Criminal Justice Bill, 1949—Committee Stage.
Government amendment No. 1:—
Before Section 1 to insert a new section as follows:—
"1. In this Act ‘Court' refers to any court exercising criminal jurisdiction, save where the context otherwise requires, but does not include courtmartial."
This amendment is necessary in order to qualify the expression "Court" in the Bill. I think Senator Professor O'Brien drew attention on the Second Reading to the lack of definition of the word "Court" in the Bill and, accordingly, this amendment is brought in to make it clear what courts are intended to be included. It is intended to include every court exercising criminal jurisdiction, the District Court in particular, but it is not intended to include courtsmartial. It will be necessary later to make a further deletion of a sub-section by reason of this amendment, if it is accepted.
I should say that, as regards courts-martial, the reason they are excluded is because they are subject to separate and distinct provisions in the Defence Forces Acts and it would be quite inappropriate for this Bill to deal with them.
Amendment agreed to.
SECTION 1.
Government amendment No. 2:-
In sub-section (1), (a), line 9, to delete "section" and substitute "Act."
This is a drafting amendment. Senators will notice that the expression "scheduled offence" is defined for the purpose of Section 1 only in the Bill as it stands. As the expression "scheduled offence" occurs in another part of the Bill, it is desired that it shall include that definition wherever it so occurs. For that reason the amendment is necessary.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 3, which stands in the name of Senator Hawkins:-
In sub-section (3) (b), in line 18, to delete all the words after the word "and" to the end of the paragraph and substitute the following:—"in reference to each of such persons, giving a statement of the evidence proposed to be given by each of such persons".
This section provides:—
"If at the trial it is proposed to call as witnesses for the prosecution persons who have not made depositions, the Attorney-General shall, not less than seven days before the trial, cause to be served on the accused a notice in writing specifying those persons and stating in general terms the evidence that is to be given by them."
We suggest that a statement in general terms of the evidence is not sufficient. So far as I can see, there is no good reason why the words "summary of the evidence" should not be inserted there. I am reinforced in that opinion by the explanatory memorandum which has been circulated. This states that,
"if it is proposed to call as witnesses persons who have not made depositions, the accused must, not less than seven days before the trial, be furnished with a summary of the evidence to be brought against him."
The words used in the explanatory memorandum are, I think, far more satisfactory than the words used in the Bill.
So far as I am concerned, I am prepared to accept the amendment proposed by Senator Hearne. I am in entire agreement with the point of view that the person accused should get the fullest possible statement of the evidence, and not merely a summary, and, accordingly, if the Senator will leave this until the Report Stage, we will get the draftsman to put the proposal into appropriate form. We will accept the amendment in principle and will have the proposal properly drafted by the draftsman and it can be moved on the Report Stage.
I am entirely satisfied with the manner in which the Taoiseach has met this amendment. I do not by any means stand over the wording of the amendment. I merely put it down to give expression to a point of view and I shall certainly be very glad to leave it over so that the wording may be done by the Parliamentary Draftsman.
Amendment, by leave, withdrawn.
Sections 2 and 3 put and agreed to.
NEW SECTION.
Government amendment No. 4:—
Before Section 4 to insert a new section as follows:—
"Where a sentence of imprisonment is passed on any person by the District Court, the court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed 12 months."
This new section is considered necessary because of a possible conflict between the provisions of the present Bill and the provisions of Section 18 of the Criminal Justice Administration Act, 1914. Section 3 of this Bill proposes to increase to 12 months from the present period of six months the maximum term of imprisonment which may be inflicted for a scheduled offence or an indictable offence which is dealt with summarily. Under Section 18 of the Act of 1914 the power the courts have to give consecutive sentences is limited to a period of six months. It is accordingly proposed under the present Bill to increase the possible sentences imposed by district justices for these rather serious offences which are now triable summarily, or will be if this Bill is passed. It is thought desirable that the conflict between the Act of 1914 and this Bill, if passed, should not be allowed to subsist. That is the purpose of the present amendment. If, for instance, a district justice was hearing two charges against an accused person, one a summary charge and the other an indictable offence, and if he found the accused guilty of both charges and sentenced him to three months' imprisonment on the summary charge and nine months on the serious offence, that would be in conflict with the Act of 1914. In order to increase the sentence that may be imposed by the district justice for the more serious offence, it is thought that we should put the matter right now and repeal Section 18 of the Criminal Justice Administration Act, 1914. It is, therefore, necessary to have a new section here to make the matter clear. Later on there will be another amendment in the Bill, if Senators accept this amendment, proposing the repeal of Section 18 of the Criminal Justice Administration Act, 1914, and the code will thereby be tidied up if that step appeals to the House.
Amendment agreed to.
NEW SECTION.
Government amendment No. 5:—
Before Section 4 to insert a new section as follows:—
"Paragraph 4 (which prescribes time limits for the making of complaints in cases of summary jurisdiction) of Section 10 of the Petty Sessions (Ireland) Act, 1851, shall not apply to a complaint in respect of an indictable offence."
This is rather a technical matter, though it may have some substance for consideration by Senators. Senators probably know that under the present Petty Sessions Acts, speaking of them in the popular sense and not in their legal connotation, there is a limit of six months within which prosecutions for summary offences triable by the District Court may be brought. Some years ago the High Court gave a decision which had the effect of applying the six months' period in the case of an indictable offence tried summarily. The general rule is that in indictable offences—that is, offences of a serious character— which are triable by a jury—there is no time limit. Indictable offences can be dealt with by the District Court with the consent of the accused and, in that state of facts, it was held by the High Court that the six months' period was a matter of evidence and not jurisdiction and the six months' period might be raised in an indictable offence as a defence by an accused person whereas if he was sent for indictment there would be no Statute of Limitations. It is in order to clear up the conflict in relation to these two matters that this section is put in. Senators will, of course, have to consider whether or not it is fair to an accused person. If he is tried on indictment there is no time limit. If he is tried on summary jurisdiction there is a limit of six months. The object of this section is to give district justices greater jurisdiction where serious offences are concerned. I think it is fair that the ordinary period of limitation should not apply in such a case.
I take it an accused person still has the right to ask for trial by jury.
It seems to me there is no hardship then in those circumstances.
Amendment agreed to.
Section 4 agreed to.
SECTION 5.
I move amendment No. 6:—
In paragraph (a) to delete all words beginning with the word "or" where it first occurs in line 36 and concluding with the word "trial" in line 37.
The purpose of this amendment is to protect as far as possible the interests of an accused person. Section 5 provides that a deposition taken on the preliminary investigation of an indictable offence may be allowed as evidence if it is proved that the deponent is dead, insane, or so ill as to be unable to attend the trial. Whatever sustainable argument may exist where a deponent is dead, I think it is extending the principle too far in applying it to the case of a person who is so ill as to be unable to attend the trial. I confess I am not too happy even about the person who is insane. I do not know whether I would leave that or delete it. It seems to me that we are giving too much licence to the prosecution by making it possible to have a deposition produced as evidence in the case of a person who is very seriously ill.
Tá súil agam go n-aontóidh an Taoiseach gur ceart glacadh leis an leasú seo, eadhon, "or so ill as to be unable to attend the trial" d'fhágáil as an alt. Is féidir an triail a bheith ann in aice na leapan, más gá é; is é sin le rá, is féidir an Chúirt d'aistriú go taoibh na leapan i gcás duine atá breoite. Má tharlaíonn go bhfuil an duine chomh tinn nach féidir leis freastal ar an gCúirt nó nach féidir leis gnó na Cúirte a thuiscint, is léir gur cás é sin nach ceart glacadh le fianaise an duine sin le haghaidh aon trialach, beag ná mór.
