Criminal Procedure Bill, 1965: Committee Stage.
Sections 1 to 3, inclusive, agreed to.
Question proposed: "That section 4 stand part of the Bill".
I think this section is intended to be a definition section. It was introduced after the Bill was originally circulated. We are defining a situation brought about as a result of proceedings in the Supreme Court. It seems to me that where we are referring to "the court of trial", to "the justice of the district court" and so on, the Minister might consider extending this definition section. Now might be a more convenient time than later on. In section 6 one will find references like "shall be furnished to the court", which is not defined. Then, in section 7, without any introduction whatever, we find "the justice shall consider the documents and exhibits". This is reference to an abstract concept, or a person; it is not easy for a layman to know which without describing him with a capital letter, as is appropriate in the case of a proper noun.
Part II bears one of the hallmarks of bad draftsmanship which one sometimes comes across in the course of Bills. Part III obviously was drafted by a different person. Throughout Part III you have references to "a District Court" in capital letters and elsewhere there are references to "Justice of the District Court" which is the title assigned to him by the Courts (Establishment and Constitution) Act. I can see why reference is made to "a Justice of the District Court" because it is in juxtaposition to "a peace commissioner". If we are to refer to a particular functionary, we ought to refer to him in the same way throughout the Bill. If we wish to refer to him as a Justice we should do so by the use of a capital letter.
I suggest to the Minister that he might accept an amendment along these lines. I had thought of putting one down myself but thought it was desirable, first of all, to get the view of the Minister as to whether he would accept an amendment because there were so many instances in which amendment would be required.
My answer to the Senator is that it is very important that we should have a Bill readable. This is a point of view that has been expressed by Senators. It is quite plain in Part II, from the Title and the opening words, that this is in reference only to the District Court's preliminary examination of indictable offences and therefore the justice referred to there would be a justice of the District Court. In the interests of having readable drafting, I consider it better to leave it that way. In Part III, dealing with bail, there are matters concerning other courts and for that reason it was necessary to spell out what court was meant.
I support the Minister but it seems to me that there is a certain inconsistency throughout the Bill in the use of capital letters. On page 4 of the Bill we have "Part" spelled with a capital letter and "justice" with a small "j". I welcome this transition. Capital letters in many cases are given to many things. The modern tendency is to diminish the number of capital letters. However, there is inconsistency in this Bill. From experience in working with the Department of Justice on a Private Member's Bill, I can say that they take the most scrupulous care in matters of this kind.
I agree with Senator Stanford that "justice" should be spelled with a small "j" throughout.
Surely there is no significance in giving a capital "P" to "Part".
Question put and agreed to.
Question proposed: "That section 5 stand part of the Bill".
This is a Bill which deals with the entire procedure in relation to the preliminary examination of indictable offences in the District Court. This section introduces the whole concept of a preliminary examination and it goes about it in the wrong way. We state: "Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination..." What we want to say in the Bill and what we ought to say clearly is that a person accused of an indictable offence shall be brought before the District Court, and then go on to say that unless he pleads guilty or the case is being tried summarily, the justice shall conduct a preliminary examination.
It is presumed that the procedure has got under way. The introductory phraseology "Where an accused person is before the District Court" presumes this. He could hardly be before the District Court unless proceedings were under way against him. It is really a matter of taste.
Question put and agreed to.
I move amendment No. 1:
In subsection (3), line 15, before "shall" to insert "and his solicitor and counsel".
Where permission is given to the accused to examine exhibits, I want it to be clearly spelled out in the section beyond any shadow of doubt that the right to examine the exhibits is also available through the accused to his solicitor and counsel if they want to inspect them. In the case of documentary evidence these exhibits may be photostatted and copies supplied but I want to have it made quite certain that if a solicitor or counsel defending an accused person wishes to do so the right should be given to the accused to have his solicitor and counsel inspect exhibits in a particular case.
I do not think there is any need for this. Of course there is no suggestion that solicitors and counsel cannot examine the exhibits. It has always been taken as a matter of commonsense and practice over the years in any such statement of right as we have here in subsection (3) of section 6 that by implication solicitor and counsel have the same rights as the accused.
It might be a mistake to spell it out where practice over the centuries has ordained that they have the right that the accused person would have. The danger is that if you provide here for this you may be needlessly raising a hare. There is the possibility that if it has to be spelled out here that solicitors and counsel have the right, then in many sections of many statutes where the right has not been spelt out you could be regarded as implying that in those cases solicitors and counsel have not the right which it has always been accepted that they have.
There are many things—this has been my experience—which it is better not to spell out in the statute. It is often better to leave alone matters which have been sanctioned by long practice, to leave well enough alone, rather than indulge in over-definition.
What the Minister says is sound commonsense. The right, as conferred, is on the accused. I have no doubt at all that if a court found that his solicitor or counsel were not given the facility in his interest, it would very properly find that the Act was not being complied with. The solicitor or counsel as such have not the standing in the issue that the accused has. The prosecution is of the accused himself. He may have a solicitor or a solicitor and counsel or if he has a certain inclination towards litigation he might decide to pursue his own defence. What the Minister says is quite sensible. There is always the possibility as Senator O'Quigley may know of what one might call a greater understanding and amalgamation between both aspects of the profession and in that case the solicitor and counsel definition could in its time become anachronistic. I think the best thing would be to leave the right as it always has been to the accused himself.
I would be the last person in this House to diminish or endanger the right of an accused person to every possible assistance that can be given to him to ensure he has a fair trial. The Bill illustrates the Minister's concern to see that this is done. I am not at all as happy as the Minister is when he says in his grand sweeping way: "Oh, if you were to do this you would interfere with all the rights that have been conferred upon accused persons over the centuries. If you put in this particular explanation you may be inferring or suggesting that these rights do not exist and you may in some way attenuate them." I should like the Minister to show me one instance where you have those rights conferred upon the accused person. Largely in my experience and knowledge it is a matter of practice.
That is what I am saying.
Practice may be very difficult to prove in a particular case. You will not find in the existing practice what we are doing here. In this Bill we are dealing with the whole aspect of a preliminary investigation of indictable offences which is at present to be found in the common law, in some statutes and in the rules of court. We are crystallising all that and introducing a complete new code in this Bill. I could refer the Minister to an important decision of Mr. Justice Murnaghan in a case relating to the Agricultural Wages Acts the effect of which was to decide that whatever rights an agricultural worker had as an ordinary worker were attenuated and circumscribed by the new code provided in the Agricultural Wages Acts. That code was interpreted by the High Court as establishing within the confines of the statutory provisions the new rights of an agricultural worker to sue for wages, and so on. In other words, it was a complete code and all the rights of the agricultural worker in relation to wages were determined and circumscribed or confined within the ambit of that code. The case I am referring to is an unreported one— Woolley v. Halligan decided by Mr. Justice Murnaghan. It is with that in mind, and what I believe to be correct, that I refer to the interpretation of statutes. When we prescribe a new procedure and lay down certain rules, we want to make sure that the procedure prescribes everything. I do not think you can fall back on the common law once you are creating a new procedure in this Bill and this we are doing in the case of the inspection of exhibits. I would ask the Minister not to dismiss the amendment as lightly as he has done.
For instance, the Minister said, if I took him down correctly, that whatever right the accused person has at present his solicitor can exercise that on his behalf. That is the burden of the Minister's remarks, and I do not see him dissenting from that summary of his view.
We are here establishing the new code and we are getting away from what was the previous practice. I can quite well see a prosecutor being chary about the person who will have a right to inspect the exhibits. There will be some who will say: "The section says ‘the accused shall have the rights.' There is no reference whatever to solicitor and counsel."
If that happens, one court decision will settle it.
This is the other purpose of the amendment. If the Minister is satisfied that one court decision would determine in favour of the accused and permit his solicitor and counsel to inspect the exhibits, we ought to provide that clearly in the Bill. The Minister is forgetting the whole purpose of the Bill, which is to get away from the old practice. I do not want to labour the matter further. The Minister said that what Senator O'Kennedy said was sound commonsense. Sound commonsense does not always coincide with sound legal sense. One can frequently find that when it comes to law what appears sound commonsense, by reason of the kind of deficiency I am now trying to remedy, does not prevail because the Legislature has enacted otherwise.
I ask the Minister to have another look at this in the light of the argument I have made and with reference to the Woolley v. Halligan case.
Any official of the courts could determine that.
There are cautious county registrars.
Amendment, by leave, withdrawn.
I move amendment No. 2:
To add to the section a new subsection as follows:
"( ) Service of the documents specified in subsection (1) or of a statement of evidence to be served under subsection (4) of this section shall be personal but where the accused is represented by a solicitor, the documents may be served on his solicitor."
I do not want to detain the House on this amendment. It is on the same lines as the amendment we have just debated. It concerns the serving of notice of additional evidence on an accused person detained in Mountjoy while his solicitor is down the country. If notice is served on a Monday and the accused is to be arraigned on indictment on Tuesday morning, what I want to ensure is that where the accused is represented by solicitor, the document will be served on the solicitor so as to avoid serving documents on a man in Mountjoy about which his solicitor and counsel know nothing until he is brought down to the circuit town and produces a dishevelled piece of paper saying: "I got this last night up in the Joy."
