I formally move:—
Section 7, sub-section (4). To delete the sub-section.
Juries (Protection) Bill, 1929—Third Stage (Resumed).
Cathaoirleach
This and the next amendment hang together.
I think we might take the two together. I move:—
Section 7, sub-section (5). To delete the sub-section.
Cathaoirleach
I am afraid I was slightly inaccurate. It is not the same sub-section.
Senator Mrs. Clarke wishes to withdraw her amendment.
Amendment, by leave, withdrawn.
The object of my amendment is to delete the sub-section, because it deals with newspapers reporting cases. It places in the hands of the Gárda Síochána, who I might say are part of the prosecution, the right to get up and say that any newspaper man should be removed from the court, if the judge considers it right to do so. I think, and it has always been thought, that one of the greatest defences a prisoner can have is the publication of the case in the newspapers. In a great many cases publication has led to the acquittal of the prisoner, because the fact of having seen it has brought forward witnesses who gave evidence in his favour. It is really a question of the freedom of the Press. The attempt here is to prevent the Press reporting what it considers right. The Press is always bound not to raise questions that are sub judice, but to report only what occurs during the trial. I think it is wrong that the Press should be excluded from a trial. I am not well up in these matters, but, as far as I know, it has hardly ever been done before. One of the worst parts of the Bill is this part excluding the Press during the hearing of a case.
I do not think Senator Moore has read the sub-section that he proposes to delete. It does not say that all Press representatives shall be excluded. It says that when a newspaper has contained articles of a certain kind, that is to say that when it has urged the intimidation of jurymen or witnesses or the murder of witnesses or anything of that kind, then the representative of that particular paper should be excluded from the court. I submit that is what the sub-section says and nothing else, and I submit that it is perfectly right that the representative of a newspaper which desires that jurymen should be intimidated or murdered should not be in court. That is the very type of man who would be used as a spotter.
And the Gárda must produce evidence to the judge— copies of the newspapers in which these articles have appeared. He cannot act on his own discretion.
I am personally opposed to the amendment, but it would seem as if the section was really unnecessary because, if there are papers published which encourage attacks on jurors or on witnesses, either generally or in any particular case, I contend that such papers should be suppressed, and should not exist. Consequently there would be no representative of such a newspaper, and this section would be quite unnecessary. But the section assumes that newspapers will be allowed to exist that in successive issues encourage the intimidation of jurors and attacks on witnesses. I do not know if that is the intention of the Minister, but it assumes the continued permitted existence of papers of that kind, that should not be allowed to exist in any civilised community.
Under the existing law there is no power to suppress newspapers. The only thing that can be done is to prosecute. If a newspaper is prosecuted it is highly undesirable that its representative should be allowed to remain in court.
What has been said is perfectly correct. The real object of this section is to suppress any publication that the prosecution does not approve of, and although the question is submitted to the judge for his decision, nevertheless one particular class of newspaper is penalised. As Senator O'Farrell has pointed out, it is quite right that any such paper should be prosecuted, but then it would have to be tried. This section is merely put in so that a Gárda can get up and make a statement and the newspaper is banned without any trial.
He has to produce the newspaper to the judge.
The Minister is perpetually talking. He cannot allow anyone to talk for five minutes without interrupting them. I would ask you, A Cathaoirligh, if the Minister is allowed to make a series of speeches.
Cathaoirleach
He is not allowed to make as many speeches as he likes, but I do not think he would willingly interrupt.
Anyway, for his own sake, I think it would be better if he talked less.
The same all round.
Quite right. The best talker of the lot is the man who wants the closure. A paper can be prosecuted and suppressed but then it is tried; it is not ruled out offhand by someone who does not like these articles. I strongly object to that, and I ask the House to pass the amendment.
Amendment put and declared lost.
I move:—
Section 7, sub-section (5). To delete all after the word "section" in line 34 down to and including the word "truthfully" in line 45 and to substitute therefor the words "it is proved to the satisfaction of the judge presiding in the court that one or more recent issue or issues of a specified newspaper has or have contained articles or other matter calculated to intimidate jurors or witnesses."
The object of this amendment is to leave the discretion absolutely in the judge. I really put forward this amendment because I think it is superior, from the draftsman's point of view, to the words that it is proposed to substitute. This sub-section deals with the representative of a particular newspaper, a man who is following his profession, who may be occasionally contributing to an objectionable paper, from the Minister's point of view, and who may be earning portion of his livelihood by contributing to a paper that has not been guilty of any breach of the law or the regulations. Therefore, it is for the purpose of protecting the individual professional man that I suggest you should alter the words in the section. I think that with the amendment the section would be quite satisfactory. It would leave to the judge full control of the court and of the reporters. If there was the case of a man who was earning his livelihood as a contributor to more than one newspaper, and that the judge knew that his personal repute was good, he might say to him: "Well, now, I do not want any intimidation of jurors or witnesses, and at the same time I do not want to prevent you from earning your living. You can remain, but you are not to report for this particular paper." My amendment is not intended in any way to favour the intimidation of jurors or witnesses.
