Seanad Éireann debate -
Wednesday, 15 Mar 1967

Vol. 62 No. 16

Criminal Procedure Bill, 1965: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. B. Lenihan)

The main object of this Bill is to abolish the present procedure for the preliminary examination of indictable offences and to substitute for it a procedure which will, I expect, result in the virtual abolition of the taking of depositions. There are other provisions in the Bill, such as those dealing with remand in Part III and the miscellaneous amendments in Part IV, but they are subordinate to this main object.

Under our system of criminal procedure, and that of most other countries, there is provision for a preliminary investigation by a judicial officer of the case against a person accused of a serious crime. That officer has power to decide whether or not the case disclosed by the prosecutor is sufficient to justify putting the accused person on trial. For a very long time now our procedure has been that this investigation is carried out before a district justice and all the evidence has to be written out by the district court clerk in longhand. The written deposition is read over to each witness after his evidence has been taken and, finally, all the depositions are read over to the accused at the conclusion of the evidence for the prosecution. The district justice then considers any statement the accused himself may make on being cautioned, and finally decides whether or not the prosecution has established a sufficient case to justify putting the accused on trial.

It is hardly necessary to say that this can be a most tedious and expensive procedure. It takes up to some 600 days a year of the time of district justices, not to speak of the time, expense and inconvenience of the other persons concerned in the proceedings. Although it has the advantage from the accused's point of view that the depositions provide an indication of the prosecution case which the present system does not otherwise give him, he has to undergo a distressing period in court even when, in fact, there is no doubt that the evidence against him is more than adequate to justify his being sent forward for trial.

Experience shows that very few accused persons disclose their defence at this stage or bring forward any witnesses on their behalf. Only about one per cent of persons arrested or summoned for indictable offences are discharged at this point of the proceedings.

To obviate what everybody agrees is an undesirable situation I am proposing in this Bill that, whenever an accused person is brought before the District Court charged with an indictable offence, he is to be supplied with a complete statement of the prosecution case before the commencement of the preliminary examination. The accused is also being entitled to waive the preliminary examination. He may still consent, as he can under the present law, to be tried summarily by the district justice in certain circumstances; or he may plead guilty and be sentenced there and then by the District Court or be sent forward for sentence by the Circuit Criminal Court. In deference to views expressed during the passage of the Bill through the Dáil, I have preserved the absolute right of the prosecutor or the accused to require evidence to be given on sworn deposition.

Previous experience suggests that the deposition procedure will in future be availed of very sparingly, so that the proposed new procedure should be of considerable benefit to all concerned. From the point of view of the State, although local State Solicitors will have the task of preparing statements of the evidence to be given at the trial on the basis of the statements made to the garda, there will be a substantial saving in the time spent in the District Court on the preliminary investigation. This saving of time and expence applies to everybody concerned in the proceedings, including witnesses. From the point of view of the accused, he not only retains his present right to have evidence taken on deposition but he will know, in advance of the preliminary examination, what exactly the prosecution evidence will amount to. He is also saved the distress involved in prolonged attendances for taking unnecessary depositions. He has these advantages in addition to those inherent in the present procedure, that is, he may require the evidence that is to be given against him to be given on oath and he may test it in cross-examination and possibly succeed in satisfying the district justice that no prima facie case has been made out against him. He has also the further advantage, to which I will refer again in a moment, that the case against him at this preliminary stage may not be published unless he himself desires it and, even then, the district justice has discretion to refuse his application for publication.

On the whole, therefore, I think I can fairly claim that the Bill represents a reasonable balance between the necessity for modernising the present procedure and ensuring at the same time that the rights of accused persons are fully preserved.

