Before entering upon consideration of this Bill, I should like to inform the House that it is proposed to recommit all the amendments from No. 25 to No. 35 with the exception of amendment No. 24 relating to Part III. Amendment No. 24 is omitted as it is proposed to take it with amendment No. 15. Amendment No. 35 is an additional Government amendment circulated today.
Criminal Procedure Bill, 1965: Report and Final Stages.
It seems to me that it would be desirable to have amendment No. 20 taken separately because slightly different principles are involved. Amendments Nos. 3, 16, 17 and 18 can be taken together but I suggest that amendment No. 20 should be taken separately.
Agreed to take amendment No. 20 seperately.
I move amendment No. 1:
In page 4, line 15, before "shall" to insert "and where he is represented by solicitor and counsel, his solicitor and counsel".
This is an amendment which I had on the Committee Stage and the Minister undertook to look into the matter. On the last occasion the Minister was in a very agreeable mood and undertook to look into a lot of matters and I should be glad to hear from him on a number of these. In fact, I see that quite a substantial number of amendments that I had suggested are agreed to by the Minister. We have similar amendments in a number of cases today. What I am trying to do in this amendment is to provide quite clearly in the Bill so that there can be no doubt about it that where an accused person is to have a right to inspect exhibits that that right also inures to the benefit of his solicitor and counsel, if he is represented by a solicitor and counsel. There is very little use, I think it will be agreed, in providing a right to an accused person, in that if he is lodged in Mountjoy or Limerick Jail, he cannot inspect exhibits that may be retained in Athlone, Castlebar or the Central Criminal Court in Dublin. I feel that it should be made quite clear—I understand from the Minister this is the first time it has been put into legislative form—that the accused shall have a right to inspect exhibits, that the accused's legal representatives, if he has such, would be entitled to inspect these and be able to see in advance of the trial what the nature of the exhibits is.
I think the Minister was disposed to say on the last occasion that that right is implicit in the law already. If that is so, I feel that it can do nothing but clarify matters to provide quite clearly in the Bill that the accused shall— and, as suggested in the amendment, where he is represented by a solicitor and counsel—have the right to inspect all exhibits. I urge the House to accept the amendment.
I dealt with this matter fairly fully on Committee Stage, and I have looked into it since, as I promised. I am still of the view that it is unnecessary to spell this out, that by long usage and practice, and, indeed, commonsense, it is implicit in any phraseology where rights are given that those rights are, by implication sanctioned by long usage and commonsense, also given to the person's solicitor or counsel. In fact any agent of the accused person would have the right of inspection. If we want to be technical, we might gather from Senator O'Quigley's amendment that the accused could look at these exhibits only in the event of his being represented by solicitor and counsel. There is a danger that one could read into it that an accused without solicitor and counsel might not have such a right.
On balance, I feel it is better to leave it as it is. It is a bad thing to over-define in any legislation. If we included the words suggested by Senator O'Quigley, we might cast doubts on similar phraseology in many other statutes where a similar right is given to the accused's agent or solicitor or counsel by long usage, long recognised and never disputed. We might create doubts whether such a right exists in regard to an accused person's agent or legal adviser if we spelled it out in this case. I think it is a case of leaving well enough alone.
I do not at all accept the Minister's reasoning. There are certain things which the accused, and no one else, has a right to do. For instance, when it comes to pleading guilty or not guilty, the only person who can do that is the accused himself. His solicitor or counsel cannot do it even in open court when he is present. I do not accept the Minister's general proposition that whatever rights the accused has are implicitly available to, and can be exercised by, his legal representative. I do not think that is a correct statement of the law.
In this section we are conferring for the first time this right of inspection of exhibits upon the accused person. If that be so, anything we are doing in this section or in this amendment can have no bearing whatever upon any other right an accused person has under other legislation. When the Minister says that the amendment would cast doubts upon the right of a non-represented accused to inspect exhibits, he is adopting the attitude of a lawyer which is not the appropriate attitude for a Minister to adopt in this House.
It does not mean that at all. If the Minister read the amendment, he will have seen that what the amendment to the section would mean is quite clear. The section would read: "The accused and where he is represented by solicitor and counsel, his solicitor and counsel shall have the right to inspect all exhibits." I do not think there is any doubt about an accused who is not represented having the right to inspect documents. I think the amendment is a good one.
I move amendment No. 2:
In page 4, section 6, between lines 19 and 20, to insert 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 and the accused consents in writing or in open court, the documents may be served on his solicitor."
This again is another amendment designed to deal with the situation where an accused person is represented by solicitor and counsel. If we have free legal aid, and if a person is to get the benefit of being represented by solicitor and counsel, we ought to make sure that he is able to exercise these rights and avail himself of free legal aid to the utmost extent. There is not much use in having a solicitor representing an accused person and endeavouring to prepare his defence, if the solicitor does not get whatever documents are to be served by the Attorney General or the prosecutor in the case.
What I am trying to provide for in this amendment is that where there are documents which the justice is to consider, for the purpose of determining whether an accused shall be returned for trial, and they are being served, they will be served upon the accused person's solicitor, where the accused in open court or in writing consents to having these documents served upon his solicitor.
On the last occasion the Minister referred to the fact that in a case like this if the documents were served on the solicitor, he might turn up in court, and in the Minister's words, "they might get a dishevelled piece of paper from the solicitor's pocket." That is a deplorable kind of statement for a responsible Minister of State to make, because when an argument like that is used to deal with a general matter such as we are dealing with here the suggestion is and the impression left upon the House is that solicitors do not look after their clients' interests. This is a statement which a number of people in the legal profession who have heard it resent.
A number of clients would agree with it.
The number who would agree with it is minimal. I would not suggest that all Senators are perfect and doing their job perfectly. I would never suggest that. I do not say that every doctor does his job perfectly, or that every university professor does his job perfectly. There will always be a black sheep and there will always be complaints. It is the same in relation to solicitors and counsel. There is the odd one, but to use the exception to the rule for the purpose of defeating an argument is, to my mind, unworthy of the Minister in his responsible position.
If we are really in earnest, and if we want to see that under our system of justice, in our democratic society, an accused person is given every facility to defend himself against charges of a serious character—and all the charges in these cases will not be just for careless driving; these will be charges in relation to which a person will be on trial before a jury: they are all indictable offences, every one of them, presumably, carrying a term of imprisonment or heavy fines—we ought to face up to the fact that where a person is represented by a solicitor, he will, in the ordinary course, get the best defence made out for him and he will best be served if the competent professional vindicator of his rights is given all the documents. In practice and in principle, there is no argument whatever, where an accused person consents in writing or in open court that the documents be served on a solicitor, for denying that to him. This is a permissive amendment. The amendment seeks to provide that these documents shall be served upon the solicitor if the accused agrees to that course. That is an extremely desirable amendment to make to the section.
We hear talk about crumbling pieces of paper. I had an example of this kind of thing only last week in my own experience. We all know of cases of litigants who go into court and have most valuable evidence but when one asks where it is, where the little notebook is with particulars of the number of loads of sand he delivered, for example, one is told that it is at home, that he forgot to bring it. It is the invariable practice of solicitors where there is any kind of a document that is capable of being lodged in the safe, to lay their hands upon it at the earliest possible opportunity so that it will be available on the day of the court hearing. Experience has constantly shown that if one does not do that, then people will turn up in court without them in the fuss and excitement, I suppose, of a legal action which causes anxiety to anybody who has any stake in it.
It may well be that somebody is handed a document in Mountjoy and that some lag says, for example: "Do not take much notice of that". It may well be that some important piece of additional evidence does not find its way to the legal adviser for examination. It is in the interests of the accused person that this amendment should apply and I rather think the Bill will be the better for its acceptance.
I think we must lay down in an important Bill of this kind exactly which documents are to be served and on whom they are to be served. Particularly in an important matter of this kind and in a very basic section, it is fundamental that we should lay the onus for service of documents on the person vitally concerned, that is, the accused. This should be spelled out baldly. Any other situation can only give rise to trouble.
I am not accusing legal advisers in general of being negligent but situations do arise where they could be negligent. It should be a fundamental, an a priori matter, as it were, that these documents be served on the accused. If the accused is in custody and is prejudiced by not having legal advice, the court looks sympathetically on that fact and will adjourn the case so as to enable the accused to consult legal advisers. It is open to the court to order this procedure in his interest so that he can make appropriate arrangements to be represented.
The question of service can come within the compass of the District Court Rules Committee who, at the moment, are preparing rules which will come into operation under this Bill when it becomes law. The service of documents, the situations where service can be effected at the request of the accused, in what manner and on whom it can be effected, can be spelled out in the rules. This matter of service of documents is one for the rule-making authority. I shall bring the gist of the Senator's amendment to the notice of the Rules Committee with a view to incorporating in a rule or rules modes of service which can be permitted by the accused in certain circumstances.
As far as legislation is concerned, we must spell out here that the prosecution must serve on the accused those documents which purport to set out the case against the accused.
I should be happy if the rules made by the Committee of the District Court had power to deal with this matter.
They have, indeed.
I want to enter a warning at this stage. I do not find in this Bill any provision that the Minister may make regulations or that rules may be made by the Rules of Court Committee.
It is not necessary to spell that out here. It is in section 17 of the Interpretation Act, 1937. There is general power there.
Does the Minister agree——
Yes, this is not the first statute concerned with courts.
In a variety of other statutes, one finds a provision that the Rules of Court Committee shall make rules and that is the end of it, but one does not have to define what the Rules of Court Committee is because that is in the Interpretation Act, 1937.
We shall have the rules synchronising with the coming into force of the Bill.
I am not speaking here as a lawyer. Apart altogether from the benefit that I can see being conferred upon an accused by having these documents served upon a solicitor, I can also see that it will be of great benefit to the State authorities, especially in view of the more liberal provisions that will now be incorporated in Part III of this Bill in relation to remand and bail. How is the State Solicitor to serve documents upon an accused person who has gone to Britain or who has suddenly changed his address?
How is he to be arrested?
He will not have to be, if he is allowed out on bail. He can go to Britain, Northern Ireland, or change his address. I shall go back to Mayo. If he is arrested in Mayo, he may live in Cork. How is he to be served? He may change his address. The Minister is aware that the provisions of the Road Traffic Act, 1933, had to be changed because service of a notice of intention to prosecute had to be effected within 14 days of the commission of the offence and if it was not served within that period, the prosecution would fail. The new Road Traffic Act provides that unless the accused can show he was prejudiced by delay in service of notice of intention to prosecute, the court can proceed to hear and determine the matter. That change was brought about because of the difficulty of serving notice upon people who tried to evade service. Once a person is out on bail—and many more will be out on bail under the more liberal provisions of Part III in relation to remand and, in the ordinary course of events, will change their address—it will be increasingly difficult for the State Solicitor to serve these documents upon him as a result of these new provisions.