The alternative is they might get a dishevelled piece of paper from the solicitor's pocket. If you follow Senator O'Quigley's argument you might in certain circumstances prejudice the accused. It is the accused who should get service of these documents. If you start serving documents on advisers these advisers may be negligent and I think it is safer if there are vital documents that they should be given to the person concerned, that is, the accused person. If circumstances arise where the accused may be prejudiced through not handing documents to his advisers in time, there is always an adjournment available to him.
I think the Minister overlooks the practical aspect of all this. What I am contemplating is the provision in section 11, providing that the Attorney General shall serve additional documents corresponding to notice of additional evidence served at the present time. I cannot say offhand because I am not a prosecutor these days——
The Senator may be some time.
I may be in the future, other things being equal. I do not know what the procedure is at the present time, whether documents are served in Mountjoy or in Limerick Jail or whether they are served on the accused.
I have known complaints to arise about the lateness with which counsel get these documents.
Take the position where they are served on the adviser and the poor accused turns up and the adviser does not.
That is unlikely to happen and certainly in the case of solicitors or counsel retained under the free legal aid scheme they cannot shed their responsibilities as easily as that. I do not think they could under the legal aid scheme. In that case it would be easy to provide in this section, or by way of amendment to the free legal aid scheme, that any documents that have come into the possession of the solicitor while acting for an accused person shall be handed over immediately to the accused upon the solicitor ceasing to act, and provide proper penalties if that were not done. This is the kind of thing that is quite exceptional, quite unusual and unlikely to happen in any event. I am trying to ensure that if documents are to be served and examination of them is to be of any value to the accused person, his legal advisers should have access to them at the earliest possible moment. I think the amendment takes care of that. I shall not press the amendment until the Minister reconsiders the arguments on amendment No. 1.
Amendment by leave withdrawn.
The Chair suggests that amendments Nos. 3, 11 and 13 be taken together.
They are all concerned with time definition.
I move amendment No. 3:
To add to the section a new subsection as follows:
"( ) The documents specified in subsection (1) of this section shall be served on the accused or his solicitor not less than seven clear days before the date upon which the Justice shall consider whether there is a sufficient case to put the accused on trial for the offence with which he has been charged."
We are providing in this case that the document specified, that is, the sworn information, statement of charges, list of witnesses and their evidence and so on, will be served not less than seven days before the justice shall consider the case—in other words before what was previously called the taking of depositions begins. The Committee on Court Practice and Procedure in its Report (Pr. 7164) recommended where State Solicitors were preparing the documents that there should be a minimum period of seven days between service and the hearing. The Report says that "the State Solicitor in charge of the prosecution shall cause to be prepared and served on the accused seven days at least before the date of the trial, a statement of the evidence which it is proposed to tender at the trial together with the names and addresses of the witnesses" and so on. There is no time limit fixed either in section 6 or section 11, which deals with the additional documents to be served by the Attorney General, or in section 12 where the accused changes his plea. It seems to be not unreasonable that a period of seven days should be allowed in which the accused can retain his solicitor and have his defence prepared. I can see the Minister making this point, and it seems to be the only valid reason for rejecting the careful recommendation made in the Report I referred to, that by fixing seven days you might deprive the accused of an opportunity of an earlier trial.
I can see that, but that, of course, is not the problem.
It is a substantial problem.
Not so substantial. We have an antiquated, antediluvian, obsolete system of conducting criminal business in the circuit courts in the country. The circuit sittings in practice begin on the first day of the sitting. A person is returned for trial to the next sitting of the Circuit Criminal Court or the Central Criminal Court. We all know that the accused on the first day of the sitting may say: "Such and such a witness will not be available until next Thursday". He may say that on Tuesday morning, whereupon the judge will arraign the accused and take his plea. If he pleads not guilty, the judge can then adjourn until Thursday.
Where is the difficulty if the seven days straddle the first day of the sitting of the Circuit Court? If the accused wants he can say: "Though I have not had the specified time, I should like to have the trial this term" and in that case, no difficulty arises. If he wants to say: "I did not get these documents until three days ago. I want a full seven days from the date of service of these documents," the judge can then adjourn until the next sitting or until some day later in the sitting.
What is most unfortunate in this case—and this is the nub of my complaint, and the Minister is aware of it —is the gross inefficiency prevalent in relation to the preparation and service of copies of depositions on the accused or his solicitor. One frequently hears complaints about the difficulty of getting depositions in time. The only difficulty in relation to the seven day period is that the appropriate office staff must be provided by the State authorities so as to ensure that the accused gets a copy of the depositions and of all these various documents at least seven days before the date of trial, or in the case of the hearing of the preliminary case against him, the date of that hearing before the District Court. That is where the trouble arises.
There has been a gross failure on the part of the authorities—I will not be more specific than that—to deal with that problem. The seven day period will tie them down to ensuring that they must organise their resources in such a way that they will serve the documents seven days before the District Court hearing or the trial in the Circuit Court or the Central Criminal Court. That is the real difficulty, not any undue concern with the accused, which I think can be got over very simply. My opinion, my experience and the shared experience of my colleagues is that people have been put in a very unfair position defending persons charged with criminal offences, dangerous driving causing death and any indictable offence you like, in not having the documents in adequate time, and this can happen even in murder cases. It is time that something was done about that, and that is the reason why I want to have some minimum period fixed by statute imposing an obligation on the almighty ones, the State authorities, to provide citizens charged with offences with documents in sufficient time to prepare their defence. There must be a minimum period.
I have little doubt that the Committee on Court Practice and Procedure when they put in the seven day period well considered the disadvantages that might accrue to the accused in not getting a trial at the next sitting, but, as I have indicated, that can be fairly easily overcome unless he wants to stand on his rights and has not had sufficient time. The committee—at least some of the members—I would venture to think, had in mind their own experience of the difficulty in getting documents in sufficient time before the trial of a person to be able to conduct a proper examination and give adequate consideration to them.
On the question of the Committee, there are many parts of the Report with which on further investigation we disagreed, and the present Bill incorporates a number of important departures and innovations which were not adverted to by the Committee. That is not to detract in any way from the Report, which is an excellent document whose basic recommendation is the nub of the measure now before the House. I think that Senator O'Quigley is doing less than justice to what we seek to do in this Bill. The points on which he laid the greatest stress—the dilatoriness with which depositions may at the moment be furnished to an accused person and his advisers and the manner in which they may be provided—are precisely the factors which operated in the Committee's minds and in mine and bore fruit in the present legislation. This legislation will remedy what Senator O'Quigley is talking about. We will not any more, apart from the exceptional case, have depositions taken down in longhand, transferred to a clerk typist who is working on them only occasionally in a Circuit Court Registrar's office and eventually finding themselves in the accused person's hands before the trial. What we are now providing is that the State Solicitor—who is wholetime concerned with the prosecution of criminal offences in his particular area —will now be specifically charged with the responsibility of preparing the statement of evidence. It is entirely different from the old procedure whereby the evidence was taken down in longhand and transferred to a typewritten document. We are now providing that a statement of evidence from the Garda reports be prepared, properly prepared, by a wholetime officer of the State and that they will be in the hands of the accused person before his preliminary examination. This, while providing for a more expeditious trial, will also operate to the benefit of the accused from the point of view of giving him time to prepare his defence at the trial because he will have in his hands, before the preliminary examination and long before the trial proper, the case being made against him by the State.
On the aspect of providing for a definite period of time, I think this action could definitely prejudice the accused person. Senator O'Quigley suggests seven days as the period of time within which he should have the documents referred to in subsection (1) of section 6. I shall revert back to the argument on which he anticipated me. I have checked on this with the Attorney General's office and all the experience is that the incorporation of such a time limit would, in fact, be prejudicial to the accused person in most cases. The desire in most persons' minds—particularly, for obvious reasons, those who are in custody—is for as speedy a trial as possible. If you had any rigid notice provision, such as seven clear days, there might be a situation where an accused person, particularly if he was in custody, would not thank the Oireachtas for having made it impossible for him to be tried for, say, three or four months. That is a very practical consideration. Most accused persons are activated by the desire to get a speedy trial and get the thing over one way or the other.
If in the case anticipated by Senator O'Quigley service of the documents is so very close to the trial, in a very complex case, where the accused or his advisers would require further time, then there would be an adjournment for the asking. Nobody would suggest that any court would refuse an adjournment in those circumstances. In fact it is necessary only for an accused or his advisers to put forward the most meagre of reasons that he or she would be prejudiced in his or her defence for the courts automatically to give an adjournment. That has been the practice and I do not see any reason why it should not continue in the future. I think an adjournment would be got for the asking and the danger of having a rigid time limit in these cases might be prejudicial to the accused himself.
Far be it from me to prejudice an accused. I think I can meet the Minister's difficulty admirably by introducing another amendment, something on the lines that the accused shall be entitled to service of those documents not less than seven days unless he waives that, but it would impose an obligation on State authorities in all cases to serve the documents at least seven days beforehand. This would not prejudice the accused but would be of vast benefit to everybody, and a tremendous obligation upon State authorities by providing the seven days.
The Minister made the statement— but I think it was probably a lapus memoriae—that State solicitors are wholetime officers of the State. I do not think that is so; if they are they are certainly the lowest paid wholetime officers.
We hope to remedy that very shortly. What I meant is that they are wholetime on this type of work. What I meant to convey was that unlike County Registrars, who have various duties and functions, State solicitors are engaged wholetime on this aspect.