Cathaoirleach
Your amendment would not allow the particular person you mention into court.
It would in this way. The concluding words of the sub-section are:—
so long as such court continues to be cleared under this section, and thereupon while such court continues to be so cleared no person shall be admitted to or be present in such court on the ground that he is a representative of or a reporter for such newspaper.
The judge can admit him on the ground that he represents another paper. The reporter may come along and say that he does not want to represent that paper for the purpose of reporting the trial at hearing, but that he wants to represent another paper. I do not wish to be taken as in any way encouraging any newspaper to intimidate jurors or witnesses, or to interfere in any way with the Courts of Justice. I think that the amendment, as drafted by me—if the Minister thinks otherwise he can say so— leaves the fullest discretion to the judge to meet a particular class of case. On that ground I would urge the Seanad to accept the amendment. With the little modification that I have explained, the amendment is really, in substance, the same as the section.
It seems to me that the Senator's amendment is, in substance, the same as the section so far as intimidation goes, but it would allow articles to appear in the newspaper without any adverse comment from the judge, articles which tended to discourage jurors from performing their duty.
I did not intend that, and I do not think it covers that. The amendment says: "One or more recent issue or issues of a specified newspaper has or have contained articles or other matter calculated to intimidate jurors or witnesses." If the newspaper contains anywhere in its columns anything calculated to intimidate witnesses or jurors, exclusion applies. I do not intend to limit the operation of the section in any way so far as a newspaper of that kind is concerned.
It seems to me, then, that there is no reason at all for the change proposed.
Except that the phrasing of my amendment leaves, I think, a wider discretion to the judge. It is a matter of drafting.
I do not think it is necessary for me to say anything on this amendment. The Senator has based his whole argument on the words in the latter part of the section, which he proposes, in the amendment, to let stand.
Amendment put and declared lost.
On behalf of Senator Dowdall, I move amendment 53:—
Section 7, sub-section (5). To delete the word "shall" in line 45 and to substitute therefor the word "may."
The arguments which I have already addressed to the House on another amendment apply to this one. The purpose of the amendment is to give the judge a wider discretion.
I want to support this amendment because it follows the precedent adopted last night in respect to the amendment moved to sub-section (1) of Section 7, that application shall not be mandatory on the judge to compel the court to be cleared, but that he "may" do so. The amendment makes this difference, that the judge will have to be satisfied before he makes an order to have the court cleared. If the judge is of opinion that the court should be cleared, I think we may trust the judge to do so, but we should leave the option with the judge to use his discretion. I support the proposition to put in the word "may."
This differs from the amendment which I accepted from the Senator last night. It is now left entirely to the discretion of the judge whether the court shall or shall not be cleared. If the judge decides that there is a case before the court in which the court must be cleared, then this section makes a certain class of individuals who write for these newspapers, and who are known to be evilly disposed, ineligible to be present in court.
Is it not the Minister's intention that this sub-section is rather directed against the paper than the person?
It is directed, first, against the person because, as I said a moment ago, a person reporting for a paper of that nature is a person who, very reasonably, might give away information which should not be given away. The sub-section is not against the paper, but against the individual.
I think the next sub-section deals with the person.
Both deal with the individual. A reporter of a certain class of paper, or a person who is known habitually to associate with dangerous persons, or people who are likely to be "spotters" are the people whom we want to make ineligible to be present.
What about the concluding words in sub-section (5): "No person shall be admitted... on the grounds that he is a representative of or a reporter for such newspaper"?
Because you say the ordinary reporter can be admitted when the court is cleared. It is only on certain grounds that certain classes of persons can be allowed in—barristers and an ordinary reporter for newspapers. The latter shall not be admitted on the ground that he is a reporter for a newspaper if he reports for one of these papers, but he may be a reporter for a newspaper and at the same time might be a witness going to be called in the case. That is quite possible. What the sub-section means is that he shall not be admitted because he is a reporter of a newspaper.
Might he not be admitted on other grounds?
He might possibly be admitted on the other ground that he might be a witness in the case.
I would ask the Minister to leave the discretion to the judge.
If Senator Johnson wishes to make that improvement in the sub-section we agree.
I think that the fact that the judge has to be of opinion makes a distinct difference between this section and the previous one, and for that reason I think that the insertion of the word "may" here would be advisable.
Amendment put and declared lost.
At the request of Senator Dowdall I move amendment 54:
Section 7, sub-section (6). To delete the words "states on oath to" in line 54 and to substitute therefor the words "proves by evidence to."