What I am suggesting was not primarily for the purpose of making the State Solicitor's work easier. I was suggesting it for the purpose of ensuring that the documents should get into the hands of the persons who were charged with the defence of the accused person. When I consider the difficulties in relation to the service of the documents, I think the House would be most unwise to reject this amendment. I think the Minister, upon reconsideration of that difficulty, should accept this amendment pro tem and perhaps—I say this in the public interest—upon further consideration, if he wants to deal with it in the Dáil, he can delete it. Purely from the point of view of the administration of justice and the public interest, as distinct from the individual interest of the accused person, I urge the Minister to reconsider his attitude towards this amendment and then the Dáil can have a look at it. I can see the greatest difficulties, in practice, arising from the working out of this new legislation if there is not some way of providing for the service of documents on people of an itinerant character—“itinerant” in the sense that they may be moving around the country.
There is nothing like the old legal gambit of the adjournment. The person will be remanded for a hearing on a specific date and if the State Solicitor is unable to contact him, if he has gone away from his home address or is straying around the world, he can delay and when the accused appears, the documents can then be served. The accused can apply for an adjournment further to consider the documents laid against him. In those circumstances, the court would grant an adjournment. I do not see any practical difficulty there.
Look at the waste of public time and money.
With amendment No. 3, we can take Nos. 16, 17 and 18.
I move amendment No. 3:
In page 4, section 6, between lines 19 and 20, to insert a new subsection as follows:
"( ) The documents specified in subsection (1) of this section shall be served on the accused and where he is represented by a solicitor and consents as provided in subsection (*) of this section, on his solicitor, not less than seven clear days before the date upon which the justice shall consider whether there is sufficient case to put the accused on trial for the offence with which he is charged; provided that service of the documents within a shorter period than seven days shall not be a bar to such consideration by the justice if the accused does not object to the period less than seven days."
These are amendments which will not readily be accepted by officialdom. They tie officialdom down to doing things in an appropriate way and within a proper time and that I can see will cause a great deal of irritation and misgivings. I am certain that this amendment will not commend itself to the Minister. Already he has given some indication as to his views upon it. What I am trying to do so entirely reasonable: I am trying to provide that if a person is accused of a criminal offence which will involve him in a trial by jury—and it is no mean offence which involves that procedure—he will be given the appropriate documents at least seven days before the date on which he is to appear in court. With the five-day week, seven days are now equal to five and to say that anybody having five days within which to prepare a case is getting too much time is quite absurd to me, if we really have at heart the interests of accused persons who, according to the most recent decision of the Supreme Court, are to be taken as innocent, not merely as a matter of procedure but as a legal and substantive attitude.
On the last occasion when I had an amendment down, the Minister made a very valid point in saying: "If you tie us to seven days and the law states that a man must get seven days before being charged in the District Court, or before the trial takes place in the Circuit Court or the Central Criminal Court, then you may in some cases be faced with the situation where the seven days will not have elapsed before the date of return for trial and the date of service of the documents and accused persons are very often anxious to get the trial over at the earliest possible date." In order to get over that difficulty, which I readily accept is the case—accused persons do often wish to have the trial as soon as possible—I am providing in the amendment that officialdom must serve the documents seven days before the date on which the person will be brought into court, but that if the accused person says: "I do not mind if these documents have only been served three days ago; I am quite prepared to go ahead with my trial", the trial can proceed notwithstanding the shorter period. That is what this amendment says, that service of the documents within a shorter period than seven days shall not be a bar to such consideration by the justice if the accused does not object to the period less than seven days.
It might be thought that I was being over-demanding and unreasonable but I should like to refer to the Criminal Justice Act, 1951, which was passed on 21st February, 1951. That Act provides that where an accused person signs a plea of guilty in the District Court but afterwards changes his plea for the Circuit Court and decides to be tried by a jury, the Attorney General or the person in charge of the prosecution must serve on the accused person a notice in writing specifying the persons who are to be called as witnesses against him and giving a statement of their evidence not less than seven days before the trial. That is the law as it stands in relation to a person returned for trial who has pleaded guilty but changes his plea.
The practical lawyers, including judges, who sat upon the Committee on Court Practice and Procedure recommended that in the case of documents for service in the District Court, the documents should be served on the accused person at least 14 days before the date fixed for the hearing of the preliminary investigation. The Minister said: "No; not 14 days or seven days, because that will prevent accused persons who are anxious to have an early trial from having it." I recognise that and in this amendment I suggest that the trial shall proceed, notwithstanding the shorter service if the accused does not object. That is in accordance with the Criminal Justice Act, 1951, and the recommendation on page 21 of the Report of the Committee on Court Practice and Procedure. In my view, it is a practical and sensible provision which would be in the interest of the accused, the courts and everybody else, and would avoid wasteful and unnecessary applications for adjournments, which the courts do not like because of the expense involved.
Again, this amendment, like some earlier ones by Senator O'Quigley, puts too much into the Bill, more than is necessary. It is far better to leave a matter of this kind flexible. There are situations in which the accused might want an early trial and it would be unfair then to place this further long period on him, either in custody or on bail, awaiting trial, for documents that cannot be served seven days before the hearing. This only adds to his difficulties. The experience has been in most cases that the accused wants his trial earlier. I appreciate that Senator O'Quigley goes some of the way in this amendment, as against his Committee Stage amendment, to meet that point, but there are other cases, too, where the prosecution may want further time to study the case and seek an adjournment, in which event the accused can look for his bail rights.
In a complicated case it may be that the accused will want further time to study the documents. All sorts of different situations can arise where an accused person requires more or less time or the State requires more or less time so that it is an unnecessarily rigid rule to insert seven days. The court is the overall arbiter in these matters and has a long tradition in protecting the rights of accused persons. It is well recognised practice that if the accused or the State can prove that further consideration of a particular matter is needed, that otherwise either will be prejudiced in one way or another, depending on a variety of circumstances and occasions, the court steps in and grants an adjournment.
I am not trying to encourage adjournments but there will be the occasional case where adjournment is justified. It is an unnecessary complication to insert in statute from provision for the service of a document on a particular day or within particular days. That sort of over-legalistic approach can land anybody in trouble, and much more so than the fluid approach. I have tried to be rather fluid in the drafting; this is not technical drafting and I feel one must, in any such Bill, leave a certain amount of interpretation of natural justice to the discretion of the courts in the granting to people who may be prejudiced the appropriate adjournment they think fit in the particular circumstances.
This question of times and days and, if you like, this sort of legalistic narrowing down is far more appropriate to rules which can be varied from time to time and situation to situation rather than to statutes. The District Court Rules Committee are drafting rules at the moment which will, in more precise from, deal with the manner in which the rights and duties set out in this Bill should be performed both by the State and accused persons. It is more appropriate to leave those technical matters to the rule-making authorities because rules can be changed if the occasion arises, whereas it is undesirable to have specific time limits written into statues.
The Minister is at his least convincing this afternoon. I have heard him make good cases out of bad cases on occasions but he is not attempting to make any case against this amendment. The only thing he suggests is: "Do not define things; leave things as vague as you like and let somebody else define them; let the rule-making committee define them." In this Bill—it is no harm to come back to it—we are dealing with a matter which affects the liberty of citizens. Citizens are frequently put on trial on charges of which they are undoubtedly innocent and some of whom are innocent in law. It behoves us, as the Legislature, to make up our minds on what we believe the law should be. If we find that what we have decided on does not work well in practice, we can make appropriate amendments. It does not suffice—it is not good legislation or good practice and to my mind, it offends against the principle that the Legislature should enact the law—to say that a rule-making committee should decide these matters.
I shall come to the question of the authority of the rule-making committee at a later stage but nothing in the amendment in any way attenuates the rights of an accused person. The Minister has not been able to point to any such thing in the amendment. On the contrary, it makes certain that the prosecution will serve the documents and give the accused man time to examine the various statements of evidence and prepare his defence. The one thing the Minister cannot bear is the idea of officialdom being tied down to doing things within a precise time. We have all heard people on various committees say, when they are unable to make up their minds about something or do not want to do so: "Leave it to the discretion of the officers." That is the attitude of the Minister. He does not want to tie the hands of the prosecutors in the different counties who will be charged with the duty of serving these notices when the Bill becomes law.
There is nothing rigid about the amendment I propose. I suggest that the accused person should get the document at least seven days before the date on which he is to appear in court. That should be the aim. If he wants a longer time, he can get it, and if he is satisfied to take the document within a shorter period than seven days, he can do so under the amendment because it provides that if he does not object to a shorter period than seven days before the preliminary investigation in the District Court or the trial, in the case of other amendments, that can be arranged. Nothing the Minister has said establishes in any way, shows or tends to show, that the rights of the accused are being attenuated. On the contrary, I want the existing practice discontinued whereby copies of the depositions are served upon accused persons or their solicitors a few days before the date of the trial. I want these documents to be served in time and this is what the Minister is opposing because it means that certain people will have to do their work properly and in time.
While on this amendment, I might refer to amendment No. 20 so as to avoid duplication of argument. On second thoughts I had better not because the Minister might like to deal with it later.
The Senator may deal with amendment No. 20, if he wishes.
No, because the Minister might like to deal with that specially. All I want to say is that the Minister has not advanced any argument against the amendment except the general principle that things should be flexible and left vague and to be dealt with by somebody else. He is inviting the Seanad to hand over their responsibilities to the rule-making committee and hope that they will do their job. The Committee on Court Practice and Procedure which recommended a longer period of 14 days without the benefit of my amendment, permitting the accused to opt for the shorter period, consisted of a great number of practical people with a great deal of knowledge and experience. The Chairman of the Committee is Mr. Justice Brian Walsh of the Supreme Court, Mr. Justice Barra Ó Briain, President of the Circuit Court who carries on criminal trials every week or every month——
They are all happy with it as it is.