Má dheineann an Taoiseach machnamh ar an gceist, sílim go n-aontóidh sé gurb shin tairiscint réasúnta atá déanta ag an Seanadóir Ó hEacháin agus tá súil agam go nglacfar leis. Is é an rud céanna é i dtaobh duine atá as a mheabhair. Déarfainn nach ceart na focla sin "or insane" d'fhágáil ins an mBille ach an oiread. Mar sin féin ní bheinn chomh dian ina choinne sin agus a bheinn i dtaobh na bhfocal atá molta sa leasú. Tá súil agam go n-aontóidh an Taoiseach gur ceart na focla sin d'fhágáil as.
I have considerable sympathy, speaking as a former practitioner, with the purpose and intention behind the present amendment. I confess that I am not personally too happy about the section as it stands. The law at the moment is that if a person who has made a deposition in the District Court dies before the trial comes on, his deposition can be read as evidence. The law in England since 1848 was that if a person was ill at the time of the trial his deposition could also be read. That was never the law in Ireland, although it was the law in Ireland that you could give in evidence a deposition of a person who was dead. If he was ill you could not do it. One case did come before the courts where the accused person wanted to get the trial over and consented, in the case of a person who was ill, that the deposition should be admitted. Notwithstanding that the accused person and counsel consented, the Court of Criminal Appeal set it aside. Sometimes this may give rise to difficulties in the administration of justice. The accused himself may want it.
I would like if Senators would agree to leave this matter over for further consideration. The point did occur to me in reading the section that a man might be ill to-day, he might have flu, and might not be able to attend the trial but if the trial were adjourned for a month he might be able to attend. In that set of facts it might be a hardship to have the deposition put in evidence against the accused. His counsel is deprived of a valuable right of cross-examination and, also, which is far more than the right of cross-examination, the jury and the judge are deprived of the right of seeing the witness in court and of testing the validity of his evidence. Therefore, so far as I am concerned, again speaking as a practitioner, I regard the suggestions with some concern and I would like to have the matter further considered. If Senators would agree to leave it over, we will see whether some words could be found to meet both the point of view put forward by the Senators sponsoring the amendment and the point of view that it may be in the interest of the accused person to have the deposition read. He may want it as in the case I have quoted.
As regards insanity, I think it would be difficult to deal with that otherwise than by seeing that the section is tightened up so as to show that the judge has before him evidence that the man is so insane that he is not likely to recover in a reasonable time. There are, as Senators know, the safeguards, such as they are, in the section that the depositions must have been taken in the presence of the accused originally and he must have had an opportunity of cross-examining. Although they are there, they are, perhaps, not as real as they appear. Very often, in the preliminary investigation of indictable cases, the solicitor or counsel does not cross-examine and deliberately does not do it because he may give the show away. I will have the matter considered.
Amendment, by leave, withdrawn.
I move amendment No. 7:—
To add a new sub-section as follows:—
"(2) If it appears to the trial judge that the deponent was not at the preliminary investigation subjected to cross-examination, the said judge shall, at the appropriate time, inform the jury of that fact".
The Taoiseach has said what I had intended to say on this amendment. I understand that in the District Courts in the case of a serious charge the invariable practice is that neither the solicitor nor counsel for the accused cross-examines.
It is not the invariable practice. You are sometimes able to get little points out. It is a matter for the skill of defending counsel.
As the Taoiseach has said, very often it is not done lest something may be given away that would be harmful legally to the accused. My desire in moving amendment No. 7 is to safeguard further the interests of the accused. If the section remained as it is in the Bill, in view of the fact that the solicitor or counsel did not cross-examine, in effect, then, the deposition could be regarded or, at least, should be regarded in the same light as evidence which has not been subjected to cross-examination. My desire in amendment No. 7 is to provide that if it appears to the trial judge that the deponent was not at the preliminary investigation subjected to cross-examination, the said judge shall, at the appropriate time, inform the jury of that fact. With the permission of the House I propose to withdraw the amendment in the belief that the section will be tightened up and consideration given to the points that have been made.
Amendment, by leave, withdrawn.
Sections 5, 6 and 7 agreed to.
SECTION 8.
Government amendment No. 8:—
In sub-section (2), to delete paragraph (b) and substitute the following:—
"(b) the compensation which he may, if fined, be required to pay under the section may be of an amount not exceeding fifty pounds."
This is very largely a drafting amendment but one of some substance. The object of sub-section (2) of Section 8 is to increase the amount of punishment that can be awarded for malicious damage under Section 52 of the Malicious Damage Act, 1861, and also to increase the amount of compensation that may be awarded against a person convicted of the offence. Under Section 52 of the Act of 1861 an accused person, if found guilty, could only be made pay compensation if he was fined. He could not be made pay compensation if he was convicted and sentenced to a term of imprisonment. This section is put in with the words "if fined" in order to make it clear that the amount of the increased compensation that may be awarded against him under this section can only be awarded if he is fined, so as to make it clear that there is no question of compensation in the event of imprisonment being inflicted.
My only comment on this section is that I dislike the Malicious Damage Act of 1861 and I do not think it should apply to this country at all. However, that we may leave to another day.
There will be a lot of support for that.
Amendment agreed to.
Section 8, as amended, agreed to.
NEW SECTION.
Government amendment No. 9:—
Before Section 9 to insert a new section as follows:—
"(1) A member of the Garda Síochána may arrest without warrant a person whom he reasonably suspects of having or conveying in any manner any thing stolen or unlawfully obtained.
(2) A person who is charged before the District Court with having in his possession or on his premises with his knowledge or conveying in any manner any thing which may be reasonably suspected of being stolen or unlawfully obtained and who does not give an account to the satisfaction of the court how he came by it shall be guilty of an offence and on conviction by the court shall be liable to a fine not exceeding five pounds or, at the discretion of the court, to imprisonment for a term not exceeding two months."
This section is required to clear up a rather ambiguous position that was created under Section 82 of the Courts of Justice Act, 1936. Senators are aware that there was in Dublin for very many years a particular section of an Act which enabled police constables as they then were—Guards subsequently—to arrest without warrant a person whom they suspected on reasonable grounds of being in possession of stolen goods or goods which were unlawfully obtained and on his being brought before the magistrate—subsequently district justice—if he failed to give a reasonable account of the goods he had, he was guilty of a specific statutory offence. That only applied to the City of Dublin for a long time. Then it was thought proper to extend it throughout the entire country and Section 82 of the Courts of Justice Act, 1936, was passed and extended the application of Section 53 of the Dublin Police Act, 1842, to the country as a whole. Section 29 of that 1842 Act had given power to the police to arrest without warrant a person who was reasonably suspected of a statutory offence, but when the Act of 1936 was being passed, by an oversight, the power to arrest without warrant was not given. The rather ridiculous result was then achieved that while the offence was created of not being able to give a reasonable account of the goods you had in your possession, you could not be convicted of that offence until you got before the court and there was, in fact, no power to bring you before the court because the Guards had no powers to arrest. It is to remedy that state of affairs that this section is inserted.
I should say that sub-section (2) of the proposed new section is really a substantive re-enactment of Section 53 of the Dublin Police Act without the original territorial limitation and as amended by Section 82 of the Courts of Justice Act, 1936.
Amendment agreed to.
Section 9 deleted.
SECTION 10.
Government amendment No. 10:—
In sub-section (1), line 32, to delete "in accordance with rules made under this section".
This is an amendment which does not require very much consideration. There is power in the section as it stands for a sergeant in charge of a Garda station to release a person on bail. The section provides that he is to release him on bail and fix the recognisances in accordance with rules under the section, the rules under the section to be made by the Commissioner of the Guards. If Senators will look at amendment No. 12, they will see that amendments Nos. 10 and 12 can be considered together. It is not thought proper that the Commissioner should have this power. Doubtless he will issue, in the ordinary course of his duties, directions of an administrative character to the officers in the Garda stations for dealing with matters of this kind and there is no necessity to have formal rules. If experience shows that rules are necessary, that matter can be dealt with by another authority, the rule-making committee of the District Court. It would probably only add to the confusion if sergeants of the Guards had to try to follow rules in the middle of the night when they wanted to let a man out.