I think that the acceptance of this amendment would result in a great improvement to the section. The sub-section, as it stands, leaves the judge no discretion whatever. In the vast majority of cases, in every case I might say, if an officer of the Gárda Síochána comes forward and, upon oath, says that he wants a particular thing done, the judge, of course, will acquiesce. That will be the decision of the judge, and I think that is only quite right and quite conformable with the position and dignity of the judge in his own court. I think that the Minister ought to accept this amendment.
I think we debated this very point yesterday. If this amendment were accepted it would mean another trial and a calling of witnesses and evidence. There may be a great deal of information in the possession of the Guards which, at the actual moment, it might not be advisable to make public.
We are repeating here more precisely the procedure that is being followed in regard to sub-section (1) of Section 7. The amendment seeks to secure that the judge shall be satisfied. That, of course, is with the object of leaving the responsibility with the judge and not with the superintendent of the Guards. The judge will normally be satisfied. I would certainly say that if he is so satisfied that he might act according as the section provides. The question then arises, whether the word "shall" should be replaced by the word "may." I think that, in this instance, there certainly should be a discretion left, that the authority should be left with the judge finally, and not with the superintendent of the Guards.
What the section does is, it makes a certain class of people ineligible to be present in court. The judge gives a direction with regard to those persons and the procedure is that they should be excluded. It is very much the same as the case of a person who has committed an offence coming before the judge. It becomes the duty of the judge to sentence him. You cannot say that the judge is not the supreme master. What the section says is that a certain class of persons shall be ineligible to be present.
But the defendant has no right to assert his innocence or prove his innocence.
I am not dealing with that at all.
The Minister drew the parallel of a person who committed an offence and was sentenced. In this case the superintendent of the Guards has merely to state upon oath his opinion in regard to a particular person. Then the judge has no discretion whatever. In the case from which the Minister drew his parallel there was evidence produced as to the guilt of the person, but in this case the superintendent of the Guards merely states that a particular person is not the kind of person who ought to be in court. I want to say that it is rather a formal matter, but an important formal matter, rather than a matter of substance. The superintendent of the Guards comes into court and states on oath that, in his opinion, a particular person is suspect—he is suspected of being associated in acts relating to the intimidation of jurors. I think that in probably 99 cases out of 100 the judge would take that evidence of the superintendent of the Guards and act on it, but I submit that we ought to leave the final decision as to whether the court should be cleared on that evidence with the judge, and not make it compulsory on the judge to clear the court because the superintendent of the Guards says it ought to be cleared. That is the whole point of difference, but it is an important point of difference.
There are two classes of persons who will not be allowed in to report. One is a person who is reporting for a particular class of paper. He should be excluded. The second class is a person not allowed in to report for a paper which does not come under sub-section (5). He shall not be allowed in to report for any paper if he is a person who is known to be acting as a "spotter." If you had to have a trial as to a man's antecedents and whether you should allow him in or not, that might take a very long time indeed. I cannot see that this amendment would make the slightest difference. The section simply says that men of the class I have referred to shall not be in court when a certain case is being tried.
I take it that we are debating Senator Johnson's amendment, No. 57, with the amendment now before the House. The Senator, I think, will agree with me that his amendment means the same thing as this one. Both amendments mean that, instead of the court being cleared on the oath of the superintendent, there has to be a trial, and that on the result of that the judge will make his order. I think that is the whole point. It does not seem to me to be a wise thing to alter the section so that you should have a trial going on in the court before the real trial begins. What that would mean is, that all sorts of persons would have to be called to give evidence to prove that so and so was a suspected person, although to the knowledge of the authorities the individual spoken about on oath would be likely to avail of any information that he might get to do injury to jurors or witnesses. I think it would be a very unpleasant thing to have a trial under such circumstances. I think that, instead of having a trial, this ought be done on the sworn evidence of a responsible officer of the Guards.
Amendment put and declared lost.
I move:—
Amendment 58. Section 7, sub-section (6). To delete the words "shall forthwith" in line 61 and to substitute therefor the words "may in his discretion."
I think this amendment meets the difficulty that was raised by the Minister and by Senator Jameson. Both said very fairly, I think, that the question as to whether a suspected or objectionable person should be removed or not should not be the subject of a trial. The Seanad has concurred in that view, and I am not going to say that they were not right. My amendment meets that view. The meaning of the amendment is, that when the police officer comes forward and states on oath that there is a suspected person in court the judge may, in his discretion, order his removal. The words in the section are "shall forthwith." Of course, in every case that can possibly be imagined the judge will use his discretion, but I do not want the judge in his own court to be under the whip of the police officer. I think the Minister will agree with me that it is undesirable that the judge should be compelled to take orders from the police officer, or that there should be any appearance of that in the proceedings in a court of justice. You must trust your judges. If the police officer comes up and says on oath that there is a suspected person in the court, any judge that I have ever seen, and I am sure the judges in the future will be worthy of trust, would act upon the oath of the superintendent and promptly order the removal of that person. The only object I have in moving the amendment is simply to preserve the forms of procedure in court and the sanctity of the position of the judge. There is nothing in the amendment that trenches in any way on the purposes of the Bill. I cannot see why the Minister should not at once concur in the amendment. He knows as well as I do the decencies of the situation.
