is this relevant to the amendment?

I was about to reply to some of the unfair suggestions that the Senator made about Senators on these benches. The Senator suggested that we were endeavouring to secure for certain people the jury panel for the purpose of aiding and abetting them in the assassination of jurors.

If I used any words to that effect I wish to withdraw them. It was not my intention to convey that impression. What I wanted to show was the effect of these amendments.

Cathaoirleach

Senator Farren has taken exception to what Senator Milroy said. Senator Milroy says that if he conveyed that impression he did not intend to do so. I take it that Senator Farren accepts that.

He was asked three or four times to withdraw and he refused.

Cathaoirleach

He has now withdrawn.

If he is entitled to throw stones, are we to be tied down and not be entitled to reply to him?

No, it is pellets of mud he is throwing.

Senator Johnson's amendment is quite clear, and we are endeavouring to make quite clear what we have in mind with regard to it. If the amendment were accepted Senator Johnson said we would be satisfied if, on application to the judge in certain cases, solicitors for the accused persons would be allowed to have before them for inspection the jury panel for the purpose of challenging the jury while it was being empanelled.

That is not your amendment.

That is perfectly true, but the Minister will remember that Senator Johnson said he would be prepared to accept that.

You are arguing on an amendment that is not before the House.

Senator Johnson has quite clearly stated that we were prepared at this stage to accept that if the Minister agreed. We are not asking for that in the interests of assassins at all, but in the interests of fair play and justice. Senator Milroy may talk about the rights of jurors and about their protection. That is perfectly right. But the ordinary accused person is entitled to his rights and is entitled to justice. I understand the law is that every man and woman is innocent until he or she is proved guilty, but if a person is considered innocent before being found guilty of an ordinary criminal offence, and if the solicitor on behalf of that person asks the judge to place the panel before him for his inspection during the time the jury is being empanelled, so that he may have an opportunity of challenging some of the jury while it was being empanelled, that would not be asking too much. We ask for that now, and we are prepared to accept that. The Minister says that that is not what we ask in the amendment, but we are prepared to modify the amendment to that extent if he will accept it.

Senator Milroy pointed out that the Minister had said certain things. What the Minister says in debate will not be the law. It is what is contained in the Bill when it becomes an Act that will be the law, and we have repeatedly asked him to embody some words in the Bill that would bring about what we desire. We believe in justice and we are entitled to get it. There is no intention in this to assist assassins or anybody else. It has been put forward in the interests of justice and fair play.

Remember what I said to Senator Guinness yesterday——

What the Minister said will not be the law.

——as to what I was going to do.

Cathaoirleach

You wish to alter your amendment, Senator, with the permission of the House?

I am not sure of the technical meaning of the term "summoning officer". I think the empanelling officer would be the person who would allow the solicitor to inspect the panel from which the jury for the trial is to be drawn in the presence of the court. That would preclude any possibility of broadcasting the names.

The court in which the man is being charged.

Or the court in which that application is being made?

If the Minister will indicate his willingness favourably to consider that proposition I am prepared to move an amendment on the Report Stage instead of on this stage, because there is no use in trying to amend amendments by crosstalk. But if there is no suggestion of amending this proposition we shall have to ask the House to vote for the amendment.

I think it would be more desirable to have the reference to a judge of the High Court, or a judge in any shape or form, omitted. If Senator Johnson would reconstruct his amendment so that it would provide that the solicitor representing the accused would be permitted to inspect the panel under the supervision of some responsible officer of the court——

Cathaoirleach

I think the provision with regard to a judge of the High Court is very valuable.

I do not like to have judges drawn in. But surely there are a sufficient number of responsible officers of the court under the supervision of whom a solicitor could inspect the panel.

Amendment put.
The Committee divided: Tá, 16; Níl. 22.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Michael Duffy.
  • Michael Fanning.
  • Thomas Farren.
  • Thomas Foran.
  • Thomas Johnson.
  • Thomas Linehan.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • John T. O'Farrell.
  • L. O'Neill.
  • Siobhán Bean an Phaoraigh.
  • Séumas Robinson.

Níl

  • William Barrington.
  • Sir Edward Coey Bigger.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • Alfred Byrne.
  • Mrs. Costello.
  • John C. Counihan.
  • The Countess of Desart.
  • James G. Douglas.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Patrick W. Kenny.
  • The McGillycuddy of the Reeks.
  • Francis MacGuinness.
  • John MacLoughlin.
  • Seán Milroy.
  • James Moran.
  • Joseph O'Connor.
  • James J. Parkinson.
  • Thomas Toal.
  • Richard Wilson.
Amendment declared lost.
Question proposed: "That Section 3 stand part of the Bill."

I do not want to divide the House on this, but I want to have it recorded that there was opposition to the section.

Question put and declared carried.
SECTION 4.
4. Notwithstanding anything to the contrary contained in the Principal Act, the following provisions shall apply to and have effect at every sittings of the Central Criminal Court and every sittings of a Judge of the Circuit Court for the trial of criminal issues, that is to say:—
(a) On every day of such sittings on which the registrar of the Court is required by the Principal Act to call over a panel (whether original or supplemental) of jurors under section 46 or under section 47 of the Principal Act, such registrar shall attend in the Court for one half-hour immediately before the hour appointed for the commencement of the sitting of the Court on that day and it shall be lawful for every person who is required by law to attend the Court on that day as a juror to attend before such registrar during the said half-hour and request such registrar to record his attendance and upon such request being so made to him such registrar shall record in such manner as he thinks fit such attendance of such person;
(b) When calling over in pursuance of section 46 or sub-sections (2) and (3) of section 47 of the Principal Act the names of the jurors entered on a panel (whether original or supplemental) of jurors, the registrar shall not call the name of any such juror whose attendance he has previously recorded under the foregoing paragraph of this section on that day unless he has reason to believe that such juror has since his attendance was so recorded left the Court and not returned thereto, and whenever the registrar refrains under this paragraph from calling the name of a juror he shall take such steps in relation to such juror as he would be required by the Principal Act to take if the name of such juror had been called and such juror had answered thereto;
(c) No person shall be admitted to or be present in the Court while the proceedings directed by section 46 of the Principal Act or the proceedings directed by sub-sections (2) and (3) of section 47 of that Act or the proceedings directed by paragraph (a) of this section are being had (whether in relation to an original or to a supplementary panel) save only the Judge presiding at the sittings, the officers of the Court, members of the Gárda Síochána on duty in the Court, and persons who have been summoned to attend the Court as jurors at such sittings, but nothing in this paragraph shall be construed as requiring the presence of the Judge while the proceedings directed by paragraph (a) of this section are being had;
(d) Save where the proceedings directed by section 46 of the Principal Act or the proceedings directed by sub-sections (2) and (3) of section 47 of that Act or the proceedings directed by paragraph (a) of this section are being had, every person attending the Court as a juror shall (whether he has or has not been sworn as a juror) be called, addressed, and referred to for all purposes in the Court solely by the number by which he is distinguished on the panel of jurors from which he is drawn and no such person shall be called, addressed, or referred to in the Court by his name nor shall the address or description of any such person be called or mentioned in the Court.