On the question of publication of the proceedings at the preliminary examination, the Bill provides that, unless the accused person requires publication, no one may publish any information about the proceedings other than a statement of the fact that they have been held in relation to a named person on a specified charge and also, of course, a statement of the decision of the district justice at the conclusion of the examination. Provision is made in subsection (3) of section 17 that this prohibition will not apply to the publication of such information as the justice permits to be published at the request of the accused. Side by side with this prohibition on publication, which goes further than the existing restrictions on publication contained in the Criminal Justice Act, 1951, there is a re-affirmation, in section 16, of the provision that a preliminary examination must be in open court. There will still be cases, however, where the court will have power to exclude the public where this is desirable in the interests of justice or required by any enactment. Apart from cases, such as incest cases which must be held in camera this power of the District Court to exclude persons from the court room will not apply to press representatives or to certain other persons such as parents or friends or an accused person who, under the present law, have a right to be present.

Here again, I think the provisions of the Bill are such as will command a good deal of general support. As I mentioned in the Dáil, I am gratified to learn that our journalists individually, and the Press as a whole, were overwhelmingly in favour of non-publication of the preliminary proceedings for the reason that publication might be prejudicial to the fair trial of the accused. This was also the unanimous view of the Committee on Court Practice and Procedure, under the chairmanship of Mr. Justice Brian Walsh, on whose First Interim Report Part II of this Bill has largely been based. I should like to pay tribute here to the work of this Committee, not only as represented by that particular Report, but also by the various other reports which have been received from them on other aspects of court practice and procedure and which are now under examination.

The opportunity presented by the promotion of this Bill has been availed of to make a number of other amendments in criminal law and procedure. For example, section 19 amends the list of indictable offences which may be tried summarily by removing the monetary value of stolen property which may be dealt with summarily and adding a number of other indictable offences to the list of those which may be dealt with in this way. The consent of the Attorney General will be required in larceny cases where the value of the property exceeds £200.

In Part III of the Bill, which contains a number of provisions dealing with the remand of accused persons, provision is made to allow the District Court, if the accused and the prosecutor consent, to remand an accused person in custody for a period of more than eight days but not exceeding thirty days. Eight days is the present maximum limit. The object is to avoid the necessity for having to bring the accused before the court at frequent intervals when there is no prospect of the prosecution being able to proceed with the preliminary examination. The present limit will continue to apply when the accused is first remanded, because it is reasonable to assume that the accused may not at that stage fully appreciate what is in his own best interests.

Also in Part III, there is a provision —in section 28—allowing information to be given regarding the fact that a person is already on bail in connection with another offence or regarding previous convictions for offences committed while on bail, subject to certain safeguards. Part IV was added to the Bill in the course of its passage through the Dáil and contains mainly amendments of the Extradition Act, 1965, which are designed to remove some minor difficulties of a technical nature which have arisen in its operation. There is also in that Part section 34, which enables the Attorney General to get a final determination from the Supreme Court of what the law is in a case where a trial judge has directed the jury to return a verdict in favour of the accused person on a question of law. The decision of the Supreme Court will be without prejudice to the verdict in favour of the accused person.

In conclusion, I should like to thank the various people, and there are many of them, who have communicated views and suggestions for the improvement of the Bill since it was first published. In such a radical reform of existing procedures as this Bill contemplates, it is only reasonable that there should be concern to see that the new procedure will be as good as we can possibly make it. One of the problems in a Bill of this kind is to try to decide what should be left to be regulated by the Act and what to be settled by rules of court. Ideally, the Act should concern itself only with a bare statement of the fundamental principles involved and the rules with detailed implementation of these principles.

The District Court Rules Committee have been working on rules to take account of the new procedure contemplated by this Bill and they expect to submit a draft of the revised rules to me shortly. In this way, I hope that the new procedure for preliminary examination will come into operation very soon after the enactment of the Bill. There is no need to hold up the commencement of the provisions of Part IV which, as I have said, deal mainly with amendments of the Extradition Act, 1965, and these will come into operation immediately the Bill becomes law.

Although the Bill has been amended and improved during its passage through the Dáil, I have little doubt, from my previous experience in the Seanad with Bills of this nature, that it will get a very careful examination here also and that constructive proposals for its further improvement will be forthcoming. May I say in advance that I shall welcome them very much and give them sympathetic consideration?