Amendment agreed to.
Government amendment No. 11:—
In sub-section (1), line 33, after "recognisance" to insert "with or without sureties".
This provides that the person who is to be released on bail can be released at the discretion of the station-sergeant with or without sureties.
Amendment agreed to.
The following Government amendment, No. 12, was also agreed to:—
To delete sub-section (3).
Government amendment No. 13:—
To add to the section a new sub-section as follows:-
"( ) This section does not apply to a person arrested under Section 13 of the Defence Forces (Temporary Provisions) Act, 1942 (No. 3 of 1942), on suspicion of being a deserter or an absentee without leave from the Defence Forces."
This again is a provision to deal with persons subject to Defence Forces procedure. If a person is an Army deserter, or suspected of being an Army deserter, it is not thought proper that he should be released on bail.
Amendment agreed to.
Section 10, as amended agreed to.
Section 11 to 14, inclusive, agreed to.
SECTION 15.
I move amendment No. 14:—
To delete sub-section (1) and substitute the following sub-section:—
"(1) The existing powers of the courts to exclude the public or any portion of the public or any particular person or persons from the court during a hearing, and to impose restrictions or limitations on publication or disclosure of information in relation to the proceedings or any part of them, are hereby confirmed subject to sub-section (2). In addition to these existing powers the courts (including the District Court) may in preliminary investigations on the application of the accused or his legal representatives prohibit the publication or disclosure of information in regard to the proceedings or any particular part of them if satisfied that it is in the interests of the accused to do so."
My object in proposing this amendment is to co-operate with what is stated in the explanatory memorandum to be the aim of the Bill, that is, to improve the administration of criminal justice. We are all eager to see less of the law's delays, but, as I read Section 15, I begin to fear that we might have some more of the insolence of office and it is our duty, in abolishing the law's delays or in trying to mitigate them, to take care that not too great power is conferred on the judges in helping them to speed up litigation.
The House, I take it, will not object to amendments Nos. 14 and 15 being debated together.
We must consider this in the light of Article 34 of the Constitution. The whole matter turns on that. Article 34 says that justice shall be administered in courts established by law, and so on, and then sets out:
"and save in such special and limited cases as may be prescribed by law shall be administered in public."
"Save in such special and limited cases." Two principles are involved there—the general principle that so far as possible the law should be administered in public, and a recognition of the fact that there are certain special cases where it is better for all concerned that they should not be heard in public. The explanatory memorandum pays lip-service, but only lip-service, to that Article of the Constitution in Section 15. It says:
"Section 15 proposes, so far as criminal proceedings are concerned, to prescribe by law, as authorised by Article 34 (1) of the Constitution, the special and limited cases in which the proceedings may be held in camera, and empowers the court also to prohibit or place restrictions upon the publication of information in relation to such proceedings.”
I submit that this section lays down no special or limited cases, and, if that is a fact, it is contrary to the Constitution.
I turn now to the particular section, Section 15, which says:—
"...the court may, if satisfied that it is expedient in the interests of the accused or of public morality..."
hold the trial in camera and prohibit publication. Where are the special and limited cases there? There are no special and limited cases. It gives the court absolute power in any criminal case to contravene the general principle laid down in Article 34 of the Constitution, that these cases shall be heard in public so far as possible.
The Attorney-General, on the occasion of the previous debate on this point, met this argument by saying:—
"It should be borne in mind that Article 34 (1), as I read it, was brought into the Constitution in this particular way by amendment."
The original Article was this:—
"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and shall be administered in public."
—without any restriction whatever. In other words, the original idea in the minds of the drafters of the Constitution was that every case should be administered in public. That was their overwhelming conviction. Afterwards, they came to the wise conclusion that certain special and limited cases must be excepted. I submit that the Attorney-General's statement here only strengthens my contention that the primary principle is the administration of law in public. The phrase used in Section 15 is: "in the interests of the accused." Who is to decide the interests of the accused? I think it would be far better that, as is suggested in my amendment, the accused's counsel or the accused himself should ask the judge for this special provision, and that the judge should not have the power of reading the accused's mind, as this implies. I object to that clause.
With regard to the phrase: "public morality", I took care to consult a good many learned lawyers on this point—for I have the greatest respect for legal science and it is with some diffidence that I raise this point here —and many of them assured me that "public morality" was a dangerously vague term, which, in many cases, simply meant "public policy". For example, in the much-decried Civil Authorities (Special Powers) Act, Northern Ireland, 1922, which was particularly attacked at Strasbourg recently, a very similar clause appears, setting out that—
"where application is made by the prosecution on behalf of the civil authority, that in the public interest all or any portion of the public shall be excluded during any part of the hearing, the court may make an order..."
The public interest and public morality are the two phrases and the two different principles. I submit that there is very little difference between them. "Public morality" is too vague. It was argued by the Attorney-General during the last debate that what I and Senator O'Brien were saying amounted in a sense to an indictment of the judges. Perhaps I am misunderstanding what he said with regard to Senator O'Brien in this case so I will confine my remarks to what he said about me. He asked: "Cannot we trust the judges to do the right thing." Frankly, I do not think we always can. I have the greatest respect for their legal ability and wisdom but they are just as fallible as the editors of newspapers or any other person who has control over public opinion in this country. This is what the Attorney-General said: "Is it better to leave it to the discretion of a judge or to leave it to the discretion of a newspaper editor whether certain things should be published or should not be published?" I answer that it is better to leave it to neither. Civil liberty depends on a kind of balance of power between many elements in the community. The judges are an important element and newspaper editors are another important element, those who write letters to the newspapers or who make public speeches are another important element, but if the balance of power is upset by giving too much authority to one element danger is threatened to the State.
I think that the more we give newspaper editors and the others I have mentioned an opportunity of airing matters of public policy when they are raised in the courts the better for our country. The Attorney-General referred to the danger of the public utterance of blasphemous, indecent or seditious matter. As a matter of fact he need not have done so as that can now be published by law. The Censorship Act gives the authorities full power to proceed against any newspaper editor or anyone else who publishes such matter. That is not an argument in favour of this section as it now stands.
There is one other point in connection with the section itself:-
"To prohibit the publication or the disclosure of information in relation to proceedings or any particular part of them."
I do not wish to emphasise this point, but it is the equivalent of introducing another censorship into our country, and on principle I feel that the less censorship we have the better. We all admit that some is necessary, but this simply makes a judge another force towards censoring public opinion in this country, and on those grounds I regard this section with apprehension. I criticise the section as it stands, therefore, mainly on the point that whereas the Constitution says only "special and limited cases" the section gives absolute power in all criminal cases, and that, I hold, is wrong.
I turn to another point. I suggest that it involves a principle that the more liberty of speech and publication we have in matters of criminal justice the better, except in certain cases such as are already provided for by law. I wish that the Attorney-General were here to-day—I am sure that we all wish him full recovery from his recent illness—to make quite clear how much power the courts already have in restricting publication. We do not wish to add to those powers. I could give a long list—I have them carefully here—and I assure you that they have considerable powers. If we are to add to those powers the onus of showing that such extra powers are needed lies on the promoters of this Bill. If we pass this section as it stands we are signing a blank cheque, and signing a blank cheque unconstitutionally.