Mr. Cathal O'Flynn, President of the District Court; Mr. E.C. Micks, an eminent senior counsel; Mr. Justice Seán Butler, then a practising senior counsel; Mr. Dermot P. Shaw, a solicitor, and Mr. Brendan P. McCormack, a solicitor, all practical people. To make sure that the businessman's approach was brought to bear on these questions, there were Mr. C.S. Andrews, Mr. Juan N. Greene, Mr. William Murray and Mr. K.P. O'Reilly-Hyland. All of those people after much consideration decided that a minimum period of time should be made available. The recommendation made in the amendment tabled is even better than the recommendation made by them. Of course I must say that the Minister is entitled to share in the credit for the improvement in the amendment——
In all modesty.
——by suggesting that the accused would be entitled to opt for a shorter period.
I move amendment No. 4:
In page 4, section 6, between lines 19 and 20, to insert 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 where he is represented by a solicitor, to his solicitor."
This is an amendment on which the Minister came halfway with me on Committee Stage, at any rate in the matter of sympathy. It is to provide that 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 the accused person. The Minister undertook on Committee Stage to look into the matter. Once it is provided in the amendment that undue expense shall be a consideration, I think justices will exercise their discretion wisely and I hope that, on reconsideration, the Minister finds himself able to give his assent to the amendment.
I think we have gone far enough again, once we have set out very comprehensive protection for the accused in section 6. We provide that the prosecutor shall cause to be served on the accused a statement of the charges against him, a copy of any sworn information in writing on which the proceedings were initiated, a list of the witnesses whom it is proposed to call at the trial, a statement of the evidence to be given by each of them and a list of exhibits. To ask that a copy of the exhibits be also served on the accused person would cast too heavy an onus on the prosecution. I appreciate Senator O'Quigley's addition of the phrase "without undue expense" but it will be appreciated that exhibits in a case can be enormous in volume and very expensive. The exhibits in the Singer trial, for instance, would fill this Chamber.
If we were to have exhibits copied out laboriously, photostated and served on the accused we would be getting into a very unreal situation. Senator O'Quigley's addition of the phrase "without undue expense" would be open to quite a lot of legal argument as to what is expensive and what is not expensive, what is unduly expensive and what is not unduly expensive. We have gone very far in the protection of accused persons in section 6. We are, among other things, withdrawing the deposition procedure and the accused is better protected under the section than he is at the present time, than he has been during the past hundred years. We are providing for the furnishing of a list of exhibits and to ask the State to go further would be to enter the realm of unreality. As I have said, I do not think this is a practical amendment. We have gone far enough as it is in the section.
The Minister, in order to meet an amendment like this, adopts the most extreme type of argument in order to defeat it. The amendment I have down is exactly the one I had on Committee Stage. I realised there are certain exhibits in any case which it would not be necessary for the defence to have but there may be one, two or three written exhibits that would be of importance. I am not asking that justices take leave of their senses and order that as many documents as there were in the Singer case be copied and provided.
The Minister, if arguing in favour of the amendment and if I were arguing against it, would say that this would be administered by justices, that they are reasonable men, practical and experienced, that they would take into account the amount of money involved. All I am asking is that a copy of such written exhibits as can be copied without undue expense be furnished. I do not press the amendment very strongly because once it is established as the Minister seems to think it is in the Bill that the accused is entitled to inspect exhibits and that his solicitor and counsel are also entitled to inspect them, the necessity for having copies may not be so great as it otherwise would be. However, there are without doubt cases in which it would be very desirable that an accused person should have a copy of certain exhibits when they could be provided without undue expense. This application would be made and succeed only in a minority of cases.
I observe in the Front Benches of the other side certain disapproval of the amendment because we are dealing here with accused persons. I should like the House to realise that the people we are dealing with in this Bill are citizens of Ireland, as much entitled to their freedom as Members of the Front Bench of the Fianna Fáil Party or any of us.
Presumed to be even more innocent.
All things being equal, if they are as innocent as the Members of this Front Bench of that allegation, they are innocent indeed.
It was not to Senators O'Kennedy and Ryan I was referring. That is what we are dealing with. It is because we are talking about accused persons that some people come to the conclusion that we are dealing with "bloody criminals". That is not the attitude this House, this Legislature, should adopt. We are dealing here with citizens of Ireland and it is the job of this House to protect the citizens of Ireland. If they happen to be accused, it does not always mean they are guilty. That is my general comment, prompted by a certain innuendo from—I shall not say where. What I am asking is for limited facility where these things will be of importance and where a District Justice would be exercising his discretion wisely. In such an eventuality, this would not be very costly. It is a facility, and if the Minister does not wish to extend it, I do not press it.
I am sorry I suggested that this amendment was different from that on Committee Stage.
A lapsus memoriae.
It is good to be adopting some suggestion by Senator O'Quigley. This is a drafting amendment suggested by him on Committee Stage.
I am delighted to hear the Minister shares my fastidiousness.
I move amendment No. 6:
In page 4, line 48, to delete "of opinion" and substitute "satisfied".
Amendments Nos. 6 and 7 may be discussed together.
This amendment can be said to be more a matter of semantics than of law as to what should be the state of mind of a District Justice considering the various documents and deciding whether to return a person for trial or not. Merely to form an opinion about a matter is not, I think, sufficient. It is of the very essence of the exercise of judicial power that before returning a person for trial, a justice should be required to be satisfied that a sufficient case has been made out to put the accused on trial. It is, as I say, largely a question of semantics, but when one has regard to the decision of the Supreme Court in the Offences Against the State Act case, the name of which escapes me again today, in which it was decided that the appropriate condition of mind of a judicial person in deciding a matter should be that the judicial person should be "satisfied" and that this was of the essence of the exercise of judicial power, it seems to me, having regard to that decision, that that is a more desirable way in which to phrase subsection (1) and subsection (2) of section 8 than the manner in which they are phrased at the present time. Again, it is simply a matter of terminology.
That is really all it is. I am of the opinion that it is better as it is. We are talking here about an examination in which in most cases no evidence will arise and where the District Justice will be of the opinion that there is a case to return the accused for trial. I think, for that reason, the subsection as it stands is better and it uses phraseology which has been in this whole scheme of legislation over the years. It was the phraseology of the 1851 Petty Sessions Act. I prefer to lean in favour of "of opinion" instead of "satisfied".
The Chair suggests that amendments Nos. 8, 9 and 10 be taken together.
Again, I am in a happy frame of mind. I am, in this amendment, meeting amendments Nos. 9 and 10 tabled by Senators O'Quigley and Garret FitzGerald. My amendment ensures that, where the accused person is being sent forward for trial on an indictable offence other than that charged, and where the justice has caused him to be charged with that offence, all the provisions in section 7 (4) about the justice cautioning the accused and having anything he says taken down in writing and so on will apply. I think Senator O'Quigley, on Committee stage, was anxious that this should be spelled out.
I am glad the Minister has accepted the point raised on Committee Stage. I hope I do not appear unduly carping if I say I would have preferred if the drafting adopted were different from what it is. I always dislike this business of drafting by reference to other subsections. We are saying here that we shall "proceed in accordance with section 7 (4) which shall have effect with the omission of the words ‘if he is sent forward for trial' in paragraph (a)." This is where I take issue with the Minister. It would be better if it were laid down what is the procedure to be applied in subsection (2) of section 8. However, the Minister's amendment is probably, as he would say himself, cleaner and neater in drafting than my amendment. We are getting used to those words in the case of the Minister. I am very pleased that he has accepted the point I raised on Committee Stage.
I move amendment No. 11:
In page 5, line 10, to delete "consents" and substitute "indicates he does not intend to give a direction pursuant to subsection (1) of section 62 of the Courts of Justice Act, 1936".
This amendment is an amendment to subsection (4) of section 8. Subsection (4) provides for cases where the justice, having examined these various documents, forms the opinion that a summary offence only has been committed. Then it goes on to say:
... and the Attorney General consents, he shall deal with the case as if that offence had been originally charged.
The Minister was good enough to point out on Committee Stage that the consent of the Attorney General was the consent required under section 62 of the Courts of Justice Act, 1936. However, the section is not well drafted as it stands. If it had been drafted in this way, that is, if the justice is of the opinion that a summary offence only is disclosed, if the Attorney General consents to deal with the case as if that offence had been originally charged, it would be better. As it is drafted at the present time, it is very difficult to know what the Attorney General is consenting to or why he comes into it.
We should bear in mind that we are not merely enacting legislation for the benefit of lawyers and justices and legislation which can be easily understood by them, but it should also be possible for any member of the public to take up this Bill and know what is being dealt with. Any member of the public reading this would not know that the consent of the Attorney General referred to is the consent which must be obtained under subsection (1) of section 62 of the Courts of Justice Act, 1936. We should write that into the Bill and make it quite clear that that is the consent we are referring to. It seems on the face of it, reading that section as it is, that the Attorney General must consent to the exercise by the justice of his discretion to deal with the offence that is before him. The reason, of course, is, as the Minister explained on the last occasion, where a district justice does not return a person for trial, the Attorney General is authorised under the Courts of Justice Act, 1936, of his own motion to prefer an indictment. Therefore, before the justice can decide to deal with the matter, it is necessary to get an indication from the Attorney General that he does not propose to prefer an indictment.
Again, it is a matter of being precise in this kind of legislation. We would improve the section by specifically pointing out the consent of the Attorney General that is involved here, that it is consent under section 62 of the Courts of Justice Act, 1936. I would ask the Minister not to suggest that we are overdefining matters in this case. It is the particular consent of the Attorney General that is required. We ought, to use the Minister's own phrase, to spell it out in this subsection.
It is really six of one and half a dozen of another. I think it is clear that consent in this sense is related to the Attorney General's powers under section 62 of the 1936 Act. Senator O'Quigley is seeking in his amendment to have it spelled out. The 1936 Act provision is the only case in which the Attorney General can proceed on his own to bring a person to trial, irrespective of the District Court. This specific subsection ensures that the Attorney General will not be prevented from doing this merely because the justice has already convicted the accused on a summary offence. In order to cover that situation, we include that the Attorney General must consent, in order to prevent the accused person pleading that he has been placed in double jeopardy. There is no doubt what is meant by the phraseology the Attorney General consents and I think the Senator's amendment is unnecessary elaboration.
Perhaps I might intervene. The Minister might not think it unnecessary elaboration if I referred as I should but it did not occur to me earlier, to paragraph (b) of subsection (2) of section 2 of the Criminal Justice Act, 1951. There is a question of the consent of the Attorney General being obtained. Subsection (2) reads:
(a) The District Court may try summarily a person charged with a scheduled offence if—
(i) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and
(ii) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily.