I move:—

Section 4. To delete all after the word "Act" in line 4 down to the word "issues" in line 7, and to substitute therefor the words "any two Judges of the High Court may on the application of the Attorney-General and on being satisfied that sufficient cause exists for so doing by order direct that the following provisions shall apply to and have effect at any sittings of the Central Criminal Court and any sittings of a Judge of the Circuit Court for the trial of criminal issues."

We have covered so much ground on this Bill that it is hardly necessary to reiterate our arguments about this. The amendment is not meant to suggest that it would make the section perfect, or that it would make the Bill more acceptable, but, as we have already pointed out, it would confine the purposes of the Bill to those for whom it is primarily intended, according to the Minister, and it would give the ordinary prisoner some security. I suggest that it is a reasonable proposition that if the Department of Justice or the Executive desire something in the nature of a special court, there is no reason to set aside the whole machinery of justice, and accordingly if they could make a case to two judges of the High Court with this clause we are satisfied that Section 4 could then be made operative. It would be by way of creating a special court for the purposes that they require, and it would allow the ordinary administration of justice to proceed under the jury system as before.

I feel that it is rather futile to argue the case in face of the opposition that we are up against here, and particularly in face of the rigid attitude of the Minister. But we feel that every step in this Bill ought to be contested and to be fought, and for that reason I suggest that to any ordinary reasonable people the facility that would be afforded by enabling the case to be made before two judges of the High Court should be sufficient to meet any emergency. I do not propose to labour the matter but simply propose the amendment.

Senator Connolly, I think, has explained the matter very clearly, but possibly by a slip of the tongue—one of those happy lapsus lingua which sometimes occur—he said that he intended to fight every step of this Bill. That seems to be the reason why this amendment has been put down—to fight a step of this Bill. What is this Bill?

On a point of explanation. The Minister said that I said we mean to fight every step of the Bill. We do so seriously with the idea that a terribly bad Bill may be improved, and I think that is perfectly reasonable. We know that in the course of the debate with our arguments yesterday we advanced from being a small minority of eight to the position of being within one of defeating the Government, and I think that when we say that we want to improve every clause of this Bill, that should not earn the sneers of the Minister.

The Senator's statement was that they were going to fight every step of the Bill, and I sincerely hope that every sentence I use will not cause Senator Connolly to expand into two minutes of talking.

Cathaoirleach

You have made it perfectly clear.

The Minister for Justice was very quick to jump to the conclusion that what I said was what he calls a lapsus lingua.

Cathaoirleach

Your statement was deliberate. I am sure that you meant it.

But if he takes the opportunity to jump on any phrase I use I feel at liberty to do the same with him.

And I am sure, without any such liberty, that the Senator would be absolutely delighted to do so if he finds me tripping. If he finds me tripping he will be perfectly entitled to take every advantage.

We are used to it now.

This deals with the exclusion of the public from the court. But who are the public who go to the court? Who are the public who go in to listen to criminal trials? Everybody knows who they are. They are the town loafers—everybody who has nothing on earth to do, or people who go there because there happens to be something sensational in a case which excites their morbid curiosity. This Bill allows the Press to go there. It allows full publicity, and because morbidly-inclined persons, or persons who wish to go in for the purpose of discovering the names of jurymen in order that these jurymen may be subsequently intimidated or murdered are to be kept out, that is a terrible infringement of the rights of the prisoner! What does it matter to the prisoner how many persons, how many town loafers, how many corner-boys, how many morbidly-inclined persons are in court listening to the trial? I wonder how often Senator Connolly has walked in gratuitously to a criminal court and listened to a trial. I wonder if he has ever done it. I wonder if Senator Moore has ever gone down to Green Street in his life. It is the exclusion of people like Senator Connolly and Senator Moore from the court—men who have never gone to it—that is supposed to be a terrible injustice.

If the Minister will come to Castlebar with me and use the language to the people in Castlebar that he has used here I will be ready to meet him there.

I beg your pardon——

I say that if the Minister will come to Castlebar and use to the people there the language that he has used here I shall be glad to meet him there.

I shall be glad to meet Senator Moore in Castlebar or in any other part of County Mayo at any time that he chooses.

Pistols for two and coffee for one!

Section 4 clears the Court only during the calling of the panel and not during the trial. It is only while the general panel is being called it is cleared and that occurs on the first day of the Commission.

Question put.
The Committee divided: Tá, 7; Níl, 31.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • Séamus Robinson.

Níl

  • Sir Edward Coey Bigger.
  • 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.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • Thomas Johnson.
  • Sir John Keane.
  • Patrick W. Kenny.
  • The McGillycuddy of the Reeks.
  • Francis MacGuinness.
  • James MacKean.
  • John MacLoughlin.
  • Seán Milroy.
  • James Moran.
  • Joseph O'Connor.
  • John T. O'Farrell.
  • M.F. O'Hanlon.
  • L. O'Neill.
  • James J. Parkinson.
  • Thomas Toal.
  • Richard Wilson.
Amendment declared lost.

I move:—"Section 4. To delete paragraph (a)." I wish to say that I do not believe there will be any secrecy with regard to the panel, because when the court is over jurors go home and at their own firesides the whole business of the court is discussed.

I think I need not say anything about this amendment beyond what I have already said on the general principles of the section.

Amendment put and declared lost.

I move:—

Section 4. To add at the end of paragraph (a) the words "and it shall be lawful for the solicitors and counsel representing any accused person whose trial it is intended shall take place on the said day of such sittings to be present and to be afforded an opportunity of verifying the identity of such juror."

There seems to be a sentiment in the House that while jurymen are to be protected, so far as the secrecy of the panel would protect them, the prisoner is to have all the privileges which the law allows him consistent with preserving the secrecy of the jury panel. That seems to be indicated by the discussion which has taken place, and this amendment, and a subsequent amendment, No. 23, are framed with the object of expressing, as I take it, the general sentiment of the Senate on this question. If the House would agree I would withdraw this amendment in favour of amendment No. 23. The amendment which is now before the House provides that the solicitor and counsel for the accused are to be present during the half-hour in which men who do not want their names known may come into court, give their names to the registrar, and receive numbers. The object of the amendment is to secure that the legal advisers of the accused, and those chosen to defend him, shall know the names, addresses and occupations of the men who are on the panel of jurors. I think this amendment, having regard to the opinion already expressed in this House— and I do not want to run counter to these opinions, because I really want to carry amendment No. 23——

Cathaoirleach

Would you like to withdraw this amendment in favour of your amendment 23?

