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Seanad Éireann debate -
Wednesday, 26 Oct 1949

Vol. 37 No. 2

Criminal Justice Bill, 1949—Report and Final Stages.

Government amendment No. 1:—
In page 2, Section 2 (2) (b), line 35, to delete "authorised" and substitute "consented to".

This amendment provides merely for a verbal change in paragraph (b) of sub-section (2) of Section 2.

Paragraph (b) provides that a person shall not be tried summarily for (a) an offence in the nature of a public mischief; (b) an indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law; (c) perjury; (d) attempts to commit such offences unless the Attorney-General has authorised his being so tried.

In a memorandum on the Bill which I received from the Irish Association of Civil Liberty, it was suggested that the use of the word "authorised" in this context was open to objection on constitutional grounds. While not accepting entirely the association's view on the constitutional issue, I agree that it might be better to avoid any suggestion that the Attorney-General "authorises" the trial of anybody even where, as in the present instance, it is merely a question of the mode of trial. The purpose of the provision will be adequately served if the words "consented to" are substituted for "authorised", which is what the amendment proposes.

Question put and agreed to.
Government amendment No. 2:—
In page 3, Section 3 (3) (b), to delete "and stating in general terms the evidence that is to be given by them" and substitute "and giving a statement of the evidence that is to be given by each of them."

The purpose of this amendment is to make it clear that when, at a trial, it is proposed to call as witnesses for the prosecution persons who have not made depositions, the accused must be furnished beforehand with a statement of the evidence to be given by each such witness.

This point was debated on Committee Stage on an amendment which had been tabled by Senator Hawkins and which was accepted in principle by the Taoiseach. The amendment now before the House is being moved in fulfilment of the Taoiseach's undertaking to bring in an appropriate amendment on Report Stage.

May I express my appreciation of the manner in which the point has been met? Both the Taoiseach and the Minister for Justice have gone even further than we thought they would go, in that the words suggested were "a summary of the evidence". This gives the accused man a far greater safeguard, in that he is getting "a statement of the evidence".

Question put and agreed to.
Government amendment No. 3:—
In page 3, Section 4, to add a new sub-section as follows:—
(2) In the case, however, of an offence under Section 11 of the Wireless Telegraphy Act, 1926 (No. 45 of 1926), the District Court shall not impose a fine exceeding £10 or a term of imprisonment exceeding one month.

This amendment is closely related to and is, indeed, consequential on two later amendments, Nos. 11 and 14. With the leave of the House, therefore, it is proposed to leave this amendment over until the later amendments are reached.

Agreed accordingly.

Government amendment No. 4:—
In page 3, Section 8, line 42, to insert after "may" the words "subject to sub-section (2)".

Amendments Nos. 4 and 5 may be conveniently considered together—amendment No. 4 being wholly incidental to No. 5.

There is no objection.

The Taoiseach, in the course of the debate on Committee Stage, undertook to re-examine Section 8 of the Bill, which proposes to amend the law in relation to the admissibility of the deposition of a witness who had become insane or was so ill as to be unable to attend the trial, with a view to seeing whether the section could be tightened up so as to meet the points of views expressed during the debate.

Amendment No. 5 proposes to provide that, in the case of a deponent who is insane or ill, his deposition shall not be read at the trial without the accused's consent unless the court is satisfied that he is unlikely to recover within a reasonable time. Accordingly, if the accused objects to the deposition being read, the court must have proof that the deponent is unlikely to recover within a reasonable time before it may allow the deposition to be read. It is suggested that this safeguard, with the safeguards already contained in the section, namely, that the court must have proof that the deposition was taken in the presence of the accused and that the accused or his legal representative had an opportunity of cross-examining the deponent, meets all reasonable objections to the section.

Question put and agreed to.
Government amendment No. 5:—
In page 3, Section 8, to add a new sub-section as follows:—
(2) In the case of the deponent's insanity or illness the deposition shall not be read without the accused's consent unless the court is satisfied that the deponent is unlikely to recover within a reasonable time.
Question put and agreed to.
Government amendment No. 6:—
In page 5, Section 18 (1), to delete lines 45 to 47 and substitute the following:—
(1) On the preliminary investigation of an indictable offence the court may, if satisfied that it is expedient, in the interests of the accused or because of the indecent or obscene nature of the offences, so to do,—

It is proposed, with the leave of the House, to take the two amendments to Section 18— amendments Nos. 6 and 7—together.