I would have agreed entirely with Senator Hawkins' amendment except for one point. That is dealt with in the second sentence in my amendment:—
"In addition to these existing powers the courts (including the District Court) may in preliminary investigations, on the application of the accused or his legal representative, prohibit the disclosure..."
and so on. Every lawyer agrees, and everyone who has talked over the matter with lawyers agrees too, that there is an injustice in the present system of publishing preliminary investigations in full. What happens is this: the State indicts some person for a criminal offence; he is brought before the justice and the State makes a full accusation against this person. A defence is rarely made by the accused person's counsel because they wish to withhold it till the main trial. The reporters report the accusation in full and it is printed in the newspapers the next day. No defence of any kind appears and the jurymen who will be responsible for deciding that case in the end will read the accusations in full and their minds are bound to be coloured by the fact that no defence is made. The whole weight of the evidence is against the accused in that case. All of us who have considered it will agree that publication of that kind does no good whatsoever. It is a matter of publishing only one side of the case very much to the disadvantage of the accused. I have put in that section, therefore, on the advice of lawyers that in preliminary investigations this censorship is fully accepted. If the whole section were deleted, as Senator Hawkins recommended, I am not quite sure that the courts would have that power of forbidding publication. Perhaps Senator Hawkins or his deputy will enlighten us on that point. If the courts already have that power I will withdraw my amendment, but I think that they should have that power. In fact, in dealing with this amendment I should emphasise that if anyone else enshrines the same principle in better or more precise language I will be very glad to withdraw it. Two principles are involved: the general rule that the public administration of justice is best but for special specific cases where it cannot be granted, and that the more civil liberty we have the better, but that in certain cases we have to sacrifice it in the interests of a higher good. I simply emphasise once again that if new powers are to be conferred on the courts the onus of proving that those new powers are absolutely necessary rests with the promoters of this Bill.
I would like to support Senator Stanford's amendment. I think that it is particularly the duty of the Seanad where Bills are introduced and treated in a non-Party way very vigilantly to watch the interests of the public. I cannot help feeling that this section, though no doubt well intentioned, contains the germs of dangerous developments. I think that it is objectionable on two grounds, either of which is sufficient to condemn it without the other. In the first place, I agree with Senator Stanford that the section itself appears, on the face of it, to read contrary to the letter and spirit of Article 34 of the Constitution. We must remember that this Constitution was very carefully drafted and passed in 1937 and that it contains a statement and enunciation of the fundamental rights of the citizens of this country. It should be tampered with only after the most mature consideration and those fundamental rights should be reduced or diminished only when the most compelling case is made by persons alleging the necessity for such a diminution.
I do not wish to engage on a legal discussion, but I do suggest, prima facie at any rate, that when the Constitution refers to “special and limited cases” the law altering the Constitution should define what those special and limited cases are with a considerable degree of precise definition. To leave it to the discretion of district justices to assess the necessity of such exclusion of the public as this section provides for, simply in such vague terms as “the interests of the accused” or “public morality”, is not sufficient definition.
I would go further than Senator Stanford and say that, even if the section is fully constitutional, it is in itself objectionable. I think it is objectionable because the public should know what is going on in the law courts. The administration of justice is a matter which affects every citizen very closely indeed, and if the liberty of the citizen can be in any way interfered with or infringed behind closed doors, there is an element of danger there. No one, of course, suggests for a moment that the Irish district justices are not people of the highest integrity, but you cannot tell whether, at some future date, some change in the general political development of the country might result in justices being appointed on different grounds from those on which they are appointed now. You might have politically-minded justices, or justices not so independent of the Executive as the present justices are. It might be a very serious danger for the ordinary man in the street that justices should have such a very wide discretion as this section gives them, to exclude the public and the Press from observing their performance on the Bench.
I think also that the public administration of justice must be defended in the interest of accused persons. Not only has every member of the public, who may at some time find himself accused, a very definite interest in having the law administered in open daylight, but the unfortunate man actually in the dock should have the protection of public opinion through people looking on and seeing exactly how the law is administered in the public courts.
There are certainly arguments in favour of limiting the rights of public admission to the courts and of the publication of the proceedings and that is why I would rather support Senator Stanford's amendment than that of Senator Hawkins. From what the Attorney-General said on the Second Reading, I think that the courts have already considerable powers of exclusion from public proceedings and that also the Press is restrained to a very considerable degree in the publication of objectionable matter. I must confess that no case has been made by the introducers of this measure in the Seanad to justify any further extension of these powers and until some case of the kind has been made I do not think the Seanad should consent to the granting of such an extension. Arguments in favour of such an extension are of two kinds—those based on the consideration of the interests of the accused person and those based on the interests of the public. As regards the first, I agree with Senator Stanford that there might be some provision, not for the exclusion of the public from the court but for the prohibition of publication of the details of a preliminary investigation. The argument in favour of this is that jurors, when they come to try a case, will not have, because of the lack of defence, an open mind. I think there is something in that. There have been certain cases in recent times which have received a great deal of publicity. Everyone reads the popular newspapers and, therefore, every juror must have some idea of what the case is about before it is put to him in open court; so the publication should not occur. That, however, is no reason why the public should not be allowed to be present at the proceedings. The possibility that any member of the public present would be called as a juror at a later date is a very small one and I do not see any reason why members of the public who are not going to be jurors at a later stage should not see what is going on, unless it is a case where exclusion is justifiable on some other ground.
I think, also, that the charge at the preliminary inquiry should be published in the Press without the details. It is in the interest of the accused that it should appear in the newspaper that he has been returned for trial. It may be even that some person in the community might be moved by a guilty conscience to come forward and confess. Such things have been known to happen. There is a distinction there between a public report of the result of a preliminary investigation and the reporting of the details. I understand that in our own law something of the kind is embodied in the Censorship of Publications Act, 1929, where a distinction is drawn between the publication of the result of the case and publication of the evidence. The law in Great Britain regarding divorce cases is that the result of the case may be published, giving the names of the parties, the decree, and so on, but no details may be given. Senator Stanford's amendment seems to cover that case and, therefore, I am in agreement with it.
The arguments in favour of excluding the public on the grounds of public decency are, of course, already met by the existing law. There is one ground sometimes put forward for this which, in my opinion, is not good. It is sometimes stated that proceedings of this kind should not be reported, in the interests of the feelings of the family of the accused, that it is harrowing to people to have some member of the family reported as having committed an indictable offence. No doubt that is true. There are cases where the discretion of the editor of the local newspaper is invoked occasionally, and undesirable publication of this kind is avoided. At the same time, however, the public have some rights in this matter. From the point of view of the criminal law, as a deterrent to the commission of crime and as an example to other people of the consequences of committing crime, publicity of this kind has a harrowing effect on the person's family and, therefore, is really part of the legitimate sanction of the law. I do not think, therefore, that in criminal cases, the interests of the family of the accused are really a legitimate ground for non-publication.
There is just one further point. The power proposed in this section is so great, the discretion is so great, that I would suggest to the Taoiseach the possibility of considering something in the nature of a special appeal, apart from the ordinary appeal from the decision of the district justice. This section gives the district justices very wide, and, in my opinion, potentially, very dangerous powers. I think that there is a case for providing that before these powers finally operate, the accused persons and other interested parties might possibly have some sort of appeal. I do not wish to say any more. I rose to support Senator Stanford and I shall end, as I began, by pointing out that the Constitution of this country is based on the fundamental rights of every citizen. This section seems, in some way or another, to infringe on certain rights. Therefore, I suggest that before it be passed by the Seanad, the onus of proof of necessity for it lies on those who introduced the Bill.
I should like to make it very clear from the outset that my approach to this section is entirely different from that of either Senator Stanford or Senator O'Brien. Reference has been made to the amendment in the name of Senator Hawkins. With the permission of the Chair, and in order that the section can be dealt with adequately, I should like to deal with the matter in the following way.
I want to make it clear to the Taoiseach and to the House that the reason why that amendment, in the name of Senator Hawkins, was put down was that the section starts as follows: "In any criminal proceedings, the Court may..." The Article of the Constitution which was quoted in this debate to-day says that "Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public." It was for the purpose of resolving a doubt as to whether the phrase "in any criminal proceedings" might not be deemed at a later date to be too wide and not specific enough. We considered that it might go outside the ambit of the wording of the Constitution—"in such special and limited cases." It would be most undesirable that there should be a possibility that, with the present phraseology, it might be deemed to be unconstitutional, and we considered that we should have an opportunity of discussing the point here and of discussing it from that aspect. That, and that alone, was the reason for putting down the amendment in the form in which it appears on the Order Paper. I am not a constitutional lawyer, but it seemed to me, a layman, on reading the section and on relating it to the Constitution, that there was a doubt. It may be that I was wrong. The constitutional lawyers' answer to me may be that the phrase "in any criminal proceedings" does so limit the types of cases that it fully complies with the terms of the Constitution. Having ventilated that point of view, I would be perfectly satisfied to withdraw the amendment which stands in the name of Senator Hawkins.