I would.

Amendment, by leave, withdrawn.

I move:—"Section 4. To delete paragraph (c)." The paragraph provides:

No person shall be admitted to or be present in the Court while the proceedings directed by section 46 of the Principal Act or the proceedings directed by sub-sections (2) and (3) of section 47 of that Act or the proceedings directed by paragraph (a) of this section are being had (whether in relation to an original or to a supplemental panel) save only the Judge presiding at the sittings, the officers of the Court, members of the Gárda Síochána on duty in the Court, and persons who have been summoned to attend the Court as jurors at such sittings, but nothing in this paragraph shall be construed as requiring the presence of the Judge while the proceedings directed by paragraph (a) of this section are being had.

Apparently the only persons to be allowed in court are the jury and those representing the prosecution.

Cathaoirleach

The persons preparing the panel.

I do not see, if the prisoner or his solicitor are not allowed to be present, how they can challenge. The Minister says they are to be allowed to challenge later on. I do not see that they are allowed to be present in court. I may be wrong. Apparently, while the panel is being read over the prisoner or his solicitor cannot be present but the prosecutor can. That seems to me to be an unfair arrangement. The Minister has stated that the accused can, in certain circumstances, challenge the jury. But if he has not seen them until they are about to try him he does not know the names, and I do not know how he is going to challenge. The whole thing seems to be part and parcel of a scheme to blind the accused and blind his defence, and then put him before a jury.

It is obvious from the speech that has been made by Senator Moore that he does not understand the meaning of the sub-section, and I venture to think that if he had consulted Senator Comyn he would have made quite a different speech. What happens in court? First a panel is called. The whole of Section 4 deals with the calling of the panel. While the panel is called no one shall be present—not even the prosecutor, the prisoner, the Attorney-General, nor his representative. After the panel has been called for the purpose of discovering what jurors are present, it is then re-called when the prisoner is indicted. If he pleads guilty no jury is called. If he pleads not guilty a jury is called. Section 4 does not deal with the procedure at all after the prisoner has been arraigned, or when the challenging comes on, so that it is perfectly obvious the Senator did not understand his own amendment.

Amendment, by leave, withdrawn.

I move:—

Section 4. To add at the end of paragraph (d) the words:—

"Provided that the prisoner or his solicitor or counsel shall be entitled to call for and obtain the name, address and occupation of any juror about to be sworn for the purpose of enabling him to exercise his right of challenge."

This is the amendment in favour of which I withdrew Amendment No. 19, and I most seriously press its acceptance by the House. The Minister has, in the course of this debate, expressed here and there a willingness to accept, as far as he reasonably can, the claims of ordinary justice. This amendment puts him to the test. The Seanad has already decided that the prisoner is not to be allowed to have a copy of the panel. I had an amendment down proposing that the prisoner's counsel was to be allowed to be present, so as to verify the names of the jurors who are afraid or ashamed to give their names. I withdrew that. So that now, in so far as the panel is concerned, and as the Bill stands, the prisoner, his solicitor or counsel are not to know the names of the two, three or four hundred people called on the panel. So be it. That is the decision of the Seanad. The meaning of this amendment is that when a prisoner is arraigned, that is, when the charge is read out, and he has been asked to plead guilty or not guilty, as the Minister stated, if he pleads guilty, he is put back for sentence, but if he pleads not guilty, then he is informed that a jury is about to be sworn, that he can challenge five peremptorily and as many more as he can show cause for. That is what happens. Then, seventeen or eighteen men out of the whole panel are asked to go to the jury box. The prisoner's counsel is usually asked: "Do you intend to challenge?" Counsel for the State is asked: "Do you intend to standby?" Generally they say to the clerk: "Call seventeen or eighteen." These seventeen or eighteen are called to the box, so as to allow the prisoner five challenges. The next thing that happens is that the first man is called to be sworn. It is essential that the prisoner should know the name, address and occupation of that man, so as to exercise what Senator O'Farrell called an intelligent and effective challenge. If he knows the name, address and occupation, he will know whether that man is likely to have any prejudice against him personally, or against the class of offence with which he is charged. For instance, if a barrister were in the dock, and if I were defending him, I would be inclined to challenge any barrister.

For what reason?

I would indeed, because he might know too much. It takes a thief to know a thief, perhaps. Supposing a man or woman were charged with pilfering out of a draper's shop, I would certainly challenge on that person's behalf every draper on the jury. Again, supposing a man was charged with stealing a bullock, I would certainly challenge every cattle dealer on the panel.

If a man was charged with dishonesty you would challenge every honest man?

If a man were charged with dishonesty, as men sometimes were on the Connaught circuit, but not on the Munster circuit, my friend, the Minister for Justice, would challenge every honest man.

I never challenged.

Cathaoirleach

This is outside the scope of the Bill.

I am trying to explain some of the principles upon which those representing accused persons would act. The object, I am sure, of prisoner's counsel on our circuit is to get impartial men. It may be different in the West, but the star of the West shall yet rise. That is one of the principles upon which counsel act, and it is a very proper principle. Another principle on which they act is this: A juryman may have expressed an opinion, either in public or in private, hostile to the accused, or hostile to the class of offence with which he was charged. Such a man should be challenged because he is not impartial. Now, these are principles upon which counsel for the accused and counsel for the State act. Any man who has expressed an opinion in favour of the accused is ordered to stand by. He is not impartial. Any man who is believed to have been at any time associated with the accused is ordered to stand by. He is not impartial. The whole thing has grown up and has been brought to a great degree of perfection so as to secure impartiality and to give the accused person a chance of getting a fair and an impartial trial from people who have no prejudice for him or against him. That is the reason why the name, the address and the occupation of the persons who go on a man's jury ought to be known by him in order that he may exercise an effective challenge.

I think that the Seanad, if I properly express what is in Senators' minds, and I hope I do, is of opinion that the right to an effective, intelligent challenge should be preserved, and at the same time, as far as humanly possible, the secrecy of the jury. The object of the amendment, then, is to reduce down from 300 to 16 or 17 the number of persons whose names, addresses, and occupations are to be known. I do not ask that those names and addresses should be known to every person. I only ask that the counsel or solicitor representing the accused should know those names for the purpose of exercising an intelligent challenge. The Minister will not venture to say, I am sure, that the privilege granted to those who represent the accused will be abused in any way. The risk is trifling. In fact, there is no risk. I do not want to repeat what I said two or three days ago. Counsel and solicitors in the past, under the British system in this country and, indeed, during the crisis of our Civil War, have been allowed to see and to know things by people in authority who trusted to their ordinary professional honour to do nothing that would in any way discredit them or discredit their profession.