There is no objection.

As Senators will have gathered for themselves, the effect of the two amendments is to recast Section 18 on lines which, it is believed, will meet the criticisms expressed by Senators on the earlier stages of the Bill. The Taoiseach undertook, on Committee Stage, to reconsider the section in the light of the views that had been expressed in the debate, and the amendments are intended to implement the Taoiseach's undertaking.

Before I proceed to deal with the amendments themselves, there is one point upon which I would like to say a few words. There appears to have been a misconception in some quarters as to the need for some such provisions as those in Section 18 of the Bill —a misconception which, to some extent, appears to have been due to the belief or supposition that there exist already adequate powers in regard to the hearing of cases in camera and the prevention or restriction of undesirable publicity in relation to court proceedings and that, consequently, fresh legislation was superfluous and unnecessary. It is, in fact, by no means certain that this is the case.

I am advised that it is at least open to serious doubt whether, following the enactment in 1937 of the express and unqualified provision in Article 34 (1) of the Constitution that justice should be administered in public courts, any of the previously subsisting statute or other law purporting to enable courts to be cleared or cases to be heard in camera continued in force. The Constitution was amended in 1941 so as to enable justice to be administered other than in public courts in such “special and limited cases” as might be prescribed by law, but this amendment could scarcely be regarded as reviving the pre-1937 law which was thought to have been impliedly repealed by Article 34 (1) as originally enacted. Accordingly, a fresh statutory enactment was necessary to implement the amended Article 34 (1) and to remove all doubts in the matter. It was not, therefore, a question of legislating, gratuitously and unnecessarily so to speak, to confer wholly new and additional powers on the courts.

I think that Senators will agree that the objections to the section as originally introduced are met by the amendments now before the House. Amendment No. 6, if agreed to, will have the effect of restricting the application of sub-section (1) to cases of the preliminary investigation of indictable offences. It was, I think, the view on all sides that in these cases the court should have the power to take the depositions in camera and that there should be no publicity which might, in any way, prejudice the trial of the accused. It was mentioned, however, that there might be cases in which in camera proceedings might be undesirable in the interests of the accused and the case was instanced in which the justice, following an in camera hearing, refuses informations and discharges the accused, a result which may provoke ill-informed but harmful comment among the public who have heard nothing of the evidence. The new sub-section (1) will enable such a situation to be avoided because, in appropriate cases, the justice will, by exercising his power to prohibit or restrict publication, be able adequately to safeguard the interests of the accused and eliminate any serious risk of prejudicing his trial without having to resort to an in camera hearing, so that if the justice refuses informations, he will do so after a hearing in open court.

Amendment No. 7 proposes to insert a new sub-section dealing with cases of an indecent or obscene nature. The court's power under the proposed provision will be restricted to the exclusion from the court of all persons except (a) the officers of the court; (b) the persons directly concerned in the proceedings, and (c) bona fide representatives of the Press. This provision is a substantial re-enactment of Section 79 of the Courts of Justice Act, 1936, which it is proposed, as a corollary, to repeal. The repeal is provided for in amendment No. 16. So far as the publication of the reports of the proceedings in cases of an indecent or obscene nature is concerned, this will continue to be subject to the restrictions in this regard provided for in the Censorship of Publications Act, 1929. As in the case of amendment No. 6, I think it may be said that the proposed new sub-section accurately reflects what appears to have been the general feeling of the House on this particular aspect of the problem as expressed during the debate on the Committee Stage.