This is precisely the same as the other amendment that we have discussed.
Amendment put.
The Committee divided: Tá, 13; Níl, 21.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- 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
- 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.
- Michael Fanning.
- Dr. O. St. J. Gogarty.
- P.J. Hooper.
- Right Hon. Andrew Jameson.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Seán Milroy.
- Joseph O'Connor.
- M.F. O'Hanlon.
- L. O'Neill.
- James J. Parkinson.
- Richard Wilson.
Amendment declared lost.
Ordered: That Section 7 stand part of the Bill.
SECTION 8 (3).
The power of adjourning a trial conferred by this section shall be in addition to and not in substitution for any other power of adjournment for the time being existing by law and one or more adjournments of a trial under this section shall not prevent a subsequent adjournment of such trial under any such other power of adjournment nor shall one or more adjournments of a trial under any of such last-mentioned powers prevent a subsequent adjournment of such trial under this section.
I move amendment 61:—
Section 8, sub-section (3). To add at the end of the sub-section the words "Provided that an accused person whose trial has been once adjourned under this section shall on a second adjournment be entitled to be admitted to bail except in the case of a person returned for trial on a charge of murder."
The object of this amendment is to secure that the unfortunate person concerned shall not be kept in jail indefinitely without trial. Senators can see that the sub-section is very drastic, and that it would be quite possible to keep an unfortunate prisoner, who might be in no way concerned with political publications of any kind, in jail indefinitely, that is if the judge was unreasonable enough to do so. Senators can see the purpose of my amendment, that it preserves the right of the State in the serious case of murder. If a man is charged with murder, I do not propose that he should even be entitled to apply for bail, but if he is charged with a minor offence, an offence of a less degree than murder, and if the case comes up for trial, and that it is stated there has been any kind of agitation about the case and the judge puts back his trial—the judge has the power to adjourn the trial— that man must remain in custody until he comes up again. If he comes up again and it is represented at court that while he was in jail there was some sort of agitation going on and representations are made to the judge the trial is postponed a second time. When a man comes up a second time he probably has spent six or twelve months in prison awaiting his trial. All that I ask is, that if he is charged with a minor offence he should have the liberty to apply for and obtain bail.
That is not the wording of the amendment—that he shall be entitled to bail.
I intend to explain as fully and as shortly as I can the meaning of this. If a man is twelve months in jail and if he is not tried and is put back again by reason of matters that happened while he is in prison, and that he could not be in any way regarded as being connected with, he should have the right to bail. Is that right?
Yes, shall be entitled to bail without application.
The forms of court provide that application shall be made. Application must be made to the judge. There may be other reasons for detaining him. There may be another charge, but in regard to the charge for which he has spent his term in prison he should have the right to bail on application made to the judge by his counsel or solicitor. The judge then fixes the amount of the sureties. It is all the time in the discretion of the court. If he has committed any other offence he is not to be entitled to bail. If he serves one period in jail without bail and comes up again and has to be sent back a second time, he ought to have the right to bail in case of a minor offence. It is for the Seanad to express their opinion on this without being urged by me. I think there is inherent justice in that.
I think there is a weakness in this amendment. If a group of persons outside knowing the person inside was subject to a serious charge, less than the capital charge, and had a fair amount of confidence that that person was to be convicted and they wanted to get him out, for a time they would intimidate a few jurors and cause the trial to be adjourned the second time. He would then have to be released on bail. I think that is a weakness.
It is weakness.
It goes too far. There is another side to it. One can see within the provisions of the sub-section that a group of persons outside who are vindictive against the person inside would intimidate the jurors for the purpose of keeping him in. That is quite possible under the section.
I draw the attention of the House to the meaning of the section. Supposing intimidation has been going on, the judge if he is satisfied that intimidation is going on, may adjourn the trial. He must be satisfied that intimidation has been going on. If he is, the prisoner shall be detained in custody as if he had been returned for trial at such sitting. The meaning of that is that he can always apply for bail. A man detained in custody by a District Justice can always apply to the High Court for bail. Senator Comyn spoke of minor offences. A man charged with misdemeanour is entitled of right to bail. He has only to make an application to the High Court to get bail. Deputy Comyn excludes murder, but there are other serious offences. Take a bad bank robbery in which a sum of money is stolen and some person is seriously injured; short of actual murder, that is the sort of case in which one would imagine there would be a certain amount of intimidation. If that robbery were a semi-political bank robbery it is the kind of case in which there might be a good deal of intimidation. It would not be quite right that these persons should be let loose on the community for a considerable period of time. The other case Deputy Johnson put forward is, I think, a theoretical case. As to somebody outside trying to intimidate jurors in order that a person would get acquitted, that I think need not be seriously feared as likely to happen.