That is all that I ask, that some chance should be given the accused person in all cases to exercise the right of challenge in an intelligent way. That can be done without any risk of exposure of the names of the jurors on the panel. The publication of the names will only be made to the professional men engaged. I think the Minister will agree with me that there is a feeling in the profession that the principles of the Bill will be loyally adhered to if it becomes the law of the land. Undoubtedly, if it becomes the law of the land, there will be a feeling in the profession that the principle of secrecy is to be adhered to. No barrister worthy of his gown, and no solicitor entitled to remain in the ranks of his profession, would violate that principle of secrecy. Therefore, all that I ask is that gentlemen in the position of barristers and solicitors should be allowed in these cases to know the names, addresses, and occupations of the twelve or thirteen men, out of seventeen, who are called to be sworn in a particular case, and before they are sworn. I put this to the Seanad as an amendment worthy of the serious consideration of every person here. I am sorry that Senator Brown is not here. Having regard to what the Minister said in the course of the debate on this Bill—I have observed very closely what he has said—I will be greatly mistaken if he does not accede to this amendment.

After listening to Senator Comyn I have failed to see how he could connect his amendment with the section.

I will do that all right.

I think that if the Senator reads the section through he will see that it deals entirely with the secrecy of the names on the list of jurors. There is no prisoner referred to in the whole section.

On a point of explanation: I always appreciate what Senator Jameson says. I value what he says for its sound wisdom. There is a little, shall I say, of the rule of the trade in this. But I do suggest to Senator Jameson that if he accepts the principle of this amendment I will guarantee that it will be in the right place.

I am sorry that most of the other Senators here, like myself, do not stand so high in Senator Comyn's opinion as Senator Brown and Senator Jameson do. He could not pay us any tribute. Probably we do not deserve it, and probably we do not want it.

I have not had occasion to praise the Senator yet.

No, and I hope the Senator will not. Senator Comyn asked, amongst other things, that the prisoner shall have access to the names, addresses and occupations of any juror about to be sworn. He says that his one reason why the prisoner should have that access is that there is no danger, good, bad, or indifferent, but that the principle of this Bill will still be maintained, that the identity of the juryman will be still shielded, and that there could be no attempt at murder. It is only the prisoner who will see the list of jurors and, notwithstanding the intent which may otherwise be there, the juryman is going to be perfectly safe. I wonder did Senator Comyn give any consideration to a case like this. If a prisoner is liberated, and has access before his liberation to the list of jurymen and wants to wreak his vengeance upon them, is there anything to prevent him doing that? The accused person is to have access to the list from which the jury will be selected. Suppose he is sentenced to a term of imprisonment. If he chooses so to wreak his vengeance on the members of the jury when he is liberated in eight months' or in twelve months' time, what is to prevent him doing so? If that is the case is the purpose of this Bill being maintained? Of course it is not.

I cannot understand the argument of the last Senator, because he is, in effect, pleading that every person should be cleared out of every court wherever a criminal is to be tried.

Not at all.

Otherwise, what is meant by having the full jury open to the court? I think there is a risk, if the prisoner can identify A.B.C. in the jury-box, that when he comes out of jail A.B.C. may be attacked by him.

I know that risk is there. I know that even under this Bill there will be a risk. I also know this, that if you give the prisoner the name, address and occupation of the jury, you are certainly cutting across the principle of the Bill which makes for shielding the juryman. I do not say it is a counsel of perfection, but it is the best that can be done.

I appreciate that the principle of the Bill is to deny all protection to the prisoner. That is my reading of the Bill. The Senator does not want, apparently, to face that conclusion. There is a case, and he says that he is agreed that the Bill is not perfection. The Bill does not absolutely deny this justice to the prisoner, but it gets as near to it as is possible. It does not shield the appearance of the jury from the prisoner. He may remember and be able to identify two or three or six members of the jury. Of course, the Minister told us yesterday that it is by that personal identity that the prisoner will be able to exercise the right of challenge. So that it is assumed that there is going to be a certain amount of identification. If that is permissible at all, is it not permissible in respect of every one of the jurymen who are trying the case? If it is permissible for the accused person to recognise the members of the jury, and to exercise, if he desires, the right of challenge, is it not desirable that he should have that privilege or that right, or whatever term you like to apply to it, as regards every one of the jury? Surely no one would deny that. Then, if it is permissible and if it is a right privilege that he should be able to identify the whole of the jury, what is the difference between that and having the names and the addresses?

What is the purpose of the Bill then?

There are two purposes in the Bill. There is the purpose to prevent the general intimidation of jurymen. I am supporting that principle. Senators will see from an examination of our votes on these amendments that we are prepared to concede the point that there should be some means taken to prevent a general attack on jurymen and the intimidation of jurymen. Therefore, we are prepared to support the deprivation of the general publication of the panel. But we are not going to agree, and I think that no atom of a case has been made for it, to deprive the accused of the right to know who are going to try him. Now you concede in the Bill itself that the accused or his counsel or solicitor may be able to identify the jurymen. All that we ask is, that he should have the right to be able to identify the jurymen so that he can exercise the right of challenge which is still secured to him. It is folly to say that we are giving this man the right to challenge and then to say that he shall only be allowed to exercise the challenge if he can recognise the appearance of the jurymen. If it is a case, let us say, of a prisoner from Donegal, and that the solicitor and counsel are also from Donegal, and that the prisoner is to be tried in Dublin by a Dublin jury, how is he to be expected to identify the twelve or thirteen jurymen that are called? He cannot, because he does not know their appearance, and yet, it may be that there is some one on the jury who is publicly renowned as being an enemy of the prisoner or the class of persons from which he is drawn. If the intention of this amendment is resisted, then the only conclusion that one can come to is that there is a purpose in this Bill to deprive the prisoner, no matter what class of case it is, of the right a prisoner has hitherto been given.

I heard a very astonishing speech from Senator Comyn. To begin with, he said that counsel challenged the jurymen. Of course, counsel never do that. I have never known counsel to challenge jurymen. That is always carried out by the solicitor.

It is on the responsibility of counsel that it is done.

There is no responsibility on counsel as far as challenging the jurymen is concerned. He said that a solicitor defending a prisoner endeavours to get an impartial jury. That is the most astonishing statement I have ever heard.

On a point of explanation, I said impartial from his own point of view. The State, of course, on their side want it impartial from their point of view.