I do want to ascertain from the Minister what will be the position. At present depositions are taken by longhand. That delay will be eliminated by the preparation of those documents by the State solicitor. Will the procedure be that these will be prepared in the State Solicitor's office, or in the office of the Garda Superintendent——
The State Solicitor's office.
Then we should have had a corresponding measure to augment the staff of State Solicitors' offices to deal with this situation.
That is in hand at present.
But, in fact, up to the present the delay has occurred in the County Registrar's office by reason of the shortage of staff.
It is not really their line of country.
All involved at any time for an accused person and all that is involved in the work of the County Registrar's office is to type out two, three, or four or whatever is the number of documents to be served.
Amendment, by leave, withdrawn.
I move amendment No. 4:
To add to the section a new subsection as follows:
"( ) A copy of such written exhibits as can be copied without undue expense shall, on application to the Justice, by or on behalf of the accused, be furnished to him or his solicitor."
It seems to me that the right merely to inspect exhibits is not a very valuable right, practically speaking, as we are providing in subsection (3) of this section. It is not unreasonable to request that such exhibits, as provided in the Bill and can be copied without undue expense, should also be served on the accused. You could have a whole book of account and all you would want is a few entries in a page of the book. In addition to having the right to inspect exhibits, we should also provide that copies of the exhibits shall be furnished on application to the District Justice where that can be done without undue expense. It preserves the discretion of the District Justice in cases where it is reasonable to do so to give copies of the exhibits and I think it is an amendment the Minister should accept.
My only argument against this amendment is the old fashioned one of expense, allied to the fact that we are here giving a specific new right to the accused, under the Bill as it now stands, to inspect the exhibits. He is now at a certain advantage in having this right of inspection. A right of inspection given to the accused and his advisers prior to a preliminary hearing is a new right. At the present time he does not know what exhibits there are or the nature of them.
If one wanted to be very meticulous, what Senator O'Quigley suggests might be considered admirable but I am sure the Senator and other Senators are aware that in the course of preliminary hearings exhibits can be mountain high. If the State is to be burdened with the expense of copying out every exhibit for the accused it would amount to a considerable sum. This is a matter open to various interpretations but by and large we are going very far here in the direction of fairness to the accused. Mainly on the ground of expense but also on the ground that we have gone far enough, I do not propose to go any further.
I appreciate the Minister's difficulty and it was for that reason that I worded my amendment with Civil Service caution—"without undue expense". However, the Minister is being a little timorous in this matter. Perhaps he or his predecessor in office or their advisers viewed with considerable misgivings, magnified many times by the Department of Finance, the provision of free legal aid and must have wondered what the cost would amount to. Granting of free legal aid was left to the discretion of the District Court, the Circuit Court and the Central Criminal Court. District Justices who have most of these cases to deal with have exercised their powers under the free legal aid scheme with great discretion and there has not been any undue expenditure or anything approaching extravagance in the administration of the scheme. Here again District Justices will prove themselves to be very practical people and if application is made to have copies of exhibits furnished, District Justices will consider whether it would be unduly expensive having regard to its evidential value to the accused. If he thinks it would not, he will not make the order but if there are exhibits which have great evidential value to the accused, I think it is only fair the accused should have the right to get copies of such exhibits.
The Minister spoke about giving a substantial new right to accused persons in this section. I agree to some extent but it is merely another aspect of our ancient idea of securing the rights and privileges of citizens. I do not consider that we are giving a new right but we are here again securing the rights and privileges of citizens. I do not wish to press the Minister because I appreciate that the whole tenor of the Bill is redolent of a reasonable attitude on his part. I do not wish to press it on him at this stage but I ask him to consider giving this new right, without undue expense, when it is considered by the District Justice to be of importance. There can be cases where solicitors are miles away from counsel and will not have access to exhibits until the very last moment when they are at trial. It could place citizens at a serious disadvantage vis-à-vis the State. Perhaps the Minister should have another look at it in the light of the arguments I have made.
I will have a look at it but the cost aspect is very important.
Not in a Budget of £282 million.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
There are a few small points I wish to raise. In paragraph (d) of the first subsection there is reference to a statement of evidence. Perhaps in the District Court proceedings a witness might give evidence that was not in his statement. In such an instance could the accused or his legal adviser say: "I had no notice of this and I want the case adjourned to reconsider it"? Would not a reference to a general statement of evidence, or some wording like that, be more appropriate? There is a second point in relation to subsection (4). The subsection states that the prosecutor may cause to be served on the accused a further statement of the evidence to be given by any witness. We may here be excluding the possibility of notifying an accused that there would be further witnesses to those first listed.
I shall take the last point first. It is covered by section 11 in which we set out clearly the right in the case of further witnesses to be called.
Could there not be a case where a witness turned up whom the State could not locate before the appearance in the District Court?
In that case the State would have the case adjourned and a further notice served on the accused. It must be appreciated that the purpose of the preliminary hearing is to establish whether there is a prima facie case on the basis of the statement of evidence. The only matter at issue then is whether there is a case on which the accused is returnable for trial. That is the only issue; it is the important matter involved. It does not, of course, preclude the accused or his legal advisers from cross-examining witnesses on discrepancies that might arise as between their oral evidence and their statements to the Gardaí.
It is analogous to the situation that arises at present where witnesses are often put through the usual cross-examination gambit as to the discrepancies between their oral evidence at the trial proper and their statement to the Gardaí. A similar situation will arise in regard to the statement of evidence in which the prima facie case was tested. The defence will have the statements which summarise the statements made to the Gardaí and on which the person was returned for trial. They will have the documents. They will have inspected the exhibits and they will be in a position then to decide how to conduct the trial. If there are discrepancies, there will be the usual cross-examination on the basis of those discrepancies.
On one side there is the prosecutor. On the other there is counsel or solicitor for the accused who will use every means in his power, even to the extent of seeking an adjournment, to keep his client out of prison. If, in cross-examination, he gets evidence from the witness of which there was no inkling in the statement supplied by the prosecution, can he thereupon get the case adjourned to another date, try the same gambit again in seven days' time and get a further adjournment again?
I think we are at cross purposes here. Is the Senator talking about the preliminary examination or the trial?
The preliminary examination. I am suggesting "general statement" would be better than "statement".
That would be an outrageous disadvantage as far as the accused was concerned.
The issue is to decide whether or not there is a case before the court on which the accused can be tried. This is the important issue to be decided. The court must have all the evidence before it can decide that issue. That is essential. I would envisage that only in very exceptional cases will there be oral evidence at this preliminary hearing. To reach that decision the court must have all the details. A general statement would not be sufficient.
This is something which pertains to what the Minister was saying earlier in relation to amendment No. 1 and, perhaps, amendment No. 2. Apparently in subsection (3) of section 6 the accused has been given a new right as the Minister puts it. If that is the case, we are dealing now with a new right being given to the accused and there is no question here of a practice of conferring that right on his solicitor and counsel. Does it not appear that we ought to provide for the accused and the solicitor and counsel because there is no practice to say that this automatically applies by virtue of common law and the statutes the Minister referred to?
It is general practice, is it not?
I would not agree. There are certain things only the accused can do as, for instance, plead. The solicitor cannot say: "I am pleading to this charge". It is reserved entirely for the accused. The difficulty I refer to arises. Therefore, I would ask the Minister to bear that in mind. There is also the question of the right to inspect documents. If it is allowed purely to the accused it will be quite useless to an accused who is remanded in custody. If the Minister is not correct in saying that the words "the accused" embrace his solicitor and counsel——
They do embrace the solicitor and counsel. I should like to see that challenged.
I shall consult with some of my colleagues.
A solicitor or counsel would not be asked to stand in the dock but commonsense——
There is no dock in the District Court.
Question put and agreed to.
Question proposed: "That section 7 stand part of the Bill."
In relation to subsection (2) of section 7 Senator O'Quigley has just told us rightly that only an accused can plead. His solicitor cannot plead for him. Subsection (2) says: "The prosecutor and the accused shall each be entitled to give evidence on sworn deposition." I am a bit surprised to find that the prosecutor can give evidence. I do not know whether the verb "to give" means something else legally from what it means in ordinary parlance. It seems to me that he has a right to summarise or to offer evidence perhaps through some other channel but to imagine the Attorney General giving evidence on sworn deposition does not seem to me to be normal procedure. It goes on to say: "and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him on sworn deposition." I can imagine the accused, of course, giving evidence or refusing to give evidence but I find it hard to understand how it is that the prosecutor can give evidence.
"Prosecutor" is a global word which includes "Attorney General". There may be exceptional cases where a private person may prosecute. If Senator Sheehy Skeffington will go back to section 4 where "prosecutor" is defined he will see the "prosecutor" is the person by whom the offence is prosecuted, being the Attorney General, which it would be in most cases and also a person prosecuting at the suit of the Attorney General or a person authorised by law to prosecute. Anybody can prosecute and the right of private prosecution is being retained here in the Bill, a right which is seldom used, but we are retaining it as a basic right which applies to every citizen. The Attorney General is really acting on behalf of the citizens as a whole but this has never taken from the right of the individual citizen to prosecute. Nobody can give evidence unless he has something to say pertinent to the case before the court. The Attorney General would never find himself giving a sworn deposition unless he were personally involved. In most cases the private prosecutor would exercise the right to give evidence orally.