I do not propose to deal with Senator Stanford's speech, except to say that one should be very careful in dealing with matters such as this, lest very very wrong interpretations be taken down the country as to the reasons for these speeches. I think references to the Censorship of Publications Act are entirely irrelevant and may do——
On a point of explanation.
I am in possession. I think such references may do extreme harm to the administration of justice in this country, which administration, I believe, is deserving of the respect of every person in this country.
On a point of explanation. I referred to the Censorship of Publications Act in connection with the statement made by the Attorney-General in this House on the 14th July, 1949. The only power at the moment under which the courts or the authorities can prevent the newspapers from publishing indecent or obscene remarks is that Act. I submit that it is most relevant to refer to that power in this debate on this most important matter. I would ask Senator Hearne to withdraw that point.
That is not a point of order; neither is it a point of explanation.
It is a point of explanation.
Of doubtful explanation. I think this matter can be debated, as it should be debated, without dragging in irrelevancies.
Will Senator Hearne take it up with the Attorney-General for introducing this point in the debate at our last meeting?
Apart from the principle underlying the amendment, it seems to me that it is drafted in a rather peculiar form. The first part seeks to confirm powers already possessed by the courts. I do not think that it is the usual legislative procedure to seek to confirm powers already enjoyed. I think, in any event, that it is quite unnecessary to do so. The second part of the amendment seeks to confer on the courts, including the District Court, powers which, I think, at least the District Court already enjoys. Unless I am greatly mistaken, I think I have read of quite a number of cases in which district justices—in Dublin, at all events—have heard in camera the preliminary investigations in an indictable charge. If they have done that, obviously they already have the powers and it would be unnecessary to give them these powers specifically in this Bill. However, these powers may not be enjoyed by the other courts to which this Bill applies without reservation.
On the general principle, it seems to me that the first part of the section is a bit too wide. It says:—
"In any criminal proceedings, the court may, if satisfied that it is expedient in the interests of the accused or of public morality so to do..."
and then publicity may be prohibited, and so forth. Quite obviously, in the huge majority of cases, it would be in the private interests and business interests of the accused that no publicity should take place. Take the case of, say, an important businessman accused of profiteering or overcharging, or accused of grave violations of rationing and licensing laws, and so forth. Surely it is perfectly obvious that it would be in the interests of such an accused person that no publicity should take place. If, under this measure, the court is satisfied that it would be in the interests of the accused, then he may do any or all of these things. That would be a very serious risk to take in times of public tension where political influences might enter into public life, including the administration of justice, where lawyers could show to the court that it was very definitely in the interests of the accused that no publicity should take place. I think the court would have to give some recognition to that claim, if the wording remains as it is. I would suggest that instead of saying "in the interests of the accused" the phrase should read "in the interests of justice or of public morality".
I take it that the intention is to ensure that anything that is done is done for the purpose of seeing that justice is administered and also that it shall appear as having been administered. If one hears that a certain charge has been made against some person of public importance and then hears no more about that charge, all sorts of undesirable rumours and suspicions get abroad. I think that that is one of the reasons why publicity is of importance, because of the influence it has on the general public. There should be some assurance that no matter how important a citizen may be or no matter what his position in life is, he should not escape the consequences if he breaks the law. At the present time there are provisions which enable the court to prevent publicity in regard to unsavoury cases, the details of which ordinary decent people do not want to read or see published at all. I think the law is sufficiently close in that respect and if it is considered necessary to give the courts additional powers—I do not know why it should be considered necessary—I think these should be given in a less general form that is proposed in this section.
Ba mhaith liom a rá nach bhfuilimid i gcoinne an phrionsabail atá san alt seo. Mar adúirt Seanadóir eile, chuireamar an leasú seo isteach chun go bhfaighimis eolas ón Aire ar an gceist. Chomh fada is atá cead ag an gCúirt daoine a choimeád as an gCúirt nó cosc a chur le foilsiú imeachta na Cúirte, más gá é sin, sílimid gur ceart sin a dhéanamh. Is léir go bhfuil cead ag an gCúirt cheana daoine a choimeád as an gCúirt agus cosc a chur le foilsiú imeachta na Cúirte. Má cheapann an tAire Dlí agus Cirt go bhfuil gá leis na cumhachta sin nó gur ceart iad a dhaingniú, tá mé sásta géilleadh dhó agus na cumhachta seo a thabhairt, ach tá sé amhrasach an bhfuil gá leo.
Tá an iomarca ráite i dtaobh na ceiste seo cheana agus ní gá dhom mórán a rá mar gheall uirthi. Má dheineann an Taoiseach scrúdú chífidh sé go bhfuil amhras ann agus go bhfuil na focla sin "in any criminal proceedings" ró-leathan. Mholfainn don Taoiseach an t-alt d'athscrúdú agus é d'athrú más féidir é d'athrú, is é sin, muna mbeadh a leithéid in aghaidh an Bhunreachta. Más é tuairim an Taoisigh go bhfuil an t-alt mar atá sé sa mBille ultra vires an Bhunreachta, mholfhainn go ndéanfadh sé liosta de na cásanna ar dóigh leis gur gá socrú a dhéanamh ina dtaobh agus iad sin a chur i Sceideal don mBille. Tá súil agam nach dtarraingeoidh sé siar ón bprionsabal atá i gceist in alt a chúig déag. Má tá an t-alt do réir mar atá sé sa Bhunreacht, scaoiltear leis. Ach, mura bhfuil sé amhlaidh, comhairlím dó cloí leis an bprionsabal agus cloí leis an alt atá sa Bhunreacht.
Ba mhaith liom a chur ina luí ar an Seanad nach bhfuilimid, beag ná mór, i gcoinne an phrionsabail atá i gceist ins an alt.
I have an objection both to the form and the wording of the section in the Bill and to the same wording repeated in Senator Stanford's amendment. The point was made by Senator J.T. O'Farrell, that under this proposal, proceedings may not be reported if it is considered in the interests of the accused to suppress the report. That is the proposal in the section and in Senator Stanford's amendment. I think merely to insert the proviso "in the interests of the accused" is a dangerous policy. It is obviously in the interests of every accused person, particularly if he is guilty, that there should be as little publicity as possible of his misdemeanours. That applies to blackmailers, pickpockets, black marketeers or any class of accused person. The more deeply they are steeped in crime, or the more despicable their crime is, the more it is in their personal interests that the proceedings should not be reported. I should like the Taoiseach to consider rewording the section to overcome that objection. If he cannot overcome it, I would be satisfied with the section as it stands in preference to the amendment.
I think it is necessary to give the courts wider powers than they have at present, even, if you like, wider powers of censorship. I know that the courts can request the Press not to publish certain facts and not to publish the names of accused persons, if they think that it is in the interests of justice that the facts should not be published. That, however, is merely a request that the Press can ignore and that the Press very often does ignore. That request can be made in the case of children charged with petty offences. The Press, in the city in any case, has always complied with the justice's requests in so far as it suppresses the names, but if it suppresses the names, it glories very often in magnifying the accusations against children. Recently there was a case in the courts in which the District Justice referred to two juvenile offenders as "two young blackguards." Their blackguardly conduct, as well as I remember, consisted of the stealing of an apple or something of that sort. The evening papers put, in their largest and blackest type, the heading "Young Blackguards," and gave an extended report of that case. In the same papers there was a much smaller heading to a report of a charge against a certain glamorous lady who had gone around the city defrauding shopkeepers of gold rings, bracelets and jewellery of various kinds. She did not get near as much publicity as the "two young blackguards." Surely no District Justice should call young children "blackguards" when they are charged with petty offences. In fact, such cases should not be reported at all. I think that the provincial papers report even the names of the children brought before a court, even though they may be orphans, or children who may be deserted perhaps, who have no home and who have been found wandering by the police. The whole facts and their names are published. It is in the interests of the children that such facts should not be published.