Is maith liom go bhfuil an leasú seo tugtha isteach ag an Aire, ach tá mé in aimhreas faoi bhrí an leasuithe mar atá ráite anseo, "the court may, if satisfied that it is expedient, in the interests of the accused or because of the indecent or obscene nature of the offence, so to do." Cuirim i gcás gurb é an rud a bhí i gceist dúnmharú, cad iad na himeachtaí a bhainfeadh leis an gcúis go dtiocfaidís faoi na téarmaí sin "indecent or obscene." I geás den tsórt sin, an bhféadfaí an chúirt a ghlanadh an fhaid a bheadh an fiosrú ar bun? Cuimhním roinnt blian ó shoin i nGaillimh, go raibh cúis mhór—dúnmharú a bhí i gceist—dá thriail. Ar a laghad, bhí an fiosrú tosaigh ar bun ins an gcúirt sin. Shocraigh an giúistís go nglanfadh sé an chúirt, ach bhí lucht na bpáipéar an-mhíshásta agus sílim go dtáinig siad go Baile Átha Cliath anseo ag iarraidh comhairle. Chuireadar i gcoinne an ghiúistís, ach sa deireadh tharraing siad siar an argóint. Bhí siad den tuairim go raibh an ceart acu bheith i láthair ag an gcúirt. Tá dhá rud ann. Bhéarfaidh an leasú seo údarás don ghiúistís an chúirt a ghlanadh ar ócáideacha áirithe ach i gcás mar atá mé a rá an dóigh leis an Aire gur leor an leasú mar atá nó an dóigh leis, muna leor, gur gá dó dul níos faide?

The justice may clear the court at any time where anything of that particular nature arises.

At any time, no matter what the offence is?

Yes, he may, if that situation arises. This is restoring what was already there. It is clarifying the matter. It is giving the judge power in his own court to do the right thing without tying him too tightly to anything. If anything obscene arises in any trial——

In any trial?

——he may clear the court.

I do not know whether any member of the Seanad requires any discussion of this section as it now stands or of the proposed amendment, further than the explanation the Minister has given. There are a few remarks I would like to make arising out of what was said on the Second Reading and also on the Committee Stage of the Bill in reference to this section. On the Second Reading I tried to explain to the House the reason for this particular section. Possibly I did so too summarily, because the subsequent debate then and on the Committee Stage would indicate that the explanation that I attempted to give was not fully understood by certain Senators.

Unfortunately, I was not able to be here for the Committee Stage, but I was surprised, on reading the record of the proceedings, to find that I was supposed to have been defending a clause or a section which provided for secret courts. I always thought that in my own humble way I had been as much opposed to secret courts and had shown it on various occasions as any member of the Seanad, and I would like the Seanad to understand that those who thought that I was in some way responsible for introducing a clause into this Bill designed to provide for secrecy of the courts seriously misunderstood my personal approach and, I think, the Government approach.

Of course, it has been well understood that there is nothing controversial in this Bill and that all members of the Seanad have the single purpose to put the law technically into as desirable a state as it can be in relation to a somewhat difficult matter. As the Minister has explained, some provision of this kind is absolutely necessary if the situation which has existed for a great number of years is to be continued, that is to say, that in certain cases there shall not be publicity for proceedings in various courts. The two main grounds upon which publicity ought to be avoided are what was described in the section as it originally stood as the interests of public morality, and, secondly, the interest of the accused, that he should be properly protected and that full justice should be done to him.

The law as it stood before the enactment of the Constitution did contain provisions in respect of both these matters and, owing to the form which the Constitution, as originally enacted, took, all these provisions were swept away. That was not designedly done. It was done without an intention to do it by the provision that all courts were to sit in public. There survived the Constitution, of course, only laws then in force which were not inconsistent with the Constitution and all provisions of any kind and nature whatsoever providing for courts dealing with any judicial matter otherwise than in public were inconsistent with the Constitution and thereby ceased to have any force and effect. Of course, it was shortly appreciated that that was not a desirable state of affairs and the Constitution was amended and it was provided by the Constitution, as amended, that certain limited cases should be provided for by law in which the courts should not sit and act and work in public. But, that provision by amendment of the Constitution, of course, did not in law have the effect of bringing back into force the provisions which had been abolished by the Constitution as enacted and, therefore, Section 18 of the Bill became necessary.

That was its purpose. I mentioned that on Second Reading but, both in this House on the Committee Stage and outside this House, there have been suggestions made that some vigilant Senator has detected some deep-laid plot to bring about a system of secret courts. Now, I am sure the Seanad appreciates that not only did the section not purport to bring about any such state of affairs but that no such state of affairs was intended.