There is another matter which occurred to me on this. It shows a certain inconsistency in the drafting to which I referred earlier. I do not like the expression "shall...give evidence on sworn deposition...." That is not an expression I have heard before. The phrase is "by way of sworn deposition." I let that pass until I came to section 14. It is not a deposition until you have given evidence. In subsection (4) of section 14 we provide:
Where, on the application of the prosecutor or an accused person, a justice of the District Court is of opinion that a prospective witness may be unable to attend or be prevented from attending to give evidence at the trial of the accused and that it is necessary in the interests of justice to take his evidence by way of sworn deposition, he may order accordingly.
This is, again, the old rule being broken, the old rule of being consistent and continuing so throughout the Bill.
That is a fair point. We will take it up with the draftsman between now and Report Stage.
In paragraph (2) of section 14 there is reference to "signed by the Justice". The signatures of many people are not always legible. "Signed by the Justice" may be a desirable thing but I am aware, and the Minister is familiar with those things, of difficulties which have arisen in the past in relation to things which are supposed to have been signed. It did arise whether or not the stamp and the facsimile of the District Justice's signature was sufficient. Perhaps the Minister could enlighten us about this?
"Signed" means signed in one's own handwriting. I would not envisage a stamp in that section.
There has been a case about it.
They came down against the stamp.
Question put and agreed to.
Business suspended at 6.5 p.m. and resumed at 7.15 p.m.
The Chair suggests that amendments Nos. 5 and 6 be taken together.
I move amendment No. 5.
In subsection (1), line 48, to delete "of opinion" and substitute "satisfied".
The House will, no doubt, recollect that on various occasions I have taken exception to the phrase "is satisfied that" occurring in various Bills where a Minister of State or some other person has been given a function which seemed to partake of a judicial character. The reason I have always objected to that has been that the phrase "is satisfied that" occurring in a statute has been the subject of consideration and determination by the Supreme Court in a case—the name of which escapes me now—which determined that Part IV of the Offences Against the State Act, 1939 was unconstitutional, because in Part IV the Minister for Justice, and in other places any Minister of the Government, is satisfied that a person was likely to engage in activities likely to endanger the security of the State, could make an order for the detention of that person. The then President of the High Court, Mr. Justice Gavan Duffy, and the Supreme Court later, held that the phrase "is satisfied that" involved a judicial process, and, therefore, it was giving to a Minister of State a judicial power which was by the Constitution, Bunreacht na hÉireann, reserved for courts established under the Constitution or continued under the transitory provisions of the Constitution.
It surprised me, therefore, to find that in this section—section 8—where we have a justice of the court engaged in the determination of a matter which, to me, seems to be entirely within the competence of a justice and within his jurisdiction, we use, in that context, the phrase "is of opinion that." It would seem to me that following the reasoning of the case in which Part IV of the Offences Against the State Act was declared unconstitutional, what we ought put here is that if the justice is satisfied that there is a case to put the accused on trial, then he shall be sent forward for trial. That, to me, is a judicial determination.
Therefore, it seems to me the justice should not merely be of opinion that a case has been made out but that, exercising his judicial functions, he should be satisfied that that is so—that a case has been made out. I am aware that there are provisions in our criminal code to enable the Attorney General to send somebody forward for trial. It may well be that the opinion of the Attorney General is all that is necessary or, indeed, all that can properly be required by the legislature in a case of that kind, where the Attorney General is sending somebody forward for trial.
It seems to me, unless there is some strong view to the contrary, that the more appropriate way and the way consonant with the decision of the Supreme Court, in expressing the way it ought to be done in subsection (1) of section 8 is that the District Justice should consider the whole of the evidence, balance one against another and before sending an accused forward for trial that he be satisfied that a case is made out. With a mere opinion, it can vary from the flimsiest view that there is a case made out to a judicial determination that one is made out. Merely forming an opinion is not I think appropriate and we ought to write into the statute what is more consonant with what has been declared the law, in my view, by the Supreme Court.
The Supreme Court decision referred to by the Senator related to a different situation in that it referred to executive decisions by a Minister of State. Here we are dealing with judicial decisions and, furthermore, we are using phraseology that has been hallowed by precedent during the years. There can be no doubt about that because these are the words in the Petty Sessions Act of 1851. It is also the formula in the District Court Rules. We cannot go wrong with that drafting formula. I cannot see any difference between it and "satisfied". I feel Senator O'Quigley will agree we are only talking about a drafting preference but one that has been hallowed by usage since 1851, is in the District Court Rules and is the usual phraseology in regard to the indication of the judicial mind.
I do not follow the Minister's reasoning. This is because the following of a Supreme Court case has reacted on the section. It is because Mr. Justice Gavan Duffy determined that the approach and the consideration which a judicial person gives to a matter before him is of a superior character and involves consideration of a variety of things that he decided that the phrase "is satisfied that" in the Offences Against the State Act imputed to the Minister and the Government judicial power. It seems to be of the essence of judicial power that the judicial person should be satisfied, and not merely be of the opinion as to something. One could get the opinion of counsel, but a court, on the evidence and in this situation on the various statements, should be satisfied. That is what we should demand of the District Court before sending anybody for trial—that the court should be satisfied a prima facie case has been made out.
The Minister deserves much credit and he has got it from me before for his modernising legislation and his desire to get rid of useless phraseology that has lost its meaning. There are some cases where it is undesirable to do so because particular phrases have acquired definite meanings for lawyers. However, to go back to 1851 as justification for something in the Criminal Procedure Bill of 1965 seems to me a very weak reed on which to lean.
I feel sure the Minister is aware that certain sections of the Petty Sessions Act of 1851 have already been declared unconstitutional by the Supreme Court. We have a judicial opinion from the Supreme Court on the phrase "is of opinion" and it seems unreasonable to enact a recurrent error of this sort which cannot be justified in the light of modern decisions of the Supreme Court of this country. It is not reasonable to offer the justification that this recurrent error has crept into the District Court Rules which I do not regard as having the same sanctity as law as have Statutes of the Oireachtas.
The appropriate state of mind for a District Justice to have before returning accused persons for trial is that he should be satisfied a case has been made out. That phrase is used in section 9 (3) where a witness order can be made in respect of a person who is likely to abscond. That is a much less consequential and a much less serious matter than returning somebody for trial. If it is right and proper to use the words "is satisfied" in subsection (3) of section 9 in relation to the binding by recognisance of someone who it is thought will abscond, it seems to me to be equally important in the case of returning somebody for trial for an indictable offence that the state of mind of the District Justice should be of the character that he is satisfied that the case has been made out. I do not see that in the one case you should use the words "is of opinion" and in section 9 "is satisfied".
Satisfied by evidence, though.
In this particular case satisfied that a case has been made out.
There may not be any evidence.
I do not agree. It is a judicial determination and if the Minister will read the case relating to the Offences Against the State Act he will find by inference that justices just do not have opinions. They have to be satisfied on evidence. This is a judicial process requiring a justice to be satisfied in his mind that he ought to make a particular order.
Could we not use the word "decide"?
I would be quite happy with that.
I think "opinion" is the better word. It is the safer one. There are implications—appeal implications—in the word "decide". There is legal undergrowth there.
There is no appeal provided for in the Act. Once you are sent for trial that is it.
If a justice returns for trial on a bad order it could be quashed. I think it is far safer to have "of opinion" having regard to the provisions of section 7 where the various matters are set out which the justice must take into account before forming an opinion. Section 9—"satisfied by evidence on oath"—is a different thing altogether. We will have a look at it anyway.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
I move amendment No. 7:
In subsection (2), page 5, line 4, to delete "take his plea" and substitute "and ask the accused if he has anything to say in answer to the new charge, caution the accused as provided in paragraph (a) of subsection (4) of section 7".
Where the Justice is of opinion that the offence with which the accused is charged has not been made out he can then indict him upon another charge which the evidence seems to disclose has arisen or has been committed and it seems to me that there is a possible danger that in relation to the offence with which he is then charged we are not going to require the Justice to exercise the same precautions in relation to the new charge as we do in relation to the original one. Amendment No. 7 is designed to duplicate the procedure that is to be followed in paragraph (a) of subsection (4) of section 7. What I want to ensure is that the procedure in relation to the original charge will be followed where the Justice is of opinion that the accused is not guilty —quite clearly not guilty—on the evidence of, say, larceny but that there is a case made out that he is guilty of receiving stolen goods, subsection (2) provides that he shall cause the accused then to be charged with receiving stolen goods knowing them to have been stolen and then it says unless section 13 applies, which is a waiver of the preliminary examination before sending him forward for trial. As I understand the position, all the evidence is then before the District Justice. The District Justice then charges him with the new offence and when the accused has been charged with that it seems to me there is no obligation upon the District Justice to ask the accused if he has anything to say in answer to the new charge, caution the accused and as provided in paragraph (a) of subsection (4) of section 7.
In amendment No. 8 I want to ensure that the provisions of paragraphs (b) and (c) of subsection (4) of section 7 should apply to any statement of the accused made in answer to the Justice's charge under subsection (2).
It is probably intended that these provisions should apply or be duplicated in relation to the new charge but, to use a phrase of the Minister's, that certainly is not spelled out in section 8. My amendment may not be the best way of spelling it out but I think it ought to be spelled out so that a District Justice will have no doubt in his mind as to what he ought to do in relation to a new charge offence which he thinks is disclosed by the evidence.