Every solicitor who is challenging a jury on behalf of a prisoner attempts, and I think rightly attempts, to get as partial a jury as he can in favour of a prisoner, and to say that any solicitor defending a prisoner ever challenged a man because he said that he was a first cousin of his client and was likely to find him innocent no matter what happened, and not guilty no matter what happened—to say as Senator Comyn has suggested, that that is the ordinary procedure, is simply ludicrous. It is absurd to come to the House and put an argument of that kind before it. If a solicitor defending a prisoner finds that a brother of the accused is on the jury, he is absolutely delighted, and in my judgment correctly delighted, but there is a completely different standard to be taken where the State is concerned. It is the duty of the State to see that there is an impartial jury. It is not the duty of the defendant's solicitor to see that there is an impartial jury. Senator Comyn's suggestion that such a thing is done is the most childish statement that has ever been made to the House. Senator Johnson is very persistent. He has made the same speech again for, I think, the fifth time. As he has done so, I will not delay the time of the House by repeating precisely the same arguments that I used when countering his last speech.

The reason why it seems to me that Senator Johnson has made the same speech over and over again is because the Senator is definitely opposed to certain principles in this Bill. I dislike every one of those things and disapprove of most of them. But I have come to the conclusion, rightly or wrongly, that I am prepared to give those powers that are asked for in the Bill because of the circumstances. If I were not prepared to give those powers to the authorities, then I would vote for practically every amendment on the Order Paper. There are only three or four amendments which, to my mind, do not weaken the powers asked for. Those who are not willing to give those powers will support practically every amendment and with very similar arguments. The arguments are practically the same in every case. Therefore, it is not surprising to me that the speeches on every amendment are somewhat similar. I will vote against this amendment, not because I would be opposed to it in other circumstances, but because, rightly or wrongly, I have made up my mind that I am willing to support the Bill. If I was voting for the amendment, then I would be voting against the Bill.

I was greatly surprised to hear the speech made by the last Senator. I stated at the outset that I accepted the decision of the Seanad in so far as it had been expressed, namely, that the House was willing to give very extensive powers for the purpose of protecting jurymen according to their view. In my opinion this Bill will not afford any protection, but that is beside the question. The view that I represent has been outvoted here, but in moving this amendment it is my duty to have regard to the sentiment expressed by the Seanad. I did not understand that in securing the protection of jurymen by secrecy you were taking away from the prisoner the simple right that he always had of exercising an intelligent challenge. Now, you cannot propose to carry out one in its entirety without, in some way, trenching on the other. You cannot have this element of perfect secrecy without trenching in some way upon the right of the person who, as the Minister has said—being a free man—is an innocent man until he is found guilty. You trench on his rights when you say that he shall not have the panel. You trench on his rights when you say that he shall not be present while these men who want to have their names secret are being enrolled. I am limiting this amendment still further.

I say, do not take away the prisoner's right of challenge altogether. Let him know the names and addresses of the whole panel of twelve out of the seventeen. As regards what the Minister said, he contradicts what I said as to the object of all criminal trials, but I think that I am right in what I said. The object of a trial, in theory, is to have an impartial jury. I do not mind what the Minister says as regards the practice in Connaught. I am stating what the theory of trial by jury means, that its essential principle is impartiality, and that impartiality is secured by giving the prisoner's counsel or solicitor the right to challenge a person whom he does not like for one cause or another, and of giving the prosecutor the right of stand-by. From the two forces you get what the law desires, impartiality in the tribunal as far as that is humanly possible. I press the Seanad to accept this amendment. I am surprised that Senator Douglas, merely for the sake of giving complete and perfect scope to this new theory of secrecy, is prepared to take away the essential rights of the accused person.

It appears to me that Senator Jameson's argument is absolutely unanswerable. It has not been attempted to be dealt with by Senator Comyn. Senator Jameson's point was that there is no prisoner present when the jury is being arraigned.

I will answer that.

Cathaoirleach

The Senator cannot deal with that now.

Amendment put.
The Committee divided: Tá, 15; Níl, 23.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas Foran.
  • Thomas Johnson.
  • Thomas Linehan.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • John T. O'Farrell.
  • Siobhán Bean an Phaoraigh.
  • Séumas Robinson.

Níl

  • Sir Edward Coey Bigger.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • Alfred Byrne.
  • Mrs. Costello.
  • John C. Counihan.
  • The Countess of Desart.
  • James G. Douglas.
  • Michael Fanning.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Patrick W. Kenny.
  • The McGillycuddy of the Reeks.
  • Francis MacGuinness.
  • James MacKean.
  • John MacLoughlin.
  • Seán Milroy.
  • James Moran.
  • M.F. O'Hanlon.
  • L. O'Neill.
  • Thomas Toal.
  • Richard Wilson.
Amendment declared lost.
Section 4 agreed to.
SECTION 5.
In every trial before a Judge and jury of a person charged with any crime or offence, a majority vote of nine members of the jury shall be sufficient to determine the verdict and the Judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury without disclosure of the number or identity of the dissentients, if any.

On behalf of Senator Dowdall, and at his request, I move the amendment standing in his name:—

Section 5. To delete the section and to substitute therefor a new section as follows:—

"5. In every trial before a Judge and jury of a person charged with any crime or offence, a majority vote of eleven members of the jury shall be sufficient to determine the verdict and the Judge shall so inform the jury and the verdict of such eleven members shall be taken and recorded as the verdict of the jury without disclosure of the identity of the dissentient, if any."

I move it as something less objectionable or damaging than a verdict by a majority of nine. I prefer the unanimous verdict. I move the amendment without further elaboration, and I am prepared to take the opinion of the House on that matter.

I would submit to the Seanad that nine out of twelve is reasonable. I would also suggest that in this country at the present time a majority verdict in criminal cases is desirable. Of course, different countries have different ideas. The English idea, as it has worked for ages in England, and it has worked very well in England, is that there should be a unanimous verdict. In other countries, like Scotland, France and Germany, there is a majority verdict. Take Scotland, for example; there it is a bare majority. Considering the circumstances of this country, I do not think we should tie ourselves slavishly to any precedent. We should think out to ourselves what is best for this country, and we should not be slavishly tied down to any precedent wherever it comes from. What I suggest to the Seanad is that for this country a majority of nine out of twelve is the system of coming to a conclusion by a jury which is most likely to lead to fair administration of justice, and by fair administration of justice I mean to secure as far as it is humanly possible the acquittal of innocent persons and the conviction of guilty persons. When I say the conviction of guilty persons, I wish to make it perfectly clear I mean persons who are absolutely proved to be on the evidence guilty.

We all know there are certain persons in this country who object to finding a verdict of guilty at all. Everybody knows that from experience. Everybody who has had any connection with the administration of criminal law knows there are a great number of such persons in this country. As a matter of fact, I know a county in my own circuit in which I think it has hardly ever been known that a verdict of guilty was found on any evidence except in cases of cattle or sheep stealing or sexual offences. Apart from that, a person might do anything almost and be certain of acquittal. In deciding what sort of jury system should prevail in this country we should have in mind that we should have a jury system which would do justice between the State and the accused. There are persons who want to acquit no matter what evidence there may be, and there may be persons, on the other hand, who, when they see a person in the dock, say, "oh, he is charged and he is guilty." That is a type of mind that exists. It is not at all as common as the type of mind which says, "Let the poor fellow off," and that sort of thing. Our suggestion is that if you get nine men convinced of the guilt, or nine men convinced of the innocence, as the case may be, of the prisoner that that verdict should stand. It may be said that what we propose is a very big modification of the law. I grant you. In Scotland there is a bare majority. A modification of the Scotch system is more suitable to our country than the English system of the unanimous verdict.