Of course, there are serious cases and there are cases of less magnitude. The Minister has referred to one of the most serious cases that could possibly come before a court, short of murder. One can quite well imagine a case of a trifling nature which would merit, say, imprisonment for only a month, or two or three months. I am not sure whether according to the section as it stands a man would be kept in for the minor offence from one session to another.
Not for misdemeanour, if he applied for bail.
It is said he can get bail if he is put back under this section; the probability of discretionary bail is nil. What I say is, here I am pleading for the civil rights of persons who are not found guilty. I am pleading for habeas corpus really. The law did require that a man should get a speedy trial; that he should be tried at the first jail delivery after he is returned for trial. This keeping of a man in prison month after month and year after year untried is a matter about which legislatures of all countries have been very jealous. I only say that on the second postponement of his trial a man should get bail. If the Minister would be willing to make any concession on that point I would be prepared to modify the amendment for the Report Stage so that it might deal with offences of a minor nature to which the Minister has referred.
I have already stated that in a case of misdemeanour bail can be got, and that is quite sufficient.
Amendment put and declared lost.
I move:—
Section 8, sub-section (3). To add at the end of the sub-section the words "But no adjournments under this section shall operate to keep an accused person in custody pending trial for a longer period than three months."
This has been already explained. The section deals with the keeping in prison of a person because threatening messages have been sent from outside. Although he may not be concerned in any way in the matter, the unfortunate prisoner is liable to ke kept in prison on account of that indefinitely. Take the case of Seán McBride. He was arrested and kept in prison for eight or nine months without being brought up for trial.
When he was brought up finally, he was acquitted by the jury after being months and months in jail. Just before he was brought up finally for trial somebody might have written something in a paper about which he knew nothing, and, according to the section, as a consequence he would have been kept in prison for another three months without being tried. That might go on, no one knows for how many years.
The Bill terminates in two years.
That will not be very long, but still it is too long. This amendment is merely to limit the period for which a person can be confined to three months. I think that is reasonable. A man should not be kept indefinitely in prison because of action taken by people outside.
With regard to the case to which Senator Moore alluded, McBride made application to the High Court and was told he could have bail. If he continued in prison it was because he did not wish to give bail.
I did not talk on the question of bail.
The Senator thinks that a man should be released unconditionally at the end of three months if there has been intimidation. Let us say that a man is charged with murder. Then, if there has been intimidation and it is carried on long enough, he has to go scot free.
There is no question about bail. The question is whether a person should be kept in jail without being tried for an indefinite period—ad infinitum. Anyone can see that that is unfair. I say that he should be tried at the end of three months. If the judge says he is to be kept in prison for three months he is kept, but at the end of that time he should be brought before a court and tried.
I think the point argued by Senator Moore is a sound one. A prisoner in these circumstances may be kept in confinement for an indefinite period through the fault of persons outside. That is surely an injustice. A person confined in prison should not be liable to suffer continued imprisonment because of the offence of people outside. That seems to me possible in the section as it stands. There should be some limit to the period within which a man should be brought to trial. Adjournments of this kind could go on indefinitely, so that a prisoner may be continuously in prison. It may be a case where bail would not be justifiable, and you are leaving the prisoner's condition dependent upon the action of people outside, and for which he is not responsible. That means you are imprisoning a man for the crimes of other people.
Assuming that three months is the period it would not work out, for the adjournment from one court to another might exceed three months. Let us assume that six months is the period and I will argue it on that basis. Here you have got intimidation going on. You know that if that man is put on trial it will be an absolute farce. You know that juries and witnesses will be intimidated. It is proved to the satisfaction of the court that intimidation has gone on to such an extent that a man would not receive a fair trial—that a man would receive a trial which inevitably would result in his acquittal. What is the result? That it is much better to keep a man in custody until such time as he can get a fair trial. If a man has been sent for trial by the District Justice then there is a prima facie case against him. Is it better that he should be kept for a period until he can receive a fair trial, or is it much better that at the end of three months he should be let loose again on the community? That is the whole question. Even assuming that the trial would always take place within three months, the second trial would be but humbug. Why try a man when there is intimidation going on? They know that by steadily keeping up intimidation for three months a man can go free to rob a bank. They might say: "We will keep up intimidation." On the other hand, they might say it is better to let the course of justice go on. It would be far more satisfactory they would say: "It is better to let the course of justice go unimpeded." If a man committed a minor offence it would be all to his own advantage to be tried without intimidation.