Paragraph (b) goes on to provide that:
A person shall not be tried summarily for an offence specified in the First Schedule at reference numbers 1, 2 or 3 or for an attempt to commit such an offence unless the Attorney General has consented to his being so tried.
That is in section 19 of the present Bill.
Unless the Attorney General has determined that he be so tried.
I am making an open confession now—
We are not interfering with paragraph (b) of section 19 or are we?
We are; we are replacing it.
Then, I shall refer to the Bill. Paragraph (b) of subsection (1) of section 19 is another place in which the consent of the Attorney General is required. This is a different kind of consent, it seems to me, to that provided for in section 62 of the 1936 Act. It is provided that the Attorney General can indict where informations have been refused.
That is only in the 1936 Act.
Yes. What I am trying to point out is that the Minister contends that everybody would know what is the consent we are talking about. I want to suggest that it is not quite clear. There are two sets of circumstances where the consent of the Attorney General to a person being tried summarily will arise. The first is where the Attorney General indicates that he will not prefer an indictment himself under the 1936 Act. That is what subsection (4) deals with. The other case is under the subsection of the Criminal Justice Act I have quoted in which the consent of the Attorney General is forthcoming in respect of a person being dealt with summarily for what would otherwise be an indictable offence. It would certainly bring clarity into the matter if the Minister would agree to the amendment. There are two different types of consent.
I do not think there is any doubt about what consent is meant here.
I move amendment No. 12:
In page 5, line 10, before "deal" to insert "if the accused is charged with such summary offence".
This amendment is for the purpose of inserting these words, as in the case we have just been talking about, where the justice is of opinion that the documents before him do not disclose the commission of an indictable offence. It seems to me that the further procedure must be adopted before the justice can deal with the case as originally charged. In other words, a new charge should be preferred against the accused. Amendment No. 12 is designed to provide that the justice shall proceed, if the accused is charged with such summary offence, to deal with it. It is merely a matter of elaborating and clarifying as it does not appear clear.
It is clear. It is a matter of drafting. I think there is no doubt about it.
It may be clear to the Minister because the Minister knows what is in the Bill. All I can say, in relation to what I was saying on the earlier amendment, is that coming to it with a fresh mind when I first read the section I had to pause and ask myself what does this mean. One gathers by inference then what it is intended to mean. It seems to me that the section is far from clear. It is altogether too succinct for a Bill of this kind. It would clarify the matter beyond any shadow of doubt to put in the amendment I suggest—that the justice shall then deal with the case summarily only if the accused is charged with a summary offence. It may be well for the justice to form the opinion that there has been a summary offence only committed here. It is not his job to make a charge. It is the State authority's job—either the Attorney General or the Garda authorities—to make the charge, and the District Justice should not be obliged to deal with an accused person in respect of an offence for which that person has not been charged by any State authority or any other person. The amendment would provide quite clearly that it is only in the event of being charged that the District Justice would proceed to deal with the case.
I shall have a look at the wording of this amendment between now and the Dáil stage. I do not think the Senator's drafting quite meets it but I will have a look at it. Probably some phraseology like "deemed to have been charged" might be better.
I wonder if it is necessary, from the point of view of procedure, that this amendment should be accepted and the Minister can amend the amendment in the Dáil to his own liking?
That is what I shall do. I shall accept amendment No. 12, if the Seanad will allow me, and make any further amendment that may be necessary in the Dáil.
I move amendment No. 13:
In page 5, line 16, to delete "in writing signed" and substitute "signed in his proper handwriting."
We had some debate on this particular subsection on Committee Stage. It reads:
An order of a justice sending an accused person forward for trial shall be in writing signed by the justice.
In some cases the District Justices have facsimiles made of their signature. It seems to me that the order returning an accused person for trial warrants the order being signed in the proper handwriting of the District Justice. That is not too much to expect in the case of an order of that kind. All I am providing for in the amendment is that the order shall be signed in his proper handwriting. Some people may think the word "proper" has some reference to the quality of the signature, but what I mean is the phrase that is used in probate documents frequently, that it shall be in the full signature of the District Justice's name. I think the amendment is desirable.
I do not think it is necessary really: I do not see the point of it.
I move amendment No. 14:
In page 5, lines 30 to 32, to delete "and if he refuses to be so bound the justice may by warrant commit him to prison until the trial or until he enters into the recognisance".
Section 9 is the section which I thought the Minister would consider very seriously, in the light of the decision of the Supreme Court in the case of the Attorney General and O'Callaghan, because it seems to me that in this particular case we are going the step further of putting in prison a person who is not charged with an offence but who, it is suggested, may not appear at the trial. How one can try the future intentions of any person passes my comprehension because, at the best, the applications that would be made under section 9 to have a person detained in prison because he may not turn up as a witness at a trial can only, in my view, be speculative. I would have thought that after the Supreme Court case to which I have referred, and the manner in which the Supreme Court enunciated the constitutional provisions with regard to the liberty of the subject, there could be no question of putting into prison a person who is not charged with an offence. The Supreme Court took the view that our Constitution guarantees the liberty of the subject and that even if he is accused of a crime, he is not to be detained in prison merely because he may commit another crime or because in the past he has broken bail.
What subsection (3) is providing is that if the court is of the opinion that a witness, who has been served with a witness order, may not appear at the trial, the justice shall then commit him to prison. That is going altogether too far. The utmost that can be done is merely to serve the order upon him and, if he does not turn up, then he shall be liable to be dealt with for contempt of court, when the ordinary law of the land should be sufficient, but on some evidence which, at best, can be of a speculative character only, to put such a person into prison is certainly paying less than due respect to the constitutional provisions regarding the liberty of the individual.
I should like to support very strongly this amendment. It seems quite astonishing to me that it should be proposed that a person can be jailed if the justice is satisfied, by evidence on oath from somebody else, that he is unlikely to comply with an order. Somebody else comes into court and swears that it is unlikely the given witness will comply with an order to appear and, because the justice is satisfied that it is unlikely, the man is sent to jail, although he is merely a witness.
It seems to me Senator O'Quigley's point is very sound, that the most he should do is to make the order and, if he fails to appear, then he is clearly, under subsection (2), guilty of contempt of court and guilty of that mis-demeanour. But to calculate in advance that because somebody swore on oath that he is unlikely to appear, and therefore he will be sent to jail, when it is a case of a witness who has not been accused of a crime would appear to be not merely manifestly unjust but likely to be held by the Supreme Court to be unconstitutional.
As the Seanad is aware, I have later amendments, under the bail sections, which I think will go a very long way; in fact, I think they meet the recent Supreme Court decision referred to by Senator O'Quigley and which was precisely on principles governing the grant of bail to an accused person. This is a separate matter concerning witness orders and it can be argued, I suppose, that the principles are the same. At the same time, there is a difference in this respect, that the Supreme Court at no stage have ever challenged the basic ultimate right of a court to enforce its own orders in the event of a person refusing to enter into a recognisance. It has always been accepted that the court ultimately, in this event, has the power of imprisonment.
Subsection (2) is equally open to the same sort of objection as subsection (3). I think the key to subsection (3) is that whenever the Attorney General or accused person applies and notifies a justice by evidence on oath that a witness is unlikely to turn up the justice may bind him by recognisance to appear at the trial. It then goes on to set out that it is only in the event of the person concerned refusing to be bound by recognisance—only in that event—that the justice may commit him to prison.
This is what lifts this out of the Supreme Court decision; this is the distinction between this and the later amendments, where we meet the Supreme Court decision on the main sections. The power of the court to bind a person to appear in a particular place, on a particular date, to be of good behaviour, that is the basic power which, as we know from recent events, has always resided in the courts and for which the sanction always has been imprisonment. There is nothing new about this; it is embodied in the statute under which the preliminary examination system was set up, and it has always been the fundamental basis of common law that the courts, at all levels, have this sanction in respect of orders pertinent to the court which have been disobeyed, orders with regard to contempt of court procedure and so on. These orders necessary to the administration of the courts' affairs have always, in regard to their ultimate sanction, meant imprisonment. It is a restatement of a fundamental principle which has always been there in common law.
I should like to support Senator O'Quigley on this, too. With all due respect to the Minister, I cannot see that subsection (3) is on the same footing as subsection (2). What we object to is that in subsection (3) a man may be put in prison because someone thinks he is unlikely to do something in the future. It is a matter of speculation or a matter of prophecy, not a matter of fact. I agree entirely with Senator O'Quigley that no citizen should be committed to prison for something that he has not done simply on the likelihood that he may do something. I believe a fundamental principle is involved here and I hope the Minister may meet our objections.
The Minister has made no attempt whatever to measure up this particular subsection to what is laid down by the Supreme Court in the case of the Attorney General and O'Callaghan. Senator Stanford has very clearly put the substance of the Supreme Court from his point of view as a legislator. What the section is doing is proposing to put in prison a person who has committed no offence. Let us be quite clear about what Seanad Éireann is enacting.
A person who has refused——
Who refuses to enter into recognisances. If he refuses to be so bound, if he is unlikely to comply with the order——
A person who has refused to sign a recognisance. That is the offence.
An NFA man.
That is the same Front Bench attitude I spoke about a while ago. If you are dealing with the liberties of the people, you are an NFA man. It is not Senator Eoin Ryan or Senator O'Kennedy who made that observation in this case.
It was I who made that remark. It is exactly what the NFA men refused to do—to sign recognisances.
You said I was an NFA man.
I do not think it is necessary at all to bring the NFA into the discussion here. What we are discussing here is the criminal procedure legislation that affects the liberties of persons who have not been charged with any offence at all.
The offence is not signing the recognisance. Courts have always had the power to enforce their orders.
It is well to get on record what the Supreme Court has to say about the liberties of the subject in the case of the Attorney General v. O'Callaghan. I quote:
From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases "necessity" is the operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial.
That is one passage from the judgment of Mr. Justice Walsh. The learned judge of the Supreme Court was later on dealing with the grounds on which the High Court decided that the likelihood of the commission of a further offence was a ground for refusing bail to an accused person. He said in relation to that particular ground——
We will deal with that later on.
We are dealing with it in this section. He went on:
Ground number (4) of the learned judge, that is to say the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventive justice which has no place in our legal system and is quite alien to the true purpose of bail....
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.