In order that I may not have to speak again on this point, I would like to forestall certain objections that may be made. I would like to point out that the point regarding the objection that an innocent man might suffer, it must be borne in mind that in this country we have since the Free State was established set up a Court of Criminal Appeal, which used not exist at all. That court can go fully into every case. If they think juries were not justified in coming to their findings they can upset the verdict. They did, in fact, upset the finding of a jury. The court do not confine themselves to questions of law, the misdirection of the judge, and all that. They can go into the whole circumstances of the case. There was one case recently before the Court of Criminal Appeal where a person swore to the identity of the accused person, but the court were not satisfied that the person who had sworn to the identity of the accused person really had the opportunity of judging, and the verdict was set aside. I give that as one example.

Is that a costly proceeding or does it cost anything.

It depends entirely. If a person has no means he can go to the Court of Criminal Appeal and get a copy of the notes. In other criminal cases there might be civil proceedings also, but in every case it is a great advantage, when charged with a crime, if you are wealthy, because you can get fashionable counsel and advocacy which, if you are not wealthy, you cannot get. Possibly advocacy plays too large a part in the defence of prisoners. Taking it from the point of view of the administration of justice, that is, the conviction of the guilty and the acquittal of the innocent, we are more likely to secure that purpose by having nine out of twelve. As far as this particular Bill is concerned, and the particular circumstances of the country are concerned, there is a very strong argument why, as far as possible, the names of the persons who are serving on the jury should not be known. We are endeavouring to prevent persons of criminal intent knowing who is serving on the jury. As the section stands now, it means that it would not be known whether there was a unanimous verdict or not. All that would be known is that at least nine persons decided. That is a great safeguard. Even if the names of the jurymen can be got, it is a great safeguard to the jurymen who give a verdict, because a person who would be likely to pursue a juryman or injure him in his person or property will not know, even if he gets the names of the jurors, those who voted for conviction or acquittal. All he can know is that there were nine for acquittal or conviction.

I think this is a very reasonable amendment, and the Minister has not attempted to answer it. All of his arguments have been addressed to the case where there might be one of the twelve standing out for an acquittal. They are all addressed to the one boot-eater, as he is called, the one intelligent man, as it sometimes happens. On the Second Reading of this Bill, I gave a description of a case in which an innocent man had been tried three times. On the first trial, there were ten or eleven for conviction; on the second trial, there were seven: and on the third trial he was acquitted. Deputy Johnson gave another example from his own experience. If nine jurors were sufficient to secure a conviction in this case, the man would now be suffering imprisonment and would be under the cloud of infamy resulting from conviction on the charges made against him. There may be something to recommend that the one boot-eater should not prevail—the cranks, as this type are sometimes called, but intelligent men they very frequently are. The arguments of the Minister are all addressed against the theory of a unanimous verdict. Not one argument was addressed to meet this amendment. The Minister said that advocacy plays perhaps too great a part in criminal trials.

I hope advocacy is not going to play too great a part in the discussion of this Bill by the Minister. He has very nicely given you his version of what the law is in Scotland, but there are some things he omitted to state. In Scotland three verdicts may be given. There is the verdict of guilty, the verdict of not guilty, and the third verdict of not proven. According to the law of Scotland the Chancellor or foreman of the jury is compelled to return to the court the fact whether it is a majority or a unanimous verdict. That is a right which the Minister seeks to take from the people of this country. There is no analogy whatever with Scotland. Moreover, there is more than one judge hearing, and if the verdict is not a unanimous verdict, if it is a majority verdict, it is competent for three judges to consider what they would do as a result of that verdict. In no country where the Irish people live is a majority verdict allowed. Reference was made to the Colonies— Australia, New Zealand, and South Africa. So far as I can find out there are only two cases in our books in the Dominions referring to majority verdicts, and these were in civil cases. I submit that while there may be some argument for disregarding one man on a jury there can be no argument for disregarding three. If three men are for an acquittal it is a highly dangerous thing to convict a man, especially when he can be tried again as a result of a disagreement. I think the amendment proposed by Senator Johnson ought to commend itself to this House. I do not want in any way to be disrespectful to the Seanad, but if Senators are willing to listen to reason and argument they will support the amendment.

I think it is the Minister's case that rather confirms me in favour of the amendment. I have not had very strong convictions on the question of a majority verdict in ordinary cases, but I have a strong feeling in regard to a majority verdict in capital cases. The Minister's argument against the amendment rather strengthens whatever opinion I had in the matter. He pointed out that there was a certain sentiment abroad and a general prejudice against finding prisoners guilty, and that sentiment played a part in determining verdicts. Then he said that advocacy played perhaps too great a part in criminal cases. One has not lived these last twenty years without acquiring some knowledge of mob psychology, and one realises how difficult it is for the majority of people to resist influences that are about them. It is always the minority that is strong enough to resist these influences. The case the Minister has made is that possibly if you have a plausible and effective advocate in a case he will at once influence the minds of the jury. Though it is desirable that it is on the facts the jury should find a verdict the truth is that in the majority of cases it is not only the facts that are taken into account but also the advocacy. It is the minority in every case that is able to resist the influence and atmosphere that have been artificially created by the advocate. Therefore, we have to give greater weight to the minority which is able to resist that atmosphere and influence that the advocate has created, and that tends to strengthen the case for a unanimous verdict. It is the minority that is able to bring reason more strongly to bear than emotion that you must convince by the presentation of facts.

That strengthens very greatly the case for a unanimous verdict. I would concede that it is possible that you may have on a jury a man who will say: "I am for conviction, and I shall go to sleep until you find a verdict according to my judgment." You may have that crank, but you are not going to have more than one crank in twelve, speaking on the average, on juries. He would not be a crank if there were more than one in twelve of his way of thinking. It is making allowance for that possibly violent objector, who is absolutely opposed to finding a verdict in any way but that upon which he has decided, that you are simply asked to insure in this amendment that eleven out of twelve people shall be convinced in a trial by jury.

The point of the Senator seems to be that if one person differs, and he being the intelligent minority should carry everything and the other eleven should not count. That is the tone of his speech.

Reference has been made to the Scotch jury system. A Scotch jury consists of fifteen, and a bare majority, that is eight out of fifteen, carries a verdict. Eight is one less than nine, which is proposed in this Bill. It is a curious fact that one of the most remarkable cases of miscarriage of justice in Scotland in recent times—the Slater case—was a unanimous verdict, and the worst miscarriage of justice in England, a case of mistaken identity, about twenty years ago, was also in the case of a unanimous verdict.