The matter, as I also observed on Second Reading, is one of considerable difficulty because there are two points of view which have to be reconciled. In the first place, anyone can state, and secure general agreement for, the proposition that the justice of the State ought to be administered in the full eye of the citizens of the State and, therefore, in public. That is a general proposition that would command universal assent. The other point of view is that publicity in certain types of cases offends against other desirable purposes, in particular, the publication of, or even the presence of members of the public at, proceedings of a kind which I described on Second Reading as of an obscene character, which have to be investigated sometimes in very unpleasant circumstances in court, is very unsuitable from many points of view, both in the interests of the criticised phrase "public morality" and in the interests of the persons who have to take part in these proceedings whether as judge, or counsel, or accused persons, or as witnesses. There are many occasions when it is very difficult, very unpleasant, very undesirable that young people should have to give evidence in public of matters of a kind that we all appreciate have sometimes to be dealt with. You have got to deal with that and then you come to deal with the other question of the interests of the accused.

The first consideration is that an accused person should get a full and fair trial. Every other consideration must yield to that.

It was thought, and I think it is now generally accepted, that in the case of the preliminary investigation of an indictable offence it often is desirable, perhaps generally desirable, that there should be no publicity. That has to be considered in the light of the consideration of public justice. The two ideas have to be brought into accord so far as possible. They are both important considerations and they must be joined together—some compromise must be found which will give due effect to both points of view. Apart from the interests of the accused in securing a fair trial, there has also to be considered his personal interests, and the interests of his friends, understanding by his friends, his relatives. There is no doubt that when individuals are accused of disgraceful crimes or of any crime, whether they are convicted or not, the publicity given to the charge brings great hardship, sorrow and even monetary loss not only to the persons on trial but to their near relatives.

I am sure that Senator O'Brien did not wish to be taken strictly literally when he asked the Seanad to approve of full publicity because the harrowing effect—I am not quoting the Senator's exact words—on the accused and his relatives was one of the sanctions of the criminal law. I do not imagine that the Senator wanted that to be pushed very far, but anybody who has had experience of the work of criminal courts—anyone who has met the persons accused or their friends— knows the sorrow and often monetary hardship that falls, not only on the accused person, but on his relatives. Anybody who has had such experience as I have had—the experience of 25 or 30 years—knows that sometimes the most serious suffering that an accused person has to undergo is not the penalty which the court imposes, but the discredit brought upon him and his family by sometimes undue, and sometimes uncalled for, publicity. These matters have, of course, often to be left to the discretion of editors of newspapers and the journalistic profession as a whole, and as I said before, they generally exercise a wise discretion in the use of their tremendous powers, because tremendous powers they are. A man is accused of a crime which, in itself, if there is a conviction, will call for a fine of £10 or £50. If that is not reported in the papers, he pays the penalty and goes his way. If it appears in the papers, he and his wife and his children and his relations suffer terribly. I know that legislation is not perhaps the corrective in respect of matters of this kind, but it ought to be borne in mind, and so far as the positive law can go, it ought to protect people against suffering of that kind.

I ventured also on the Second Reading debate to suggest that it was wrong for the Legislature to attempt to prescribe how proceedings in court should be conducted in matters of detail. It is, of course, necessary and proper that the general lines of procedure should be laid down by the Legislature, but when that has been done, the safest rule, in my opinion and submission to the House, is that the judge ought to be allowed to act in full control of the course of proceedings in his court. I think that on other amendments of this Bill the wisdom of giving a judge a general discretion in the control of proceedings in his court will be demonstrated. Some people think that judges will not always act correctly. Of course that is true, but the question is, whether the Legislature at a long distance can forecast what would be the appropriate way of dealing with the particular problem which it would require immense imagination for them to foresee, or whether the situation would not be best dealt with by leaving control of the proceedings in the hands of the judge appointed to rule over his court. If a Government sends a captain into the field to conduct an army they do not give him directions in tactics or strategy.

If the Government sets up a particular statutory body it does not purport to direct that body as to how it shall deal with its day-to-day working. If it did, there would be no reason for setting up such bodies and, just as it would be wrong to control the functions of a captain in the field, so it is wrong to attempt to direct the procedure of a judge in the day-to-day workings of his court. The best that can be done is to appoint judges of experience, judges in whom the public can have confidence, and leave them to deal with these problems. The Legislature should content itself with laying down general lines of procedure and leave matters of detail to be dealt with in the innumerably varying circumstances which will occur from day to day in a court. I do not know whether there is any inclination on the part of Senators to make further observations. The remarks of Senator Ó Buachalla have been dealt with by the Minister, and I do not know whether anything I have said will provoke Senators to further criticism of this section.