In the case of a person opting, as he is entitled to do, for a trial by jury if charged with stealing 5/-, somebody may be required to undertake to appear at that trial but that person may be reluctant to undertake to turn up for a variety of reasons. It appears that we want to bring about a situation in which the witness the accused wants to appear at the trial will not be permitted to go away on a holiday or a business trip in order to suit the convenience of some crank. It may well be there will be cases where people for business reasons, family reasons or other reasons might not be in a position to sign a recognisance to turn up for a trial at a particular time. Such a person might say "I will not be able to be present at the July sittings but I will at the November sittings." The Justice says "Sign for the July sittings." He says "I cannot do that. I have a most important engagement in Teheran or New York." The Justice says "If you do not sign I will put you in prison." He says "I cannot sign" and the Justice says "Into prison you go." That is the kind of situation that is going to arise under this Bill.
The Chief Justice was equally strong in regard to the use of prison as a means for securing the attendance of persons charged with an offence. He said:
Counsel for the Attorney General, however, went on to support the view that the applicant, whom he concedes is likely to stand his trial, should nevertheless be refused bail because the offences in respect of which he was seeking bail were alleged to have been committed while he was on bail in respect of earlier charges. I understood him to submit that the applicant should be held as a preventive measure.
That is what this section is about. The Chief Justice goes on:
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 reasoning 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.
He goes on to refer to the circumstances in which the Oireachtas, acting within the provisions of the Constitution, has considered that persons should be deprived of their liberty. He says:
The stringent provisions of Part II of the Offences Against the State (Amendment) Act, 1940, allow of preventive detention. But a number of conditions have to be satisfied before the provisions can be operated. First there must be a government proclamation declaring that the powers conferred by Part II of the Act are necessary to secure the preservation of public peace and order: section 3 (2). Dáil Éireann, may, however, annul such proclamation: section 3 (5). Furthermore, even under this most stringent Act a Minister of State is empowered to detain a person only if of opinion that he is engaged in activities which are prejudicial to the preservation of the public peace and order: section 4 (1). The Minister is not empowered to act because he is of opinion that a person if not detained will engage in such activities. I cite these provisions to contrast them with the powers which, it was suggested, should be exercised in respect of the applicant in this case. The answer to the submission we have heard is, no such power exists under the law or the Constitution.
It seems to me, having the benefit of that particular judgement before us, that this amendment should be accepted. Indeed, it is very doubtful whether the whole of subsection (3) should not be deleted altogether. Certainly, we ought to go the distance of deleting the parts I have suggested.
In reply to the Senator——
On a point of order, is the Minister entitled to speak again?
Strictly speaking, no.
It was only a matter of explanation.
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Egan, Kieran P.!
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- Killilea, Mark.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Browne, Seán.
- Cole, John C.
- Eachthéirn, Cáit Uí.
- Ó Conalláin, Dónall.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Sullivan, Ted.
- Ryan, Eoin.
- Ryan, James.
- Ryan, William.
- Sheldon, William A. W.
- Carton, Victor.
- Conlan, John F.
- Crowley, Patrick.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Fitzgerald, John.
- McAuliffe, Timothy.
- McDonald, Charles.
- McHugh, Vincent.
- Malone, Patrick.
- Mannion, John.
- Murphy, Dominick F.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Prendergast, Micheál A.
- Rooney, Éamon.
- Sheehy Skeffington, Owen L.
- Stanford, William B.
I move amendment No. 15:
In page 5, line 34, to delete "District".
I detest inconsistency and I have tabled this amendment because of the inconsistency shown by those responsible for the final draft of this Bill. It is quite clear from the beginning of the Bill that up to section 5 (1) the court referred to is the District Court. In section 6 (2), however, the reference is simply to the court. For some unexplained reason—I trust the Minister will be able to explain the reason—we have "District Court" in section 9 (3). Elsewhere in the Bill "District Court" and "court" are used in different places where it is quite obvious it is the one institution to which reference is being made all the time. This is bad draftsmanship, using different terms to indicate the same institution, or even the same person. It is for that reason I put down this amendment. It is quite clear in subsection (3) that the court referred to is the District Court and it is quite unnecessary to spell it out in the way in which it is spelled out here.
I do not altogether agree. The purpose in varying the description of the court is that of clarification. It is necessary to refer specifically to the District Court in subsection (3) of section 9 because earlier, in subsection (2), there is reference to the "court," and "court" in that context means the Central Criminal Court or the Circuit Criminal Court. To eliminate specific reference would lead to lack of clarity. It is for that reason "District Court" is necessary in Part III. It is in the interests of clarity and readability.
It is difficult to follow what is intended here. If the Minister is correct, might I call his attention to subsection (2) of section 6 which says "Copies of the documents shall also be furnished to the Court." Clearly the reference there is to the District Court.
That is a follow-on from section 5. It is quite plain it is the District Court there.
The Minister cannot have it both ways. If we are referring to the District Court, there is no reason why it should not be described as the District Court. Anybody construing the Bill is put in the position of taking his choice between court, spelled with a capital "C" and court spelled with a small "c" and District Court in subsection (3). If this is not slovenly draftsmanship I do not know what is.
I have already explained the point.
I know the point. Why do we not refer to it as District Court in subsection (2) of section 6?
Following on section 5, it is quite clear what it means.
"District Court" is quite plain in paragraph 2.
No, because in paragraph 2, "court" refers to the Circuit Criminal Court and the Central Criminal Court.
It is slovenly and Bills should not be presented here in such slovenly fashion.
Amendments Nos. 17 and 18 have already been disposed of with amendment No. 15.
The arguments I made earlier apply also in this instance, but could we have separate decisions on each?
I move amendment No. 17:
In page 6, line 3, to add at the end:—
"provided that service of any or all of the documents referred to in this subsection within a shorter period than such seven days shall not be a bar to the holding of the trial of the accused if the accused does not object to the period less than such seven days or where in case the accused so objects, the trial judge is of opinion that the objection is frivolous or that failure to effect service within such seven days does not prejudice the defence of the accused."
I move amendment No. 18:
In page 6, line 12, before "any" to insert "not less than seven days before the trial".
I move amendment No. 19:
In page 6, line 12, before "to" where it secondly occurs to insert "under this Act".
There are various documents that require to be supplied to accused persons in various circumstances and situations. What we are trying to say in section 12 is that, in the event of the waiver of a preliminary examination of the accused, the justice shall send the accused forward for trial and the Attorney General shall cause to be served on him any documents required to be supplied. We ought to state "under this Act". I do not know what documents are being referred to unless we say "under this Act" and then the documents required to be served under this Act will be the documents set out in section 6.
Good English: I must make a defence of good English. I do not think there is any need for the words. I have been at pains to have the drafting done in plain English. It is a very readable Bill which deals with a very technical matter and I think the drafting here is excellent as is, indeed, the drafting of the other parts of the Bill.
De gustibus non est disputandum.
I move amendment No. 20:
In page 6, between lines 19 and 20, 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 where he is represented by a solicitor, and the accused has consented to the service of documents upon his solicitor as provided in subsection (*) of section 6, on his solicitor, not less than seven days before the date of the trial provided that service of the indictment within a shorter period than seven days shall not be a bar to the trial of the accused if the accused does not object to the period less than seven days."
With this amendment we are trying to bring some certainty into the timing of the service of documents on accused persons and to the return of these to the Registrars of the Circuit Courts and on the Central Criminal Court. Let it be stated quite clearly that, at present, in many cases the first time the accused gets a copy of the indictment on which he is standing trial is the morning of the trial. That is the first time that his solicitor or the accused himself is served with the document which has to be considered by his solicitor and counsel or by himself if he is not represented. To my mind that is a disgraceful procedure. It is a disgraceful display of inefficiency and it is unpardonable behaviour on the part of the authorities concerned who so organise their affairs that they cannot serve a copy of the indictment earlier than the morning of the trial. Indeed, there have been cases in my personal experience of people having to proceed with the trial of an accused person knowing the contents of the indictment for the first time only when it was read out by the County Registrar and the accused pleaded to it. That is the kind of inefficiency to which the Legislature should say: "We will not put up with it." God knows enough public money is spent to provide a more efficient system than that.
This amendment proposes that the Attorney General, who is the authority to prepare indictments, shall prepare them in time and lodge them with the County Registrar who shall then furnish them to the accused not less then seven days before the date of the trial. I want to meet the objection the Minister made here that service of the indictment within a shorter period than seven days shall not be a bar to the trial of the accused if the accused does not object to the lesser period than seven days. That seems to me to be the minimum facility that an efficient administration of the judicial system on the prosecution side demands. Nothing the Minister will say about this being rigid or that we ought not to over-define can get over the fact that, under the system provided in the Criminal Justice Administration Act, 1924, where there is all the fluidity, flexibility and lack of rigidity that the Minister has been urging, this system has not worked out in a proper way, because there was no obligation fixed by law upon the appropriate authorities to present copies of these indictments to the accused within a specific time. What Rule 13 of the First Schedule of the Criminal Justice Administration Act 1924 provided was:
It shall be the duty of the Registrar of the Court to supply the accused person on request a copy of the indictment free of charge.
That is the law still and will be the law when this Bill is passed because I do not see in this measure any amendment of the Criminal Justice Administration Act, 1924. I believe that it is only fair to the accused person that he should have proper notice of the document on which he is to stand trial. It may be for manslaughter or dangerous driving causing death or any other serious charges. Therefore, the legal adviser should be in a position to examine the documents containing the evidence and read them in the light of the statements he has got from the accused person so that he can present the defence.
The principle of what we are arguing now has largely been disposed of in discussion on earlier amendments. What I have to say now is really repetition of what I have already said on these amendments. I am against having these fixed time limits written into the Statute. I feel that more often than not the accused wants a speedy trial and, in practice, that is the situation that arises. I feel that Senator O'Quigley, in trying to benefit the accused, in fact, brings in, by introducing these limits, matters which can be prejudicial to him. In most cases in practice what the accused wants is a speedy trial: he wants to have his business disposed of.
At any rate, there is the fundamental question of adjournment, the discretion of the court to grant an adjournment in the event of the accused being prejudiced in any way. This is a basic right the court has always observed in any matter where the accused pleads, or where his advisers plead, that he was or may be prejudiced by reason of this or that inaction or activity on the part of the State. The accused can get an adjournment for the asking from the court. This is precisely the same sort of reasoning that I made earlier on. It is equally valid in this instance.
There is, however, the further point that we are now providing in this Bill a scheme which is of greater benefit to the accused than anything that has operated heretofore in regard to furnishing him with information as to the State's case. Senator O'Quigley in this amendment seeks to impose a definite time limit before trial in regard to service of the indictment. Under this procedure, apart from the indictment aspect, the accused at that stage, having passed the preliminary examination, will have had the full State case documented before him which is a facility which he has not got at present.