I am glad Senator O'Quigley set out what he had in mind because it does raise a possible lacuna in regard to the situation that would arise when the evidence discloses not the offence charged but some other offence. It is possible that the obligations placed in section 7 in regard to offences charged are not included in section 8 in regard to offences revealed by the evidence. I feel there is a lot of merit in what Senator O'Quigley has said. I do not think his wording is the best possible wording but if he leaves it with us between now and Report Stage we will work out something.
I do not claim to be an expert Parliamentary draftsman and never did.
Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
I move amendment No. 9:
In subsection (6), page 5, line 16, before "shall" to insert "or made under subsection (5) of this section".
What I am trying to establish by this amendment is parity of treatment for the accused when he is being discharged as when he is being put forward for trial.
When he is out, he is out.
Difficulties can arise afterwards. He may be apprehended and may not be able to produce an order to the District Court. If somebody is being discharged the order for discharge should have an equal, or even greater, sanctity than the order returning a man for trial. It should be in writing. Subsection (6) says that an order of a Justice sending an accused person forward for trial shall be in writing signed by the Justice. Is there any good reason why the order for discharge of the District Justice should not be in writing? This is the passport to return to freedom.
It is recorded in the District Justice's minute book.
Is there any reason why an order made is not signed? It may be needed in a case of habeas corpus proceedings afterwards. Some time the thing may be of importance. It seems to me that there is no good reason why the order for discharge should not be in writing in case of habeas corpus proceedings at a later stage.
The Senator would be making more trouble for the justice and the administration. There is an obvious difference between an order for return for trial and an order for discharge. The order returning to trial should be carefully controlled and should be in writing, signed by the justice. It has to be sent, with the other documents, to the trial court. But to have each order for discharge furnished in writing would be a waste of time. It is on record in the minute book attached to the courts that the person is discharged and that is the end of the matter as far as he is concerned. There is obviously a difference in importance. The order to return to trial must be in writing signed by the district justice and we are omitting the putting of such a burden on the justice and the administration with regard to the order for discharge.
I am not inclined to agree. We had this obsolete phrase for so long that it must confuse the public—the case of a District Justice refusing informations on a particular charge. I wonder what the situation is in the case of a person charged on a particular offence if afterwards upon evidence before him the Attorney General decides to indict the accused with an offence on which he has been discharged already. Under the existing law the Attorney General may take a different view from that of the District Justice who has made a judicial determination that there is no case. I do not know whether the Minister wants to press his views on the grounds that the Attorney General is entitled to indict an accused person notwithstanding the refusal of informations by a District Justice.
If that were the grounds for the Minister's view, I could see some merit in what he has to say. It seems to me that there is a good deal to be said for having some certainty as to what is happening in the District Court. A person is either discharged or returned for trial. If discharged, he is entitled to a discharge order and if returned for trial, a written order should be, as in fact it has to be, produced to the court of trial.
I will have a further look at it. I am not keen on the idea.
I agree with the Minister's idea on the relative importance of the two points.
Amendment, by leave, withdrawn.
Question proposed: "That section 8, stand part of the Bill".
Later on in section 19 of the Bill we will be dealing with minor offences under the Criminal Justice Act, 1951. This is purely a technical matter, as to whether the amending Act is covered here. I do not know whether that applies. I am raising the matter now so that, if necessary, it can be raised on Report Stage. The Criminal Justice Act, 1951, relates to minor offences.
The other point that arises is in subsection (4): "If the justice is of opinion that a summary offence only is disclosed, and the Attorney General consents, he shall deal with the case as if that offence had been originally charged." That seems fair enough as you read it. When it gets down to a particular case what does it mean? What occurred to me reading this particular subsection was whether it empowers the District Justice, on the evidence as then before him, to deal with the charges summarily or does it involve a complete re-hearing of the whole case, where witnesses have to be brought in to give evidence on oath for the purposes of dealing with it summarily? As drafted, the subsection suggests that on the evidence before the District Justice he can proceed to determine the case. I am certain that is not intended. I think we would want to make it clear beyond doubt that, of course, the case must be adjourned if that is necessary and oral evidence on oath must be heard in dealing with the case summarily.
The subsection means what it says. The justice may be of opinion that a summary offence is disclosed having gone through the procedure set out in the preceding section with statements of evidence and documentation before him so that there is no prima facie case for a return to trial on an indictable offence. If that were not done you might have a situation where the Attorney General might take the view that an indictable offence was, in fact, disclosed and you might have a case of the Attorney General being prevented from returning the accused for trial himself under the powers he has in this respect under the Courts of Justice Act, 1936. Where the justice is of the opinion that only a summary offence has been disclosed, he will request the Attorney General to consent to dealing with it on a summary basis. If the Attorney General consents the procedure then is, as the section implies, that the person charged will go forward for summary trial, which will involve the hearing of oral evidence in the ordinary way. The thing that would happen is that the justice would in that set of circumstances adjourn the case for the hearing of oral evidence.
Yes. I was a bit concerned as to why the consent of the Attorney General is needed. I can see why the Minister says it is necessary.
Section 62 of the 1936 Act. This section came up for judicial determination some time ago. The section was declared unconstitutional in the High Court but the Supreme Court held that it was constitutional and we are not repealing the provisions.
That will require more lengthy consideration, I am afraid.
Keep that for costs in the Supreme Court.
Question put and agreed to.
Question proposed: "That section 9 stand part of the Bill".
I move amendment No. 10:
In subsection (1), line 21, before "requiring" to insert "or a statement of whose evidence has been supplied and whose deposition has been taken under this Part".
As the section is worded at the moment we do not quite deal with the different kinds of situation that can arise under section 7. It seems to me that you can have a position where a person gives some of his evidence by way of statement to the prosecutor and may be called in by the defence to give further evidence by way of sworn deposition and to be cross-examined by the defence, and, therefore, you may have a situation in which part of the evidence of a witness is by way of statement and part by way of deposition. What I am trying to provide for in this amendment is that the Justice shall have power to provide for that third category. There are three categories of witnesses —one who makes a statement, one who makes a deposition and the third who makes a statement and also a deposition. I am not quite certain that under subsection (1) the third category of witness who makes both a statement and a deposition is captured by the section to ensure that that third type of person whose evidence is to be made available at the trial should be bound over to attend upon the trial.
I can see what the Senator has in mind and I think that that is covered already.
I think that what we are providing for is one witness who falls into the category of having made a statement, and then a witness who made a deposition, but we do not seem to provide for a witness who has made a statement and a deposition.
Surely the fact that that sort of witness is covered under one or the other alternative means that he is covered for both.
I will look at it. Clearly it is entirely a drafting point. I will examine it between now and the Report Stage but I would say this, which is just an immediate judgment, that the fact that that category of person has supplied both a statement of evidence and a deposition means that, as we have both categories set out, he is sufficiently covered. The fact that he is covered twice over does not mean that he is not covered. That is my own opinion, though it could be that a person in both categories is not covered. However, I will look at it.
What was ringing in my mind in relation to this subsection is the kind of thing you find in quite a number of statutes where a person is liable to be punished by fine or imprisonment or both. You have three different categories of penalty. I am not at all certain that I am right, but I am not sure the Minister is right.
We will have a closer look at it.
It is a possible defence for an accused person.
Amendment, by leave, withdrawn.
Question proposed: "That section 9 stand part of the Bill."
On section 9 the House will recollect that on Second Stage I expressed some doubts as to the desirability—I think I may have referred to the constitutionality—of the provision in subsection (3) of section 9 which provides that if on the application of the Attorney General or an accused person the Justice is satisfied by evidence on oath that a particular person is unlikely to comply with a witness order, the Justice may bind him by recognisance to appear at the trial, and if he refuses to be so bound the Justice may commit him to prison until the trial. The Minister will probably be aware that since the Second Reading of the Bill the Supreme Court has delivered a judgment which I had the opportunity of being in a position to listen to at 2 o'clock yesterday afternoon.
A very interesting judgment.
It is a judgment which is very interesting for very many reasons. It is a case in which the accused person appeared before the High Court originally and then before the Supreme Court to argue his case in person. He was applying for bail which had been refused in the District Court or which he thought was too high. He applied to the High Court and his application was refused there. He then applied to the Supreme Court, which ordered his release and reserved its judgment. The tenor of the judgment of the Supreme Court was, as I understand it, that the circumstances in which you can detain a person accused of committing an offence are extremely few, that bail for an accused person charged with an offence is not a mere matter of privilege but a matter of right guaranteed by the Constitution of this country to every citizen and that only in the most exceptional cases can a person be deprived of his liberty. I want to go back to say why the judgment is interesting and I am sure, when the Report is published, it will make very interesting reading because the accused appeared in person, which illustrates the solicitude and regard which the courts in this country have for the rights of citizens.
The fact that the accused in this case was not represented by a solicitor or counsel did not make a whit of difference to securing of his rights. Indeed, it has often been the experience of counsel that where a person is not represented he has on the Bench his own advocate. The person not represented finds in the judge the best advocate he could have. I think the judgment is remarkable. It illustrates the reality which springs from the words in the Constitution which secures the rights of citizens to their personal liberty and that they shall not be deprived of it except in accordance with law, and provides the right of habeas corpus by way of application to the High Court and, on appeal, to the Supreme Court. That, perhaps, is not very relevant to what I have to say except that it was prompted by the Minister's observation.