Mr. O'Quigley

This is a Bill I have no difficulty and no hesitation in welcoming, unlike its predecessor here this evening. The Minister is quite right when he says the Bill will get a careful examination and I hope he is also right in saying our proposals to amend it will be constructive. I am quite certain we can rely on sympathetic consideration of such proposals as we shall make.

The Bill is a fine example of the result of harmonious co-operation between a Minister of State, different strata of a particular profession and other members of the public. Indeed, I join with him in the appreciation he has expressed of the Committee on Court Practice and Procedure for the number of very valuable reports they have produced. This particular Committee may well be setting an example of the kind of way in which problems of great complexity and magnitude should be tackled by issuing—on limited aspects of the particular problem—interim reports which are quite compact and can be given effect to legislatively, if such a course is thought desirable. All the reports to date have been very clear, simple, with a minimum of detail and yet sufficient statistics to enable—where this is required —a judgment to be formed on the matter by interested members of the public. It is interesting to know that this Committee, in one of its reports— I think it is that in relation to the jurisdiction of the District Court and the Circuit Court—have been totally divided as to what the restriction should be in different branches of law, injuries, contract, and so on. But the whole work of the Committee is altogether admirable and it is not so long a time between the publication of the 1963 Report and the issue of this Bill.

I think it is quite correct to say the legal profession in general will welcome very much the provisions of this Bill because, for many years, many legal practitioners—and I am quite sure members of the public who read the newspapers—must have thought it extremely unfair to an accused person to have depositions taken in public, published in advance, read by men who would be jurors, and then have the somewhat farcical situation of a judge saying to sworn jurors: "Now put out of your mind everything you have heard about this case and decide this on the evidence". Of course, jurors do put out of their minds as well as they can what they may have heard but they may well be influenced by discussions in the local golf club, around the table at a social gathering, or elsewhere. For that reason, it has always seemed to many of us to be unfair—having regard to our code of fair play to persons who are accused—to have depositions published.

I am very pleased to hear the Minister say that the Press—who are, to some extent, robbed of the copy of depositions provided, as there is always interest in a crime—have agreed on the restrictions imposed by the Bill, and have co-operated in the restrictions being imposed as to non-publication of certain parts of the preliminary hearings. Of course, in modern times—and I am glad the Minister has taken his courage firmly in his hands—it is quite absurd to be using pen and paper: indeed they were bad pens supplied by the Stationery Office, in many cases, for the taking down in longhand of depositions. It is quite absurd, in modern times, that this should be the procedure. The new method seems to me to incorporate everything that has been beneficial in the old system and to give every opportunity to the accused person to defend himself—to test all or any witness he wants to challenge before making an application to the justice to refuse informations.

I think the Bill as passed by the Dáil has retained all that was good in the old system and incorporated everything that can be of advantage to the prisoner and to those endeavouring to defend him. It will save a great deal of public time, not that I think a saving of public time is of importance as far as civil liberty is concerned. I should like to say in passing that this Bill will throw a great deal of increased work of a very important character on State Solicitors and possibly on the superintendents in charge of different stations.

Already, State Solicitors, from what I know of their work and I know something of it, are not an over-remunerated section of the public service. They get a single salary which is supposed to cover travelling expenses, maintenance and so on. They do not have nearly as good conditions as other public servants. The more diligent a State Solicitor is, the more conscientious he is in the fulfilment of his duties, the less profitable his remuneration becomes. He has to travel around large counties like Cork, Galway, Tipperary or Mayo. I do not know why the salaries of State Solicitors are so low. Unlike county registrars, who have looked for something and will be no doubt looking for increases, State Solicitors have not got the right to arbitration and will certainly be entitled to something extra in the way of relief for the additional work that will be put on them.

This system we are introducing of serving copies of evidence on the accused does not differ from what happens at the present time. If an accused person pleads guilty he is sent forward for trial to the Circuit Court or the Central Criminal Court and is always entitled to change his plea and gets a copy of all the evidence the Attorney General will present to the court against him. The new system will not differ greatly from the present system which has not been found in my experience to work any hardship or injustice.