That is not correct.
He does not have at present the full documentation which is set out under section 6.
We certainly do not.
It is required under section 6 that this be served on the accused. This is a new benefit to the accused set out in section 6. Having got that, I fail to see the need for this amendment in regard to the service of the indictment. If the accused, having been furnished with the full State case under section 6 prior to the preliminary examination, and having had the preliminary examination, is then in any way prejudiced by pressure of time, he has quite clearly got the right to apply to court for an adjournment. To bring in restrictive aspects as to time limits is likely to do more harm than benefit to the accused. It is for that reason that I am against it. From an over-legalistic point of view, Senator O'Quigley wants to import into the Bill matters which, far from helping the accused, will, in my view, prejudice him.
The Minister is apt to be taken as citing, because of the authority of the high office he holds, the law and practice in relation to matters we are dealing with here. I want to controvert quite definitely a number of statements he made. The Minister is in error in a number of matters he has dealt with in his objections to this amendment. It is quite untrue to say that the accused at the present time does not have the full documentation. The accused has, before he goes on trial——
I said before the preliminary hearing.
I am not dealing with the preliminary hearing at all. I am dealing with the presentation of the indictment to an accused person on trial before a jury. At present, in relation to a trial by jury, he has all the documentation contained in the depositions. If there is some evidence that was not taken on deposition that the Attorney General wishes to present, notice of that additional evidence has to be served on the accused, and the Minister should not try to impress on the House that this Bill, in relation to the actual trial of an accused person, is giving him any greater rights than he has at present.
He has the State case now.
I do not quarrel with what the Minister said in relation to the preliminary hearing that he will get a facility corresponding to the facility he now has in relation to trial on indictment before a jury. I entirely agree with the Minister that that is an improvement in the situation so far as an accused person is concerned but I want it to be quite clear that there is no improvement in the position as regards an accused person under this Bill in relation to documentation.
The Minister is wrong is saying that this amendment—or any of the other amendments fixing a time limit—in any way restricts the right an accused person has. What I am seeking to ensure in this amendment is that the obligation must lie on the Attorney General to furnish an indictment on which the accused is to be called to stand trial at least seven days before the date on which his trial is to take place. If the accused then says he wants a longer time than seven days—if the Minister is right that he can get an adjournment as easily as all that—this does not prevent him seeking it. If he objects to an indictment within a shorter time, he can do that under the amendment because he is given the option of proceeding with the trial, notwithstanding the fact that he has not had seven days notice.
I know very well that what is in the Minister's mind is that when the great machine of officialdom begins to move against the accused person, it will not be able to present the indictment in time: it has not been able, up to now, to do that. The disgraceful position has obtained, and has been condemned and complained about many times by solicitors and counsel who could not do anything about it, that they did not get a copy of the depositions or of the indictment in adequate time. In many cases in my personal experience—I am not naming the county: I do not want it to be associated with any particular county—one did not get it until one was in court. That, to my mind, is a disgraceful procedure.
The Minister has said in effect: "The accused person can get an adjournment for the asking." I wonder —and I wonder if that is the proper way in which to approach this matter. If the case is going to go on, presumably the Attorney General has all his Garda witnesses, medical witnesses and the ordinary lay witnesses assembled in court. Considerable expense is incurred in having to go out to serve subpoenas and summonses, the transportation of people, and so on. It is not all that easy to get an adjournment when the State has succeeded in bringing these people to attend a trial. I do not think it sufficient merely for an accused person who wants another day out from Mountjoy to say: "I got this only three days ago and I want an adjournment." It is not in every case, in my experience, and in that of my colleagues, that an accused will get an adjournment for the asking and it is not correct for the Minister to say so.
On this amendment, I am not being in the slightest bit over-legalistic; I am being entirely practical. I am being practical from my own experience and from that of many other members of the legal profession. I know that the old system of the last-minute drafting of the indictment, because the great machine of State cannot start sufficiently early in the appropriate place and because of that system down the line, will continue and that accused persons will continue to be served with an indictment on the morning of the trial. That is something to which the Legislature should not consent when it is paying for a better service.
I am on the side of the angels this time. This is an amendment to meet the point made on Committee Stage. It is largely a drafting amendment. I think it is an improvement on the present text of paragraph (c) of subsection (1) of section 15. As paragraph (c) stands, it does not deal with the eventuality that, in some cases, the deposition of an absent witness which it is desired to have admitted in evidence at the trial is a deposition made by a witness on behalf of the defence. In such a case, it would be desirable to have a safeguard—an explicit safeguard—that the accused had an opportunity of re-examining that witness at the time his evidence was given on deposition. The new draft covers both eventualities, that is, depositions by defence witnesses and prosecution witnesses and the provision of an opportunity for cross examining or re-examining, as the case may be.
I am glad the Minister has accepted the earlier amendment. If the debate were long enough, we might be able to persuade him to accept a few more amendments.
I move amendment No. 22:
In page 8, to delete lines 32 to 48 and substitute:
"(2) The First Schedule to the Criminal Justice Act, 1951 is hereby repealed and in lieu thereof the following is substituted:
Indictable offences which may be dealt with summarily by the District Court.
An offence in the nature of a public mischief.
An indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law.
Riot or unlawful assembly, where the Court is of opinion that the act constituting the offence was not done in furtherance of an organised conspiracy or, if so done, that the conspiracy is at an end.
Assault occasioning actual bodily harm.
An offence under section 16 of the Plate Assay (Ireland) Act, 1807, as amended by section 2 of the Plate Assay (Amendment) Act, 1931.
An offence under the Larceny Act, 1861.
An offence under section 38 of the Offences against the Person Act, 1861.
An offence under section 60 of the Offences against the Person Act, 1861.
An offence under section 1 of the Falsification of Accounts Act, 1875.
An offence under section 11 of the Criminal Law Amendment Act, 1885, where the accused person is over the age of sixteen years and the person with whom the act is alleged to have been committed is either under the age of sixteen or is an idiot, an imbecile or a feeble-minded person.
An offence under the Forgery Act, 1913.
An offence under sections 25, 26, 27 or 28 of the Larceny Act, 1916.
An offence under any provision (other than sections 25, 26, 27 and 28) of the Larceny Act, 1916.
An offence under section 24 of the Enforcement of Court Orders Act, 1926.
An offence under section 11 of the Wireless Telegraphy Act, 1926.
Attempted carnal knowledge constituting an offence under sections 1 (2), 2 (2) or 4 of the Criminal Law Amendment Act, 1935.
An offence under section 10 of this Act.
An attempt to commit an offence which the District Court has, by virtue of any enactment (including this Act), jurisdiction to try summarily.
An offence under section 13 of the Debtors (Ireland) Act, 1872.
An offence under sections 20, 21, 22, 23 or 51 of the Malicious Damage Act, 1861.’”
This amendment is designed to get away from the appalling habit we have of amending legislation by reference to earlier legislation. In a case of this kind, when we want to set out in legislative form the particular offences which may be dealt with summarily by a District Court at the option of the accused, we ought to set them out in one enactment and, if we have to amend them, we ought to reproduce the entire Schedule in its amended form. The Minister for Justice was good enough to indicate on the Rent Restrictions Bill that he himself is opposed to, and dislikes, the idea of piecemeal amendment of existing legislation. I think he has expressed the view that it would be desirable to consolidate, as far as possible, as we go along. This Schedule, dealing with criminal procedure and circumstances which may arise under (4) of section 8 and, indeed, under section 7 of this Bill, is designed to enable one to see the list of indictable offences which may be dealt with summarily by the District Court in the particular document in hand without having to have reference to the Criminal Justice Act, 1951. I know it would be welcomed both by the Bench and the practising members of the legal profession if this amendment were incorporated in the Bill.
I agree that it would perhaps have been more desirable if the Schedule had been put at the end of the Bill as the First or Second Schedule, but I am sure the rules of order of the House will enable that to be done, if necessary.
Senator O'Quigley raised this point on Committee Stage and I said I would try to meet the situation in a certain way. I have put in train arrangements to have an amendment to the First Schedule incorporated as an appendix to the explanatory memorandum which will be published when the Bill passes through both Houses. This will be more elaborate and, indeed, more instructive than if we incorporated it in the statute. There will be footnotes and annotations to explain the amendments being made in it by this Bill.
I have had discussions with the Attorney General on the whole question of amending legislation and the desirability of incorporating amending Bills in the form of one statute. I dislike myself to have to be continually referring back to previous statutes and I would prefer if we had the 1951 Act and this Bill in the form of one statute. This point also arose on the Rent Restrictions Bill. The whole question is being examined and we hope to be able to announce certain proposals fairly shortly. Pending that, I think what the Senator has in mind would be met by having the amended First Schedule incorporated as an appendix to the explanatory memorandum. There will be annotations and footnotes, as I have mentioned. I think that is a better way to approach it.
I agree, and I expect that the explanatory memorandum will take care to say that it will not be the law.
If I had had more time to think about this matter, I probably would have incorporated it in a Schedule. Frankly, because I have not done it correctly, I will not press the Minister. I do not believe in slovenly draftsmanship and that would be an example of the slovenly draftsmanship which I have been condemning.
I move amendment No. 23:
In page 8 to delete lines 49 to 51.
On this amendment I must declare my interest at the beginning so that no one can say I am motivated by greed or gain or self-interest. Subsection (3) of section 19 proposes to amend the Criminal Justice (Legal Aid) Act, 1962, by providing that no free legal aid shall be made available to an accused person in respect of any offence which is being investigated under Part II of the Bill, but murder. What it amounts to is that at the moment if a person is charged with manslaughter, with attempting to murder, with conspiracy to murder, at the depositions stage free legal aid is granted and payable. Because of the new system which is now being introduced, it is proposed not to grant free legal aid to a person except in the case of murder.
I suppose it is a measure of the disinterest of the legal profession in the free legal aid scheme that there were no protests about this section until after it was raised here on Committee Stage. I understand that the Minister has now received representations from the Incorporated Law Society and the Bar Council that this is a subsection to which they object.
It took them a long time to wake up.
Perhaps it did. It goes to show that the legal profession do not examine every Bill to see what is in it and what is taken out of it, for them. If the Minister and the House will have a look at what is involved in Part II of the Bill, they will find that a person can be returned for trial on a charge of conspiracy to murder, a charge of attempted murder, a charge of rape, a charge of sodomy and charges of that serious character, merely upon a statement taken down by a Garda officer and written out by the State Solicitor. These are the only documents available to the District Justice. It is quite clear that the right of an accused person to bring in these people and have them cross examined or have them make sworn depositions cannot and will not be exercised by a poor person in the absence of a solicitor, and that all the grand provisions we are making in Part II of the Bill to protect an accused person will not be available, if he has not someone there to look after his interests.