I raised a point on the last day the Bill was under consideration and I am not clear whether the original objection to the clause has been met. This amendment provides that in the preliminary investigation of an indictable offence the court has power to prohibit publication amongst other things. I am not sure whether that will protect the type of case I referred to that comes up usually in the children's court. Is it an indictable offence to be an orphan or to have poor parents, or parents who neglected one? Then if it is not an indictable offence, so far as I can gather from the Bill, it is open to any paper to publish the details of that case. I want protection for the children. Ninety-four per cent. of children committed to industrial schools in this country at the outset are not criminals. They are charged under law with the crime of being orphans or being poor or having negligent parents. There is no protection given in this Bill to those children. With the good will and cooperation of the editors of the papers, particularly in Dublin, the names of those children are not published but it is within their power to publish details of the whole case, even where a child has committed some trifling offence—in the 6 per cent. where they are juvenile offenders. I think it is wrong that a case in a juvenile court should be reported at all, because as the Attorney-General has said a man may commit an offence and have a legal penalty attached to the proving of that offence against him, and having paid the penalty he still may have to suffer the public odium that accumulates against him because the case was published.

A child going into an industrial school who has committed no offence will have for the greater part of his life, if not for his whole life, the stigma of having been sent to a juvenile prison. I know that the industrial schools are not juvenile prisons and are not intended to be juvenile prisons, but the cases of the 94 per cent. of the children who go there by reason of poverty or the death of their parents are never reported, while the 6 per cent. who steal something from a motor car, who kick football in the streets or who break the compulsory school attendance laws—the type of children who will commit a petty theft and will be described by one of the district justices as young blackguards —their cases are all reported, and it will be announced that the district justice has remanded a child for a week or a fortnight until he finds an industrial school to which to send the child. The obvious inference to be drawn by the public is that everybody in an industrial school is a criminal of some sort or other. The 94 per cent. of cases in which a child is committed to an industrial school because he is poor or because he is an orphan are not reported, but the remaining 6 per cent. of cases are reported and there is no protection given to these children under the Bill or the amendment. I think there should be some protection. It seems a very unpopular thing to suggest that there should be censorship, but I am all in favour of censorship in respect of the proceedings in children's courts and I should like an assurance that censorship as applied to these courts will be considered.

In relation to Senator O'Farrell's point, Section 114 of the Children's Act, 1908, sets out:—

"In addition to and without prejudice to any powers a court may possess to hear proceedings in camera, the court may, when a person who in the opinion of the court is a child or young person is called as a witness in any proceedings in relation to an offence against or any conduct contrary to decency or morality, direct...”

The court can be cleared in that case. It is not an offence to be poor or to be an orphan and in these cases the newspapers usually show a sense of decency. I do not know if we could start to prescribe for that, because, as I say, it is not an offence to be poor. It may be a hardship upon the people involved, but, at the same time, I think we can depend on the good sense of the newspapers in the matter.

The Minister does not quite get my point. It is no offence now to be poor. It was until this House brought in an amending Act to the Act which the Minister has quoted and made poverty itself sufficient ground for committal. My point is that while the papers do not publish the cases of the children sent to these homes because they have no other homes to go to, they do publish the cases in which children are accused of petty crime, which gives the general impression to the public that all children in these institutions are necessarily criminals, and I, therefore, think that if all children's courts proceedings are not held in camera, they at least ought not to be reported. If it be, as it is, a penalty and a harship on an adult to have to suffer by reason of the publication of his case at the age of 50 or 60 years, what must it be in the case of the child of six or ten years who has to face a lifetime with that stigma attaching to him?

I do not believe that Senator O'Farrell would deliberately mislead the House, but I rise to make a correction. He said in the course of his speech that a paragraph had appeared some time ago in one of the Dublin evening papers with the heading "Some Young Blackguards."

"Two Young Blackguards."

That occurred in the metropolis, but I want to assure the House that so far as Cork City is concerned—and I speak with some knowledge of newspaper production over a very long period of years— proprietors and editors have given strict instructions to their reporters not to publish the names of young persons charged in the children's courts. These cases are usually published in this fashion: "Four young persons were charged in the children's court"—with some misdemeanour or other. No names have ever been published, so far as Cork City is concerned, in the case of the only morning newspaper published there.