However, we are in the Bill providing the additional safeguard of supplying the sworn evidence. There is one matter of detail on which I should like to hear the Minister when he is replying. An accused is always entitled to be supplied with a copy of the charges and of the statements of evidence and so on and he is to be entitled to see the exhibits. Where the exhibits are written documents I wonder is there any objection to giving the accused copies. Should we not write into section 6, where we provide that he is entitled to see copies of the relevant exhibits, the documents of which he is entitled to copies? The section sets out merely a list of exhibits. It might be a charge of forgery of a cheque, it might be in regard to a statement of accounts he was alleged to be concerned with falsifying, or things of that kind that in modern times can be readily photo-statted. As far as possible these should be supplied to the prisoner.

Mr. B. Lenihan

There would be difficulties with a big mass of documents.

Mr. O'Quigley

Sometimes that might be so but the legal adviser, in order to make any shape of things or to understand what the case was about, should get copies of the documents. We could write in "as far as possible" or "as far as practicable". In a simple case of a forged document or of a falsified account, where it is practicable to do so in the opinion of the justice, we should make this right available to the accused. There is the question of the accused's right to inspect exhibits. It will be difficult for a person behind bars in Mountjoy to inspect all exhibits. I take it he will be entitled to do so through the person defending him. The Minister might clarify what the situation will be.

There may be a case where it might be necessary to have a technical person have a look at the exhibits. I do not wish to push the Minister too far in this matter because I realise the spirit behind the Bill is to be as fair as possible. However, I should like some clarification of the situation to be created by section 6 (3). We could apply it to solicitor or counsel if it be necessary. There is no use applying it to an accused person who might be behind bars.

I have heard discussion among my colleagues in the Dáil about the provision in the Bill to imprison—that is what it amounts to—witnesses who are about to abscond, whether they be witnesses who appear on behalf of the Attorney General or the accused person. I may inform the Minister in advance that there is a degree of unrest among my colleagues in the legal profession at this power. On the other hand, one can see the argument that the administration of justice should not be thwarted or defeated by a witness absconding. As far as I can see, there is not any power under any extradition agreement to extradite a person if he goes and, as a result, a person who should or would be found guilty may have a nolle prosequi entered and would get off scot free. That is undesirable from the point of view of the protection of society.

On the other hand, if a person who found himself in an embarrassing situation in respect of an accused person says: "I will not be there; I will take the boat to Timbucktu", it might be said it would not be fair to imprison him. It is difficult to know what to do about the situation. It occurs to me that no provision seems to be made as to what is to happen to the family of such a person. If a man who should have been at home with his wife on a particular night was in a place he did not like his wife to know and he decides he will go to England until the trial is over, it might not be in the interests of justice from the point of view of the public or of the accused. That man can then be taken and put into jail because the district justice is satisfied he is likely to abscond. What is to happen to that person's family in the meantime? What is to be their means of sustenance or livelihood? We all know that those kind of things happen.

I do not know whether we should not, in the interests of justice to the dependants of the person who is about to abscond, make some provision in this Bill for them. Perhaps the Minister may be able to point to some legislation which will afford the necessary maintenance. That is a matter which has to be considered. I want to tell the Minister and the House that it is a matter which has been the cause of some anxiety among my colleagues. In fact it was my colleagues who drew my attention to this in the Bill and expressed alarm and apprehension with regard to it. I do not always raise the hares.

Finally, while on this Bill, I regret that the Minister, in dealing with the Succession Bill, did not excise from the existing code of law such time-honoured and well-known phrases as executor de son tort and “estreating recognisances.” Do we all know what executor de son tort was? We all know what is meant when you refer to a person entering into recognisances but I do not know what all those things mean. I know the effect of them but they are not in keeping with modern forms of expression. I do not know why we cannot get some more up-to-date medium. I wonder whether the Minister and his advisers cannot think up some more modern way of getting the same meaning in regard to those different phrases. We know what is meant when you say that a person went bail or that somebody has forfeited his bail. Subject to that, I wish to give unqualified welcome to the Bill. As I indicated at the beginning, it is a very fine effort on the part of the Minister to moderate and reform the law. I hope that while the present Minister is Minister for Justice we shall have many more of this type of Bill.