What the Supreme Court, as I understood, said was that the object of bail was neither punitive nor preventative. If it is not punitive or preventative in relation to an accused person, what we are seeking to do in subsection (3) of this section, namely, to provide for the detention of a person who it is suspected will not attend the trial is unconstitutional for the reasons given in the Supreme Court judgment. I think the Supreme Court made it quite clear that was quite contrary not alone to the statute law of this country but to the Constitution. If I recollect correctly, the Chief Justice said that counsel for the Attorney General had said that bail should be refused because the offence in respect of which the applicant— O'Callaghan—was seeking bail was alleged to have been committed while he was on bail in respect of earlier charges. He understood that counsel for the Attorney General submitted that the applicant should be held as a preventative measure. The Chief Justice then observed: "This, I take, to mean that he should be detained in custody because, if granted bail, it is feared he may commit other offences. The reason underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted."
Here in this subsection we are going to punish a person not for an offence completed or attempted—I do not know whether it be an offence—but for what is purely speculative—a feeling such as the superintendent in the O'Callaghan case had that the person may not turn up for the trial. I am happy to think I had justification for my apprehensions about this particular section though I can see the practical reasons for having it in the Bill. I think Mr. Justice Walsh, the other member of the three-man Supreme Court, referred to the same thing in his judgment and said:
... the likelihood of the commission of further offences while on bail....
as grounds for refusing it
... is quite inadmissible.
He went on to say:
This is a form of preventative justice which has no place in our legal system....
I think the Minister must take a good hard, long look—perhaps longer than between now and this day week—at subsection (3), and it may be necessary to amend it. I am raising it at this stage so as to be in a position to amend it at a later stage.
In section 6 where we are clearly dealing with the District Court we referred to it in subsection (2) as "the court". Indeed, again in section 9 we are quite clearly dealing with the District Court but the Minister chooses to be inconsistent in his use of words. Here he puts into subsection (3) the "District Court".
That is only a printing matter.
This thing goes throughout the Bill and makes it extremely difficult. One should be consistent. I should like to hear the Minister on subsection (3).
On the broader point, I shall not go into the merits or demerits of the Supreme Court. I am concerned here with the practicalities and seeking to make a system work. Subsection (3) of section 9 is a very important section from the point of view more particularly of witnesses rather than the accused person. In fact it is on that aspect that the Attorney General and the State are particularly concerned; that if you do not have some way of ensuring that a vital witness in a prosecution attends at the trial, then you can have a wholesale dislocation of the administration of justice and a direct invitation to corruption. Straight away, you have a system where the witness can be bought off, could disappear to England and cannot be extradited. An accused person is extraditable but a person who is merely a witness in a criminal case is not. Therefore, if there is any dislocation of subsection (3) either by way of amendment or otherwise, such are the consequences of that dislocation in practical terms. It means, as I have just stated, that a witness against whom no charge is made, can be bought out, or bought off and can disappear to England and not be available for the trial.
I hope a certain amount of commonsense can be brought to bear on these practical aspects of Bills such as this and that commonsense can emanate from every quarter concerned.
I can see the difficulties of the situation. The resolution of the difficulties may not be by putting in subsection (3); it may be by way of amending the Extradition Act, in conjunction with the British, and it may well be that the British would be as pleased to have this.
You cannot extradite witnesses against whom there is no charge.
I have been saying that we might have to amend the extradition arrangements between this country and Britain. If recent newspaper reports are correct, the same difficulty arises in the USA on the matter of extradition between interState courts. If one goes south of the Border, as the term goes, to another State one cannot be extradited to the State in which one is charged, or apparently to the State in which one is required as a witness. That is the way I have read recent newspaper reports and the Minister might feel inclined to inquire how these difficulties are met in the administration of State justice in Federal America. There may be some solution to the difficulties.
The Minister's statement that we must have regard to the practical aspects of the administration of justice is regrettable for the reason that, if it so happens the Constitution does not fit the practical requirements of the day to day administration of justice, the Minister should not invite this House or, as he seems to be doing, invite other persons with responsibility for it, to ignore the Constitution and say: "We know this may be unconstitutional but sure we cannot work if we do not enact the legislation in this way."
I think that is a wrong attitude. One of the difficulties about our Constitution is, I suppose, that in the procedure for making amendments there is no distinction between serious amendments and amendments of a minor character which decisions of the High Court from time to time may show to be necessary. That is one of the difficulties in having a written Constitution but it behoves this House and the other House, with respect, and Ministers and the Government to say: "That is the difficulty that has been posed by the Constitution", but the difficulty must be overcome in a lawful way.
I have little doubt that the people of this country, at a general election or at local elections, if one wanted to take advantage of them, would have no difficulty in making appropriate amendments to the Constitution if they were invited to do so.
I have seen the type of ballot papers they have in some of the States of America which hold elections as frequently as every two years in some cases for reasons best known to them. They can have as many as 40 questions to deal with and if the great mass of the US public can answer these questions I cannot see any reason why in this country such a highly literate and politically conscious population could not deal with such matters.
The Chair is becoming a little worried at the extent to which the Senator has been moving from section 9.
I have been dragged down this road——
I realise the Senator has been dragged step by step.
If the section is unconstitutional, the Minister has invited me and the House to realise the difficulties involved and to ignore the Constitution. I shall not realise in anticipation those difficulties because if there are difficulties, we should take the appropriate step of amending the law which creates or is the source of the Minister's difficulties. The Constitution holds the difference between the people who uphold the law and those who do not, between a democracy and those nations which are not democracies. If the Minister is dissatisfied, as he appears to be dissatisfied, that the Supreme Court is correct and that this might present difficulties in the administration of justice, it will not do to say: "Let us shut our eyes to this; we must allow this unconstitutional legislation to pass". The Constitution imposes on this House a duty —and let the House not forget its obligations—not to enact any law which is repugnant to the Constitution. This I should have thought would be borne in mind by the Members opposite. It is a Constitution not framed by a lawyers' Government or by lawyers but by supposedly practical politicians.
That is what I understand the position to be. We—all for whom I speak on this side of the House—uphold the Constitution. It commends itself to us on this side of the House, because we have always stood on the side of law and order.
I do not speak for him. He can look after himself.
I should like to give my personal opinion. If the decision of the Supreme Court as published—I saw only the Press reports— is considered, there will be no bail bonds issued and there would have to be an amendment of the Constitution to govern the country.
Question put and agreed to.
Question proposed: "That section 10 stand part of the Bill."
Why did the Minister use this antique phrase "be issued out of the courts"? What we are talking about is obtaining or getting. It is an antique form of phraseology.
Anyway, the Senator knows what it means. It is clear enough.
Question put and agreed to.
Amendments Nos. 11 and 12 not moved.
Section 11 agreed to.
Amendment No. 13 not moved.
Question proposed: "That section 12 stand part of the Bill."
I am wondering if the Minister is satisfied whether this section should not be spelled out—this phrase "any documents required to be supplied to the accused". Would the Minister not consider inserting in the subsection the words "under this Act"?
I will have a look at it.
Question put and agreed to.
I move amendment No. 14:
Before section 13 to insert a new section as follows:
"The Attorney General shall cause the indictment containing the offence with which the accused is charged to be furnished to the registrar of the trial court not less than ten days before the date of the trial and the registrar shall furnish a copy of the indictment to the accused or his solicitor not less than seven days before the date of the trial."
This could have been taken with an earlier amendment because it relates to the same principle. I do not know whether the situation in relation to the presentment of indictments will be altered as a result of the enactment of this Bill but the present practice is that when a person is returned for trial the depositions will be lodged with the County Registrar, or in cases of specified offences with the Registrar of the Central Criminal Court, and copies given to the Attorney General who, through his counsel, can draft an indictment containing the counts on which the accused person is to stand his trial.
It seems to me that since we are not amending the Indictment Act of 1924, that procedure will continue to apply. Nearly every person who has defended an accused person will have had experience of getting a copy of the indictment for the first time when in the Circuit Court on the morning upon which the accused is arraigned for trial. To me that is a hopeless situation and one which should not be tolerated. It has placed counsel on many an occasion in the embarrassing position of finding the accused in the dock and he has just been presented with the indictment containing the charges. There is no possibility of communication between him and the accused. That is one of the difficulties of lawyers who are practising.
The 1924 Act in the rules contained in the schedule in relation to indictment, provided for the granting to an accused, free of charge, of a copy of the indictment, on request to the County Registrar or the Registrar of the court of trial. That, to me, was a very tenuous right to grant to an accused person. I do not know whether, under this Bill, the Attorney General is obliged to serve a copy of the indictment upon the accused or whether reliance is being placed upon the Indictment Act of 1924. What I am seeking to do in this amendment is to ensure—I have little doubt that I will be supported by my colleagues in the legal profession—that the Attorney General will have the indictment drafted and served in time.
I can see the Minister saying that this amendment may delay the trial of an accused person. I feel the Minister should accept the necessity for having an indictment served upon the accused some time before the date of trial which is not by any means always the case at present.