I would like to assure Senator O'Farrell that I did not rise to criticise anything he said because I feel, with him, that cases besides those which have been mentioned, cases in which certain juveniles are concerned, should not be published. I should much prefer to see the age raised in the case of those attending these courts because some injustice is done in this connection; but I want to emphasise this fact, a fact of which I have full knowledge, that instructions have been given to reporters and editors that in no circumstances are the names of children who have to appear before the court in Cork City to get publication in the morning newspaper.

There is no publication of names in the Dublin papers that I have ever noticed, but I do not know whether Senator O'Farrell is suggesting that there should be no report of examples of what are called juvenile delinquency. I understand his point, that the cases of children who commit what might be called petty crimes and who are sent to reformatories confuse the issue for the big majority who go to reformatories without having committed any form of crime whatever. I understand that point, but I feel that if there was no report whatever in cases of what is nowadays called juvenile delinquency, it would be a bad thing, but I quite agree that the present practice which obtains in Dublin, I think, as well as in the superior part of Ireland, Cork, is a good thing.

I do not know whether it is in order for me to speak again——

Not on Report Stage, but I am allowing the Senator an opportunity to do so.

I accept that names are not published here or in Cork in these cases, but the fact that the details of the cases are published gives the public the impression that everybody coming from one of these schools must have gone there as a criminal.

This Bill has to go through the other House and I will have the point examined to see to what extent I can meet it, but it is not an easy matter.

I am glad the Minister has agreed to look into it. I have a good deal of sympathy with Senator O'Farrell with regard to names. At the same time, I think that, whether it must be connected with particular cases or not, it is important that the public should be made aware of the serious increase in what is commonly called juvenile delinquency. It might be that it could somehow be separated from the industrial schools and that going to an industrial school would not be regarded as a sentence. I am in complete agreement with the Senator when he says that we should try to get away from the idea, which still exists, that an industrial school is a juvenile prison and anything that could be done to get that out of the public mind would be helping the future of these young people and giving them a better chance. To that extent, we are in complete agreement. I feel, also, that we are very much indebted to the Attorney-General for the statement he made here to-day. It was a statement in which he set out principles which we can support and which, for me, clarified the position very much indeed.

Question put and agreed to.
The following amendment (Government amendment No. 7) was also agreed to:—
In page 6, Section 18, before sub-section (2) to insert a new sub-section.
( ) Where a person is being tried in any court for an offence which is, in the opinion of the court, of an indecent or obscene nature, the court may, subject to sub-section (3) exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings andbona fide representatives of the Press.
Government amendment No. 8:—
In page 6, Section 19, to add a new sub-section as follows:—
(7) Any person having abona fide interest in the matter may, upon payment of the prescribed fee, obtain a certified copy of the order and, then or thereafter, a certified copy of the signed entry.

This amendment is in substitution for the amendment which appears on the list of amendments. I think it covers everything raised on Committee Stage.

I must confess that, as a layman, I thought that the amendment as originally circulated met the point properly, but in view of the explanation of the Minister I can see that the wording in the original amendment did not cover completely the points raised.

The original amendment said that persons with bona fide interests may obtain from the clerk.... It meant that the decision was left to the clerk of the court. This removes that and gives the power to the court itself as such, therefore the justice. It may be the clerk who will do it but it is no longer dependent on the whim of somebody.

Question put and agreed to.
Government amendment No. 9:—
In page 6, Section 21 (3), line 45, to delete "any other authority" and substitute "a Minister of State".

On Committee Stage it was objected that sub-section (3) of Section 19 was expressed too vaguely inasmuch as it proposed to confer power on the Government to delegate to "any other authority" the power of commutation or remission of punishments imposed by criminal courts or the power to remit forfeitures or disqualifications imposed by such courts or to restore or revise the subject of the forfeiture.

The Taoiseach then undertook to consider the point and, in the result, it is now proposed by this amendment to make it clear that the Government may delegate the powers in question only to a Minister of State.

I thoroughly agree because I had visions of a Government at some day giving authority to a local authority, say, who might be an authority under this, for remissions of fines under the Licensing Acts and certainly as a member of Longford Urban Council I would resign immediately if any Government attempted to do anything like that.