Mr. E. Ryan

I should also like to welcome this Bill. It is such a good thing in its present form that I doubt if even the Seanad will be able to improve on it. However, we will probably succeed in doing so. This is, as Senator O'Quigley says, an attempt to simplify procedure which was really quite intolerable. It is indeed surprising that the present system has lasted until now. While saying that, I do not want to detract in any way from any credit due to the Minister for doing something which was very necessary. It lasted a long time and it was time to improve it.

This Bill is very successful in providing us with the best of both worlds. We have, on the one hand, an expeditious way of dealing with the preliminary investigation and on the other, the right of the accused to rely on the old system. Consequently, there can be no suggestion that the citizen who is in peril will have his basic rights in any way interfered with. I believe very few accused people will avail of the old way of having the preliminary investigation conducted, but if they want to have it done that way, they may do so.

This Bill is a very good one in many ways. One reason for that is that it arises from the recommendations of a Committee. This Committee put forward some excellent suggestions and recommendations which were sound law but were also sound commonsense. Recognising the fact that the Bill is to a great extent the result of the recommendations of a Committee, we can contrast it very favourably with a number of other legal Bills, which were produced in recent years, which were not the result of recommendations by a Committee and which I think suffered very considerably as a result. I do not propose to name any Bills in particular.

Mr. O'Quigley

It sticks out like a sore thumb.

Mr. E. Ryan

There were two which did not have the benefits of a Committee and which very definitely suffered as a result. I just want to mention a few points which will arise and can be dealt with at greater length on Committee Stage. I should like to mention them now and perhaps the Minister can deal with the points which arise and eliminate the necessity for going into them at greater length later on.

Section 6 deals with the documents which must be served on the accused but it does not say when those documents must be served on him. It would be possible to comply with the Bill when it becomes an Act by serving them on him a half hour before the preliminary investigation. The Committee recommended that those documents should be served on the accused not less than 14 days before the preliminary investigation. It appears to me—perhaps I missed it in the Bill —that there is no time limit in this connection. It would, therefore, be open to abuse and, if possible, some time limit should be introduced into the Bill as to the minimum time before a preliminary investigation within which those documents should be served.

In connection with the time and the circumstances in which the accused may waive the preliminary investigation, it is not quite clear from the Bill at what stage he should do this. There is furthermore the danger that an accused person, who is not professionally represented, and does not fully understand this procedure, may be encouraged to waive the preliminary investigations without fully realising his rights. There is no doubt whatever that everybody concerned in such a case, the court itself, the people conducting the prosecution and all the apparatus of the court will be hoping that the preliminary investigation will be waived. There will be a temptation not to make the accused fully aware of his rights, and that being present I think it would be helpful and desirable that the Bill should contain some proviso that the district justice should be obliged, possibly in the course of section 7, to explain the procedure to the accused and ensure that he is fully aware of his rights before he makes the decision to waive preliminary investigation.

As regards section 17 I welcome the decision to prohibit the publication of the details of the preliminary investigation. I have no doubt at all that in the past publication of this must have prejudiced and biased jurys when the case came up for hearing subsequently. I feel this is a very proper section to include in the Bill. I have some doubt about whether it will be possible to operate subsection (3) of this section successfully because it appears that the district justice may allow publication of certain information if requested by the accused but if the accused, for instance, calls some witnesses and requests that all the evidence favourable to him be published and nothing else this would be an impracticable request and one which may place the district justice in a very difficult position in deciding whether or not to accede to a request of this kind.

