I move: "That the Bill be now read a Second Time."
This is an amendment of the Criminal Procedure Act of 1967 which has been introduced by Senators John Horgan, Trevor West and myself. It is a Bill which at present contains one section. I would hope, as I shall explain, to introduce a further section also amending that 1967 Act, on further reflection. It is open to further amendments if the Minister for Justice should choose to make them.
The particular section which it is proposed to amend is section 13 of the Criminal Procedure Act, 1967. This section amends section 3 of the Criminal Justice Act, 1951, and in so doing has resulted in a hardship in the operation of the criminal procedure. Section 13 provides for the possibility of an accused pleading guilty in the District Court when charged with an indictable offence and then being sent forward with that plea of guilty for sentence to the Circuit Court. It is open to the accused, when he reaches the Circuit Court, to change that plea at any stage before the sentence is imposed to "not guilty". He would then have a trial on indictment in the normal way and, if convicted, he would have an appeal to the Court of Criminal Appeal.
As section 13, subsection (2) (b) operates, if the accused is sent forward from the District Court with a plea of guilty and is sentenced on foot of that plea, then he has no further appeal to the Court of Criminal Appeal, or any other court, however harsh the individual sentence may be.
This situation arises from a change in terminology between the wording of section 3 of the Criminal Justice Act, 1951, and the wording of section 13 of the Criminal Procedure Act, 1967. In the 1951 Act the wording used was "if the accused signs a plea of guilty send him forward for trial with that plea" whereas in the 1967 Act, the wording used is "if the accused signs a plea of guilty send him forward for sentence with that plea". Therefore it was clear from the wording of the 1967 Act that the accused was not to have a trial in the Circuit Court; he was merely sent forward for sentence. For this reason the Court of Criminal Appeal held that because the accused was not tried in the Circuit Court, and was therefore not tried on indictment, the Court of Criminal Appeal has no jurisdiction to hear an appeal.
This matter arose in a case in early 1970 which was reported in the 1970Irish Reports. It is the case of The People (at the suit of the Attorney General) against Liam Tyrell. In this case, Tyrell pleaded guilty in the District Court to various charges of larceny and he was sent forward with a plea of guilty under section 13 of the Criminal Procedure Act of 1967 for sentence. He was sentenced to three years imprisonment, which he considered to be a very harsh sentence. He applied for legal aid in order to pursue an appeal against the sentence before the Court of Criminal Appeal. At the hearing of this application for legal aid Mr. Justice McLoughlin, on behalf of the Court of Criminal Appeal, found that the court had no jurisdiction either to consider the question of legal aid or to consider the matter of the appeal.
I propose to quote a page and a half from this judgment because it sets out clearly the substantive point at issue. Mr. Justice McLoughlin, at page 299 of the judgment in this case, said:
But the procedure laid down by s. 3 of the Act of 1951 was not applicable to this case, for that section was repealed by s. 3 of the Act of 1967 and was replaced by s. 13 of the latter Act. As far as the instant application is concerned, there are the following crucial differences in the new procedure. Whereas under the Act of 1951 the applicant would have been sent forward for trial to the Circuit Court, under the Act of 1967 he is sent forward to the Circuit Court merely for sentence. Thus the Circuit Court was not the court of trial, it was merely the court of sentence. Whereas under the Act of 1951 he would have been formally convicted in the Circuit Court on indictment on a plea of guilty; under the Act of 1967 the applicant was not indicted, and no conviction was recorded against him in the Circuit Court. The only function the Circuit Court had was to give the applicant an opportunity of withdrawing his written plea of guilty and, failing that, to sentence him.
The court goes on to say that it cannot grant legal aid in this case and cannot consider the appeal. Then the Court of Criminal Appeal makes a very strong case for amendment of the law by the legislature. Mr. Justice McLoughlin continues:
The repeal of section 3 of the Act of 1951 by the Act of 1967, coupled with its replacement by section 13 of the latter Act, has resulted in an unfortunate casus omissus in that a person who signs a plea of guilty in the District Court on a charge of an indictable offence and is sent forward to the Circuit Court and sentenced on that plea has no right of appeal to this or any other court. It is hardly necessary to point out that it offends against the fundamental principles of justice and fairness that a person who confesses his guilt and submits to sentence should be left without appeal, no matter how excessive the sentence may appear to be; while a person who is sentenced after a trial on indictment in which he has pleaded not guilty may apply for, and be given, leave to appeal to the Court of Criminal Appeal and may be given legal aid to prosecute such appeal. It can scarcely be doubted that this defect in our system of criminal law is the result of a legislative oversight. The remedy, however, lies with the legislature. All this Court can do is to express the hope that the necessary corrective legislation will be enacted as soon as possible. As far as the present case is concerned, both the application for leave to appeal and the application for legal aid must be struck out for want of jurisdiction.