Does that prove that a man has a better chance of getting off?

It is a much more merciful number than eight, and certainly a more merciful number than the unanimous twelve.

Might I say that the most terrible cases that happened in Ireland happened to men who went to the gallows on majority verdict. There is no doubt about that.

That was impossible in Ireland up to this.

I have known cases where innocent men were condemned to death by majority verdicts, and there was never much trouble in getting them.

Impossible. There could not have been majority verdicts in Ireland.

Unanimous verdicts. Pardon me if I said majority verdicts.

There would be a better chance of justice in cases where there would be unanimous verdicts than in cases where there would be majority verdicts. I think no one will doubt that. We have the case of Slater and others, where there were unanimous verdicts given and they were found guilty.

That is an argument for a majority verdict.

Custom has led to a unanimous verdict being necessary during the ages.

Amendment put.
The Committee divided: Tá, 15; Níl, 19.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas Foran.
  • Thomas Johnson.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • John T. O'Farrell.
  • L. O'Neill.
  • Siobhán Bean an Phaoraigh.
  • Séumas Robinson.

Níl

  • Sir Edward Coey Bigger.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • Mrs. Costello.
  • John C. Counihan.
  • The Countess of Desart.
  • Michael Fanning.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Francis MacGuinness.
  • James MacKean.
  • John MacLoughlin.
  • Seán Milroy.
  • James Moran.
  • M.F. O'Hanlon.
  • James J. Parkinson.
  • Thomas Toal.
  • Richard Wilson.
Amendment declared lost.

I move:—

Section 5. After the word "offence" in line 65 to insert the words "other than a crime for which the penalty of death may be inflicted."

I want to emphasise the importance of this amendment. We have discussed the section at considerable length and Senator Johnson and Senator Comyn have made their case without much effect on the House. Now we come to the crucial test, as to whether the same principles of majority rule as regards juries is going to apply in the issue where a man's life is at stake. Whatever arguments were used on the last amendment assume, I think, an infinitely greater significance with regard to this amendment, and I suggest to the House, without any further parleying on the matter, that a majority verdict in a case of life and death is not sufficient, and that a unanimous verdict, when there is a human life at stake, should be demanded and laid down in the legislation. The section leaves it open for a sentence of death to be passed on a majority verdict. That I think is a highly dangerous thing, and I feel that whatever may be said about other trials, it is a very serious responsibility for this Seanad to accept that a majority verdict will be sufficient to sentence a man to be hanged.

What I indicated on the discussion on the last amendment I feel very much more strongly with regard to this one. I agree with Senator Connolly that it is of a much more serious character and I think we ought to take that seriousness into account, and not allow a majority verdict to carry in the case of an offence where the death penalty will follow. The discussions that took place tend to show that there is a certain doubt about the efficacy of the jury system as we know it. There seems to be a feeling amongst those who have had experience that it is not quite so satisfactory as would be desired, and is perhaps less satisfactory here than in some other countries. The very fact that there is some doubt as to the efficacy of the jury system in ensuring that justice will be done, that there is a less acute sense of responsibility amongst jurors, certainly seems to show me, and would seem to show generally, that in the matter of the death penalty, at any rate, a unanimous verdict should be required. I do not want to elaborate this case to any degree. Instances were given by Senator Comyn on the Second Reading of two cases, one within my own knowledge, and another within Senator Comyn's knowledge, where verdicts of guilty were afterwards upset.

It would surely appeal to every Senator that when a verdict is going to involve the death penalty, the whole of the jury ought to be satisfied as to the guilt of the prisoner. If there is a possibility that three out of twelve—one-fourth of the population—because a jury is supposed to be a microcosm of the population, to put it that way—that one-fourth of the people who have power in the matter are not satisfied of the guilt of the prisoner, and that the other three-fourths find a verdict which will lead to the death penalty, that is too great a responsibility for the Seanad to accept, and it ought not to change the law in this respect. The Minister has elaborated upon the value of the Court of Criminal Appeal. I am not going to depreciate that in the least, nor am I going to depreciate the possibility that an appeal to the Ministry might ultimately save the prisoner. But we are now concerned with our responsibility, and we should not, I submit, agree that nine persons out of twelve are sufficient to send a man to his death. I second the amendment, and I ask the House to approve of it.

If there is any mind in this Assembly open to argument on any clause of this Bill I wish with all the strength at my disposal to address my words to that mind, because there is not in the law of any country of the world a provision like this, where the question at issue is the life or death of a man. The law of Scotland has been referred to and Senator Brown has stated that a majority of eight can carry a verdict. In such a case what happens is that a "Not Proven" verdict is usually returned; moreover, if there is a verdict by a majority the chancellor of the jury is bound to certify to the three judges sitting that it is a majority verdict and not a unanimous verdict. Now this Bill, as it stands, proposes that even in a case of life and death if nine are for death the judge must not be told that there are three for life. Therefore, I say that this Bill is the most drastic to be found in the legislation of any country and that the section is written in blood.

There are many men, and I am not saying that I differ from them, or that they perhaps are not absolutely right, who say that the State has no power to take life. The laws of this country provide that in cases of murder the State has power to take life. But the State should be very cautious, and should secure that there is unanimity and certainty about the guilt before they do so. If three men of the sworn twelve on their oaths say that they are not satisfied of the guilt, I think the State, in defence of life, which is a principle of law always, ought to say, "let the man live," and that the men and women in this Seanad ought to say so, too. Senator Brown has called attention to many cases where by a unanimous verdict innocent men have been convicted of murder. Senator Brown said that in a case in Scotland there was a unanimous verdict.

Slater's case.

I challenge Senator Brown to say that any man in England or Scotland was ever hanged where the jury did not agree absolutely. I challenge him to produce such a case.

I did not say they were cases of murder.

Very well, not murder. Even with a unanimous verdict there have been terrible miscarriages of justice in our own time. Francey Hynes, an innocent man, was hanged; and as Senator Mrs. Wyse Power has informed the House, Myles Joyce, an Irish-speaking witness, who protested his innocence before a jury here in Dublin in his own tongue, was convicted and hanged, and when the rope refused to do its duty the hangman jumped on his shoulders and he strangled him on the gallows. In the Knocklong case an innocent man was sent to the gallows. He was a man, I am told, who was known to be innocent. That will be a matter for inquiry hereafter. In another case two men went to bed one night but in the morning there of blood, and from that there was a stream of blood leading to a river. The conclusion at once arrived at was murder, that the living companion murdered the man who was gone. A unanimous jury found him guilty of murder and he was hanged. Three years afterwards the man who was supposed to have been murdered, reappeared. He had been captured by a press gang. I say that in a case of life and death, if the State has a right to take life— which some people, and some of the best people deny—I ask you not to take life if there are any men in the twelve who vote against death. This is a very serious matter, and I think, without wishing in the slightest degree to go beyond what is reasonable, fair and moderate, I say, without any hesitation, that this section as it stands, means the verdict is one of blood and death. That is wrong, and the Minister is really going too far. You may send a man to prison but the survives, but if you send a man to the gallows the thing is irrevocable, and really we ought not to do that.