The Minister seems to be always imagining and speaking of extreme cases in order to deprive the ordinary prisoner of his right to bail. He gives the case of a bank robbery in which a person is wounded. He says this intimidation will go on during the period the accused person is in jail, for three months. I ask what will the Minister be doing? He purports to be able to stop intimidation? The Minister in his argument presupposes that the Executive Council will remain absolutely lifeless in face of all this intimidation, and they will allow it to go on. I have never seen a case in which it was not possible to get a trial free from intimidation somewhere or other in the Twenty-six Counties. The Minister knows quite well that in the past when there might have been intimidation in one venue the trial was changed to another.
We cannot change now.
You can change now on your certificate.
Only to the Central Criminal Court.
Or a local venue on the certificate of the Attorney-General. The Seanad is supposed to understand something about what has happened or is likely to happen in this country. But the main thing here is the principle that ought to be respected by the Seanad, that prisoners should not be kept in jail awaiting trial, such as was done in France before the Revolution. That is a serious inroad on the liberty of the subject, and it will require very serious arguments to countervail against it. Three months in all conscience is long enough to keep a man awaiting trial.
Nobody wants to keep people in custody one moment longer than is necessary. If intimidation stops the man immediately gets a trial. There can only be an adjournment if intimidation is continued.
I think the period mentioned in the amendment is too short. It might be impracticable to work it out, but I think there should be some limit. We know the horrors of the old Czarist régime, when persons were kept in jail for years for one reason or another without being tried. A man charged with a political offence could be kept in jail interminably and have no trial. I do not see how this section is going to work effectively or achieve the object for which it was conceived. For instance, in the Central Criminal Court there is a case listed for hearing. The judge is satisfied that there has been intimidation of witnesses or of jurors, and he adjourns the case until the next sitting, say for three months. No intimidation has taken place in the meantime, and the man must be tried at the next sitting. Surely, the people who intimidated originally are still, presumably, in the land of the living, and the people intimidated are still alive to the fact that three or six months having elapsed does not alter the position in the least.
If there is somebody who intimidated witnesses at any time, it must be assumed that he has not changed his mind because three months have elapsed. I do not see the object of postponing unless you are going to change the venue, and the Minister says you can only change it to the Central Criminal Court. Postponing the trial can have only one result. It makes the prisoner spend a longer time in jail whether he is guilty or innocent. That is the only object. I think there should be some limit to the period of time a man can be kept in prison without trial. He may be quite innocent. It is often easy to establish a prima facie case against a man who may be found innocent when tried. We should be slow to adopt the old Russian system, and keep a man interminably in prison. I know that the Bill is a temporary one, but things of this kind have a knack of setting precedents of a dangerous character, and even during a period of two years great abuses can occur under this section.
We all remember the state of mind that existed some years ago in which certain people had certain views and did not care whether their friends suffered or not. They wanted to carry out those views and were prepared to sacrifice themselves and their fellows in order that they might do so. I can quite understand that the same thing may exist at the moment and that people outside may say: "There are fellows inside there and let them go on staying there and take their punishment, and we will go on with our propaganda." They would go on with their propaganda as long as they chose and all the time the man inside may have no information of all this, and yet on account of the propaganda this man, who properly knows nothing about it, is kept in prison. This is very important and I must have a division on it. It is one of the worst parts of the Bill. It means the Bastille over again.
Senator Moore is arguing on one thing, while his amendment is going in another direction. Even if there is a division on this point, that will not go to meet the case put forward by Senator Johnson. There might be some slight point in that, and I would ask the Minister to give his attention to that aspect of it. If there was a possibility of abuse at any time, it could happen that a prisoner might be kept without trial in prison for an indefinite period. Subject to the acceptance that there might be abuse in that respect I would like the Minister to give his attention to it. But what Senator Moore's amendment seeks to carry out is an entirely different matter altogether. It would be possible under his amendment that exactly what the Minister puts forward might take place—that is, for the period specified, whether it would be, three months or six months, intimidation might be carried on, and at the end of that period, according to Senator Moore's amendment, the prisoner would be liberated and would leave the court a free man.
Not at all—tried.
It does not say trial. It says: "But no adjournments under this section shall operate to keep an accused person in custody," and if he is not kept in custody, it means that he goes free. I would like the Minister to give his attention to the other consideration, entirely apart from Senator Moore's suggestion, and that is, that it might be possible by some means or other to have some limit, so that at the expiration of the period it would be obligatory to have the prisoner tried. There might be something in that, and I would like the Minister to give his attention to it, while I do not propose to vote for Senator Moore's amendment.