Finally, I want to again deal with a question which I have referred to in the past and that is in regard to the way in which amendments are dealt with in the Bill. Until such time as amendments can be dealt with in the way which I suggested on the previous Bill, I think it is desirable that not only repeals but amendments should be included in a schedule at the end of the Bill. Certainly, when one goes to an Act to see whether it has affected previous Acts it is extremely useful to be able to look at the back of the Act and find the previous Acts which have been affected by this Act. If one has to go through the full Act to find out what previous Acts have been affected it takes very much more time, and, as far as the effect on previous legislation is concerned, the difference between a repeal and an amendment is, for practical purposes, no difference at all. It is a distinction without a difference. Consequently, I think the Minister should consider having two schedules at the end of a Bill such as this, one dealing with repeals and the other with amendments referring to the Acts and the sections in Acts which are the subject of amendment by the Bill in question.

Mr. O'Kennedy

In common with the speakers who have already contributed, I should certainly like to welcome this Bill in that it deals with two important aspects of the taking of depositions and that the remedies it proposes are effective and acceptable to all.

First of all, if we just consider the machinery under which these depositions were taken we realise, as Senator O'Quigley has said, that it was certainly an antiquated system and one which tended to bog down the work of the court, and certainly did not in any way contribute any material factor to the essential elements of justice which had to be considered on behalf of the accused. The amazing thing is, at the same time, that this system of note taking by shorthand or by longhand which we are now abolishing, in fact, exists in one form or another either by longhand or shorthand in court procedure in every instance. Indeed, it exists in this very House, and I have often had the utmost sympathy for the notetakers in this House when people like myself, who might not be as considerate as they should be, ramble off on our usual hobbyhorse. It certainly does not expedite the business of the courts that notes have to be taken of the cross exchange on evidence, of the remarks and comments which may be made by a witness. I do not think that even the most effective notetaker can possibly give any idea of the nature of the cross-examination or the manner in which questions were answered or anything of that sort. In this House the difficulty is not so great because the notetaker is only concerned with a particular delivery. For that reason I would suggest to the Minister that he might have a look at all aspects of court procedure. Whether it is necessary to have a notetaker for the purposes of criminal procedure or for workmen's compensation on matters of that sort I doubt and, indeed, it has been my experience on reading over these notes that they have not been as accurate in the small details as one would expect them to be.

Secondly, one welcomes this Bill in that it intends to prohibit publication of the evidence by the district justice. Of course, the main factor in this is that publication of evidence at deposition stage certainly can, and I am sure often has prejudiced the interests of the accused. This is particularly so because I am afraid our newspapers, particularly our evening newspapers, appear to thrive on this type of publicity. I was, I must say, pleased to hear the Minister say that the journalists individually—and I certainly have the highest respect for the journalists individually—and the newspapers in general welcomed this prohibition. One could never guess from the manner in which they gave prominence and publicity to some of the more notorious murder trials at deposition stage in recent times that they would welcome anything of the sort. Possibly in this their actions were being determined by the fact that they are commercial interests as well as vehicles of public opinion. I certainly think and I point a finger quite directly at the evening papers in this country that they have not contributed too much up to this time in doing justice to the accused in their reports on depositions. While on that point I might say that most of our newspapers throughout the country could probably do their readers a lot more service by neglecting the prurient details that sometimes arise in court cases and by paying a little more attention to matters of positive social benefit and positive intellectual interest. One sympathises with local newspapers but I cannot see that performances of lawyers or the unfortunate circumstances of litigants should be matters which are widely publicised in newspapers. I welcome this as being a first step in the right direction and I am glad to hear that even at this late stage the newspapers are in favour of this restriction of their hitherto unrestricted right.

The only other matter which occurs to me at this stage is a matter of general detail. One is not too clear, as Senator E. Ryan has suggested, as to how or when these statements are to be given to the accused person. It is very obvious from reading this Bill that every effort is being made to safeguard the right of the accused person but what is not so obvious is the machinery of procedure under which these rights are being safeguarded. The Minister probably has in many ways answered this objection before it was made in that he said that this may well be a matter for the Rules Committee rather than for legislation. One would be particularly anxious that the statements of the evidence to be given by the witnesses, which I presume would be taken, after caution, would be taken in the strictest possible fashion and generally, as is the custom with the Gardaí, according to the rules of evidence.