I am not prepared to follow the last speaker in all his arguments, but the reasons why I am prepared to vote for the amendment I would like to state very briefly. In the first place, as most Senators know. I absolutely disapprove of capital punishment by the State. I do not want to go into that now; it is not relevant. One of my reasons is because in almost every charge there is a certain discretion on the part of the judge as to the penalty which may be inflicted. In a class of crime for which capital punishment may be inflicted there is no discretion on the part of the judge, and it is not possible for him to vary the sentence according to the circumstances. That is one reason which I think is relevant. The second reason is because it is irrevocable. It is possible in some measure to right a wrong which may have been done. Generally speaking, I would go further even than this Bill. I think that nine out of twelve would generally be for all purposes wise. As long as you insist on continuing capital punishment and because that punishment is irrevocable and because the judge has no discretion, I do not think you should carry out the death sentence where there is a doubt. For that reason I would be in favour of continuing the unanimous verdict only in cases where, if there is a conviction, the penalty of death would have to be imposed by the judge.

I do not often differ with Senator Douglas, but on looking at the purpose of this Bill, and seeing what it is meant to carry out, I note in all the speeches an entire omission of the danger to the juries who find the verdicts. Undoubtedly in cases where the death penalty is inflicted for what is called political crime the danger to the jurors is far greater than if the penalty is anything else. This is the crucial clause where the Bill tries to save the lives of jurors. We have heard how justice may go wrong, but so far as the jurors are concerned it is not justice that will be done, it is vengeance, and if the Seanad choses to remove this safeguard and to make the name of every juryman known——

This has absolutely nothing to do with that.

Nothing at all.

Again and again it has been stated here that there is no protection with regard to the name.

If there is an acquittal there is no vengeance, and no suggestion of vengeance.

I am talking of a case that requires a verdict of twelve jurors to get a conviction, and I am talking of the danger to the twelve men who find a verdict of guilty. That is the whole danger, because, of course, if there is an acquittal there is no danger. I am considering the danger to the jurymen who find a verdict of guilty in a murder case of a political nature. I say that this clause is one of the most vital clauses in the Bill because it provides for some safety to jurymen in the greatest danger to which they can be exposed. I would have liked to hear some of the speakers who have been advocating everything for the prisoner giving some consideration to the case of the jurymen who, I really believe, in all the votes that we have given on this Bill we are trying to protect. I think the differences amongst us are quite plain. All of us who have been voting for the Bill as it stands have had one object in our minds, and that was the protection of jurymen and witnesses in cases of political crimes. That was the whole point that we had in view, and I hold in this case that the advocates of the proposal that the twelve jurymen should give a unanimous verdict for a conviction are exposing those twelve men to all the dangers that we are trying to save them from. To my mind, that is the weakness of the case as it has been put forward. If nine men out of twelve find a prisoner guilty I think there are very few of us who will deny that there must be a terrible weight of evidence to show that he has committed the crime of which he is accused.

Or a terrible weight to show that he has not.

That is a matter of opinion. If nine ordinary citizens of the Free State say that in their opinion the evidence shows that he has committed the crime, there must be a great weight of evidence against him. But if we require all the twelve to agree we certainly condemn them to a risk to which we ought not to expose them. That is the reason why I think this amendment should not be passed.

I should like to ask the Minister whether, in his opinion, if nine was retained in this section, it would be possible to devise any machinery by which, when the verdict was not unanimous, a lesser sentence than the death penalty could be imposed.

Would not that have the effect of neutralising the whole system and of protecting crime?

Not at all.

Of course it would.

Senator Douglas has asked me whether it would be possible, if there was not a unanimous verdict, not to have the sentence of death carried out.

By that I meant commuted; I did not mean that there should be no sentence.

Commuted, yes. In practice, of course, if there is any real doubt the sentence of death is always commuted. That is the ordinary practice. It may be completely illogical. A person is either guilty or is not guilty. A sentence of death should never be commuted, in strict theory. In fact it is commuted, because there is doubt. Possibly I have put that too widely. It may be commuted in certain occasions because the crime hardly amounts to murder—when it is almost approaching manslaughter. But there are other occasions when undoubtedly the sentence is commuted because there is a certain amount of doubt. That has always happened. It is, as it were, indefensible in theory, but it has always been done. I will take one famous example—Mrs. Maybrick's case. The sentence was commuted in her case to penal servitude for life, and she was let out after a certain number of years. The Executive Council deals with these matters, and I think any Executive Council would, if there was an element of doubt, consider that it would be wiser not to carry out the death sentence. I think in practice that if a case such as Senator Douglas has put up did in fact come before any Executive Council in this country—that is to say, where the jury was not unanimous; I do not mean where one person dissented from the verdict, but if there were nine to three—certainly the Executive Council would regard it with the most scrupulous care—with doubly scrupulous care.

They will not know. As it stands the Bill provides that the Executive Council will not know whether there were twelve for a conviction, or eleven or ten or nine.

There will be no disclosure of the verdict of the jury.

The jury are perfectly free to bring in any recommendation that they like. I was dealing with Senator Douglas's suggestion, not as to what is in the Bill but as to what Senator Douglas thought might be put into the Bill, when I was interrupted. It is quite conceivable that some provision of that nature might be put into the Bill. But without tying myself down in any way until I actually see what is in Senator Douglas's amendment, if he puts down one for the Report Stage, I will certainly give it the most careful consideration—that is, an amendment to the effect that if the jury bring in a verdict of guilty, stating to the judge that it is a majority verdict, the death sentence shall not be passed.

That is my proposal. I would much prefer that to this amendment, if it could be done.

If the Senator puts forward an amendment of that nature I will consider it very carefully. It is a new proposal to me, and I would have to consider it in all its bearings. What I am saying now must not be taken as in any way a pledge, one way or the other. It is a new suggestion to me, and I will give it the most careful consideration.

In view of that, I suggest that this matter be postponed to the Report Stage, without in any way committing the Minister, and I will draft an amendment.

I would be prepared to defer any decision on this amendment, in view of what has transpired.

I am also prepared to withdraw, and I am interested to know that if Senator Douglas brings it up it will be considered.

Further considerations of amendment deferred until 8.15 p.m.

Progress was reported, and the House agreed to resume consideration of the Bill in Committee at 8.15 p.m.