Question put and agreed to.
Government amendments Nos. 3, 10, 11, 12, 13, 14 and 15:—
In page 3, Section 4, to add a new sub-section as follows:—
(2) In the case, however, of an offence under Section 11 of the Wireless Telegraphy Act, 1926 (No. 45 of 1926), the District Court shall not impose a fine exceeding £10 or a term of imprisonment exceeding one month.
In page 7, First Schedule, between reference numbers 6 and 7, to insert the following:—
An offence under Section 16 of the Plate Assay (Ireland) Act, 1807, as amended by Section 2 of the Plate Assay (Amendment) Act, 1931.
In page 7, First Schedule, between reference numbers 14 and 15 to in-insert three new references as follows:—
An offence under Section 24 of the Enforcement of Court Orders Act, 1926.
An offence under Section 11 of the Wireless Telegraphy Act, 1926.
An offence under Section 65 of the Road Traffic Act, 1933.
In page 8, Second Schedule, before the reference to the Dublin Police Act, 1842, to insert the following:—

“47 Geo. III Sess. 2, c. 15.

Plate Assay (Ireland) Act, 1807.

Section 17, in so far as it relates to fines imposed by the District Court for an offence under section 16 of the Act.”

In page 8, Second Schedule, to delete the reference to the Enforcement of Court Orders Act, 1926, and substitute the following:—

“No. 18 of 1926.

Enforcement of Court Orders Act, 1926

Section 24, subsection (3).Section 25, from ‘within one month’ to ‘without force but.’”

In page 8, Second Schedule, before the reference to the Courts of Justice Act, 1928, to insert the following:—

“No. 45 of 1926.

Wireless Telegraphy Act, 1926.

Section 11, subsection (4).”

In page 8, Second Schedule, before the reference to the Criminal Law Amendment Act, 1935, to insert the following:—

“No. 10 of 1931.

Plate Assay (Amendment) Act, 1931.

Section 3.

No. 11 of 1933.

Road Traffic Act, 1933.

Section 65, sub-section (2).”

I think that it will be convenient, and will save a certain amount of time and repetition, if the House will agree to discuss these amendments together. The amendments deal with technical points and involve no important changes in substance. They constitute in the main a piece of tidying up of the statute law in relation to the summary trial of certain indictable offences. The reasons for the amendments are, however, slightly complicated.

The various enactments, namely, the Enforcement of Court Orders Act, 1926; the Wireless Telegraphy Act, 1926; the Plate Assay Act, 1807, as amended by the Plate Assay (Amendment) Act, 1931, and the Road Traffic Act, 1933, which are mentioned in the amendments, make provision for the summary trial of certain indictable offences created by the Acts. In every case the power of the District Court to deal summarily with the offences is subject to the proviso that the justice must be satisfied on the facts proved that the offence constituted a minor offence fit to be tried summarily. This corresponds with the provisions of Section 77b of the Courts of Justice Act, 1924, which conferred jurisdiction on the District Court to try summarily the series of indictable offences specified in that section. Section 77b is now being repealed and Section 2 of the Bill provides that, if the court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, it may so try any of the scheduled indictable offences. This change is being made so that it will not be necessary for a justice to proceed to hear the whole of the evidence before making up his mind that the case is one with which he may deal summarily. This procedure involves a considerable waste of time in the taking of depositions which serve no purpose if the justice eventually decides to deal himself with the case.

It is clearly desirable that the summary trial of all indictable offences that may be dealt with summarily should be subject to the same statutory provisions. Accordingly, it is now proposed in these amendments—

(a) to include in the First Schedule to the Bill the offences under the various Acts mentioned, thus making the summary trial of these offences subject to the general provisions of Section 2 of the Bill as are all the other scheduled offences; and

(b) to repeal the provisions in the various Acts that at present confer summary jurisdiction in relation to the offences in question.

The incorporation of these offences in the First Schedule will have the incidental effect of making the Schedule a really comprehensive record of the indictable offences that may be tried summarily, which will be an advantage in itself. Moreover, it will secure uniformity of treatment, so far as the question of punishment is concerned, by making the penalties provided for in Section 4 of the Bill applicable to the offences under the Acts in question. There is one instance, however, in which it is necessary to make an exception, namely, in the case of an offence under Section 11 of the Wireless Telegraphy Act, 1926. The maximum punishment that may be imposed at present for an offence under this section is a fine of £10 or a month's imprisonment and, even on conviction on indictment, the maximum punishment is one year's imprisonment.