The District Courts have a lot of work to do. They are courts of summary jurisdiction. They are not expected to, and cannot at all times, bring to bear upon matters of this kind the consideration it is desirable they should. At all events, all the paraphernalia we are providing in Part II of the Bill in relation to the preliminary investigation of indictable offences will not be available, or will be of no benefit, to the poorer section of the community who are accused of crime. The Minister is proposing in subsection (3) of this section to deprive these people of free legal aid.
The Minister knows as well as I do that the free legal aid system was introduced and operated by the solicitors' profession and the barristers, they well knowing that it did not pay them or was not anything like sufficient payment for the work they had to do and the time they had to spend. It is well known—the Minister knows it well— that the legal profession have a long reputation, in spite of the jeers and gibes and funmaking that goes on, for helping the needy in this community. There are many poor persons who were injured in road accidents, or in the course of their employment, or who were accused of murder, or manslaughter, or any other crime in the calendar of crimes, who have been helped in past times without any fee being paid.
I worked for six months on one occasion and did not get a halfpenny for it. I would not do it again because that is enough in a lifetime, but that is so. I am not the only person. There are other people who do this, too. I remember a case recently where a widow was claiming against a copper mine. I think she did not succeed but cases of that kind go on for about three weeks during which counsel and solicitor get no payment whatever. That is going on all the time in greater or lesser measure. If people want to talk about the fees lawyers get, they must take that fact into consideration.
I do not know of any other group in the community, apart from doctors, who can equal that record of service. In relation to subsection (3), if the whole Legal Aid Act of 1962 were repealed tomorrow, it would not affect the fortunes of the legal profession at all. Under the free legal aid scheme, if a senior counsel is defending a person charged with murder, he gets 30 guineas for what is called "the fee on the brief" and subsequently the fee is reduced to 15 guineas per day. It is a much smaller fee than what we get here in this House for every day's service and there is considerably more responsibility attached to it. It is equally true that in charges of manslaughter, attempt to murder, or conspiracy to murder, the fees are about half the fees in a murder case.
The legal profession will probably continue to do in the future what they have done in the past to defend necessitous cases free of charge. Nobody should think that the free legal aid scheme is doling out money in the form of generous fees to the legal profession. The main consideration under subsection (3) is that this particular subsection will ensure that a person charged with a serious offence, such as conspiracy to murder, manslaughter, or attempt to murder and so on, will not receive any assistance of any kind in the District Court. It is extremely unfair that a person should be confronted and put on trial on an unsworn statement, with no advice whatever made available to him by society. If the Minister insists upon the proposal in subsection (3), he will do a great disservice to citizens who may find themselves accused of murder or perhaps manslaughter through reckless driving, and so on, and he will save very little money for the Department of Finance in the process. I would ask him to agree to delete this subsection. Certainly it will not improve the operation of the free legal aid scheme and it will not help the unfortunate people who may find themselves involved in trouble and likely to be faced with a trial by jury.
The whole purpose of this Bill is to eliminate the time-wasting deposition procedure. That is the fundamental purpose. It is quite apparent to me that if we allowed free legal aid at this preliminary stage, where we have got the safety valve here of permitting the accused, if he wishes to have oral evidence, to have it, we would be running contrary to the whole purpose of the Bill, which is to discourage depositions at the preliminary stage. The whole purpose is to eliminate the time-wasting deposition procedure while at the same time preserving the rights of the accused. In the normal case, the District Justice will decide on the documentation before him whether or not there is a case to answer and the accused will be sent forward for trial or he will be discharged. Free legal aid comes in for trial purposes, to cover the expenses of the trial. That principle is not being breached. What we are saying is that, for the purpose of the actual preliminary examination, we will not allow free legal aid. It is a defensible proposition, having regard to the general tenor of the Bill which is to discourage depositions at the preliminary stage. It is on that ground that I defend it.
It is remarkable that although this Bill has been in print since last November 12 months, and this provision has been open to the public gaze since then, and has come in for considerable publicity, it was only since the Committee Stage in the Seanad that I received any representations from the legal bodies concerned. I appreciate the unpaid work often done by practitioners, both solicitors and counsel, and I wish to put on record that this fact is appreciated. At the same time, it is significant that the bodies concerned thought so little of the matter that they did not make any representations until after Senator O'Quigley referred to the matter here and when I informed him that I had not received any representations. Only at the eleventh hour did I get representations from the two professional bodies, the Bar Council and the Incorporated Law Society. I am not saying that in any critical way: I am only stating a matter of fact. I am basing my decision on this matter securely on the ground on which I based it initially, that I feel that if this provision is not included, if it is deleted as Senator O'Quigley wishes, and if we allow free legal aid at deposition stage, we will be breaching the main principle of the Bill.
We are all in agreement with the Minister that the antediluvian and antiquated system of taking depositions should be discarded and that the system proposed here should be introduced. Of course, a great deal of the time wasted in taking depositions was wasted due to the fact that the deposition had to be written out in longhand, read out to the witness who was asked if he wanted to make any change in it and then, if he did, it was re-read to him and then the deposition had to be signed. We were still at the quill pen and ink stage. Members of the legal profession had been calling out for a reform of that system for many years. The presence of a solicitor, or of a solicitor and counsel, in some cases at deposition has not ever, in fact, been a factor contributing in any way to delaying the taking of depositions.
Here again the Minister is not correct. Everybody knows that the appropriate procedure for a solicitor or counsel in most cases where they are taking depositions is to keep his mouth shut and ask as few questions as possible. Very often what they are concerned with is keeping out what are supposed to be voluntary statements and examining and assessing the veracity of the different witnesses as they go through. That is the sort of function they serve but they do not contribute in any material way to the time involved in the taking of depositions and they would not, if they were present at this particular type of hearing. It can be said quite clearly and affirmed quite positively that in the case of the poorer accused person—he may be a small farmer or father of a large family in a poor workingclass area—charged, we shall say, with manslaughter or dangerous driving occasioning death or serious bodily harm, that as far as he is concerned, the preliminary investigation in the District Court in the absence of a solicitor is the merest formality and it is only a waste of everybody's time that he should be brought before a District Justice because the District Justice could just as well read the documents in his own home or in a room at the back of the court and say: "I am returning this man for trial," unless there is somebody there to examine these documents and to determine whether some person should be brought in and examined in respect of all or some of the matters in his statement.
So far as time is concerned, having free legal aid would not in slightest contribute to a waste of time. It would be the merest formality for people not represented by solicitors to have these documents presented to them and have them considered by a District Justice. I should like to know from the Minister, and it would be much more convincing as a reason for insisting on subsection (3) of section 19, the figures for the number of cases in which free legal aid has been granted to date by District Justices at the taking of depositions on charges other than murder since the scheme came into operation. That would be an interesting figure. I venture to think it is not a large one and that District Justices have exercised great discretion under the scheme. In those cases in which they have granted free legal aid, I warrant they were serious cases in which it was decided that it was in the interests of the accused that such aid should be given. If not permitted to do it now under the rules of the House, I should be glad to hear from the Minister on the Final Stage in how many cases, other than murder cases, was free legal aid granted at the deposition stage.
Amendment No. 24 has been discussed with amendment No. 15.
I did not think that was so.
The Senator may have a separate decision on it if he wishes. Is the amendment being pressed?
Yes. I move amendment No. 24:
In page 9, line 3, to delete "District" and wherever it occurs in Part III.
I move amendment No. 25:
In page 9, to delete lines 50 to 52.
With the permission of the Cathaoirleach—has the Senator in mind the O'Callaghan judgment in his amendment? If so, we could perhaps take amendments Nos. 25 and 26 with the Government amendments?
Perhaps so. What I thought about subsection (5) of this section is that if a person is being remanded, he should be remanded to a particular date or day because I cannot see how a court can, or why it ought to, remand a person to a day on which the court may not be or is not sitting. It could well happen that a person would be remanded to a particular District Court on a named day and the court might not sit on that day for one reason or another, the illness of the District Justice or something of that kind. As the section stands, it seems to me that the person still stands remanded until the next sitting day of the District Court. Why they do not put in a capital "District" for the sake of consistency, I should like to hear from the Minister later on. It seems to be that the period of remand could well exceed the normal eight days without the consent of the accused person, as the section is drafted.
I do not think it will arise in practice, having regard to the regular sittings of the District Court which are held in practically all areas. If the accused is prejudiced, of course, he has a right of habeas corpus application to the High Court. If a justice is ill or incapacitated or cannot turn up for the sitting, the practice is to have another district justice in attendance on that day.
I am not happy about this particular section. The Minister is always saying that they have such remedies as habeas corpus applications, applications for adjournments and so on. I do not think that is the appropriate approach to a situation such as this. What the Minister and all of us should be concerned about is that people are not remanded and kept in custody for a longer period than necessary. It is no consolation if somebody steals my car, to tell me: “Of course you have your remedy; you can sue the person who stole your car.” I do not want my car stolen. That is the point. Equally, here, I do not want an accused person kept in prison, when he might get bail, for an hour longer than is necessary and I am not satisfied if I am told he has a remedy by habeas corpus. This subsection envisages that a person may be kept for longer than is necessary when he could be out on bail. This is not the correct way to deal with the situation.
But the person has been remanded by the District Justice already in accordance with the law. What more can be done than let the matter stand until the next sitting, once you are assured there are regular sittings of the court?
If the section were elaborated to say that the accused would stand remanded and be brought before a District Justice, not necessarily at a special court——
It is in ease of the accused that he should stand to the next court held in the district. He has got an assurance of a court hearing which he would not get otherwise.
If a person is remanded to Clonakilty court on the 14th of May and there is no court in Clonakilty because the justice is hurt on the way and taken to hospital, that accused should be brought to another District Justice on that day or the following day at a special sitting. It is not good enough to say he should be brought before the next court sitting in the Clonakilty district on, say, 17th May and that he will stand remanded to that court on that day.
As the Senator will see, it is the sitting of the court next held in the court district. The adjournment provided in the Bill is to the next sitting of the District Court. The District Justice, if he is not in that area, will be somewhere in his district two or three times in a week possibly. If he does not turn up at one place, he will turn up somewhere else.
I am not happy about it.