As I pointed out, this case was heard and reported in 1970. At that point the Court of Criminal Appeal was calling on the legislature to amend this defect in criminal procedure as soon as possible. The matter is one which affects the practice of criminal law quite substantially, because it is not possible for a barrister or solicitor representing a person to advise that person to plead guilty and be sent forward to the Circuit Court with that plea of guilty. If the lawyer comes into contact with a person at the stage where he has been sent forward with a plea of guilty, then the lawyer feels under the present system that he must advise the individual to change that plea to a plea of not guilty, because if that person receives an unduly harsh sentence, or what is regarded as an unfair sentence in the circumstances, he has no further appeal. Many efforts have been made by individual lawyers to challenge the constitutionality of this provision and it was considered recently in the Supreme Court in a case which has not yet been reported, certainly in the official law reports. The Supreme Court again said that although this position was not itself unconstitutional it was a matter which ought to be changed by the legislature. The President of the Circuit Court has recently stated in court that this is a matter which requires to be changed. The device of the written plea is, of course, a great saving in time and money and, indeed, can be a great release to the accused in that he can plead guilty and not have to have a trial with all the publicity and proof involved and he can accept whatever sentence is imposed. But it has really fallen out of use because of the risk of not having any appeal from the sentence imposed. The defective state of the law has removed the possibility of using the facility of the written plea.
Another factor which is important in relation to this issue is that the purpose of having a Court of Criminal Appeal is to have a certain standardisation of appeals. It is regarded as grossly unfair and also a bad influence on the balance of the criminal system, that appeals should rest unchallenged from individual judges. The Court of Criminal Appeal has a function of creating a standard of appropriate sentences. If a particular sentence is out of line, the Court of Criminal Appeal can vary it and adjust it to bring it into line. Similarly, where there have been convictions after trial in the District Court in the normal way there is an appeal to the Circuit Court which again standardises the particular appeals and prevents either the temperament or particular viewpoint of an individual judge from causing hardship to the accused involved.
These are the reasons behind the decision to introduce the section. The actual form of the amendment was chosen deliberately to avoid the problem which arose in relation to the wording both in the Criminal Justice Act, 1951, and in the Criminal Procedure Act, 1967, namely, whether the words "sent forward for trial with a plea of guilty" or "sent forward for sentence with a plea of guilty" should be used. It was decided instead to write in an appeal and give jurisdiction to the Court of Criminal Appeal. Therefore it is proposed to insert a new subsection into section 13 of the Criminal Procedure Bill as follows:
(2) (a) The Court of Criminal appeal shall have jurisdiction to remit or to reduce or to increase or otherwise vary a sentence imposed by a court under the procedure provided for in subsection (2) (b).
The effect of this would be that if another case similar to the position which arose in the Liam Tyrrell case arose, and who a person was sent forward with a plea of guilty, did not change that plea in the Circuit Court, and was sentenced on foot of that plea, the Court of Criminal Appeal would have jurisdiction if the person wished to appeal against the length or harshness of sentence imposed. So much for the actual text which was published on the First Stage. I should like to indicate—and this is a matter which has been brought to my attention again more particularly by a recent case and by the statments by the solicitor in the case—that the situation where legal aid is not available in the procedure set out in the Act of 1967 except in cases of murder, would appear to contravene the Convention of Human Rights and Fundamental Freedoms.
In section 19 of the Criminal Procedure Act, 1967, an amendment was made to the provisions relating to legal aid contained in the Criminal Justice (Legal Aid) Act, 1962. This Act, which provides for legal aid in restricted circumstances in criminal cases, was cut down so that it would apply only in cases of an accused charged with murder. On the face of it, it is not easy to understand why this restriction on the possibility of applying for legal aid was made in the Criminal Procedure Act. It has caused hardship where an accused is charged with some other serious offence but not murder and where he cannot apply for legal aid in the District Court in these circumstances. Therefore, an amendment which it would be proposed to introduce on Committee Stage, and which would be very much in the context of this Bill, would be one simply to delete subsection (3) of section 19 of the Criminal Procedure Act, 1967. By doing so this would allow the accused, in the circumstances provided for in section 19, to apply for legal aid in other than just murder cases. The position would then be no more restrictive than the already rather narrow terms of the Legal Aid Act, 1962. A very good argument can be made for broadening the scope of the Act of 1962. It was a backward step to try to narrow its application in the Act of 1967. In practice it has caused a great deal of unnecessary hardship and even a discrimination against an accused availing of this particular procedure. I would propose on Committee Stage, if the Bill is accepted by the House, to introduce an amendment in these terms.