Under Section 4 of the Bill the District Court will have power to inflict a fine of up to £50 or a sentence of imprisonment of up to 12 months or both such fine and imprisonment. By adding the offence under the Wireless Telegraphy Act to the First Schedule and doing nothing more, the anomalous result would be brought about that the District Court would have power to inflict a greater punishment on summary conviction than the Circuit Court could inflict on conviction on indictment. Accordingly, amendment No. 3 proposes to insert a new sub-section in Section 4 which preserves the present limits of punishment in the case of a conviction by the District Court for an offence under Section 11 of the Wireless Telegraphy Act.

In the case of the other Acts mentioned, no such anomalous situation as in the case of the Wireless Telegraphy Act results from the scheduling of the offences under those Acts.

Question put and agreed to.
Government amendment No. 16:—
In page 8, Second Schedule, to delete the reference to the Courts of Justice Act, 1936, and substitute the following:—

“No. 48 of 1936.

Courts of Justice Act, 1936.

Sections 79 and 82.”

This amendment is consequential on amendment No. 7.

The amendment provides for the repeal of Section 79 of the Courts of Justice Act, 1936, which provided for the clearing of the court during the trial of offences of an indecent or obscene character. The new provision which amendment No. 7 proposes to insert is, in effect, a substantial reenactment of Section 79 of the 1936 Act.

Question put and agreed to.
Bill as amended received for final consideration.
Question proposed: "That the Bill do now pass."

Before the Bill is returned to the Dáil I would like to express my appreciation and the appreciation of this side of the House of the manner in which the Taoiseach carried out the undertakings he gave here to have the points raised on the amendments which were put down examined. The Bill undoubtedly has been very much bettered by the amendments that have been inserted in this House and the interests of the accused person are, I think, more adequately safeguarded now than in the Bill originally presented to us. I take this opportunity of adverting to one point, Section 18. The few words I said on this section on the Committee Stage were merely for the purpose of making clear that my only doubt about that section—and it was put with a good deal of diffidence—was that the phrase "in any criminal proceedings" was too wide and possibly might conflict with the Constitution, which says that justice shall be administered in public save in such special and limited cases as may be prescribed by law.

As a layman, I merely expressed the doubt that that phrase "save in such special and limited cases as may be prescribed by law" seemed to be more restrictive than the phrase used in the section, "in any criminal proceedings". Neither the Minister nor the Attorney-General dealt with that point. I join with Senator Douglas in expressing appreciation of the lucid manner in which the Attorney-General has dealt with Section 18 as amended. I think it would be disastrous—not so much because of the expressions of opinion on Section 18 in this House as from the expressions of opinion outside this House—if there were any doubt whatsoever that this section might be deemed to be unconstitutional. I am very slow to ascribe motives to any person or to any body, but I think we all have our feet planted firmly enough on the ground to know that, for motives that may be deemed very sound to the people who may make use of them, it might be deemed very good tactics to challenge the constitutional position, in view of the phrase "in any criminal proceedings". I merely raise the point now, before the Bill goes to the Dáil, to enable the Government to give consideration to it, as the point has not been dealt with specifically in the statements made by the Attorney-General and by the Minister for Justice in dealing with the amendments to Section 18 which this House accepted.

I want to remind Senators that this Bill, on being passed, will automatically go to the Dáil, since it was introduced here. The question—"That the Bill do now pass"—is the final question. I allowed Senator Hearne to make his brief speech, as I thought he would not go into the Bill again. The question is not: "That the Bill be returned to the Dáil", as it did not come from there.

Purely on a point of order, I thought that the motion we are now discussing is: "That the Bill do now pass."

I want to remind Senators, for the future, that on the question: "That the Bill do now pass" they should raise matters appropriate to the Fifth Stage.

I must not have made the position clear. In amendment No. 6 we have deleted lines 45 to 47. We have taken out the words "in any criminal proceedings" and have met the Seanad in that way. Finally, I wish to thank the Seanad for the manner in which they dealt with the Acting Minister for Justice, the Taoiseach, and with myself, in this House.

Question—"That the Bill do now pass"—put and agreed to.