On the section——
Only the amendments were recommitted, not the sections.
On the last occasion we did not deal with these sections because it was agreed that until such time as there was an opportunity of dealing with the Supreme Court decision, it would be a waste of time to deal with them then. There therefore was no examination of the section.
I informed the House of the procedure on the amendments to this Bill. Only amendments Nos. 25 to 35, in Part III, are in Committee.
I understood the sections—indeed that was the understanding on which these sections went through the last day without wasting time on them—in Part III of the Bill would be recommitted.
No, only the amendments.
May I say that was the agreement of the House on the last occasion. At column 84 of the Official Report, if I may refer to it, this appears:
Mr. O'Quigley: 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.
The Minister then said that was the procedure and that was the agreement of the House. There was no real discussion on the sections.
The Chair has ruled that only the amendments may be discussed, on recommittal.
I bow to your ruling. There has been a misunderstanding, not on my part or that of the Minister. We could have discussed the sections on the last occasion if we had wanted to waste time.
I move amendment No. 26:
In page 10, line 5, to delete "of the District Court" after the word "justice" and wherever it occurs in Part III.
Earlier we referred to a justice. We referred throughout Part II of the Bill to a justice. There is only one functionary, if that is the appropriate term to apply respectfully to a judge of the District Court, known to our legal system as a justice. That is the way he is described in the Court Establishment (Constitution) Act, 1961. Why then is it necessary to go through the laborious process of referring to a justice of the District Court in section 28 (1) and in the same section at subsection (8) having the inconsistency to say "a justice" or "a peace commissioner"? Could the Minister explain this manifest and glaring inconsistency and tell us how it could be commendable?
It depends on the merits in each case. It is a question of readability and clarity.
What is the difference between a justice of the District Court and a justice? Could there be any other person but a justice of the District Court? If that is the title, why do we refer to him inconsistently in two different Parts?
It is quite plain that we are referring to a justice of the District Court.
It is the sheerest slovenliness.
Amendments Nos. 27, 28, 30 and 31 may be discussed together.
This amendment and the other amendments referred to by you, Sir, are relevant to the recent Supreme Court decision in the O'Callaghan case. Government amendment No. 27 was rendered necessary by that decision. It can go with Senator O'Quigley's amendment No. 31 which is the very same as Government amendment No. 30. Senators will recall that on the Committee Stage, I asked for some time to consider the effect of the Supreme Court judgment on the principles which have governed the grant or refusal of bail. That judgment is one which raises very important issues. For example, it rejects explicitly the likelihood of the commission of further offences while on bail as a ground for refusing bail and the majority of the three judges considered that evidence of previous convictions, even for offences committed while on bail, could be admitted only in limited circumstances and should not prevent bail being allowed, unless it appeared probable that the accused would not surrender for trial. I quote the constitutional requirement by quoting from Article 40.3.2:
The State shall, in particular, by its laws protect as best it may from unjust attack...the life, person, good name and property rights of every citizen.
I emphasise "every citizen". It seems to me further careful consideration must be given to all the implications of this judgment. It is not merely an academic matter, as Senators can see, in that the protection of the citizen from death or injury to his personal property is involved.
Pending further consideration of the matter, and in order not to hold up the enactment of this legislation, I have decided to delete any of the provisions of this section which might be regarded as inconsistent with the judgment of the Supreme Court. A further consequential amendment is contained in the additional amendment which has been specially circulated today, that is, amendment No. 35, which I hope all Senators have received.
We got it, like the indictment—when we were about to sit.
I believe this is the best course to adopt in these circumstances so that an important matter of this kind can be investigated thoroughly and a fully considered view arrived at by the Government on the principles which should govern the courts in this important matter of granting bail. We are going to look at this very closely, with a view to evolving some solution in future legislation which will be consistent with what the Supreme Court may regard as necessary and proper to ensure law enforcement. On one view of the judgment, it would appear to me to go too far, having regard to the basic importance of protecting the life and property of the individual and having regard to the effective enforcement of the criminal code.
For the present, in order to ensure that this Bill will not be held up on a constitutional matter, I am adopting the procedure of deleting here what appears to be inconsistent with the judgment. We can leave over to future legislation the question of setting out the principles explicitly.
If I may say so, I think the Minister has adopted a highly commendable attitude in giving full effect immediately to the decision of the Supreme Court in the O'Callaghan case. That case is remarkable for many things, but one of the things it establishes very clearly is that the Constitution of Ireland is not by any means an empty formula at all. It is not an inadequate document. It is something which secures the freedom and dignity of the person, to quote the Preamble, if I am not misquoting it, and ensuring that that dignity and freedom will be assured, even in the case of persons who may be charged with criminal offences, or who have an unhappy criminal past.
The Minister says the Supreme Court decision may on one view go too far. I consider that it emphasises how difficult it is in a democracy, such as ours, to reconcile the interests of the common good with the interests of the individual in securing individual liberty. That is a tremendous problem and the Minister is quite right to conduct a further examination of the existing law, having regard to the Constitutional provisions and the interpretation of the Supreme Court in the O'Callaghan case, to see how the law can be framed to deal with difficult situations which can arise, such as where persons of a violent character are returned for trial and released on bail but there is no suggestion that they will not turn up for their trial. There may be persons who may not be quite mentally stable, who, upon a certain view, it would be desirable should be incarcerated. Indeed, their sanity may become one of the crucial issues, as a preliminary to their trial. On a certain view of the Supreme Court, such a person must be released as there is no question of that person not turning up for trial.
One can cite the Mental Treatment Act, 1945 and the amending Acts which contain powers to enable people who are mentally unstable, and who may be released on bail, because of the requirement of the criminal law, to be incarcerated in a mental home to get the treatment suitable to their condition. There are a lot of difficulties which arise because of the constitutional provisions. The Supreme Court merely says what the Constitution contains. That is one of the difficulties of living in a democracy and it is something which as the Minister says will have to be worked out.
I am very glad the Minister has accepted the full implications for the moment of the Supreme Court decision and that, if necessary, he will bring in whatever legislation may become desirable in the light of examination which may strengthen the law in other respects for the protection of the individual and the public interest. In amendment No. 28, which is being dealt with here, I undertook the laborious task of trying to deduce from the Supreme Court decision what were the principles which ought to apply in the case of remand on bail. I thought it well to write those into the legislation for the purpose of assisting District Justices and others who would have to operate these provisions in arriving at a proper decision. The Minister has not done that. Perhaps he is right in not trying to do it. Therefore, I will not press my amendment because I can see it has certain difficulties. It may not be specific enough in some ways and it may be badly drafted in some other respects.
I would urge the Minister, however, to look into the matter of keeping District Justices and judges up to date as far as decisions of this kind are concerned. There are some very important decisions which are handed down from the High Court, the Court of Criminal Appeal and the Supreme Court from time to time. A copy of that decision should be put in the hands of every District Justice, State Solicitor, judge of the Supreme Court and others who may be concerned with it. If we are not writing amendment No. 28 into the section, the Minister ought to see to it that a copy of this judgment and other judgments like it are made available to District Justices. How can a District Justice sitting in Belmullet know what is decided in the Supreme Court? A lot of those decisions are not even reported in the papers.
There is no District Justice in Belmullet.
I said, sitting in Belmullet. It is unfair to expect District Justices who have not got a library available to them and because of the still bad legal reporting—I know it has been improved in some ways—to know what the law is. If it is not the Minister's responsibility to do this, I hope he will bring to the notice of the appropriate authorities the desirability of circulating that judgment to all District Justices and judges of the Supreme Court for their information, so that they may know what the law is when remanding persons charged before them or dealing with applications to remand them on bail.
This is a drafting amendment. It is to delete "prison" and to substitute "custody". It is possible that an accused person could be in custody in a remand institution awaiting trial, whereas the subsection, as now phrased, envisages the only possibility as being that of awaiting trial in a prison. The Criminal Justice Act, 1960, authorised the courts to remand prisoners to remand institutions, where they were between the ages of 16 and 21 years. Examples of remand institutions are St. Patricks, North Circular Road, for youths and Henrietta Street Convent for girls. I think "custody" is more comprehensive.
I move amendment No. 32:
In page 11, lines 9 and 10, to delete "attempt to murder, conspiracy to murder or piracy".
Section 29 provides that bail shall only be granted by the High Court in the case of the offences set out in subsection (1) of the section. These are treason, certain offences under the Offences Against the State Act, 1939, breaches of the Official Secrets Act and murder, attempt to murder, conspiracy to murder or piracy, including an accessory before or after the fact. Again, we ought to be logical and consistent in this Bill.
In this Bill we have cast aside as unimportant attempted murder, conspiracy to murder, piracy and accessory before or after the fact of murder. We have done that in subsection (3) of section 19 of the Bill. These are not important crimes; they do not carry with them the importance, in the eyes of this House and of the Dáil, that murder does. We have decided that if a man is charged with attempted murder, or conspiracy to murder, or with any of the other kinds of offences I mentioned earlier, they are not important enough to warrant the grant of free legal aid to him. If that is our view, we ought to be consistent and permit the District Court to determine whether he should be granted bail.
There is no argument against that in logic. If we say we are not going to provide any assistance or free legal aid in these cases, then if they be diminished in importance in that way we should permit the District Court to grant bail where a person is accused of those particular charges. That is the purpose of my amendment.
I feel that bail should not be granted in these cases except under order of the High Court. These charges are only triable by the Central Criminal Court. It is well enshrined in law that they are serious offences.
Of course, these are serious offences. It is because they are serious offences that free legal aid should be available at the preliminary investigation. The Minister cannot have it both ways. If they are so serious offences that they are only tried by the Central Criminal Court, then for those offences, at any rate, the Minister should provide, or permit the House to provide, that free legal aid will be available to the persons tried on preliminary investigation.
It is available.
Not on preliminary investigation, and the House has swept this aside for the sake of this mess of pottage, for the sake of this miserable saving which the Minister will now be able to present to the miserable Department of Finance.
The Chair suggests that amendments Nos. 33 and 34 be taken together.
I move amendment No. 33:
In page 12, line 10, to delete "or a peace commissioner".
I move amendment No. 34:
In page 12, lines 11 and 12, to delete "before a peace commissioner or is brought" and in lines 15 and 16 to delete "or peace commissioner".
Additional Government amendment No. 35 has been circulated to Senators.
This amendment is consequential on the deletions to which the House have agreed.
There was certainly no agreement that all Stages would be passed today.
It is essentially a Committee Bill and there is nothing more we can do by way of amendment.