I believe, if the suggestion of Senator J.T. O'Farrell were adopted, that a report of the proceedings should not be published where that is considered necessary in the interests of justice, it would meet the matter. If the term, "the interests of justice" were substituted for "the interests of the accused person", it would meet the point which has been raised. The guiding principle should be, not the interests of the accused, but the interests of justice. If it be the "interests of the accused", then the interests of the more inoffensive person should come first. In Dublin, in any case, my experience is that district justices need more powers to prohibit the publication of proceedings than they have at present.
This whole question of publicity is a very delicate one. I must say that I am inclined to agree with Senator Hearne in taking the view that the expression "in any criminal proceedings" is too wide and that that part of the section definitely needs amendment. Senator Séamus O'Farrell was gravely concerned for fear lack of publicity would act in the interest of the guilty. I must say that I have a certain amount of concern that lack of publicity in certain cases might act against the interests of the innocent, and that is a point that the Taoiseach and the House ought to give consideration to before we finish with this Bill.
Supposing for the sake of argument that a person, A.B., is brought before the District Court, charged with an indictable offence. The district justice and counsel come to the conclusion that it is a case which ought not to be reported in the newspapers; if you like they come to that conclusion on that ground that it is not in the interests of the accused getting a fair trial. After hearing the evidence, the district justice comes to the conclusion that the State has not made a prima facie case and he refuses informations and A. B. is discharged without a stain on his character. But the public are only aware that the charge has been made, that it has been heard in camera and that he has been discharged; they have seen none of the evidence. Will there not immediately be a certain amount of talk or doubt as to whether A.B. was discharged because he was a man of standing, of influence, and so on?
The suppression of the reporting of court cases to my mind is a doubleedged weapon. It is quite a complex question and requires very considerable thought and consideration. I am in agreement with Senator Séamus O'Farrell on one thing, that I think there ought to be no publicity of any kind for juvenile courts, where children under a certain age are brought before a District Court on charges which may be childish pranks or may be of a criminal nature. Possibly I am in agreement with Senator O'Farrell for a different reason. While it is merely a childish prank such as stealing an apple, it is not in the interests of the child that a matter like that should receive publicity. If, on the other hand, it is a more serious offence, to my mind the fact that it receives publicity in the Press only tends to make the young gentleman concerned feel that he is rather a glamorous person as his name has appeared in the newspapers, and the result is deleterious to him and there is no particular safeguard to the public.
It seems to me from the debate and from some discussions I heard after the Second Stage that this is a matter on which there is no fundamental difference between us on any side of the House. I hope the Taoiseach will give this section careful consideration between this and the Report Stage, and see whether, both from the legal and practical point of view, it is necessary to word it as it is worded. One of the difficulties that some of us felt on the Second Stage was that we were not really informed as to what exactly is the aim. There may have been certain abuses or difficulties that have arisen in the administration of the law which have led the Department to put this forward and, if we knew what they were, we might be inclined to take a more sympathetic view than some of us might take otherwise.
I have very little experience of the administration of the law. I have not had much jury service either, and it was mostly when I was considerably younger. I have, however, again and again felt and heard it commented on that it is a pity, particularly in Dublin evening newspapers, to see long reports of preliminary investigations of charges which are not going to be defended then and there and which will not be heard possibly for a month or six weeks or two months. I would be quite in favour, where there was the consent of the accused, of not allowing publication of preliminary proceedings, provided I was satisfied that there would be full publicity of the subsequent trial. But I would be very unwilling indeed to widen the powers— and the powers also mean the responsibility of the judges—in relation to hearing in camera unless I knew that the considered opinion of the judges at the present time is that cases arise which they ought to be able to deal with and they are not able to deal with under present law.
The provision that there should be trial in public which is set out in the Constitution is not something which the framers of the Constitution just thought up. It is something based on very long experience of those who seek for justice, together with liberty and freedom, and we will be, and I am perfectly certain the Taoiseach will be, very slow indeed to make any change in that, except a change of a minor character which is necessary for the administration of justice and which would make not only for the interests of the accused, but for the general good administration of the law, which includes, of course, the interests of the accused and a great many other interests as well. I think this requires further consideration. For my part, I would be very happy if I felt that the Taoiseach, who was not responsible for the Bill originally but who is a man of great experience, will give that some thought. I feel certain that he will not insist on it in its present form unless he is satisfied it is necessary.
I find difficulty about this section inasmuch as it does not seem to express the intention of the framers of the Bill as expounded in the explanatory memorandum. Section 15 proposes, according to the explanatory memorandum,
"so far as criminal proceedings are concerned, to prescribe by law, as authorised by Article 34 (1) of the Constitution, the special and limited cases in which the proceedings may be held in camera, and empowers the court also to prohibit or place restrictions upon the publication of information in relation to such proceedings.”
It would appear from that that the intention of the framers of the Bill was to define by law these special and limited cases in which the proceedings are to be held in camera. Instead of that, however, there is far wider power given without any definition at all.
So far as I am personally concerned, I approach the consideration of the general intention that is supposed to be enshrined in Section 15 very much in agreement with the views expressed here. Perhaps I might deal first with the difficulty of Senator Hearne and Senator Ó Buachalla that the expression "in any criminal proceedings" at the start of the section is too wide. I will have that matter investigated by the Attorney-General and the draftsman. I am very reluctant to express any legal or constitutional views of my own in a matter of this kind on an occasion of this kind but, subject to that warning, if I might put it that way, that I am not endeavouring to express a constitutional or legal opinion, I might venture to suggest for the consideration of Senators that possibly the reason for the words "in any criminal proceedings" is because Article 34 of the Constitution deals not merely with criminal proceedings in court but also with civil proceedings. It was probably for the purpose of making it clear that this Bill only deals with criminal proceedings, and not with all proceedings in the courts—I am giving this as my own personal view—that this expression was used. I think there can be no doubt as to its being in accordance with the Constitution, but I will have the matter examined.
I think Senators need not have any worry about these proceedings. If they look at Article 34 of the Constitution they will see that it speaks of justice being administered in courts established by law. Now, there are more courts than criminal courts. This Bill only deals with a portion of the courts, namely, the courts in which criminal justice is administered. I think that is the reason why the expression "criminal proceedings" is used in the section at the beginning, and as I say Senators need not have any worry about it.
With regard to Senator Stanford's amendment, I am sure he will appreciate that I am not criticising it for its form or because it happens to be drafted in the particular way in which it is. I appreciate, for my part, the motives that he has behind it, but he will, I am sure, realise that, in fact, the amendment, as drafted, does not carry out what he wants carried out. I would not hold that against the Senator at all, but, if I came to the conclusion that it was desirable that his principle should be embodied in the Bill, I would give him the assistance of the Parliamentary draftsman to carry it out. So far as his amendment is concerned, the first part of it merely confirms the existing law. That is not necessary unless it was for the purpose of making it clear that whatever was being done in the Bill was not in any way eating into the existing law.
The second part of his amendment proposes that, in addition to these existing powers, the courts "... may in preliminary investigations on the application of the accused or his legal representatives prohibit the publication or disclosure of information in regard to the proceedings or any particular part of them if satisfied that it is in the interests of the accused to do so." That again is merely a statement of what in fact and in law is the existing legal position because under Section 9 of the Petty Sessions (Ireland) Act, 1851, the taking of depositions—the preliminary investigation of indictable offences—takes place in a building which is declared not to be an open court, and, consequently, the district justice, hearing the proceedings there, has full jurisdiction and can, in fact, prohibit the entry of the Press into that place which is not an open court. If it were not the District Court I would say that it might be in fact contempt of court for a newspaper to publish these reports. It certainly would be in the High Court, but it might be doubtful if that was the position in regard to the District Court. In fact it is not an open court where the preliminary investigation of indictable offences takes place, so that really the district justice has power to do what is in the Senator's amendment. I take it that what the Senator really wants to achieve is what we all want to do, namely, to see that the general fundamental principles underlying the administration of justice whether civil or criminal are observed—that justice should be administered in public.