It would not be practicable, because you could not say that a prisoner can be tried at any particular time. I will take now a case in which there is no intimidation—an ordinary case of larceny, or something of that kind. The man is brought up for trial and the case is adjourned, let us say, for the attendance of a witness. The case might have to be adjourned again on account of the illness of another witness, or because of something of that kind. You never can say when a case will be heard. Sometimes when there is a great pressure of business in the Central Criminal Court it is not possible to finish the calendar, and some of the cases have to be adjourned until the next session.
Would the Minister accept six months instead of three?
No, I could not accept any time.
Amendment put and declared lost.
Division.
Cathaoirleach
Will those in favour of the amendment stand up in their places?
Senators Comyn, Colonel Moore O'Doherty and Mrs. Wyse Power stood up.
Cathaoirleach
There are only four in favour of the amendment, and it would need five in order to have a division.
Question proposed: "That Section 8 stand part of the Bill."
I want to test the feeling of the House on Section 8, and I call for a division on it.
Question put.
The Committee divided: Tá, 17; Níl, 9.
Tá
- William Barrington.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Fanning.
- Right Hon. Andrew Jameson.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Seán Milroy.
- Joseph O'Connor.
- M.F. O'Hanlon.
- Thomas Toal.
- Richard Wilson.
Níl
- Michael Comyn, K.C.
- Thomas Farren.
- Thomas Johnson.
- Seán E. MacEllin.
- Colonel Moore.
- Joseph O'Doherty.
- John T. O'Farrell.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Question declared carried.
Cathaoirleach
Amendment 63 is out of order. If it were carried, the effect would be to nullify the section. The same purpose would be achieved by voting against the section. Amendment 64 is out of order. It would negative the section. If the amendment were carried, true statements would be permitted, a position which is obviously opposed to the intention of the section. Amendment 65 is also out of order. This amendment proposes to delete sub-section (2), which merely provides a punishment for what sub-section (1) states to be unlawful. For a statute to enact that certain conduct is unlawful without prescribing any punishment would be absurd.
SECTION 9 (2).
If any person prints, publishes, distributes, sells, or offers or exposes for sale or posts up or otherwise exposes in any public place or makes by word of mouth any statement of any other person in contravention of this section such first-mentioned person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds, or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
I move:
Section 9, sub-section (2). To delete the word "summary" in line 46.
The section provides that it shall be an offence to print, publish or state the name of any juryman engaged in a case. The Minister has shown indulgence in this section by providing that a man is not to be punished for saying that he himself was on the jury, but if you say, even casually and inadvertently, that a man was with you on a jury and that he was in favour of the prisoner, or anything like that, it is possible under this section for you to be brought before a District Justice and given six months in jail. That is rather a drastic proposal. My submission is that if a person is charged with the offence of saying, or writing in a letter, or printing the fact that an individual was on such a jury and he is prosecuted for that, he should at least have the right to be tried by a jury. I think it is very drastic indeed to take away from the citizen his ordinary right and to try him by the paid officer of the Executive. That officer might be a most estimable man, but he is not the man to try a citizen for offences of this description, and therefore I think the word "summary" should be struck out.
Perhaps somebody would inform me whether, when a penalty on summary conviction is prescribed in an Act, that debars an appeal to a higher court.
"Summary conviction" means that a man is tried and convicted before the District Justice. He has an appeal to the Circuit Court. I was astonished and really horrified to hear Senator Comyn make the statement that District Justices are paid officers of the Executive. They are nothing of the kind.
Senator Comyn is a paid officer of the Executive in just the same way, practically speaking, because he draws money from the State.
Unless I am mistaken, the Minister is not correct in what he says. The salary of the District Justice, as far as I know, is not on the Central Fund.
It is on the Central Fund.
My memory of it is that it is not.
The District Justice is an absolutely independent judge, and that statement ought never to have been made in this House.
Well, it was made by inadvertence.
Then it ought to be withdrawn.
I mean a District Justice as distinct from a jury. I wanted to draw that distinction— that he is a single individual and a permanent official, as distinct from a jury that is drawn from the country.
Amendment put and declared lost.
I move:
Section 9, sub-section (2). To delete all words after the word "months" in line 48 down to the end of the sub-section.
The Seanad has decided now as to mode of trial, and the next question to consider is as regards the punishment. The section provides that on summary conviction the person shall be liable to a fine not exceeding £60 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment. The object of the amendment is to provide that a man can be either fined or imprisoned at the discretion of the court, but that he should not receive both lashes at the same time. I think that that only needs to be mentioned to commend itself to the Seanad.
I would like to say on this that I do not understand why anybody should desire to publish the names of jurors, and if, in a case of the trial of a person who had published the names of jurors, it appeared to the court that there was malice, I would not object to the fine being £500 or the imprisonment being six years, or both.