I am aware that accused persons desire to get a speedy trial and it will be necessary to redraft this so as to enable an accused person in particular circumstances to dispense with the minimum period if he wants an early trial. I think we ought to spell out in this legislation the obligation that should rest upon the Attorney General to furnish a copy of the indictment in sufficient time before the trial.
In speaking of the Attorney General may I say, in exculpation of the present and all Attorneys General, the fact that there has been such short time between service of the indictment and the actual trial has never, to my mind, been the fault of the Attorney General. The whole thing boils down to inadequate staff in the offices of the County Registrars. This is ultimately not the fault of the Minister for Justice but the fault of the Minister for Finance. We ought to provide in this legislation that the indictment should be served a reasonable time before the trial unless the accused person decides to dispense with the minimum period.
We argued the principle of this out on earlier amendments so I am largely reiterating what I said earlier. The person who is best able to judge whether the indictment has or has not been served in reasonable time is the accused person himself or his advisers. That is why I am opposed to having any rigid time limit in a matter like this. The Attorney General assures me that the greatest urge existing in most accused persons' minds is to get their trial over and done with quickly. If you put a time limit of this or any other kind in regard to the service of the indictment or the service of documents, statements of evidence, you are, in practice, bringing on a situation where in a substantial number of cases by reason of this time limit people will not get speedy trial because the trial which they could secure is coming within a period less than the statutory period the Senator seeks and therefore by reason of being beaten by some statutory time limit they are put over to another trial six weeks, eight weeks or three months later. That is a situation we should avoid.
I would regard it as a reasonable proposition that in the case of any legislation of this kind we should always have the principle in mind that we should have no provision in it that would hold up a trial of an accused person. I think it is wrong that we should have in legislation a scheme of things whereby immediate or speedy trial would be frustrated and that is the effect of the Senator's amendment.
I would say the person who is best entitled to judge how reasonable the State has been in regard to the service of documents is the person involved, the accused person. If he feels he is prejudiced in any way he can go to the Court and say he has been prejudiced. Any Court in the land will automatically give him an adjournment on the basis of his legal advisers' saying they have been prejudiced by reason of the late service of the indictment or any document. That is the commonsense approach to it. The Attorney General, whose advice I have sought in this matter and myself are strongly opposed to this and I can see a lot of commonsense reasons for not having it. The ones I have enunciated are the strong ones which would lead me very much against a statutory time limit. Far from helping accused persons, which I grant, is Senator O'Quigley's intention, it would, in fact, frustrate and prejudice them.
Amendment, by leave, withdrawn.
Section 13 agreed to.
An Leas Chathaoirleach
It is proposed to take amendments Nos. 15, 16 and 17 together with separate decisions if necessary.
I move amendment No. 15.
In subsection (2), line 9, to delete "the deponent" and substitute "such witness".
This is a further effort to get rid of the kind of phraseology that means nothing to the ordinary layman and is quite unnecessary to introduce into this Bill. It is clearer where we are talking about getting somebody to give evidence to refer to the person who gives the evidence as "such witness". That is what the person is. That is what you get a witness order for. There is no necessity to refer to somebody as a "deponent". The Minister will say it is a matter of choice but I think we ought to get away from this meaningless and unnecessary vague term as far as the layman is concerned.
There is a certain difference in this case. "Witness" is quite clearly a term to be used in the case of a person giving evidence in a preliminary examination or at the trial of an accused person. In this case the deponent is unlikely to appear at the trial at all. I must say I think there is a distinction here.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Section 14 agreed to.
Amendment No. 17 not moved.
Section 15 agreed to.
Question proposed: "That section 16 stand part of the Bill."
The power to exclude different persons is certainly desirable. It is contained in other parts of our criminal court procedure. We seem to be excluding the public or any particular portion of the public except bona fide representative of the press during the hearing. It seems to me that there is a particular class of persons who should be entitled to remain in court and whom the court should be under no obligation to exclude. I am thinking of solicitors' apprentices who, as part of learning their job, should be in attendance in court at the taking of depositions or in the course of the preliminary examination. It may also be a desirable experience for inexperienced counsel and, perhaps, in some cases for experienced counsel. It is part of their professional training that they should be in the court to see how proceedings are conducted.
I have known cases where counsel have been excluded in affiliation order cases. A situation then arises where a counsel for the first time has to deal in court with an affiliation order. He has no experience, and could not have experience, as to how the case is conducted because of these exclusion orders. It is desirable, surely for the purposes of professional experience, that the court should not be under an obligation, as it is under some existing legislation, to exclude people who are there for the purpose of learning how to do things, about what goes on, and so on. I should like the Minister's views on that.
There is nothing mandatory on the court to exclude everyone except the press. What is mandatory is that the press are entitled to be there. They are there as of right and this discretion exists to exclude the public or any particular portion of them or any particular person. This goes back to court discretion in the circumstances of the particular case. I am certain that most reasonable judges and justices would take the view that those people whom Senator O'Quigley mentions would be allowed to stay on.
The opposite is the position. The Judge or Justice having to make an order to exclude the public is apt to show absolute impartiality, and all go out. There is no distinction drawn between lawyers and the public.
It does not often happen that this kind of thing arises. The Minister will agree that it is desirable that counsel or young solicitors who have no experience in dealing with an affiliation order and difficult and delicate cases should gain experience. If an exception is not made in their case by law the Justice will say that the law applies to all and that all will go out. I have never known it to happen that that they remain. Unless the law entitles the Justice to say: "I must exclude some but I am entitled to allow others to remain under the statute," all must go. Such a provision as I suggest in the amendment relieves him of obligation of making distinctions. This exclusion provision places Judges and Justices in something of a difficulty.
My experience is different from that of Senator O'Quigley. I have never known solicitors or barristers to leave the court in criminal proceedings or circumstances of that nature. I have never known solicitors or barristers to leave the court in County Tipperary or in any other county.
(Longford): If you were to write into a measure of this sort categories of professional people, shall I say learning the trade, you might have all sorts of people deciding to come in—students of sociology, psychiatry, and so on. They might claim a right. Senator O'Quigley might concern himself with the legal people but there might be other categories of learners who might be concerned with the kind of thing Senator O'Quigley has in mind.
I am talking about the legal profession, not about psychiatrists and so on.
Question put and agreed to.
Sections 17 and 18 agreed to.
I move amendment No. 18:
To delete subsection (3).
If I understand subsection (3) correctly, it means that the free legal aid system under the Criminal Justice (Legal Aid) Act, 1962 will not apply in relation to proceedings which are preliminary investigations, into offences before the District Court. I wonder whether the Incorporated Law Society are alive to the modification of this provision. I wonder indeed if Counsel are, and whether, indeed, the Minister has received the approval of both of these bodies.
Is the Minister aware of their approval of this particular section? As I have already said, the free legal aid scheme has not been in operation for long. It is not remunerative. Indeed, it is unremunerative in some ways. Is it to be said now that a person charged with manslaughter or with serious offences such as burglary, robbery or offences against the person of varying kinds and who has no means to enable him having a solicitor present, is not to receive any legal aid whatever so as to have a solicitor appear at the taking of depositions? That is what the section seems to me to say. If that be so, I would not be going too far in saying that the Minister is going a long way towards scuttling the free legal aid system which has been limping along up to now and making heavy weather. It is quite unremunerative, and let it be said to the credit of the legal profession that the best remunerated and the least remunerated all took part in the free legal aid scheme and held on to the tradition of the legal profession of looking after the weak among us who were deserving of help. If the Minister retains this section he will be well on the way towards scuttling the free legal aid system in a way that the British aircraft were not able to deal with the Torrey Canyon.
This legal aid scheme has to be watched very closely, I am sounding somewhat like the Minister for Finance now, because it is quite obvious that unless it is circumscribed it could get completely out of hand. It should, of course, apply to genuine cases where hardship and injustice might be caused if it were not available, and the courts have administered it in that sensible fashion. It is only in very few deposition cases, largely where a murder charge has been involved, that the courts have allowed legal aid. Now that we are abolishing the deposition procedure as we have known it I see very little need for having free legal aid available in the case of a procedure in which 90 per cent of the cases, we hope, will involve nothing more than an announcement by the district justice of his decision whether or not a prima facie case has been made out sufficient to justify sending forward the accused for trial. That would be the position in 90 per cent of cases, and I do not want to do anything to encourage the position to be otherwise, as might happen if the Senator's proposal was adopted. I will leave it at that and say that I think it is very desirable that the legal aid scheme should be circumscribed in this way, and that is the way it has been operated by the courts in a very responsible manner. The facilities are there in case of hardship for free legal aid to be available at and before the actual trial, but at the preliminary stage where the accused will now have all the documents in advance, it would be unnecessary and undesirable to have it.
I am in agreement with the Minister that the scheme has been administered with a sparing hand by the Justices and the Judges of the Circuit Court called upon to administer it, and the Minister now says that in very few cases at present has free legal aid been granted.
Only in murder cases, for all practical purposes.
It seems to me that there have been cases where presumably the District Justice was of opinion that free legal aid ought to be granted. It might well be a case which the District Justice would like to have argued before him, to consider arguments submitted to him as to whether he ought to send somebody for trial or not, having considered the documents. If he had some doubt in his mind, he would like to have a solicitor for the defendant arguing the matter before him. Oftentimes District Justices are helped by the clash of opinion on opinion and can then see for themselves more clearly how the matter should be determined. The other course to be adopted is for the District Justice simply to say that he will return the accused for trial where he has a couple of chances— that a direction will be given at the conclusion of the State case or at the end of the defence case, that the case may be withdrawn by the Judge, and knowing also that the prosecution must get 12 men to convict him. It might encourage that kind of thinking on the part of the District Justices, which I think would be very undesirable if it were to arise. If the cases are as few as the Minister says, there is no argument for withdrawing it.