I personally fully subscribe to that principle. I give my adherence to that principle with all the greater satisfaction because of my own experience. I think it is in the interests of the public and in the interests of justice that the greatest light should bear on the administration of justice: that the public should see what is going on in the civil and criminal courts, and that there should be no suggestion in the minds of the public that some hugger-mugger —anything queer—is going on in the courts, whether civil or criminal. In my view it is particularly necessary that there should be publicity in the criminal courts, and as much publicity as possible in connection with the administration of justice in the district courts. It is desirable that the public should see how the Guards conduct their prosecutions and be assured there is no hugger-mugger about police methods, and that those who are charged with conducting prosecutions in these courts should do so with decorum and in strict accordance with justice and of the rights of the accused. In my view you will only get proper administration of justice when there is publicity.
Starting on that principle, on which members on all sides of the House are agreed that there must be full publicity, there is equal agreement in the House that there are certain types of cases to which that should not apply— indecent cases taking them by and large. Senator Stanford agrees with that principle. I believe that Senator Stanford agrees with that principle just as much as Senator Hearne does. Senator Hearne made some sort of an interjection when Senator Stanford was speaking about the Censorship of Publications Act which, in my view, was altogether unjustified. I certainly did not take the view that Senator Hearne did of what Senator Stanford said, and I certainly think that Senator Hearne's remark was quite unjustified. I do not think Senator Stanford intended anything like what Senator Hearne read into his remarks.
We are all agreed that indecency should not be the subject matter of publication in the newspapers. I do not think anybody is in disagreement on that point. Where cases of that kind are prevalent, where they are extensive, and where steps have to be taken for the purpose of preventing them, it is desirable, in reference to that class of case, that there should be the least possible publicity. It is certain that the prurient details to which the judges have to listen, as well as the officials and the legal advisers to the parties in court, should not be made public.
If I may, in an aside, give expression to something which has interested me for a long time I would like to interpolate here my utter astonishment at the amount of publicity that is given by the newspapers to trivial cases in the District Courts. It has been a matter of considerable curiosity to me that such publicity is given to them. I assume that the newspapers well know their own business, and, therefore, regard it as news, but I do not know why some trivial ridiculous case should be given as front page news in the newspapers when, so often, rather vital cases, very interesting cases, are given the back page, and only the early part of the argument or the facts are given in the publication with, very often, the names of counsel omitted. However, I do not suppose it is our business to investigate that particular manifestation of newspaper publicity other than to express some curiosity about it—psychologically or for other reasons. Starting on those two principles, and with the Constitution before us and agreeing that there is a certain limited class of case in reference to which there must be no publicity, that is what we want to do. Is it being done in this section? I am not at all sure that it is. I think there is force in the arguments that have been put forward that, while we have to see that the scope of this section is confined to a special limited class of case, it is perhaps open to doubt whether we have done just what is necessary.
I do not agree with Senator Stanford that the public interest and public morality are synonymous in a legal document or Act of Parliament. I think I would make a shot, if I had to do so, if I were adequately briefed in court, at arguing the meaning of public morality; in the course of my time I argued very much more difficult things. I think we all know what public morality means; we all have a sort of general notion what it means. It might not be a precise expression, and to that extent I agree with Senator Professor Stanford, but we all know that what we want to get at is something that is going to injure the public decencies, something that will sap the morality of a certain class of people, members of the public. That is what we want to get at in this section.
I do not fully subscribe to the proposition put forward by Senator Professor O'Brien that this is unconstitutional. I do not want to express a view on that. I think there is ground for the criticism that the special and limited classes of cases are not sufficiently defined, but again, I could argue that the special and limited classes of cases to which this section will apply are those mentioned in the section, namely, the interests of the accused and public morality and, therefore, the section is constitutional. But, as Senator Douglas has put it, perhaps the matter is one that requires further consideration, and I will undertake to have it further considered and have the views of all Senators carefully examined with the object of seeing if the section can be clarified and made more suitable.
I think there is probably a need, not for widening the powers of the District Courts in the matter of excluding the public or prohibiting publication, but for clarification. Personally, I am opposed to giving wide powers to district justices to exclude the public or prevent publication. I recognise there are numbers of cases where it is desirable that that should be done. I have never quite been able to make up my mind whether it is in the interests of the accused that, where a preliminary investigation of an indictable offence is taking place, publicity should be permitted or not. The argument against jurors being influenced is very strong indeed, but not quite overwhelming.
There is a lot to be said on the other side. I think possibly Senator Professor O'Brien put the other side of the case when he said that the public should be allowed in, but there should be no publicity. That might be the way out. I do not at all like the idea of private courts. On the other hand, I do not like the idea of publicity in certain cases. I am not at all sure that the suggestion of Senator Séamus O'Farrell "in the interests of justice"—and I think Senator J.T. O'Farrell also mentioned it—would meet the situation. I feel the force of the argument that these powers are perhaps too wide to be given to a district justice. Possibly some addition to the powers they have at the moment would be desirable. If the accused requests it and the interests of justice so require—if something like that were set out, it might meet the situation. At all events, these matters can be considered before the next stage.
I think we can say that this has been a useful discussion, a frank and a helpful exchange of views. We will sit down calmly with the advisers of the Government and the draftsman, to see how best can be put into words, in so far as words can put it, the object every side of this House wishes to achieve.
We are all very well satisfied with what the Taoiseach has said and I very gladly withdraw my amendments, confident that the section as it will be drafted by the draftsman will enshrine in it the principles of civil liberty we all stand for.
Amendments Nos. 14 and 15, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.
Tairgim, ar son an tSeanadóra Ó hEacháin, leasú a 16:—
To add a new sub-section as follows:—
(7) A convicted person to whom the decision of the justice refers, or his legal representative, shall on application made ex parte to the justice, be entitled to inspect the charge sheet or minute book as the case may be and shall at all times be entitled to bespeak a certified copy of said Order, on payment of the appropriate fee.
Ach an oiread leis na leasuithe eile ní mheasaim gur gá morán a rá ar son an leasuithe atá anois ós ár gcomhair. Chítear dom gur ceart go mbeadh an phríbhléid atá i gceist sa leasú ar fáil ag duine ar bith a gheofaí ciontach sa gCúirt nó ag a dhlíodóir nó ag an abhcóide a bheadh ag gníomhú ar a shon. Tá mé cinnte go n-aontóidh an Taoiseach gur iarratas réasúnta atá á dhéanamh sa leasú seo agus go nglacfaidh sé leis.
I am sympathetically disposed towards portion of this amendment, but I think that the amendment as it stands will require recasting. In so far as the amendment asks for the right to be established of a convicted person being entitled to a copy of the entry in the justice's minute book or in the charge sheet, I would be disposed to recommend the acceptance of that. In so far as it seeks to permit an inspection of the minute book, I suggest to Senators that that should not be accepted. The last part of the amendment speaks about the convicted person being entitled to a certified copy of the Order on payment of the appropriate fee. He already has that right. It is in the District Court Rules, but whether it might be desirable to have it in the statute or not is another matter.
Perhaps Senators do not know or understand, because it is rather a difficult technical matter to understand, what is at the back of the section and the amendment. When a district justice hears a case he has to make a decison on the facts and the law before him and he has to record that decision. In the High Court or the Supreme Court that is done by an official. It is drawn up—the judge merely gives his decision orally and it is put into proper order by the official. But because the District Court has a limited jurisdiction and the order of the court must show jurisdiction on its face, it is necessary that that order should be pretty carefully drafted by the District Justice himself.