Amendment put and declared lost.
Sections 9, 10 and 11 put and declared carried.
Cathaoirleach
Amendment 71 is consequential on amendment 1, and as that was defeated, I do not think that this amendment can be moved. With regard to amendment 72, the decision on amendment 68 would cover this amendment, and amendment 68 was not moved. Amendment 73 is consequential on amendment 1, which was defeated.
It is not in the same terms.
It is not in the same actual words.
Cathaoirleach
But the intention is the same.
Question—"That Section 12 stand part of the Bill"—put and agreed to.
SECTION 13 (3).
This Act shall continue in force until the 31st day of December, 1931, and shall then expire.
I move:—
Section 13, sub-section (3). To delete the word "December" in line 63 and to substitute therefor the word "October."
This may seem to be a trivial amendment inasmuch as it simply seeks to substitute the word "October" for "December," that is to say, that the Act shall expire on the 31st day of October, 1931, instead of the 31st day of December, 1931. My reason for moving this amendment is that I do not want this Act to appear in the long list every year of the Expiring Laws Continuance Acts. There is rather a tendency to allow the Expiring Laws Continuance Acts to be lumped together and to pass en bloc, and I think that this is a type of law that ought to have special consideration before it is re-enacted. I am not quite convinced that it is the Minister's intention that this Act shall expire finally on the 31st December, 1931, and if it happened to be his intention to have it re-enacted and it was simply made part of the Expiring Laws Continuance Bill, I think it would not be likely to receive proper consideration. Therefore, I hope by the insertion of “October” instead of “December” a specific re-enactment would have to take place of this Bill alone and that it should not be lumped with other enactments.
What the Senator suggests would not be practicable in working, because as far as certain sittings are concerned the 31st October would be almost certain to occur in the middle of the sittings. Some criminal sessions would begin in October and would go on into November. Of course the dates are not fixed, but I fancy that the 31st October would probably be the very middle of the sitting of the Central Criminal Court.
Make it June.
I think that would be too short a period. As far as the point which the Senator puts forward as to whether or not this would be included in the Expiring Laws Act, that is a long way ahead. But assuming for the moment that it is the intention of whatever Executive is then in existence to continue this Act, it could be done by a short Act providing for the 31st December, 1932, instead of the 31st December, 1931. Is there any real substantial difference between having an Act of that nature and having this Act appearing in the Expiring Laws Continuance Act? I do not think that there is.
I am afraid that the Minister has not had a close acquaintance with the manners of Executives in relation to Parliament. These Expiring Laws Continuance Bills come forward very late in the session, very near the end of the year, the list contains perhaps twenty or thirty Bills, and there is a neglect perhaps on the part of Senators and Deputies to be careful in their examinations of what is contained in those Bills. Therefore, I am seeking that a special Bill shall be brought forward before this Bill can be re-enacted, applicable to this alone. I am not tied to the month of October.
August.
I would be quite satisfied with the 31st August.
Would not the 29th December do the Senator?
No, because the House would not be sitting then.
I do not think the Minister's suggestion would meet it. I would like to support Senator Johnson's amendment, if it was only for the purpose of showing that this is a special and an unusual piece of legislation, that it should be regarded as a mere formal Act with a number of other Acts that come up for consideration. I think that the amendment ought not to be received by the Minister with an air of humour. I am sure that it is with the greatest reluctance that the Seanad is passing this Bill. I am sure that it is no pleasure to any member of the Seanad to pass this Bill, and I think it would be proper that they should mark in a special way their opinion that this is a drastic and an unusual piece of legislation. If the Minister would make it the 1st September, or the 30th September, there is no possibility that any Circuit Court would be sitting at that time, and even if there was a Circuit Court sitting at that time, the ordinary machinery would provide that the prisoner should be sent forward to the Central Criminal Court.
Cathaoirleach
Would the Minister consider this on the Report Stage?
Yes, I will consider it to see if some arrangement could be made to meet the Senator's point.
Amendment, by leave, withdrawn.
Bill reported. Report ordered for Thursday, 11th July.
Cathaoirleach
I would like to draw the attention of Senators to Standing Order No. 70, which says:
The Cathaoirleach shall have power in his discretion to refuse an amendment tabled for the Fourth Stage of a Bill, if he is of opinion that it is substantially the same as an amendment which has been rejected on the Committee Stage and that the subject matter thereof has already been sufficiently debated.
Twelve hours have been taken up with the Committee Stage of this Bill, and if any amendment put down for the Report Stage is substantially the same as an amendment that has been defeated on the Committee Stage, I will not allow it to go on the Order Paper.
The Seanad adjourned at 2.30 until 3 p.m. on Wednesday, 10th July.