One hears quite a lot in court from time to time about statements being admissible or inadmissible. This appears to be something of an extension, in that the statements rather than the depositions will now be the first launching ground of a trial, and one would be happy if the Garda authorities were made aware of this and exerciesd even more diligence, or the utmost degree of diligence, in taking these statements, now that the responsibility is being given to them.

Finally in conjunction with Senator O'Quigley and my colleagues who were alarmed—the same colleagues probably conveyed their views to me—I feel there are some grounds for concern at the power which is given to the district justice to make the witness order, as it is called in section 7, the order of the reluctant or unavailable witness. Very important principles arise here and there is a balance of consideration on both sides. This is a matter which would be considered appropriate for discussion on Committee Stage. I welcome this Bill in its intention and indeed in the sections by which it implements that intention.

Mr. B. Lenihan

This Bill has been generally welcomed in the Dáil and Seanad and by members of the public and legal practitioners. It represents a radical change in that we have operated the present system of taking depositions for over 100 years. The important thing was to ensure that there would be no diminution of the accused person's rights. While it was necessary to modernise the law in this respect to make it more expeditious and efficient, to eliminate the obviously time-wasting procedure of taking evidence in longhand, which evidence had to be repeated again at the actual trial proper, it was more important, and I felt it my main duty in promoting the Bill, to ensure that there would be no diminution in the rights of the accused person. We have managed to guarantee the accused person, if he or she wishes, the right to have any State witness give his evidence in court at the preliminary hearing and subject himself to cross-examination by the accused or his representative.

I do not think that that right will be used to any great extent but there are cases where the accused person may wish actually to fight the case all-out at the preliminary hearing stage. There are certain cases, admittedly a small minority—about five per cent—in which the accused person may wish to refute, challenge and defeat the State case at the preliminary examination stage. It would be wrong to deny the accused person that right if he or she wishes to avail of it. That is why the right to challenge witnesses and the right to cross-examine witnesses on the part of the accused is retained in the Bill.

I would say that in 95 per cent of cases the position up to now has been that the preliminary examination was a matter of routine, where there was no real questioning by the accused person or his legal representative of the merits of the case. That position will in all probability be reflected in the operation of the Bill when it becomes law by the accused person waiving the preliminary examination in most cases. That would be the likely practical outcome of the Bill and would mean a substantial saving in time and energy on the part of court gardaí, members of the public, witnesses and accused persons, whose rights again are fully protected by the provisions that the documents relative to the case against him by the State must be served on him. In relation to that, a point has been made in the House that we have not specified a time within which prior to the actual hearing the documents must be served. This time factor will be a matter of rule and will be contained in the District Court Rules when they are furnished to me.

It is often a matter of debate on a measure of this kind whether to have a particular aspect incorporated in rules or embodied in the statute. In a measure of this kind it has been the practice to have matters like this, where a period of days or hours has been given in regard to court procedure, met by rule rather than in the statute itself. I would admit that in any case where the accused would make the case that he was prejudiced by reason of not receiving particulars of the case against him in time, he would automatically get an adjournment from the District Court. This is a matter which I will look into between now and Committee Stage. My preference at the moment is that it should be made a matter of rule rather than statute.

A point was made about section 9 (3) by Senator O'Quigley that this was a new provision. It is not. It is merely a redraft without any change of section 13 (6) of the Petty Sessions (Ireland) Act, 1851, under which the present procedure was established. The person not complying with the witness order under section 9 of this Bill is in a no worse or better position than he or she would have been under the relevant provision of the 1851 Act. There is nothing new, therefore, in that particular provision.