The question that has caused difficulty is whether or not the order of the district justice should be there and then entered in the book which he has in front of him or whether an interval should be allowed to elapse when a formal order could be drawn up between himself and his clerk. It might be suggested that if an interval was allowed to elapse between the hearing of the case and the conviction and the drawing up of the order, certain ingredients constituting the evidence and the jurisdiction might not have been present and they might be just put into the order—in other words, the order might have been drawn up ad hoc. What is in this Bill really conforms to a decision in our courts at an early stage of the District Court proceedings.
The High Court decided that the order of the district justice was the entry in his book. Subsequently, by rules, that was altered to provide that the order of the court should be what was entered up afterwards as a formal order, done at leisure, done in consultation and done in a purely formal way. It is proposed by this amendment to impose upon the justice the duty of entering his decision immediately after he gives such decision and the offence upon which the accused person has been convicted. The Senator's amendment proposes to permit the convicted person to inspect the justice's book, to get a certified copy in the ordinary way of the entry in the book together with a certified copy of the formal order if and when made up. I submit to the House that the purpose behind the amendment will be reasonably met if the convicted person gets on application a certified copy of the entry in the justice's book and a certified copy of the order. I submit further that there is no necessity for him to go in and inspect the justice's book. That book contains hundreds of other cases. It may not be convenient to have an inspection take place at a particular time. The justice is using his book day in and day out. I think it would be both inconvenient and unnecessary to allow inspection of such a book. It must be assumed that the officers of the court will at all times act properly in accordance with their duties. When a certified copy of the entry in the justice's book is given, as I suggest it should be given, together with a copy of the order, if and when required, that should meet the case.
Amendment, by leave, withdrawn.
Sections 16 and 17 agreed to.
SECTION 18.
Tairgim leasú 17:—
To delete sub-section (3).
Tá an leasú chomh díreach agus chomh simplí gur ar éigin is gá aon ní a rá ina thaobh. Tá an chumhacht ag an Rialtas breithiúnas a chur ar ceal má thograíonn sé, ach is ceist í an ceart don Rialtas an chumhacht mhór sin d'aistriú uaidh fhéin go dtí duine nó dream ar bith eile. Déarfainn féin nach mbeadh a leithéid d'aistriú do réir an Bhunreachta, go h-áirithe do réir ailt a 13, fó-alt 6. Má tá an Taoiseach an-láidir ar chumhachta den tsórt seo d'aistriú chun daoine eile, ansin, iarraim air na daoine sin d'ainmniú agus na hainmneacha sin a scrí isteach sa mBille.
Tá rud beag eile a bhaineas leis an alt agus ba mhaith liom é a lua anseo. Is dóigh liom go mba chóir don Rialtas socrú a dhéanamh, mura bhfuil a leithéid de shocrú ann cheana, go bhfaighfí ráiteas ón mbreitheamh a bhí i mbun na cúise a bheadh á scrúdú ag an Rialtas sul a ndéanfaí socrú breithiúnas an bhreithimh sin d'athrú in aon bhealach.
I am disposed to think this power under Section 18 sub-section (3) is rather too wide. The word "authority" is obviously taken from Article 13 clause 6 of the Constitution which provides that power of commutation or remission may be conferred on other authorities. I think the word "authority" is taken from that. Probably that power was put in so that the Government could delegate specifically power under this Bill to the Minister for Justice for example. I think that is all that is intended. This is rather too wide because power might be given to the office boy if he could be called "an authority". One might have trouble in defining exactly who was an authority. I think it was only intended to give that to the Minister for Justice.
Amendment, by leave, withdrawn.
Government amendment No. 18 agreed to:—
To delete sub-section (5).
Section 18 agreed to.
SECTION 19.
Government amendment No. 19:—
To insert at the end of the section the following: "or to a place of detention provided under Part V of the Children Act, 1908."
The purpose of Section 19 is to remove possible doubt that may exist as to the right of appeal from a conviction by the District Court and an order committing a convicted person to a certified school under the Children Acts or to a Borstal institution. At the moment it might appear that the section does not cover the case of orders of committal to a place of detention provided under Part V of the Children Act, 1908. I think it will be agreed that there should be provision for the right of appeal to a child committed to a place of detention and it is for the purpose of giving that right of appeal that this amendment is put forward.
Amendment agreed to.
Section 19, as amended, agreed to.
NEW SECTION.
Government Amendment No. 20:—
Before Section 20 to insert a new section as follows:—
An Order may be made under Section 1 of the Police Property Act, 1897, for the disposal of property in the possession of the Garda Síochána although no person has been charged with an offence in connection with it.
This amendment is for the purpose of clarifying the position where doubt has arisen as to the power of a court to dispose of property which has come into the possession of the Garda Síochána in the course of their duties. If no owner can be found for the goods and if nobody has been charged with stealing the goods, doubt has been expressed as to whether the district justice has power to make an order giving the Gardaí permission to dispose of such property. This amendment is for the purpose of giving the court power to make an order for the sale of such goods. I think that is a proper power the court should have.
Amendment agreed to.
FIRST SCHEDULE
The following Government amendments, Nos. 21 and 22, were also agreed to:—
Between reference numbers 10 and 11 to insert the following:—
An offence under section 11 of the Criminal Law Amendment Act, 1885, where the accused person is over the age of 16 years and the person with whom the act is alleged to have been committed is either under the age of 16 or is an idiot, an imbecile or a feeble-minded person.
Between reference numbers 13 and 14 to insert the following:—
Attempted carnal knowledge constituting an offence under sections 1 (2), 2 (2) or 4 of the Criminal Law Amendment Act, 1935.
First Schedule, as amended, agreed to.
SECOND SCHEDULE
Government amendment No. 23:—
To delete the reference to the Dublin Police Act, 1842, and substitute the following:—
|
“5 and 6 Vic., c. 24.
|
Dublin Police Act, 1842.
|
Sections 33 and 53.”
|
This is a consequential amendment.
Amendment agreed to.
Government amendment No. 24:—
Before the reference to the Remission of Penalties Act, 1859, to insert the following:—
|
“18 & 19 Vic., c. 126.
|
Criminal Justice Act, 1855.
|
The whole Act.”
|
The amendment proposes to repeal the Criminal Justice Act, 1855. Most of the provisions of that Act have long since ceased to have any practical application whatever. There was one section which may have been used recently, that is, Section 3, under which the District Court was able, on a plea of guilty by a person accused of larceny or embezzlement, to deal with the case in a summary manner; but now, having regard to the provisions of this Bill, that section of the old Act has lost all its utility and practical effect, and it is accordingly better to get it off the Statute Book.
Amendment agreed to.
Government amendment No. 25:—
To delete the reference to the Offences Against the Person Act, 1861, and substitute the following:—
|
“24 & 25 Vic., c. 100.
|
Offences Against the Persons Act, 1861.
|
Sections 43, 44 and 45.”
|
This is another repeal of a Statute which is regarded as necessary to tidy up matters.
Amendment agreed to.
Government amendment No. 26:—
Before the reference to the Courts of Justice Act, 1924, to insert the following:—
|
“4 & 5 Geo. V, c. 58.
|
Criminal Justice Administration Act. 1914.
|
Section 18.”
|
This is consequential on amendment No. 4
Amendment agreed to.
Government amendment No. 27:—
To add to the Schedule the following:—
|
“No. 6 of 1935
|
Criminal Law Amendment Act, 1935.
|
Sections 5 and 15.”
|
This is consequential on amendments Nos. 21 and 22.
Amendment agreed to.
Government amendment No. 28:—
To add to the Schedule the following:—
|
“No. 48 of 1936
|
Courts of Justice Act 1936.
|
Section 82.”
|
This is consequential on amendments Nos. 9 and 23.
Amendment agreed to.
Second Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 26th October.
The Seanad adjourned at 5.5 p.m. until 3 p.m. on Wednesday, 26th October, 1949.