We are keeping it for murder, of course.
I can see that clearly. The fact is that it is the legal profession which is to a large extent financing the free legal aid system by loss of remuneration and income on its own part. If the Minister proceeds with this amendment of the Act of 1962 he may forfeit a great deal of goodwill which is at present the operative power as far as the free legal aid scheme is concerned..
The professional bodies concerned have not approached me on this matter at all.
Amendment, by leave, withdrawn.
Question proposed: "That section 19 stand part of the Bill."
I was disappointed to find that the Minister engaged in the amendment of the First Schedule of the Criminal Justice Act, 1951 in this way. It takes a very long time to write out in longhand the whole of the First Schedule with the amendments here incorporated. I would ask the Minister to put in the whole of the First Schedule either by way of a Schedule to this Bill or to incorporate it in the section, on the Report Stage. If you want to ascertain whether an offence can be tried summarily under the Criminal Justice Act you will in future have to look at the 1951 Act and try to work out the amendments made by section 19 of what, when enacted, will be the Criminal Procedure Act, 1967.
This raises a larger question which we discussed on the Second Stage of the Rent Restrictions Bill and in which I am very interested. For instance there may be a case here, once this is passed, for merging it with the 1951 Act. They both fit in together, but there is no consolidation procedure here in our Parliamentary system for that being done. In some European countries it is done as a routine procedure. Acts are related, coordinated and merged and there is a Parliamentary Committee to ensure that nothing untoward is done in the process. Certainly a case seems to be emerging for something of this kind. I appreciate Senator O'Quigley's point that you cannot read section 19 on its own without having the Act of 1951 by your side. However, I am looking into all this at the moment with the Attorney General and I hope to have something to say on it fairly shortly.
I wonder if the Minister would not find it possible to incorporate in the explanatory memorandum which will be published when the First Schedule as amended by this section of the Bill is passed. If he does this, it would go a long way to meet the situation.
Yes, we will see whether that can be done.
That will certainly meet the situation.
Question put and agreed to.
Section 20 agreed to.
I move amendment No. 19:
Before section 21, but in Part III, to insert a new section as follows:
"Where a person is accused before the District Court with an offence, the Court may, subject to the provisions of this part remand such person (in this Part referred to as ‘the accused') from time to time as occasion requires."
This is merely changing around the way we are dealing with this new element in our criminal procedure, the matter of remand. I think that one ought to state the position more clearly than it is stated here by way of implication. It is only impliedly that you can ascertain what the position is. The section says that where an accused person is before the District Court in connection with an offence the court may, subject to the provisions of this Part, remand the accused from time to time as the occasion requires. The wording in my amendment seems to be a much clearer way of expressing what is impliedly expressed in section 21. It is very much a matter of emphasis. I think that my drafting is better than the section as drafted.
I agree that there is nothing in substance between us. It is a question of where the emphasis should be placed. I will take it up with the Draftsman between now and Report Stage.
Amendment, by leave, withdrawn.
Section 21 agreed to.
Question proposed: "That section 22 stand part of the Bill".
Perhaps what I am going to say now I should have said at the beginning of this Part III.
What I am going to say relates to sections Nos. 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33. I am merely saying that so as to keep the position open within the Rules of the House. It seems to me that in relation to this particular part, dealing with remand, the decision of the Supreme Court given yesterday, an official copy of which will not be available for some time——
Not an official copy—only an improvised copy, surely. Until such time as an official copy is available, we cannot properly consider the effect of the Supreme Court decision on this particular Part of the Act. It might well be that the Minister, on a full consideration of the Supreme Court decision, might decide to delete the whole of Part III until such time as further consideration has been given to the provisions of Part III, in the light of the Supreme Court decision.
I take it what the Senator is going to say is what he touched on earlier in regard to the witness order. There is no doubt but that this whole procedure in regard to remand and bail certainly is now open to a searching examination by me, as Minister for Justice, having regard to the Supreme Court decision announced yesterday. We will have to have a very close look at the provisions referred to by Senator O'Quigley, having regard to that decision.
I was going to suggest when the time came to look for Report Stage that the Seanad might give me a longer period than I had originally intended to ask for within which to consider, largely, matters arising out of that Supreme Court decision. I had originally intended to ask for Report Stage next week but I intend now to ask for it in, say, three weeks' time. I have a copy of the judgement referred to by Senator O'Quigley; not an official copy. I was looking at it last evening and it is being examined in my Department. It does raise important issues but the Senator might prefer to leave it at that.
It would only be a waste of time to say any more on it except that it ought to be agreed by the House that whatever amendments are put down should be subject to recommittal on Report Stage.
I take it that is agreed by the House.
It may be agreed at the beginning of Report Stage.
Question put and agreed to.
Section 23 agreed to.
Amendment No. 20 not moved
Section 24 agreed to.
Sections 25 to 30, inclusive, agreed to.
Question proposed: "That section 31 stand part of the Bill."
I think I raised this abstruse and obsolescent phraseology with the Minister on Second Stage. "Estreated recognisance" is a fine phrase but it does not mean anything to an ordinary person, and, I am sure, means very little to the person who goes bail or who enters into recognisance. I am wondering whether we could not use some simpler phrase such as is used in our electoral law where you forfeit your deposit; that is, in effect, what happens when a recognisance is estreated; when the sum of money you paid on entering into a bond becomes forfeited to the State.
The word "forfeit" is intended to relate to cash, whereas estreat relates to an undertaking which is really a bond.
But I am wondering whether this esoteric language could not be illuminated in some way?
It has only got the virtue of being there for years.
You could say then that the bond should be forfeited in like manner as a recognisance entered into heretofore was estreated; that links the old with the new but this obsolescent language I think ought be removed.
Question put and agreed to.
Sections 32 and 33 agreed to.
Question proposed: "That section 34 stand part of the Bill".
This is a very useful section. It seems right and proper that where the trial judge finds a verdict in favour of an accused person, on the basis of his interpretation of the law, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination. It can happen that different Circuit Court judges will, especially on new legislation, take different views as to what the law is and it is only right in such a case that the Attorney General should be entitled to have the matter referred to the Supreme Court to state what the law is. It is a very desirable thing to bring certainty into the law. The only matter which arises here— and I wonder whether the Incorporated Law Society have made any reference to it—is the question of the Supreme Court assigning counsel to argue in support of the decision. I apprehend it may be necessary in that particular setup, where there may be a deal of paper work, that it would be desirable that the assignment should be made via a solicitor. The solicitor's work in the case may be very voluminous but that is the position at present. I am wondering why there is not any provision for assigning a solicitor.
The actual phrase should not be taken literally, as the Senator is taking it. I think it has been the practice to include solicitors in such a case.
Question put and agreed to.
Sections 35 and 36 agreed to.
Question proposed: "That section 37 stand part of the Bill".
Scottish law is extremely interesting and very often difficult to follow because, again, of the old and strange terminology used. I am quite prepared to say that certificates appearing to be given by a Procurator Fiscal should be accepted by the Commissioner of the Gardaí for the purposes of the Extradition Act. I am not so sure I am happy that we must also accept a certificate signed by a Depute, as provided by subsection (3), which says:
In this section "Procurator Fiscal" includes a Depute.
I do not know what kind of a functionary this Depute Procurator Fiscal is, what his functions are, how he is appointed.
He is a very responsible person in Scotland. The nearest thing to him we have is a state solicitor. He is a state solicitor and much more.
(Longford): The same category as a county registrar here.
No. He is a state solicitor with extra responsibilities and powers in the matter of prosecutions which our state solicitors do not have.
Maybe that is the position of a Procurator Fiscal, but I still do not know what a Depute is or how he comes to be appointed.
He is a second in command.
Perhaps the Minister might give us more information later.
Question put and agreed to.
Question proposed: "That section 38 stand part of the Bill".
The objection I made to the Depute Procurator Fiscal is stronger in the case of a person "for the time being exercising the functions of the office of Attorney General" in relation to the Channel Islands, namely Jersey and the Bailiwick of Guernsey. Hear we are shading off into vagueness by saying that the Attorney General for these places includes the person for the time being exercising the functions of that office. We have no idea how he is appointed, whether he is a civil servant, whether he is appointed by the person governing the Channel Islands.
We had this argument on the Extradition Bill. The whole basis of extradition is mutual acceptance of the other country's system of law administration. Good faith is the fundamental basis of any extradition arrangement. I do not think it is something one should get into too keen an argument about.
Is the Minister satisfied as to the method of appointment—that it is not a very informal type of thing?
No, in the Channel Islands.
I have to take a lot of what is done as read. I am perfectly satisfied.
I am just wondering if we are not taking too much as read.
Question put and agreed to.
Schedule and Title agreed to
Bill reported without amendment.
Report Stage ordered for Wednesday, 3rd May, 1967.
The Seanad adjourned at 9.15 p.m. until 3 p.m. on Wednesday, 12th April, 1967.