A point was made by Senator E. Ryan with which I am in considerable agreement. It is a matter I propose to look into. It refers to having a Schedule to measures of this kind listing the enactments being awarded. It would be a good idea, I think, and I understand it is the practice in some other countries. While the main purpose of the Bill is to abolish the devious procedure as we knew it heretofore and substitute this new procedure of preliminary examination, there are also amendments of both the Criminal Justice Act, 1951, and the Extradition Act, 1965, to mention only two things. It is a good idea, I feel, that such amendments should be brought to the notice of both practitioners and citizens in the form of a Schedule which can be easily referred to. This is a matter which I will look into. It may not be possible to deal with it in this Bill, but I will consult the parliamentary draftsman as to the possibility of doing it in future legislation.

On a measure of this kind, the Committee Stage will be the important Stage to ensure that we copper-fasten the Bill thoroughly. We have taken very considerable care with it, because I am very conscious of the fact that it is a substantial departure in criminal procedure and probably the most important amendment of criminal procedure that has taken place for many years. Having regard to that, it is important that when changing to a completely new system, we should make sure that the system works. There is very little justification in adopting new procedures if the target cannot be attained. Certainly I would not like a situation where the new Bill, however desirable theoretically, might not in fact work practically. That is why I see the importance of the Committee Stage discussion here in the Seanad, that we can iron out any problems which might frustrate the efficient working of the Bill and at the same time in the course of the detailed discussion at that Stage, ensure that individual rights protected under the present system, however cumbersome it may be, will continue to be protected. Indeed, I would say again that, subject to the practicality of its operation, individual rights are probably protected by section 6 to an even greater degree than heretofore, because the person knows in detail the case which is being made against him and has due notice of it.

One last matter: I would like to thank particularly the National Union of Journalists who passed a resolution supporting the proposal to prohibit publication of details of the evidence given on the preliminary examination. I regard this as a very courageous and honourable stand by the National Union of Journalists in Ireland, because the fact is that certain tentative proposals of this kind prohibiting publication of evidence on preliminary examination have been made in Britain in the past few years and have been rejected fairly outspokenly by both the newspaper proprietors and practitioners of the Press. Here in Ireland when this proposition was mooted, although at first sight it would appear to be, as it were, an intrusion into the field of the rights of the Press, there was a welcome from the newspaper proprietors and a very substantial welcome from the National Union of Journalists members. This shows a mature approach. The essential justice of the matter was recognised, that there would be obvious prejudice to the accused person in the publication of the details of the preliminary hearing. This would be bound to prejudice the mind of jurors at the subsequent trial, who are enjoined by the judge to look at the matter on the merits of the evidence presented before them; in fact the jurors' minds could not but be influenced to some degree in one way or another by reason of their knowledge of reports of the case at the earlier stage.

I think we have in this Bill gone ahead of reforms proposed in Britain, although I know that the British Government is considering this particular type of reform.

I would also like to mention one other aspect which was referred to earlier, namely the question of outmoded verbiage in regard to criminal law and, indeed, to all the law which we have inherited from earlier times. In the Succession Act, we cleared away a lot of this lumber in the form of ancient legal verbiage, and, I think, rightly so. In the criminal law it is a more difficult matter, in that it is desirable that definitions be more precise in criminal law. When a certain terminology has secured a definite precise meaning, it is not often easy to get a terminology to replace it. Entering into recognisances, estreating a bond, and phrases of that kind have very precise meanings as far as lawyers are concerned, and while at this stage the idea of getting rid of such phrases is attractive, when one seeks to get an alternative, it is not at all easy. However, I am looking into it.

In that context I can say that we hope to have a Criminal Justice Bill published inside the next two months. It is at an advanced stage of drafting, and in it a number of these old phrases are being repealed, such as felony, misdemeanour, penal servitude, and so on, which now have no practical meaning but which are in the criminal law. They are being repealed, along with a number of other matters. I would envisage that the Criminal Justice Bill will, with this Bill, mean that the criminal code will be very substantially modernised.

There is nothing more to add except to commend the Bill to the Seanad and to hope for a constructive debate on Committee Stage.

Question put and agreed to.

Committee Stage ordered for Wednesday, 5th April.

The Seanad adjourned at 10 p.m. until 3 p.m. on Wednesday, 5th April, 1967.